Dixie Corp.

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIXIE CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO. Cases Nos. 10-CA-1385 and 10-CA-1459. June 8, 1953 DECISION AND ORDER On March 24, 1953, Trial Examiner Robert L. Piper, issued his Intermediate Report in the above-entitled proceeding, find- ing that the, Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached thereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. The Board has reviewed the rulings made by the Trial Ex- aminer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's brief and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following addition: The Trial Examiner found, and we agree, that the Employer's lack of good faith was evidenced by, inter alia, its insistence that any contract -which might be negotiated must terminate on November 7, 1952, 1 year from the date of the election which resulted in the Union's certification, because under the Act that was the earliest time Respondent could seek an election to test the Union ' s status as bargaining representative . While it is true that the term of a contract is a bargainable matter, if it is insisted upon in bad faith or to achieve an illegal purpose, the Employer or the Union, as the case may be, plainly violates its bargaining obligation. In a recent case 1 a majority of the Board held that an employer who insisted upon and obtained the union's agreement to a contract term expiring at the end of the certification year did not thereby violate its obligation to bargain in good faith. In that case the Employer's apparent reason for its position was to afford its employees an oppor- tunity at an appropriate time to express their desires in a Board proceeding, as to whether the union should continue after the expiration of the certification year to represent them as their bargaining representative. The Board'found that the em- ployer had grounds for believing that a majority of its em- ployees had repudiated the union as their bargaining agent at the time it insisted upon a contract terminating at the end of 1 Hinde & Dauch Paper Co., 104 NLRB 847. 105 NLRB No. 49 DIXIE CORPORATION 391 the certification year; and it concluded therefore that the em- ployer was in good faith insisting upon its position.: In the instant case the Respondent' s insistence upon a con- tract term ending 1 year from the date of the election was grounded not on a good -faith doubt as to the Union's actual majority status but upon the Respondent's apparent desire to cease recognizing and bargaining with the Union at the earliest possible moment. Indeed the Respondent was proceeding under a mistaken conclusion of law. Even in the absence of a contract, the Board would not have entertained any petitions filed prior to the expiration of the certification year ( inthis case , Novem- ber 19, 1952).3 But even assuming that the Respondent intended the termination date to be coincidental with the end of the certification year, its insistence on such a terminal date for the reason that it intended to test the Union's majority status at the earliest possible moment would, in our opinion, constitute bad-faith bargaining. As the Board said in the Everist case, 4 "To permit the Respondent to prevail in its contention, would defeat the basic policy of certification of unions as bargaining agents, a policy designed to promote stability in industrial relations. It would encourage recalcitrant employers to engage in dilatory tactics in reaching final agreement in order to reduce the term of the contract to a fraction of the certification year." In the circumstances of this case, we find, as did the Trial Examiner that the Respondent' s insistence upon a limited contract term merely because it wished to test the Union's majority at the earliest possible moment shows its lack of good faith in dealing with the Union. ORDER Upon the entire record in the case , and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Dixie Corporation, Rome, Georgia, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employ- ment with International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, as the certi- fied exclusive representative of all production and maintenance employees, shipping employees, sweepers, and janitors em- ployed by Respondent at its Rome, Georgia, plant, excluding all engineering employees, draftsmen, office clerical employ- ees, guards, professional employees, over-the-road truck- drivers, and supervisors as defined in the Act. 2 Member Houston who joined the majority in finding no 8 (a) (5) in this aspect of the case did so on the ground that duration of a contract was bargainable and that the parties had agreed to a termination as of the end of the certification year. He did not adopt this additional rationale but deems himself bound by it. 3Centr-O-Cast Engineering Co., 100 NLRB 1507. 4L. G. Everist, Inc., 103 NLRB 308. 291555 0 - 54 - 26 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Interrogating its employees concerning their union mem- bership, desires, and activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named organization or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining and other mutual aid or pro- tection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action: (a) Upon request, bargain collectively with International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, as the exclusive representative of its employees in the appropriate unit described above. (b) Upon request, furnish the above-named organization with the job classifications and descriptions, wage rates and rate range by classification, and the number of employees in each classification and at each rate in the rate range in the appro- priate unit in order to enable it to discharge its functions as the statutory representative of the employees in the appropriate unit. (c) Post at its plant at Rome, Georgia, copies of the notice attached to the Intermediate Report herein and marked "Ap- pendix A." I Copies of said notice, to be furnished by the Re- gional Director for the Tenth Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order what steps Respondent has taken to comply herewith. 6 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption 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 sub- stituted for said 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 Charges having been duly filed and served. a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer and amended answer having been filed by Dixie Corporation (hereinafter called Re- spondent), a hearing involving allegations of unfair labor practices in violation of Section 8 DIXIE CORPORATION 393 (a) (1) and (5) of the National Labor Relations Act, as amended 61 Stat. 136, hereinafter called the Act, was held in Rome, Georgia, on January 19, 1953, before the Trial Examiner. In substance the complaint alleges and the answer denies that: (1) At various times between May and November 1951, Respondent interrogated its employees concerning their union membership, activities, and desires, and threatened to close its plant because of such mem- bership, activities, and desires; and (2) since November 28, 1951, Respondent has refused to bargain collectively with the Union as the exclusive bargaining agent of all employees in an appropriate unit. At the hearing all parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs, proposed findings of fact, and conclusions. Briefs from Respondent and the General Counsel have been received and considered. At the opening of the hearing, Respondent's motion to strike paragraphs 4 and 5 of the com- plaint, which alleged the acts of interrogation and threats, upon the grounds (1) that the con- duct alleged had occurred more than 6 months prior to the filing of the charges, and (2) that the Union had waived such conduct by participating in an election to determine a bargaining representative after the occurrence of such conduct, was denied. It is now well settled that all conduct occurring within 6 months prior to the filing of the first charge may properly be alleged and found to be violative of the Act. The charge does not serve the function of a plead- ing and need not specify the particular conduct subsequently alleged in a complaint. With respect to the claimed waiver, Respondent offers no precedent for its position and I believe there is none. Respondent. I believe, is misinterpreting the Board's well-established pro- cedure requiring unions to waive prior alleged unfair labor practices as grounds for objection to any possible outcome of an election, before conducting such an election to determine a collective-bargaining representative, for the sound and well-founded reason that it would unnecessarily waste the Board 's funds , time, and manpower to conduct elections when a loser could challenge the outcome because of acts occurring prior to the election. To prevent this, the Board requires a waiver of such alleged prior conduct as grounds for challenging the result of the election. For sound and basic reasons, it has never been the Board's policy to require employees to waive unfair labor practice charges in perpetuo as a condition precedent to participating in an election. At the conclusion of the General Counsel's case-in-chief, Re- spondent's unopposed motion to dismiss paragraph 5 of the complaint for failure of proof was granted. At the close of the hearing, Respondent's motion to dismiss the complaint and its renewed motion to dismiss paragraph 4 thereof were denied. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT L THE BUSINESS OF RESPONDENT Respondent is a Georgia corporation, having its principal plans, office, and place of business in Rome, Georgia, where it is engaged in the manufacture and sale of aluminum extrusions. During the year ending June 1, 1952, it purchased raw materials, equipment, and supplies valued at more than $400,000, of which more than 70 percent was shipped in interstate com- merce to its plant from points outside of the State of Georgia. In -the same period, it sold finished products valued at more than $600,000, of which more than 50 percent was sold and shipped to points outside the State of Georgia. Respondent admitted, and I find, that it is en- gaged in commerce within the meaning of the Act. IL THE ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events and undisputed facts During the spring of 1951 the Union began its campaign to organize Respondent's employees. From about May to November certain acts of interrogation are alleged to have occurred, which will be considered hereinafter. On November 8 a majority of Respondent's employees in an appropriate unit selected the Union as their bargaining representative in a Board -conducted election. On November 19 the Board certified the Union as the exclusive bargaining agent of 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees in the uncontested appropriate unit. The same day the Union in writing re- quested Respondent to meet and bargain. On November 28 the first meeting took place, which was exploratory in character, and the Union agreed to submit a proposed contract to Re- spondent. On January 2, 1952, the Union submitted a proposed contract and by accompanying letter requested Respondent to furnish the following data: All job classifications, job de- scriptions, wage rates and rate range by classification, the number of employees in each classification, and the number of employees at each rate in the rate range. At that time the number of employees in the appropriate unit was approximately 32. On January 4 Respondent acknowledged receipt of the contract and letter and refused to furnish the data, for the stated reasons that the first 3 items had theretofore been furnished to all employees and hence were available and the other 2 items were irrelevant and unnecessary. By agreement, the parties next met on January 22. At this time the parties briefly considered each clause of the pro- posed contract. The contract proposed, in general, union recognition, dues checkoff upon individual authorization , certain management prerogatives , union representation in the plant, grievance procedure, arbitration, seniority and layoffs, hours, wages, vacations, leaves of absence, no strikes or lockouts , general provisions on procedural matters , an insurance pro- gram, and duration , termination , and modification provisions. Respondent discussed with the Union its position with respect to each clause of the contract. Respondent specifically pro- posed a management prerogative clause which it had in writing and under which it retained unilateral control over wages, hours, and other terms and conditions of employment, including the final settlement of all grievances. i Respondent refused the Union's request for a copy of this clause, stating that it had no extra copy available. While there is a dispute in the record as to whether Respondent agreed to submit in writing this proposal and other counterproposals, or only its written "position" with respect to the proposed contract, which dispute will be considered hereinafter, it is undisputed that Respondent made the above specific proposal but did not include it in its subsequent written position , although it insisted upon this clause throughout the entire negotiations. On January 28 Respondent submitted to the Union by letter its position with regard to the contract. Substantially, it accepted none of the provisions of the contract except the article covering leaves of absence, with modifications, and a few of the general provisions dealing with matters of procedure rather than substance. It also pro- posed a grievance procedure "as outlined on January 22" and, as previously noted , made no mention of its management prerogative clause. On January 29 Respondent advised the Union that February 6, 7, or 8 would be acceptable for the next bargaining conference. On January 31 the Union accepted the date of February 6 and advised Respondent the Union had "not received the Company 's counterproposals that you were to mail to me." The Union had received Respondent's position as outlined in its letter of January 28. On February 6 the parties again met and the meeting lasted for 3 days, ending February 8, with no agreement having been reached. The parties did not meet again, nor were there any further requests for meetings. B. Interference , restraint , and coercion As previously noted, no proof of the alleged threats to close the plant was offered. There remains for consideration the alleged interrogation of employees by various supervisors of Respondent, including Brett D. Holmes, its president. Three employees, Helms, Johnston, and Pace, testified concerning such interrogation. It is abundantly clear from the record that Respondent, through various officials , did interrogate its employees concerning their union activities , membership , and sympathies during the period from the beginning of the organiza- tional campaign to the election . Helms , Johnston, and Pace all impressed me as credible witnesses. Even more significantly, substantial portions of their testimony concerning in- terrogation are undisputed in the record, having been either specifically admitted , undenied, or inadequately explained . In addition , certain inconsistencies in the testimony of Respondent's witnesses concerning the interrogation lend support to the foregoing conclusion. Helms testified that during July 1951, 1 or 2 days after a union meeting, Ben Smith , one of Respond- ent's supervisors, asked him if the Union had had a meeting and who was there. Helms ad- mitted the meeting but did not tell who attended. Smith then said that he knew anyway, and that IThe exact language of this provision , as agreed to by the parties and read into the record, which provision was to be added to section 3 of article 1 of the proposed contract, is as fol- lows: "A. The establishment of production schedules, hours of work and rates of pay, B. The setting up of shop rules . C The determination of job transfers , additions , or eliminations of department. D. In general, all of the commonly accepted functions of management , including final settlement of grievances " DIXIE CORPORATION 395 he knew that Tinsley, another employee, had started the organizational campaign in the plant. Smith substantially admitted the above. Smith admitted he "might" have asked a group how the Union was coming along, might have said something about Tinsley being a member, and frequently had conversations with the employees about the Union. About the only thing Smith denied was that he had ever asked any employee individually if he was a member of the Union. Helms further said that about a week later, Smith again discussed the Union with him and asked him if he belonged to it or was for it. After Helms said yes, Smith said he couldn't understand why the men wanted to bite the hand that fed them. Smith denied asking Helms if he belonged to the Union but admitted the portion about "biting the hand," and claimed that he said it after Helms came to him for advice and expressed concern over the union activity and fear of losing his job, because he had a wife and child to support. Smith's version of this incident does not appear too credible, because Helms was at that time an admitted member of the Union. I conclude and find that the conversations took place substantially as Helms testi- fied. Johnston testified that in June at a meeting of the employees' fund committee (unrelated to the Union), Holmes asked the group collectively and individually how they felt about the Union, and that Johnston and Tarvin, another employee, admitted they had joined the Union. This was not denied by Holmes and in effect admitted. Holmes denied that he had asked anyone at that meeting if they had joined the Union, but at that point no one had so testified. Johnston, on cross-examination, before Holmes testified, had said that his direct testimony about Holmes asking specifically if they had joined the Union might be wrong, but that Holmes had definitely asked each employee present at the meeting how they felt about the Union. In addition, counsel for Respondent on cross-examination asked Johnston: "Did he [Holmes] also start out [by] saying he would appreciate it if you would tell him how you felt about the Union and how the employees felt about the Union?" Johnston also said that Smith talked about the Union to Canada and Johnston 2 or 3 times a week from the start of the campaign to the election. Smith asked them how the organizing was progressing and who attended the meetings. Smith denied he had asked Johnston if he had joined the Union, but nobody claimed that Smith had asked that. Smith admitted asking em- ployees "in a group" how they were coming along with the Union, and asking Johnston if the union meeting had a good turnout. Canada, called by Respondent, testified Smith had never asked him, or Johnston in Canada's presence, if either had joined the Union. As previously noted, nobody had so testified. Considerable evidence, pro and con, appears in the record concerning conversations Smith and Johnston had about a union song, which I find completely immaterial and irrelevant because if contains no evidence of interrogation or any other form of interference, restraint, or coercion. Pace testified that shortly before the election, Holmes asked him if he was for or against the Union in the presence of Peugh, a supervisor, and Davis, an officer of a subsidiary corpo- ration. Holmes denied this and Peugh said that it had not occurred in his presence. Pace also said that shortly thereafter, Peugh said to Pace that Holmes was "on his neck" and wanted to know if Pace was going to vote for or against the Union. Peugh denied this Pace said that on another occasion Peugh told him that Marvin Smith, the plant manager, had complained to Peugh that Pace was a union agitator, and that Peugh didn't know where Smith got his informa- tion, but that Peugh wished Pace would stop agitating. In substance, this was admitted by Peugh. Peugh said that the complainant was the extrusion department supervisor rather than the plant manager, but admitted receiving the complaint and conveying it to Pace. Peugh stated that he knew Pace had not been talking at all, and that he asked Pace how he got the reputation of being an agitator. Peugh said that the agitation was not Pace's doing, and that the other employees congregated about him while he was performing his maintenance duties. On cross- examination Peugh admitted that he had asked Pace how the Union was going, that there was no agitation in the plant other than for the Union, and that Pace's "agitation" was called to his attention and he "did something about it." The inconsistencies in Peugh's testimony are self-evident. A preponderance of the credible evidence in the entire record convinces me, and I find, that Respondent interrogated its employees concerning their union activities, membership, and desires as testified by Helms, Johnston, and Pace. Numerous authorities have held that such interrogation interferes with, restrains, and coerces employees within the meaning of the Act.2 For an excellent discussion of the reasons underlying this conclusion, see the recently 211. J. Heinz Co. v. N. L. R. B., 311 U. S. 514(1941); Joy Silk Mills v. N. L. R. B., 185 F. 2d 732, 743 (C. A. D. C.), cert. denied 341 U. S. 914; N. L. R. B. v Jackson Press, Inc., 201 F. 2d 541 (C. A 7); Standard-Coosa-Thatcher Co , 85 NLRB 1358; The De Vilbiss Company, 102 NLRB 1317. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decided Syracuse Press case, P and authorities cited therein. Accordingly, I conclude and find that by such interrogation Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusal to bargain 1. The appropriate unit The complaint alleged, the Board certified in the representation case (10-RC-1517), and I find that all production and maintenance employees, shipping employees, sweepers, and janitors of Respondent 's Rome, Georgia plant, but excluding engineering employees, drafts- men, office clerical employees, professional employees, guards, over-the-road truckdrivers, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. 2. The Union's majority representation On November 8, 1951, in an election held under the supervision of the Board's Regional Director, a majority of Respondent's employees in the aforesaid unit designated the Union as their representative for the purposes of collective bargaining. On November 19, 1951, the Regional Director certified the Union as the exclusive bargaining representative of the em- ployees. I find that at all times materialherein the Union was, and now is, the duly designated exclusive representative of the employees in the appropriate unit for the purposes of collec- tive bargaining within the meaning of the Act. 3. The refusal to bargain As previously found, the bargaining negotiations extended from the first meeting of the parties on November 28, 1951, to their final meeting, February 8, 1952. On January 2 when the Union submitted the proposed contract, it requested certain wage and job data from Re- spondent. On January 4 Respondent in its letter refused to furnish such data for the stated reasons that the first 3 items had been furnished to its employees several months before, and that Respondent did not consider the other 2 items relevant or necessary. It is undisputed in the record that the first 3 items of information were not furnished to the Union until either the last or second last day of the final bargaining session, and that the other 2 items were never furnished. It is also undiputed that the Union did not renew its formal request for the other 2 items. It is well settled that such a refusal to supply relevant wage and job data is in itself a refusal to bargain in good faith, even when some or all of the data might be securable from the employees.4 As many of the cases have held, to compel the Union to attempt to compile the information from among its members, when the employer has it readily available (as was the case here), is a failure to bargain in good faith. The latter two items requested, which were never fur- nished and were not available in any form to the employees, were refused on the grounds of relevancy and necessity. The Court of Appeals for the Second Circuit in the Yawman & Erbe case, supra explained clearly and succintly why such a refusal lacks merit. The court said: Since the employer has an affirmative statutory duty to supply relevant wage data, his refusal to do so is not justified by the Union's failure initially to show the relevance of the requested information. The rule governing disclosure of data of this kind is not un- like that prevailing in discovery procedures under modern codes. There the information must be disclosed unless it plainly appears irrelevant. Any less lenient rule in labor dis- putes would greatly hamper the bargaining process , for it is virtually impossible to tell in advance whether the requested data will be relevant except in those infrequent instances in which the inquiry is patently outside the bargaining issue. 2Syracuse Color Press, Inc., 103 NLRB 252. 4Aluminum Ore Co. v. N. L. R. B., 131 F. 2d 485 (C. A. 7); N, L. R. B. v. J. H. Allison Co., 165 F. 2d 766 (C. A. 6); N. L. R. B. v. Yawman & Erbe Mfg. Co., 187 F. 2d 947 (C. A. 2); N L. R. B. v. Berkely Machine Co., 189 F. 2d 904 (C. A. 4); N. L. R B. v. Jacobs Mfg. -Co., 196 F. 2d 680 (C A. 2); N. L. R. B. v. Leland-Gifford Co., 200 F 2d 620 (C. A. 1); Hekman Furniture Co., 101 NLRB 631; and Boston Herald Trawler Corp., 102 NLRB 627. DIXIE CORPORATION 397 It is interesting to note that the data there requested included a list of all employees , together with their current and previous year 's salaries , which was certainly broader and more de- tailed than the instant request. For the reasons stated, I find Respondent's refusal to furnish the requested data a refusal to bargain in good faith. The primary and most litigated issue in the case was whether Respondent 's course of con- duct and position during the negotiations , aside from its refusal to furnish the requested in- formation , amounted to a refusal to bargain within the meaning of the Act. On January 22, 1952 , at the first meeting of the parties after the Union submitted its proposed contract, it is undisputed the parties reviewed briefly the various contract clauses. When section 3 of article 1 was reached , Respondent read to the group at the meeting its proposed management preroga- tive clause, previously set forth herein , which reserved to Respondent unilateral control over wages , hours , and other terms and conditions of employment. It is undisputed Respondent did not then or ever furnish the Union with a copy of this . Garrett, the Union's representative at this meeting, testified that he asked Respondent to furnish him a copy , that as various other suggestions by Respondent were made concerning other provisions , he repeated his request for such in writing, and that Respondent agreed to do so . Sullivan, Respondent 's representa- tive, denied that he ever promised to furnish a copy of Respondent 's proposals and said that he only promised to furnish in writing Respondent 's "position" with respect to the proposed contract. On January 29 Respondent furnished its position in writing , which in general listed most of the sections of the contract by number and characterized them as acceptable or un- acceptable , with a few brief proposed modifications of a few sections . Nothing at all was said in this about section 3 of article 1, the management prerogative clause, or Respondent's proposed clause, although all other parts of the contract were covered. In essence , none of the substantial provisions of the contract were acceptable to Respondent . The only sections marked acceptable dealt generally with procedural matters of little moment which would be meaningless alone. The provisions on wages , hours , seniority, grievances , arbitration, vaca- tions , strikes and lockouts , union representation in the plant, checkoff, insurance , and even recognition were not acceptable to Respondent. On January 31 Garrett advised Sullivan by letter that he had not furnished Respondent 's counterproposals which he had promised. Both Sullivan and Holmes insisted throughoutthehearingthatthey had had no intention of submitting any proposals to the Union, but would only let the Union know if its proposals were acceptable. If is , however, undisputed in the record that Respondent did at all times specifically propose and insist upon its management prerogative clause , and also proposed and insisted upon a grievance procedure which would exclude arbitration and leaveall final decisions to Respond- ent. Probably , as one of the union witnesses suggested , the distinction between Respondent's "position" on the contract and a submission of its proposals was a play on words . Certainly Respondent's position throughout was that its management prerogative clause was essential to any contract, and it is difficult to understand why its submitted position should not include its specific demands . It was never explained why its written position failed to cover section 3 of article 1, but there is no dispute in the record as to its position with respect thereto. The parties again met on February 6, and this bargaining session lasted for 3 days. At the outset the Union renewed its request for Respondent 's counterproposals, but Sullivan and Holmes both insisted they intended to make none and would only accept or reject proposals made by the Union. The inconsistency here is apparent, because Respondent's management prerogative clause was again insisted upon as a condition precedent to any contract , and while it was not furnished in writing to the Union, it was read aloud slowly in order to permit the Union to write it down. The record is replete with evidence concerning the discussion of various other clauses of the contract , but it would serve no useful purpose to review them here in detail. Briefly , Respondent refused to consider any form of arbitration or checkoff, and no agreement was reached on wages , hours , seniority, layoffs, vacations , or any of the substantial provisions of the proposed contract . It is undisputed that from the beginning to the end Respondent's position never varied from that outlined in its letter of January 28, with the addition , of course , of its insistence upon its management prerogative clause and manage- ment decision of all grievances , which was not set forth in the letter but remained a must from beginning to end. Actually, because of Respondent's insistence upon unilateral control of wages , hours , and other terms and conditions of employment , including the final decision on all grievances , there was very little of substance for the parties to discuss . As is undisputed in the record, the Union pointed out to Respondent that with its insistence upon such a clause. there was nothing left to bargain about because Respondent would determine all matters unilaterally, and Holmes replied that that was exactly what he had always done and intended to keep on doing. The parties ' final meeting was held on February 8. Respondent throughout the negotiations sought to justify its position and demands because of the undisputed aluminum shortage and its 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD economic and practical difficulties caused by the ever changing state of supply of aluminum. At the final meeting the parties reviewed their positions , and it is undisputed that Respond- ent's remained identical. Respondent suggested a 30-day adjournment in view of the changing condition of aluminum supply, and in fact had been advised the day before of another aluminum cut, necessitating a reduction in production . However, when asked by the Union, Respondent stated that its position with respect to the proposed contract, and its insistence upon unilateral control of wages , hours , terms and conditions of employment , and final determination of grievances , would be unchanged in 30 , 60, or 90 days or for that matter at any time. The Union, realizing the futility of further discussion , terminated the meeting and made no further requests for meetings. It is , of course, well settled that business conditions do not justify a refusal to bargain. 6 The nub of the case is Respondent 's insistence upon a clause giving it control unilaterally at any and all times over wages , hours, and other terms and conditions of employment, and the final determination of all grievances . I am unable to perceive that there was anything of substance left to bargain about. Section 8 (a) (5) of the Act makes it an unfair labor practice to refuse to bargain collectively , and Section 8 (d) defines such bargaining as "the perform- ance of the mutual obligation ... to meet at reasonable times and confer in good faith with respect to wages, hours , and other terms and conditions of employment , but such obli- gation does not compel either party to agree to a proposal or require the making of a conces- sion " Respondent , apparently in reliance upon the proviso that it need not agree to any pro- posal or make any concession , contends it has a right to refuse all proposals made and to insist upon unilateral control of all of the subjects of collective bargaining . Unquestionably, as the statute provides and the Board and the courts have long held , the duty to bargain does not re- quire agreeing to any proposal of the other side or making any concession . To hold otherwise would be to substitute the judgment of the Board or some other outsider for the free will and judgment of the parties But to construe this to mean that either party as a condition precedent to any agreement can insist upon unilateral control over all of the subjects it is required to bargain about is to render the statute meaningless In essence and stripped of verbiage, what Respondent's proposal amounts to is that the Union , as a condition precedent to any agreement, must waive its right to bargain about wages , hours , and other terms and conditions of employ- ment. If this is not a refusal to bargain , or conversely , is bargaining in good faith , then the English language has lost its integrity , the duty to bargain set forth in the Act is meaning- less , and the avowed purpose of Congress to prevent industrial strife affecting commerce by protecting the right to bargain collectively has been completely frustrated . As the Union pointed out to Respondent during the negotiations , Respondent was demanding that it waive rights which it had even in the absence of a contract as the exclusive representative of the employees . Without a contract, Respondent could not unilaterally change wages , hours, and other conditions of employment, as is too well settled to warrant discussion . As a condition to any agreement, Respondent was insisting that the Union waive its right to bargain not only then but for the duration of the contract. I can perceive no distinction whatsoever between this and an employer saying : "We refuse to bargain with you about wages , hours or any other condition of employment . We have always run our business as we see fit, and we will con- tinue to do so." This is exactly the situation which prevailed before the Act and led to indus- trial strife and which Congress avowedly sought to correct by making a refusal to bargain about such matters contrary to law. Admittedly Respondent was willing at all reasonable times to meet and discuss the matter with the Union . To contend that this is bargaining is to beg the question. Discussion, no matter how frequent or extended , accompanied by a condition that there will be no bargaining about wages , hours, or conditions of employment , can be only futile. I cannot believe that the right to refuse to make any concessions or agree to any pro- posals can be equated with a right to reserve unilateral control over all bargaining matters and refuse to bargain about them. Respondent apparently places some reliance upon the decision of the Supreme Court in the American Insurance case. 6 I do not construe the Court's holding there as applicable to this situation , and in fact believe it clearly distinguishable based upon the Court's own state- ments. There the Court held that bargaining for unilateral control of certain conditions of employment (work scheduling) in good faith, in view of the traditions of the industry, is not a refusal to bargain. The Court said: Any fears the Board may entertain that use of management functions clauses will lead to evasion of an employer's duty to bargain collectively as to "rates of pay, wages, hours SN. L. R B. v. Putnam Mills, 197 F 2d 116 (C A. 2) 6N. L R. B. v. American National Ins Co., 343 U S. 395 DIXIE CORPORATION 399 and conditions of employment" do not justify condemning all bargaining for management function clauses covering "condition of employment" as per se violations of the Act. The duty to bargain collectively is to be enforced by application of the good faith bar- gaining standards of Section 8 (d) to the facts of each case rather than FY prohibiting a employees in every industry from rga for management function clauses altogether. (Emphasis supplied.) The facts of this case are clearly distinguishable. Here, contrary to the traditions of the industry and indeed to all collective-bargaining principles, the employer insisted upon uni- lateral control of all, or practically all, the subjects of collective bargaining. The fears which the Court said the Board might entertain appear, if they exist, to be well founded, because here the employer seeks unilateral control over "rates of pay, wages, hours and conditions of employment." For the reasons previously expressed Respondent's insistence upon uni- lateral control over all substantial conditions of employment amounted to a refusal to bargain and is readily distinguishable from the American Insurance case, In any event, more learned authorities than I have since construed the American Insurance holding as inapplicable to facts far more analagous to the instant case. In fact, the Court of Appeals for the Fifth Circuit, which court originally decided the American Insurance case and was upheld by the Supreme Court, has in a recent decision found a refusal to bargain upon very similar facts, and cited the American Insurance decision by the Supreme Court as authority for its conclusion. t In that case, as here, the employer throughout the negotiations insisted upon "unilateral determination of all significant features of the employment rela- tionship." Faced with this demand, the union there, as here, terminated further negotiations as futile and left, with an invitation from the employer to return at any time they desired to do so. There, also, the union said it preferred no contract at all to acceptance of the employer's proposal. There, as here, the employer never altered his demands while the union made clear it would modify and bargain its demands. The court said: It is true, of course, that the employer was not required to accept the Union 's proposal, nor to make any concession , or counterproposal. However, the employer was required to bargain in good faith. And subsequently: This rule (the American Insurance case) requires fair appraisal of the circumstances and the particular facts of the particular case. Applying the rule here, we think the cir- cumstances of this case support the Board's finding that the employer, while freely con- ferring, did not approach the bargaining table with an open mind and purpose to reach an agreement consistent with the respective rights of the parties. Another recent case decided since American insurance upon similar facts is found in the Fourth Circuit.8 There the employer met with the union and discussed its proposals but in- sisted that, because the employer was of the opinion for economic and policy reasons that certain employees should not be the subject of collective bargaining , it reserve the right to unilateral action with respect to their wages and working conditions . The court said: We have recently held that the duty to bargain collectively is not satisfied by bargaining which excludes a portion of the subject Matter as to which bargaining is required. N. L. R. B. v. Berkely Machine Co., 189 F. 2d 904. It is equally clear that the duty is not satisfied when a large group of employees embraced within a bargaining unit is ex- cluded from the benefit of the bargaining process .... There is manifestly no collective bargaining with respect to a group of employees , however, when all the proper subjects of collective bargaining affecting them are reserved to unilateral action on the part of the employer. Turning now to the question of good faith, the record is replete with evidence that Re- spondent was not bargaining in good faith as required by the Act. To begin with, its adamant insistence upon unilateral control of all subjects of collective bargaining is evidence of this As the Union pointed out to Respondent, the Union would be in a worse position than it would with no contract. Obviously no representative worthy of the name could agree to a proposal under which it not only received nothing but waived rights which it had in the absence of any I Majure Transport Co. v N. L R. B., 198 F. 2d 735 (C. A. 5) $ Railway Clerks v. Atlantic Coast Line R, R., 201 F 2d 36 (C. A. 4). 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract. Respondent knew this , and if it didn 't was so informed by the Union. To adamantly insist upon such a position , which would eliminate all bargaining, evidences bad faith when it is manifest that the other side will not and cannot agree to it. Such a position displays a fixed and adamant purpose not to approach bargaining with an open mind, instead of a good-faith attempt to bargain and agree. Other facts demonstrate Respondent 's bad faith. Throughout the negotiations Respondent, as it frankly advised the Union , insisted that any contract negotiated must terminate on November 7, 1952, 1 year from the date of the election , because under the Act that was the earliest time Respondent could seek an election decertifying the Union as bargaining representative. November 7 was only 9 months from the last bargaining session, and if Respondent's suggested postponement had been adopted , would have been substantially less. Such a demand hardly comports with a good -faith desire to recognize the Union as the representative of the employees and to make a sincere effort to bargain with it and reach agreement . That Respondent 's position in this respect is untenable is too plain to warrant discussion. With regard to arbitration , Respondent adamantly refused any proposal , even though the Union modified its original proposal to make clear that any arbitration would be limited strictly to interpretation of the terms of the contract. In this respect, Respondent reiterated, as it had said with regard to unilateral control of wages , hours , and terms and conditions of employment, that it ran its plant, intended to continue to do so, and wanted no interference from outsiders. Conceding that Respondent need make no concessions whatsoever , its state- ments corroborate other evidence of a fixed purpose to agree to nothing concerning any sub- stantial term or condition of employment, and evidence a lack of a good -faith desire or effort to arrive at any agreement. Respondent's position throughout was crystal clear. It would not agree to contract about any condition of employment which it had previously controlled. This, in essence, left nothing for bargaining. Another instance evidencing lack of good faith is Respondent 's refusal to accept even the recognition clause contained in the proposed contract, and proposing instead that the unit be changed to include employees not found by the Board to be part of the appropriate unit. Even on this point, which did not affect any substantial term of employment, Respondent refused to accept the unit already found appropriate by the Board in the representation case and which was uncontested at that time. The preponderance of credible evidence in the entire record convinces me, and I so find, that Respondent, by the above course of conduct, including its refusal to furnish the requested wage and job data, refused to bargain with the Union in violation of Section 8 (a) (5) and 8 (a) (1) of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The activities of Respondent set forth in section III, above, occurring In connection with the operations of Respondent described in section I , above, have a close, Intimate , and sub- stantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. All production and maintenance employees , shipping employees , sweepers , and janitors employed by Respondent at its Rome, Georgia , plant, exclusive of all engineering employees, draftsmen, office clerical employees , guards , professional employees , over-the-road truck- drivers , and supervisors as defined in the Act , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. At all times since November 8, 1951, theUnion has been and now is the exclusive repre- sentative of all employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By failing and refusing at all times on and after January 4. 1952, to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid unit, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 6. By interfering with , restraining, and coercing its employees in the exercise of the rights gularanteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] AKIN PRODUCTS COMPANY APPENDIX A NOTICE TO ALL EMPLOYEES 401 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 interrogate our employees concerningtheir union membership, desires, and activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft& Agricultural Implement Workers of America, CIO, or any other labor organization, to bargain collectively through repre- sentatives of their owp choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL bargain collectively, upon request, with the above-named union as the ex- clusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and if an agreement is reached, embody such understanding in a signed contract. The bargaining unit is: All production and maintenance employees, shipping employees, sweepers, and janitors employed at our Rome. Georgia, plant, exclusive of all engineering employees, drafts- men, office clerical employees, guards, professional employees, over-the-road truck- drivers, and supervisors, as defined in the Act. DIXIE CORPORATION, Employer. Dated ............ .... By.............................................................................................. (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. AKIN PRODUCTS COMPANY and CITRUS, CANNERY WORK- ERS AND FOOD PROCESSORS UNION NO. 24473, AFL. Case No. 39-CA-250. June 8, 1953 DECISION AND ORDER On April 13, 1953, Trial Examiner Arthur E.Reyman issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error IPursuant 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 Murdock, Styles, and Peter- son]. 105 NLRB No. 58.