J. Sullivan & Sons Mfg. Corp.

2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. SULLIVAN & SONS MFG. CORP. and TEXTILE WORKERS UNION OP AXERIOA, CIO. Case No..4-CA-4 2. January 7, 1953 Decision and Order On August 5, 1952, Trial Examiner William F. Scharnikow, issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of these allegations. Thereafter the Respond- ent filed exceptions to the Intermediate Report, and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson]. The request of the Respondent for oral argument is hereby denied, as the record and the brief and exceptions, in our opinion, adequately present the issues and positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, J. Sullivan & Sons Mfg. Corp., Philadelphia, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively concerning wages, hours, and other conditions of employment, with Textile Workers Union of America, CIO, as the exclusive representative of an appropriate bargaining unit of its employees consisting of all production and maintenance employees excluding office and factory clerical employees, engineers, watchmen, foremen, and superintend- ents, during the period of the contract executed by the Respondent with the said Union on December 14, 1951, and thereafter during any such further period as the said Union may be designated as the ex- clusive bargaining representative by the employees in the aforesaid appropriate unit within the meaning of Section 9 (a) of the Act. 102 NLRB No. 6. J. SULLIVAN & SONS MFG. CORP. 3 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively concerning wages, hours, and other conditions of employment with Textile Workers Union of America, CIO, as the exclusive representative of all employees in the aforesaid appropriate unit, during the period of the contract executed by the Respondent with the said Union on December 14, 1951, and thereafter during any such further period as the said Union may be designated as the exclusive bargaining representative by a majority of the employees in the said unit within the meaning of Section 9 (a) of the Act; and, if an understanding is reached, embody such under- standing in a signed agreement if requested by said Union. (b) Post at its plant in Philadelphia, Pennsylvania, copies of the notice attached to the Intermediate Report and marked "Appendix C." 1 Copies of said notice to be furnished by the Regional Director for the Fourth Region shall, after being duly signed by the Respond- ent or its representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps 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 Fourth 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 dismissed insofar as it alleges that the Respondent committed unfair labor practices in violation of Section 8 (a) (1) of the Act. 1 The notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." In the event that this order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon an amended charge filed December 26, 1950,1 by Textile Workers Union of America, CIO, herein called the Union, the General Counsel for the National Labor Relations Board,' by the Regional Director for the Fourth Region (Phila- delphia, Pennsylvania), issued a complaint dated March 3, 1952, alleging that J. Sullivan & Sons Mfg. Corp., herein called the Respondent, has engaged in I The original charge was filed on November 8, 1950, and duly served upon the Re- spondent on November 10, 1950. A The General Counsel and the staff attorney appearing for him at the hearing are herein referred to as the General Counsel ; the National Labor Relations Board is referred to as the Board. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is engaging in unfair labor practices affecting commerce within the mean- ing of Section 8 (a) (1) and (5) and Section 2 (6) (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein referred to as the Act. Copies of the complaint, the amended charge, and a notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance : (1) That, on and since June 1, 1950, the Union has been, and continues to be, the exclusive bargaining representative of an appropriate bargaining unit of the Respondent's employees consisting of all production and maintenance employees excluding office and factory clerical employees, engineers, watchmen, foremen, and superintendents. (2) That, on or about August 28, 1950, and at all times thereafter, the Re- spondent, in violation of Section 8 (a) (1) and (5) of the Act, has refused and continues to refuse to bargain collectively with the Union as the exclusive bar- gaining representative of the employees in the appropriate bargaining unit. (3) That the Respondent also violated Section 8 (a) (1) of the Act by inter- rogating employees concerning their affiliation with, and activities on behalf of, the Union ; by granting wage increases and making adjustments in wage rates without consulting the Union and for the purpose of discouraging membership in the Union ; by displaying to employees a knowledge of internal union matters ; and by threatening employees with reprisals, such as a shutdown or curtailment of the Respondent's operations should they assist, join, or remain members of the Union, or engage or continue to engage in the Union's concerted activities. The Respondent, in its answer to the complaint, generally denies that it com- mitted any of the unfair labor practices alleged in the complaint, and also asserts other grounds of defense which, for convenience are set forth and dis- cussed in the consideration of the issues in section III, A, of this Report. Pursuant to notice, a hearing was held in Philadelphia, Pennsylvania, on May 12 and 13, 1952, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union appeared by their respective counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Before the end of the hearing, the General Counsel and counsel for the Union submitted their oral argument upon the issues in the case but counsel for the Respondent waived oral argument. Since the hearing, counsel for the Respondent and counsel for the Union forwarded to the undersigned their respective briefs. 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 The Respondent, J. Sullivan & Sons Mfg. Corp., a Pennsylvania corporation with its principal office and place of business in Philadelphia, Pennsylvania, is engaged in the manufacture, sale, and distribution of narrow fabrics. The Respondent annually causes to be purchased, transferred, and delivered to its Philadelphia, Pennsylvania, plant, materials of a value in excess of $400,000, of which more than 60 percent by value is shipped to said plant directly from manufacturers or suppliers located outside the Commonwealth of Pennsylvania. It annually manufactures products of a value in excess of $800,000, of which more than 60 percent by value is sold and delivered to persons located outside the Commonwealth of Pennsylvania. J. SULLIVAN & SONS MFG. CORP. 5 The Respondent admits , and the undersigned finds, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The refusals to bargain 1. The setting and the issues On July 10, 1949, the Respondent purchased the Philadelphia plant and business previously operated by a similarly named, corporate owner, and since then has had two contracts with the Union covering its production and mainte- nance employees at this plant. The first of these contracts was executed on July 11, 1949, the day after the Respondent took over the plant, and terminated on July 11, 1951, pursuant to a 60-day written notice given by the Union on May 10, 1951, in accordance with the express, applicable provision of the con- tract' The second contract, although dated and made effective as of July 11, 1951, was actually executed on December 14, 1951, and is still in effect since, by its terms, it will expire only on November 30, 1952. It was during the effective period of the first, or 1949, contract that the Union claimed, and the complaint now alleges, that the Respondent refused to bargain in violation of the Act. For the Union filed its charge on November 8, 1950, and, as will be seen and the General Counsel specifically stated at the hearing, all of the acts of the Respondent upon which the General Counsel relies to show a refusal to bargain, were committed from August 28, 1950, to the end of January 1951. There is no dispute, and the undersigned accordingly finds, that the employee unit covered by both the 1949 and 1951 contracts and as described in the com- plaint, was, and is, appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act; that the Union was designated as bargaining representative by a majority of the employees in this unit on July 11, 1949, when the 1949 contract was executed ; and that the Union was the exclusive bargaining representative of the employees in the appropriate unit at least until July 11, 1951, when the 1949 contract terminated. By its answer, and the position taken by its counsel at the hearing, the Respondent questions the continuation of the Union's majority and its status as exclusive bargaining representative after the termination of the 1949 con- tract on July 11, 1951. In this connection it points to the undisputed facts, admitted by opposing counsel at the hearing, (1) that the Respondent sought to raise this question by filing a petition with the Regional Director on June 6, 1951, for an investigation of the representation of its employees under Section 9 (c) (1) (B) of the Act, just after it had received the Union's notice terminat- ing the 1949 contract and asking the Respondent to bargain upon modifications or a new contract; (2) that the Regional Director, however, dismissed this petition in view of the pending unfair labor practice charge filed by the Union ; and (3) that the Respondent eventually negotiated and executed the 1951 con- tract with the Union only after the employees had engaged in a strike in support s The 1949 contract provided for a term of a year , subject to automatic extensions for successive annual periods until terminated by a 60-day written notice from either party to the other. See section 2R of the contract in Appendix A of this Report. 250983-vol. 102-53-2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Union which began on July 17, 1951, and lasted for 20 weeks until December 14, 1951, the date the second contract was signed. However, as the undersigned pointed out in substance to counsel during the hearing, the refusal to bargain which the General Counsel urges the Board to find, if it occurred at all, occurred not only before the 1949 contract expired (and therefore during the period when the Union was concededly the exclusive bargaining representa- tive of the employees in the unit) but also before the Respondent questioned the Union's continuing majority by the filing of the representation petition. If, therefore, the refusal to bargain be found by the Board, under well-settled precedent,` the Respondent's obligation to bargain with the Union as the exclusive bargaining representative of the employees continued, and thus survived the 1949 contract, until, by bargaining, the Respondent had remedied its earlier refusal to bargain. The General Counsel and the Union contend that the Respondent refused to bargain collectively with the Union in violation of Section 8 (a) (5) of the Act, by granting a series of wage increases in September 1950, amounting in their aggregate to a general uniform increase of 71, percent for all the em- ployees, without bargaining with the Union as required by the contract; and also by refusing in January 1951 to bargain further upon the Union's request for a 10 percent general wage increase, unless the Union withdrew its refusal- to-bargain charges. The Respondent, on the other hand, denies that it refused to bargain col- lectively with the Union in violation of the Act, either by instituting the wage increases or by terminating bargaining negotiations in 1951. With respect to the wage increases, it asserts in substance (1) that the Union failed to constitute, and to inform the Respondent of the identity of the members of, its negotiating committee as required by the contract, although the Respondent had requested it to do so, and therefore, that the Respondent was excused from bargaining on the matter of the wage increases; (2) that the wage increases in question did not amount to a general wage increase which, according to the contract would have been a bargainable matter, but that, on the contrary, it was a series of "merit increases" which, by previous practice under the contract, had been instituted by the Respondent without bargaining with the Union ; and (3) that, in any event, the provisions of the contract required the Union to submit to arbitration the dispute between the parties as to whether the Re- spondent had the right to institute the wage increases without bargaining with the Union, and that the Union, having failed to take this course, may not claim that the Respondent refused to bargain. With respect to its alleged termina- tion of bargaining negotiations on the Union's 10 percent wage increase demand in January 1951, the Respondent, in its brief (pp. 6 and 7), contends, upon its view of the evidence, that the Respondent, as "part of the give and take of collective bargaining," and "for the purpose of expediting the unfair labor [practice] charges filed with the Board," merely proposed or suggested that the Union witlidraw its unfair labor practice charges, without delay, and that, contrary to the contention of the General Counsel and the Union, the Respondent did not refuse to bargain with the Union unless the charges were withdrawn. The instant case thus presents the questions of whether in the light of the bargaining, wage-reopening, and arbitration provisions of the 1949 contract, the Respondent refused to bargain with the Union in violation of Section 8 (a) (5) of the Act (1) by unilaterally granting a series of wage increases in September 1950, without bargaining with the Union; and (2) by refusing to 4 Franka Broa. Co. v N. L. R. B., 321 U. S. 702 J. SULLIVAN & SONS MFG . CORP. 7 negotiate on the Union's wage demand in January 1951 , unless the Union's pending unfair labor practice charge was withdrawn or prosecuted without delay. 2. The provisions of the 1949 contract The bargaining, wage-reopening, and arbitration provisions of the 1949 con- tract, which have an actual or asserted bearing upon the present case, are set forth in Appendix A of this Report. For the purpose of dealing with the evi- dence in the light of the contentions of the parties, the undersigned makes the following findings as to the substance of these provisions : The Respondent recognized and agreed to bargain with the Union as the representative of the employees in the bargaining unit ( section 2 ), and "to rec- ognize and deal with such representatives of the employees in its shops as the Union may elect or appoint" ( section 3 ). As its representatives for this purpose, the Union agreed to appoint or elect stewards from among the em- ployees to serve the workers in each of the four principal departments of the plant ; and also a "Shop Committee who shall also act as Negotiating Commit- tee" of not more than eight employees , with the proviso "that each of the four principal departments shall have at least one representative on the Negotiating Committee" ( section 13 ( b), (c), and ( d) ). In connection with this under- taking to appoint or elect the stewards and the members of the shop committee and the negotiating committee, the Union further agreed that it would "furnish [the Respondent ] in writing with the names of the Stewards , Shop Committee and Shop Chairman and notify it in writing whenever any changes are made before [ the Respondent] will recognize the new elected or appointed employee" (section 13 (e) ). The contract provided for the continuation of the existing scale of wages and piecework rates "for the duration of this agreement " ( section 14) except for possible modifications through collective bargaining , either when required by "any changes in methods of production" ( section 5 ), or, when requested by either the Respondent or the Union on 30 days' notice to the other , "at the end of each six (6 ) month period during the term, extension , or renewal of this agreement" ( section 23 (a) ). The remaining provisions of the contract relevant to the issues in the present case dealt with arbitration. Thus, section 21 of the contract required the parties to submit their "dispute" to "final and binding" arbitration by an arbitrator or arbitrators whose manner of appointment was fully prescribed in that section of the contract , whenever the parties might "find themselves unable to agree concerning any issue arising under the terms of this agree- ment." And other sections of the contract specifically required the parties to submit to such arbitration whenever necessary to resolve continuing disagree- ment between them at the terminal point of the grievance and complaint pro- cedures provided by the contract ( section 18 (e)), and also in their bargaining upon a permissive wage reopening of the contract at the end of any of the prescribed 6-month periods (section 23 (a)). Although the contract contained no provision referring to the grant of "merit increases," the Respondent asked the Union in a letter dated August 20, 1949, for approval of proposed increases for four employees , each being the only incumbent of a particular work classification . In spite of the Union's refusal to grant approval , the Respondent advised it on January 13, 1950, that the increases had been granted because, "under past contracts we have given vol- untary increases from time to time." When the Union further protested, the Respondent informed it in a letter dated January 13 , 1950, that 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If the Union is unable to agree with Management on the matter of merit increases, we would suggest that they proceed under Article #21 and send the matter to arbitration without further ado as no vote or statement of the membership can now change the action taken by our Superintendent. The merit increases have been granted and are being paid, therefore, the matter is closed unless you decide to open it up under the contract by arbitration. The Union took no steps to bring the matter to arbitration. 3. The wage increases Although section 23 (a) of the 1949 contract provided that, on 30 day's notice, wages and piecework rates might be redetermined at the request of either of the parties at the end of each 6-month period during which the contract or an extension or renewal thereof was in effect, neither the Respondent nor the Union made any such request prior to the end of the 6-month period on July 11, 1950. On August 28, 1950, however, the Respondent's president, Arthur R. Hutchin- son, mailed the following letter to the Union, to the attention of Business Agent Fred Muscheck: Continued violation on your part of Paragraph 13, Section B of our present agreement "IT IS AGREED THAT EACH OF THE FOUR PRINCIPAL DEPARTMENTS SHALL HAVE AT LEAST ONE REPRESENTATIVE ON THE NEGOTIATING COMMITTEE" prevents us from complying with Paragraph 5 of said agreement as to Wages, Wage Rates and the fixing of new Piece Rates. Revised increased rates, effective September 4th, 1950, will be mailed you this week. It will be noticed that the Respondent thus referred the Union to section 5 of the contract which required "any changes in methods of production, as affect- ing the wages, wage rates . . . [and] fixing of new piece rates or prices" to be made "only through collective bargaining between the representatives of the parties hereto," and also to section 13 (b) and (e) which required the Union to appoint a negotiating committee of no more than eight employees, at least one of whom should represent each of the Respondent's four departments, and to furnish the Respondent with the names of these committee members "before the [Respondent] will recognize the new elected or appointed employee." It is clear that, as the Respondent informed the Union in this letter, the Union had not appointed a full committee as required by the contract. For, as Hutchinson testified without contradiction, and the undersigned finds, the only list of members of the Union's negotiating committee was furnished by the Union on July 22, 1949, at Hutchinson's request, and left a blank for the name of the representative from the weaving department. Furthermore, the employee named by the Union as the representative of the maintenance and miscellaneous department immediately scribbled his name off the list when it was posted by the Respondent and informed the Respondent that he would not serve. By August 28, 1950, the Union had not informed the Respondent that either of these vacancies had been filled. On August 29, 1950, Business Agent Muscheck telegraphed the Respondent : Received your letter. We have a complete committee and desire to meet ,with you at once to discuss rates. Kindly advise convenient time. J. SULLIVAN & SONS MFG. CO. 9 In response by telegram on August 30, 1950, the Respondent again requested information from the Union as to who the members of the negotiating committee were. And on September 2, 1950, Muscheck telegraphed the names of seven employees, stated that Muscheck was the eighth member of the committee, and requested a meeting before the Respondent put its proposed wage increases into effect. Five of the seven employees thus designated by the Union in its telegram of September 2 as members of the negotiating committee, were employees in the weaving department and the other two, in the winding department. Thus, neither of the other two principal departments (the wareroom and the mainte- nance department) was represented on the committee as the contract required. Accordingly, on September 7, 1950, the Respondent wired the Union : Proposed general wage increases held up by your wire. Advise who represents wareroom and maintenance department and drop from committee either a weaver or a winder so we can have a meeting. On the same day, September 7, 1950, the Respondent posted the following notice to its employees : Our proposed voluntary general wage increase covering all employees, effective September 5th, 1950, is hereby withdrawn due to the fact that Fred Muscheck, business representative, together with the Union Shop Com- mittee, desires a meeting prior to putting the proposed increased rates into effect, which meeting is impossible due to the fact that the Union does not have a complete Negotiating Committee representing all departments as per our agreement. The Respondent received no reply from the Union to its request of September 7 that the Union properly reconstitute its negotiating committee. However, instead of thereafter pursuing its expressed intention of effecting a "general wage increase" which it recognized as being subject to bargaining with the Union's negotiating committee, the Respondent resorted to what it termed, both in its letters and telegrams to the Union and in Hutchinson's testimony at the hearing, as being "merit increases." Thus, in apparent reliance upon the grant of the four merit increases in January 1950 as a precedent, the Respondent's superintendent, George R. Opperman, notified the Union by letters mailed on September 13, 14, 15, and 18, that "Following our established proce- dure," it was giving "merit increases," of specified amounts to various categories of its hourly paid employees. Furthermore, on September 13, 1950, the Re- spondent also posted a notice to its employees that in accordance with the "Walsh-Healey Public Contracts Act" minimum wage rates for all employees except learners would be 87% cents per hour. On September 15, 1950, the Union sent the following telegram to the Re- spondent: Your one-sided actions have breached our contract. Request you imme- diately cancel your unilateral action and meet with the Union immediately. In reply, on September 15, 1950, Hutchinson sent a telegram and a letter to the Union. The telegram was the following: Retel. Your breaching of our contract necessitated taking the action I have. Our last communication dated September 7 still unanswered. Al- ways willing to meet with the Union. In the letter of September 15, 1950, copy of which is attached to this Report as Appendix B, Hutchinson expressed his and the Respondent's attitude more fully. He stated, in substance, that, although the contract did not "call for 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a wage reopening until January 10, 1951," he had proposed a "voluntary general wage increase" for a number of reasons: (1) "primarily [because of] the splendid work and excellent cooperation of our employees now that they do not have so much outside influence to contend with ..."; (2) because other textile employers had given "voluntary wage adjustments . . . with thanks by the various Union locals" ; and (3) because the Respondent did not want to lose its employees to defense industries. Hutchinson further criticized the "negative" attitude of the Union toward anything which he proposed as being for the good of his employees and attributed to the Union's conduct a lack of support on the part of the employees and particularly an unwillingness on the part of the employees to serve on the Union's committee. He further stated that he could prove that the Union did not represent a majority of the em- ployees "but [on the contrary,] misrepresent[ed] the minority" but said he had no intention of challenging the Union's representation at that time. He concluded the letter with the following statement : Unless you advise me immediately to proceed with my plan of August 28 [the proposed general wage increase] we will continue with merit increases, correction of inequalities or any other subterfuge to give every single em- ployee on the entire payroll what I want them to have and stay within the written contract, all to be retroactive to September 4, 1950. [Emphasis supplied.] Four days later, on September 19, 1950, Hutchinson began taking the final steps forecast by his letter of September 15. For, on September 19 he sent the follow- ing letter to the Union : I have been informed that merit increases granted by our superintendent last week have caused inequalities in the piece work rates in the wareroom department. We cannot continue having inequalities in this most needed department and this is to notify you that the piece work rates in this department are being changed to correct these inequalities. Then, on September 25, 1950, Hutchinson sent the following letter to the Union : At my request I had an informal meeting on Monday afternoon with the Shop Chairlady on various minor matters. During this discussion I learned that piece workers throughout the mill were a little upset due to the correction of inequalities made in the ware- room, which they thought caused inequalities in their department. We cannot have inequalities in any department of this mill and this is to notify you that piece work rates in the Warping, Weaving and Winding Depart- ments have been changed, retroactive to September 4, 1950, to correct these inequalities. Upon completion of the necessary paper work we will furnish you and the shop chairlady with all of the necessary information regarding rates. President Hutchinson testified, and the undersigned finds, that, as a result of the "merit increases" and the "correction of inequalities" in the piecework rates, all of the employees of the Respondent received a 71/2 percent increase in wage rates or piecework rates over their rates prior to August 28, 1950. 4. The Respondent's refusal to bargain during the pendency of the Union's unfair labor practice-charge Following a conversation between Hutchinson and Betty Kritzberger, the Union's shop chairlady, there was an exchange of letters between the Respond- J. SULLIVAN & SONS MFG. CORP. 11 ent and the Union between September 25 and October 11, 1950, which resulted in a revision of section 13 of the contract, eliminating the requirement that an employee from each of the Respondent's departments serve on the Union's negotiating committee. As amended, section 13 provided for a shop committee of the four employees who were the principal officers of the Union, and further provided that the negotiating committee should be composed of this shop com- mittee, two of the stewards, and the business agent and/or the joint board manager of the Union. The parties, however, continued in effect the provision that the Union would furnish the Respondent in writing with the names of the shop committee and the stewards and would notify the Respondent in writing "whenever any changes are made before the [Respondent] will recognize the newly elected or appointed employee." On October 18, 1950, the Union informed the Respondent by letter of the names of the members of the shop committee, of the stewards, two of whom were to serve on the negotiating committee, and requested a conference with the Respond- ent to discuss a general 10 percent wage increase in accordance with a settle- ment which it asserted had been made by the Union with the "Cotton Rayon Division of the Textile Industry." On October 20, 1950, Hutchinson replied by letter to Muscheck, agreeing that the shop committee and the negotiating committee, as outlined in the Union's letter, were in accordance with the amendment of section 13 of the contract, With reference to the Union's request for a bargaining conference, Hutchinson made the following statement in this letter : As to your request for a convenient date for the Committee to meet with me to discuss a matter of a wage increase in accordance with an alleged settlement made with the "Cotton Rayon Division of the Textile Industry" involving a general 10% wage increase please be advised I will be glad to meet the Committee any time after December 11, 1950 as per your contract Paragraph 23, Section A. Accordingly, on December 8, 1950, Business Agent Muscheck notified President Hutchinson of the Union's desire to discuss a redetermination of wages and requested Hutchinson to inform him of a convenient date for the purpose. As the result of an exchange of letters between December 20, 1950 , and January 3, 1951, in which Hutchinson insisted that the bargaining conference be held at the Respondent's office and that, under the provisions of section 13 of the contract, as amended, the union representatives be limited to the negotiating committee, thus excluding the Union's attorney, a meeting between Hutchinson and the negotiating committee was arranged and held on January 4, 1951. On January 8, 1951, Hutchinson wrote the following letter to Business Agent Hueter of the Union : In accordance with my verbal agreement with you of July 1949, I met with our committee on January 4, 1951 with a nonantagonistic feeling, even though you have seen fit to file Unfair Labor Charges against my company. In view of the fact that this has been the first meeting that I have been able to hold with the committee since July 11, 1949, due to the failure of my employees to comply with our contract agreement in regard to a com- mittee, and the fact that we have complied with the agreement, I think it proper and advisable for you to withdraw these unfair "Unfair Labor Oharges" immediately. On the same day, January 8, 1951, President Hutchinson wrote the following letter to Business Agent Fred Muscheck : 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At our meeting on January 4, 1951, representing my employees you asked for the following : #1-Restoration of the 10% piece work cut given Winders and the 5% piece work rate cut given Weavers, Warpers and Wareroom on July 11, 1949. #2-Cancellation of merit increases and correction of inequalities given, by Management, on September 4, 1950 to one warp weighmaster, one shipper, one machinist, one general utility man, one chief bleacher and five loom fixers, amounting to 100 per hour, and to two mainte- nance men amounting to 9¢ per hour and to all other employees amounting to 71/2¢ per hour and instead Award a fiat 10% increase to all employees, said 10% increase to be in addition to that stated in item #1. In reply would say : #1-The cut in piece work rates given in July 1949 was to correct in- equalities that had been in effect since 1942 and were acknowledged at that time by both Union officials and employees. To restore these rates at this time would again create unfair inequalities and is there- fore refused. #2-Request for a 10% general increase effective January 11, 1951 Is refused in view of the substantial merit increases and corrections of inequalities granted by employer on September 4, 1950. On January 11, 1951, following an exchange of two letters in which Muscheck and Hutchinson disagreed as to whether Hutchinson had properly characterized the Union's position as demanding a "cancellation" of the "merit increases" and the substitution of a 10 percent increase, Muscheck wrote the following letter to Hutchinson : This is to acknowledge receipt of yours of the 9th. In view of your position taken against our demands, we hereby request that the following issues be referred to an impartial arbitrator as provided in paragraph #21 of our agreement. 1. Restoration of wage cuts for weavers, winders, warpers, and ware- room, which were put into effect on July 11, 1949. 2. A general wage increase to all employees effective January 11, 1951. For your convenience we are enclosing a list of arbitrators, anyone of which is satisfactory to us. Will you please advise us as to your choice so that we may proceed in the matter? In reply, Hutchinson wrote the following letter to the Union on January 19, 1951: This will acknowledge receipt of your letter of January 11, 1951 wherein you request that certain issues stated in your communication be referred to an impartial arbitrator. We are most willing to have said issues referred to an impartial arbritrator and we nominate Dr. Howard Teaf, Haverford College, Haver- ford, Pa., one of the gentlemen listed as an arbitrator acceptable to you. Before going into arbitration, however, we request that you forthwith prosecute or withdraw the charge filed against us with the National Labor Relations Board wherein you have complained , inter alia, that this Com- pany on and after September 15, 1950 refused to bargain collectively with regard to change of wage rates and has disregarded the provisions of the Collective Bargaining Agreement. The very fact that since September 15, 1950 you have bargained with this Company on behalf of our employees J. SULLIVAN & SONS MFG. CORP. 13 and now request that the matters in dispute be referred to an impartial arbitrator demonstrates how baseless and lacking in merit are the charges filed by you with the National Labor Relations Board. So as to make our position clear, this Company will not engage in the senseless and futile procedure of attempting to adjust our differences in two different forums as you attempted to do in the Carter case, now of happy memory. The results in the Carter case demonstrated the useless and wasteful expenditure of time and money, not only on the part of manage- ment and of our employees, but also proved an expensive undertaking inso- far as the personnel of the Union was concerned. We wish to adjust our differences at a very early date, but will not under any circumstances be lured into two different forums for the purpose of reaching a determina- tion of an issue which should be simple, expeditious and inexpensive. We shall be glad to meet with you preliminarily to meeting with the repre- sentatives of the National Labor Relations Board for the purpose of testing the soundness of the position herein taken. We do not believe the National Labor Relations Board or any other Governmental agency will compel us to go into arbitration while there remains outstanding a charge filed with the National Labor Relations Board that we have refused to bargain with your Union. May we ask that you give this matter the calm and sober consideration which the importance of the question demands and not render a decision which can only result in immediate embarrassment to us and ultimate embar- rassment to you. [Emphasis supplied.] On January 22, 1951, Business Agent Muscheck wrote the following letter to the Respondent: This is to acknowledge receipt of your letter of January 19th. In view of the recent developments within the Cotton and Rayon Division of the Textile Industry, it is our desire to meet with you to further discuss the matter of wages. Thursday January 25th, 10 A. M. is a satisfactory date with us. If we do not hear to the contrary we will assume that the above mentioned date is satisfactory to you. On January 23, 1951, Hutchinson sent the following letter to Muscheck : Replying to your letter of January 22 in answer to our letter of January 19 this company's policy has been very firmly and clearly stated and until such time as you see fit to either prosecute or withdraw charges filed by you against us with the National Labor Relations Board we will not meet with you to further discuss the matter of wages. On January 25, 1951, the Union' s attorney wrote the following letter to the field examiner entrusted with the handling of the charge in the present case and sent a copy to Cornelius C. O'Brien, the attorney for the Respondent : My client, Textile Workers Union of America, has been in receipt of a number of letters from Mr. Hutchinson, indicating that the Union should either "prosecute or withdraw charges" flied with the Board. So far as I know, we are prosecuting charges as rapidly as we know how, as the matter is in your hands for decision, and we have furnished you with all the infor- mation which you have requested. In order that there may be no misunderstanding between us, I want you to know that we desire charges pressed. I am sending a copy of this letter to Mr. O'Brien. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No further attempts were made by the parties to bargain upon the matter of wages and, on May 10, 1951, as has been noted, the Union gave notice to the Respondent that, pursuant to the terms of the contract, it was giving notice of its desire to terminate the contract 60 days thereafter. 5. Conclusions a. As to the unilateral wage increases in September 1950 It is clear from the evidence, and the undersigned finds, that the Respondent's objective in effecting the September 1950 wage increases was to avoid losing its employees to other employers. Whether, under the provisions of both the con- tract and the Act, it had the right to do so without the Union's consent and its approval of the amount of the increase, is the broad problem presented by this phase of the case. In its letter to the Union on August 28, 1950, the Respondent claimed that it had a right under the contract to insist upon the Union's bargaining upon a revision of wage and piecework rates and stated that, having been deprived of the opportunity to exercise this right by the Union's failure to constitute and announce the negotiating committee required by the contract, it was therefore increasing the wage and piecework rates on September 4, without consulting the Union. Then, beginning with September 13, it adopted an entirely different tack by claiming and purporting to exercise a right (which it asserted at the hearing had been established by past practice within the framework of the contract) to grant unilaterally a series of uniform "merit increases" for all the hourly paid employees, and similar "corrections of inequalities" in all the piecework rates. For the reasons which follow, however, the undersigned is of the opinion that the provisions of both the contract and of Section 8 (d) of the Act (which defines the obligation to bargain) not only do not support, but, on the contrary, refute, the existence of any such rights as those asserted by the Respondent under the circumstances of the present case. As has been found, the only provisions of the contract relating to the scale of wage and piecework rates and their possible modification or revision were sections 5, 14, and 23 (a). Section 14 provided for the continuation of the existing scale of wages and piecework rates "for the duration of this agreement," except for possible modifications through collective bargaining, either (as provided by section 5) when required by "any changes in methods of production," or (as provided by section 23 (a)) when requested by either the Respondent or the Union on 30 days' notice to the other, "at the end of six (6) month period during the term, extension, or renewal of this agreement." In the factual situation presented by this case, these provisions of the contract not only did not justify, but forbade, the unilateral reopening of the wage scale under the contract on August 28, 1950, and at any time thereafter until January 11, 1951. For, although the Respondent in its letter to the Union on August 28, 1950, expressed a frustrated right and desire to bargain for a change in wage and piecework rates under the terms of section 5, it never showed, either in its dealings with the Union or in the evidence which it presented at the hearing, that there had been "any changes in methods of production" which required or made advisable an adjustment or revision of wages or piecework rates and thus justified the application of section 5. Furthermore, having failed to give the Union a 30-day notice of a desire on its part to revise wage rates on July 11, 1950, the end of one of the 6-month periods referred to in section 23 (a) of the contract, the Respond- J. SULLIVAN & SONS MFG. CORP. 15 ent was barred from any right under that section of the contract to reopen the existing wage provisions until January 11, 1951. Nor does the Respondent stand upon any better footing in its assertion of a right unilaterally to institute the September 1950 increases us a series of uniform "merit increases" and "corrections of inequalities" in accordance with an al- legedly established practice. The early 1950 grant of "merit increases," which the Respondent relies upon as demonstrating the practice or "established pro- cedure" under the contract, presumably because the Union did not take its objections to arbitration, are clearly distinguishable in that they involved only four employees and cannot therefore be regarded as a precedent for such a complete revision of wage and piecework rates of all the employees as occurred in September 1950. Moreover, not only did the September 1950 "merit increases" and "corrections of inequalities" actually amount to a general wage increase but, as President Hutchinson frankly wrote in his letter to the Union on September 15, 1950, they were so intended by the Respondent, and termed "merit increases" and "corrections of inequalities" as a "subterfuge" to accomplish the general wage increase, since the contract "does not call for a wage reopening until January 11, 1951." Therefore, as a unilateral general wage increase, quite different from the four merit increases of early 1950, the so-called "merit increases" and "corrections of inequalities" of September 1950 were clearly forbidden by the contract, for the reasons already expressed. The provisions of Section 8 (d) of the Act, as well as the provisions of the contract, refute the existence of any right on the part of the Respondent to bargain with the Union beginning on August 28, 1950, for a revision of wage rates, and forbade any unilateral action on the Respondent's part in effecting any such changes. For Section 8 (d) defines "the duty to bargain collectively" as forbidding the modification of an existing collective bargaining contract by one of the parties thereto, unless, among other things, it has first served a 60-day notice on the other party and "continues in full force and effect . . . all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever ocowrs later." (Emphasis supplied.) Furthermore, Section 8 (d) also ex- pressly states that these elements of the statutory duty to bargain collectively "shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract." It appears clear from this consideration of the provisions of the contract and of Section 8 (d) of the Act that the Respondent had neither a right to insist upon the Union's bargaining concerning any revision of wage or piecework rates which was to become effective before January 11, 1951, nor, certainly any right unilaterally to effect any such change. As matters stood under the combined effect of the contract and the law, the Respondent required the consent of the Union to a reopening of the wage question and a modification of the wage scale but the Union was not required to agree to, or even to discuss, the proposed modification to become effective before January 11, 1951. Since the Union was therefore not required to bargain at this. point either under the contract or the law,' if it voluntarily considered the Respondent's proposal outside the bar- gaining provisions of the contract, it was certainly not required to do so through a committee composed in exact accordance with the obviously inapplicable con- 5John W. Bolton d Sons, Inc., 91 NLRB 989, 990 (footnote 3), 1000. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tractual provisions." Furthermore, since the Respondent needed the Union's consent before it could lawfully change the wage scale, it could certainly not avoid entertaining and considering the argument which the Union was likely to make, that the Respondent's proposed wage increases were insufficient. This, then, was the position in which the Respondent had put itself on August 28, 1950, under the terms of its contract and by its failure, shortly before that date, to give the notice which would have permitted it to reopen and bargain upon a revision of the wage scales as of July 11, 1950. In short, if it wanted badly enough to effect the wage increases which it proposed on August 28, 1950, it was required to deal with any representatives the Union might choose for the pur- pose, to entertain and consider any suggestions made by these representatives as to the sufficiency of the proposed increase, and to effect only such changes as the Union, acting through these representatives, might agree to. When the Respondent failed to follow this course and nevertheless put its wage increases into effect, it clearly violated the bargaining requirements of the Act. In sum, the undersigned finds that by refusing to bargain with the committee presented by the Union on September 2, 1950, by thus failing to secure the Union's necessary consent to the proposed increases as required by Section 8 (d) of the Act and refusing incidentally to permit and entertain any arguments of the Union as to the sufficiency of those proposed increases, and finally by uni- laterally effecting the wage increases of September 1950, the Respondent refused to bargain collectively with the Union in violation of Section 8 (a) (5) and (1) of the Act. In reaching these conclusions that the Respondent refused to bargain in vio- lation of the Act and that the various defenses posted by the Respondent upon the provisions of the 1949 contract were without merit, the undersigned has con- sidered the contention of the Respondent that, under the arbitration provisions of the contract, the Union was required to submit to arbitration its dispute with the Respondent as to whether the Respondent had the right to institute the wage increases without bargaining with the Union, and that, having failed to do so, it was therefore barred from bringing the matter to the Board on unfair labor practice charges. In support of this contention, the Respondent cites two decisions of the Court of Appeals for the Sixth Circuit 7 But the proposition advanced by the Respondent is contrary to the provisions of the Act and the decisions of the Board and of other courts of appeal who have considered the question. Thus, Section 10 (a) of the Act provides that the Board's power to prevent unfair labor practices affecting commerce "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.... " And, in view of this strong, clear statutory language, the Board' and the Courts of Appeal for the Third and Ninth Circuits" have held that the failure of a charging party to resort to 6 Clearly inapplicable to the present situation, therefore, are decisions of the Board which hold merely that, with respect to bargaining on matters within the purview and contemplation of a particular contract, an appropriately and clearly worded provision of the contract may require the contracting union to act only through a committee of specified composition and may, in effect, suspend the obligation of the employer to bargain if, and so long as, the union attempts to do otherwise. See Shell Oil Company, 93 NLRB 161 ; Taormina Company, 94 NLRB 884, 885 (note 3) ; Globe Automatic Sprinkler Company of Pennsylvania, 95 NLRB 253. 7 Timken Roller Bearing Co. v. N. L R. B., 161 F. 2d 949; N. L. R. B. v. Standard Oil Company, 196 F. 2d 892. s Monsanto Chemical Co., 97, NLRB 517 (and cases therein cited) ; John W. Bolton d Sons, Inc., 91 NLRB 989, 1000, Crown Zellerbach Corporation, Siltcoos Division, 95 NLRB 753. ON. L. R. B v. Newark Morning Ledges Co , 120 F. 2d 266, modifying 120 F. 2d 262 (C. A. 3), cert. den. 314 U. S. 693; N. L. R. B. v. Walt Disney Productions, 146 F. 2d 44, 47-40 (C. A. 9), cert. den. 324 U. S. 877. J. SULLIVAN & SONS MFG. CORP. 17 available arbitration procedures to decide a particular question does not bar the Board of jurisdiction but that the Board has discretion to take or decline juris- diction, depending upon whether it believes an order is necessary to effectuate the purposes and policies of the Act. Applying this rule of discretion thus laid down by the Board and the courts, the undersigned is of the opinion that the Respondent's unfair labor practices require the Board to retain jurisdiction and to issue an appropriate remedial order to prevent a recurrence of the unfair labor practices and thus to effectuate the purposes and policies of the Act, as it did in the Bolton case," in which it affirmed the Trial Examiner's finding that the employer had refused to bargain in violation of Section 8 (a) (5) of the Act by unilaterally instituting a wage incentive program to take effect during the life of the contract with the charging union, without having complied with the provisions of Section 8 (d), in spite of the fact that the union had not taken the question to arbitration as provided by the contract. The present case is even a stronger case for the issuance of a remedial order than was the Bolton case, in which the employer's bona fide be- lief in the position which it had taken was not challenged . For, in the present case, President Hutchinson's letter to the Union on September 15 makes it clear that the Respondent's claims of a right on its part to reopen the wage pro- visions of the contract and of the alternative right unilaterally to accomplish the same result by the "subterfuge" of "merit increases" and "corrections of inequalities" were not asserted by the Respondent in good faith but, on the con- trary, with a realization that they were untenable . In such a situation an arbitrator's decision would certainly not constitute an adequate remedy of the Respondent's unfair labor practice nor serve as an effective deterrent of its repetition. Only a Board order can suffice. The undersigned therefore rejects the Respondent's contention that the Union 's failure to resort to arbitration either deprives the Board of jurisdiction or should convince the Board that, in its discretion, it should decline to exercise jurisdiction. b. As to the Respondent's refusal to bargain during the pendency of the Union's unfair labor practice charge The General Counsel and the Union contend that , in January 1951 , the Re- spondent, in further violation of Section 8 (a) (5) of the Act, refused to bar- gain collectively with the Union on the Union's request for a 10 percent wage increase, effective on January 11, 1951 , one of the wage reopening dates fixed by the 1949 contract, unless the Union withdrew its charge in the present case. The Respondent, on the other hand, contends that as "part of the give and take of collective bargaining" and "for the purpose of expediting the unfair labor [practice] charges filed with the Board," it merely proposed or suggested that the Union prosecute or withdraw its unfair labor practice charge without delay, and that the Respondent did not refuse to bargain with the Union unless the charges were withdrawn. The relevant findings of fact already made by the undersigned upon the uncontradicted evidence may be summarized as follows : (1) On October 18, 1950, and thus shortly after the Respondent's unilateral September wage increases of 71/2 percent and the amendment of section 13 of the contract relating to the composition of the Union's negotiating committee, the Union asked the Respondent to discuss its request for a 10 percent wage increase with the Union 's new negotiating committee. (2) Upon Hutchinson's insistence that the wage provisions of the contract could not be reopened under section 23 (a) of the contract until December 11, the Union repeated its request on December 8, 1950. 10 Supra, at pp 980, 1000. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) In the meantime, on November 8, 1950, the Union had filed its unfair labor practice charge in the present case , alleging that the Respondent, by unilaterally instituting the September 1950 wage increases , had violated Section 8 (a) (5) of the Act. (4) On January 4, 1951 , at the only meeting between the parties on the subject, the Respondent rejected the Union's request for the 10 percent wage increase. (5) On January 8, 1951, Hutchinson wrote Business Agent Hueter of the Union that, since Hutchinson had met with the Union on January 4, "I think it proper and advisable for you to withdraw these unfair 'Unfair Labor Charges' immediately." (6) On January 19, 1951 , Hutchinson agreed to the Union's request for arbi- tration on the current wage question but only on condition that the Union "forthwith prosecute or withdraw " the unfair labor practice charge. (7) On January 23, 1951 , Hutchinson rejected the Union's suggestion that the parties bargain further on the Union 's wage request, in the following letter : Replying to your letter of January 22 in answer to our letter of Jan- uary 19 this company's policy has been very firmly and clearly stated and until such time as you see fit to either prosecute or withdraw charges filed by you against us with the National Labor Relations Board we will not meet with you to further discuss the matter of wages. (8) The Respondent thus terminated bargaining with the Union although it received a copy of a letter, dated January 25, 1951 , and written by the Union's attorney to the field examiner of the Board assigned to the case , in which letter the Union's attorney, after referring to the Respondent 's demand that the Union "prosecute or withdraw the charges " and to the fact that the Union had furnished all the information requested by the field examiner , stated that, "I want you to know that we desire charges pressed" and that he was sending a copy of the letter to the Respondent 's attorney. From this recital of the undisputed facts, it appears that, in his letter of January 8, 1951, Hutchinson stated merely that he thought it proper and advisable for the Union to withdraw its charge ; that, in his letter of January 19, 1951, he conditioned his agreement to the Union's request for arbitration under section 23 (a) of the contract, upon the Union's prosecution or withdrawal of the charge ; that, in his letter of January 23, 1951 , he categorically stated that, "until such time as you see fit to either prosecute or withdraw charges filed by you against us with the National Labor Relations Board we will not meet with you to further discuss the matter of wages" ; and, finally, that he made no reply when given notice a few days later that , in compliance with one of the alternatives of his demand , the Union was "prosecuting" the charge. It seems clear from these facts that Hutchinson , in dealing as he thus did with the Union's bargaining request during January 1951 , was not merely suggesting or proposing that the Union "prosecute or withdraw" its charge (as the Respondent's counsel claims in his brief ), but that, on the contrary, he was refusing to bargain unless the Union withdrew its charge (as both the General Counsel and the Union contend). The undersigned accordingly finds that the Respondent , by its letters of January 19 and 23, 1951 , and its failure to reply to the Union upon receipt of the union attorney's letter of January 25, 1951 , conditioned the continuation of bargaining upon the Union 's withdrawal of the unfair labor practice charge, and J. SULLIVAN & SONS MFG . CORP. 19 that, as the Board has held in similar cases,ll the Respondent thereby refused to bargain with the Union in violation of Section 8 (a) (5) and (1) of the Act B. Other alleged interference The complaint alleges that the Respondent also violated Section 8 (a) (1) of the Act by interrogating employees concerning their affiliation with, and activi- ties on behalf of, the Union ; by displaying to employees a knowledge of internal union matters ; and by threatening employees with reprisals, such as a shutdown or curtailment of the Respondent's operations, should they assist, join, or remain members of the Union, or engage or continue to engage in the Union's concerted activities. The evidence upon which the General Counsel relies to support these allegations consists solely of the testimony of President Hutchin- son and of the contents of letters written by him to the Union on September 15, 1950, and January 3, 1951, and also of a letter sent by him to the employees on July 18, 1951, during the strike. Hutchinson denied soliciting information from the employees concerning the Union's activities. He testified that employees came to him and voluntarily told him how many of his employees were attending the Union's meetings. The undersigned, upon this state of the record concerning the allegation of inter- rogation, finds no support for that allegation. Nor does the undersigned find any evidence in the record which warrants a finding that, as the complaint alleges, the Respondent displayed to employees such a knowledge of internal union matters as would interfere with their organizational activities, i. e., by creating an impression among them that they were under surveillance. The only evidence upon which the General Counsel and the Union apparently rely for a contrary finding consists of (1) Hutchin- son's statement in his letter to the Union on September 15, 1950 (see Appendix B) and his admission in his testimony, that he told a number of the mainte- nance and wareroom employees it was their duty to serve on the Union' s nego- tiating committee, and (2) Hutchinson's statement in a letter to Business Agent Hueter on January 3, 1951, that he learned of the sparse attendance of the employees at the Union's meeting from one of the stewards. Under the circum- stances of this case, the undersigned sees nothing improper in Hutchinson's having attempted to persuade employees to serve on the Union's negotiating committee nor in his statement to a union o//'icial, who was not an employee, that one of the Union's stewards had told him the Union's meetings were not well attended. As to threats of reprisals because of the employees' union activities, the only evidence apparently relied upon by the General Counsel and the Union, consists of statements admittedly made by Hutchinson, both orally to individual em- ployees and in a letter mailed to all the employees on July 18, 1951, concerning the bargaining and strike issues. These statements were to the effect that the Union's conduct had previously caused the Respondent to cut down operations by selling some of its looms ; that, although the Respondent had been maintaining production, building up an inventory, and providing work for the employees while other mills were curtailing production and employment, the strike had already compelled him to sell 36 more looms ; and, finally, that If and when we reach an agreement this is to notify you that full pro- duction will not be resumed as full production was not appreciated in the Ii Gagnon Plating and Mfg. Co., 97 NLRB 104; United Shoe Machinery Corp., 97 NLRB 1273; Union Mfg. Co., 95 NLRB 792. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD past. Weavers, winders, and warpers will return to work by seniority and the balance of the employees recalled only when conditions in the narrow ,brie industry improve. :,.nce there was no attempt to disprove Hutchinson's assertions in the course of this letter that the economic pressure of the strike was compelling him to join his competitors in curtailing production and employment and there is ap- parently no reason to disbelieve Hutchinson's general testimony to this effect, the undersigned accepts Hutchinson's explanation of his statements, and refuses to find, as the General Counsel and the Union apparently urge, that Hutchin- son's statements amounted to threats of reprisals against the employees because of their participation in the strike. The undersigned accordingly recommends the dismissal of the complaint except so far as it alleges Respondent's refusals to bargain which have been found in section III, A, of this Report. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, A, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Specifically, the undersigned has found that the Respondent refused to bargain collectively with the Union as the exclusive bargaining representative of the Respondent's employees in violation of Section 8 (a) (5) and (1) of the Act, (1) by unilaterally effecting wage increases in September 1950 and thereby modifying the wage scales provided by an existing contract with the Union, without complying with the requirements of Section 8 (d) of the Act; and (2) by refusing to bargain collectively with the Union in January 1951 unless the Union withdrew the unfair labor practice charge which it had filed with the Board. Following the Respondent's commission of these unfair labor practices, the Respondent and the Union negotiated and executed a general collective bargaining contract on December 14, 1951, which contract by its terms will ex- pire only on November 30, 1952. There is no claim that the Respondent did not bargain collectively in good faith with the Union in reaching agreement on the terms of this contract, nor that the Respondent has since failed or refused to observe its bargaining obligations under this new contract and the Act. In- deed, the General Counsel asserted at the hearing that the Respondent's unlaw- ful refusals to bargain with the Union all occurred during the period covered by the 1949 contract. It is clear from the decisions that the negotiation and execution of a contract with the exclusive bargaining representative of his employees do not render moot an earlier refusal by the employer to bargain, since effectuation of the policies and purposes of the Act requires the issuance of an order barring the employer's resumption or repetition of his unfair labor practices." Such an order, in its 03 William A. Mosow, 92 NLRB 1727, 1729 (note 6) ; American National Insurance Com- pany, 89 NLRB 185, 187-188 ( affirmed on this point but reversed on other grounds, N. L. R B v American National Insurance Company, 343 U. S. 395). See also N. L. R. B. v. Mexia Textile Mills, 339 U. S. 563; N. L. R. B. v. Pool Mfg. Co., 339 U. S. 577. J. SULLIVAN & SONS MFG. CORP. 21 usual terms, requires the employer to bargain with the charging union. For remedial purposes, it thus necessarily continues the status of the charging union as the exclusive bargaining representative of the employees and, in effect, sus- pends the employees' exercise of their right to make another choice until it appears that their choice will again be free. So far as the undersigned knows, it has never been decided whether, in view of the intervening negotiation and execution of a contract, the appropriate bargaining order should always run indefinitely to the benefit of the charging union as exclusive bargaining repre- sentative and thus, by possibility beyond the term of the contract, or whether, at least in some cases, the order should run to the benefit of the charging union only during the period of the current contract and so long thereafter as it continues to be the statutory bargaining representative of the employees" The undersigned believes that the latter course is the one which will best effectu- ate the purposes and policies of the Act in the present case, since it would permit revival of the exercise by the employees of their fundamental right to determine who their exclusive bargaining representative should be, after what appears to be a reasonably reassuring period of a stable, good faith bargaining relationship under the current contract. The undersigned will accordingly recommend to the Board that the order in, the present case should require the Respondent to bargain with the Union during the period of the contract executed by the Respondent with the said Union on December 14, 1951, and thereafter during any such further period as the said Union may be designated as the exclusive bargaining representative by a majority of the employees in the appro- priate unit within the meaning of Section 9 (a) of the Act. In accordance with the considerations set forth in section; III, B, of this Report, the undersigned will further recommend the dismissal of the allega- tions of the complaint that the Respondent committed unfair labor practices other than the refusals to bargain found in section III, A, of this Report. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the undersigned makes the following: CONCLUSIONS OF LAw 1. Textile Workers Union of America, CIO, is a labor organization admitting to membership employees of the Respondent. 2. All production and maintenance employees of the Respondent, excluding office and factory clerical employees, engineers, watchmen, foremen and super- intendents, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Textile Workers Union of America, CIO, is now, and during all times material herein has been, the exclusive representative of all the employees in the aforesaid appropriate 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 the exclusive representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. "In the Mosow and American National Insurance Company cases, supra, unlike the present case, the contracts were negotiated and executed after the issuance of the Trial Examiners' Intermediate Reports, thus obviating opportunity by the General Counsel or the charging union to assert and litigate at the hearing any possible claim that the formulation of the terms of the contracts in question had been affected either by continued bad faith on the part of the employer or by the earlier illegal refusal to bargain . In apparent realiza- tion of the problem now under consideration in this Report , the Board stated in the Mosow case ( at note 6) that the contract "will, of course, be considered at the compliance level." 250983-vol. 102-53-3 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices were unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondent did not commit any of the unfair labor practices alleged in the complaint other than the refusals to bargain found in section III, A, of this Report. [Recommendations omitted from publication. in this volume.] Appendix A PERTINENT SECTIONS OF THE CONTRACT ExucnTED BY THE RESPONDENT AND THE UNION ON JULY 11, 1949 2. The Employer recognizes and agrees to deal with the Union or its duly accredited representatives elected or appointed, as the sole collective bargaining agency for all employees, except those excluded under item 1-part b. * * * * • 3. (c) Employer agrees to recognize and deal with such representatives of its employees in its shops as the Union may elect or appoint, and further agrees to permit duly accredited representatives of the employees elected or appointed by the Union to visit its factory or shops at any time during working hours... . * * * * * * * 5. Any changes in methods of production, as affecting the wages, wage rates, hours, work load, changes from one operation to another, fixing of new piece rates or prices, working conditions and conditions of employment shall be made only through collective bargaining between the representatives of the parties Preto. 13. (b) The Union shall appoint or elect from among the workers covered hereby four (4) stewards from the weaving department and one (1) steward for each of the other principal departments of the Employer's plant. The same steward, where practical and desired by the Union, may serve for one or more departments. There shall be four principal departments as follows : #1 Weaving Department #2 Winding-Warping-Bleach House-Reeling Department #3 Wareroom-Shipping-Finishing Department #4 Maintenance & Miscellaneous Department The Union shall appoint from among the workers covered hereby a Shop Com- mittee who shall also act as Negotiating Committee of not more than eight (8) which may or may not include the Department Stewards. It is agreed that each of the four principal departments shall have at least one representative on the Negotiating Committee. (c) One member of the Shop Committee shall be designated as Shop Chairman. (d) The Shop Committee and stewards shall be the Union representatives in the plant and in case of lay-offs, shall be the last to be laid off and the first to be rehired. (e) The Union will furnish the Employer in writing with the names of the Stewards, Shop Committee and Shop Chairman and notify it in writing when- ever any changes are made before the Employer will recognize the new elected or appointed employee. J. SULLIVAN & SONS MFG. CORP. 23 14. The scale of wages and piece work rates in effect upon the signing of this agreement shall be attached hereto as Schedule "A" and shall remain in effect for the duration of this agreement except for amendments thereto that may result from the provisions of Paragraph 23 hereof. s * s • s r w 18. All grievances and complaints, whether on the part of the Employer or a member of the Union, arising in the plant shall be adjusted in the following manner : (a) Through Department Foreman (b) Through Department Steward and Department Foreman (c) Shop Chairman, Shop Committee and plant superintendent (d) Representatives of the Union and the Employer (e) If after the above procedure, no agreement is reached the matter shall be referred to arbitration in the manner set forth hereinafter. t s s t s s t 21. In case the parties hereto find themselves unable to agree concerning any Issue arising under the terms of this agreement, the dispute shall be referred to an Impartial Arbitrator to be chosen jointly by both of the parties hereto. If the said parties are unable to agree upon an arbitrator within five (5) days, each party shall select one person to act on his behalf and if the two arbitrators so chosen are unable to agree on the issues before them within five (5) days, they shall appoint a third arbitrator to decide. In the event that the two arbitrators so chosen are unable to agree upon a third arbitrator within a further period of five (5) days, or in the event that either party refuses to select an arbitrator, the matter shall be referred either to the American Arbitra- tion Association of (sic) the United States Department of Conciliation, with full authority to select a third arbitrator. (a) The Arbitrator or Arbitrators shall send copies of all decisions and rulings made by him or them to the Union and the Employer, and the decisions shall be final and binding upon the parties herto. (b) The expenses of any arbitrator shall be borne equally by the parties hereto. r s s s s • • 23. This agreement shall become operative as of July 11th 1949, and shall remain in effect for a period of twelve (12) months from said date, and may be terminated at the expiration of the term hereby granted, by either party giving the other party written notice, by registered mail, of its intention to terminate the same, at least sixty (60) days prior to the expiration of the term herein created. In default of such notice, this agreement shall continue In full force and effect upon the same terms and conditions, for a further period of one year from the date of the term herein specified, and so on from year to year, until terminated by either party giving to the other party notice as aforesaid. The post office registry receipt shall be the only evidence of mailing of such notice. (a) Since the term of this agreement is specified for a period of one (1) year, It Is agreed by the parties that the scale of wages and prices in existence at the time of the signing of this agreement may be redetermined at the end of each six (6) month period during the term, extension or renewal of this agree- ment upon the written request of either of the parties given to the other at least thirty (30) days before the expiration of any six (6) months period here- under. If the parties are unable to agree between themselves after the giving of such notice, the question shall be submitted to arbitration in the manner here- Inabove provided. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B LETTER FROM THE RESPONDENT TO THE UNION, DATED SEPTEMBER 15, 1950 SEPTEMBER 15, 1950. Textile Workers Union of America. C. I. 0., Philadelphia Textile Joint Board, 2047 N. Fourth Street, Philadelphia 33, Pa. Attention : Mr. Fred Muscheck Gentlemen : In view of the fact that our present contract does not call for a wage reopening until January 10, 1951, and wishing to comply with the terms of our contract as promised Mr. Hueter, I wrote you on August 28 relative to a voluntary general wage increase. There were several reasons for wanting to give this general wage increase, primarily the splendid work and excellent cooperation of our employees now that they do not have so much outside influence to contend with, and secondly we have been reading in the Textile papers of voluntary wage adjustments given by other employers which have been accepted, according to the papers, with thanks by the various Union locals. Your continued negative position in regard to any plan of Management has again stymied progress here at the plant. How any man can continually be nega- tive over so long a period of years I cannot understand, except when I read the newspapers I find another unusual man (from Russia) who is continually negative. The restrictions we are attempting to operate under are ones, not of my choosing as you well know, but a Union death grip acquired by me by the purchase of Sullivan's. You, as business agent, 1 also acquired and try as I have for the past four years, I am still unable to make any kind of a deal whatsoever with you, whether or not it is advantageous to the Union membership or not, the main thing is, if I want it or think it is good for my employees, you are negative. We have in the wareroom department 50 employees and in the maintenance department 14 employees and you well know there is not a single one of these 64 employees who would even consider serving you and your idiotic, destructive, negative ideas. Surely you must know by the non-attendance at the September meeting of this large group where you and your committee stand with them. I personally talked to a number of employees in the above group, telling them of their duty to serve, and each and everyone that I talked to would rather lose their job than serve you or their committee. As of today I do not think you represent the workers but I have no intention whatsoever of bringing it to a vote. Were it not for a possible interruption of production in a most critical time in our Government history, I am sure I could prove to you that you do not represent the majority but misrepresent the minority. Look at your record at Sullivan's, not since 1942 but just since I purchased Sullivan's. You have given them unemployment, short time, lay-offs and head- aches and have failed to sure (sic) for them one single economical gain. I told you four years ago you would never get me to give you anything I did not want to give to the employees and that still stands. Don't you think that the Sullivan employees know full well that you are personally responsible for the loss of 'fs of their machinery and they are holding their breath right now hoping you do not overstep again and force us to take another load of machinery out of Philadelphia, or even worse than that, close the entire plant? In 1938 and 1939, while at Maurer's, I went thru a period where they lost their employees to higher paid industries. During the period 1940 to 1942 1 went J. SULLIVAN & SONS AUG. CORP. 25 thru a like period at Sullivan's. When I read in the papers of other mills, not narrow fabric competitors, giving 5%, 8% and 10% increases I deemed it ad- visable for this corporation to follow that pattern rather than lose experienced help to defense or war industry who are looking for experienced labor. We have no fear of losing our help to the non-union narrow fabric mills in Phila- delphia. We will lose our help to the metal industries such as Philco, Brown Instrument and like companies who can transform a weaver into a coil winder in a few days where it would take months to train an inexperienced girl. For God's sake Agent, wake up. You can't unionize any other mill in our industry, you put Weimar out of business , you sent : of our looms to other states and you are letting Sullivan carry the C. I. O. banner for you and from the amount of dues we are paying this week I don't see where you earn your salt. Unless you advise me immediately to proceed with my plan of August 28 we will continue with merit increases , correction of inequalities or any other sub- terfuge to give every single employee on the entire payroll what I want them to have and stay within the written contract , all to be retroactive to September 4, 1950. As per your previous instruction a copy of this letter has been given to the Shop Chairlady. Very truly yours, ARH/RG cc : Cornelius C. O'Brien, Esquire Paul Weimar Shop Chairlady J. SULLIVAN & SONS MFG. CORP. (signed ) Arthur It. Hutchinson ARTHUR R. HUTCHINSON Appendix C 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 bargain collectively, upon request, with TEXTILE WORKERS UNION OF AMERICA, CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to wages, rates of pay, hours of employment, or other conditions of employment, during the period of our contract with the said union, executed on December 14, 1951, and thereafter during any such further period as the said union may be designated as the exclusive bargaining representative by a majority of the employees in the appropriate unit within the meaning of Section 9 (a) of the Act ; and if an understanding is reached, we will embody such understanding in a signed agreement. The bargaining unit Is: All production and maintenance employees excluding office and factory clerical employees, engineers , watchmen, foremen, and superintendents. J. SULLIVAN & SONS MFG. CORP., Employer. 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