Sharon Hats, Inc.

SHARON HATS, INCORPORATED 947 named employees immediate and full reinstatement to his former position as a guard without prejudice to his seniority or other rights and privileges and make each of them whole for any loss of pay suffered as a result of the discrimination against him, by payment to each of them of a sum of money equal to the amount he would have earned from the date of the discrimination to the date of the offer of reinstatement less net earnings to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in any one particular quarter shall have no effect upon the backpay liability for any other such period. It will also be recommended that the Respondent preserve and, upon request, make available to the Board payroll and other records to facilitate the computation of the backpay due. In view of Dykhuizen's decease, it is recommended that the Respondent be ordered to make whole Dykhuizen's estate or any other person or persons as their interests may appear for any loss of earnings or benefits to which Dykhuizen would have been entitled had he not been discriminated against from October 13, 1958, until the date of his death It will also be recommended that the backpay liability be computed upon a quarterly basis as described above, and that the Respondent make available to the Board, upon request, payroll and other records to facilitate the checking of the amounts due. As the Respondent's infractions of Section 8(a)(1), (3), and (5) of the Act, herein found, discloses a fixed purpose to defeat self-organization and its objectives and are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon employee rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following- CONCLUSIONS OF LAW 1. United Plant Guard Workers of America and its Local No. 236 are labor organizations within the meaning of the Act. 2 By discriminating in regard to the hire and tenure of employment of the employees named above in the section entitled "The Remedy," thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3 By engaging in the conduct set forth in the section entitled "C. The conclu- sions," the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By refusing to bargain collectively with the Union as the exclusive representa- tive of its employees in the appropriate unit set forth in the section entitled "C. The conclusions," beginning October 7, 1958, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Sharon Hats, Incorporated and United Hatters, Cap and Milli- nery Workers International Union, AFL-CIO. Case No. 16- CA-1103. May 31, 1960 DECISION AND ORDER On March 16,1960, Trial Examiner Alba B. Martin issued a Supple- mental Intermediate Report in the above-entitled proceeding, finding 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 Supplemental Intermediate Report attached hereto. There- 127 NLRB No. 119. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after, the Respondent filed a motion to dismiss and exceptions to the Supplemental Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supple- mental Intermediate Report, the exceptions thereto, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications noted below.' Inasmuch as the Union, which was certified as bargaining repre- sentative of Respondent's employees on December 5, 1957, did not make a request for bargaining which was denied by Respondent until about January 6,1958, we find that the Respondent's unlawful refusal to bargain with the Union must be dated from January 6,1958, rather than December 5,1957, as found by the Trial Examiner. As Texas has a right-to-work law, we shall delete from paragraph numbered 1(c) of the Trial Examiner's recommended order herein the proviso "except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act." 2 ORDER Upon the entire record, and pursuant to Section 10(c) of the Na- tional Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Sharon Hats, Incorporated, Dallas, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, with United Hatters, Cap and Millinery Workers Inter- national Union, AFL-CIO, as the exclusive representative of all its employees in the following appropriate unit : All production and maintenance employees of the Respondent at its Dallas, Texas, plant, exclusive of all office clerical em- ployees, designers, salesmen, guards, watchmen, and supervisory employees. I Contrary to Respondent, we find that the charge and complaint herein are adequate to support the unfair labor practice findings of the Trial Examiner. See N.L.R B. v. Fant Milling Company, 360 U.S. 301. 2 Nebraska Bag Company, et al., d/b/a Nebraska Bag Processing Company, 122 NLRB 654, 656. SHARON HATS, INCORPORATED 949 (b) Making unilateral changes in the wages, hours, vacations, or other terms and conditions of employment of its employees in the above-described appropriate unit, without notification to or consulta- tion with the above-named Union in violation of the Act. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self -organiza- tion, to form, join, or assist United Hatters, Cap and Millinery Work- ers International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Hatters, Cap and Millinery Workers International Union, AFL-CIO, as the ex- clusive representative of the employees in the above-described ap- propriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its plant in Dallas, Texas, copies of the notice attached marked "Appendix." 9 Copies of the notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respond- ent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. 8In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of a United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT make unilateral changes in the wages, hours, or other terms and conditions of employment of employees in the appropriate unit, without consulting and bargaining with United 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hatters, Cap and Millinery Workers International Union, AFL-CIO, in violation of the Act. WE WILL NoT in any like or related 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 the above-named or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL, upon request, bargain collectively with United Hatters, Cap and Millinery Workers International Union, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understand- ing reached. The bargaining [alit is : Al] production and maintenance employees at our Dallas, Texas, plant, exclusive of all office clerical employees, de- signers, salesmen, guards, watchmen, and supervisory employees. SHARON HATS, INCORPORATED, 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. SUPPLEMENTAL INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Alba B. Martin, the duly designated Trial Examiner, in Dallas, Texas, on February 4 and September 16 and 17, 1959, on complaint of the General Counsel and answer of Sharon Hats, Incorporated, herein called the Respondent. The issue litigated was whether Respondent refused to bargain collectively with the Union as the representative of its employees in violation of Section 8(a)(5) and (1) of the Act. The General Counsel filed a brief, which has been carefully considered. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Sharon Hats, Incorporated, a Texas corporation having its principal office and place of business in Dallas, Texas, is engaged in the manufacture of ladies' millinery. During the 12-month period prior to the issuance of the complaint Respondent sold goods consisting principally of ladies' millinery valued at more than $100,000, of which more than $50,000 worth was shipped in interstate commerce from its Dallas, Texas, plant to points outside the State of Texas. Respondent's answer admitted and it is found that Respondent is engaged in commerce within the meaning of the Act. SHARON HATS, INCORPORATED II. THE LABOR ORGANIZATION INVOLVED 951 United Hatters, Cap and Millinery Workers International Union, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The appropiiate unit; the Union's majority status On December 5, 1957, following appropriate representation proceeding, the Union was duly certified as the exclusive representative of the Respondent's employees in the following appropriate bargaining unit. All production and maintenance employees of the Respondent at its Dallas, Texas, plant, exclusive of all office clerical employees, designers, salesmen, guards, watchmen, and supervisory employees. At the Board-conducted secret election held on November 27, 1957, there were 18 voters, 11 voting for the Union and 7 against. There was one challenged ballot.' No objections were filed to this election. Accordingly, I find that the aforesaid unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. I further find that on December 5, 1957, and at all times thereafter, the Union was the duly designated representative of a majority of the employees in the appropriate unit and pursuant to Section 9(a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. Respondent was obliged to honor the certification based upon the election for a "reasonable" period, ordinarily "1 year" in the absence of "unusual circumstances." Ray Brooks v. N.L.R.B., 348 U.S. 96. B. The request; and the refusal to honor the certification for over a year The complaint alleges and the answer admits that the Union requested Respondent to bargain collectively with it on or about January 6, 1958. On or about January 14, 1958, the Union wrote the Company as follows: I tried to reach you by telephone today but was advised by your office that you were out of the city and not expected back until Saturday. I am therefore writing you in reply to your letter of January 10. As you very well know this union was certified as the bargaining representa- tive of your employees because a majority of your employees by secret ballot selected this union as their representative in an election conducted by the NLRB. Both your company and the union are obligated to honor that certification We therefore renew our request for an early bargaining conference and specifically request that you meet with the union bargaining committee at your office at 10:00 in the morning, Tuesday, January 21. I would appreciate your prompt confirmation of this meeting. If the date is not agreeable to you, please advise of your earliest available alternative date. The record reveals that although the request to bargain was made in January 1958 Respondent never met and conferred with the Union at all until February 16, 1959. The Union's negotiator, Carmen Lucia, testified that the first bargaining session occurred "shortly after the hearing on February 4, I believe it was around the 11th or the 13th. of this year." Respondent's negotiator, Vice President Gerald Callaway, testified that he wrote out two certain sheets of paper after the first meeting on February 16, 1959 Respondent never agreed to meet and confer with the Union until the hearing herein on February 4, 1959, at which time a date was set for the first bargaining meeting. Between the Union's request to bargain in January 1958 and Respondent's ex- pressed willingness on February 4, 1959, to begin negotiations, Respondent stood upon an erroneous proposition of law, expressed in its answer, filed July 24, 1958, as follows: Respondent would show that at the times mentioned in paragraphs 7 and 8 of said Complaint [which alleged that on or about January 6, 1958, the Union requested and on or about January 10, 1958, Respondent refused to bargain], the Union did not represent a majority of the employees of Respondent. Respondent advised the Union on January 10, 1958, that a majority of its 1 Case No 16-RC-2196 (unpublished ), of which I take official notice. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees did not want the Union to represent them. Respondent again noti- fied the Union on January 17, 1958, and Respondent, on January 22, 1958, requested the National Labor Relations Board to check the petition signed by a majority of its employees as to the signatures thereon and the circumstances involved herein, but the Board refused to do so; that at all times since December 19, 1957, a majority of its employees do not wish the Union to represent them and the Union is not their bargaining representative; that under the facts and circumstances Respondent could not have been required to bargain with the Union until the Board has determined the issues in this case. Respondent's position was found erroneous by the Supreme Court in the Ray Brooks decision. In Brooks, the immediate issue before the Supreme Court, as put by the Court, was "the duty of an employer towards a duly certified bargaining agent if, shortly after the election which resulted in the certification, the Union has lost, without the employer's fault, a majority of the employees from its membership." Among other things, the Court observed that, before the 1947 amendments to the Act, "the Board uniformly found an unfair labor practice where during the so-called `certification year,' an employer refused to bargain on the ground that the certified union no longer possessed a majority"; and that the "Board continued to apply its `1-year certification' rule after the Taft-Hartley Act came into force, except that [in view of Section 9(c) (3) of the Act] even `unusual circumstances' no longer left the Board free to order an election where one had taken place within the preceding 12 months." In the Brooks case, the Supreme Court upheld the Board's position that an openly signed letter "in which those voting for and against unionism are disclosed to management" cannot reverse the verdict of an election which assures "the privacy and independence of the voting booth." Respondent neither alleged nor proved nor did the record establish the existence of any "unusual circumstances" such as to justify its position. It follows that by refusing to meet and confer with the Union as the representative of its employees in the appropriate unit during the period between the certification and February 4, 1959, Respondent violated Section 8 (a) (5) and (1) of the Act. Cf. Clark and Lewis Co., 122 NLRB 865; 2 N.L.R.B. v. Henry Heide, Inc., 219 F. 2d 46 (C.A. 2), cert. denied, 349 U.S. 952. During the year that Respondent was refusing to bargain with the Union it adopted and put into effect-in May 1958-a vacation plan without notifying the Union that it proposed to do so or was doing so. By this unilateral action Respondent violated Section 8(a) (1) and (5) of the Act. The charge was filed June 4, 1958. The complaint issued July 17, 1958. The answer was filed July 24, 1958. On July 30, 1958, the General Counsel filed a motion for summary judgment. On August 22, 1958, a Board Trial Examiner in substance granted the motion and found that Respondent had refused to bargain with the Union under the Ray Brooks decision. Exceptions to the Intermediate Report were filed on September 10, 1958. On January 2, 1959, in an order the Board found that "litigable issues may be presented which should be resolved after a hearing before a Trial Examiner," and remanded the proceeding for hearing. At the hearing before me on February 4, 1959, Respondent stated its willingness to recognize and begin bargaining with the Union, and in order to provide time for the bargaining by agreement of the parties the hearing was postponed indefinitely. The Union agreed to withdraw an 8(a) (3) charge in another case, Case No. 16--CA-1201. On May 18, 1959, the General Counsel filed a motion to dismiss the complaint. On May 28, 1959, the Union filed a motion to reopen the hearing. By letter dated June 17, 1959, addressed to the General Counsel and counsel for Respondent I requested their respective positions concerning the allegations in the Union's motion. Both responded. The General Counsel concluded his response as follows: At this time, it is my opinion that it would be prejudicial to the rights of the Charging Party for me to state whether or not the Company refused to bargain in violation of Section 8(a)(5) of the Act either before or subsequent to May 11, 1959. It is my opinion that these questions should be of record and, there- fore, at this time I do not oppose the reopening of this hearing for the purpose of taking further testimony relevant to these matters. By order dated July 16, 1959, I reopened the hearing. The supplemental hearing was held on September 16 and 17, 1959, at which the parties presented their evidence concerning the bargaining negotiations. The General Counsel sought to prove, and contended at the hearing and in its brief, that Respondent had bargained in bad faith. 2Enfd. 274 F. 2d 817 (C.A. 5). SHARON HATS, INCORPORATED 953 C. The negotiations The parties met and discussed the substantive provisions of an agreement on February 16, 23, and 24, March 11 and 23, and April 13, 1959. The Union was represented at each meeting by its vice president, Carmen Lucia and, from meeting to meeting, one or two others. At each meeting Respondent was represented by its vice president and chief negotiator, Gerald Callaway, and also its president, Carl Clark. With respect to what transpired at these meetings, Carmen Lucia was the only witness for the General Counsel, and Gerald Callaway was the only witness for Respondent who testified in any detail as to what happened. At the conclusion of Callaway's testimony Respondent's president, Carl Clark, who was present at all of the bargaining sessions except the first, testified that he had listened to Callaway's testimony and that Callaway's testimony was substantially the same as Clark would give. At the first meeting the Union presented and explained its written proposal for a contract, consisting of 51/2 pages and containing 20 articles with numerous sections and subsections. At the February 23 meeting Callaway presented the Company's position on each of the Union's proposals and some discussion was had The union proposals were further discussed at the February 24 meeting. At the March 11 and 23 and April 13 meetings the parties discussed, article by article, Respondent's pro- posed agreement consisting of 9 pages and 18 articles. On March 27, 1959, Respondent sent the Union written changes in four articles of the Company's pro- posed contract, which were discussed at either the March 23 or the April 13 meeting. The Union's proposed contract presented at the first meeting proposed company recognition of the Union in accordance with the Board's certification, checkoff, a 30-day trial period for new employees, equal distribution of work and seniority in layoff and recall, overtime pay for over 8 hours per day and for Saturday work, a 15-percent wage increase and a starting rate of $1.15 per hour, 5 paid holidays (New Year's Day, July 4, Labor Day, Thanksgiving, Christmas), vacations for those employed less than 1 year, access to the plant of a union representative to police the contract, no discharge without sufficient reason and the right to arbitrate the reason, no discrimination against any employee because of his union activities, company contribution to a health and welfare fund of a sum equal to 2 percent of the Company's gross weekly wages to be administered pursuant to a trust agreement for the benefit of the employees, no work to be sent out to be made up in nonunion shops, no assistance by the Company to struck employers, company contribution to the extent of 1 percent of its total weekly payroll to the National Millinery Promo- tion Fund, Inc., to increase consumer demand and promote the sale and use of hats, a grievance procedure ending in arbitration, a no-strike, no-lockout clause, a clause making the agreement binding not only upon the employer but upon its successors, transferees, and assignees, a separability clause, and a term- of-agreement clause which included an automatic renewal clause. The record does not clearly reflect what took place at each bargaining meeting, nor is it vital to a resolution of the case. The status of the negotiations at the con- clusion of the April 13 meeting was as follows- The parties had reached tentative meeting of the minds concerning a number of the articles, had made substantial progress towards tentative resolution of many of the other problems being discussed, and were in disagreement concerning a number of subjects including four money items. Whether the tentative agreements were to become final depended upon whether a meeting of the minds on all subjects was ever achieved. The record does not establish that the parties ever agreed that discussion of the tentatively agreed- upon issues was ever concluded or exhausted. Concerning items which would cost it money Respondent's position from the February 23 meeting onward to the end of the negotiations was, in general, that it would not agree to any provision which would cost it money. It refused to pay overtime for after 8 hours in any 1 day or for Saturday work It refused any wage increase, although the Union lowered its original request once and talked of lowering it further in return for concessions from the Company. It refused any pay for five national holidays It iefused to make any contribution to the health and welfare fund or to the National Millinery Promotion Fund. Checkoff was agreed upon in principle but details were never worked out. The Union wanted a 30-day trial period for new employees. Respondent wanted 60 days. In its written changes to its proposed contract submitted March 27 Respond- ent changed its 60-day period to 45 days. Callaway's testimony on cross-examina- tion that the issue was not resolved is credited. With changes Respondent accepted the Union's proposal to follow seniority in layoff and recall. The Union accepted 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company's proposal concerning access of union representative, which was more restrictive than the Union's proposal. Respondent's counterproposal of a discharge clause was accepted with amendments suggested by the Union. Respondent's dis- crimination clause by either the employer or the Union was accepted by the Union. Respondent had rejected the Union's proposals that no work should be sent out to be made up in nonunion shops and that the Company would not sell to nor purchase from, nor do work for a struck employer. The record does not reveal that the Union ever acquiesced in these rejections. Respondent had expressed willingness to have a grievance procedure, had submitted a first proposal which the Union had found too long, and had on March 27 submitted a somewhat shorter version, both of which included arbitration. Apparently the shorter version was acceptable to the Union The parties had never come completely together on the Company's counter- proposal concerning no strikes, no lockouts, and no boycotts-Respondent taking the position that the Union must be responsible for wildcat strikes, and the Union taking the position that it could not be responsible for wildcat strikes in an open shop in a right-to-work State. The record does not reveal that this issue was dis- cussed to the point that discussion was exhausted or that Callaway, having said on March 11 that he would check the law on the subject, ever indicated he had done so or ever changed his position The parties had agreed upon Respondent's pro- posed management rights clause. The Union had accepted Respondent's position that the agreement should be binding only upon the employer and its successors but not upon its transferees and assigns. The separability clause was agreed upon. Callaway's testimony is credited that whether the contract should be for 1 year's duration, as proposed by the Union, or for 5 years as suggested by the Company, was not resolved. The Company's proposal eliminated the automatic renewal clause in the Union's proposal, and this appears not to have been discussed at all. As to vacations, Carmen Lucia testified that after a long discussion at the March 11 meeting the union representatives felt that the parties could ultimately get together on this subject. Callaway testified that at some meeting the Union was satisfied that the 'Company was handling its vacations properly. Later Callaway testified con- tradictorily that the Union did not agree to the Company's vacation plan which per- mitted no probation for employees of less than 1 year's tenure-and. to the contrary, that both parties agreed to the Company's proposal. On the entire record I find, though with some doubt, that the subject of vacations had not been completely agreed upon Of course all agreements and acceptances had been tentative. Throughout the bargaining meetings Respondent admitted that it was making money, but said that it was not going to pass any of its profits on to its employees. In substance its reasons were twofold: That its wages were on a par with the wages of other millinery shops in the area; and that involved in the question was the welfare of the wife and three children of Respondent's vice president. As to the former, the Union disputed Respondent's conclusion, and quoted facts and figures as to what was being paid by each of the millinery shops in Dallas-and requested Respondent to check for itself concerning these figures. Respondent's principal negotiator, Vice President Callaway, neither accepted the Union's figures nor made any attempt to refute them by producing contrary figures Rather he contented himself by saying that he was familiar with the prevailing wages in the industry in the area and that he was meeting the requirements and need not pay more. He made no effort to try to convince the Union that its position on the facts as to the prevailing wages in the industry in the area was incorrect. The record does not establish that in fact Callaway was informed on this subject. In like manner beginning with the second conference and onward Respondent always took the consistent position with respect to holidays that it would not pay employees for holidays for the same reasons that it would not give wage increases Respondent refused to make contributions to the Union's health and welfare fund on the ground that as the Dallas industry was not organized and as the Union had only one other Dallas plant under contract, the Union was seeking to make a guinea pig out of Respondent, and on the further ground that Respondent already had a group insurance plan to protect its employees, which it deemed sufficient. Respondent refused to agree to make contributions to the promotion fund on the ground that such contributions should be made voluntarily and not tinder contract. At the short April 13 meeting, after Respondent had again stated that it would make no concessions on these four main money-costing points, the Union pointed out that it had made concessions on every clause in its proposed agreement, that it would be very difficult for the Union to settle with Respondent for less than it settled for with another firm in Dallas, Bierner's, that, in substance, according to SHARON HATS, INCORPORATED 955 the uncontradioted and credited testimony of the union negotiator, Carmen Lucia, if the Union could strengthen some of its other clauses on which it had made great concessions it would then be willing to discuss further its strong demand for some economic benefits for the employees. During the meeting Respondent said that it would sign an agreement leaving wages as they were, providing for no pay for holidays, and no contributions to the health and welfare fund or the promotion fund. The Union refused to sign such a contract. The meeting ended on the note that they had reached a temporary stalemate, the Union wanting some economic benefits and the Company being unwilling to give any. The concluding expressions were that the parties would think over their positions and if either side were willing to make further concessions it would so inform the other. Although it is not entirely free from doubt in view of Respondent's closed minded, stand-pat attitude concerning money matters-wages, holidays, and contributions to the health and welfare fund and the promotion fund-on the record as a whole I conclude that during the February 16 to April 13 bargaining meetings Respondent bargained in good faith with the Union. On the entire record 1 conclude also that when the parties reached a good-faith temporary impasse over the four principal money items on April 13, there were a number of additional subjects, as set forth above, on which the parties had failed to reach complete agreement but which they had set aside for the nonce with the expectation that if they could reach agreement on the more difficult issues they could get together on these subjects. These included vacations, the duration of the con- tract, the length of the trial period for new employees, the checkoff, the question of no strikes, no lockouts, no boycotts, and the questions of not sending out work and not doing business with struck employers. On the entire record I conclude further that although the Union had tentatively agreed to the language of Respondent's counterproposal on a number of subjects, it did so reluctantly with the hope of getting concessions from Respondent on other subjects, including economic matters, and it did not foreclose itself from fuither bar- gaining on these subjects if it considered it to its advantage in the bargaining to do so. D Respondent's refusal on April 24 and May 11, 1959, to meet further with the Union On April 22, 1959, the Union wrote the Company that it was ready to meet again, suggesting a time and place, and saying that "we have an offer to make to you regarding a question under discussion. ." In letters dated April 24 and May 11, 1959, Respondent refused to meet further with the Union. Respondent's April 24 letter read as follows: I am in receipt of your letter of April 22, in which you request a meeting on April 27, and state: "Please be advised that we are ready to meet with you again on negotiations for a Union contract. We have an offer to make to you regarding a question under discussion which will, we believe, indicate to you our desire to negotiate in good faith." As you know, I have never had any experience in negotiating with the Union before, but I cannot understand your letter For three months we have been negotiating with you for a contract We have bargained in the utmost good faith, and we have agreed on many portions of such contract. On March 6, 1959, we sent you our proposed contract, and since that time in the various negotiations many of the articles were agreed upon as written and to other articles we both agreed to make amendments. After much bargaining four issues remained without agreement, namely, holi- days, wage increases, Health and Welfare contributions, and National Millinery Promotion Fund contributions At our last meeting on April 13 we advised you that we could not agree upon these items, and you advised us you could not agree. We told you we would have no change of heart about them, and you said you would have no change of heart about them. Now, if you have changed your position with reference to these four items and are willing to agree to eliminate them and execute the contract we proposed with the amendments that have been agreed upon, we will be glad to meet with you again. All that will be necessary then is to rewrite the contract to include the amendments we have agreed upon and for the Union and us to execute the same. To meet again, after the thorough bargaining and negotiations that have gone on between us, without an indication from you that your position is changed upon all of these items would, in our opinion, be a waste of time. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In answer to the above letter the Union wrote Respondent on May 8, 1959, as follows: We have given considerable thought to your letter of April 24. I do not under- stand your reluctance to meet with us again. As I stated in my letter of April 22 the union has another offer to make. I thought that the offer could better be discussed at the bargaining table rather than through correspondence. I shall be specific, however. The union is offering to withdraw its request for con- tributions to the National Millinery Promotion Fund. As to the other items you name, to wit, holidays, wage increases and health and welfare contributions, the union is not taking an adamant position. We wish to bargain about each of those items, and we trust that there will be further give and take between the parties. Please notify me by telephone so that we might discuss a suitable time and place for a meeting. Our office is available for a meeting, or we might meet at the factory. On May 11, 1959, Respondent replied to the Union's letter as follows- I am in receipt of your letter of May 8, 1959, in which you state that you are withdrawing your request for contributions to the National Millinery Promotion Fund, and as to holidays, wage increases, and health and welfare contributions, "We wish to bargain about each of those items, and we trust that there will be further give and take between the parties." I have re-read my .letter to you of April 24, and it appears to me to be very clear. Although you are withdrawing your request for contribution to the National Millinery Promotion Fund, this does not seem to be of any importance, since I am advised you could not insist upon it any way. With reference to the other matters, our position has not changed, and there is no need to bargain further about these matters, unless you have changed your position to conform to ours. In such instance, as I told you in my letter of April 24, all that would be necessary would be to rewrite portions of the contract in accordance with amendments we have agreed upon and to execute the same. Following this correspondence no further negotiation meetings were had between the parties. As set forth above, on May 28 the Union moved to reopen the hearing. Conclusions Under all the circumstances of this case I find and hold that when on April 24 and May 11, 1959, Respondent refused to meet and discuss further with the Union concerning the terms of an agreement, it refused to bargain collectively in violation of Section 8(a)(5) and (1) of the Act. Not having done so during the certification year, Respondent was obliged to bargain with the Union during a reasonable period thereafter, which under all the circumstances of this case, included April and May 1959. Although an impasse had been reached on April 13, the impasse was broken by the Union's written offers in its two letters to change its bargaining position. Respondent refused to meet after receiving the first letter even though at that time it had no assurance as to what the Union's new offer consisted of except that it pertained to "a question under discussion " Respondent stood pat on the erroneous conception of the law that it could require the Union to abandon certain of its bargaining requests as a condition to Respondent's meeting with it again when, as found above, a number of subjects other than the four principal money items, remained to be bargained to their conclusion-including vacations, the duration of the contract, the trial period for new employees, details of the checkoff, the questions of no strikes, no lockouts, no boycotts, and whether there should be clauses barring the sending out of work to be made up in nonunion shops and the selling to or purchasing from or doing work for a struck employer. Respondent refused to meet further even though the important question to the Union of its liability for wildcat strikes had not been bargained out to its ultimate conclusion. As to the money items, the Union's withdrawal of one item and its expressed willingness in its second letter to bargain about the three remaining subjects and not to be adamant about it showed the Union's good faith and implied a willingness to make further concessions on other clauses tentatively agreed upon in return for company concessions on wages, holidays, and the health and welfare fund or any of them-or conversely implied a willingness by the Union to make further conces- sions in its economic demands or any of them in return for company concessions on other issues on which the Union had tentatively agreed to accept the language of SHARON HATS, INCORPORATED 957 the Company's counterproposal. Under the Act, which required Respondent to meet and confer with the Union, it was not for Respondent to cut off bargaining when the Union wished to bargain further, broke the impasse, and expressed a good-faith willingness to make further concessions if necessary in order to achieve a contract.3 Nor was it for Respondent to conclude that a resumption of discussion of the issues might not lead to eventual settlement of the entire disagreement between them. There was always the possibility that either Respondent or the Union might retreat from its strong position concerning the other money issues because of concessions given or taken on the noneconomic or other items. Where this possibility existed Respondent was obliged to meet and confer with the Union. It is elementary that collective bargaining is most effectively carried out by personal meetings and conferences of the parties at the bargaining table." 4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UNON 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, inti- mate, and substantial 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. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent refused to bargain with the Union by refusing to meet and confer with the Union during the certification year, by unilaterally instituting its vacation plan in May 1958 without consulting or notifying the certified bargaining agent, and by refusing on April 24 and May 11, 1959, to meet and discuss further with the Union concerning the terms of an agreement in violation of Section 8(a) (5) and (1) of the Act, I will recommend that Respondent be ordered to bargain with the Union, upon request, as the exclusive representative of its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. All production and maintenance employees of the Respondent at its Dallas, Texas, plant, exclusive of all office clerical employees, designers, salesmen, guards, watchmen, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. United Hatters, Cap and Millinery Workers International Union, AFL-CIO, has been at all times since December 5, 1957, and is, the exclusive representative of all the employees in the aforestated appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing to meet and confer with the Union from December 5, 1957, until February 4, 1959, and by unilaterally instituting a vacation plan for its employees in May 1958, without notifying or consulting with the Union, and by refusing on April 24 and May 11, 1959, and at all times since then to meet and confer with the Union as the exclusive representative of the employees in the aforestated appro- priate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By the conduct set forth in paragraph numbered 3, above, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guar- anteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 8 Cf. Chambers Manufacturing Corporation, 124 NLRB 721 ; Pool Manufacturing Com- pany, 70 NLRB 540, 549. A United States Cold Storage Corporation, 96 NLRB 1108, enfd. 203 F. 2d 924 (C.A. 5), cert. denied 346 U.S. 818.