J. P. Steven & Co., Inc.,

DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. P. Stevens & Co., Inc., and Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, succes- sor to Textile Workers Union of America, AFL- CIO. Cases I l-CA-6038, 11-CA-6207, and 11- CA-6895 December 12, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS, MURPHY. AND TRIUESDALF On December 21, 1977, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Charging Party, and Respondent filed exceptions' and supporting briefs. The General Counsel and the Charging Party also filed briefs in support of the Ad- ministrative Law Judge's Decision. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.4 The Administrative Law Judge found in four sepa- rate instances that Respondent engaged in a bargain- ing strategy violative of Section 8(a)(5) of the Act. i The J. P. Stevens Employees Educational Committee filed exceptions to the Administrative Law Judge's denial of its motion to intervene and a memorandum in support thereof. We find these exceptions to be without merit and affirm the denial of the Committee's motion to intervene 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative L.aw Judge's resolutions with respect to credihility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc, 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We also find totally without merit Respondent's allegations of bias and prejudice on the part of the Administrative l aw Judge. Upon our full con- sideration of the record and the Administrative Law Judge's Decision, we perceive no evidence that the Administrative Law Judge prejudged the case. made prejudicial rulings, or demonstrated a bias against Respondent in his analysis or discussion of the evidence 3 We also agree with the Administrative Law Judge's finding that the shift of investment responsibilities of the profit-sharing plan's assets from the trustee. Morgan Guaranty Company, to a committee of members of Re- spo.dent's board of directors violated Sec. 8(aXS). A profit-sharing plan is a mandatory subject of bargaining. N.L.R B v. Black-Clawson Compun.n 2 10 F.2d 523 (6th Cir. 1954). A fortiori, so too is the issue of who controls the investment of a profit-sharing plan's assets. We further note the possible adverse impact of this change due to the loss of the investment expertise of the trustee. 4After the period for filing exceptions and briefs to the Administrative Law Judge's Decision expired. Respondent filed a motion to reopen the record and to conduct additional hearings Respondent asserted that the evidence it sought to adduce would show numerous actions taken since the close of the hearing herein to insure compliance with the Act. This esidence, even if establishing Respondent's assertions, would not in an? way undercut our findings herein. Respondent's motion is therefore denied This tactic consisted of developing comprehensive improvements in corporatewide benefit programs, keeping the Union in the dark regarding information necessary and relevant for purposes of collective bar- gaining, and timing the announcement or implemen- tation of these changes to preclude any meaningful negotiation concerning their possible implementation at the Roanoke Rapids facility. Respondent's bar- gaining strategy thus confronted the Union with a "Hobson's choice"-either accept or reject unilater- ally predetermined modifications in benefit pro- grams. The record in this case clearly demonstrates that this tactic was a most effective means of under- mining the collective-bargaining process and deni- grating the Union's status as collective-bargaining agent. Because these violations go to the very heart of the Act and our national policy, we deem it neces- sary, in agreement with the General Counsel, to im- pose an additional remedy directed specifically at this conduct. Accordingly, we will require Respon- dent to notify the Union promptly of any decision to announce or institute systemwide changes in employ- ee benefits; to produce upon request all information relevant thereto for purposes of collective bargaining, prior to the announcement or implementation of such changes in benefits on a companywide basis; and to afford the Union an opportunity to negotiate regarding similar or identical contemplated changes at the Roanoke Rapids plant.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and orders that the Respondent, J. P. Stevens & Co., Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 5 The Administratise L.aw Judge recommended that pars. 2(g). (h), (i). (j). and (kL of his Order be applied to Respondent's plants and facilities not comprehended by the contempt adjudication issued by the United States Court of Appeals for the Second Circuit in N.L R B v. J. P. Stevens & Co., Inc., 563 F 2d 8 (2d Cir 1977) We disagree. The Order in the instant case is designed to remedN unfair labor practices separate and distinct from those considered by the Second Circuit Therefore, to remedy fully the violations found herein, we have modified the Administrative Law Judge's recom- mended Order and direct that said Order be applied to all of Respondent's plants and facilitlcs. including those plants and facilities covered by the Second Circult's order Accordingly, fn. 74 is deleted from the recom- mended Order lii addition. we have modified the Administrative Law Judge's recommended Order by also requiring that Respondent include in appropriate cormpans publications, such as employce newsletters, a copy of the notice. together with Appendix B. the explanatory letter Florida Steel ('orpioratrn. 231 NIRB 651 (1977). and lh,rida Steel C(orporuaion, 233 NlRB 491 11977) 738 J. P. STEVENS & CO.. INC. 1. Insert the following as paragraph 2(c) and relet- ter the subsequent paragraphs accordingly: "(c) Give prompt notice to the Union of Respon- dent's decision to announce or institute systemwide changes in employee benefits; produce upon request all information relevant thereto for purposes of col- lective bargaining, prior to announcement or imple- mentation of such changes in benefits on a company- wide basis: and afford the Union an opportunity effectively to negotiate regarding similar or identical contemplated changes in such employee benefits for the bargaining unit at the Roanoke Rapids plant." 2. Substitute the following for the newly lettered paragraph 2(f): "(f) Reproduce and mail to the home of each of its employees at all of its plants a facsimile of the afore- said signed notice, together with the letter appended hereto as Appendix B. Said letter shall be reproduced on the Company's regular business stationery and signed by the highest official of the recipient's plant. Also include in appropriate company publications, such as employee newsletters, a copy of the notice, together with Appendix B. Respondent shall provide the Regional Director for Region 11 with proof of such mailing and publication." 3. Delete footnote 74. 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has again found that we violated the National Labor Relations Act. We intend to abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for purposes of collective bargaining or other mutual aid or protection To refrain from any or all of these things. The Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, is the recognized collective- bargaining representative of our hourly employees at Roanoke Rapids, North Carolina. WE WILL NOT refuse to bargain in good faith for a collective-bargaining agreement with the aforesaid Union regarding wages. hours. and working conditions of the employees in the bar- gaining unit: WE WILL NOT take action affecting wages, hours, and working conditions of such employees without negotiating with the Union: and WE WILL NOT refuse to furnish information to the Union to which it is entitled under the law. The foregoing applies as well to any labor orga- nization which is now, or hereafter becomes. en- titled to represent any of our employees. WE wilt compensate, with interest, all Roa- noke Rapids employees who were affected by our 1974 change in the policy relating to free time for employees working double shifts, and WE Wili compensate, with interest, all Roanoke Rapids employees who lost money because of our change in the method of computing holiday pay in 1974 and 1975. WE WILL compensate the Union and the Board for their expenses in preparing for and conducting this case, and WE WiiL compensate the Union for its expenses in participating in collective-bargaining negotiations with us be- tween October 1974 and July 1976. WE WILL send to all our employees copies of this notice, with an explanatory letter; WE WILL read this notice to all our employees: and WE WILL grant the Union, as ordered, access to oui bulletin boards, access to our nonwork areas, speaking opportunities, and lists of the names and addresses of our employees at any of our plants. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under the National Labor Relations Act. J. P. STEVENS & CO., INC. DECISION STATEMENT OF THE CASE BERNARD RIES. Administrative Law Judge: These cases were heard in Halifax and Roanoke Rapids, North Caro- lina, and Washington, D.C.. on 17 days in December 1976 and April 1977. The complaint, as amended at the hearing, charges that Respondent violated Section 8(a)(5) of the Act in various ways, the principal allegation being that in a 2-year period of bargaining for an agreement. Respondent "negotiated with the Union in bad faith and with no intent of entenng into any final or binding collective-bargaining agreement." Briefs were received from all parties on or about July 15, 1977, and they have been most carefully considered. Upon * Pursuant to a settlement agreement reached at the hearing. (ase II CA 6285 was severed from the consolidated complaint 739 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the record,2 the briefs, and my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a Delaware corporation with manufactur- ing facilities in various States. During the 12 months pre- ceding issuance of the complaint, a representative period, Respondent engaged in transactions which clearly qualify it as an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, as the answer admits and I find. 11. THE STATUS OF THE LABOR OR(GANIZATION The answer to the complaint admits that Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC (ACTWU), is a labor organization within the meaning of Section 2(5) of the Act. Respondent argues, however, that ACTWU is not, in law, a successor to Textile Workers Union of America, AFL-CIO (TWUA), which was certi- fied in September 1974 as the exclusive representative of a bargaining unit consisting of production and maintenance employees in Respondent's seven plants at Roanoke Rapids, North Carolina. The record shows that in 1975 the Amalgamated Cloth- ing Workers of American and TWUA began a process which ultimately resulted in the merger of the two labor organizations in June 1976. In American Enka Company, a Division of Akzona Incorporated, 231 NLRB 1335, 1337 (1977), after considering the circumstances of the merger, the Board held that "ACTWU is the continuation of Tex- tile and therefore has succeeded to its representation rights." That conclusion is, of course, dispositive here. I further note that although the Board stated in America Enka that "participation or ratification" by the employees in the bargaining unit there involved was "not required," it did discuss the extent to which the unit employees had participated in the merger. Unlike that case, where there was no employee participation, here the local membership elected delegates to the TWUA convention which adopted the merger resolution. Accordingly, I conclude that ACTWU is a legal continu- ation of TWUA and that it has been and is entitled to the recognition previously accorded the latter organization. ill. THE ISSUES. BACKGROUND The consolidated amended complaint presents a number of issues categorized as violations of Section 8(aX5), the section of the Act which requires an employer to bargain in good faith with the exclusive representative of his employ- ees. The complaint touches every level of the bargaining relationship, from an assertion that Respondent unlawfully withheld information bearing upon the relative efficiency of a discharged loom operator to a claim that Respondent The errors in the transcript of proceedings have been noted and correct- ed. failed to bargain about a transfer of $19 million in profit- sharing funds; from a charge that Respondent unilaterally changed a double-shift time-off practice in one plant to a contention that Respondent negotiated for some 2 years with the Union "in bad faith and with no intent of entering into any final or binding collective-bargaining agreement." While the latter allegation clearly occupies center stage, General Counsel contends that the lesser allegations, much litigated, not only constitute separate and indpendent vio- lations of Section 8(a)(5) but also indicate a cast of mind corroborative of the claim that Respondent dealt in bad faith at the bargaining table. I shall first consider the separate allegations of unilateral action and refusal to furnish, or delay in furnishing rele- vant information. Some background may be helpful. The Union was certified in 1974 ad the bargaining repre- sentative of some 3.000 employees in seven plants at Roa- noke Rapids.3 Shordy after certification of the Union, the Union requested, and the Respondent agreed to, the estab- lishment of a procedure, apart from the contract negotia- tions, for the processing of grievances, channeling of re- quests for information, discussion of operational problems, and the like, usually referred to in the record as the "Strawn-Gardner" procedure.4 After Strawn's early departure, the chief local represen- tative of the Union in this procedure was Clyde Bush; the other active representative was Cecil Jones. While both also served on the union negotiating team, it appears that neither possessed major authority in the area. Aside from Gardner, who also moved on in February 1975, acting as primary liaison for Respondent to the Union was Roger Warren, the personnel coordinator. To the extent that resolutions of conflicting testimony are im- portant hereafter, I generally, with the exceptions noted, found the Union's witnesses more credible. IV THE ALLEGED UNILATERAL ACTIONS A. The Change in the Double-Shift Time-Off Practice The complaint alleges, "On or about September 1974, Respondent unilaterally changed its policy of awarding bargaining unit employees one hour of free time with pay, whenever they worked consecutive shifts, to a policy whereby said employees were accorded therefore only 15 minutes free time with pay." Evidence bearing on the alleged change related only to the Patterson plant. Donald Phillips, an employee for 10 years, testified that prior to the representation election, whenever he had worked an extra shift in conjunction with his regular one (a double), he had been allowed I hour of free time-that is, he would be paid for 8 hours of extra work, even though he actually worked only 7 hours. He would take the free hour between his shifts, as would some of the other employees. About a week or so after the Au- gust 28, 1974, election, his supervisor, W. D. Hovis, told him that this policy was going to change. A few days later, 'Altogether, Respondent operates about 85 plants with 40.000 employ- ees. mostl) in the Southern States. 4Named after the two original party representatives. Strawn for the Union and (Gardner for Respondent. 740 J. P. STEVENS & CO.. INC. Supervisor Wilbur King, in asking Phillips to work a dou- ble, said that he would be allowed only 15 minutes of free time. Thereafter, Phillips testified, he only took 15 minutes off when he worked a double. Betty Harcock, a weaver since 1973, also testified to having received a hour of free paid time when working doubles, which she did some three times a week. Hancock usually took the free time at the end of the extra shift. She further stated that in about October 1974 Supervisor Harry King asked her to work a double and told her that she "would have only 15 minutes off without pay." Thereafter, she took no more than 15 minutes free time when working a double. Similar testimony as to the past practice was elicited from I I-year employee William Biggs, who said that after the election Supervisor Hutchinson "came to me and told me ... that I would only get paid 15 minutes of the hour." Biggs thereafter was only asked to work a few doubles, but he continued to take a full hour off. Respondent introduced minutes of a Patterson plant general overseers' meeting held on November 5, 1971, which, in part, announced a policy that, siarting December I, employees working double shifts would only be paid for 15 minutes of free time, although they could be permitted to take additional time off without pay.5 The prior policy has apparently been to allow employees an hour of free time. There were indications from supervisory witnesses, however, that the new policy was not strictly hewed to after 1971. Weave room Supervisor Rufus Turner, for instance, testified that both before and after 1974 "[ijf I needed an employee in order to keep my job running, I paid him eight hours . . . [r]egardless of whether he worked the full 8 hours." James Cranford, the superintendent of the Patter- son plant, testified that the announced limitation remained the official company policy after 1971 and was referred to at overseers' meetings periodically. When asked if he sus- pected that his supervisors had been allowing employees an hour of free time despite the formal policy, Cranford said, "Some of my department heads might have been aware of it, I don't know . .. at times we do suspect things." Supervisor W. D. Hovis testified in support of the as- serted polic'y but was not asked to specifically deny the conversatioa testified to by Phillips. Hovis did say he had never "knowingly" allowed more than 15 minutes paid time off. Supervisors Wilbur King, Harry King, and Hutchinson were, without explanation, not called by Re- spondent to deny the claims of employees Phillips, Han- cock, and Biggs that those foremen had expressly an- nounced the 15-minute limitation to them in the autumn of 1974. Patterson Supervisor James Nix testified that the three employees had worked extra shifts for him in 1974 and that he did not "knowingly" grant them a full hour's pay if they took off more than 15 minutes. Employee Joyce Blackwell testified on rebuttal. how- ever, to two specific occasions on which she had worked doubles for Nix prior to September 1974 and received an hour's free time; in one of these instances, Nix had escort- ed her to the plant gate, in order to open it, an hour before 5 This was designated on company records as 3 of an hour. thus amount- ing in fact to 18 minutes. the second shift had ended. That supervision had been ful- ly aware of the early departure of doubling employees was indicated by the testimony of employee Helen Acree that prior to the election replacements would be dispatched by supervisors to work the final hour of the shift, and one of the supervisors would open the gate to let out the doubling employees. The documentary evidence--timecards of the employ- ees-is not capable of resolving the dispute, since the raw figures of compensated time shown thereon may represent a variety of situations. The cards of William Biggs, how- ever, tend to support his testimony. Biggs' timecards for the period January-October 1974 show what appear to be doubles worked on a number of occasions, and each time he received credit for 8 hours for the extra shift. But for the week ending November 9, when he worked overtime on 3 days, he received credit on each of those days for only 7.3 hours, and the same credit was given for overtime work on his only other apparent double thereafter, a day in the week ending December 7. Since Biggs testified that after the change in policy he continued to take an hour off, the records suggest that it was not until late in 1974 that he was compensated for only 15 minutes of that hour. The employee witnesses were all persuasive; the compa- ny witnesses were not, and, in fact, Supervisor Turner par- tially corroborated the testimony of the employees. On the whole of the evidence, I conclude that the prior free-hour policy was altered in 1974. It further appears to me that the change was not simply the product of independent deci- sions by some supervisors to more strictly apply the 1971 statement of policy but was the result of a deliberate and coordinated determination: the uncontradicted testimony of Phillips, Hancock, and Biggs makes it clear that four different supervisors went out of their way to notify the employees that they would no longer be permitted the ac- customed free hour. The free hour obviously had been for years the estab- lished working condition for doubling employees, known to supervisors and employees alike. It is evident that the policy announced at the overseers' meeting in 1971 had been ignored in practice. Its sudden and unilateral resur- rection soon after the Union's victory in the election con- stituted a substantial change in the prevailing terms of em- ployment, a change about which the Respondent was bound by law to consult with the Union. Tiidee Products. Inc., 176 NLRB 969, 976 (1969). Even if it were true that Respondent's higher officials were unaware of the lapse and revitalization of the rule, it seems clear that the cons- ciously concerted change of practice by a covey of super- visors must be deemed company action for which Respon- dent should be held responsible. H. J. Heinz Company v. N.LR.B., 311 U.S. 514, 519-521 (1941)(although manage- ment was unaware of the activities of its supervisory staff, "[tJhe question is not one of legal liability of the employer in damages or for penalties on principles of agency or re- spondent superior, but only whether the Act condemns such activities as unfair labor practices so far as the employer may gain from them any advantage in the bargaining pro- cess of a kind which the Act proscribes." ); Riggs Distler & CompanY, Inc. v. N.L.R.B., 327 F.2d 575, 579 (4th Cir. 1963). 741 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Change in Computing Holiday Pay The complaint alleges that Respondent violated Section 8(a)(5) in that "on or about December 1974 and January 1975, Respondent unilaterally changed the method of com- puting holiday pay for bargaining unit employees at the Fabricating Plant, thereby reducing the holiday pay for those bargaining unit employees." On March 13, 1975, in reply to an earlier union com- plaint, Respondent wrote that it had become aware, prior to the 1974 Christmas holiday, that "[f]or several years Holiday pay for employees working on piece rates or in- centive jobs at the Fabricating Plant had been computed differently than at the other Roanoke Rapids Plants" and that the method thus used at the fabricating plant "throughout those years, was erroneous." The letter volun- teered that upon discovery of this fact the normal method of computation was instituted at the fabricating plant for both the 1974 Christmas and the 1975 New Year's holiday pay, resulting in a diminution of pay. Clyde Bush testified that Respondent continued to pay by the new method until August, thus affecting the July 4 holiday as well. In August, Bush testified without contra- diction, Roger Warren told him that Respondent intended thereafter to revert to the former method by which holiday pay for fabricating employees had been computed. Respondent argues that Respondent's action "amounted to no more than correction of a clerical error." It did not, however adduce any evidence that, in fact, the prior com- putation of holiday pay had been contrary to established company policy, and Bush's credited testimony that War- ren had notified him in August that Respondent was re- verting to the former method of calculation strongly sug- gests the nonexistence of such a policy. I find, therefore, that Respondent unilaterally altered an existing condition of employment in December 1974 and thereafter, in viola- tion of Section 8(a)(5). C. The Unilateral Choice of a Respirator As amended at the hearing, the complaint in Case II1- CA-6895 alleges that " [s]ince on or about October 1976, Respondent unilaterally chose for installation and manda- tory use by bargaining unit employees affected the Dustfoe 88 respirator." Prior to December 1976, employees at Roanoke Rapids were not required to wear respirators (masks which filter out cotton dust), but they could do so on a voluntary basis. The mask in use was called a 3-M 8710, a light, single-use, disposable respirator, which had the approval of the Occu- pational Safety and Health Administration. In early November 1976, acting upon complaints filed by the Union, the North Carolina Department of Labor found that Respondent had violated the state Occupational Safety and Health Act by allowing about 150 employees in certain areas of two plants to be exposed to excessive cot- ton dust without respirators. The citations ordered that OSHA-approved respirators be used beginning December 27 and 28. The Union soon made inquiries as to whether Respon- dent would appeal or comply with the citations; Warren testified without contradiction that he told Cecil Jones on November 19 that Respondent would not appeal. On Wednesday, December 15, as subsequently discussed in the section on alleged refusals to supply information, the Company briefly advised the Union, in an evening meet- ing, that it had concluded that in order to remedy the cita- tions a type of respirator called a Dustfoe 88-permanent, heavier than the 3-M 8710, and requiring maintenance- should be used by the affected employees, and it expressed a desire to begin training the employees on Friday or Sat- urday and to start using the respirators on Monday. At a lengthy meeting on the evening of December 16, attended by Eric Frumin, the Union's expert in occupational health, who had flown in from New York, the Union asked Re- spondent for various kinds of information relating to the Dustfoe 88 and the cotton dust problem. Not all the re- quested information was supplied, as detailed infra. At the end of the meeting, Warren told the Union that since he did not believe he could obtain all the requested information by the abatement date of December 27, Re- spondent intended to proceed with the instructional phase of the program on the last working shift of the week (either the following day or the one after that). Warren testified that the Union stated that it would prefer that the Compa- ny continue using the 3-M 8710 respirator until its ques- tions were answered and that until such time it "didn't agree with the program." The program was nonetheless put into effect, and the employees began wearing the Dustfoe 88 respirator the following Monday. The record shows that Corporate Medical Codirector Theodore Hatfield had decided by August 1976 that the most suitable respirator for general use by Stevens' em- ployees was the Dustfoe 88, and his recommendation to this effect was approved by Respondent's Management Advisory Committee in October. Upon Hatfield's recom- mendation in August, Group Personnel Manager Tandy Fitts purchased 300 such respirators for future use at Roa- noke Rapids. After the November citations had been is- sued, and after Hatfield had determined that the exposed employees at Roanoke Rapids were capable of wearing the Dustfoe 88, he formally recommended to Fitts on Decem- ber 9 or 10 that Respondent comply with the citations by using the already-purchased Dustfoe 88 masks. As explained by General Counsel at the hearing, the of- fense alleged here is not "the institution of mandatory use" of respirators, which was in fact mandated by the citations, but rather the "unilateral choice of the type of respirator." Respondent's witnesses carefully testified that in discussing the matter with the Union on December 15 and 16 they only "proposed" use of the Dustfoe 88, rather than other types of respirators; testimony presented by General Coun- sel indicated that Respondent announced a decision to do so. It seems probable that a tentative, though not necessar- ily unalterable, decision was announced. I will find, infra, that relevant information requested by the Union on De- cember 16 was not then supplied. In the face of that omis- sion, together with the Union's stated preference for con- tinued use of the 3-m 8710 until its questions were answered, it must be concluded that the decision to pro- 742 J. P. STEVENS & CO., INC. ceed with the Dustfoe 88 constituted unlawful unilateral action .6 Even apart from the factor of unsupplied information, however, the evidence discloses a failure to meet the stan- dards of Section 8(a)(5). Respondent knew by at least No- vember 25 that it would have to use some sort of respirator by December 27.7 It also knew that it had a stock of 300 Dustfoe 88 respirators and that Dr. Hatfield had previous- ly recommended the use of that type of respirator, a recom- mendation adopted by the Management Advisory Com- mittee. There could scarcely have been any question that after Hatfield examined the employees as to their capabili- ty for wearing respirators he was going to recommend the use of that model. Between November 25 and December 9 or 10, when Hatfield made his "recommendation" to Fitts, nothing was said to the Union (which was unaware of the August pur- chase of the Dustfoe 88's) about the likelihood of using the Dustfoe 88 rather than the familiar 3-M respirator. Be- tween December 10 and the evening of December 15, noth- ing was said to the Union about the Dustfoe 88, even though Respondent knew well what it was going to propose and knew further the time constraints imposed by the abatement order.9 Given such constraints and such knowl- edge, the wholly unreasonable failure to afford the Union prior notice and adequate opportunity to investigate and examine all aspects of the Dustfoe 88 makes the relatively brief essay at bargaining on the evening of December 16, a day or two before the program was to be undertaken, an obvious charade. Respondent cites N.LR.B. v. J. P. Stevens & Company, Inc., Gulistan Division, 538 F.2d 1152, 1162 (5th Cir. 1976), for the proposition that an employer must give a union "a meaningful chance" to offer counterproposals and counte- rarguments. I fully agree, and conclude that no such "meaningful" opportunity--which ex necessitate must in- clude time to study, consider, and evaluate-was given here. International Ladies' Garment Workers Union, AFL CIO v. N.LR.B., 463 F.2d 907, 919 (D.C. Cir. 1972): "No- tice, to be effective, must be given sufficiently in advance of actual implementation of a decision to allow reasonable scope for bargaining." I conclude, therefore, that by unilaterally determining that the Dustfoe 88 should be used by employees in De- cember 1976 Respondent violated Section 8(a)(5).im 6 1 have no doubt that the choice of one of seseral respirators. having substantially different characteristics materiall, affecting the emplosees who must use them, is a mandator) subject of bargaining Gulf Power Con- pany,, 156 NLRB 622 (1966). enfd. 384 F.2d 822 (5th ('lr. 1967): Fihreboard Paper Producsc Corp. v. N.L.R.B., 379 US. 203. 222 (194) l(concurring opin- ion, Mr Justice Stewart); " I[What safety practices are observed. would seenm conditions of one's employement." The citations had a limited appeal period of 15 working days. Thes were issued on November 3 and 4. Hatfield testified that he thought "it was common knowledge that that was the respirator that I preferred." 9 Warren testified that he attempted 10 times on Fridas, December 10. to contact the Union. and then again on Monday. but could make no contact until Tuesday. Since the union representatives were present at the first das of this well-publicized hearing on December 13, it certainly should have been simple to make contact. Io Respondent raises a question as to the bona flids of the I lon in thlr matter. At the beginning of the December 16 meeting. the Union asked permission to post notices at the plant announcing emploee meetings to be held starting that evening at which Frumin would explain "lhe erw ceompa- D. The Change in Vacation Eligibility Date The complaint in Case I -CA-6895 alleges the following violation of Section 8(a){5): Notwithstanding the Union's January 7, 1977, request to bargain with respect to Respondent's proposal of January 5 to change the employee eligibility date for vacation benefits, on January 10, 1977, Respondent unilaterally implemented its proposed change in the employee eligibility date at the Roanoke Rapids plants. On January 6, 1977, Warren discussed with Bush a pro- posed change in vacation eligibility requirements, which would have brought the eligibility date for vacation leave for employees with more than 5 years' service into line with the existing eligibility date for vacation pay. At that time, the parties had vacation proposals on the bargaining table. Bush told Warren that he "wanted to go back and look our proposals over." The following day, at a grievance meeting, the two men again discussed the proposed change in policy, and Bush stated that he thought the appropriate forum for the matter was a collective bargaining session. Warren said the "change" proposed amounted to nothing more than bring- ing the leave practice into conformity with the practice ob- taining with respect to vacation pay set out in the company manual, and Bush said he wanted to review the manual. On January 10 or 11, Bush received from an employee a retyped copy of a posted notice to employees which an- nounced the policy change. At a meeting with Warren on January 14, Bush asked Warren for a copy of the posted notice. Warren said he was not sure that there was a notice, but if there was one, the employees could inform Bush of the contents of the notice. Warren testified, inter alia, that after Bush, on January 7, suggested that the problem be resolved at the bargaining table, Warren explained the proposed change further. While Bush "stated he had no further questions in regard to it, he understood the eligibility date for the second week off," Bush also "did state that he wanted to go back and check his vacation pay policy." As indicated in Respon- dent's notes on the meeting, Bush said, " IY]ou hold on to n! requirement of wearing Dustfoe 88 respirators on the job , and answer ',our quesionls" Although Frumun did not so) tesfllf. Warren gase some extremely confuing testimon) which. in places, man be read to mean that the L nion offered to walise a discussion about the respirator if the ' nion was allowed to post the notices. Warren pointed out to the L eon that the customar ccommunication channel for the linlon was leafleting and refused the request for posting Construting Warren's testimony in its most favorable light, the Implicatlon is that the UInion had already capitulated on the Dustfoe 88 and was willing to settle for a chance to discuss it with the employees (Given the history of the Lnion's abysmal failure at convincing Respondent to change its mind about anything. which will be described hereafter. it seems very likely that. in D)ecember 1976 (at a tinte when this proceeding was underway). the Union behlieved an discussion about the respirator would be bootless Frus- trated in its proposal to communicate directly with employees, it also seems reasonable that the nilon swould have then. for whatever it was worth, have attempted one more time tiO serse in its role of employee representative In this posture, I do not consider the proposal of the notice to be an indication of union bad faith More pertinrnt, perhaps. is the Respondent's burdensome alternative of leafleting at the gates several thousand emplo)y- ees In the hope of catching 150 emplosees in certain departments who would be required to ,ear the re piratlrs 743 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that until I can check my manual," and Warren said "Okay." After not hearing from Bush for 4-5 hours, War- ren assumed the matter had been concluded, and preceed- ed to initiate implementation of the change, which immedi- ately amounted only to the posting of notices advising employees to apply for a second week of vacation by Feb- ruary 1. Plainly, when the January 7 meeting ended, Bush dem- onstrated that he had not necessarily exhausted his desire to discuss the change. It seems likely, however, that War- ren simply interpreted Bush's subsequent silence as a relin- quishment of further bargaining rights. But if it be said that Warren acted unreasonably in thus guessing about the matter, there comes into play here a long line of cases holding that even when an employer an- nounces a unilateral action, as Respondent, for the sake of argument, did by posting notices on January 10, the con- duct will not be deemed unlawful if the union becomes aware of it and, having an adequate opportunity to request bargaining before actual implementation of the change, fails to take advantage of that opportunity. Medicenter, Mid-South Hospital, 221 NLRB 670, and cases cited at 678-679 (1975). The January 10 notice, of which Bush promptly received notification, afforded certain employees an oppurtunity to request a second week of vacation. The period for filing such requests did not expire until Febru- ary 1. Thereafter, according to the notice, the requests would not be automatically granted, but would be "consid- ered and fitted to the operational necessities of the plant." Thus, the notice itself did not constitute a fait accompli, see Southern California Stationers; Wallace Printing Co.. 162 NLRB 1517, 1543 (1967), and the information recieved by Bush on January 10 afforded him ample opportunity, before February 1, to say to Warren, who had displayed no aversion to discussing the matter, that he wished to discuss it further. See International Ladies' Garment Workers Union, AFL-CIO v. N.L.R.B., supra, 463 F.2d at 919 ( "ac- tual implementation of a decision" ). Bush did nothing af- ter receiving notice and thus waived whatever remained of the Union's right to negotiate. U.S. Lingerie Corporation, 170 NLRB 750, 751-752 (1968); Kentron of Hawaii. Ltd, Subsidiary of LTV Aerospace Corporation, 214 NLRB 834, 835 (1974). V. THE ALLEGED UNLAWFUL REFUSALS TO FURNISH INFORMATION A. The Grievance of Brenda Futrell The complaint alleges, as an independent violation of Section 8(aX5), that "[s]ince on or about February 19, 1975, and at all times thereafter, until September 1975, not- withstanding the Union's request that it do so, Respondent withheld and refused to furnish information concerning the identity of and efficiency of certain weavers, to be used by the Union in carrying out its bargaining duties." While. in addition to the foregoing. one other transaction is specificalls alleged to constitute unilateral action, that matter involving the transfer of assets in Respondent's profit-sharing plan call be more easily discussed after a proper context is laid further on. On January 31, 1975, Respondent notified the Union that it was considering the discharge of a Patterson plant loom operator named Brenda Futrell because of her low efficiency and high seconds.l2 At the Union's request, Fut- rell was given a I-week trial period in order to improve her performance. When the trial period ended, Respondent in- dicated that it still was inclined to terminate Futrell. On February 19, at a meeting concerning the discharge, the Company furnished the Union the efficiency ratings and, apparently, the efficiency standards of the five lowest weavers in the plant for the week ending February 8 (Fut- rell had the lowest) and also furnished the average efficien- cies and percentages of seconds for a 5-week period of the weavers on the other two shifts who worked on Futrell's set of looms (Futrell had the lowest). The Union asked Respondent for the names and effi- ciency ratings of all loom operators on all three shifts in the Patterson plant (a total of 90 employees) on a daily basis from December 21, 1974, to February 8, 1975.3 The Union's request, rejected as "not pertinent," was renewed by letter of April 16, long after Futrell had been dismissed on February 22. On July 15, 2 weeks after the complaint issued containing the instant allegation, Respondent sent a letter which simply stated that Futrell and another employ- ee "were the worst weavers at the Patterson plant with re- gard to low efficiency and high seconds." 14 In September, Respondent furnished the requested information. Gardner testified that Bush asked only for the efficiency records of all weavers and not also for their "efficiency standards." He said that the efficiency ratings alone would have been of no use to the Union, because the standards "varied drastically" among sets of looms, and a compari- son of efficiencies alone would have been pointless.'5 Nonetheless, after the February 19 meeting, Gardner dis- cussed the request with Fitts and Warren and called for and reviewed the efficiency records containing the infor- mation requested. Despite his testimony that the efficiency information re- quested by the Union would have been useless, Gardner did give the Union the efficiencies of the five lowest weav- ers in the plant, evidently with the accompanying stan- dards. which seems to indicate that Respondent regarded such information as being of some value. Gardner further testified that he never pointed out to the Union that the efficiencies were of no significance without the related A "second" is . defective product While Bush testified that he also asked for the "seconds" records of the weavers, his letter of April 16. describing the earlier request, makes no refer- ence to such records I note, however, that the affidavit of Gardner states that Bush said on February 19 that he "wanted to compare her efficiency and seconds with other weavers " The emphasis, it would appear, was on efficleric, records, nol seconds data I do not believe the testimon, of Warren and Gardner, which did not aippear in (;.rdncr's affidavit or Warr.n's notes, that when they asked why Bush walnted the data. Bush replietd, "lust because I do." '4 Warren testified thlti after receipt of the April 16 letter, Respondent discussed the matter with its then counsel (Whitford C. Blakeney) "several utmes" before sending the sparse Jul, 15 reply. 1Each loom ioperatior works on a set of several different looms. A stan- dard for each set is estlbhlshed which takes into account both the variety of the Ioi.omis in acch seil and enslironmental factors Thus, Respondent argues. there can be no mreaningful comparison be:ween two operators who each have 75 -percent efficiency rates if the standard applicable to one is 80 and the other 90 744 J. P. STEVENS & CO., INC. standards. The record shows that the data sought by the Union was easily available: in fact, as indicated, Gardner examined the documents after the Union made its re- quest.'" It would seem that the requested efficiencies would have been of some use to the Union. Even though Respondent had already supplied the efficiencies of the five worst weavers in the weave room, it might have been that these were just barely worse than the great majority of the others, a helpful debating point in the Futrell grievance. The records might also have been used, as Bush testified, to verify the claim as to the identity of the worst weavers. Assuming that the Union did not expressly request the rel- evant standards in February, it might well have done so had it received the efficiencies and realized that the stan- dards would be of assistance in analyzing them.'7 In any event, the Union's April 16 letter asked for the "efficiency standards and . ..efficiency ratings on a day to day basis from December 21, 1974 to February 8, 1975." That request, which was not satisfied until September, emasculated the basis for Garnder's refusal. The Board stated in Ohio Power Company, 216 NLRB 987, 991 (1975), quoting N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 439 (1967), "The test of relevancy is similar to that in discov- ery; 'the probability that the desired information [is] rele- vant, and that it would be of use to the union in carrying out its statutory duties and responsibilities.'" And, in N.L.R.B. v. J. P. Stevens & Co., Inc., supra, 538 F.2d at 1164, the court said that "requested data must be supplied unless it is plainly irrelevant." The information requested here can scarcely be deemed "plainly irrelevant." Since it is manifest that the information sought was readily available and not confidential, no valid objection to its production appears; and since the data might have been of use to the Union, I conclude that by the delay in furnishing it Re- spondent violated Section 8(a)(5). '8 B. Information Relating to Terrn Inspectors The complaint, as orally amended at the hearing, alleges that Respondent violated Section 8(a)(5) in that " [S]ince on or about July 9, 1975, and at all times thereafter, until September 17, 1975, notwithstanding the Union's request that it do so, Respondent withheld and refused to furnish certain data relating to the jobs of terry inspectors for the Union to use in carrying out its bargaining duties." In March 1975, Respondent notified the Union that it intended to remove a work element from the job of the terry inspectors in the fabricating plant. At that time Re- spondent furnished the Union with the present, as well as the proposed, "factors and frequencies" of the job. Accord- '6 The daily data was not preserved. hut it w'as retained In weekl sunm- manes. '7 Bush testified that he would have sent ihe informatrrion. if receised. to the Union's industrial engineering expert in New York s Assuming the truth of Respondent's testimony that Futrell's attendance was not up to par, it was her work performance which plainlys as critical. as stated in Warren's letter of July 15 And even though her poor record as to seconds may have played a part. the obviousl) central importance of her efficiency ratings makes the Union's lack of emphasms on seconds an Imma- tenal consideration. ing to Bush. Warren said that the employees "wouldn't suffer any loss of earnings" if they continued to work at a proper pace. The change, however, required a revision of the rates applicable to the other elements of the job. Al- though the Union opposed the change, it was implemented. A few days later. Respondent informed the Union that it was also removing the same element from the jobs of the two other inspectors, fringe and overlocking. According to the somewhat confusing testimony of Bush, at some time after the job changes were made in April, certain terry inspectors complained to him that they were losing money as a result of the changes. Bush then asked the Company for particular information relating to the revised job. When he did so is unclear. On July 9, Bush wrote the Respondent, saying that "[o]n April 4, 1975, we requested from the company a description of a terry inspector's job- what their production standards are and what their rates are on each style." At the hearing, how- ever, Bush conceded that he did not request the rates until some time after April 14. Bush testified that one of the complaining employees gave to him a "rate sheet" which had been handed out to the terry inspectors. That this sheet very likely in fact ap- prised Bush of the information requested on July 9 was conceded by Bush.'9 Bush further conceded that he attend- ed a meeting on the matter with company representatives prior to July 9. at which time he "probably" had with him the rate sheet given him by the employee. In addition, he thereafter was permitted to enter the plant and observe the terry inspectors at work, when Respondent's representative admittedly "discussed the job description" with him. Warren testified that on April 23, the job content of terry inspectors was discussed with Bush and that on May 14 there was a discussion with Bush of the written production standards and rates handed out to the terry inspectors on Apnl 8. In testifying to the May 20 plant visit by Bush, Warren said that Bush asked for a copy of the new and old rates but that Warren "explained to him at that time that based on the fact that the terry inspectors had already re- ceived them on April 8th and our meeting on April 14th that he already had the new rates and since they were com- paring it to the old rates I also felt that he had the old rates." The complaint indicates that information given to the Union on September 17, 1975, satisfied the obligation cre- ated by the July 9 request. The handwritten "job descrip- tion" received in September is a simple five-sentence narra- tive of the basic physical functions in a terry inspector's job. If that was all that the Union requested in the July 9 letter, it had the fundamental information from the start. The "proposed prescribed factors and frequencies" given to the Union in Apnl seems to be a useful analysis of the job, perhaps more useful (altheugh not as graphic) than the simple description furnished in September. As to the "pro- duction standards" and "rates" requested in the July 9 let- ter, Bush conceded that the document received from Re- I "%'hat e hlad requested before. ve had requested on fringe and over- lckl ing inspector .and this letter r -e r e'qusestd l / It t? ierri in. Xp ou-rL. and what we were reqiuesting Ironm the compans .:s the rates and the prlducion standards as thie emploslevi hzsl arad hutad a hr and gl'en nre. whal the new rate was, and what the production standard was" 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent on September 17 was essentially the same docu- ment given to him in April by a terry inspector. which he "probably" had used in a meeting with Respondent's agents prior to July 9. Despite the foregoing, however, it seems certain that Re- spondent was not entitled to withhold the information re- quested in the July 9 letter. Although Bush surely knew what the job consisted of, he as surely had a right to see the Respondent's official version of it.20 Although Bush might well have assumed that the "rate sheet" he had received in April was the only effective one for terr~y inspectors, he was not bound to rely on that assumption. Indeed, that Bush had grounds for questioning the accuracy of the rate sheet he had in hand is indicated by Warren's concession that, to the Union's knowledge, Respondent had made a "clerical error" in new rate sheets given to the overlock inspectors during the same period of time. Bush's reasons for request- ing the information are easier to discern than those given for Respondent's 9-week delay in furnishing it. Warren's concession that he told Bush on May 20 that he could not have a copy of the new rates because Bush "already had the new rates" from an employee seems pecularily recalci- trant when referring to a three-page document. I conclude, accordingly, that by the 2-month delay in furnishing such information, Respondent violated Section 8(a)(5). N.L.R.B. v. May Aluminum, Incorporated, 398 F.2d 47, 51 (5th Cir. 1968) (a 2-month delay deemed unreason- able). C. Information Relating to the Respirator-Requirement The complaint in case I 1-CA-6895, as amended at the hearing, alleges that Respondent violated Section 8(a)(5) in that "Since on or about December 16, 1976, and at all times thereafter until February 16, 1977, notwithstanding the Union's request that it do so, Respondent withheld and refused to furnish information to the Union pertaining to Respondent's requirement that employees in certain de- partments wear respirators." On September 7, 1976, Frumin, the Union's expert on occupational health, consulted with a company representa- tive in Roanoke Rapids on the cotton dust problem in the plant and the Company's dust testing program and pre- sented the Company with a written list of 20 specific ques- tions regarding those matters. No answers were immedi- ately fothcoming. In early November, the North Carolina Department of Labor, as stated earlier, issued two citations against Respondent. When Frumin received copies of the citations, he asked Bush to ascertain what Respondent was going to do about them, but apparently the first substan- tive reply was when Jones was told by Warren on Novem- ber 29 that Respondent would not appeal. Warren testified that at a meeting on December 7 the Company offered to supply the information requested in September but that the 20 While Warren's testimony suggests that the job descnription furnished in September was specially drawn up at that time. it is too vague to support such a finding. 21 Anaconda Wire and Cable (onpaun *. N.L R.B. 444 F.2d 1028. 1036 (7th Cir. 1971): "lElven if some information were availahle to the U;nions through employees at the C(ompany contends. this does not relieve the ( om- pany of its duty to supply such information directly to the Unions." Union said it would prefer to wait until Frumin was pres- ent. On December 15, as stated, Respondent notified the Union about the use of the Dustfoe 88. At a 5-hour meet- ing with the Company on December 16, with Frumin in attendance. Bush presented Warren with a letter asking a number of questions relating to the problem of cotton dust. [he letter also reiterated the request for information made on September 7.22 Respondent did not answer some of the new questions propounded on December 16, but at a rec- orded meeting on February 16, 1977, supplied the missing information. The first set of questions presented on December 16 re- lated to (I) the source of the Dustfoe 88 masks to be used; (2) the identity of the persons who recommended the masks; (3) the alternative masks considered; (4) the timing of the decision to buy the masks; and (5) the qualifications of the persons who recommended and purchased the masks. Frumin testified that company representatives re- fused to supply the requested data, saying they could not understand the Union's need for the information. Warren testified, however, that item (2) was answered by identify- ing "Corporate Medical Director" as the person who rec- ommended the masks. 23 The Union stated as to item (I) that knowledge of the source was important so that it could be assured that second-hand respirators would not be used. Frumin also testified that knowledge of when the decision was made to purchase the masks was relevant because it might indicate that the Company had not made a deliber- ate judgment. He further stated that the Union asked for the identity of the persons who recommended use of the Dustfoe 88 because it considered the limitation to one type of respirator to be at odds with the normal respiratory pro- tection program, since "no single respirator fits all employ- ees. Dr. Hatfield, who had not been present on December 16, testified for Respondent that in his opinion an answer to items (1), (3), and (4) would not be "an essential ingredient in the success or failure of" the Roanoke Rapids respirator program. As to item (5), he at first thought that the qualifi- cations of the individual responsible for the recommenda- tion (but not purchase) of the Dustfoe 88 would be an "essential ingredient," but he then backtracked, saying that if the respirator was an approved one, the qualifications of the person recommending it would be irrelevant. He was not asked about item (2). On cross-examination, however, he agreed that if he were investigating the program, he rmght be interested in knowing whether the respirators were new or used: he would want to know what other res- pirators had been considered; and he thought it would be "helpful, but not essential," to know who had chosen the respirator and his qualifications. On brief, Respondent agrecs that at the end of the De- cember 16 meeting items (1), (3), (4), and (5) remained unanswered. It seems probable that item (2) was answered by saying "Corporate Medical Director," as Warren testi- fied, since when the information was eventually supplied in February 1977, this single question was not specifically an- I his information was supplied. ( Company Representative Bobbitt testified that no name was men- tlioned. 746 J. P. STEVENS & CO.. INC. swered. Respondent argues that the unfurnished informa- tion was not relevant. Even Hatfield agreed. however, that much of it would be worth knowing. and on their face the questions appear relevant. The second set of questions, seeking (1) copies of all studies indicating the levels of cotton dust; (2) a descrip- tion of sampling techniques used in such studies; and (3) a calculation of the 8-hour time-weighted average of the ex- posure to cotton dust of the employees who would be re- quired to wear the masks. was met by a company response that they would "check into it." Hatfield's testimony on this group of questions was un- clear. He seemed to be saying that certain documents pre- viously obtained by Frumin from the Department of Labor did in fact show the levels of cotton dust and that the test results therein indicated the need for respirators; and he said, in regard to item (3), that they did show the 8-hour time-weighted average of "certain employees in the affect- ed areas." He did not testify whether the documents also described the sampling techniques referred to in item (2). On cross-examination, Hatfield agreed that if he were asked to examine an unknown respirator program, he would ask for copies of any studies indicating the levels of cotton dust, since choice of a respirator may depend on the amount of dust. Roger Warren testified that the Union had already (in August) been given copies of the first set of dust level stud- ies in Respondent's possession but that Respondent did not have the results in December of a second sampling which had been made. Dr. Hatfield, however, testified that as of December 10 he was already "reviewing the results of the second test." It thus appears that as of December 16 Respondent had not given the Union copies of the second study relating to cotton dust (item (1)) which it had conducted and as to which, according to Hatfield, it had then received results. The Union was entitled to see the second study. As to itenr (2), it would appear from Warren's general testimony that a description of the proposed sampling technique for the second series of tests had been given to Bush on August 6, 1976,24 and from Frumin's testimony on cross-examination regarding the first series that the Union had secured an adequate description of the techniques used in the first set of Respondent's studies already received by the Union. Item (2) was thus adequately answered. As to item (3), Respondent states, based on Warren's testimony, that the information was given on January 31. No reason was given for the delay. The third set of questions asked about (I) the medical procedures, other than pulmonary function testing, used by the Company to evaluate the ability of employees to use the Dustfoe 88; (2) the criteria used by the Respondent to determine whether an employee is capable of wearing the mask; (3) the identity of the persons who established and/ or recommended the medical procedures and criteria; and (4) the identity of employees determined to be unable to wear the mask. According to Frumin, the Company re- sponded only to the final item, saying that all carding em- 24 "I indicated that Ihe second dust samplings would be by the vertical elutriator method. and also personal samplings." ployees had been determined capable of wearing the Dust- foe 88. Hatfield testified as to item (I) that an "interim corpo- rate respirator program" earlier promulgated by him indi- cated what procedures are used by the Company and that it also set out the criteria asked for in item (2). Warren testified that Respondent had in fact answered item (I) "on August 31 when I proposed that we perform the pulmonary function tests," referring to a discussion in which he had explained to the Union the pulmonary function testing which was about to be undertaken. This, of course, would not answer a question about tests "other than" pulmonary tests. He also said that on December 16 he replied to the third item by mentioning the medical director and to the fourth as testified to by Frumin. As to items (I) and (2), it appears to the untrained eye that the interim corporate respirator program. of which Frumin had obtained a copy, does contain procedures for testing the ability of employees to wear respirators and criteria for evaluating whether or not they should do so. However, it also appears that these methods are standard in nature and are, further, contained in a document dated August 6, 1976, which designates the program as an "inter- im" one. There is no indication in the record that on December 16 Respondent even knew that Frumin had secured a copy of the program, and there was certainly no way for Frumin to know that the program was current. Why Respondent did not on December 16 refer to the pro- gram and affirm its currency is unexplained and inexplica- ble. I note that on February 16, in the minutes which rec- ord Warren's answers to the questions not yet responded to, Warren is shown as having spelled out the procedures requested in item (1), as if they had not previously been given, and also gave "the medical director" as the answer to item (3), .lthough Warren testified he had supplied this answer on December 16. It thus appears that items (1), (2), and (3), all of which appear to request relevant informa- tion, were not satisfactorily answered on December 16. The fourth set of questions sought information about the technical aspects of the jobs performed by the exposed em- ployees: (I) prescribed factors, (2) frequencies, (3) element times, (4) totals, and (5) and (6) allowances for wearing and maintaining respirators and for fatigue time. The letter not- ed that "a worker's wearing of a respirator may affect that worker's ability to perform his or her job at the same speed and efficiency." In discussing the matter, the Union em- phasized that the respirator might place a burden on the employee's ability to perform, and the Company agreed to "check into it." Hatfield disagreed with the premise of the questions, tes- tifying that, in his opinion, the energy requirement of a Dustfoe 88 is so small as to have no practical significance. I am inclined to accept the opinion of Hatfield, an experi- enced professional, on this matter. Accordingly, insofar as the technical information was requested for the purpose of gauging the need for fatigue allowances, it would be irrele- vant. That leaves the possible question of whether the data should have been furnished in order to permit the Union to argue that allowances should be made for wearing and maintaining the respirator. But the record sheds no light on the value of the data in answering that question. It certain- 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly appears to be a contention which could be made without reference to the particular factors and frequencies of the affected jobs.25 The record is completely silent as to the meaning of "element times" and "totals," and, accordingly, I cannot assess their usefulness. I tend to believe that War- ren told the Union, in answer to items (5) and (6), that no allowance had in fact been made; the answer was easy enough to give. On the whole, I conclude that Respondent did not vio- late the Act by its response to this set of questions. The fifth group requested information about the struc- ture and content of the training program to be given em- ployees about the use of the respirators. Warren told the Union the reasons to be given employees for the use of the respirators and said that the supervisors would perform the training after receiving verbal direction from the plant nurses. It would appear, in the absence of contrary evi- dence, that Warren adequately responded to this group of questions on December 16. With respect to the sixth group of requests, asking for all documents and correspondence furnished by Respondent to the North Carolina Department of Labor regarding the levels of cotton dust at Roanoke Rapids, the level of em- ployee exposure, and company programs for monitoring the health of exposed employees, Respondent said that it was aware of no such documents. The same response was given to the final request, which sought all plans, programs, and documents relating to the purchase or potential acqui- sition of machinery or engineering controls for the abate- ment of cotton dust hazards. Warren testified that after December 16 he became aware that the former personnel manager of the Rosemary plant had in fact given the Department of Labor a copy of a Company health program for monitoring the health of exposed employees. Despite that lapse it would appear that, speaking strictly, Warren gave correct answers to the questions as posed. But Frumin also testified that Respondent said that no such documents "existed." While Warren may not have been aware that the Company interim respirator program had been given "to the North Carolina Department of Labor," his failure to mention the existence of such a program rais- es serious questions about Respondent's bona fides. On the basis of the foregoing analysis, I find that Re- spondent violated Section 8(a)(5) by refusing to furnish certain easily accessible information promptly on Decem- ber 16 and by delaying the submission of information until February 1977, a lapse of time which cannot be considered reasonable in the circumstances.2 6 2The record shows that the Union had previously received the factors and frequencies for some of the jobs. 26 It is of no consequence that after it received the information in Febru- ary, the Union did not furnish it to Frumin. The value of the information obviously had diminished with the passage of 2 months. 27 I think it difficult, in a case of this magnitude, to determine when an issue has been "fully and consciously litigated" so as to justify finding a violation in the absence of allegation. At several places in its brief, Charging Party requests such findings. It is apparent to me that the General Counsel very carefully chose what issues to place before the Board: he amended the original complaint in writing on one occasion and orally on others and VI. THE "HOBSON'S CHOICE" ALLEGATIONS A. Background As amended, the complaint contains four allegations re- lating to corporatewide improvements in benefits made by Respondent over a 20-month period coincident with the collective-bargaining negotiations. General Counsel asserts that the conduct referred to constitutes both independent violations of Section 8(a)(5) and evidence of overall bad faith. The allegations, which may be denominated the "Hobson's choice" claims, are similar in construction; the following one is illustrative: Respondent, notwithstanding its failure to respond to the Union's proposals concerning Respondent's profit sharing plan, notified the Union on or about January 21, 1975, that it was announcing on that day an in- crease in employee benefits in its Profit Sharing Secur- ity and Retirement Plan at all of Respondent's non- union plants, and, in bad faith, offered the Union the "Hobson's choice" of either agreeing to the announce- ment of identical benefits to the employees in the col- lective bargaining unit at Roanoke Rapids or of reject- ing such benefits for those employees. The other three allegations refer to wage increases in 1975 and 1976, and an improvement in the group insurance pro- gram in 1976. A similar situation, relating to the institution of a pension plan, was litigated at some length, but was not alleged as a separate violation.2 7 In all four pleaded "Hobson's choice" situations, Re- spondent did not in fact tell the Union that it had to choose between "agreeing to the announcement" of the benefits or "rejecting such benefits." The record indicates that Respondent gave the Union to understand that it was making the announcement at the unorganized plants and that it would be willing to do the same at Roanoke Rapids or, in the alternative, withhold the announcements. On each such occasion, I believe the Union understood Re- spondent to be implying that it was willing to discuss the prospective improvements with the Union. In three of the four instances, the specifics of the improvements were not announced initially to the unorganized employees; rather, they were given only a preliminary indication of the new benefit. A reasonable reading of the somewhat obscure "Hobson's choice" 28 allegations, given some acquaintance issued a second written complaint during the course of the hearing. In view of the very precise delineation of the issues by General Counsel in the complaints. at the hearing, and in his brief, and because, as stated, of the difficulty involved in ascertaining the existence of "full" litigation, my anal- ysis of the legal issues will not stray from those framed by the amended complaints. Insofar as evidence clearly has been presented for its materiality with respect to intent and attitude. I shall, of course, consider it. 2M "Hobson's choice" is defined by Webster's as "a choice without an alternative: the thing offered or nothing." Interestingly. the reference is to one Thomas Hobson. "who let horses, and required every customer to take the horse which stood nearest the door" 748 J. P. STEVENS & CO., INC. with the underlying facts, would lead one to beleive the theory of the complaint to be something to the effect that the announcement of a benefit improvement at nonunion plants and the simultaneous presentation of such a propos- al to the Union at Roanoke Rapids was necessarily in "bad faith," since the announcement would harden Respon- dent's position and at the same time leave the Union with no real choice but to accept a benefit publicly being given to the unorganized employees. In general, however, both General Counsel and Respon- dent argue these incidents as if the complaint simply al- leged that Respondent bargained with a closed mind about the four improvements. I think the totality of the evidence supports such a conclusion. When considering an employer's willingness to bargain about such companywide increases, however, certain observations are in order. There was considerable evidence presented by the Gov- ernment at the hearing, mostly from subpenaed docu- ments, relating to the evolution of the benfit improve- ments, and the notion that Respondent unduly delayed informing the Union of its intentions as to these changes seems, occasionally, to play a part in General Counsel's argument: "Respondent concealed its intentions from the Union regarding the profit sharing supplement, the two wage increases, and the improvements in group insurance until a final corporate decision had been made." The man- ner in which the case was tired, and the latter argument, suggests that the Union was entitled to earlier notification than it received on each occasion. It seems clear enough that an employer is entitled, as a general matter, to fully develop a proposal before present- ing it to a union, as expressly stated in The Lange Company, a Division of Garcia Corporation, 222 NLRB 558, 563 (1976), and again in Joseph Macaluso, Inc., d/b/a Lemon Tree, 231 NLRB 1168 (1977). Although this principle nor- mally applies, however, there may be circumstances where an employer plays his cards so close to his vest as to sug- gest a frame of mind inconsistent with that contemplated by Section 8(d) of the Act. Such circumstances will be dis- cussed below. Does the fact that an employer waits until it fully formu- lates a companywide proposal and then announces it to the union at its represented locations and simultaneously to its unorganized employees itself give rise to an inference of bad faith? The answer-not unusual in the case of such broad propositions-is perhaps, depending upon the cir- cumstances. On the one hand, there is no precedent abso- lutely requiring an employer to refrain from such simulta- neous announcements; on the other hand, when an employer adheres rigidly to a pattern of deliberately ac- cording no more information to the bargaining representa- tive of a gorup of its employees than it is ready to disclose to the ramainder of its employees, who are unrepresented, assiduously supressing any possible bargaining advantage and enhancement of prestige which might accrue to the union by receipt of prior notice, the likelihood grows that the employer is not acting with that degree of open cooper- ation mandated by the statute. Thus, there may be within the episodes hereafter re- counted elements of conduct which themselves do not rise to the stature of unfair labor practices but which nonethe- less indicate an improper attitude toward the bargaining relationship, casting light upon the ultimate question of Respondent's good faith. " [Acts not in themselves unfair labor practices may support an inference that a party is acting in bad faith." N. L R.B. v. General Electric Company, 418 F.2d 736 757 (2d Cir. 1969): N.L.R. B. v. Tower Hosiery Mills, Inc., 180 F.2d 701, 702 (4th Cir. 1950): "Although respondent's actions may' not have constituted an unfair labor practice, this conduct tends somewhat to indicate re- spondent's unwillingness to bargain with the Union"; Con- tinental Insurance Companre. et al. v. N.L. R B., 495 F.2d 44, 50 (2d Cir. 1974). These possible elements will be discussed below. As seen by the parties, the basic question here is whether Respondent broached these four improvements with a mind impervious to change. While, as stated earlier, an employer ordinarily need only notify the union of a deci- sion after reaching it, that decision may not, under Section 8(a)(5), be a "final" one. Given an employer's general right to withhold notification of a decision until it has been fully formulated, when that decision involves : complex corpo- ratewide benefit plan which the employer has spent many months evolving, it may be said, as a practical matter, that the implacable force of corporate inertia will tend to carry it forward to consummation. The law, however, enjoins an employer who has made such a decision to retain sufficient flexibility of purpose as to be receptive to union arguments and counterproposals which may result in a recission or modification of the plan and to consciously brake against such inertia. Overall, I mus: say that the evidence resonates with in- difference on the part of Respondent to the role which Congress intended the Union to play in the collective-bar- gaining system and with an absence of sincere interest in the needs the Union had in attempting to perform as an effective bargaining agent. This lack of involvement re- flects, in my view, an ab initio decision that the Union was not to be permitted to so function -that its views, argu- ments, and proposals were to be ignored. In that respect, I differ with the occasional contention that the Respondent denied information or adequate notice to the Union be- cause "it might be useful for real bargaining." That seems entirely too optimistic. I do not think the Company was in the least fearful of any use but one to which the Union might put information. Tihe exception was the publicity ad- vantage which the Union might enjoy from prior informa- tion. Respondent, I believe, was ready, if not willing, to talk about anything almost forever. It simply was not dis- posed to ever change its mind. This is certainly not to say that the Company was not keenly aware of the nature of its statutory obligations to the Union. The evidence shows that Respondent carefully prepared its overtures to the Union about the benefit im- provements, even devising scripts and scenarios to be used on some occasions, what is missing (and, indeed, what the scripts inherently preclude) is any sense that Respondent intended to extend itself beyond the first layer of requisite formalities and reach to the heart of Section 8(a)(5)--a true willingness to hear, consider, and change its mind. Respondent contends that its good faith is palpably sup- ported by the fact that it offered these improvements to the 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union in the first place, pointing to a line of cases holding that an employer engaged in bargaining for a collective agreement may withhold from the represented employees, as a bargaining chip, benefits given to unrepresented em- ployees. Shell Oil Company, Incorporated, and Hawaii Em- ployers' Council, et al. 77 NLRB 1306, 1309-10 (1948); Mc- Culloch Corporation, 132 NLRB 201, 213-214 (1961); McGraw-Edison Company (Bersted Manufacturing Division), 172 NLRB 1604, 1690-10 (1968). However, as the Board pointed out in Chevron Oil Company, Standard Oil Compa- ny of Texas Division, 182 NLRB 445, 449 (1970), that prin- ciple applies only in a "context of good-faith bargaining, and absent other proof of unlawful motive." It could be argued that in deciding to offer these benefits at Roanoke Rapids this Respondent did not wish to risk application of that test. And I think there is no question that once Re- spondent chose to offer these improvements to the bargain- ing unit it was required to bargain in good faith about them. Cf. Equitable Life Insurance Company, 133 NLRB 1675 (1961); N.L.R.B. v. General Electric Company, supra, 418 F.2d at 746-749. Consideration of the totality of the bargaining relation- ship as spread on this record leaves little doubt that on no occasion did Respondent bargain with the Union on any subject with that receptive state of mind required by the statute. It is therefore somewhat artificial to isolate certain transactions as individual violations. Given Respondent's evident frame of mind, one might as justifiably allege sepa- rate violations in each of the 500 cases of discharge and discipline in which Respondent, after hearing the Union's grievance, affirmed its original decision. Nonetheless, since these matters are alleged and were litigated, they require (and merit) separate examination for the contributions they make to the question of general in- transigence. This is an appropriate juncture at which to provide some background about the bargaining process, since the events regarding these extracontractual benefits generally oc- curred at the bargaining table. Bargaining formally began at Roanoke Rapids on Octo- ber 31, 1974, at which time the Union presented 17 propos- als. Scott Hoyman, Southern Director of the Textile Divi- sion of the Union, who worked out of Charlotte, North Carolina, served as chief negotiator for the Union during most of the bargaining. William Du Chessi, then general secretary-treasurer of the Union, led the union negotiating team at the beginning and later, around the summer of 1975, gradually faded out of the picture. Clyde Bush and Cecil Jones, among others, also served on the negotiating team. From the start, Respondent's principal negotiator was William C. Little, Jr., who is employed in Respondent's Industrial Relations Department in Greenville, South Car- olina. Also appearing with some consistency at the bar- gaining sessions for Respondent were Edwin Akers, Direc- tor of Industrial Relations for the Terry and Decorative Products Division, Allen Bobbitt, manager of the terry op- erations at Roanoke Rapids, Tandy Fitts, and Roger War- ren. The General Manager of the Roanoke Rapids plants was N. S. Beeks, who first attended and then disappeared from the negotiating table about the same time that Du Chessi did. A name often mentioned during the hearing was that of J. W. Jelks, who did not testify. Little, who is an untitled assistant to Jelks, testified that Jelks, located in Greenville, is "Vice President of Industrial Relations for the compa- ny," and the record indicates that Jelks had corporate-wide responsibility in the industrial relations area. Jelks reported to James Harrell, who bore the title of "Executive Vice President," who had "corporate-wide" authority, and who also was located in Greenville. The top executives of the Company were James D. Finley, chairman of the board and chief executive officer, and Whitney Stevens, presi- dent, both of whom were located in Respondent's New York office, as was Respondent's general counsel, Hastings Foster. Various members of Respondent's hierarchy were assigned to several committees which appear to possess considerable authority and whose membership was geo- graphically dispersed; e.g., the Profit-Sharing Plan Com- mittee was composed of Jelks, who served as the chairman, Little, who was the secretary, Ward Burns, Respondent's New York-based comptroller, general counsel Foster, and two others. The two principal witnesses were Hoyman and Little. Their testimony has points of contradiction, but not many. Hoyman was a particularly impressive, highly intelligent witness. Little also seemed bright and honest. The Bard noted, "There's no art to find the mind's construction in the face." Nonetheless, if I had to choose between two men who appeared to be sincere, looking them only "in the face," I would quickly select Hoyman. Furthermore, while the passage of time and events has probably eroded Hoyman's memory, that also is true of Little; but Little made positive assertions which I find highly unlikely.29 B. The 1975 Profit-Sharing Floor The amended complaint charges that the allegation set out in the preceding discussion constitutes a violation of Section 8(a)(5). The record shows that since 1965 Respondent has main- tained a companywide profit-sharing plan for its employ- ees, the assets being held in trust by Morgan Guaranty Company. On November 8, 1974, the Union submitted a contract proposal asking that the amounts credited to em- ployees' accounts be guaranteed. On January 21, 1975, having made no counterproposal on the profit-sharing plan, Respondent announced at a bargaining session that it was proposing a supplement to the existing plan which would create a guarantee, or "floor," so that, regardless of any decline in investment value of the plan assets, the Respondent would by its own assets guarantee to withdrawing employees receipt of no less than the amounts contributed and credited on their behalf during a certain past period, that is, from the incep- 29 Dubioane. I received in evidence copies of pretrial affidavits made by Hoy man and used by Respondent on cross-examination to refresh his recol- lection. J. G. Braun Company. 126 NLRB 368. 369, fn. 3 (1960), holds it to be error not to receive affidavits so used wh-n requested by General Coun- sel. I have not, however, examined the affidavits in preparing this Decision. 750 J. P. STEVENS & CO., INC. tion of the plan in 1965 through December 31, 1974. Little showed the Union a copy of the notice about the floor which was to be posted at all unorganized plants that same day, and asked if the Union wished the notice to be posted at Roanoke Rapids. Little said that he had only learned of the decision the previous evening, and, upon the Union's inquiry, stated that the decision was made by Respondent's Board Chairman Finley and President Stevens. After some discussion, in which the Company educated the Union in the basics of the plan, and after a union cau- cus, the Union agreed to the floor, without prejudice to further bargaining in the area. The Union, however, up- braided the Company for giving it short notice of a poten- tially complex matter and for allowing the Union to be placed in a position in which it "might be criticized by people in the Roanoke Rapids plants for not having ac- cepted a benefit which the company was that day an- nouncing at non-union plants." Of particular interest is Hoyman's testimony that, in dis- cussing the floor, he asked Little for "any other wntten information or analysis" relating to the floor, and was told that there was none. Little's pretrial affidavit states that Hoyman had asked, on January 21, for "projected costs and actuarial analysis" and that Little, explaining that the floor was not subject to accurate cost projections, had re- plied that he "was confident that there had been no such study made." At the hearing, Little at first affirmed that this was "an accurate statement of what I stated both at the time of the affidavit and in the meeting," although he later said that the exchange occurred on March 26. There is no dispute that in a March 26 discussion about the floor Little was asked for any such analyses and subsequently reported that there were none. Little testified that in investigating the existence of such studies he spoke to Jelks, his superior, and to the profit-sharing administrative center in Char- lotte, North Carolina, neither of which knew about any studies. Included in material subpenaed by General Counsel were several documents containing analyses of company liability in the event of implementation of a guarantee of the profit-sharing plan and assumptions relating to the es- tablishment of a floor. They were forwarded on December 27, 1974, by Respondent's comptoller, Burns, in the New York office, to Finley, Stevens, Foster and Harrell. The assumptions analysis contains a "major monetary factor" (deleted from the exhibit) which, the parties stipulated, was not incorporated into the floor later put into effect. The covering memorandum (not in evidence, but orally stipu- lated) contained the statement, "We cannot determine without actuarial assistance the cost to the company if the hourly plan were to be continued with balances (as de- termined above) guaranteed plus [the abandoned major monetary factor] for present and future plan members." It is thus obvious that the kind of information requested by Hoyman on January 21, and as to which Little ex- pressed "confidence" that it did not exist, had been the subject of company analysis. Whether portions of the doc- uments in evidence, excluding the later-deleted "major monetary factor," would have been useful to the Union is a matter about which I can only speculate, although it would appear that, even absent the "monetary factor," other data contained in the documents relating to assumed earnings and personnel information would have been of value. What is immediately striking here is Little's expression of confidence that no such documents of any kind existed, and his later expressed inability to find any, even though the subpena managed to elicit them. At best, one is forced to conclude that Little was not particularly interested in discovering what was available; at worst, that he misrepre- sented the matter. Considering that he told the Union that Finley and Stevens in New York had made the decision, it seems little short of reckless to have confined his much- delayed search for such information to inquiries to Jelks in Greenville and the administrative office in Charlotte. 30 Missing from the evidence here is a definitive indication of when the final decision to institute the floor was made. We know that it was being actively considered at the end of December 1974. We know that Little testified that he learned of the decision on the evening of January 20, did not know prior thereto that it was being contemplated, and had no more information about it than the bare notice which, he was told, was being posted that day in other plants. Respondent was in a position to clarify whether the decision itself was made on January 20 or weeks before; it did not choose to present any direct evidence on that ques- tion. The question seems important because, if the decision substantially predated January 21, Respondent's determi- nation to withold it from the Union until the improvement could be announced at other plants might be seen as part of a recurring pattern, discussed hereafter, of curtailing the Union's state of knowledge as to improvements so that the Union learned nothing new until Respondent was ready to make the same announcement to unrepresented employ- ees. This gambit--apparently attempting to preclude the Union from a position of prior knowledge which, Respon- dent feared, might allow it to trumpet a victory-obviously detracts from bargaining, since it both denigrates the stat- ure of the Union and deprives it of additional time to study and explore proposals. In Kellwood Company, Ottenheimer Division, v. N.L.R.B., 434 F.2d 1069, 1073 (8th Cir. 1970), the court recognized the implicit lack of good faith in such a tactic, noting, as part of the employer's campaign to "em- barrass and undermine the union," that the announcement of wage increases at the employer's unorganized plant "was simultaneous to the first communication of the same offer to the union." It seems quite clear that both sides understood the pres- sure which the Union felt when offered a benefit being announced at other plants the very same day. In fact, the Company's notes for the meeting of January 21 show that after the Union reproved Respondent for not consulting the Union "before the announcement was made in other plants," the following occurred: "Little said that as to the statement made by Du Cnessi we felt a definite need to make the union aware of this change at the earliest possible time and before it ever went up in the other Stevens plants 0 Llttle testified that he had not seen the subpenaed matenal until shortly before his appearance at the hearing and that he then contacted the Char- lotte office to find out if he had heen misled when he had made his earlier inquiries 751 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a notice." It would appear that this felt "definite need" did not thereafter reassert itself, as later discussed. Little's testimony that he had no knowledge of the floor prior to January 20 is suspect. As noted, Little was secre- tary of Respondent's Profit-Sharing Plan Committee: Jelks, his superior, was the committee chairman. While possible, it seems rather unlikely that Little had been com- pletely in the dark on this plan improvement until the eve- ning before its announcement. But taking his testimony at face value, the question arises of how Respondent expected Little to competently bargain over a subject as to which he assertedly knew no more on January 21 than any rank- and-file employee in the unorganized plants who read the same notice that was purportedly read to Little on January 20. It is true, as Respondent points out, that the testimony indicates that the floor was made retroactive to January I, 1975, and that there was not actual urgency involved-the Union could have bargainined for months before agreeing to the floor, and, when and if it eventually did so, all em- ployees who had become entitled to withdraw funds from the plan during the interim would have teen retoractively covered against any loss in their accounts when such agree- ment was finally reached. But there is no indication that either Little or the Union knew that on January 21 or, indeed, that Little was possessed of any knowledge beyond the bare bones of the posted notice. The Union may have felt that immediate losses could accrue to withdrawing em- ployees if agreement was not immediately reached; the thrust of Little's own testimony is that he was in no posi- tion to positively assure the Union otherwise. 3 When the Union asked for information on January 21, and again on March 26, Little at first made an erroneous guess that no studies had been made and later was unable to find the analyses that in fact existed. Giving Respondent the best of the matter, it must be said that it sent an unin- formed, unprepared negotiator bearing a "proposal" which he was unable to speak to, much less negotiate. C. The Unilateral Actions Regarding the Profit-Sharing Fund I earlier noted a remaining complaint allegation of unila- teral action which might better be discussed in context. The foregoing description of the establishment of the floor provides such context. The amended complaint alleges the described conduct as a separate violation: On or about January 15. 1976, Respondent unilater- ally changed its employee profit-sharing and retire- ment benefit plan by authorizing the investment of its assets at a fixed rate of interest, thereby unilaterally eliminating its supplement to said plan, said supple- ment having been instituted in January 1975. 31 Little testified that, routinely. payments are not made to wlthdralwlng employees dunng the first few months of each year so that accounting may take place. and such employees are customarily paid only thereafter [his past practice, however, would not necessarily have guaranteed that the floor would have covered terminated employees who left before agreement was reached and were therefore no longer part of the bargaining unit The funds held in trust by Morgan Guaranty under Re- spondent's profit-sharing plan were, as of 1975, principally invested in common stocks, making the trust assets subject to market fluctuations. Subpenaed documents show that in September 1975, Hastings Foster, as the secretary of Re- spondent's Investment Committee, which is composed of five members of the Board of Directors, notified several insurance companies that the committee was "considering asking our Trustee" to invest the assets in a guaranteed- amount-fixed-income arrangement and invited proposals. On January 15, 1976, the board of directors approved such a transfer of fund assets. On January 22, Foster wrote Morgan Guaranty that the "Investment Committee of our Board of Directors has determined that the assets currently held in the Trust ... should be liquidated and invested by the Trustee in an insurance contract .. ." and also stated that "[ w ]e have negotiated a contract with the Equitable Life Assurance Society" to that end and " w]hen the for- mal contract is issued it is planned that the same will be issued to you as Trustee and you will hold it as in effect the sole asset of the Trust." By February 2, $17 million of the $19 million being held in trust had already been transferred to Equitable, under an arrangement by which Equitable guaranteed the principal for a 10-year period and provided a 9.15 percent rate of return. The Union received no word of this transfer until April, when all of Respondent's em- ployees were informed. The complaint, as described, alleges that Respondent "unilaterally changed" its profit-sharing plan by virtue of the transfer, "thereby unilaterally eliminating its supple- ment to said plan." The foregoing language indicates that the transfer itself, as well as its asserted effect on the floor, constituted unlawful unilateral action, and Respondent so interprets the allegation, arguing at some length that the transfer to Equitable was not a mandatory subject of bar- gaining. In essence, Respondent contends that the terms of the existing plan placed no limitations on the manner in which funds could be invested, a fact as to which the Union was reasonably put on notice by receipt of a copy of the plan in March 1975, and that the decision to purchase the Equitable contract was simply an exercise of the discre- tion already existing under the plan. Respondent argues that the plan "charged the Trustee with the responsibility of providing 'for the investment of the Fund and the payment of the benefits of the Plan.'" 32 As also noted by Respondent, the plan provides that "the Company shall have no liability for the payment of bene- fits under the Plan nor for the administration of the funds paid over to the Trustee." Although Respondent disingenuously notified the Union in April that "the trustee of that plan has been able to make" the Equitable investment, there is no question that the decision was initiated, developed, and completed by Respondent, and Respondent's brief plainly acknowledges i' Ihe plan provides. In pertinent part: All the funds of the plan shall he held hy a Trustee or Trustees appoint- ed from time lo time be the Board of Directors. in trust under a trust instrument or instruments adopted, or as amended, by the Board of Directors to segregate the Fund fromr the funds of the Company, and provide for the investment of the Fund and the payment of the benefits of the Plan 752 J. P. STEVENS & CO.. INC. that it was the ac:or here. In consummating that change, the evidence shows, it became necessary to amend the trust agreement. While the trust agreement is not in the record, we have a letter to Respondent from Morgan Guaranty enclosing amendatory language "which may be added to Article 11, Section 2 of our Trust Agreement to authorize Morgan Guaranty to transfer the Trust assets to an insur- ance company for the purchase of policies or contracts." A "Supplemental Agreement" entered into between Respon- dent and Morgan Guaranty witnessed that it was necessary to "amend the Trust to provide for and permit the Trustee to acquire and hold certain contracts in the nature of insur- ance contracts... ." The amendment, of which we have a copy, added a paragraph to the trust agreement: the amend- ment proves, in part: The Trustee shall apply the assets of the Trust Fund to the payment of premiums upon, or considerations for. policies or contracts issued by insurance companies if and only to the extent directed by the Investment Committee .... The Trustee shall have no duty to inquire into the terms and provisions of any applica- tion or other documents executed by it upon the direc- tion of the Investment Committee or of any policy or contract acquired by or delivered by it. The Company shall indemnify and hold harmless the Trustee of and from any costs [etc.] in respect of the acts [etc.] which the Trustee performs or undertakes upon the direction of the Investment Committee. A letter agreement sent by Morgan Guaranty to Equita- ble, signed by both, and accepted by Respondent states that while Morgan would be the contract holder of the group annuity contract to be issued by Equitable, "it is the intent of J. P. Stevens & Co., Inc., that the Investment Committee under the Plan perform all the funcitons nor- mally required of the Trustee as contract-holder except the signing of documents modifying the terms of such con- tracts," and includes a provision that Equitable "will deal with the Investment Committee under the Plan in all in- stances in which such contract calls for dealing with the Trustee." Accordingly, since, as Respondent contends, the plan "charged the Trustee with the responsibility of providing 'for the investment of the Fund'. . .," Respondent's deci- sion to make the Equitable contract "the sole asset of the Trust" and to absolve the trustee of any duty to "inquire into the terms of .. . any policy or contract acquired by . . it" necessarily eliminated any investment discretion- and responsibility-theretofore vested in the Trustee with respect to such assets held in trust. Further, the provisions of the letter agreement making the Committee responsible for "performling] all the functions normally required of the Trustee" and requiring Equitable to "deal with the Invest- ment Committee under the Plan in all instances" inscad of with the trustee also effectively placed in the Investment Committee the authority called for by the plan to reside in a trustee. This clearly constituted a change in the plan, which not only states that a trustee shall provide for "the investment of the Fund" but also removes the Company from any role in the "administration of the funds paid over to the Trustee." Such changes appear to be of sufficient significance as to require bargaining. In The Connecticut Light & Power Com- pany, 196 NLRB 967 (1972), reversed 476 F.2d 1079 (2d Cir. 1973), the Board held that the selection of an insur- ance carrier, where the union was dissatisfied with the pres- ent one, was a mandatory subject of bargaining, even though the union was not seeking any specific changes in the benefit levels and other features of coverage. See also the Board's Supplemental Decision in Bastian-Blessing, Di- vision of Galconda Corporation, 195 NLRB 1108 (1972). enfd. 474 F.2d 49 (6th Cir. 1973), where the Board held that an employer's termination of its policy with Aetna Life Insurance Company was bargainable because it "in- volved a substantive loss, at least in terms of Aetna's ad- ministration and funding." Here, the change permitted the trustee to assume a func- tion not previously permitted by the trust agreement, and it may well be that the Union would havc wished to explore the wisdom of such a modification. It further transferred the performance of fiduciary obligations to the Investment Committee, without any express acceptance by the Com- mittee of a trust; that appears to contravene the terms of the plan, and the Union might have wanted to speak to that as well. In the circumstances, I conclude that the uni- lateral transfer of the funds to Equitable, in the accompa- nying circumstances, violated Respondent's duty to con- sult the Union about changes relating to mandatory sub- jects of bargaining.33 I do not see, on the other hand, how the transfer of the funds resulted in "unilaterally eliminating [Respondent's] supplement" to the plan, as alleged. The floor was simply a commitment by Respondent, based on its general assets, to guarantee that distributions to employees from the plan would not be less than the amounts credited to their indi- vidual accounts during the period 1964-75. The evidence shows that at the time of the transfer there was a surplus in the Fund. While the transfer of assets to Equitable may have made the floor unnecessary, since the return of princi- pal was guaranteed, it is also conceivable that Equitable might have suffered financial setbacks which would have given renewed vitality to the floor; and, at any rate, the Equitable contract had only a 10-year duration, after which the floor might have served a useful purpose. Little testified that the floor continued to exist. Respon- dent's general counsel stated in a July 7, 1976, affidavit in a civil aciton, discussing the transfer to Equitable, that "the participants are assured that the amount of their accounts will not only not decrease below the floor guaranteed by the Company but will more than double over the next 10 years;" the clear implication is that the floor was still in effect. The fact that the conversion of the funds into an insurance contract may have pretermitted the possibility of market gains, a fact noted by Charging Party, is an argu- ment which bears no relevance to the claim of unilateral elimination of the floor. 311 recognize that this conclusion extends beond the apparent thrust of the complaint. which alleges a siolation "by authorizing the Investment of it. assets at a fixed rate of interest." In th:s Instance. however, Respondent was sufficiently on notice of the area of charged violation, and I do not think that the matter could have been more fully litigated 753 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consequently, I recommend dismissal of the allegation insofar as it asserts an unlawful elimination of the profit- sharing supplement. D. The 1975 Wage Increase The amended complaint alleges, as an independent vio- lation of Section 8(a)(5), that: Respondent, notwithstanding its previous insistence as late as August 13, 1975, that its wages were competi- tive and that there was no need for a wage increase, informed the Union on August 14, 1975, that it was announcing that day an undetermined wage increase for its unrepresented employees to be effective Sep- tember 8, 1975, and, in bad faith, offered the Union a "choice" of rejecting that increase or acquiescing in the announcement of the increase for the represented employees at Roanoke Rapids without offering the Union any proposal as to the amount of such increase. The next major benefit improvement falling into the "Hobson's choice" category occurred some 7 months after the institution of the profit-sharing floor. On June 13, 1975, the Union made a written proposal calling for an immediate wage increase of 12 percent for all employees, without prejudice to further bargaining on its formal proposal already on the table. Little responded by saying that Respondent was continuously surveying the textile industry and was satisified that the current wage scale was fair and competitive. On August 13, Hoyman raised the subject again, point- ing out that in recent weeks two other textile manufactur- ers had announced general wage increases. Little stated that Respondent was aware of these developments but that "the company felt that the Stevens wages were still compet- itive, and that they reviewed these matters and that they saw no need to agree to any wage prpposal." The evidence shows that wage movement in the general- ly unorganized Southern textile industry has followed a historical procedural pattern: every so often, one or more companies will announce a wage increase, unspecified in amount, to be instituted several weeks later. Thereafter, other companies follow suit, and the increases adopted usually fall within a narrow range. In 1975, while Cannon Mills, West Point Pepperell, and several other companies made announcements of such increases some weeks prior to August 13, the record shows that four large manufactur- ers, Burlington Industries, Deering Milliken, Spring Mills, and Cone Mills, all publicly announced undetermined gen- eral increases on August 13, to take effect in September. On August 14, at a bargaining session, Little announced that the Respondent was that day posting notices in its nonunion plants announcing an unspecified wage increase to take effect on September 8. After some acrimonious comment by Hoyman about the awkward position in which the Union was placed by such a move, the parties agreed to post a similar announcement at the Roanoke Rapids plants, hedged by a proviso that the increase would be effective only if agreement could be reached as to the amounts of the increase. Hoyman questioned Little about his sudden volte face, and Little, noting the pattern which had developed the pre- vious day, said he had learned of the Company's change of position by a telephone call on the preceding evening. He said that only the top officers of the Company had authori- ty to advance wages, and Hoyman deplored Little's limited bargaining powers. Hoyman asked that the Union be noti- fied as quickly as possible about the specific increases Re- spondent intended to propose. Two weeks later, on August 28, Respondent gave the Union a list of proposed new rates for all classifications in all seven plants. The Company adivsed that the increase amounted to an average of 7 percent, with small variations. After the Union unsuccessfully argued for some adjust- ments in various classifications and in the overall in- crease,3 4 the Union, conscious of the lead time required to institute the changes (to take effect September 8) and of the upcoming Labor Day holiday, agreed to the proposed wage scales. little testified that he first heard of the increase when he received a telephone call from Jelks, his superior, on the evening of August 13, telling him that the Company had made a determination on "that day" to announce an in- crease on August 14. He further testified that his pre-Au- gust 14 representations as to Respondent's attitude toward the necessity for an increase were based on an inference he drew from the fact that he had heard nothing to the con- trary from higher officials. A subpena issued by General Counsel resulted in the production of the following undated and unsigned memo- randum from tha files of Jelks: TA RGET DA TES i. As near as possible to 10:00 A.M. on Thursday, Au- gust 14th, post notices in all plants, other than Roa- noke Rapids and Statesboro, reading as shown on attached. 2. At beginning of bargaining meeting at Roanoke Rapids on Thursday, August 14th, convey the same information to the Union representatives there at that meeting. 3. Also tell the Union representatives at the Roanoke Rapids bargaining meeting on Thursday, August 14th that amounts of increases have not yet been decided upon by the company-that as soon as these amounts are arrived at by the company, the Union representatives will be called by telephone and another meeting then arranged with them (it is expected that this call to the Union representatives will take place on or about August 21st, offering to meet at the Union's convenience any day during the following week). 4. When meeting does take place with Union repre- sentatives, during the week of August 24th, compa- ny representatives should be ready to make a pro- posal to the Union whill [sic] will state the general areas of the increase which the company is offering, for example seven percent (7%). 14 Hoyman pointed out that other textile companies with which the Union was bargaining had made offers which, including fringe benefits. amounted to 7.4 to 7.6-percent increases. 754 J. P. STEVENS & CO., INC. 5. On or about September 4th, supervisors in all plants other than Roanoke Rapids and Statesboro will inform individual employees of their new rates-except that at selected plants, for example Wallace, N. C.-Delta Nos. 2 and 3 and Walter- boro--individual informing of rates by supervisors can hopefully be done earlier than September 4th- perhaps on about August 28th. Little testified only briefly about the document, saying he had just seen it in the few days before his testimony and did not know who wrote it. Jelks, who might have been more illuminating, did not testify. The memorandum is of interest. It evidently emanated from the highest echelon of Respondent, applying as it does to "all plants, other then Roanoke Rapids and States- boro." 3s The fact that headquarters would lay down such specific guidelines for bargaining about the increase at Roanoke Rapids indicates that the local negotiators were viewed as possessed of virtually no real authority. The probability that the notice must have issued well in advance of 10 a.m. of August 14, the time at which the prescribed ("attached") notices were supposed to be pre- pared and posted strongly suggests that Little in fact was fully aware of the intention to announce the increase prior to the evening of August 13, when he says he first learned of the matter by telephone. It seems obvious that the large textile companies were closely working together on this matter; I would not assign to fate the fact that Burlington. Deering Milliken, Spring, and Cone all publicly announced increases on August 13. Respondent very likely was repre- sented at the conferences which led to those announce- ments.36 If that assumption is correct, Little simply misrep- resented the fact, wittingly or not, when he told the Union that the increases had been decided in New York on Au- gust 13. The very deliberateness of the memo-the call to the Union arranging a meeting was to be made "on or about August 21st," the meeting was to occur "during the week of August 24th"-is revealing. Respondent's thus-disclosed commitment to a predetermined timetable evidenced a lack of concern with the more important consideration of getting the proposal to the Union as soon as possible. When Respondent finally, on August 28, presented a de- tailed proposal covering increases for hundreds of classifi- cations, with pointed reference to the lead time required for putting them into effect by September 8, as complicat- ed by the Labor Day holiday, the Union, after making a few passing efforts at amending he proposal, predictably capitulated before the steamroller effect. In my view, it is highly questionable whether Respondent harbored any ser- ious bargaining intent in this instance. E. The 1976 Wage Increase The amended complaint alleges a violation of Section 8(a)(5) in that: "Sitatesbhro" refers toi a plant in C(eorgia. the only other of, Respon- dent's plants represented h) a union this same union at Ihe time 36 Why Respondent itself held hack on a puhlic announcement is suhbject to more than one explanation. See nIiua Respondent, notwithstanding its summary rejection of, and its failure to make a counterproposal to, the Union's proposal of April 13, 1976, for a 15 percent wage increase, informed the Union on April 28 [sicj, 1976, that it was announcing that day, at its nonunion plants, another unspecified wage increase effective June 21, 1976, and, in bad faith, offered the Union the "choice" of rejecting the wage increase for the repre- sented employees at Roanoke Rapids or acquiescing in the announcement of such increase for those em- ployees. The factual setting here is similar to that involved in, and occurred some 8 months after, the 1975 wage increase. On April 13, 1976, the Union proposed an immediate 15-per- cent wage increase. Little stated that the Company be- lieved its wages to be competitive and that it saw no indus- try wage movement. Hoyman referred to the 1975 sequence of events, terming it "bad faith" on the Company's part, and asked that it not happen again. Ac- cording to Little, he told Hoymen "we would consider the Union's proposal." On April 26, the Company told Bush and wrote Hoyman that it was that day announcing to all plant employees outside of Roanoke Rapids an unspecified wage increase to take effect on June 21. The letter stated that unless the Union desired otherwise Respondent would refrain from making an announcement to the Union-represented em- ployees and further said that the Company was prepared to discuss all aspects of the proposed raise at a bargaining meeting scheduled for May 6. The letter emphasized that the decision to institute a wage increase "was made by our Company's management today and that your Union was thereupon informed of this decision as soon as it was made." Unlike the 1975 increase, therefore, the 1976 an- nouncement was made to nonorganized employees before the Union was afforded any opportunity to participate in a simultaneous announcement at Roanoke Rapids.T At the May 6 session, Little proposed that an increase be given in line with the pattern then developing in the indus- try. The parties agreed to issue a notice similar to that posted in 1975. At the May 13 meeting, the Union called for a specific delineation of proposed increases, but the Company had none. The Union urged haste. At the bar- gaining meeting of June 7, 14 days prior to the effective date of the announced conditional increase, the Company, as in 1975, presented the Union with a list of classification- by-classification proposed increases for employees in each mill. The Company described the overall proposal as an approximate 10-percent average increase, with a general range of 7 to 17 percent. The Union asked about the basis for the substantial variations, and the Company described three guidelines employed. The Union, having difficulty comparing the seven separate plant proposals, sought some information which might permit an integrated comparison of the seven plants, and the Company gave a lengthy oral description of all classifications, their wage levels, and the percentage increase proposed for each classification. Final- ly, after a caucus, the Union proposed that no employee be 11 Is obviolus that Bush was not authorized to agree to such an an- nouncerment 755 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given no less a 10-percent increase. The Company agreed to consider the proposal. On June 10, the parties again argued about the variances and the Union-proposed 10-percent floor. Hoyman in- quired as to whether the variances being put into effect at the nonunion plants were as large as at Roanoke Rapids; Little said he had ascertained that there were variances at the other plants but knew no details. The Union made a specific proposal as to two job classifications which were to receive unequal pay, saying they should be equalized, and as to some classifications which were filled by only a few people. It also requested information as to the specific per- centage adjustments made in the 1974 general wage in- crease. The Company supplied this information the next day. On June 7 and I 1, the Union asked how the differentials had been determined and was told that there were no writ- ten memoranda or evaluations but rather that plant offi- cials familiar with the jobs had been consulted and the adjustments based, in Little's words, on their "collective judgments." Respondent also denied that the rate of in- creases was based on any guidelines received from outside Roanoke Rapids. Thereafter, on June 15, pursuant to an earlier request, the Company supplied a chart listing overall variances at 12 unidentified plants, said to be similar to the Roanoke Rapids plants. On June 16, the Union asked that the plants at least be identified by the nature of their process, but the Company would not do so. Respondent did, however, ac- cede to the Union's request for a breakdown of the number of job classifications represented at the listed plants. Once again, the Union raised the question of the formulation of the variations and the 10-percent minimum proposal. When the Respondent rejected the latter proposal, the Union, indicating dissatisfaction but recognizing the immi- nence of the June 21 effective date, agreed to the installa- tion of the proposed rates. Respondent introduced, without objection, a newspaper article dated April 18, 1976, which states that on April 27 Burlington Industries, the nation's largest textile manufac- turer, had announced a 10-percent pay increase.38 The arti- cle also states that in the preceding week Cannon Mills and Textiles, Inc., had announced increases. The article futher says that Burlington was following the lead of "Cannon Mills and J. P. Stevens Co." and that Respondent, "the second largest textile company, announced Monday [April 26] it would increase the wages of its hourly paid employ- ees June 21." It thus appears that in 1976 Respondent was given the opportunity of being one of the major manufac- turers to take the lead in announcing wage increases. Among the materials subpenaed by the General Counsel is a May 7, 1976, intracompany memorandum from F. J. Parks, Jr., to I I vice presidents of manufacturing in 5 States, including J. M. Beck in Roanoke Rapids, with a copy to Jelks. It begins: The following guidelines have been approved for im- plementation of the wage adjustment effective June 3S The testimony indicates that it was unusual for Burlington to have included the amount of ihe increase in its initial announcement. 21, 1976, for all manufacturing divisions except Ho- siery. Production hourly employee rates may be increased to average 10 percent. General Counsel argues that this memorandum belies Respondent's representation to the Union that there were no written "guidelines" on which it based its proposal. However, the Union had apparently been requesting guide- lines which would explain the variations between classifica- tions, and this document does not attempt to lay down any such controlling principles. It does seem improbable that the changes made in several hundred classifications were, as Respondent stated, accomplished by informal consulta- tion with knowledgeable officials, but no documents estab- lishing the contrary were produced. What the memorandum does show. however, is that all the plants were given a uniform fiat: " [Hourly employee rates may be increased to average 10 percent." This man- date conceivably left room for juggling within the 10-per- cent figure, but it made it impossible for Roanoke Rapids management to seriously consider the Union's 10-percent minimum raise proposal without abandoning management's obvious interest in maintaining variant in- creases.39 Little said at the hearing that, as a general mat- ter, his bargaining committee would have to seek approval from the highest levels to change important monetary poli- cies. While he told the Union that its proposal would be considered, there is no evidence that he conveyed it to the top. The finality with which the May 7 memorandum re- sounds makes clear that no margin for bargaining was to be permitted.4 An early demonstration of Respondent's negligent atti- tude toward the Union occurred when, on April 13, the Union had proposed a 15-percent increase and Little repre- sented that Respondent believed its wages to be competi- tive but said the Company "would consider the Union's proposal." Little admitted that he based the former asser- tion only on the fact that he had heard nothing to the contrary from higher up. As to the agreement to "consider" the proposal, Little conceded that any such decisions would have to be made by top management; there is no evidence that the proposal was conveyed upward, and I have no doubt that it was not. Further evidence of Respondent's indifference to the Union's responsibility for bargaining on behalf of 3,000 employees appears in the unexplained delay in making the specifics of the 1976 proposal available to the Union. The 19 LtIile testified that he "believes" the actual average increase for bar- gaining-unit employees was "prohahly around 10.3 or 10.6. I'm not sure which." fhat sort of testimony. when unimpeachable documentation is available. is plainly both reliable and suspect 4( IThat Respondent had Roanoke Ra pids clearly in mind at the time of issuance of the memorandum is shown by a handwritten draft of it. which is in evidence Deleted from the final cop) is the sentence "Rate adjustments hbased upon the above guidelines should be equal to or greater than compa- rable Roanoke Rapids rates where it is practical." The deleted sentence is interesting, showing as it does a concern )hat employees at the nonunion plains should not fare an) worse from the wage adjustments than compara- ble Roanoke Rapids employees A similar concern was evinced in what appeair to be notes of a high-level meeting ctn August 28. 1975. regarding the 1975 raise: those notes say. inter ao/u. "No jobs lower than comparable jobs in Rolanoke Rapids Fabriciling plants only;" 756 J. P. STEVENS & CO., INC. announcement was made on April 26. The May 7 memo- randum established that the increases had to average no more than 10 percent. A month then passed before the specific proposed increases were given to the Union on June 7, 2 weeks brfore the increases were to take effect. This should be compared to 1975. when Respondent pre- pared a similar proposal in just 2 weeks (but again only II days before the announced effective date). It seems clear that Respondent was impelled by no sense of urgency or recognition of the needs of the Union; it appears, rather, that the Company was content to expand the time for mak- ing the proposal in accordance with the time available to it, so long as a representation could be made to the Union at what could be considered a "reasonable" time before the effective date. That the bargaining at Roanoke Rapids was not to be taken seriously is indicated by a subpenaed memorandum of June 8, 1976, from F. J. Parks to II vice presidents of manufacturing, with copies to Harrell and Jelks, stating that the "reimbursement rates to become effective June 21. 1976 have been approved as follows" and then showing $2.65 per hour for the fabricating plants, including "Roa- noke Rapids," and $2.85 for "all other locations." Hoyman testified that nothing was ever said to him about the sub- ject of reimbursement rates. While the record indicates that Respondent was ready to talk about the wage proposal and to supply information requested by the Union, its blanket refusal to vary any of its hundreds of proposed increases, even to meet Hoyman's request to conform "a couple of specific job classifications that were only a small distance apart but that we thought that they should be equal," displayed a rigidity which seems in keeping with each and every decision made over the 2-year period covered by this record. F. The 1976 Group Insurance Program About 2 months later, another companywide benefit im- provement was announced. The amended complaint alleg- es that Respondent violated Section 8(a)(5) as follows: Respondent notwithstanding its failure to comply with the Union's requests of August 6, 1976, of September 2, 1976, and subsequent requests, for information as to its existing group insurance program, notified the Union on September 2, 1976, that it had decided to announce unspecified benefits in its group insurance program at its nonunion plants and in bad faith of- fered the Union the "choice" of rejecting those bene- fits for its represented employees or acquiescing in an announcement of the benefits at Roanoke Rapids. As of August 1976, both parties had made proposals on the subject of insurance, the Respondent offering to main- tain the existing coverage of its group insurance program. On August 6, the Union, by letter, requested four catego- ries of documents from Respondent relating to the insur- ance program. At a bargaining meeting on August 12, Re- spondent told the Union that the request had been put into the hands of Respondent's insurance department. As of September 2, none of the requested information had been received. On that day, Little announced to the Union that Respondent had decided to institute an im- proved group insurance program and an additional paid holiday, that these two items were being announced that day in the unorganized plants, and that he would appreci- ate the Union's position on these matters at Roanoke Rapids. Asked about the details of the program, Little said he had none. Hoyman rejected Little's offer to make the same announcement at Roanoke Rapids, on the grounds that he could not agree to a complex program about which he was uninformed. Hoyman also asked about the docu- ments requested by the August 6 letter. At a September 15 meeting, Little was still unable to supply particulars about the new program, which was as- sertedly still in flux, and, when asked, said that Respondent was still compiling the documents earlier requested. Hoy- man stated that he would be glad to receive the material piecemeal, and urged Little to seek out a useful contact in Respondent's insurance department. in probing about the new program. Hoyman stated that the Union would appre- ciate information about the areas being developed so that the Union "could put some input into it." On September 16, Hoyman again sought details about the new program but got none. He also again requested the August 6 infor- mation. By letter of September 17, Respondent satisfied three of the four categories of information sought on August 6.4' The fourth item requested was the existing insurance agree- ment between the Company and its carrier, Provident Life and Accident Insurance Company. The September 17 let- ter stated, 'The only written agreement we had is no longer current or applicable. A current agreement is being pre- pared and as soon as this is complete, a copy will be for- warded to you. On September 29, Respondent presented the Union with a document called Principal Features Proposed For Group Insurance Improvements, which briefly outlined the new insurance program, described by Hoyman as constituting a "very major change" in the nature of the coverage. Re- spondent also orally gave the Union information as to esti- mated company and employee premium costs. In the course of a lengthy discussion, Hoyman again asked for the existing insurance contract and, as well, as many pieces of the new contract as might be presently available. He also requested several other kinds of data. Toward the end of the meeting, Little said that the outline of the new pro- gram was also being distributed to employees at nonunion plants that day and that the employees were being in- formed of an effective date of December 1. At an October 19 meeting, the Union was given some requested information. Hoyman again asked for the ex- isting insurance contract and again was told that no formal contract existed. Hoyman chastised Respondent for the "terry cloth curtain" it has ptlled down over the new pro- gram, noting that the Union had received only the bare consumer details given to lay employees, when the Union needed technical and financial information. 42 Since Little 41 Little testified that Respondent had beeil waiting to furnish all the material at once. until Hoyman indicated on September 15 that the Union would accept it in installments. 4:' Company notes read: "Hoyman stated that the Compan) gave the (Continued 757 DECISIONS OF NATIONAL LABOR RELATIONS BOARD professed ignorance, Hoyman asserted the responsibility of the Company to call into the bargaining conference more informed officials. On October 20, Respondent produced no further infor- mation. A discussion ensued about the need to educate employees about the nature of the program, which in- volved several optional features. Recognizing the time re- quired for indoctrination and reenrollment prior to De- cember I, Hoyman testified that he felt compelled to agree to the installation of the program. By two letters of October 27, Respondent sent the Union (1) listings of covered hospital and medical expenses and a surgical costs schedule pertaining to the new program and (2) with the indication that "the formal agreement [cover- ing the existing program] which is still in course of prepara- tion is still not complete," a copy of a letter of agreement from Provident, dated April 14, 1976, setting out a premi- um adjustment policy, a list of premiums in effect as of November 1, 1975, and an employee certificate of insur- ance, showing prevailing coverage. A document subpenaed by General Counsel shows that a copy of the Provident letter of agreement had been sent by Respondent's insur- ance department to Roanoke Rapids on September 16: that same communication also enclosed a representative Premium statement which was never presented to the Union; rather, only selective information from the state- ment was extracted and mailed to the Union on October 27. Hoyman testified that at some uncertain time he had asked for evidence of the business relationship between Provident and Respondent, in the absence of a formal doc- ument. The letter of agreement and the premium statement were sent from New York to the Roanoke Rapids compa- ny negotiators on September 16, pursuant to a "telephone conversation," "for your use with the Union." Why the negotiators held back this data until October 27 is unex- plained. On December 2, the day after the new program took effect, Respondent mailed the Union a copy of the just- expired formal agreement which, the cover letter notes, "was recently completed and received by us." An exhibit shows that the policy was mailed to Roanoke Rapids from New York on November 17. On its first page, the policy states that it was executed by Provident on "September 23. 1976." Documents subpenaed by General Counsel show that in May 1976 Respondent's insurance department had pre- pared and issued a lengthy analysis of a proposed overhaul of the existing insurance programs, an analysis authorized in February 1976. Respondent's Industrial Relations Com- mittee, including Jelks and Little, discussed the new pro- gram at a July 13 meeting. Detailed analysis appears there- after, and by August 31 A. R. Treadwell, Respondent's Insurance Manager, had already awarded a contract, at around $30,000, to an insurance consultant for a "commu- nications project" which would prepare supervisors and employees for the revised program. In a memorandum on Union specific coverages- life with the cost of what each costs Hoflman stated that he calls this consumer information. Hoyman stated that the Union wants seller and buyer information." that date, Treadwell noted that the consultant would re- quire 3 months to "create the needed package of communi- cations material" and set out a detailed schedule for intro- duction of the program, including the designation of November 23- December I as the dates for "meeting lead- er training session." December 1-7 for "[e]mployee audio visual presentations," and December 6-31 for "the enroll- ment process." 4 The initial audiovisual slide script draft was to be delivered to Respondent by September 17. By September 2, the consultant had already prepared a second draft of a letter setting out the "highlights" of the new program: it was sent to Jelks on that date. On or about September 29. the day on which the Union received the "Principal Features" document, a handout describing the major features of the program was distributed to employ- ees at the unorganized plants. General Counsel primarily focused at the hearing on two aspects of the Respondent's treatment of the Union vis-a- tis this benefit improvement. The first relates to Respon- dent's parceling out of information to the Union regarding the new program. The issue again arises of whether Respondent dealt in bad faith with the Union by unnecessarily concealing in- formation. The subpenaed documents do not establish de- finitively when Respondent finally and comprehensively decided upon the terms of the Program. Little testified that he was "reasonably certain" that the final feature the amount of free life insurance-was not decided upon until September 23. Presumably Respondent could have pre- sented more authoritative evidence on this issue; it did not. The assertion seems belied by the fact that on September 29, only 6 days after September 23, Respondent handed out to all unorganized employees a glossy, multicolored pamphlet describing all major benefits of the new program, including the amount of free life insurance. Whatever the facts as to the final determination regard- ing the life insurance, however, it certainly seems clear that the other features of the program. including the compre- hensive medical plan, had been settled on substantially be- fore September 2, when the first brief notice was given to the Union and, simultaneously, to the nonunion employ- ees. Little was quite aware, when the parties discussed on August 6, 12, and 13 the Union's request of the first date for insurance information, that a new program was on the way. It would appear that since the Union was obviously engaging in an effort to study the existing program, a mea- sure of good faith should have led Little to at least suggest that the Union suspend such an investment of energy due to the Company's contemplation of a major overhaul of the insurance program. Little, instead, sat there and dis- cussed the requested information without any indication of the effort then underway to revise the benefits. Respondent's insistence on according the Union parity of treatment with the unorganized employees was adhered to in this instance. The subpenaed documents show that many major decisions had already been made by Septem- ber 2." Yet, on September 2, the Union was given only the 4t Ihis schedule was subsequently accelerated by I month. A letter of July 29 from Respondent to its insurance consultant con- tains a detailed analysis of "Monthly Premium Rates For Proposed (Com- prehensise Plan." On July 30, Stevens sent to its consultant the group insur- 758 J. P. STEVENS & CO., INC same unspecific announcement that the nonunion employ- ees received that day. Even accepting Little's less-than-cer- tain testimony that the program could not be considered totally settled until September 23, it seems undeniable that virtually all major features of the plan were in place before then. Nonetheless, it was only on September 29 that the Union received a brief description of the highlights of the plan, which was simply a paraphrase of the printed hand- out given to the employees that day. Why the Union could not at least have been notified of the details of the plan on September 23, when the life insurance amount was pur- portedly determined, is not disclosed by the record. Even if it be assumed that an employer is not required to inform a union of a proposal until it is finally developed, it nonetheless seems evident in the circumstances-the pro- posal of a major and complex change in insurance bene- fits-that Respondent's insistence on such a right, to the point of refusing to volunteer information which it assured- ly knew would not change, betrayed a lack of concern with the Union's need to have basic information as soon as it was available. "While GE may have believed that it was acting within its 'rights' in offering a take-it-or-leave-it [in- surance improvement] proposal, doing so may' still be some evidence of lack of good faith . . . GE's attitude on infor- mation was characterized by a pettifogging insistence on doing not one whit more than the law absolutely required." N.L.R.B. v. General Electric Company, supra, 418 F.2d at 757. The perpetuation here of the pattern of feeding the Union only as much information as the nonunion employ- ees were receiving suggests a form of game-playing antith- etical to the notion of good faith. I doubt, however, that such an inference may be drawn from Respondent's failure to furnish the Union a copy of the existing specimen policy between Respondent and Pro- vident. As unlikely as it may seem, the evidence shows that although Provident drew up such a policy in 1971, the par- ties never executed it and never kept it up to date. Revi- sions in the 1971 agreement were made by understandings reached between the carrier and Respondent. In 1976, there were a number of items in the 1971 policy which obviously did not apply; there were oral agreements which had since been reached; and there was a general lack of certainty as to what the nature of the insurance contract was. It developed that only a handful of changes had to be made in the 1971 specimen policy to make it current, but that could not be known until Respondent and Provident had worked together to agree upon the terms of their obli- gations to each other. It is true that Respondent could have given the Union a copy of the unexecuted 1971 specimen policy with the warning that it was incorrect; that would ance budget assumptions for fiscal 1977. noting for inclusion in the "Budget Assumption for Fiscal Year 1977" an announcement of an "increase in company cost of 40%" to "accommodate Group Insurance developments anticipated for Fiscal Year 1977" Attached was a worksheet showing. un- der the heading "Cost of Plan Improvements effective 11 I 76 or 12/1/76." a money figure relating to "Items reviewed with J.D. Finley Whitney Stevens." The requests to insurance consultants for bids on ihe "communication project" went out on August 19. The implementation schedule was outlined in the memorandum of August 31. and a second draft of a "highlights" announcement had been prepared by September 2. have been of no assistance to the Union. It seems to me that Respondent's negotiators acted sensibly in accepting the advice of its insurance department that the old speci- men policy did not reflect the current agreement and should not be supplied to the Union. Respondent's treatment of other data is not so defensi- ble. As noted, a letter of agreement sent to Roanoke Rapids by Respondent's insurance department on Septem- ber 16 was not furnished to the Union until October 27. Similarly. a representative premium statement also sent to Roanoke Rapids on September 16 was not sent to the Union until October 27, and then only in truncated form. No explanation was offered for this delay. A like delay attended the receipt by the Union of the newly composed "old" insurance agreement. Although it was mailed to Roanoke Rapids on November 17, it was not supplied to the Union until December 2, the day after the new pro- gram became effective. Akers attributed the delay to hav- ing "checked [the policy] out against the information that we had already given to the Union to see if it indeed was correct . . . we reviewed this policy to see if we could find out anything about whether it was correct or there were any errors in it." Why the Roanoke Rapids negotiators thought themselves in a position to detect errors in the newly-executed policy sent from New York is unexplained. Here again, the steamroller effect on the represented em- ployees may be seen. The Company quietly prepared a ma- jor new program. It parsimoniously released information to the Union on September 2 and 29, and only so much as it simultaneously made available to rank-and-file employees at unrepresented plants. As the effective date drew near, the Union. recognizing the time constraints, agreed to the program, and only thereafter received relevant information which Respondent had in its possession 6 weeks before it was dispatched. Given Respondent's conduct and the intri- cate character of the program (fully developed by at least September 23 and intended to go into operation by De- cember 1). it seems quite unlikely that Respondent was ever sincerely inclined to bargain about this benefit im- provement at Roanoke Rapids. I take note of the fact that on October 20, even before it agreed to the program, the Union had already prepared leaflets for distribution to employees hailing a victory at the bargaining table. I do not doubt that the Union's previ- ous experiences led it to assume that there would be no real bargaining. I further note that in this case, as in prior in- stances, the Union's leaflets announcing the benefit in- creases proclaimed the improvements as glowing examples of the Union's bargaining prowess. These misrepresenta- tions and one thing the Union surely knew was that the benefits had not in fact been won by skillful negotiating- are not to be condoned. In a larger sense, however, I think that the Union was not far off the mark in attributing the improvements to its own efforts (in organizing, however, and not in bargain- ing). A study made by Respondent's insurance department in May 1976 contains the following: "The move to provide employees with their coverage without requiring a contri- bution is virtually complete within the textile industry. In this aspect, the group insurance program provided by Ste- vens is not competitive and is very vulnerable to employee 759 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relations problems." (Emphasis supplied.) This euphemistic reference suggests Respondent's sensitivity to the Union's ongoing campaign at its mills and further suggests that many benefits may indeed have flowed simply from the Union's persistent presence. G. The 1976 Pension Plan Another series of events which all parties treat as falling within this general category, although not the subject of a separate allegation, involves Respondent's establishment of a pension plan in 1976. Early in the negotiations, the Union had proposed the creation of a pension plan; the hourly employees then had no such program. On April 1, 1976, Respondent made an audio-visual presentation, complete with slides, to its em- ployees at all plants. The presentation focused on four items: the annual report on the profit-sharing plan for the past year; an announcement that "the Company" had made the profit-sharing fund arrangement with Equitable; a description of amendments to the plan made pursuant to the Employee Retirement Income Security Act (ERISA); and an announcement that the Company had decided to put into effect a pension plan for hourly employees. The slides and narrative pertaining to the latter subject were deleted from the presentation at Roanoke Rapids. Also on April 1, Bush was informed at a grievance meet- ing of the intention to establish a pension plan. The notifi- cation was given in accordance with a document, supplied pursuant to a subpena, entitled "Initial Contacts With Union on Pension Plan and on Change in Profit-Sharing Plan." The document begins, "On April 1, in one of the frequent daily grievance meetings, the following statement will be made to the Union." It then goes on to set out a four-paragraph statement which announces the intention to create a pension plan, asserts that there are not as yet "specific provisions to offer on this," and declares a readi- ness to present the provisions when they become available and to "enter into such discussions and negotiations on the subject as you may wish." The scenario then provides that later that same day a letter, containing essentially the same material as in the oral notification, would be hand-deliv- ered to Bush or Jones in Roanoke Rapids, with a copy to Hoyman in Charlotte. The text of the letter is set out. None of Respondent's witnesses recall seeing or being aware of this script, which was subpenaed from Jelks' files. 45 At the next bargaining session, on April 13, the Union sought details of the pension plan, and Little said they were being developed and would be furnished later. At this meeting the Union orally increased the amounts of pension entitlement contained in its own proposal. On April 22, Respondent mailed the Union a 2-1/2-page document enti- tled "Principal Proposed Terms for Pension Plan," with a letter denoting the document as an "outline of principal terms" which were being proposed and offering to "contin- 4A The announcement to the Union also makes fleeting reference to the transfer of profit-sharing assets to Equitable, but is less specific than the presentation made to the employees on that same day, since no mention was made to the Union of the amount of assets transferred or the interest rate secured. ue our bargaining with you on this matter at any mutually convenient time." Essentially the same material was, at the same time, distributed to all the unorganized employees at the other plants. At the May 6 negotiations, the pension plan, and its in- terrelationship with the changes in the profit-sharing plan, was discussed. The Union requested more detail than was contained in 2-1/2 pages: Respondent said the details would be supplied later. On May II, Respondent hand-delivered to Hoyman's office a fully developed 35-page pension plan, entitled "Proposed Terms," and indicated a desire to discuss the plan at the next meeting, on May 13. At that meeting Hoyman stated that he had received the plan at another bargaining location the preceding day but had not had an opportunity to read it. The plan was nonetheless discussed. At this meeting the Union informed Respondent that it did not think it could be ready to bargain about the pen- sion plan for aobut 3 weeks. The Union's position pro- voked a strong reaction from Respondent-a letter on May 14 expressing a desire to proceed with neogtiations "just as soon and as frequently as possible" on this "matter of very present importance" and another on May 20 expressing "increasing concern" about the Union's persistent delay despite Respondent's "urgent letter" of May 14. The May 20 letter also noted that management hoped to present the pension plan for adoption at the board of directors' meet- ing of June 17 and closed with a renewal of Respondent's "urgent request" to meet "as soon as possible and as fre- quently and as steadily as may be needful." At the next meeting, on June 10, the Company supplied some requested information. The Union proposed, inter alia, an increase in the back service credits; Little replied that the Company thought its proposal generous. On June I I, the Company reiterated its desire to present the plan to the board of directors on June 17. Hoyman spelled out some reservations about the plan but agreed to its institu- tion at Roanoke Rapids. Subpenaed documents show that Respondent had been developing the pension plan since at least January 1975 and by February 1975 had prepared a 34-page draft. The plan had not been put into final form as of April 1976; the parties stipulated that an April 19 draft was the first to employ a flat benefit formula which "resulted in substan- tially different monetary pension payments to employ- ees." 47 There can be no doubt, however, that Respondent had in fact decided by April I, when the announcement was made, to adopt a pension plan and that after April 19 there were only minor changes.48 Despite this background, Respondent again followed the pattern of keeping the Union abreast of its unorganized employees-and no more. The Union received an unspe- cific notice of the plan on Apri! I, and so did the nonunion employees. The Union was given the "Principal Proposed The Union's merger convention began on June I. Judging from the draft which succeeded the deleted material. the '"for- mula" simply was the amounts of entitlement for years of credited service. 48 A "revised draft" sent on May 4 to, inter alios. Jelks and Little. notes that the changes from an April 30 draft "principally involved the inclusion of definitions of 'Hour' and 'Affiliated Company.' and some additions to the sections on continuous service and credited service." 760 J. P. STEVENS & CO.. INC. Terms" on April 22, and so were the nonunion employees. Although there was, at least by April 19, a draft plan which can fairly be said to have been sufficiently developed to permit bargaining, with any caveats thought to be neces- sary, Respcndent neglected to furnish a full draft until May II. How the Union was supposed to engage in bar- gaining about a subject as complicated as a pension plan on the basis of the 2-1/2-page "proposal" mailed on April 22 is anyone's guess; nonetheless, despite the availability of a full-length draft, the letter forwarding the 2-1/2-page document proposed "bargaining with you on this matter at any mutually convenient time." 49 What is rather amusing about this particular episode is the correspondence from Respondent in May, expressing the "urgency" it felt about the need for union capitulation. On none of the prior occasions had it evinced such a seri- ous concern. One is left to speculate as to the existence of an "urgent" desire to present a neat pension package to the board of directors at the June 17 meeting, and then to the Internal Revenue Service, without the potential complica- tions arising from the omission of one group of employees from the plan. That the Union may have derived a certain pleasure from having, for once, at least a hand on the wheel is also, of course, speculation. There is an awesome demonstration of gall in Respon- dent's decision to silently work at preparing the pension plan for more than a year, withhold the draft until May I I, and then, a few days later, begin badgering the Union about the necessity for rubberstamping it before June 17. It is clear that rubberstamping is an appropriate characteriza- tion here of what Respondent wanted. Little testified, in fact, that although the Union did "suggest that the compa- ny consider liberalizing" the back-service credits, "may have" suggested a change in the surviving-spouse benefit, and asked that consideration be given to a jointly adminis- tered plan he "did not consider these to be proposals." 50 Plainly, Little had a single objective in mind, and that was not negotiating.5 H. The ERISA Amendments A final subject of litigation, not alleged as an indepen- dent violation but which, General Counsel asserts, "pro- vides additional evidence of Respondent's bad faith," per- tains to the amendment of the profit-sharing plan to bring '9 That the basic terms contained in the document were fixed enough to constitute a firm proposal is evident, which would indicate that the plan was virtually fully decided upon by Apnl 22. 50 Respondent's minutes show that on June 10 Homan "stated that the Union would like some representation in the administration" of the plan. that Little replied that the Company "did give consideration to," hut had rejected. that idea (one of the more unliket? representallons made in the course of this bargaining): that Du Chessl asked If "the (ormpans was turn- ing down the Union's proposal." and that [.title said the Co(mpan did not consider "the I nion's proposal" to be acceptable. 51 Respondent points to an April 21 memorandum from general counsel Foster to board chairman Finley as evidence of its flexible attitude. In the memo. Foster reports that he called the "outside" directors to prepare them for approval of the plan and. in noting their remarks, states that "Mr Brown commented that there might he some changes resulting front the negotiations at Roanoke Rapids" While that ma5 he read as suggesting Brown's amenability to change. the comment of an "outside" director does not seem to be of much significance. it into conformity with requirements established by ERISA. While not of the "Hobson's choice" stripe, the is- sue seems best included in this section. I see no need to detail the facts. Respondent began pro- posing to the Union in December 1975 some plan amend- ments required by ERISA. As to one of the subjects, the vesting provision, the statute permits several options. The Union expressed an interest in studying the permissible al- ternatives other than the one selected by the Respondent. The Respondent provided some requested information. On March 3, 1976, the Union said it was agreeable to the insti- tution of changes which the Company "felt weye specifical- ly required by law," and, according to the Company's notes, a similar discussion took place on March 23. In the latter, according to the notes. even though the Union plain- ly evinced interest in vesting options other than the one selected by Respondent, Hoyman stated that he "would not endorse each amendment individually but on a broad genral basis" and that "the Union will take the new changes and see what they can do with them." This state- ment was in reply to Little's remark that "the Company interpreted Hoyman's [previous] response as to proceed with the changes." On April 1, in the slide presentation to all employees, Respondent included an announcement of the ERISA changes, including the vesting option. Since the vesting option announced on April 1 was, as the Union understood from correspondence with Respon- dent, subject to further amendment until the end of 1976, it may well have been that the Company understood Hoy- man to be saying that he would agree to the amendments as presently proposed but would continue to analyze the permissible vesting provisions for a more suitable alterna- tive. To the extent, therefore, that the asserted inference of bad faith is predicated on Respondent's simply ignoring an expressed desire by the Union for further consultation, I am not persuaded. There was room for misunderstanding. On the more basic question of Respondent's willingness to modify its proposals in the first place, that seems unlike- ly, taking into account its characteristic intractability, as discussed above, and, more particularly here, the fact that the "proposals" submitted to the Union in December 1975 were in page proof form. While a letter from Respondent averred that "no implication of finality" was to be derived from such a format, it does give rise to some inference of commitment. That inference is substantially confirmed in a February 12, 1976, letter from Respondent's general counsel Foster to Morgan Guaranty, sent while the ERISA amendments were still being negotiated, enclosing a "Printer's Proof of the Plan, as amended." That Respondent believed that the amended plan was already fixed in substantive content is disclosed by the following sentence: "There may be some further minor technical chances before it is filed for ap- proval, but none will alter the powers of the Plan Commit- tee as general administrator of the Plan...." 1. ConclusiorL as to Bad Faith As earlier stated, the isolation of the "Hobson's choice" allegations from the many instances of "bargaining" occur- nng throughout this period seems somewhat artificial. I am 761 DECISIONS OF NATIONAL LABOR RELATIONS BOARD convinced, however, from the particulars and the totality of the evidence discussed above, as well as that analyzed hereafter, that in these instances Respondent did not bar- gain with an attentive ear and a responsive mind. Accord- ingly, I conclude, with regard to the profit-sharing supple- ment, the 1975 and 1976 wage increases, and the group insurance program, that Respondent entered upon negotia- tions with a closed mind and a determination not to devi- ate one iota from its proposals, thereby violating Section 8(a)(5). Vll. THE ALLEGATION OF BAD-FAITH BARGAINING A. The Relevant Standard The principal allegation in these cases asserts that, in their collective-bargaining negotiations, Respondent "ne- gotiated with the Union in bad faith and with no intent of entering into any final or binding collective-bargaining agreement." The parties first met for the ostensible purpose of negoti- ating a bargaining agreement on October 31. 1974. Be- tween that date and November 11, 1976, just prior to the commencement of this hearing, they had met some 60 times in formal bargaining sessions. The General Counsel argues that various facets of Respondent's conduct during this period, both at and away from the bargaining table, give rise to an inference of bad-faith bargaining by Re- spondent. I am persuaded that the claim has substance. It is useful to set out here the familiar principles applica- ble to the issue. Section 8(a)(5) forbids an employer "to refuse to bargain collectively with the representatives of his employees ... " " [TIo bargain collectively" is defined by Section 8(d) as "the mutual obligation ... to meet at rea- sonable times and confer in good faith with respect to . . . the negotiation of an agreement...." An authoritative statement of the duty imposed by the statute appears in N.L.R.B. v. Insurance Agents' International Union, AFL CIO, 361 U.S. 477, 485 (1960): Collective bargaining is something more than the mere meeting of an employer with the representatives of his employees; the essential thing is rather the seri- ous intent to adjust differences and to reach an ac- ceptable common ground. The foregoing standard has been recast by the courts in various ways: "to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agree- ment . .," Globe Cotton Mills v. N.L.R.BR., 103 F.2d 91. 94 (5th Cir. 1939); and "unpretending., sincere intention and effort to arrive at an agreement." N.L.R.B. v. Stanislaus. Implement and Hardware Company, Ltd., 226 F.2d 377. 380 (9th Cir. 1955); "the requirement that the parties honestly attempt to reach an accord." United Steelworkers of Amer- ica, A FL-CIO v. N.L.R.B. [Roanoke Iron & Bridge Works, Inc.], 390 F.2d 846, 850 (D.C. Cir. 1967). The standard described is usually characterized as diffi- cult of application. The emphasis, however, on the requi- site "serious," "sincere," "unpretending," "honest" inten- tion to "adjust differences," "to reach an acceptable common ground," to "arrive at an agreement," affords a helpful approach for evaluating an employer's perfor- mance. While it is recognized as a general proposition that an employer is not required to make concessions or to yield any positions fairly maintained (N.L.R.B. v. American Na- tional Insurance Co., 343 U.S. 395, 404 (1952)), the courts have equally acknowledged the authority of the Board to examine those positions in order to determine whether the employer has made a "sincere" effort to "adjust differ- ences." Adroitness, it is recognized, may sometimes be em- ployed to mask insincerity of purpose " [Blad faith is pro- hibited though done with sophistication and finesse. Consequently, to sit at a bargaining table, or to sit almost forever, or to make concessions here and there, could be the very means by which to conceal a purposefull strategy to make bargaining futile or fail." N.L.R.B. v. Herman Sau- sage Co., Inc., 275 F.2d 229, 232 (5th Cir. 1960). For that reason, "[lit seems clear that if the Board is not to be blinded by empty talk and by the mere surface motions of collective bargaining, it must take some cognizance of the reasonableness of the positions taken by an employer in the course of bargaining negotiations." N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 134 (Ist Cir. 1953); N.L.R.B. v. Holmes Tuttle Broadway Ford, Inc., 465 F.2d 717, 719 (9th Cir. 1972). The cases do no more than require that employers re- spect the "policy of the United States," declared in Section I of the Act, of "encouraging the practice and procedure of collective bargaining...." When engaged in negotiations, it is not enough that they "sit almost forever" at a bargain- ing table and "make concessions here and there." They must, rather, be animated by a "serious intent to adjust differences." The distinction is subject to figurative expres- sion: an employer may not sit slouched in his chair at the bargaining table, politely discussing terms of employment and occasionally glancing at his watch; he must perch on the edge of his chair, hunched over the table, doing his utmost to reach "an acceptable common ground." B. The Evidence Establishing Bad Faith In assessing the presence or absence of subjective state of mind such as good faith, the "totality of the employer's conduct exhibited in the circumstances of the instant case." Sweeney & Companv, Inc. v. N.L.R.B., 437 F.2d 1127, 1135 (5th Cir. 1971). "all the facts viewed as an inte- grated whole," Stanislaus Implement and Hardware Co. v. N. L. R. B., supra at 381, are considered. The General Coun- sel here relies particularly on certain discrete items in sup- port of his claim of bad faith, eschewing any significant reliance upon other factors sometimes referred to in these cases. There is no assertion that Respondent refused to meet on a sufficient number of occasions. There is no claim, except for a minor incident, that Respondent re- neged on agreements, or made egregiously untimely or confusing modifications of proposals. In a number of re- spects, the conduct of Respondent was the sort of behavior which may be pointed to as some showing of good faith. Nonetheless. having considered the entire record, I con- clude that Respondent sat, talked, proposed, and listened for 2 years without the slightest intention of attempting to compose differences with the Union and reach a bargain- 762 ing agreement. I rely for this conclusion on the following circumstances: 1. The contemporaneous speeches Pursuant to General Counsel's subpena, Respondent produced copies of three speeches given by officials of Re- spondent in August 1976 at plants other than Roanoke Rapids. Speaking to employees of the West Boylston, Alabama, plant about the Union's then-active organizing campaign, General Manager Gregory made the following statements in the course of a hard-hitting speech: Our Company has approximately 85 plants and more than 40,000 employees. This plant has less than 500 employees. Yet when Stevens raises wages, it nev- er overlooks this plant. You get the same wage raises and increased benefits, right along with all the Stevens plants and right along with the largest of them. It is only recently that you, along with all the Company's employees, received a sizable increase. On top of that, you have also recently been given an im- proved guaranteed pension plan. If you will think a moment, you will realize that without fail, this Company is raising wages and im- proving benefits steadily and dependably-right along each and every year. Do you really think it's likely-does it stand to rea- son-that if you were to form a Union here at West Boylston, the Company would then give to you higher wage increases and benefits than it has given to any of its 40,000 other employees? The Unions have been pressuring Stevens in every way possible for many years. There is not a thing that they can do to Stevens that they haven't already tried before. Yet they have never forced this Company to give to employees in any plant any wage increase or benefits of any kind that it did not give in its other plants. Upon facts such as these, it is really common sense to believe that by starting a Union up down here at West Boylston, the Company would give in to your Union and come down and put into effect here higher wages and benefits than it has anywhere else? Whoev- er believes that-is not thinking or reasoning very clearly. Virtually identical speeches were given by Plant Manag- er Wall at Stevens' Milledgeville, Georgia, plant, and by General Manager Griffin of the South Boston Group, at Respondent's Angle and Ferrum plants in Virginia. Direct evidence of an intent not to engage in serious bargaining is rare, but this is one of those cases where it is available. This sort of communication to employees at other plants has been considered "revealing of an intent not to engage in good faith bargaining," N.LR.B. v. Inter- national Shoe Corporation of Puerto Rico, 423 F.2d 503, 505 (Ist Cir. 1970). An appraisal of the speeches makes clear the presence here of the proscribed intent. The portion excerpted carries one simple, vivid theme: that the existence of a union has J. P. STEVENS & CO.. INC. never "forced" Respondent to prefer organized employees over unrepresented ones, and it never will. That theme has, for our purposes, two implications. One is the explicit ex- pression of Respondent's state of mind, evidencing a reso- lute rejection of the possibilities of collective bargaining. Negotiator Little worked out of the Industrial Relations office in Greenville. These speeches were unquestionably prepared at that location. It is simply inconceivable that the same office which drafted speeches vowing that collec- tive bargaining would never result in increased benefits would be capable of sending to the bargaining table a neg- otiator willing to prove otherwise. The second implication of the speech is its foreseeable restraint on Respondent's ability to enter into an agree- ment bestowing benefits on unionized employees more fa- vorable than those being received by its unorganized work- ers. Given Respondent's untiring resistance to unions over the years, of course, no speeches are necessary to the logi- cal assumption that the most single damaging blow to that resistance would be for Respondent to prefer unionzed em- ployees over the others. The Union, waging a widespread campaign throughout Respondent's plants, would pre- dictably hurdle the barricades if its arsenal included the ultimate weapon-a favorable contract. In recognition of this very real fact of life, Respondent, in the speeches, threw down the gauntlet. In words too plain to be misconstrued, Respondent promised its unorga- nized employees that it would never betray their trust by granting conditions of employment to union-represented employees more beneficial than those enjoyed by the un- represented employees. Respondent could naturally antici- pate that the slightest crack in this posture would reveal to the unrepresented employees the potential of unionization, which relevation in turn would incite the avalanche Re- spondent had been successfully forestalling for many years. Having assumed such a position, Respondent could not possibly recede from it. 52 For the foregoing reasons, I find that the August 1976 speeches, made contemporaneously with the Roanoke Rapids negotiations. constitute significant evidence of Re- spondent's mindset at the bargaining table.5 - here is. curiousl. a dearth of direct evidence as to whether Ihe pack- age of benefits offered h5 Respondent during the Roanoke Rapids bargain- ing exceeded in ans wax or simply equaled the already existing benefits Hoiman testified, however, that on June 13. 1975. he told Respondent's negotaltrs that "all of the proposals that they had given us In regaard to fringe benefits represented absolulel) no change whatsoever from the fringe benefits which were In effect prior to the Lnion winning the election in August of '74." the ('ompan)'s notes for that meeting full' corroborate lna)tman lfies also show that Little did not dens the claim bhut simpl replied. 1Mu )e assure ,you we ,ill give. we will continue to give these mat- tcrs ser:us consilderation "The testimon) of FitIs. on ross-examinatlion hb the Charging Partn. also indicates that Respondent's proposals did not vars ans existing henefits Presumably It .would have been helpful Ito General C(ounsel's case ti es- ta.,blh thil the proposed benefits did nio more than maintain the status quo In mn \ ie.. lihocer, esidellce that Respondent was proposing increases In fringe benefits secr those currently being recelred hb other emplhsce v.ould haoe beeC escn more .aluable ti Respondent's .rgunment In absence if such prl, f. and In stie iif }losman's uncotltradltcld tesrimony. I must assume that no Increased fringe benefits I( do not consider such items as access to bulletin boards) were being propo sed by Respondent Ini addmion, the speeches, promising exact parit among ernploseer. ( 'onlnuJed 763 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The dilatory submission of counterproposals General Counsel points to the sluggish flow of counter- proposals by Respondent as evidence of its lack of serious intent to engage in productive bargaining. On October 31, 1974, the Union presented proposals, three of them somewhat incomplete, on 17 subjects. On November 8, the Union mailed Respondent eight more proposals, five of them incomplete. On December 11, the Respondent presented eight substantive proposals; three of these separately addressed the three subjects included in the Union's recognition clause, i.e., recognition, work by supervisors, and nondiscrimination. On December 12, the Union completed most of its earlier incomplete proposals. With two exceptions, seniority and workweek, as to which the Union was seeking information, this substantially com- prised the Union's contract proposals. On January 8, 1975, the Respondent submitted redrafts of three of its earlier proposals and, as well, three new proposals. On January 20 and 21, the Respondent submit- ted a third draft of its recognition clause, a second draft of five other proposals, and five new proposals. On February I 11, the Company presented a one-sentence proposal on shift premium pay in response to a one-sen- tence proposal completed by the Union on December 12. a second draft of two other proposals, and a third draft of another. On March 4, the Company submitted a two-sen- tence no-dues-checkoff clause in repsonse to the Union's checkoff proposal of November 8 and a one-sentence in- surance proposal replying to the Union's proposal com- pleted on December 12. On March 11, Respondent submit- ted a 1/2-page profit-sharing and retirement benefits proposal in answer to a union proposal initially offered in incomplete form on November 8 and completed on De- cember 12; a term of agreement clause in response to a similar provision offered by the Union on November 8; and a rates of pay clause (calling for payment of existing wages) in response to an incomplete union proposal of No- vember 8, which was completed on December 12. On March 26, Respondent for the first time submitted proposals on such significant items as safety and health (the Union's proposal was made October 31), workweek, hours, and overtime (the Union's first proposal was on Oc- tober 31), and a complicated proposal on pay practices (the Union had made no prior proposal), as well as a revised draft (its third) on holidays and holiday pay. On April 19, the Company submitted its first (2-1/2-page) proposal on the important subject of work assignments, responding to a lengthy and virtually complete union proposal submitted on November 8. On August 13, Respondent submitted a proposal on the subject of strikes and lockouts, in answer to a union proposal on that subject handed to the Compa- ny on October 31; the proposal was drafted at the behest of the Union, which had been urging Respondent to formal- ize its position that since there would be no arbitration, the Union would be free to exercise its "economic strength." leave no doubt that the "bargaining" about the estracontraclual benefit improvements earlier discussed was, insofar as the Union might have hoped for substantial variation, mere formality. According to the Company's notes, unconvincingly disput- ed by Little, Respondent had promised 7 months before, on January 9, that it would furnish such a proposal at the "next meeting." There was delay on both sides in preparing a seniority proposal. On December 5, 1974, the Union, noting earlier discussions on the subject, wrote the Company that it had not yet made a proposal on seniority because of its lack of knowledge of the existing operations and practices. The Union requested some equal employment data and asked the Company to furnish "at least an outline" for an accept- able seniority system. The requests were apparently dis- cussed on December I I, and on December 30 Respondent wrote a letter on the subject of the "working out of propos- als on the subject of seniority," which simply suggested that both parties be prepared at the next meeting to discuss "what provisions on the subject of seniority would be prac- tical and workable and at the same time in keeping with the equal employment oppurtunity laws." The subject was again discussed on January 9, and on January 23 the Com- pany provided the Union with the information requested on December 5. A title VII action then pending against the Company required the Union to examine the "volumi- nous" papers in that action. On April 30, 1975, the Union submitted its seniority pro- posal; the issue was thoroughly discussed on that day and the next; and the Union again asked the Respondent for "some kind of initial or preliminary proposal" on seniority. The Respondent submitted no proposal on seniority until September 23, 1975, about 11 months after bargaining be- gan. The compainy proposal would have, in part, reoriented the seniority system from departmental to plantwide. Little explained Respondent's delay in submitting a se- niority proposal as attributable not only to the inherently complex nature of the subject matter but also the Respon- dent's problems in understanding the manner in which the Union's proposal would operate, which had consumed considerable time at the bargaining table, as well as the pendency of the title VII action, which could be antici- pated to affect the substance of the seniority provision. Little conceded that on "several occasions" the Union asked for a company proposal on seniority and that on June 13, 1975, he said Respondent was working on one and hoped to submit it soon. Despite the fact that most of the problems had existed from the beginning of negotiations, however, Little testified that it was not until July 10, 1975, that he asked Hoyman to think about the possibility of deferring on the subject of seniority. When Hoyman op- posed the suggestion, the Company submitted its proposal some 2-1/2 months later, which would indicate that it had not seriously begun work on it before July. As of the time of the hearing, very little progress toward agreement on a contract had been made. Proposlas cover- ing approximately 28 subjects were laid on the bargaining table (taking into account that some separately labeled proposals from each side addressed the same basic subject matter). Only seven articles have been tentatively agreed to.54 It is worth noting that it took nearly 5 months from "4 I do not include an informal agreement imade at the first bargaining .esmsin relitlin to union access to the plants 764 J. P. SIEVENS & CO.. IN(' the time of the union proposals in October 1974 until the ice was broken by the Ulnion's agreement to accept Re- spondent's recognition clause in March 1975; that the sec- ond agreement. on the Union's nondiscrimination lan- guage. was not reached until some 8 months thereafter, in November 1975; and that no further agreements were made for 8 months, until the complaint in this case was issued on July 1. 1976. Then, in a bust of amity, four more articles (on probationary employees, educational courses. jury duty pay, and bulletin boards) were agreed to between July 21 and August 13. While I have not detailed all of the facts pertaining to the exchange of proposals, it is fair to characterize the Company's response to the Union's proposals as phlegmat- ic. The great bulk of the Union's clauses had been fur- nished by December 12, 1974. The Respondent doled out its proposals in miserly fashion thereafter, sometimes al- lowing 5 or 6 months to pass without counteroffer. Al- though the Company often furnished three or four drafts of proposals, they were, by and large, minor modifications of its original proposals on the subjects: it took, altogether, four drafts, the last submitted on June 13, in order for the Company to conform its holiday pay proposal with the company policy. Respondent's delay in furnishing a senior- ity proposal cannot be adequately explained by the pend- ing title VII action or the other excuses advanced, consid- ering the fact that the Union had been urging preparation of such a proposal for many months. The company negoti- ators were not tyros at bargaining. Little had engaged in prolonged negotiations with Hoyman at the Statesboro plant. Furthermore, the record shows continuing recourse by Respondent to an experienced labor attorney. It is manifestly detrimental to the Union's preservation of employee support to delay the submission of proposals. In Bewley Mills, 111 NLRB 830, 831 (1955)., the Board found a delay of "almost 7 weeks" in submitting a counter- proposal to be a factor indicative of bad faith. Employees select a union so that a collective-bargaining agreement may be negotiated. When the employer takes 6 months or a year just to submit proposals, it can reasonably foresee the erosive effect of such dilatoriness on a union's strength among the employee population. The lack of diligence manifested here by the Respondent strongly suggests that such an effect was deemed desirable. 3. The Respondent's position on arbitration In November 1974, the Union presented proposals which provided for a grievance procedure and referral of unresolved grievances to binding arbitration. At a Novem- ber 14, 1974, meeting, the Union stated that arbitration was a "must" item. While the Respondent submitted, on December I 11, a grievance procedure proposal of its own, it took a dim view from the start of the concept of third-party arbitration, on the grounds that it did not want uninformed strangers to decide its labor disputes. When the subject was discussed on January 8, 1975, Little said that if the Union was unhappy with the disposition of a grievance after the fourth step, it "should use its economic strength." causing Du Chessi to accuse Respondent of proposing "jungle war- fare." The Union requested Respondent to fashion a spe- cific proposal about the Union's right to strike over gries- ances. On August 13. after some further urging, the Companq submitted its strikes and lockouis proposal. which author- ized the fUnion, in the event of an unresolved grievance, to call a "general strike of all the employees in the bargaining unit," accompanied by "peaceful" and "lawful" picketing. but permitted no other kind of strike and made the Union liable in damages for violating, "either directly or indirect- 1y." ani? obligation or restriction imposed in the article. On October 23. 1975, according to Little, Hoyman said the Union "could not live with" such a proposal and accused the Company of intending that result. On July 21, 1976, Hoyman stressed the fact that the arbi- tration clause was a "central proposal" by the Union, call- ing the process "one of the important social inventions of this century." He pointed out, as the Company had con- ceded early on. that Lhe Company engaged in arbitration of disputes under its commercial contracts and that the Union had reached agreements with other southern textile companies which provided for arbitration. The Respon- dent said that it had heard these arguments before. Later discussions oi1 .he subject broke no new ground. At the hearing Little restated the Company's opposition to a binding arbitration procedure. In explaining why the Respondent did not object to use of an arbitrator in disput- ed commercial transactions, in contrast to labor contract disputes. Little testified that the latter often results in deci- sionmaking by "individuals who, in many instances, have little if any knowledge of the subject matter and the opera- tions that they are dealing with," whereas commercial arbi- tration is "handled by individuals who are highly compe- tent. highly knowledgeable about the subjects that they are dealing with." Although Hoyman did not so testify, Little said at the hearing that. during the negotiations, the Union "may have" proposed, in order to assuage his concerns about an uniformed arbitrator, that technical workload disputes be assigned to a qualified time-study engineer. While aware that other mills had agreed to arbitration clauses, Little did not consult them about the viability of the procedure. His prior experience with a company which had an arbitration system led him to believe that the unfa- miliarity of arbitrators with an industry made them unde- sirable. While he had no "familianty" with permanent um- pire systems such as obtain in the steel industry, he did have "some very general and non-specific awareness that there is some sort of arrangement. I never have been clear as to what it is." In this relatively enlightened era of the industrial rela- tions revolution, it gives one pause to come upon an em- ployer refusing to agree to an arbitration procedure and proposing instead that a union attempt to call a general strike of 3,000 employees in order to resolve a grievance which may involve no more than one employee's failure to receive proper premium pay. After all, more than 17 years have passed since the Supreme Court acknowledged, in United Steelworkers of America v. Warrier & Gulf Naviga- tion Co.. 363 U.S. 574, 578 (1960), a judicially noticeable fact of life: "A major factor in achieving industrial peace is the inclusion of a provision for arbitration of grievances in the collective bargaining agreement." 765 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It came also as something of a surprise to learn that in the past the Union has entered into agreements which failed to include arbitration clauses but did contain no- strike clauses. These contracts were built on what Hoyman called the "Blakeney formula," named after the manage- ment attorney with whom the Union has often dealt. The formula omitted arbitration and dues-checkoff provisions and forbade the Union from striking. The Union's experi- ence with the package was bitter, Hoyman said, and the Union had determined early in these negotiations, and so told Respondent, not to accept such a proposal again. In an interesting discussion of the package recorded in Respon- dent's notes for November 12, 1975, Hoyman told Little that the "results have been disastrous. The locals have died. Hoyman said the Company's proposals would de- stroy the Union. Little told Hoyman he had made his point." It would seem that the clarity with which Hoyman "made his point" left no doubt about where the levers of control lay in these negotiations.5 Respondent knew the importance of arbitration to the Union, reacted as might be anticipated, and clung tenaciously to its rejection of the concept. The refusal to arbitrate thus being a given, Little slouched back in his bargaining chair. "The employer can- not claim that he satisfied the statutory obligation by sol- emnly attending bargaining sessions where checkoff was nominally on the agenda, then reciting that checkoff was being rejected as a matter of principle." United Steelwork- ers of America, AFL-CIO v. N.L.R.B., supra at 852. Little did, however, advance a reason for refusing arbitration- the fear of having uninitiated strangers settle contractual disputes. But to have allowed that apprehension to control such a profoundly important issue, grounded as it purport- edly was only in a past personal experience in which labor arbitrators had sometimes made "inappropriate" decisions, was to abdicate the statutory obligation to attempt to ad- just differences. Little distinguished the Company's willing- ness to arbitrate commercial disputes by reference to the "highly competent, highly knowledgeable" individuals who serve in such roles. But while he acknowledged awareness of the permanent umpire arrangement, he had "never ... been clear as to what it is." The salient fact, assuming, arguendo, the existence of a genuine concern about unin- formed interlopers, is that Little never attempted to supple- ment his lack of knowledge. Nor did he, again indulging that assumption, inquire of other textile mills as to their experience with the arbitration process, in order to test whether his own exposure to the system had been an aber- ration. I do not for a minute believe Little's testimony as to the reason why he rejected the arbitration concept. Even if I did, however, by his own admission Little failed to make 55 On March 4. 1975. the Union stated that "the key issues" were arbitra- lion, checkoff, and seniority. 56 I1 believe in only a limited sense Little's testimony that his superiors had not instructed the bargaining team "to agree or not to agree to arbitration": there was no need for such a specific instruction. Respondent. bargaining through Little, had espoused the same position a few years before in the Statesboro negotiations, and it is ludicrous for Little to testify that the arbi- tration proposal was rejected at Roanoke Rapids only after the bargainers "deliberated among ourselves: we came to that view of arbitration." any effort whatsoever to examine the validity of his prem- ises or to search out a workable compromise of this unmis- takably central topic. His testimony that the negotiators fended off arbitration because "'we have not been persuad- ed" is entirely too narrow a view of the statutory obliga- tion. In assessing bona fides, the Board is entitled to con- sider the employer's "failure to do little more than reject" a proposal. N.L.R.B. v. Century Cement Mfg. Co., Inc., 208 F.2d 84, 86 (2d Cir. 1953). General Counsel and Charging Party further contend that the strike clause finally provided by Respondent was "punitive," justifiably giving rise to an inference of bad faith. As noted, the clause was drawn up only after the Union insisted that Respondent define in writing its offer to allow the Union to "use its economic strength" in the resolution of grievances; apparently, Respondent had not intended to formalize the proposal. It must have been obvious to Respondent, once prodded into action, that the requirement that the Union call a "gen- eral strike of all the employees in the bargaining unit"-some 3,000 employees-whenever it desired to pro- test the resolution of a single grievance pertaining to a sin- gle employee, would have been totally unacceptable. Even in N.L.R.B. v. Tower Hosiery Mills, Inc., supra at 704, where the court inferred bad faith from a proposal on this same subject on the grounds that the employer seemingly had "cull[ed] the most drastic provisions it could discover embodied in other contracts," the provision proposed in that case would have permitted a "general or partial strike." Although the record here does not show sufficient discussion to warrant a conclusion that Respondent main- tained an absolutely adamant stand on this proposal,57" the very offer itself, as a substitute for the limited and civilized solvent of arbitration, suggests Respondent's lack of com- mitment to reaching ultimate agreement. 4. The Respondent's position on checkoff In 1974, the Union submitted a proposal providing that Respondent would, upon written authorization by employ- ees, deduct union dues from their wages and forward them to the Union, an arrangement commonly known as "dues checkoff." In March 1975, Respondent submitted a pro- posal simply providing that employees were free to join or not join the Union, and equally free to pay dues to it or not. On April 19, 1975, Little said that the Company's sole objection to checkoff was that "it would decrease an employee's take-home pay, and decreasing an employee's take-home pay increased the pressure on the Company for wage increases." Hoyman thereupon amended the union proposal to meet this objection. He proposed that the employee authoriza- tion would contain a provision automatically reducing, by the amount of the dues, other voluntary deductions cur- rently being taken from the employee's wages. Little said that Respondent would consider the amended proposal. Five bargaining sessions passed without mention of checkoff. On July 10. 1975, Respondent said that the "de- 57 There was some discussion, however, in which Little defended the con- cept of a general. as opposed to a partial, strike over gnevances. 766 J. P. STEVENS & CO., INC. duction swapping" modification did not make Respondent more content, since it had concluded that giving checkoff to the Union would result in "other outside organizations" seeking the same privilege of having moneys deducted from employees wages and would make the Company, in Little's words at the hearing, vulnerable to claims of "dis- crimination" and "favoritism" if it did not grant all such requests. The record shows that Respondent will deduct, upon au- thorization, employee payments for United States Savings Bonds, for group insurance coverage, for tools for which the employee is repaying money owed to the Company, and for a charity drive. Annually, Respondent sponsors among its employees what it terms a "Consolidated Charities Drive." The drive benefits not only the community United Way campaign and its inclusive charities but also a number of other causes to which employees may wish to contribute. The solicita- tion card lists the United Way agencies and the additional agencies chosen by Respondent and, as well, provides a blank space for employees to specify other donees. A 1973 memorandum about the drive provided, however, that its purpose was to collect funds "primarily for welfare and service agencies in our community which derive their sup- port from contributions and which do not charge fees for their services." In 1973, contributions to private schools, which are "supported by the people who patronize them plus contributions," were not to be accepted. In the Octo- ber 1974 campaign, this proscription was expanded to churches, because, according to Fitts, there had been sev- eral such contributions in 1973. The Company posts no- tices about the drive and supervisors hand out pledge cards to employees. Although Fitts testified that " [s]olicitation is a rather strong word" for what the supervisors do, his 1973 intramural memorandum to officials exhorted, "Let's all join together and make this campaign the best one ever." The only reason initially advanced for refusing checkoff was the fear of a drain on employee resources which would result in increased pressure for higher wages. Fhe Compa- ny concedes, as it must, that checkoff of dues would not, under its present system, be an administrative burden. The wage-pressure objection sprang simultaneously into the minds of the company negotiating team, according to Fitts: "IT]here were perhaps as many as two or three that expressed that almost instantly." This described genesis of the objection seems remarkably innocent of the fact that, in 1972, Respondent had taken the identical position in the Statesboro negotiations. It is also seemingly inconsistent with the fact that Re- spondent permits unlimited deductions for savings bonds and for the charity drive and, as to the latter, not only actively encourages such deductions but, in the grip of en- thusiasm, has added charitable agencies not even included in the United Way campaign. When an employer sponsors a process for some purposes which will foeseeably result in such accelerated wage demands but expresses an appre- hension of a similar result when union dues are involved, the legitimacy of its concern may be seriously questioned. The refusal became more mendacious when the Union restructured its proposal to insure that dues checkoff would not reduce take-home pay. The testimony of the company negotiators as to the manner in which they for- mulated their response to this modification is of interest. Little testified that only the bargaining committee mem- bers participated in the discussion, although he was certain that "our legal counsel was informed to keep him advised." Fitts, however, clearly remembered that it was at one of then-counsel "Blakeney's meetings" at which, with Blake- ney present, the alternative proposal was discussed for 2 or more hours. The modified proposal completely vitiated the wage- pressure argument. From the Blakeney meeting, however, a second line of defense was thrown up-that allowing the checkoff privilege to the Union would result in a "deluge" of requests by other organizations, subjecting the Compa- ny to claims of "discrimination" and "favoritism." This rationalization is sheer balderdash. As the Charging Party points out, Stevens was already "choosing among claimants." There is no indication that the Icoal churches or J. C, Penny had ever previously complained that they were being discriminated against because employees could check off money to the Boy Scouts but not to them. There was no basis for Respondent to reasonably fear that such protests would be made if it granted checkoff to the Union, or indeed, if made, that Respondent would suffer repercus- sions (would Montgomery Ward have refused to trade with Respondent's employees because it felt slighted?). Even if there had been any real substance to the asserted concern, Respondent could have certainly agreed upon a checkoff for the first contract, renewal being expressly contingent upon any perceived adverse reaction in the community. Even the most theoretically hypersensitive employer, truly concerned about that possibility, but also interested in con- cluding an agreement, might well have made such an offer; Respondent did not. There was, of course, no reason at all for Respondent to entertain such a concern. Furthermore, I feel safe in de- scribing as absurd the implicit premise that local mer- chants would somehow have failed to grasp the distincition between treatment accorded to them and to a labor organi- zation appointed by the employees as their bargaining rep- resentative pursuant to Federal law. One also feels justified in asking why, if there had been serious company delibera- tion about the Union's original proposal, this factor of community rebellion was not initially advanced along with the wage-pressure argument; in fact, it became a compel- ling consideration only when the Union rendered the first line of defense untenable. The fragile positions taken by Respondent were spuri- ous; they disintegrate upon scrutiny. The court said in United Steelworkers of America, AFL-CIO v. N. L. R. B., su- pra at 852, dealing with an employer's response to a check- off clause, that "good-faith bargaining requires 'honest claims.' " These were not honest claims. 58 Discussion of this subject is incomplete without reference to a recent contempt proceeding before the Fifth Circuit. N RB. v. J. P Stevens & Co. Inc., 538 F.2d 1152 (1976). That case concerned the 1972 bargaining at Stateshoror, which, on the chekoff issue, followed much the same pattern as here. except in two respects: at Statesboru there were no allowable deduc- tions for charities. but there was a flourishing credit union to which employ- tContinued 767 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. 1The authority of Respondent's negotiators Little's testimony as to the authority possessed by Re- spondent's negotiating team was slippery. He said that the negotiators were authorized to "enter into bargaining, make proposals, and to reach agreements" and, in doing so, had "discretion to make judgments." But he also testi- fied that in order to depart from existing guidelines on major monetary items it would be necessary to seek ap- proval from higher officials and, at another point, that "de- cision-making authority" over "industrial relations policy" resides in the "top management of the company." The two descriptions of his position defy reconciliation, unless the self-attributed "discretion" relates only to minutiae; on that reading, the extent of Little's authority was only to enter into agreements within the framework of current pol- icy, subject to exceptions being granted by top-level execu- tives. In N.L.R.B. v. Coletti Color Prints, Inc., 387 F.2d 298, 304 (2d Cir. 1967), the court said, "Under our present labor law, there certainly is no duty on the part of an employer to be represented at the bargaining table by a person with competent authority to enter into a binding agreement with the employees, although the bargainer's lack of such au- thority is a factor to be considered in evaluating the employer's good faith." And recently the Board stated "It is well established that employers may not be faulted for thier failure to give their bargaining representatives the fi- nal authority to enter a binding agreement on all contract proposals provided that the limitation does not act as a hindrance on the overall negotiations." Gulf States Can- ners, Inc., 224 NLRB 1566, 1577 (1976). Accord, Great Western Broadcasting Corporation, d/b/a KXTV, 139 NLRB 93, 130 (1962); Midwestern Instruments, Inc., 133 NLRB 1132, 1139 (1961). An illustration of the limitation-as-hindrance is found in Silby-Dalcourt Chemical Inudstries, Inc., d/b/a Miami Swim Products, and Lawrence 1. Hollander, Its Attorney, 145 NLRB 1348 (1964), where the representative was invested with the limited authority to negotiate a tentative agree- ment, was instructed not to consult with his principals about proposals during the course of negotiations, and was not informed by the principals as to the nature of their opera- tions, their economic situation, or their bargaining objec- tives. See also N. L. R. B. v. Fitzgerald Mills Corporation, 313 F.2d 260, 267 (2d Cir. 1963), where the court noted circum- ees could designate deposits. The union's alternative proposal. when con- fronted with the stoke-the-fires-of-wage-dissatisfaction contention. was to) suggest substitution of union dues deductions for existing credit union de- ductions. The company perceived the proposal as affecting the "continuing viability of the credit union." Although recognizing that " lelver) position on issues of mandatory bar- gaining, like dues checkoff, must reflect a legitimate business purpose. otherwise the company has not bargained in good faith." the court dis- agreed with the Special Master's recommendation rejecting respondent's defense and found a "legitimate business purpose" in that respondent "was not required to sacrifice a [credit unionl program already In successful oper- ation." The situations are, as can be seen, quite different. At Roanoke Rapids, Respondent had no credit union and evinced no interest in protect- ing the integrity of the existing recipients of voluntary allotments. Further. at Statesboro there was no affirmative solicitation for nonwork-related caus- es, as there is at Roanoke Rapids. stances in which the limited authority of the negotiators created "inherent possibilities of delay" and held that the restriction created "an obstacle to the bargaining process which lends weight to the Board's conclusion that the Company intended that no agreement be reached." 59 Despite Little's statement that his committee was pos- sessed of discretionary authority to enter into agreements, his other testimony, and the record as a whole, clearly es- tablish that they were not empowered to exceed existing policy without permission. There are "inherent possibilities of delay" in such a situation, particularly since Finley and Stevens, the executives who passed on the formulation of major policy. were located in New York. These possibilities might be mitigated, where the deci- sionmakers are not themselves negotiating, by the estab- lishment of a precise channel of communication between principal and agent. so that the principal will be quickly and fully advised or the union's positions and arguments and the agent will be sufficiently privy to the sources of power to properly convey to the union relevant informa- tion regarding the employer's proposals. The record here, however, strongly intimates the absence of any such com- munication system. While Little testified generally that he kept his superior, Jelks, informed of the progress of the negotiations and said that General Manager Beeks did the same with higher op- erational officials, there is not a shred of evidence that Finley and Stevens were ever apprised of the union propos- als or of any arguments in their support. Little testified, in fact, that recommendations for deviations from company policy would be made only if the committee found them to have merit.6 This clearly indicates two facts: one is that the committee itself was bound by existing policies, and the other is that proposals for changes in guidelines could only be entertained by the guideline makers if the committee thought them worthwhile.6 But the committee plainly saw no merit in proposals unless the Company had initiated them: thus, when the Union sought wage increases in 1975 and 1976, the committee assumed, according to Little, that the Company thought its wages competitive because the committee had not been notified to the contrary. The oper- ation of this Catch-22 device simply screened out all pro- posals made by the Union, precluding a fair presentation of the Union's case to the only individuals who were capa- ble of accepting them. That is not collective bargaining. Taking Little's testimony at face value, the record also shows a distressingly torpid channel of communication in his direction. As shown above, he often professed to have only a nodding acquaintance with important pending per- sonnel actions. His committee was offering to bargain ,9 There is, however, another line of cases which appears to give consider- ably more weight, as a factor indicating bad faith. to the absence of the principal from the negotiations. Wal-Lite Division of United Stlate Gvpsum (o., 200 NLRB 1098. 1100 (1972): Jeffrey Stone Co.. Inc. 173 NLRB 11. 15 (1968): M.FA. Milrhng (omponir. 170 NLRB 1079, 1096 97 (1968) M Litnle was probably theori7ing, since no such proposals were ever found meritorious. i1 How. in fact, the system would work was not known to Little. Asked about a hypothetical situation in which the committee found merit in a proposal for doubling the shift premium immediately. Little stated that he would inform Jelks and local management would inform their superiors, but "how it would be handled from there, I can't tell you." 768 J. P. STEVENS & CO., INC. about the insurance and pension programs without having the "details." He purportedly did not even know that the profit-sharing floor was being considered until the evening before the announcement was made throughout the enter- prise. With respect to the wage increases, Little conceded that his affirmative statements prior thereto, that the Com- pany viewed present wages as competitive, were based not on any information received from the Company but on his own supposition based on an absence of communication. Respondent's asserted failure to communicate with its neg- otiators betrays a total lack of interest in the success of the bargaining relationship. 6. The benefit improvements Having discussed at length the "Hobson's choice" issues, I will do no more here than say that Respondent's conduct in those transactions often displayed disdain toward the rights of the Union as a bargaining representative. Respon- dent treated the Union as an intruder, one which required some watching after, rather than as a statutorily invited guest on the premises. There is convincing evidence in these matters of an inclination to engage in no more than nominal bargaining with the Union. 7. Respondent's "war against unionization" Finally, it would take a remarkably punctilious mind to ignore the factor of Respondent's "now all too familiar pursuance of full-scale war against unionization." J. P. Stevens & Company, Inc., Gulistan Division v. N. L. R. B., 441 F.2d 514, 521 (5th Cir. 1971). In N.L.R.B. v. Reed & Prince Mfg. Co., supra at 139-140, the court stated: We do not think it would be error, in a case like this, for the Board to take account of the prior history of the Company's labor relations.... The ultimate is- sue whether the Company conducted its bargaining negotiations in good faith involves a finding of motive or state of mind ... To be sure, Respondent should be indulged the pre- sumption of having determined to turn over a new leaf with these negotiations. But there is no evidence to inspire confidence that such a resolution was ever made. For ex- ample, I know of no instance in the past 14 years in which Respondent, going beyond the compulsory notice-posting, mailing, and other remedies required by past litigation, has evidenced good faith by voluntarily impressing upon em- ployees any sense of renewed commitment to honor and respect their exercise of statutory rights. The evidence in this case not only shows the absence of such a resolve, but in fact displays Respondent's intention to trade on its Roa- noke Rapids misconduct at other plants. I detect no sign of regeneracy. Therefore, while I am firmly convinced that the evidence in this case, standing alone, clearly proves the complaint allegation, my convic- tion, is heightened by Respondent's 14 years of obstinate recidivism. 8. Conclusions as to bad-faith bargaining The circumstantial evidence of bad faith discussed above describes an employer whose chief concern in the operation of the bargaining relationship was to prevent the Union from obtaining any advantage it might normally derive therefrom; whose discernible awareness of the obli- gations owed the Union was often accompanied by a de- monstrable apathy toward those obligations; and whose bargaining-table posture was that of a polite, patient, and occasionally dissembling auditor rather than a vitally inter- ested participant.6 2 The direct evidence-the speeches, which must be taken as truly indicative of Respondent's attitude-confirms that Steven's corporate mind was tight- ly shuttered against alien winds of reason and persuasion. The record as a whole indicates that Respondent ap- proached these negotiations with all the tractability and openmindedness of Sherman at the outskirts of Atlanta. I must conclude that Respondent was without "serious in- tent to adjust differences and to reach an acceptable com- mon ground." N.L.R.B. v. Insurance Agents' International Union, AFL-CIO, supra at 485.63 In so concluding I have not given much weight to the few violations here found of unilateral action and failure to furnish information. Against the whole factual matrix, those instances are isolated; as Respondent demonstrated, much information was supplied over the pertinent period and many consultations were held.6 The evidence of such cooperation by Respondent is rele- vant, but does not prove a great deal. Respondent kept many records: between September 1974 and March 1977, there were 209 "Strawn-Gardner" meetings, consuming some 600 hours, at which operational and personnel mat- ters were discussed; there were about 1,120 telephone con- versations with union representatives, amounting to more than 200 hours; 240 requests for information were satis- fied; there have been 45 plant visits by union agents. Re- spondent was required by law to discuss mandatory sub- jects and supply pertinent information; the fact that it did so does not unduly quicken the pulse. What is perhaps more revealing is that in not one of the 500 or so instances of proposed discharge or discipline discussed with the 0 :. [W]hile some of the various instances of obstinacy and unreasonable- ness on the part of the Company may have been insufficient in themselves to support a charge of bad faith, viewed collectively and in proper context. they demonstrate a deliberate pattern of contumacy which cannot be ig- nored ' ,tiathrA Corp)raton v. NL.R.B., 94 LRRM 2456, 2461 (6th Cir. 1976) I have not referred here, in the interest of brevity, to several other items, such as Respondent's concealment of its medical program, which ma: also, he construed to suggest a predisposition to ignore the Union '1he mere willingness of one part) in the negotiations to enter into a contract of his own composition also loes not satisfy the good-faith bar- gaining obligation 4aul-l.ite Div. supra at 110i: Unired Steelworkers of Amerrica s . L RB. rupra at 849. ' One cannot overlook, however, the meanness of spirit sometimes ex- hlhited in these incidents by individuals appointed by Respondent to attend to such matters: Warren's concession. for example. that he would not sup- ply a terry inspector's rate sheet to Bush because Bush had already received one from an employee: his similar treatment of Bush's request for a copy of the vacation notice: Gardner's refusal to r.rovide the Union, for no conceiv- ably valid reason except the arguable one of relevancy, with published. readily available loom operators' efficiency ratings. 769 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union did Respondent change its mind.65 Respondent might well be found wanting were a statistician to calculate the probabilities of its good faith on the basis of those figures. I find, accordingly, that Respondent bargained with the Union in bad faith and without any intention of conclud- ing a collective-bargaining agreement, in violation of Sec- tion 8(aX)(5) of the Act. CONCLUSIONS OF LAW I. Respondent, J. P. Stevens & Co., Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Amalgamated Clothing & Textile Workers Union, AFL-CIO--CLC, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Union is the legal continuation of Textile Work- ers Union of America, AFL-CIO, and has been and is now the exclusive representative for purposes of collective bar- gaining of the employees of Respondent in the bargaining unit at Roanoke Rapids, North Carolina, covered by the certification issued by the Regional Director for Region I 1 on September 6, 1974. 4. By refusing, since October 31, 1974, to bargain in good faith for a collective-bargaining agreement covering the certified unit; by unilaterally changing, in or about September 1974, its practice pertaining to free time for double-shift work; by unilaterally changing, in or about December 1974, its method of computing holiday pay for fabricating plant employees; by unilaterally selecting, in December 1976, the kind of respirator to be used by em- ployees; by unilaterally changing, in January 1976, the profit-sharing plan; by unlawfully refusing, on and after February 19, 1975, to supply information relevant to the discharge of Brenda Futrell; by unlawfully refusing, on and after July 9, 1975, to supply information relevant to the change in the jobs of terry inspectors; by refusing, on and after December 16, 1976, to supply information rele- vant to the respirator requirement; by bargaining in bad faith, in January 1975, about the profit-sharing plan sup- plement; by bargaining in bad faith, in August 1975 and thereafter, about a general wage increase; by bargaining in bad faith, in April 1976 and thereafter, about a general wage increase; and by bargaining in bad faith, in Septem- ber 1976 and thereafter, about changes in the group insur- ance program, Respondent violated Section 8(a)(5) and (I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 65 The single exception of a display of flexibility to which Warren could definitely attest happens to be the case of Brenda Futrell. who was given a I-week trial period, and then discharged. Warren also testified to four un- specified proposed personnel actions in which Respondent assertedly al- tered its position; while he said that the Union was informed of the changes of heart. Bush denied receiving such information, and I believe him. In view of Respondent's penchant for keeping meticulous records of any data which might cast a favorable light. I cannot accept that if Respondent did modify its stance as asserted the modification would have gone undocumented. 6. Respondent has not otherwise engaged in conduct vi- olative of the Act as alleged in the complaints. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be required to cease and desist therefrom and to take affirmative action necessary to effectuate the policies of the Act. Aside from the customary bargaining order, General Counsel pleaded in the complaint, and contends on brief, that "Respondent should be directed, upon request, to bar- gain with the Union or any other labor organization in an appropriate unit at any of Respondent's plants, warehous- es, or other facilities, provided the Union or any other la- bor organization is certified or the Respondent has en- gaged in conduct disruptive of the election processes, thereby precluding the holding of a fair election, and the labor organization involved enjoyed majority status." Gen- eral Counsel argues that since this record, and the prior cases involving Respondent,66 clearly demonstrate a corpo- ratewide proclivity to avoid statutory obligations, such a broad remedy is amply justified. General Counsel does not discuss the objective or the implications of the remedy requested. It would appear that its purpose is to create a basis, after court enforcement of the present case, for bringing a contempt action in future 8(aX5) recognitional cases arising elsewhere in the enter- prise, where ordinarily the allegation might be brought to the Board in the first instance. A similar request-"that the Respondent should now be ordered to bargain at such time in the future when, with respect to any appropriate single-store unit, it either se- cures a card majority or the Respondent becomes lawfully obligated to bargain with respect to such unit"-was reject- ed by the Board in its Supplemental Decision in Heck's, Inc., 191 NLRB 886, 888 (1971), the Board concluding that the proposed remedy would not be demonstrably more ex- peditious and would require resolution of representation issues by a special master which are best subjected to the Board's administrative expertise. I see no convincing rea- sons in the present case for recommending departure from the Board's persuasive rationale in Heck's. See also N.L.R.B. v. Gissel Packing Co., el al., 395 U.S. 575, 612, fn. 32 (1969): "It is for the Board and not the courts, however, to make that determination [of the appropriate remedy], based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity." It does seem proper, however, to extend the scope of the recommended bargaining order to all facilities of Respon- dent at which, as here, the Union's representational entitle- ment has already been established. The predicate for such an order is the fact that in the only two locations in which Respondent has been formally required to bargain with the Union, Roanoke Rapids and Statesboro, it has been found In N.L.R.RB J P Stevens & Co.. Inc. 563 F.2d 8 (2d Cir. 1977). the court l.elpfull points out that the first 12 Stevens cases are collected at fer'clld IWorAer, LUmon (tf 4meriua. .4FL. C10 s. ,.VL.R B., 475 F.2d 973. 974, In. I (1 973), and then lists the 5 subsequeit1 cases. The court notes that the case before it is Stevenis XVIII, this one, absent intervening litigation, will be Sleenl YI.Y 770 J. P. STEVENS & CO., INC. to have engaged in unlawful bargaining. Stevens XVII, 538 F.2d 1152 (5th Cir. 1976) (Statesboro). That factor applies particularly to the scope of the bargaining order, but there are other considerations which indicate the appropriate- ness of corporatewide remedies, with respect both to the bargaining order and to the other remedies to be recom- mended below. It is elementary that Steven's efforts since 1963 to repel the Union's organizational campaign are founded in basic company policy. In Stevens 1, 380 F.2d 292, 304 (2d Cir. 1967), the court said, "[T]he evidence shows that the Company's policies were not determined at individual plant levels alone." Two years later, in Stevens V. 417 F.2d 533, 537, the Court of Appeals for the Fifth Ciruit stated, "Stevens has been engaged in a massive multistate cam- paign to prevent unionization of its Southern plants.... Thus we assay the order in this atmosphere of persistent, long continued, flagrant violations occurring after and in spite of repeated declarations of illegality by Board and reviewing Courts." That was written 8 years, and 13 cases, before Stevens XVII, in which the Court of Appeals for the Second Circuit noted that Respondent has earned a "reputation as the 'most notorious recidivist' in the field of labor law," leaving the impression that "the Company has engaged in a 'program of experimentation with disobedi- ence of the law.'" 563 F.2d at 13, 22. The evidence found in the present record fails to dispel that impression of cor- porately designed lawlessness. Not only does the impetus for Respondent's misbehavior originate from its central offices, but those same offices have made a calculated effort to put that misconduct to its best advantage. In the present case, the evidence shows that in speeches in three States, Respondent attempted, no doubt with some success, to chill the ardor of employees for the Union by gloating about the Union's utter lack of progress at the organized plants, a lack of progress found here to be attributable to a resolve to defy the statute. It can scarcely be doubted that the eyes of all Stevens em- ployees are turned to Roanoke Rapids, the only location at which the Union has secured representation rights through an election victory,6 7 for some signal that Stevens is willing to respect the spirit of the law at long last. When Respon- dent instead gears up its resistance, and actually flaunts its intransigence at the bargaining table as a new weapon in "its now all too familiar pursuance of full-scale war against unionization," Stevens VII, supra, 441 F.2d at 521, reme- dies reaching the length and breadth of its enterprise are imperative. The appropriateness of widespread application of reme- dies in Stevens cases is settled. Even at the bargaining, in Stevens I, surpra, the court agreed that mailing and posting of notices should be required at all 43 plants in North and South Carolina, although violations had occurred at only 20 of them. The court pointed out that the plants were continguous; that since the policies which gave rise to the unfair labor practices were centrally developed, there was "every reason to believe that if not deterred, [the Compa- ny] would pursue the same discriminatory policies through- 67 And the only plants at which the Union holds viable represenlation rights. The Statesboro plant has closed out the region:" and that "the Company's practices were 'so extensive and so well-publicized that they must inevita- bly have had a coercive impact' at the remaining plants." 380 F.2d at 304. After 10 more years of determined unlaw- fulness, publicity, and Congressional hearings, enterprise- wide remedies have become, for Stevens, commonplace. In Stevens XVI, 220 NLRB 270 (1975), on the basis of a single 8(a)(1) violation, the Board, taking cognizance of Respondent's history, ordered that copies of the notice be posted at all of Respondent's plants. Accord, Heck' , Inc., supra. Only recently, in Florida Steel Corporation, 233 NLRB 491 (1977), the Board issued a number of broad companywide remedies. The remedies recommended be- low, then, shall apply to all plants and facilities and all employees of Respondent, wherever located in the United States, except as otherwise indicated. Posting of notices. The Respondent shall be required to post the appended rotice, marked as "Appendix A," at all plants and facilities. the notice to be signed by its president and the chariman of its board of directors, by each of the other members of its board of directors, and by the highest managerial official of the plant in which the notice is post- ed. Stevens XVIII (contempt adjudication) 96 LRRM 2748, 82 LC 1 10,212 (2d Cir. 1977). Mailing and reading of notices. The Respondent shall be required to mail to the home of each of its employees a copy of the notice marked "Appendix A," together with a letter, appended hereto as "Appendix B," to be reproduced on the Company's regular business stationery and signed by the highest official of the recipient's plant. At a reason- able time after the entry of this Order, the Respondent shall convene during working time by departments and shifts all its employees at all plants and facilities and, at its option, either have the notice marked as "Appendix A" read by the highest managerial official in the plant or pro- vide facilities and permit a Board agent to read the notice to the employees. In the event the Respondent chooses the former option, the Board shall be afforded a reasonable opportunity to provide for the attendance of a Board agent. Union access. The Charging Party seeks, in addition to the foregoing remedies, access to bulletin boards, provision of lists of employees, speaking opportunities, and access to nonwork areas at all of Respondent's plants. While the line is not easily drawn, there is some difference between the remedies provided above, which seek to assure employees that, once a union is chosen, Respondent will abide by its bargaining obligations, and these requested remedies, which appear, at least superficially, to be addressed to the Union's organizational problems in communicating with employees. These remedies, however, do not simply com- pensate for such inhibitions on access; they also can be effective vehicles for making - substantive presentation of the fact that unions can be useful and effective, a fact which Respondent has improperly sought to throw into doubt by engaging in unlawful conduct at Roanoke Rapids for broadcast at other locations. Those locations included plants in Virginia, Alabama, and Georgia. While the record does not otherwise reflect the extent to which the Roanoke Rapids bargaining has been employed as a weapon in Respondent's "full-scale 771 DECISIONS OF NATIONAL LABOR RELATIONS BOARD war against unionization." it seems safe to say that there has been widespread publicity, either voluntary or self-in- duced. The Supreme Court said in Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 704 (1944): "One of the chief re- sponsibilities of the Board is to direct such action as will dissipate the unwholesome effects of violations of the Act." One such "unwholesome effect" here is Respondent's promiscuous detailing at other facilities of its illicit conduct at Roanoke Rapids. It therefore would be appropriate to afford the Union the requested access to all plants and employees, in the hope that the Union will in some mea- sure be able to counteract the predictably adverse emana- tions which have flowed from what is now more than 3 years of fruitless bargaining at Roanoke Rapids. The court noted in Stevens VII, 441 F.2d at 528, that " [t] here has been over the years a careful tailoring of remedies to meet the peculiar problems posed at the Stevens' plants." It would appear that a few more stitches are required. The second circuit's contempt adjudication, supra, in fact already provides for union access to bulletin boards, union presence at and opportunity to respond to captive- audience speeches, an absolute union right to make pre- election speeches, furnishing to the Union of employee names and addresses, and union access to nonwork areas during nonwork periods, at all of Respondent's plants in North and South Carolina, which, judging from Stevens 1, supra, constitute more than one-half of Respondent's plants. It is fitting, however, for the reasons given above, that the same opportunities be extended to the Union at the remaining plants. It is therefore recommended that the provisions contained in paragraphs II, 12, 13, 14, and 15 of the contempt adjudication be applied, as part of the rem- edy herein, to all plants and facilities of Respondent other than those already affected by the second circuit's adjudi- cation. Contending that the record discloses "massive evidence of unilateral changes in terms and conditions of employ- ment," the Charging Party urges that "a dispute settling mechanism be required for all matters which are the sub- ject of collective bargaining and that Respondent be re- quired to adjust terms and conditions of employment through this mechanism." The structure of this "interim arbitration device" is nowhere clearly defined by the Union, except by such references as "a form of official overview of the bargaining process" which would be "limit- ed to the pre-contract period." I take the proposal to be the establishment of a system under which a Board-appointed arbitrator would finally determine all disputes involving negotiable changes affecting mandatory subjects of bar- gaining. Although Charging Party argues that H. K Porter Co., Inc., Disston Division-Danville Works v. N.L.R.B., 397 U.S. 99, 108 (1970), is distinguishable because the arbitrator would not be writing contract terms as such, I think that is too restricted in view of an opinion which forbids, even in the presence of a finding of bad faith, "allowing the Board to compel agreement when the parties themselves are un- able to agree[, which] would violate the fundamental prem- ise on which the Act is based-private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the con- tract." For the Board to appoint, or require the appoint- ment of, an arbitrator enpowered to decide with finality disputes over whether a cafeteria should be closed or an employee discharged would do violence to this language. The Charging Party presses for reimbursement of the Union's litigation costs. In Heck's Inc., supra, 191 NLRB at 889, the Board rejected such relief, relying on the "role of a charging party under the statutory scheme in the light of the basic principles, that Board orders must be remedial not punative, and collateral losses are not considered in framing a reimbursement order" and holding that the pub- lic interest in allowing the union to recover the cost of participation in the litigation did "not override the general and well-established principle that litigation expenses are ordinarily not recoverable." In its Second Supplemental Decision in Hecks, Inc., 215 NLRB 765 (1974), the Board further explained its interim holding in Tiidee Products, Inc., 194 NLRB 1234, 1236 (1972) that litigation expenses were properly awardable to both the Board and the charg- ing party where "frivolous litigation" was involved. In Heck's III, the Board explicated its intended delineation in Tiidee that where "debatable," as contrasted to "frivolous," defenses were litigated, the fact that the unfair labor prac- tices found could be characterized as "flagrant" or "perva- sive" was an insufficient basis for awarding costs. In Hecks III, the Board declared that it did not intend to forclose further review of the issue: "We do not imply that the need for additional or expanded remedies may not be established by the degree of repetition of misconduct"; "Nor do we intend to exclude from consideration whether . . .we ought to apply some more definitive criterion than the distinction between 'debatable' and 'frivolous' defenses which thus far we have been utilizing"; "At the same time, we wish to make clear in this opinion that . .. .we do not] intend to lock in concrete any past precedent, not to ap- pear to make this Decision the authoritative expression of future remedial policy." 215 NLRB at 768, and fn. 23. There are two persuasive arguments in the present case for the award of litigation costs. First, the defenses raised by Respondent do not, in my view, constitute "debatable" issues within the contemplation of Tiidee. Unlike Heck's, there are no significant factual controversies here; Respon- dent fully understood what it was about at all stages of the bargaining relationship and was aware of the nature of the evidence available to be used against it in the litigation. For Respondent to claim, having clearly determined not to bargain in good faith, that the evidence gives rise to a "de- batable" question on that score is to subvert any possible rationality which may attach to the distinction. Secondly, the Board's adherence in Heck's 11 to the "general and well-established principle that litigation ex- penses are ordinarily not recoverable" indicates that the Board is inclined to apply to Board remedies in this area the distillate of judicial experience. But that experience has carved out exceptions to the general rule, to which, it would appear, the Board has not consciously addressed itself. It is now settled that courts may award litigation costs against disputants who have engaged in deliberate miscon- duct. The Supreme Court summed it up in Hall v. Cole, 412 U.S. 1, 5 (1972): "Thus, it is unquestioned that a federal 772 J. P. STEVENS & CO., INC. court may award counsel fees to a succesful party when his opponent has acted 'in bad faith, vexatiously, wantonly, or for oppressive reasons.'" Accord, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258 (1975). Among the cases supporting this principle cited by the Court in Hall, two seem particularly relevant here: Bell v. School Board of Powhatan County, Virginia, 321 F.2d 494, 500 (4th Cir. 1963), where fees were awarded because of "the long continued pattern of evasion and obstruction" by the de- fendants, and Rolax et al. v. Atlantic Coast Line R. Co. et al., 186 F.2d 473, 481 (4th Cir. 1951), where the court said, "The justification [for an award of counsel fees] here is that plaintiffs of small means have been subjected to discrimi- natory and oppressive conduct by a powerful labor organi- zation... ." Unlike most civil litigation, the cases brought before the Board more often than not involve what may be character- ized as "bad faith" or "oppressive" conduct, and the Board might consider it inappropriate to establish that single benchmark as the determinant of an award of litigation costs. The leading case of Vaughan v. Atkinson, 369 U.S. 527 (1962), provides an additional standard which would limit the applicability of such a remedy in a sensible but meaningful way. The Court there approved an award of fees where " [t]he default was willful and persistent," id at 531. Similarly, in Brewer v. School Board of the City of Nor- folk, Virginia, 456 F.2d 943, 949 (4th Cir. 1972), the court noted the "normal exception to the general rule" to be "where the behavior of a litigant has reflected a willful and persistert 'defiance of the law.' " Such "willful and persis- tent defiance" portends precisely the same result as the "frivolous litigation" decried by the Board in Tiidee, 194 NLRB at 1236; it "is clearly unwarranted and should be kept from the nation's already crowded court dockets as well as [the Board's] own." Since there can be no doubt that Respondent has, with "bad faith," displayed the requisite "willful and persistent defiance of the law;" since that conduct falls within estab- lished exceptions to the counsel fee rule in American juris- prudence; and since, as discussed, the Board indicated in Heck's that it would consider the adoption of new stan- dards in this area based on "the degree of repetition of misconduct," I shall recommend that Respondent be re- quired to reimburse the Board and the Union for their ex- penses incurred in the "investigation, preparation, presen- tation, and conduct of these cases, including the following costs and expenses incurred in . . . the Board . . . pro- ceedings: reasonable counsel fees, salaries, witness fees, transcript . . . costs, printing costs, travel expenses and per diem, and other reasonable costs and expenses." Tiidee, supra, 194 NLRB at 123637.68 General Counsel and Charging Party also request that Respondent be ordered "to reimburse the Union for ex- penses incurred in attempting to negotiate a collective bar- 68 While counsel for the General Counsel managed this lengths and corm- plex litigation. and did so very well indeed. the evident contribulions of counsel for the Charging Party cannot he overestimated. At the start of the hearing. Respondent was represented by five attorneys. and soon thereafter the number stabilized at two trial counsel and a member tof Respondent's house counsel staff. Counsel for General Counsel was the only (Government attorney assigned to this case, and he was assisted throughout by counsel for the Union. The lengthy brief submitted bh the Union has been quite helpful. gaining agreement." There is helpful precedent for this contention in M.F.A. Milling Company, 170 NLRB 1079, 1080 (1968), where the Board ordered reimbursement of the wages lost by employee members of the union negotiat- ing committee, reasoning that the employees "did not re- ceive the compensatory benefit of good-faith bargaining for which they sacrificed their wages." By logical exten- sion, any dues payments made by Roanoke Rapids union members were sacrificed when their negotiators. at no little expense, sat at the bargaining table for many months with- out the slightest chance of seeing a return on the money of the employees. 69 In any event, the monies wasted by the Union in bargaining were a direct and proximate product of Respondent's willful defiance of its statutory obligation. These losses flowed from the default, and compensation therefore would simply restore the status quo ante.. I shall therefore recommend that Respondent be re- quired to reimburse the Union for reasonable salaries, trav- el costs, per diem,70 and other reasonable collective-bar- gaining expenses incurred, commencing with the first formal bargaining session on October 31, 1974. and termi- nating as of July 1, 1976, when the first complaint in this matter was issued. In cases such as this one, it is customary for the Board to extend the certification year so that it begins on "the date the Respondent commences to bargain in good faith." Thompson Machine & Tool Corporation, 172 NLRB 1671, fn. 1, 1674 (1968). Charging Party requests that the exten- sion be expanded to encompass a 2-year period. I do not find the contention persuasive. In other cases where employers have bargained in bad faith, the Board has allowed no more than the additional I year. One more year of bargaining here should tell the tale. There have already been in excess of 2 years of negotiations, and all the proposals have long since been submitted. At the end of the next year of bargaining, Respondent will either again be charged with improper bargaining or will not. If the former, and the complaint is found to be justified, the year will not have begun to run. If Respondent has satis- fied its statutory duties as of the end of the year and there- after has adequate reason for withdrawing recognition, it seem pointless to require Respondent to keep bargaining in good faith for still another year, having presumably reached impasse much earlier. I shall further recommend that Respondent be required to compensate Patterson plant employees, at the prevailing wage levels, for all double shifts worked after September 1974 as to which they were not accorded the customary hour of free time; even though this will result in double compensation for employees who, after the unilateral mod- ification of the rule, no longer continued to take an hour off, it appears to be a reasonable remedy for the loss of free time thereby suffered. In addi:;on, I recommend that fabn- cating department employees whose holiday pay was di- minished as a result of the change in the method of compu- tation at Christmas 1974 and New Year's and July 4, 1975, '9 Although flisman testified that members of the Roanoke Rapids IvCal were not required to pas dues until a contract was secured, it may well be that enthusiastic supporters made such pa.nients despite the dispensation ! I hese three items of remtbursement should he limited to Htoyman. Du (Chessi. and ans other regular negoniator 773 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be reimbursed for such losses. In both matters referred to in this paragraph, interest shall be paid as prescribed in Florida Steel Corporation, 231 NLRB 651 (1972). As a prac- tical matter, I see no purpose to be served by requiring Respondent to undo the other unilateral actions found here. Finally, I recommend entry of the customary cease-and- desist order. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 7 The Respondent, J. P. Stevens & Co., Inc., New York, New York, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Bargaining in bad faith for a collective-bargaining agreement, and about other mandatory subjects of bar- gaining, with Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, as the exclusive representative of its employees in the following appropriate bargaining unit 72 (and in all other bargaining units as to which a labor organization's right to represent employees has been estab- lished in appropriate legal proceedings): All production and maintenance employees, including plant clerical employees, laboratory technicians, jani- tors, local truck drivers, training center instructors, customer service man and the mail carrier at Respon- dent's Roanoke No. I, Roanoke No. 2, Patterson, Ro- semary, Delta No. 4, Fabricating, and Roanoke Yarn and Dye plants at Roanoke Rapids, North Carolina, but excluding office clerical employees, professional employees, fire-watchers, yarn planning man, designer and assistant designer, the design department, and guards and supervisors as defined in the Act. (b) Unilaterally taking action with respect to wages, hours, and other terms and conditions of employment without affording the Union, or any other labor organiza- tion entitled as indicated above, reasonable opportunity to bargain thereon. (c) Refusing to timely furnish information to the Union, or to any other labor organization entitled as indicated above, which is relevant and useful to the performance of the statu- tory duties of a labor organization. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights set out in Section 7 of the Act. 2. Take the following affirmative action, which will ef- fectuate the policies of the Act: 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 72 For the purpose of determining the effective period of the certification. the initial year of certification shall be deemed to begin on the date Ihe Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. (a) Upon request, bargain collectively and in good faith with the Union as the exclusive representative of the em- ployees in the above-described unit with respect to wages, hours, and other terms and conditions of employment and, upon request, embody in a signed agreement any final un- derstanding reached. (b) Consult with the Union and afford it an opportunity to bargain collectively with respect to any changes in wag- es, hours, and other terms and conditions of employment before implementing such changes. (c) Make whole all employees adversely affected by Re- spondent's unilateral changes in the practice of awarding free time for double-shift work, and in the computation of holiday pay, as set forth in the section of this decision enti- tled "The Remedy." (d) Post in conspicuous places in each of Respondent's plants, including all places where notices to employees are customarily posted, for 60 consecutive days, copies of the attached notice marked "Appendix A." 7 Copies of said notice, on forms provided by the Regional Director for Region II 1, shall be signed on behalf of Respondent by its president and the chairman of its board of directors and, in addition, by each of the other members of the board of directors and by the highest managerial official of the plant in which the notice is posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Reproduce and mail to the home of each of its em- ployees at all of its plants a facsimile of the aforesaid signed notice, together with a letter appended hereto as Appendix B. Said letter shall be reproduced on the Company's regular business stationery and signed by the highest official of the recipient's plant. Respondent shall provide the Regional Director for Region I I with proof of such mailing. (f) At such reasonable time after the entry of this Order as the Board may request, convene during working time by departments and shifts all its employees in each of its plants and, at its option, either have the notice read by the highest managerial official in the plant or provide facilities and permit a Board agent to read the notice to the said employees. In the event Respondent chooses to have the notice read by its official, the Board shall be afforded a reasonable o[portunity to provide for the attendance of a Board agent. (g) Upon request of the Union, made within 2 years from the date hereof, immediately grant the Union and its representatives reasonable access to the plant bulletin boards and all places where notices to employees are cus- tomarily posted, at each of Respondent's plants, for a pe- riod of I year from the date of request. 71 In the event that this Order is enforced by a judgment of a United States ('ourt of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 74 Subpars, (g). (h), (i),. ). and (k) hereinafter apply only to plants and facilities of Respondent not comprehended by the contempt adjudication issued by the United States Court of Apipeals for the Second Circuit in N L.R.B av. J P. Seiens & ('o, Irn-. 96 LRRM 2748, 82 LC ¶ 10,212. October 19. 1977. 774 J. P. STEVENS & CO., INC. (h) In the event that during a period of 2 years following entry of this Order any supervisor or agent of Respondent convenes any group of employees at any of Respondent's plants and addresses them on the question of union repre- sentation, give the Union reasonable notice thereof and afford two union representatives a reasonable opportunity to be present at such speech and, upon request of said representatives, permit one of them to address the employ- ees for the same amount of time as Respondent's addresses them. (i) If within the next 2 years the Board schedules an election in which the Union participates at any of Respon- dent's plants, then, upon request by the Union, afford at least two union representatives reasonable access to each of Respondent's said plants and appropriate facilities to deliver a 30-minute speech to employees on working time, the date thereof to be within 10 working days before but not within 48 hours prior to any such election. (j) Upon request of the Union immediatley furnish it with lists of the names, addresses, and classifications of all of Respondent's employees at each of its plants as of the latest available payroll date and furnish a corrected current list to the Union at the end of each 6 months thereafter during the 2-year period referred to above. (k) For the 2-year period, upon request of the Union, without delay permit a reasonable number of union repre- sentatives access for reasonable periods of time to all its canteen, rest and other nonwork areas, including parking lots, within each of its plants for the purpose of communi- cating orally and in writing with the employees in such areas during changes of shift, breaks, mealtimes, or other nonwork periods. Respondent shall formulate rules on this subject in the same manner as provided in paragraph 10 of the contempt adjudication referred to above. (I) Pay to the Board and the Union the reasonable costs and expenses incurred by them in the investigation, prepa- ration, presentation, and conduct of this proceeding before the Board and pay to the Union the reasonable costs of participating in the collective-bargaining negotiations, as set forth in the section of this Decision entitled "The Rem- edy." (m) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records and all other records necessary or appropriate to analyze the amounts due employees. (n) Notify the Regional Director for Region I 11, in writ- ing, within 20 days of the date of this Order, what steps Respondent has taken to comply herewith. IT [s FURTHER ORDERED that those portions of the consoli- dated complaint found to be without merit are hereby dis- missed. APPENDIX B Dear Stevens Employee: This letter, and the enclosed notice, is being sent to all J. P. Stevens employees to inform you of a recent decision by the National Labor Relations Board i re- lating to the Stevens plants in Roanoke Rapids, North Carolina. The Amalgamated Clothing & Textile Workers Union of America, AFL-CIO-CLC, was selected by the Roanoke Rapids hourly employees in September 1974 to represent them for purposes of collective bar- gaining. After a trial, the Labor Board found that the Company failed to bargain in good faith during the negotiations which followed the election and, as well, failed to consult with the Union about certain changes in working conditions and failed to furnish the Union all the information to which it was entitled under the law. As you can see from the enclosed notice, the Com- pany has promised that it will compensate the Union, the employees, and the Government for their losses arising out of the violations found. We have further promised that, in the future, we will comply in good faith with the labor laws. Therefore, anything you have heard which would indicate that the Company does not intend to bargain sincerely with a labor orga- nization, at any of its plants, is completely erroneous. The Supreme Court of the United States has said that, in collective bargaining, employers must bargain "with the serious intent to adjust differences and to reach an acceptable common ground." In any future negotiations by our Company with any union, we in- tend to fully abide by that principle. Sincerely yours, (Plant Manager) iShould the Board's order be enforced. add here: ", approved b) a United States Court of Appeals,". 775