Douglas Silk Products Co, Inc.

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DOUGLAS SILK PRODUCTS COMPANY, INC. and LOCAL 185, AMERICAN FEDERATION OF HOSIERY WORKERS, AFL. Case No. 10 -CA-1619. December 21, 1953 DECISION AND ORDER On September 2, 1953, Trial Examiner Lee J. Best issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices affecting commerce and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attachedhereto. Thereafter, the Respond- ent filed exceptions to the Intermediate Report and a support- ing brief.' 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 Intermediate Report, the exceptions, the brief, and the entire record in the case, and finds merit in the Respondent's exceptions. Accordingly, the Board hereby adopts the Trial Examiner's findings only to the extent hereinafter indicated.' The Trial Examiner found that the only unfair labor practices in this case consisted of the Respondent's threats to the Union, during negotiations, that it would shut down the plant unless agreement were reached; and its refusals to furnish the Union with certain requested financial data or statements to support the assertion that the plant was operating at a loss because it cost more than the market price to manufacture hosiery on the old 45-gauge machines. However, the evidence shows that the statements about shutting down the plant were not made until after the expiration of the "no strike, no lock- out" contract, and there was no evidence that they were motivated by union animus rather than economic considerations. As to data concerning the 45-gauge machines, it does appear that at one time during the negotiations the parties were in disagreement over wages for such work. By November 7, however, they were in accord as to rates to be paid on 45- gauge machines. Indeed, it appears that after the Respondent rejected the Union's request for financial data, the Union abandoned the request and proceeded to discuss other matters at great length. When the parties reached an impasse on November 7, it was because of disputes apart from the 45- gauge machine rates. It follows that the requested data was not relevant to the ultimate issue on which the parties came ' No exceptions or briefs were filed by the Union or the General Counsel 2 The Trial Examiner made certain inadvertent errors in findings , chiefly with respect to dates and numbers , which we find unnecessary to correct in view of our disposition of the case 107 NLRB No. 98 DOUGLAS SILK PRODUCTS COMPANY, INC. 451 to an impasse . In these circumstances , we shall dismiss the complaint. [The Board dismissed the complaint.] Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard pursuant to due notice in Douglas. Georgia, on June 2, 1952. All parties were represented by counsel or duly accredited representative, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues involved, to argue orally upon the record, and to file written briefs and proposed findings and conclusions. No written briefs were filed. Based upon a charge duly filed on November 12, 1952, the General Counsel of the National Labor Relations Board on March 30. 1953, issued a complaint against Douglas Silk Products Company, Inc., herein called the Respondent, alleging unfair labor practices within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Act in that Respondent has since May 14, 1952, refused to bargain collectively in good faith with American Federa- tion of Hosiery Workers, AFL, and its affiliated Local 185, exclusive representative of its employees in an appropriate unit with respect to wages, hours, and other conditions of employment. The Respondent filed an answer admitting jurisdictional allegations of the complaint, but denied all allegations of unfair labor practices. Relying upon failure of the General Counsel to prove his case, and offering no evidence in rebuttal, the Respondent at the close of the evidence moved to dismiss the complaint in its entirety. For reasons hereinafter stated the motion is denied. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. BUSINESS OF RESPONDENT Douglas Silk Products Company, Inc., is a Georgia corporation having its principal office and a factory at Douglas. Georgia, where it is engaged in the manufacture and sale of full- fashioned hosiery for women. In the course and conduct of operations during the representa- tive year 1952, the Respondent manufactured and sold finished hosiery valued in excess of $100,000 more than 50 percent of which in value was shipped to customers outside the State of Georgia. It is admitted, and I find that Respondent is engaged in commerce within the meaning of the Act. i II. THE LABOR ORGANIZATIONS INVOLVED American Federation of Hosiery Workers, AFL, and its affiliate, Local 185, herein collec- tively called the Union, are labor organizations within the meaning of Section 2 (5) of the Act, admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Historical background On September 28, 1948, in Case No. 10-RC-110, the National Labor Relations Board certified that the American Federation of Hosiery Workers (CIO), was the exclusive bar- gaining representative for all employees of the Respondent, excluding clerical employees, professional employees, watchmen, guards, and all supervisors as defined in the Act. The iStanislaus Implement & Hardware Co., Ltd., 91 NLRB 618. 45Z DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congress of Industrial Organizations (CIO) did not comply with the filing requirements of Section 9 (f), (g), and (h) of the Act until. December 22, 1949. Nevertheless , the Respondent accepted the Board 's certification , and continuously recognized the Union as bargaining representative of its employees until on or about November 7, 1953. On April 21 , 1948, the American Federation of Hosiery Workers discontinued its affiliation with the CIO , operated as an independent union until August 8, 1951 , and on the latter date became an affiliate of the American Federation of Labor (AFL). As an independent union on January 23 , 1950, the American Federation of Hosiery Workers entered into a written contract with the Respondent providing that: This agreement shall remain in full force and effect commencing January 23, 1950 to July 2 , 1951. Should either party desire to amend or cancel this agreement at the time of expiration , written notice of intention to cancel or describing the changes desired shall be given to the other party at least forty -five (45) days before the ex- piration date hereof. Failure to give such notice shall automatically renew this agree- ment for the next ensuing year. In the event notice to amend is given then this contract shall remain in full force and effect until a new contract is negotiated and signed. (Emphasis supplied.)2 By written supplementary agreement on or about July 2, 1951 , the aforesaid contract was extended to July 2 , 1952. On or about June 30 , 1952 , by reason of pending negotiations the contract was again extended to August 30, 1952 , after which date Respondent declined to agree to further extensions. The aforesaid contract further provided that "The Company will not lockout their em- ployees because of a labor dispute , nor will the employees engage in any strike or work stoppage during the life of the contract." It also provided that all knitting machines shall be operated as single jobs , except that when experienced knitters were not available at the plant, a knitter shall be permitted to operate two machines with a helper and receive the full piece rate less the helper's wages.3 Whenever the Company shut down for an entire shift any machine within an alley , thereby depriving a knitter of assistance by his partner or helper , he received $ 1 per day extra . All employees , except those in the seaming de- partment , received a 10-cent per hour cost -of-living bonus. B. The appropriate unit In paragraph II (1) of the aforesaid contract "The Company recognizes the Union as the exclusive bargaining representative for purposes of collective bargaining regarding rates of pay, wages , hours and other conditions of employment on behalf of all employees of the Company at its Douglas , Georgia plant exclusive of watchmen, clerical and all supervisory employees with authority to hire, promote , discharge , discipline or otherwise effect changes in the status of employees or effectively recommend such action." 4 On or about April 28, 1952, a majority in number (26) of Respondent's employees in the aforesaid bargaining unit signed a written statement (General Counsel's Exhibit No.24) ac- cepting membership in the American Federation of Hosiery Workers, AFL, and authorizing it, and its agents or representatives , to act for them as a collective -bargaining agency in all matters pertaining to rates of pay, wages , hours of employment, or other conditions of employment. By reason of the foregoing historical background of labor relations between the Respondent and its employees , and by reason of the contractual agreement between Respondent and the Union, I find that the appropriate unit for collective bargaining herein consists of "All employees of the Respondent at its plant in Douglas , Georgia, excluding watchmen , guards, clerical and professional employees , and supervisors as defined in the Act." 2 Local 185 was not named as a party to the contract, but furnished from its members a negotiating committee which participated on its behalf in bargaining negotiations there- under. The International Union customarily executes contracts in its own name to bargain collectively for members of its affiliated local unions 3Respondent's plant was equipped solely with 45-gauge knitting machines, and the operating basic piece rate was $1 22 per dozen , subject to slight variations from agreed standards. 4For the period from April 5, 1952, through November 15, 1952, payroll records of the Respondent show within the bargaining unit a minimum of 34 and maximum of 37 employees. DOUGLAS SILK PRODUCTS COMPANY, INC. 453 By reason of long continued recognition of the Union by the Respondent, the long continued bargaining negotiations and contractual relations between'the parties , the acknowledgment of membership in and designation of American Federation of Hosiery Workers , AFL, on April 28, 1952 , by a majority of Respondent 's employees , I find that the Union is and has been at all times pertinent to this case the duly designated and exclusive representative of Respondent 's employees in the aforesaid appropriate unit for the purposes of collective bargaining regarding rates of pay , wages , hours of employment , and other conditions of employment. C. The refusal to bargain 1. Respondent proposes to install new machines In March and April 1951 the Respondent announced that it was contemplating the instal- lation of 51-gauge, 32-section, knitting machines to meet competition in the manufacture of a more sheer type of hosiery for women. The record reveals no progress in discussions with the Union concerning this matter until shortly prior to expiration date of the contract in the spring of 1952. By letter dated April 9, 1952, Respondent requested a meeting with the Union to discuss future working conditions in the Douglas plant. 2. Notice to amend or cancel the contract At a meeting with the Union on April 18, 1952 , Respondent asserted that it intended to install two 51-gauge knitting machines by July 1, 1952, and proposed a 3-year extension of the expiring contract on conditions that it pay a basic piece rate of $1 per dozen for operation of the new machines , operate the old 45 -gauge machines as double jobs without a helper at a piece rate of $ 1.10 per dozen , pay no shift bonus to employees, and eliminate entirely the 10-cent per hour cost-of-living bonus. Respondent also proposed to reduce from 71 cents to 6 cents per dozen the piece rate paid to inspectors operating the new type Ammon inspecting machines . It contended that the plant was operating at a loss , and could not continue in business unless new machines were installed and relief obtained by the reduction of wage wates. Adolph Benet, district manager for the Union , remonstrated that the proposals of the Respondent were grossly unfair, but agreed to submit them to a vote of the membership in Local 185. The proposals were rejected by a majority vote in the local union , and Respondent was so notified on April 28, 1952. Thereupon, by letter dated April 29, 1952, Respondent notified the Union that the old contract would be canceled at expiration on July 2, 1952, and suggested further conferences to negotiate a new contract. 3. Conference on June 16, 1952 At a meeting on June 16, 1952, the Respondent was represented by General Manager A. Wilcher and Mill Superintendent John Dove. The Union was represented by District Manager Adolph Benet and a negotiating committee from Local 185. Respondent renewed its previous proposals on the ground that the plant was operating at a loss in that it cost more than $ 6 per dozen to manufacture hosiery selling on the market at $5 to $5 .25 per dozen . The Union questioned these figures , and requested Respondent to produce and furnish financial data in support of its contentions to enable the Union to intelligently analyze the proposals. Respond- ent declined to furnish such data. The Union made several counterproposals, all of which were rejected by Respondent. The Union proposed that: (1) Respondent pay piece rates on the proposed 51-gauge machines commensurate with those paid at affiliated mills in Columbia , Tennessee; or (2) conform to rates and other conditions provided under the National Labor Agreement at other mills in the industry ; or (3) fix a weekly wage rate for knitters beginning at $70 for first 6 weeks, $ 80 for second 6 weeks , and $ 90 thereafter until maximum production was reached in order to provide a basis for computation and negotiation of an equitable piece rate ; or (4) submit the dispute to arbitration. With respect to operation of the old 45-gauge machines as double jobs , the Union proposed that: (1) Knitters receive a piece rate of $1.10 per dozen; and (2) helpers receive 75 cents per hour for the first 6 weeks , 85 cents for second 6 weeks, 95 cents for third 6 weeks, and $1.05 per hour thereafter. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As a counterproposal with respect to the 51-gauge machines, the Respondent proposed to pay $1 per dozen when operated 48 hours a week, $1.10 per dozen when operated only 40 hours per week. With respect to operation of the old 45-gauge machines, as double jobs, Respondent proposed to pay a combined rate of $1.20 per dozen to be split 80 cents to the knitter and 40 cents to the helper, and eliminate entirely the 10-cent per hour cost-of-living bonus. Reaching no agreement, the Union again requested the Respondent to furnish financial data to support its contentions that the plant was operating at a loss, and suggested that Re- spondent's President Gordon and the Union's President McKeown be brought into the nego- tiations . By agreement on June 30, 1952, the old contract was continued in full force and effect for 2 months from July 2, 1952. 4. Subsequent meetings Two additional meetings of the parties were held at the house of President Gordon in Boston, Massachusetts, on July 19 and August 21, 1952, respectively, but no agreement was reached. At a discussion of the matter at the Park Sheraton Hotel in New York City in September, General Manager Wilcher declined to further extend the contract. 5. Negotiations by correspondence On September 15, 1952, the Respondent addressed a letter (General Counsel's Exhibit No. 14) to the Union, as follows: Dear Mr. Benet: As you are well aware, the machinery at Douglas is obsolete and unless modern machines are installed, the plant cannot operate much longer. Our efforts to come to terms with your Union so as to enable us to install modern machinery have been fruitless, in spite of the fact that our employees have indicated to us on a number of occasions that they desire that this machinery be installed and that an agreement be reached on the terms we proposed in order to enable us to in- stall such machinery. It is apparent that such agreement has not been and cannot be reached with your Union. We therefore do not feel that any good purpose would be served by further extension of the contract which expired on September 2, 1952. We are therefore no longer willing to extend this agreement, nor will we from this date forward deduct dues from our employees in the absence of a contract, because of possible violation of law involved in such conduct. The Union's reply (General Counsel's Exhibit No. 15) to Respondent on September 19, 1952, reads as follows: Dear Mr. Wilcher: This will acknowledge the receipt of your letter dated September 15, 1952, wherein you advise that you are no longer willing to extend the agreement in effect at the Douglas Silk Products Co., Inc. of Douglas, Ga. and that you will no longer deduct dues from our members in the absence of a contract. Relative to your statement that your efforts to come to terms with the union so as to enable you to install modern machinery have been fruitless, I can only say that on the number of occasions that we have met, I have given you several proposals which we feel were just and equitable and were willing to arrive at an agreement covering rates for the purchase of new machinery. We are still willing to continue negotiations with you in the hopes of trying to reach an agreement that would be mutually satisfactory to the parties. However, we feel that your arbitrary proposal in the form of an ulti- matum that unless we accept the rate of $1.00 per dozen for knitting on 30 section, 51 gg machines, that you will not install new machinery in your plant in Douglas, Ga., is a very unfair position on your part. I do not feel that negotiations for a renewal of an existing labor-management agree- ment should be predicated upon the union agreeing to a rate for new machinery that DOUGLAS SILK PRODUCTS COMPANY, INC. 455 would be one of the lowest in the country and particularly when we have no idea what the earning power on those machines would be because we have no means of knowing what the production of those machines will be and how well they may operate at your plant in Douglas, Ga. You will recall that during the course of our negotiations we have offered you three specific proposals which were as follows: 1. We will accept your present rate being paid for knitting on similar machines at your plant in Columbia , Tennessee. 2. We will accept the rate being paid in National Labor Agreement shops on similar machines. 3. We would be willing to negotiate a weekly rate for breaking in of the new machines for a specified period of time and would also agree on a basic week wage that the knitters should earn on the new machines when in production upon which the piece rate would be predicated when maximum production had been obtained from the new ma- chines. You have rejected all of these proposals and have not offered any counterproposals except your original arbitrary proposal of $1.00 per dozen for knitting. Mr. Wilcher , I do not believe that we are required to agree to a rate for new ma- chinery when that machinery is not even in place at the employer's mill nor in op- eration and where we have no experience with what that machine may do. Mr. Wilcher, we are willing to renew the present agreement as you may desire to propose but be- lieve that you are being arbitrary in insisting that we agree to your proposed rate for new machines that you state a desire to install as a condition for arriving at an agree- ment at your Douglas Silk Products Mill in Douglas, Ga. I am, therefore , again requesting that we meet for the purpose of continuing negoti- ations for a renewal of the agreement which expired on September 2, 1952. Please advise me when it will be convenient for you to meet with us for the purpose of resuming negotiations for a renewal of the labor -management agreement. With best wishes , I remain On September 26, 1952 , Respondent addressed a letter to the Union, as follows: Dear Mr. Benet: There is an inconsistency in your letter of September 19th . In one paragraph , you say that you would not agree to a rate "particularly when we have no idea of what the earn- ing power of those machines would be because we have no means of knowing what the production of those machines would be and how well they may operate in your plant in Douglas. In the following paragraph you suggest that you will accept the rate of the National Labor Agreement . In other words , you would be willing to give us a fixed rate in one instance and in the other instance you feel that you couldn't give us a rate unless you know the production of the machines. From the above, it is quite clear that the disagreement between us in this instance is the rates of pay. The machines we propose to install, and the style we propose to run are not new in the industry and have been running for years and the productivity is well known. As you know, our 45 gauges in Douglas are running at fairly good steady production, and there is no reason why a 51 gauge shouldn 't do better than the 45 gauges. I further submit that the piece rate we propose for the knitting department is not much less than the National Labor Agreement and that the proposed rates are quite prevalent now in many mills of our size. We further submit that had you accepted our proposal when first submitted to you two years ago, our knitters on those machines would have had an increase in earnings of $15 .00 to $ 20.00 a week for the past two years , and that half of our knitters would have by now been placed on modern machinery. Your non-acceptance of our proposal has not only meant a loss of $1000 .00 a year to our senior knitters , but has placed this mill out of business. You know very well that under present market conditions , this mill cannot operate with the present equipment, and that unless a decision is reached whereby new type machines will be installed in Douglas , we will be forced within the next four to six weeks to proceed with plans of discontinuing production in Douglas. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I will be glad to meet you for one more attempt to come to an agreement with you, with this understanding, that should we not be able to arrive at a solution, that we submit the mill's proposal to all the productive employees in the mill, giving them the rates that it would involve for each operation, and let them vote by secret ballot whether to accept or reject our proposal. Should the employees decide to accept it, the Union will agree to abide by their decision. We believe this to be the most practical and fair way of arriving at a solution, and I believe that our employees are entitled to decide whether they want or do not want to accept conditions whereby the mill can be assured of future operations. Since many of our employees are not Union members, this proposal must be voted by all productive employees eligible to vote in Labor Board elections. If this is acceptable to you, I suggest that we meet, preferably on Friday, October 3rd, at 1:00 P. M. or Monday, October 6th, at the same hour. You will please phone me or wire me if the dates and the proposal submitted above are acceptable to you. Letter from the Union to the Respondent dated October 2, 1952, reads as follows: Dear Mr. Wilcher: Upon return to my office this morning I found your letter dated September 26, 1952, waiting on my desk which letter my secretary has already acknowledged. I have read with keen interest your letter to me and can come to no other conclusion except that the contents of same were intended for propaganda purposes and not as a means of trying to reach an amicable labor-management agreement with the Union. I say this advisedly, particularly when I have been informed that your previous letter to me dated September 15, 1952, was posted on the bulletin board by your company at your mill in Douglas, Ga. I feel that in all fairness, if you are going to post letters on the bulletin board that you write to me, that you should likewise post my reply there- to on the company's bulletin board. This, you did not do, and I am therefore requesting that you post my letter addressed to you dated September 19, 1952, on the bulletin board so that all of the employees can see my reply to your letter. I am further requesting that if you have posted a copy of your letter addressed to me which was dated September 26, 1952, on the bulletin board, that you likewise post this letter which I am now writing on the bulletin board. Mr. Wilcher, you mentioned in your letter that there is an inconsistency in my letter of September 19th. Please be advised that there is no inconsistency in my letter, and as to what I stated with regards to the Union's proposals for a rate for the two 51 gg ma- chines which you say that you would like to install, this was proposed to you in an attempt to set an equitable rate if and when you did obtain the two 51 gg machines. If there is an inconsistency whatsoever, it is in your proposal to pay $1.00 per dozen on 51 gg knitting when you are paying as high as $1.31'k per dozen at your mill in Co- lumbia, Tenn. It is inconsistent on your part to expect your knitters at Douglas, Ga. to be working for .31k per dozen less than the knitters at your mill in Columbia, Tenn. It is inconsistent of you to insist that the knitters at Douglas should operate double jobs on the 45 gg, 24 section machines for $1.10 per dozen without a helper when you are operating 24 section machines at Columbia, Tenn. as single machines with a much greater piece rate than you are proposing at the Douglas mill. Mr. Wilcher, you continuously keep harping about the two 51 gg machines that you say you would like to install at your mill but never mention in your letters at what cost to the employees you would consider installing the machines. For many years we have heard your "Pie in the sky by and by" philosophy about buying new machines but you have never made a move to get those new machines. As a matter of fact, speaking of inconsistencies, at one time you tell us that they will be new machines and the next time you tell us they will be second-hand machines that you can buy at a bargain price. At one time you tell us that they will be 30 section machines. I wish to assure you, Mr. Wilcher, that our members and our Union would like to see new machines installed at Douglas, Ga. but we do not intend to buy a "pig in a poke" or sell our birth-right to get these two machines that you have kept promising for the past several years. If your company had sincerely intended to install 51 gg machines, be they second-hand or new, it would have done so a long time ago and then negotiated a rate after those machines were in operation. If your company is sincere now in wishing DOUGLAS SILK PRODUCTS COMPANY, INC. 457 to install second-hand or new 51 gg machines, it will do so now without insisting that the employees agree to accept wage reductions, increased work load and sweat shop conditions to induce the company to get two 51 gg machines at Douglas. Speaking of inconsistencies , Mr. Wilcher , isn't it inconsistent on your part to ask all of your knitters to give up the .10 ¢ cost of living bonus , accept a reduced rate on 45 gg knitting, and operate double jobs without a helper as a condition for the purchase of two 51 gg machines that would at most benefit six knitters in the mill, if you can call it a benefit. In your letter to me, you would make it appear that you are a "great benefactor" to your employees and cite the losses that have been suffered by your knitters by not accepting your proposal two years ago for the installation of 51 gg machines . In my eyes, any manufacturer who would make it a condition that his knitters operate two 45 gg ma- chines without a helper at $1.00 per dozen is no "great benefactor " to his employees. Any employer who would request the elimination of the .10¢ per hour cost of living bonus is no "great benefactor " to his employees . Any employer who would eliminate the $1.00 per day that is being paid to the knitter when his alley partner is absent is no "great benefactor" to his employees . Any employer who refuses to pay a shift bonus when most of the industry is paying a shift bonus of from .05 to .100 an hour is no "great benefactor " to his employees . Any employer who would propose a rate of .25¢ a dozen for seaming 51 gg work , which is about the lowest rate in the industry as far as we know, is no "great benefactor " to his employees. Any employer who would propose to reduce the inspecting rate of .060 a dozen is no "great benefactor" to his employees. Those are some of the conditions which you proposed to the Union as a condition for installing two second-hand or new 51 gg machines . You do not mention those things in your letter addressed to me which you posted on the bulletin board. The impression that you are trying to leave with your employees is that the Union is keeping you from installing new machines . This is not true and you know it. In all fairness , I believe that you should post this letter on the bulletin board and for that purpose I am sending you an extra copy so that those employees who are not members of the Union and do not attend the Union meetings will know why the Union has rejected your outrageous proposal of $1.00 per dozen for 51 gg knitting and the other reductions that you propose to put into effect. Mr. Wilcher , I do not like your implied threat that unless a decision is reached where- by new machines will be installed in Douglas , that you will be forced within the next four to six weeks to proceed with plans of discontinuing production in Douglas. The operation or the discontinuance of operations at your mill in Douglas rests solely in the hands of your company. The installation or the non-installation of new type machines rests solely in the hands of your company . If your implied threat is intended to coerce the employees into pulling out of the Union or to intimidate them into taking some action to get rid of the Union, I think that it will fall flat on its face. Your employees know that only through a Union can they hope to be on an equal footing with you in their desire for fair treatment and decent working conditions. As to the conditions that you propose meeting under, it is my opinion that they are in- consistent with the intent of the National Labor Relations Act. I think it is unfair on your part to attempt to tell the Union how to conduct its business when we never attempt to tell you how the company should conduct its business. I will be glad to meet with you as I proposed in my letter dated September 19, but I am unwilling to accept the conditions set forth in your letter. Please be advised that the proposed dates of October 3rd or October 6th are unaccept- able to me as I will be gone from October 2nd up to and including October 12th on business for which I have been previously committed . I will be glad to meet with you at any time during the week of October 13th or the week of October 20th that may suit your conven- ience. However, I reiterate that we will not accept any conditions proposed by you that, in my opinion, would be a clear violation of the rights of the employees as guaranteed by the National Labor Relations Act as amended and legislated by the Congress of these United States. When you stop issuing ultimatums and implied threats and stop stipulating your own terms and conditions under which you will bargain , I believe that, through a proper "give and take" bargaining process, a labor-management agreement can be reached at your mill. Mr. Wilcher , at our last conference in Douglas , Ga. held on June 16th, you stated that your company was losing money in its operations at Douglas , Ga. At that time I 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requested that you supply me with a financial statement of your company to back up your statement that the company was losing money. I am again requesting that you forward to me a financial statement of your company that will support your statement to that effect. You have no doubt read in the trade papers a statement issued by our National Presi- dent, Alexander McKeown, which advised that the Full Fashioned Manufacturers Asso- ciation of America had been formally notified that the Union has invoked the wage re- opening clause of the existing agreement for wage increases for all employees. We are hereby notifying you that we are requesting a 25% wage increase for all the employees at your Douglas. Ga. mill. This request is based upon the fact that the cost of living has increased tremendously during the past year and continues to increase in leaps and bounds every month. I sincerely trust, although I should know better, that you will give this request for a general wage increase to your employees, your every consideration. Letter from Respondent to the Union on October 14, 1952, reads as follows: Dear Mr. Benet: This is in reply to your letter of October 2nd. If stating facts is propaganda, then I would plead guilty to your charge, for my letter was a statement of facts. However, your letter, in many instances, is a barrage of statements that are absolutely irrelevant to the case. It is not my intention to go into letter writing; however, your letter needs a reply in order to keep the records straight. 1. The piece rate of the National Labor Agreement for the 51 gauge number which I proposed to make is $1.10-$1.15. Therefore, my offer of $1.00 is not a "slave rate" nor as ridiculous as you make it appear to be. 2. My proposition on the 45 gauges was not to reduce the piece rate , but to take off the 100 cost of living bonus which would leave the price of $1.20, not $ 1.10, as you state. Secondly, regarding the two-machine operation, I have made this proposition con- ditional upon any knitter to accept it and no knitter would be forced to run two machines. 3. I submit that the elimination of the $1.00 per day to the knitter when his alley partner is absent is a matter of necessity, since by installing machines we will have alleys in which one knitter is working. Secondly, this kind of a provision does not exist in your National Labor contract and is practiced in very few mills. 4. The shift bonuses are not being paid at Union contract mills with the exception of the third shift. We have no third shift at the mill. Why then are you bringing up this matter 5. The 6¢ for the inspecting rate is again incorrect. We are paying 6-3/4¢ on Amon machines and this rate was arrived at by negotiation with you only a few months ago and was acceptable to the Union as well as to the employees. Why are you now criticizing the rate? I submit again that offering to put in modern machines, which is an easier job than running the 45 gauges, whereby the knitters will gain an increase of $ 15.00 to $20.00 a week in wages, is a gain to the knitter irrespective of what the piece work rate is. After all, our employees can only spend their "take home" pay - they cannot spend "piece rate." I further submit that if your interests were to continue the mill operating in Douglas, the offer is just and reasonable and one that would secure a future for the mill in Douglas. Your refusal to take a vote after our next negotiations to get the consensus of opinion from our employees, by hiding behind the National Labor Relations Act, which you so often condemned, is to avoid solving the issue. I am advised that there is no infringe- ment of the law to take a ballot if we mutually agree to do it. If you are so certain that the employees will not want our proposal accepted, then why are you against taking a vote? I do not issue any threats nor do I issue any ultimatums, nor is a financial statement necessary for you to know that the 45 gauge production cannot pay to run a mill. I am certain that you are convinced of it, but you are apparently determined not to cooperate to make possible the installation of modern machinery. DOUGLAS SILK PRODUCTS COMPANY, INC. 459 Regarding your request for an increase of wages, I herewith reject your request, and I want to remind you that when the Union took a 25 percent cut in February in other Un- ion mills , we did not make any reduction in wages to our employees. I am very pleased to place copies of your letter on the bulletin board as you requested. We are very much interested that your views are known to our employees. I shall meet you, if convenient , on October 24th, at 10:00 A. M. in Douglas to see if any agreement can be reached to enable us to install modern machinery , and thus enable the continued operation of the plant in Douglas . Please let me know if the date is con- venient. Letter from the Union to Respondent on October 17, 1952. reads as follows: Dear Mr. Wilcher: This will acknowledge the receipt of your lengthy letter dated October 14, 1952. Please, believe me that if you were stating the facts I would not have considered your previous letter as propaganda nor would I again repeat that your present letter to me contains propaganda. The fact of the matter is that your most recent letter contains a lot of mis -statements that I cannot consider as facts. 1. When you say that the National Labor Agreement rate is $ 1.10 to $ 1.15, that is a mis -statement of fact. While I do not have the style specifications that you base this rate on, I feel sure that your calculations are wrong because you could not have in- cluded the .10i an hour cost of living bonus being paid in National Labor Agreement shops nor the 41o paid for pensions , nor any of the other fringe benefits that are paid in the National Labor Agreement shops that you do not pay. 2. When you state that you did not propose a rate of $1.10 for two machine operations on 45 gg machines , I can only state what you proposed in negotiations and which I put down in my notes and will leave it to the committee that was present to verify that you had originally proposed a rate of $1 .10 a dozen. 3. When you say that the elimination of the $ 1.00 per day to the knitter when his alley partner is absent is a matter of necessity because with the installation of new machines you will have alleys with only one knitter working , I cannot see where this justifies the knitter in losing that $ 1.00 per day. 4. You question why I bring up shift bonus when you have no third shift working at the mill and my reply is that you stated that the new machines will be operated on a three shift basis and that no shift bonus will be paid. 5. The .06¢ rate that I said you offered for inspecting is not incorrect . You proposed this rate when we discussed rates for the new machines and you insisted that the rate for the new Amon machines would have to be .06¢ a dozen. I am not criticizing the rate for inspecting that we subsequently negotiated but that had nothing to do with your original proposal. Mr. Wilcher , I am not interested in carrying on a campaign of letter writing with you as I do not believe that they will accomplish anything except to be used by you as a means for propaganda . If you are sincere in attempting to reach an agreement with this Union , I will, as always , be ready and willing to meet with you at any time that is con- venient; however. I reiterate I will not meet with you under any conditions that you may unilaterally stipulate that deprives us of our rights under the law or because of any ultimatums that you may issue. Since it took approximately two weeks for me to receive your letter in answer to my letter of October 2, the dates that I had open I was forced to fill and therefore I find that I cannot meet with you on your suggested date of October 24th. I will be glad to meet with you on Friday , November 7th at 10:00 A. M. at the Company 's office in Douglas, Ga. Please advise me if that meets with your approval. I trust that this will put an end to propaganda letters which you have been sending me and hope that you will get down to business in a serious effort to negotiate a labor-man- agement agreement for your mill in Douglas, Ga. 6. The impasse Negotiations were resumed at the plant 's office in Douglas , Georgia, on November 7, 1952, in the presence of a conciliator from the Federal Mediation and Conciliation Service. At that 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time nonunion employees of the Respondent attempted to participate in the meeting but were excluded at request of the Union General Manager Wilcher stated as a final proposition that Respondent would install four 51-gauge knitting machines , Kalies or Readings , and pay an operating piece rate of $1 per dozen, that operation of the old 45-gauge machines would be continued as single jobs at the old rate plus the cost-of - living bonus , except that knitters volunteering to operate double jobs would not receive the bonus Wilcher asserted that "If the Union doesn't accept this proposal this mill will close next Friday. The boys should know whether the Union is serving them right or not " The Union indicated that it would agree on all other issues if Respondent would submit the rate on new machines to arbitration The meeting adjourned without agreement , and thereafter Respondent posted on its bulletin board a notice to all employees stating that the plant would close down after the second shift on November 14, 1952 7. Unilateral action Following the meeting on November 7, 1952, 28 employees signed a petition declaring that they did not desire to be represented by the Union On November 10, 1952, Ewing and Farrar , attorneys - at-law, Douglas , Georgia, purporting to represent said employees ad- dressed a letter to the Respondent , as follows: This is to advise you that a majority of your employees have signed a petition with- drawing from the Union the right to represent them A list of the employees signing the petition is attached. You are herewith instructed that you are not to recognize the Hosiery Workers as the representative of your employees I am today filing the necessary papers with the Labor Board Upon receipt of the foregoing letter from Ewing and Farrar , Respondent rescinded its notice to shut down the plant, and in reply dated November 12, 1952, a copy of which was posted on the bulletin board, announced conditions under which it would continue operations, as follows: The Company has forwarded to us your letter of November 10, advising that a majority of their employees have signed a petition withdrawing from the Hosiery Workers Union the right to represent them and also advising that an appropriate petition has been filed with the National Labor Relations Board We are in receipt also of your letter of November 11, 1952, enclosing a petition ad- dressed to the Company and requesting that the Company continue to operate its plant under the plan offered to the Union in the bargaining session in which the Union broke off negotiations This is to advise you that since twenty-eight (28) of our employees have indicated that they want us to go ahead with the plan for future modernization and operation which we outlined to the Union , we will attempt to carry out this plan to the best of our ability In the light of the attitude and the expression of willingness by our employees to co- operate in this plan, we are rescinding the order to discontinue operations as of Friday. We will attempt to continue to operate this plant and put into effect the program We may have some problems in the next few weeks in getting the necessary raw materials to run, however, you may be assured that we will do everything in our power to get them and if there is some delay it will not be for more than a few days at most Any interruption of this sort I am sure you will understand I am today requesting the Company to post on its bulletin board the terms for future operation which were refused by the Union and under which we will operate in the future which are. The present rate of all employees will be maintained on all machines now operating. The rate for knitters on the modern machines which are to be installed will be $ 1.00 per dozen, after the machines are installed with a guarantee that each knitter on the modern machines will make as much or more than he is presently receiving. After the modern machines are installed , and as present machines become available, one knitter will be permitted to operate at his option two machines with the reduction of the 100 per hour cost of living bonus All seamers will receive an increase of 1¢ per dozen on all 51 gauge stockings DOUGLAS SILK PRODUCTS COMPANY, INC. 461 Except as indicated above, all wages , hours and conditions of employment will remain the same as they have been during the past year . (Signed by M. A. Prowell, Atty). Without further negotiations with the Union , Respondent during the latter days of 1952 and early in 1953 installed four 51-gauge knitting machines , and continued operations in accord- ance with the plan above outlined. Concluding Findings In this case Respondent and the Union bargained to an impasse on November 7, 1952, when Respondent announced that it would close down the plant on November 14, 1952. The primary and ultimate issue was wage rates to be paid for operation of 51-gauge knitting, machines which Respondent proposed to install to improve its competitive position in the industry. It is clear that agreement could have been reached on all other issues. Although the existing contract provided that Respondent would not lock out its employees because of a labor dis- pute, it threatened throughout negotiations to close down because the plant was operating at a loss; but it repeatedly refused to furnish the Union with financial data to support such con- tention and to facilitate an intelligent evaluation of its proposals. Such data was clearly rel- evant to the issues involved. Furthermore, upon reaching an impasse, the Respondent was free to install new machines not covered by the contract, and to unilaterally fix a rate for their operation until an agreement could be reached by the collective-bargaining process. The Union made numerous counterproposals to operate the 51-gauge machines on a trial basis until an equitable piece rate could be determined based upon production, all of which were rejected by Respondent. The conduct of Respondent was calculated to undermine and destroy the majority status of the Union. Respondent's employees in fear of losing their jobs capitulated to demands of Respondent, and as a last resort abandoned their collective- bargaining representative. Thereupon, Respondent installed the new machines and unilaterally established wages, hours, and working conditions in accordance with its own announced program. I am, therefore, constrained to find that on and after June 16, 1952, the Respondent refused to bargain in good faith with the exclusive bargaining representative of its employees within the meaning of Section 8 (d) of the Act. ,5 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 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 tending to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor prac- tices affecting commerce, I shall recommend that it cease aId desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain collectively in good faith with the Union by refusing to furnish financial data to support alleged operating losses, and threatening to close down its plant at Douglas, Georgia, it will be recommended that Respondent upon request bargain collectively with the Union, as the exclusive bargaining representative of its employees in the appropriate unit, with respect to wages, hours, and other conditions of employment; and that Respondent furnish to the Union financial data to support any claim of operating losses during the year 1952, and currently thereafter, until its obligation to bargain in good faith is fulfilled. Because of the limited scope of Respondent's refusal to bargain and the absence of any evidence that the danger of other unfair labor practices is to be anticipated from Respondent's conduct, it will not be recommended that Respondent cease and desist from the commission of any other unfair labor practices. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: 5 Southern Saddlery Company, 90 NLRB 1205; N. L. R. B. v. Yawman & Erbe Mfg. Co., 187 F. 2d 947 (C. A. 2); N. L. R. B. v. Jacobs Mfg. Company, 196 F. 2d 680 (C. A. 2). 337593 0 - 55 - 31 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1 The American Federation of Hosiery Workers, AFL, and its affiliated Local 185, are labor organizations within the meaning of Section 2 (5) of the Act 2 All employees of the Respondent at its plant in Douglas, Georgia, excluding watchmen, guards, clerical and professional employees, and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3 At all times since April 28, 1952, American Federation of Hosiery Workers, AFL, has been and now is the exclusive representative of Local 185 and all employees of Respondent in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 4. By refusing on June 16, 1952, and thereafter, to furnish financial data to the Union to support alleged operating losses, and threatening to close down its plant, thereby failing and refusing to bargain collectively in good faith with American Federation of Hosiery Workers, AFL, as exclusive representative of Local 185 and all employees in the aforesaid appropriate unit, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By said conduct, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with American Federation of Hosiery Workers, AFL, as the exclusive bargaining representative of all our employees in the appropriate unit described below, with respect to wages, hours, and other conditions of employment WE WILL furnish the above-named union, upon request, financial data to support any alleged operating losses incurred during the year 1952 and currently thereafter until our obligation to bargain is fulfilled. WE WILL embody into a signed agreement any understanding reached with said Union. The bargaining unit is: All employees at our plant in Douglas , Georgia, excluding watchmen , guards, clerical and professional employees, and supervisors as defined in the Act. DOUGLAS SILK PRODUCTS COMPANY, INC., Employer. Dated . .. .. By.. ........ . (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, detaced , or covered by any other material