Watertown Undergarment Corp.

WATERTOWN UNDERGARMENT CORPORATION 287 Under these circumstances I must and do find that the General Counsel has failed to sustain the burden of proof on such issue. (See Casa Grande Cotton Oil Mill, 11ONLRB 1834.) In arriving at the findings and conclusions on which my recommendations herein are based, I have carefully considered all of the evidence adduced and have based my findings and recommendations on the entire record in this case. CONCLUSION OF LAW On the basis of the foregoing , I conclude that Dal -Tex Optical Company, Inc., the Respondent herein, has not violated Section & (a)(1) or (3) of the Act as alleged in the complaint herein , as amended. RECOMMENDED ORDER I therefore recommend that the complaint herein , as amended, be dismissed in its entirely. Watertown Undergarment Corporation and Local 223 of the International Ladies' Garment Workers' Union. Cases Nos. 1-CA-3/.36 and i-CA-3461. May 24, 196. DECISION AND ORDER On November 16,1961, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a supporting brief,' and the General Counsel filed a brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and finds merit in certain exceptions of the Respondent. Accordingly, the Board adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent they are con- sistent with the Decision and Order herein. 1. We concur in the Trial Examiner's findings that the Respondent interfered with, restrained, and coerced employees in violation of Section 8(a) (1) of the Act; and that the Respondent admittedly "stalled" the Union during negotiations, failed to make good-faith ef- forts to secure resolution of disputed issues, repudiated agreements reached with the Union, engaged in a course of coercive action at its plant designed to secure repudiation of the Union by the employees, 1 The Respondent 's request for oral argument is hereby denied as the record , including the exceptions and briefs , adequately presents the issues and the positions of the parties. 137 NLRB No. 34. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and negotiated an employee insurance program without notification to the Union, in violation of Section 8(a) (5) and (1) of the Act. 2. The Trial Examiner further found that the Respondent refused to sign a contract containing terms which had been agreed upon be- tween the parties, and recommended that the Respondent be ordered to sign an agreement with the Union, upon the Union's request, in- corporating the terms of a particular document. We disagree with this finding and shall not, therefore, adopt this recommendation for the reasons set forth below. A. The relevant facts The negotiations went through several phases. In the first phase, which began on January 26, 1960, Janis, an ILGWU official, and Mil- ton Goldstein, the Respondent's representative, reached tentative agreement on some of the Union's oral demands,2 with the understand- ing that any agreements they reached were subject to final approval by the Respondent's president, Berkley, and by its attorneys. The second phase commenced on July 7, 1960, when Janis brought to a negotiating conference the Union's standard form contract, which contained numerous provisions not in the Union's original demands, and, apparently, not previously discussed by Janis and Goldstein. The meeting concluded with agreement by Janis and Goldstein on every provision of this document, as modified by them, except for the follow- ing proposed addendum to article XXVII the article providing for no-strike no-lockout pledges : It is expressly understood and agreed that Berkliff Undergarment of New York City and any manufacturer contractor or sub- contractor working for said Berkliff are affiliated with or related to the Employer herein 3 At the end of August or early September 1960, this document, as retyped by the Union, was submitted by Janis to Goldstein, who for- warded it to Berkley. On September 8,1960, this document, referred to herein as General Counsel's Exhibit No. 8,4 was submitted to one of the Respondent's attorneys, Arnold Goldstein of the law firm of Con- rad & Smith, with a covering letter, over the signature of "Berkliff Undergarment Corp.," referring specifically to the proposed ad- dendum to article XXVII, and indicating strong objection to incor- 2 The precise terms of these tentative agreements do not appear in the record 3 Berkley , president of the Respondent , which is a Waterbury, Connecticut , plant, is also president of Berkliff Undergarment Corporation , whose offices are in New York City, and owns all the stock in Beauty Maid Mills, a North Carolina plant The sole customer of the Respondent and Beauty Maid Mills is Berl.liff , which provides the material for which the Respondent and Beauty Maid Mills furnish labor 4 Neither the original nor a copy of this document is in evidence During the hearing herein, however , a reconstruction of this document was prepared by Janis pith the assistance of the Union's attorney , Schlesinger , was offered in evidence , and was admitted by the Trial Examiner as General Counsel ' s Exhibit No. 8 WATERTOWN UNDERGARMENT CORPORATION 289 poration of the name "Berkliff Undergarment Corp." in the contract. On October 10, Respondent Attorneys Goldstein and Conrad, who met with Janis and Milton Goldstein to discuss General Counsel's Exhibit No. 8, objected particularly to the addendum to article XXVII, and to the fact that General Counsel's Exhibit No. 8 was based on a printed standard form contract whereas the parties for- merly negotiated generally on the basis of supplements and amend- ments to their basic agreement of January 29, 1954.5 The meeting concluded with the understanding that a 5-percent wage increase was to be put into effect immediately, retroactive to July 1, 1960; 5 that resolution of article XXVII would be held in abeyance for the 6 to 8 weeks Conrad would be in Florida; and that the Union would prepare a document in the form of a supplement to the parties' previous agreement? At the end of January 1961, the ensuing phase began when Janis, having been informed that Conrad was not yet available, telephoned Schlesinger and instructed him to "prepare a memorandum of under- standing to supplement the prior contract." Schlesinger, on oral in- structions by telephone from Janis, and without reference to General Counsel's Exhibit No. 8 or any guides other than his telephone con- versation, prepared a "Memorandum of Understanding" in language which he testified was "a creation of my mind completely." This "Memorandum of Understanding," in addition to providing for re- newal of the parties' previous contracts, was substantially a state- ment of the tentative agreements Janis and Milton Goldstein had reached prior to their consideration of the Union's printed standard form contract on July 7. However, it also contained provisions des- ignated as articles 11 and 12 1 which the record does not indicate were ever agreed to by Janis and Milton Goldstein. 'The parties' contractual relations commenced with a letter of agreement to a vacation schedule , dated October 28, 1953, and thereafter included a formal agreement and supple- mentary letter, both dated January 29 , 1954 , a supplementary memorandum dated September 11, 1956, and supplementary agreements dated April 1, 1955, and Septem- ber 18, 1957, respectively. All these documents constituted the agreement between the parties, which terminated on December 31, 1959. 6 The 5-percent wage increase was put into effect by the Respondent in accordance with this understanding. v It is not clear whether this supplement was to be a redraft of General Counsel's Ex- hibit No. 8 or a written embodiment of the tentative agreements which Janis and Milton Goldstein had reached prior to their consideration of the Union's printed standard form contract on July 7 s Articles 11 and 12 provide as follows: Article 11 In order to safeguard working standards and employment opportunities of the workers covered by this and other agreements in the garment industry, it is agreed that all garments or parts thereof handled by the Employer during the teim of this agreement, whether finished or partly finished, shall be manufactured exclusively either in its own shop or, as parts of an integrated process of production under the jobber-contractor system of production, in a shop under contract with it unit of the International Ladies' Garment Workers' Union, and accordingly the Employer shall 649856-63-v oI. 137-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 7, 1961, Janis forwarded two copies of this "Mem- orandum of Understanding" to Attorney Goldstein with a covering letter referring to the enclosed "proposed agreement," and requesting that Goldstein "look these over and when we meet on Thursday at 3 p.m. which is the time of our appointment with the firm and yourselves at my office, we can finish this matter up." Goldstein made no re- sponse to this letter and no such meeting was held. About 3 weeks after the Union's submission of this "Memorandum of Understand- ing," Schlesinger telephoned Goldstein. According to the credited testimony of Schlesinger, Goldstein said that "there was still some question about the Southern Shop Clause that had not been re- solved." 9 Schlesinger testified further that, 3 weeks later, he again telephoned Goldstein, who stated that "his efforts had been unavailing in getting the company to sign the agreement," whereupon Schlesinger requested its return so that the Union could attempt to secure its execution. On April 20, 1961, at Berkley's request, a luncheon meeting was held between Berkley and Kramer, an ILGWU official who was Janis' superior. Kramer offered to waive article 12 of the "Memorandum of Understanding," but Berkley refused to sign such an agreement. Berkley offered to sign an agreement if the 5-percent wage increase provision were deleted and if the Respondent's contributions to the health and welfare fund were suspended for a year. Kramer refused this offer. Although Kramer testified that he did not have a copy of the "Mem- orandum of Understanding" at this luncheon meeting, Schlesinger, on April 24, 1961, sent a letter to the Respondent asserting that Kramer had presented Berkley with the "Memorandum of Understanding" at that meeting, that Berkley had objected only to article 12 thereof, "claiming that the same had not been agreed upon," that Berkley re- not handle, purchase, import, or otherwise obtain, directly or indirectly , any other wholly or partly finished garments whatsoever during the term of this agreement Article 12 In order to safeguard further the working standards and employment opportunities of workers covered by this agreement, the Employer hereby agrees that any and all work heretofore performed in the Employer 's shop in Waterbury including but not limited to slips, gowns, shortie pajamas, including also, but not limited to , trimming, applique and the like, shall not be performed for the Employer by any other firm, corporation or partnership by whomever owned or wherever located as long as the Union is the exclusive bargaining agent for the workers covered by this agreement, provided , however, that such work may be performed outside the shop of the Em- ployer, with the Union's consent, for so long as the workers covered by this agree- ment are fully supplied with work and no loss of employment of earning results from such a diversion of the work Schlesinger testified that article 11 was "a standard boilerplate provision which appears in our contracts now," and that article 12 was drafted in his own language "completely from top to bottom " 9It appears that the term " Southern Shop Clause" was used by the parties to refer both to article XXVII of General Counsel's Exhibit No 8 and to article 12 of the "Memorandum of Understanding " The latter provision was involved in the above conversation. WATERTOWN UNDERGARMENT CORPORATION 291 fused to sign the agreement even when Kramer offered to delete this article, and that the Union was therefore filing charges against the Respondent. Thereafter, on May 6, 1961, at the request of Larkin, who was then the Respondents' attorney, the parties met in an attempt to reach a settlement. At this meeting, the Union presented the Respondent with a document, in evidence as Respondent's Exhibit No. 2 and referred to herein as Respondent's Exhibit No. 2, which was identical to the "Memorandum of Understanding" except for the deletion of article 12.10 The Union requested that the Respondent execute it, but the Re- spondent refused to do so on the ground that it had never agreed to Respondent's Exhibit No. 2; moreover, it questioned the Union's ma- jority status. A second settlement meeting was held on June 26, at which the Union presented the Respondent with a new contract, not in evidence. It was Berkley's testimony that although this contract was "satisfactory," no agreement was reached at the meeting because (1) he refused to pay several thousand dollars which the Union claimed was owed for health and welfare fund contributions; and (2) Produc- tion Manager Pomerantz, who had replaced Ludwig, told him not to sign any agreement with the Union before checking employee senti- ment. On the following day, the Respondent held an election, prior to which Production Manager Pomerantz told the employees, among other things, that if the majority of them voted "yes," the Respondent would negotiate a contract with the Union; but, if they voted "no," the Respondent would "fight the Union." A majority of the employees voted "no." B. Concluding findings We are convinced, from the all the facts of this case, that the Re- spondent and the Union never reached final agreement on all the contract terms in issue between them or on a particular document. While Milton Goldstein and Janis, prior to July 7, 1960, reached tentative agreements on various matters, these agreements were super- seded by General Counsel's Exhibit No. 8, which was subject to final approval by Berkley and the Respondent's attorneys. Such approval was never granted. Instead, the parties agreed on October 10 that the Union was to prepare another document in the form of a supple- ment. Inasmuch as this document, as submitted on February 7, 1961, contained terms never previously agreed to by the parties, it constituted a new proposal. We do not find that the Respondent ever agreed to this new proposal, either in its original form as the "Memorandum of Understanding," or in its amended form as Respondent's Exhibit 1O Berkley testified that he received Respondent's Exhibit No 2 from Janis sometime after April 20, 1961, that, after Janis departed, he reviewed it with his son, Herbert, and that he objected to many of its provisions It is not clear whether this occurred before or after the May 6 settlement meeting. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 2. At no time subsequent to the Respondent's receipt of the "Mem- orandum of Understanding" did the Respondent or its attorney signify approval of it. Instead, that document was ultimately returned to the Union at the Union's request. When the Union subsequently offered to delete article 12 thereof, a subject of dissension between the parties, the Respondent again refused to execute such a document, but offered to reach agreement upon certain conditions. These conditions the Union refused to accept. When Respondent's Exhibit No. 2 was later presented to the Respondent, it, too, was rejected. Nor was agree- ment reached with respect to the proposed contract, not in evidence, which the Union presented at the second settlement meeting. Accordingly, while we find that the record clearly establishes that the Respondent failed in its duty to bargain in good faith with the Union, we are not convinced that all the terms of the collective bargain- ing were ever finalized between the parties and, accordingly, we do not find that the Respondent violated the Act by refusing to execute an agreement incorporating the terms of Respondent's Exhibit No. 2, or any specific terms." Under these circumstances, we shall not order the Respondent to execute a particular document, but shall order it to cease and desist from its refusal to bargain collectively with the Union, and, upon request, to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, and, if an understanding is reached, to embody such understanding in a signed contract.12 ORDER The Board adopts the Recommended Order of the Trial Examiner with the following modifications : 1. Paragraphs numbered 1(c) and 2 (a) are deleted. 2. Paragraph numbered 2(b) is modified by deleting the introduc- tory phrase: "If no such demand is made, then." 3. Paragraph numbered 2(d) is modified to read: "Notify the Re- gional Director for the First Region, in writing, within 10 days from "See Crown Drug Company, 136 NLRB 865 ; Ridge Citrus Concentrate, Inc, et al.,. 133 NLRB 1778; Shreveport Garment Manufacturers, supra; Feed and Supply Center, Inc, 127 NLRB 276, enfd. 294 F 2d 650 ( CA 9) , and North Carolina Furniture, Inc., 121 NLRB 41, 42. Member Brown would find that a complete agreement resulted on April 20, 1961, when the Union withdrew its demand for a "Southern Shop" clause , which was the only issue outstanding from October 10, 1960, to April 20 , 1961. Member Brown would affirm the Trial Examiner and require Respondent to sign the agreement which is fairly embodied in Respondent's Exhibit No 2. 12 As we are finding contrary to the Trial Examiner that an agreement was not reached' with the Union which the Respondent could be ordered to sign, we find it unnecessary to adopt or pass upon the Trial Examiner 's holding that the Union's demands were not un- lawful under the Act. The alleged illegality of the Union 's demands was raised by the- Respondent for the first time in its brief to the Trial Examiner , and was never adverted to in its negotiations with the Union. Accordingly, we find that it was not an operative factor in the negotiations and is no defense to the Employer 's failure to, bargain in good faith WATERTOWN UNDERGARMENT CORPORATION 293 the date of this Order, what steps the Respondent has taken to com- ply herewith." 13 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondent violated Section 8(a) (5) and (1) of the Act by refusing to execute "an entire contract reached on or about April 20, 19 61." ii The notice attached to the Intermediate Report is hereby modified as follows* (1) The words "A Decision and Order" are substituted for the words "The Recommendations of a Trial Examiner" , (2) in the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" ; (3) the first paragraph is deleted , (4) the introductory phrase of the second paragraph, "if no such request is made," is deleted, (5) in the third para- graph, the phrase, "or by refusing to sign or execute collective-bargaining contracts on which agreement has been reached," is deleted, (6) the following is added as the last paragraph following the paragraph beginning: "This notice must remain posted for 60 days . . • "Employees may communicate directly with the Board's Regional Office, 24 School Street, Boston 8, Massachusetts, Telephone Number, LAfayette 3-8100, if they have any questions concerning this notice or compliance with its provisions " INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, in which the General Counsel of the Board alleged that the Respondent had violated Section 8(a) (1) and (5) of the National Labor Relations Act (73 Stat. 519, 29 U.S.C.A. 141, et seq.), was heard before Charles W. Schneider, the duly designated Trial Examiner, on June 28, 29, and 30, July 31, and August 1, 1961, at Waterbury, Connecticut, and at New York, New York, on August 2 and 3, 1961. Upon motion an Employees' Committee, representing a group of employees who had filed a petition with the Board, pursuant to Section 9 (c) (1) of the Act, to decertify the Charging Union, Local 223, was permitted to intervene to the extent of its interest. On September 28, 1961, the General Counsel, and on October 2, 1961, the Respondent and the Intervenor, filed briefs, which have been considered. Upon the entire record in the case, including my evaluation of the credibility of the witnesses based upon the evidence and observation of their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Connecticut corporation maintaining its principal office and plant in the city of Waterbury, Connecticut, where at all material times it has been en- gaged in the manufacture, sale, and distribution of women's undergarments. In connection therewith Respondent receives directly from sources outside the State of Connecticut cotton and synthetic products valued in excess of $50,000 per annum, and ships directly to States outside the State of Connecticut finished products valued in excess of $50,000 per annum. It is admitted that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 223 of the International Ladies' Garment Workers' Union is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue Briefly stated the issue is whether the Respondent refused to bargain with the Union, and engaged in other restraintful and coercive conduct by the actions, here- inafter described, of certain supervisors and officials of the Respondent. At the time the instant controversy arose the Union had been the contractually recognized bargaining representative of the Respondent's employees since 1954. The last contract expired on December 31, 1959. Negotiations for renewal were initiated in January 1960. The contention of the General Counsel and the Union, denied by 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent, is that by the latter part of 1960 the parties had reached agreement on all outstanding issues, with the exception of a so-called "Southern Shop" clause. More specifically, the General Counsel and the Union contend that the differences in this respect involved only language, that the issue was deferred by mutual consent at the request of the Respondent, that thereafter the Union deleted its demand for the clause, and that the Respondent then repudiated the agreement and made uni- lateral changes in employment conditions. Additionally it is contended that begin- ning in the fall of 1960 and continuing into the spring and early summer of 1961 rep- resentatives of the Respondent engaged in various coercive acts, namely, threatening employees with reprisals in employment unless they got rid of the Union, threatening to close and to move the plant, threatening to move out machines , promising em- ployees benefits for getting rid of the Union, circulating a petition seeking the ouster of the Union , and interrogating employees about their union and concerted activities. The Respondent denies these allegations . It contends that it at all times bargained in good faith with the Union, denies that it ever reached a definitive agreement with the Union. The Respondent further asserts that as a consequence of dissatisfaction with the Union on the part of a large number of employees which resulted in the filing of a decertification peition (subsequently dismissed ) with the Board in March 1961, the Union no longer represents a majority of the employees. We turn now to the narrative of these events as I find them to have occurred. Insofar as the findings involve matters which are the subject of dispute the findings reflect what I have concluded , after careful consideration , to be the creditable and the preponderant evidence and testimony. B. The negotiations Negotiations began, and most sessions were held , in New York City. The first meeting was on January 26, 19 -60. Representing the Respondent at this meeting were Lou Berkley , its president, and Milton Goldstein , an industrial engineer and management consultant ; representing the Union were Sam Janis, assistant general manager of the Union's eastern region, several local union officials , and a Shop Com- mittee composed of employees . President Berkley designated Milton Goldstein as the Company's negotiator, authorized to negotiate an agreement subject to approval by the Respondent. Janis was designated by the Union as its representative in the negotiations. It was mutually understood that legal aspects of any agreement reached were subject to review by the Respondent 's attorneys. At the first meeting the Union presented its demands , several of which were then and there agreed to. The Union's proposals were used as the basis of the subsequent negotiations . The record does not disclose that the Respondent ever submitted formal written counterproposals . Thereafter, Negotiators Milton Goldstein and Sam Janis held a series of bargaining meetings, attended at times by other representatives of the parties. The details of these meetings need not be reviewed. Suffice to say that the evidence establishes that, by July 1960, except for the "Southern Shop" clause, the negotiators had reached agreement , and the Respondent's approval had been secured, on all stated outstanding issues. Among the approved agreements was a 5-percent wage increase payable July 1, 1960-a compromise of an original union demand for 15 percent and initial company offer of 2 percent.' At a meeting on July 7, 1960, attended by Milton Goldstein, Janis, and Solomon Ludwig, then the Respondent's production manager, the parties, using the Union's standard form con- tract as reference, reviewed the terms of agreement clause by clause , and reached accord as to substance and form with regard to all issues other than the "Southern Shop" clause. With respect to that provision Milton Goldstein told Janis that as now worded the clause-which had been the subject of substantial discussion and revision 1 The "Southern Shop" clause imposed restrictions upon the diversion to other plants or employers of work normally done at the Respondent's plant-if such diversion would result in a reduction of employment by the Respondent The Union's particular object in pressing this clanse was Beauty Maid Mills, a plant at Statesville, North Carolina The Respondent and Beauty Maid Mills are contract shops The sole customer of each is Berkliff Undergarment Corporation, with offices in New York City. The Respondent and Beauty Maid Mills supply only labor on the garments--the goods being provided by and being the property of Berkliff Undergarment Corporation Lou Berkley is the president and directing head of Berkliff and the Respondent controls both those corporations and owns all the stock in Beauty Maid Mills The Union con- sidered the three companies to be affiliated, the Respondent contending that they are unrelated The issue need not be decided WATERTOWN UNDERGARMENT CORPORATION 295 during the negotiations-appeared satisfactory to him, but that he would have to get clearance on it from his principal, President Lou Berkley.2 Before the close of .the July 7 meeting Union Representative Janis agreed to pre- pare a new draft contract incorporating the agreements reached and to forward it to Milton Goldstein. Ultimately Janis forwarded such a document to Goldstein, includ- ing the "Southern Shop" clause. Goldstein transmitted the agreement to the Re- spondent's president, Lou Berkley, telling Berkley that he thought that the parties had reached substantial agreement and that this was the best contract he could negotiate. Subsequently Berkliff Undergarment Corporation sent the draft to Attorney Arnold Goldstein (not to be confused with Milton Goldstein) of the firm of Conrad and Smith, for review. Thereafter, having had no response, Janis made inquiries of the Respondent as to the delay. Under date of September 12, 1960, Production Manager Ludwig wrote Janis to the effect that the document had been forwarded to Attorney Goldstein and that the matter was in abeyance because of a death in Attorney Goldstein's family. Ludwig assured Janis that the Respondent would take all possible steps to expedite the conclusion of the matter. However, attempts by Janis to secure conclusion of the agreement were unsuccessful. For at this point, to use his own words, President Berkley began to "stall." 3 In early September 1960, Union Representative Janis threatened a strike unless the 5-percent wage increase was put into effect. President Barkley promised to grant it, and the Union announced it to the employees on September 16. But in October the increase still had not been paid, and Janis again had to threaten to strike. In September or October 1960 President Berkley and other officials and super- visors at the Waterbury plant began to make statements to employees indicating that the plant would be closed or moved to Statesville, and suggesting abandonment of the Union. These are detailed later. Unlike the contracts for prior years, which had been in the form of supplements, generally annually, to the original agreement of 1954, the contract submitted by Janis after the July 7, 1960, meeting, incorporating the agreements reached at that meeting, was an integrated contract. It was basically a printed form, and it contained some new language. After President Berkley's tactics in stalling Janis and in sending him to talk with other company officials, Janis met with these officials in a meeting which Alan Berkley, vice president of the Respondent and son of Lou Berkley, placed at sometime in Sep- tember. The credited testimony does not disclose any apparent matter in controversy at this meeting. Alan Berkley's testimony is that "through the discussion there was a general area or feeling of agreement." The next meeting was held on October 7, 1960. Vice President Alan Berkley who, up to September 1960 had had no part in the negotiations, was the apparent spokes- man for the Respondent. Other participants were Milton Goldstein and officials of Berkliff Undergarment Corporation and of the Respondent. The parties discussed the Union's draft contract. The credited testimony is that Vice President Alan Berkley questioned two provisions in the draft. The 5-percent wage increase, and the "Southern Shop" clause. With respect to the wage increase, Janis and Milton Gold- stein told Alan Berkley that it had been agreed upon, Janis adding that he would not renegotiate at this stage. As to the "Southern Shop" clause, Janis suggested an immediate consultation with the Respondent's attorneys, Conrad and Smith, to resolve any issue. Attempts to secure such a consultation on that day were unsuccessful, but a meeting was arranged in the office of Conrad and Smith for October 10, 1960. No 3 As Production Manager Ludwig testified, "An area of agreement had been reached subject to proper language and . . approval " Milton Goldstein's testimony was that except for the "Southern Shop" clause, "every demand made by the Union was disposed of either by complete agreement, by agreement after modification, or by withdrawal of the demand " Janis' testimony, in sum , is that after the July 7 meeting the parties were in agreement 3 \Vhile the negotiations were going on, President Berkley had purchased the interest of his associate in the Respondent, Philip Lipton, assuming additional financial burdens At the same time sales volume was falling off President Berkley's testimony amply sup- ports his admission of desire to avoid executing an agreement, to wit. Throughout the period of late summer and fall 1960 Union Representative Janis besought him to sign an agreement, finally with "a certain amount of impatience", he (Berkley) "had been stall- ing" and "wanted to continue stalling" ; in September he told Janis on one of these occa- sions "Don't rush me, I never do anything without my lawyers" ; on another occasion, in September or October, when Janis inquired of him whether he wanted an agreement and Berkley wished to "continue stalling," Berkley sent Janis "downstairs" to talk to other company officials. Lou Berkley never read the Union's contract proposals 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD objection was raised to any other provision of the draft and, other than as stated, the parties were in apparent agreement.4 The October 10 meeting was held as arranged. Present were Attorney William Conrad, Milton Goldstein, San Janis, and-for some of the time-Attorney Arnold Goldstein. Attorneys Goldstein and Conrad indicated their dislike of the format of the draft contract and suggested that the agreemnet should be in the form of a supple- ment to the existing contract-a suggestion to which Janis acceded. The Respondent's representatives again objected to the "Southern Shop" clause. Conrad, who was not in good health and about to leave for Florida, asked Janis whether the matter had to be settled immediately. Janis said that it did, "today." He alluded to the long months of negotiation, stated that the parties were in agreement on all other matters, and that he wanted the contract signed Conrad thereupon telephoned Janis' superior, Edward Kramer, vice president of the Union and general manager of its eastern region, with whom Conrad was acquainted. Conrad explained the situation to Kramer and asked that the matter be held in abeyance until his return from Florida in 6 to 8 weeks. When Kramer suggested to the reluctant Janis that they accommodate Conrad, Janis raised an additional objection: The wage increase which had been promised, and which the Union had announced to the employees on September 16, had not yet been paid, and if something were not done there would be a strike. Janis reiterated that everything else had been negotiated. Conrad then turned to Milton Goldstein and asked if everything else had been settled. Milton Goldstein replied to the effect that it had, that the parties were in essential agreement. Union Representative Kramer, who had confidence in Conrad's word, then agreed to defer the matter if the wage increase were immediately paid, and persuaded Janis to that understanding. Attorney Conrad then telephoned President Lou Berkley and told him that the Union was will- ing to defer the "Southern Shop" clause but that it insisted that the 5-percent wage increase be put into effect. Berkley agreed, Conrad so informed the union repre- sentatives, and the meeting broke up with the understanding that the wage increase would be put into effect and that the parties would dispose of the "Southern Shop" clause upon Conrad's return from Florida. The Union also assented, at the Re- spondent's insistence, that the agreement be put in the form of a supplement to the old contracts, rather than a completely integrated new document After this meeting Milton Goldstein concluded that negotiations were completed as far as he was concerned. Later in October the wage increase was put into effect i etroactive to July 1, 1960 5 In late October or November 1960 and twice in the month of January or February 1961, company and union officials met to discuss local plant problems and layoffs. There was no discussion of the contract at any of these meetings. There were, in fact, no further meetings to discuss the contract until April 1961, under circumstances to be disclosed. Attorney Conrad's condition did not improve to the point where he was able to conclude the matter. In the latter part of 1960 Union Representative Janis began to call the office of Conrad and Smith as to when Attorney Conrad would return from Florida. Eventually-apparently early in 1961-Attorney Arnold Goldstein reported to Janis that Conrad had become seriously ill. At the time of hearing Attorney Conrad had not resumed practice. After this conversation with Arnold Goldstein, Janis had his attorney, Peter Schlesinger, draft the contract in the form of a supplement to the existing agreement, in accordance with the request of Conrad and Smith at the October 10 meeting, and, under date of Tuesday, February 7, 1961, Janis forwarded this document to Attorney Arnold Goldstein, with an accompanying letter expressing the hope that at a meeting scheduled for the following Thursday, "we can finish this matter up " The record does not reveal that any such meeting was held. Though this contract had been drafted to meet the Respondent's objections to an integrated instrument, and its stated preference for a supplement, when a document identical thereto, except for the deletion of paragraph 12 (the "Southern Shop" clause), was later presented to the Respondent for signature, President Berkley objected to it, according to his testi- mony, because it was a supplement and not an integrated instrument: "It was getting too complicated." 4 Though Alan Berkley's testimony suggests that he had "personal" reservations as to certain of the items of agreement, he indicated no official objection Testimony to the effect that Alan Berkley also questioned the form of the contract at this meeting is not credited, though in the light of subsequent events the issue does not appear to be critical 5 There is no explanation in the record as to why the remaining issue was not referred for disposition to Attorney Arnold Goldstein, to whom the Union's original draft had been sent for clearance, rather than await the return of Attorney Conrad from Florida WATERTOWN UNDERGARMENT CORPORATION 297 In the meantime dissatisfaction, some endemic and some an obvious consequence of the Union's inability to conclude an agreement with the Respondent, and stimu- lated by suggestions and other conduct of the Respondent, was developing among the employees. These occurrences are discussed infra. The Union received no response to Janis' letter of February 7, 1961. Twice there- after, at intervals of about 3 weeks, Attorney Schlesinger telephoned Attorney Arnold Goldstein about the matter, and was told, in effect, that the question of the "South- ern Shop" clause was still unresolved. On the second of these occasions, in late March or early April, Schlesinger asked Goldstein to return the document, saying that the Union would handle the matter directly. The record does not reveal any state- ment of position, proposal, or suggestion by the Respondent during this period of time concerning the "Southern Shop" clause or any other matter involved in the contract negotiations Upon the advice of Attorney Schlesinger, the Union then decided to withdraw its demand for the "Southern Shop" clause. Schlesinger thereupon redrafted the con- tract to delete that clause and, as thus revised, transmitted the agreement to the Respondent. This is the document, previously referred to, which President Berkley found objectionable for, among other reasons, that it was not an integrated instrument. In the meantime a petition for decertification of the Union had been filed by em- ployees on March 15, 1961, followed 5 days later by union charges of unfair labor practices against the Respondent. On April 17, 1961, the Acting Regional Director dismissed the decertification petition on the ground that no question concerning rep- resentation existed. No appeal was taken from this action. On the day following this dismissal, April 18, 1961, President Lou Berkley tele- phoned the Union's vice president and region manager, Edward Kramer, Janis' superior, and asked Kramer to meet him for lunch, alone. Kramer accused Berkley of seeking to decertify the Union, which Berkley did not directly deny, but an appoint- ment was made, and Kramer and Berkley met on April 20. At this time, and for some time past, most employees had not been working full time. At the April 20 meeting, Kramer told President Berkley that the Union was withdrawing its request for the "Southern Shop" clause and asked Berkley to sign the contract without that clause. Berkley, alluding to financial difficulties, said that to sign the contract would put him out of business, and asked Kramer to give him "a break." Berkley then stated that he would sign the agreement on certain conditions, namely: (1) That the 5-percent wage increase be withdrawn, (2) that payments by the Respondent to the welfare fund be suspended for a period of a year, and (3) that the provisions for severance pay and for a minimum pay scale 15 cents above the Federal minimum wage be deleted.6 Kramer replied that this was impossible, but offered to make an investigation of the circumstances, including inspection of the Respondent's financial records, and if warrant for modification were disclosed, to attempt to secure employee consent. Berkley told Kramer that the employees were willing to waive the 5 percent. In consideration of these concessions, President Berkley told Kramer that he would bring machines back from the South and thus increase the Union's dues income from the shop? The net result of the April 20 meeting was that Lou Berkley refused to sign the contract proposed by Kramer, and Kramer refused to accept the modifications pro- posed by Berkley. Within the week the Union filed a new unfair labor practice alleging that the Respondent refused to bargain collectively by, inter alia, refusing to execute the contract. On May 6, 1961, a meeting was held at the office of the Respondent's Waterbury counsel, Mr. Larkin, attended by representatives of the Union and of the Respond- ent. So far as here material, the sum of this meeting was as follows The Union presented a written draft of the terms previously agreed to or found unobjectionable by the Respondent, but without the "Southern Shop" clause, and demanded that the Respondent sign it. This document, Respondent's Exhibit No. 2, in the form of a supplement to the existing contract, is-save for the deletion of the "Southern Shop" clause-the same as the draft submitted to Conrad and Smith after the October 10, 1960, meeting. The Respondent's representatives refused to execute the contract, stating that none of the items, other than the 5-percent wage increase, had been agreed to. As to the 5-percent provision, the Respondent said that that would have to be withdrawn. The Respondent's representatives further said that they wished to negotiate an agreement, urging as justification certain economic and operational problems. The Union refused to renegotiate the settled matters, on e President Berkley testified that he also objected to other items, which he did not, however, identify in his testimony 7 For an explanation of President Berkley's references to the attitude of the employees and to moving the machines back, see section III, C, 1, infra 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the ground that they had been bargained to mutual conclusion. However, the Union offered to seek solutions to the Respondent's stated problems once the agreement was signed. The meeting ended without change in position by either side. At a subsequent meeting of the parties about June 26, 1961, the Union proposed an adjustment, the terms of which are not disclosed, which President Berkley ac- cording to his testimony deemed favorable, and on the following day the Respondent held an election, described hereinafter, among the employees as to whether the Respondent should make a contract with the Union. The vote was against acceptance. C. Interference, restraint, and coercion While the above events were taking place, officials and supervisors of the Re- spondent were engaging in conduct at the Waterbury plant alleged to constitute unfair labor practices, or to be illuminative of the Respondent's animus or opposi- tion to the Union and its bargaining positions. These will be treated chrono- logically. Some of the incidents are undenied. Where the facts are disputed the findings hereinafter are based on testimony which, after evaluation, and from ob- servation of the demeanor of the witnesses, I deem most credible. Some incidents concerning which the General Counsel adduced evidence are not adverted to. I find that these do not reflect unfair labor practices, either because I have not found probative the General Counsel's testimony concerning them, or have found more credible the Respondent's opposing testimony, or because, accepting either version, the occurrences do not constitute substantial evidence. (1) Statements of President Berkley and Production Manager Ludwig: About late September or October 1960, President Lou Berkley, on a visit to the plant, spoke to employees Virginia Costa and Mamie Ogletree, union committeewomen, and told them that if the Union was kept in he would move machines to Statesville (the location of Beauty Maid Mills). Costa and Ogletree told President Berkley that they had no authority to break up the Union. Several weeks later some machines were moved out of the plant. In this conversation President Berkley also told the employees that business was bad and there was no work and that because of the 5- percent wage increase the Respondent could not compete. The girls' spokesman asked what the situation would be if they would "forget about the five percent." President Berkley responded that the girls should do "whatever your heart dictates." 8 In October 1960, Solomon Ludwig, then the Respondent's production manager, told employee Antoinette D'Amico, chairman of the Union, that if the Union pushed the Company too far it would move out.9 (2) Herbert Berkley's statement to D'Amico: About the early part of December 1960, Herbert Berkley, son of President Lou Berkeley, and a supervisor and repre- sentative of management, came to Union Chairlady D'Amico at her place of work and asked D'Amico to arrange a meeting with him of the union committee. D'Amico asked the reason Berkley said that the Union was making trouble and that if the Union wanted the shop to move out to let him know so that he would not fix his offices. He further told D'Amico that a nonunion shop in Waterbury was expanding, whereas the Respondent was getting smaller and smaller because the Union was pushing it too far. (3) Herbert Berkley's statement to the group in the lunchroom: At lunchtime on the day of the incident just described, Herbert Berkley spoke to employees Vir- ginia Costa and Mamie Ogletree in the lunchroom. Herbert Berkley said that if the Union stayed his father would move the plant to the South. Employees D'Amico and Mira Squillacioti joined the group. Herbert Berkley asked whether they would go on strike if the southern shop struck. D'Amico, speaking for the group, re- sponded to the effect that she could not answer. s The record indicates that a reduction in piece rates, following the 5-percent increase. resulted in an actual diminution in pay for some pieceworkers in the sewing room, and was a source of dissatisfaction However, most employees benefited from the increase There is no explanation for this reduction 'No finding of unfair labor practices is made on either of these incidents The evi- dence does not clearly establish that the occurrences involving President Berkley occurred during the period 6 months prior to the filing of the charge-a requisite under Section 10(b) of the Act for a finding of unfair labor practices The incident involving Solomon Ludwig is not alleged in the complaint However, the evidence of both occurrences is relevant to evaluation of the Respondent's other conduct Arelson Manufacturing Com- pany, 88 NLRB 761 ; Edwards Brothers, Inc., 95 NLRB 1451 , Coppus Engineering Corpo- ration v N L R B, 240 F 2d 564 (C.A 1) ; Superior Engraving Company v N L R B, 183 F 2d 783 (CA 7), cert denied 340 US 930. WATERTOWN UNDERGARMENT CORPORATION 299 In the same conversation Herbert Berkley asked the employees how much dues they were paying. Squillacioti said $4 a month. Herbert Berkley commented that $48 a year was a lot of money for the benefits, and said they could be getting the same benefits without the payments. He told the employees to think the matter over, and to come to talk to him about it, because he knew that they were not looking for any trouble. (4) Production Manager Pomerantz' statements to Costa: About December 15, 1960, Production Manager Eli Pomerantz came to employee Virginia Costa's place of work in the plant and suggested to Costa that the Union was no good and should be gotten rid of, and that since Costa was on the union committee she should get the employees to break up the Union. Pomerantz went on to say that if Costa did so she would have steady work and all the benefits, but that if the Union stayed the plant would move. Costa replied to Pomerantz, as she had to President Berkley, that she had no authority to break up the Union. (5) Supervisor Conte's statement to employee Alcorace: About January 15, 1961, employee Grace Alcorace, who was on sick leave, spoke to her supervisor, Caroline Conte, on the telephone. During this conversation Alcorace asked Conte about a rumor to the effect that the employees had been given 3 weeks to make up their mind as to whether they wanted a union. Conte told Alcorace that the rumor was true and that the girls had been notified that if the Union stayed in, the shop would be closed, but that if the Union got out there would be plenty of work. (6) The circulation of the petition for the ouster of the Union: On February 22, 1961, several rank-and-file employees began to solicit signatures of employees to a document or petition bearing the heading "Out With The Union." This action took place in the plant, partially on working time. Other employees donned signs to the same effect which they carried on their backs. One sign was posted in the lunchroom. Union demands for removal of the signs were refused by Herbert Berkley and Production Manager Pomerantz, Berkley not wanting it to appear that they were "going against the girls." Some of the employees in the plant spoke Italian but could not speak English. Although some of the solicitors for signatures could speak Italian, Supervisors Be- atrice Bounacassio, Josephine Catalino, and Nicholas DeZinno, at the request of solicitors, spoke to employees in Italian and explained that the purpose of the activity was to get the Union out of the plant. Supervisor Catalino told employees to do what they "thought right" about it. The Respondent made no attempt to regulate this activity. More than a majority of the employees signed this document. (7) Statements of Supervisors Bounacassio and Conte to employees: On the day the circulation of the antiunion petition began, February 22, 1961, Supervisor Bouna- cassio spoke to a group of girls in the finishing department and told them that Mr. Berkley had said that if the girls got rid of the Union there would plenty of work in the shop and that they would need to pay only $2 a month (insurance premiums) to get the same benefits. Later in the same day Supervisor Bounacassio came to employee Isabel Simmons, a member of the union committee, and told Simmons that the plant would be closed in 3 weeks because of the Union. Sometime prior to the distribution of the petition, Supervisor Caroline Conte also told a group of girls that the plant was going to close. (8) The document against union dues: In the latter part of April 1961 another document appeared in the plant bearing the heading "We The Undersigned Refuse To Pay Our Union Dues." This document was circulated among the employees for signatures. In the cutting room Foreman DeZinno explained it to Carmena Fonzo, though there is no indication in DeZinno's testimony that the solicitor asked for assistance or that it was required. As with the petition to oust the Union the Respondent made no attempt to interfere with or to question his activity. A sub- stantial number, but less than a majority of the employees, signed this document. (8) Squillacioti and the collection of union dues: Though the activities of em- ployees in promoting the two petitions opposing the Union were unimpeded, Herbert Berkley and Production Manager Pomerantz called in employee Mira Squillacioti in early June 1961 and told her they had information that she was collecting union dues on worktime, which Squillacioti denied. Pomerantz suggested that Squillacioti secure from employees desiring to have their dues paid to the Union signed authoriza- tions to be deposited with the Respondent. Squillacioti did not assent to this proposal. (10) The election: During the week prior to the hearing, the Union offered the Resnondent an adjustment which the Respondent -assertedly contemplated favor- ably On June 27, 1961, informed that some employees would quit if the Company 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed with the Union, the Respondent assembled all the employees in the plant on Company time and Production Manager Pomerantz and Herbert Berkley ad- dressed them, following which a vote was taken as to whether the Respondent should sign a contract with the Union. In his statements Pomerantz denied promising the employees better jobs and more money, but he said that he had told girls that the Company would pay half of the cost of an insurance program (more specifically detailed infra). He then said that they were going to have an election and if the employees voted "yes" the Company would negotiate the contract with the Union; but if they voted "no" the Company would fight the Union. One of the employees asked what would happen to their benefits if the Union were voted out. Herbert Berkley answered that the benefits would continue as before. The election was by secret ballot under the supervision of the supervisor L,, two of whom stood at the door of the voting room and another at the ballot box itself. A union committeewoman assisted in the counting of the ballots. The vote was 74 "no" and 34 "yes." Two ballots were blank. (11) The unilateral negotiation of an insurance program: Employees who ceased to pay dues to the Union during the period of the defections ceased to receive certain union insurance benefits. Shortly before the election just described, the attorney for the Intervenor, on behalf of his clients, requested the Respondent to establish an insurance program for them. Production Manager Pomerantz negotiated such a program with Nationwide Insurance Company, providing for life insurance and a weekly indemnity for illness. Pomerantz committed the Respondent to defray $3.78 per employee per month for this program, with the employee paying $3. The in- surance company representative then came into the plant, interviewed employees, and registered those expressing desire for the policies. The arrangements have not as yet been finally accepted by the Respondent, according to Pomerantz. The Respondent did not consult the Union with respect to the negotiation of this program. Concluding Findings as to Interference, Restraint, and Coercion The conduct described in paragraphs numbered (2) to (11) inclusive, supra, was coercive of employee rights guaranteed in Section 7. In the context here, the statements and suggestions of the Respondent's repre- sentatives to the effect that the plant would close or move to the south constituted threats of reprisal for union adherence. Interrogation of the employees in such an atmosphere as to their union activities and attempts to secure their abandonment of the Union were equally repressive. Under the circumstances, the declarations to employees to the effect that they could secure the same benefits as provided by the Union without the payment of union dues constituted promises of benefit calcu- lated and likely to procure abandonment of the Union. It is elsewhere found that the Respondent refused to bargain with the Union Against the background of that action, maintained for a sustained period of time, and accompanied by the coercive measures described, the disaffiliation movement is to be attributed to the Respondent's unfair labor practices 'and not to free and uncoerced dissatisfaction with the Union, though no doubt some latent disapproval existed. When the employer makes it plain to employees that they must choose between the union and employment, the selection can scarcely be characterized as voluntary. The Respondent's toleration of and encouragement and supervisory assistance in the circulation of the antiunion petitions and action, while discouraging union activity on ,the premises, is indicative of discriminatory application of restric- tions upon concerted activity within the plant. The election of June 27, 1961, was violative of the Act. The Board has recently held that such a poll of employees after the commission of substantial unfair labor practices designed to secure abandonment of a union is coercive Standard Rate and Data Service, Inc., 133 NLRB 337 And see Frank .Sullivan & Co., 133 NLRB 726. Cf. Blue Flash Express, Inc., 109 NLRB 591; N.L.R B. v. Protein Blenders, Inc., 215 F. 2d 749 (C.A. 8); and N.L.R.B. v. Russell Kingston, 172 F. 2d 771 (C A. 6), which involve distinguishable situations from that here. The assurances given to employees prior to the election to the affect that benefits would continue as before if they voted against the Union, and that the Respondent would pay half the cost of an insurance program, constitute promises of substantial economic benefit inducive of abandonment of the Union. That the Respondent may be the time of the election have actually desired employee acceptance of a contract, if true, would not be a defense. The legality of the Respondent's conduct must be evaluated upon the basis of its reasonable and probable effect in the context of coercion in which it occurred. By this time the Respondent's unfair labor WATERTOWN UNDERGARMENT CORPORATION 301 practices had made any result but rejection unlikely. The tally is probably most probative of the success of the Respondent's efforts at securing repudiation of the Union. In any event, as the Supreme Court said in the Case of Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 687, the respondent ". . . was not relieved from its obligations because the employees asked that they be disregarded. The statute was enacted in the public interest for the protection of the employees' right to collective bargaining and it may not be ignored by the employer, even though the employees consent. . . . In view of their widespread nature the Respondent's contention that the inci- dents are isolated is without merit. The assertion that the supervisors' actions in connection with explaining the petitions were only an "accommodation" because of language difficulties is belied by the circumstances of the conduct. Whether the sentiments expressed by the supervisors and officials actually represented company policy, or the genuine intention, attitude, or views of the spokesmen, or were spe- cifically authorized, is not material in the light of their context. All the declarations were apparently seriously expressed, the spokesmen were agents of the Respondent and purported to state its views. Whatever their basis in fact, the statements were such as in the circumstances would tend reasonably to coerce employees in the exercise of their statutory right to free choice as to bargaining representation. They are therefore violative of Section 8(a)(1). D. The refusal to bargain In the recent case of WATE, Inc., 132 NLRB 1338, a case in essential particulars much like the instant one, the Board restated principles of good-faith bargaining dispositive here.iO The duty to bargain collectively is defined in Section 8(d) as: . the performance of the mutual obligation of the employer and the repre- sentative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: . . . . In the case of Globe Cotton Mills v. N.L.R.B., 103 F 2d 91, 94 (C.A. 5), the court said: " . . there is a duty on both sides, though difficult of legal enforcement, to enter into discussion with an open and fair mind, in a sincere purpose to find a basis of agreement. . It is to be expected of a party to collective bargaining that he display therein a degree of diligence comparable to that which he may be expected to display in the dispatch of his other business affairs of importance. J. H. Rutter-Rex Manufactur- ing Company, Inc., 86 NLRB 470. Failure to cooperate in the making of expeditious arrangements for resolution of differences in bargaining may be evidence of bad faith. J. H. Rutter-Rex Manufacturing Company, Inc., supra; N.L.R.B. v. Harold Hibbard, et al., d/b/a Hibbard Dowel Co., 273 F. 2d 565 (C.A. 7). Delay, stalling, or sophisticated evasion rebut inference of good faith. N.L R.B. v. Herman Sausage Company, Inc., 275 F. 2d 229 (C.A. 5); N.L.R.B. v. Stanislaus Implement and Hard- ware Company, Ltd., 226 F. 2d 377 (C.A. 9). To this may be added delay secured through imposition upon the patience, good nature, or confidence of the other party. J. H. Rutter-Rex Manufacturing Company, Inc., supra; WATE, Inc., supra; N.L.R.B. v. A. E. Nettleton Co., et al., 241 F. 2d 130 (C.A. 2). The determination as to whether the bargaining reflects good faith must be made upon the basis of the Respondent's whole course of conduct and not on the negotia- tions alone. N.L.R.B. v. Insurance Agents' Union, 361 U.S. 477, 501. Hostility or contemporaneous unfair labor practices provide reliable evidence of deceptive deal- ing. Equally probative, in appropriate context of facts, is a failure to make reason- able effort to adjust differences, or the presentation of obviously unacceptable proposals. Good faith does not, of course, require the yielding of position fairly maintained: N.L.R.B. v. Herman Sausage Company, Inc., supra. However, as the 10 In the WATE case, after reaching substantial agreement, except for several changes desired by the employer in the union's draft contract, the employer delayed completion of the contract, ostensibly because of illness of counsel In the meantime the employer committed unfair labor practices eventuating in defections from the union and the filing of a decertification petition When the union thereafter accepted the changes proposed by the employer, the employer withdrew Its proposals The Board held that the union's acceptance of the employer's changes constituted an agreement which the employer was obligated to sign 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD court said in the case of N.L.R B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 134-135 (C.A. 1), cert denied 346 U.S 887: ". . while the Board cannot- force an employer to make a `concession' on any specific issue or to adopt any par- ticular position, the employer is obliged to make some reasonable effort in some di- rection to compose his differences with the union. " See also Wheatland Electric- Cooperative, Inc. v. N.L.R.B., 208 F. 2d 878 (C.A. 10), cert. denied 347 U.S. 966. So is refusal to sign an agreed upon contract evidence of bad faith: H. J. Heinz Company v. N.L.R.B.., 311 U.S. 514; WATE, Inc., supra; N.L.R.B. v. New England- Die Casting Company, 116 NLRB enfd. 242 F. 2d 759 (C.A. 2); or one agreed- to by one's representatives, even though including objectionable provisions accept- able to a majority of one's group : Anderson Lithograph Company, Inc., et al., 124 NLRB 920; changes in and dealing with others concerning conditions of employ- ment while negotiating with a bargaining representative, WATE, Inc., supra; shifting of position, repudiation of agreements previously reached, or reopening settled issues: N.L.R.B. v. National Shoes, Inc., et al., 208 F. 2d 688 (C.A. 2); Winchester Elec- tronics, Incorporated, et al., 128 NLRB 1292, enfd., 295 F. 2d 288 (C.A. 2); N.L.R.B._ v. International Furniture Company, 212 F. 2d 431 (C.A. 5); Stanislaus Implement- and Hardware Company, Ltd., supra; and failure to study proposals, Wheatland Elec-, tric Cooperative, supra, and to present written counterproposals, Globe Cotton Mills, supra. When ,the Respondent's conduct here is measured against these requirements it is, seen to meet none of them, and thus falls short of compliance with the statutory- obligation to bargain in good faith. The facts establish that by July 7, 1960, the Respondent and the Union were in, agreement on all bargaining matters at issue between them with the sole exception- of the "Southern Shop" clause. Thereafter, for reasons best known to himself, but perhaps attributable to financial problems arising from purchase of his associate's. interest and leveling off of sales, President Berkley, in his own words, began to "stall" the matter of signing the contract. Though the 5-percent wage increase had been agreed to and announced to the employees, he did not put it into effect until threatened with a strike. Despite the fact that Union Representative Janis desired completion of the contract and pressed for it, President Berkley put him off by one device or another. At the same time the Respondent began the course of coercive action at the Waterbury plant-ultimately successful-designed to secure repudia- tion of the Union by the employees. From July 7, 1960, onward there was no substantial issue between the parties not susceptible of prompt resolution by good- faith bargaining. In September and October 1960 discussions-unproductive, and in the context of is- sue presented, quite pointless and merely a pursuance of President Berkley's policy of "stalling"-took place in "a general area or feeling of agreement." At no time did the Respondent's representative suggest any means, reasonable or otherwise, of resolution of the asserted differences over the "Southern Shop" clause. Referral of the matter to the Respondent's attorneys for legal opinion did not advance a solution. The attorneys did not pass upon the substantive terms of agreement and President Berkley, who alone assertedly could, did not read the Union's proposed contract. When the Respondent's attorneys objected to the format of the contract on the ground that it should be a supplement rather than an integrated instrument, the Union obliged by drafting the agreement in the form of a supplement. President Berkley then objected to that because it was in the form of a supplement, and not an integrated document. It is found by July 7, 1960, there were no unresolved issues between the parties other than the "Southern Shop" clause." And even if there were other differences, the record does not reflect that the Respondent made any good-faith effort after July 1960 to secure resolution of them. In ,this connection it seems significant that at no time, so far as the record reveals, did the Respondent ever present written counter- proposals to the Union containing the terms of an agreement which it was prepared to sign. Ultimately, as might be expected, dissatisfaction was nurtured among the em- ployees. Under the circumstances the resulting defections must be attributed to the Respondent's unfair labor practices. See cases cited infra, subsection F. Testi- 11 There is testimony by President Berkley to the effect that at the time he granted the wage increase, the Union had abandoned its insistence on the "Southern Shop" clause. I have concluded that this testimony is inadvertent and mistaken. If it is not, there was plainly no issue of any kind outstanding and unresolved after early September 1960, and no shadow of reason thereafter for the Respondent to have refused, declined, or failed to sign the collective=bargaining agreement. WATERTOWN UNDERGARMENT CORPORATION 303 mony of leaders of the defection movement to the effect that their dissatisfaction with the Union had other causes does not overcome this conclusion.12 Finally in April 1961, unable to secure either the execution of a contract or a definitive statement from the Respondent as to a "Southern Shop" clause, the Union withdrew the "Southern Shop" clause entirely. The defection movement now being underway, the Respondent demanded the renegotiation of the entire contract. It re- fused to sign the contract containing only terms on which the Respondent had previously agreed. Specific illustration of the Respondent's bad faith at this time, and its contemporaneous assistance of the defection movement, is found in President Berkley's demand in the April meeting with Kramer for elimination of payments to the union welfare fund, at the same time that the Respondent was promising em- ployees, concerned over the loss of union benefit payments, to defer half the cost of an insuraiace program. • in the light of these circumstances it follows that the Respondent did not bargain in goy aith with the Union. The defense that agreement had not been reached on the "Southern Shop" clause, and that therefore the Respondent was free because of changing economic conditions to ask renegotiation of any prior agreement is in- applicable in the present context of fact. Such a contention, perhaps valid where a party has bargained in good faith, has no application where the bargaining has been carried on in bad faith. In view of the above findings, other contentions of the Respondent now raised for the first time, such as that the Union's demands were unlawful under Section 8, do not require discussion. I perceive no illegality in the proposals. Minnesota Milk Company, 133 NLRB 1344. E. The appropriate unit and the Union's majority It is not disputed and it is found that the following employees constitute an ap- propriate bargaining unit within the meaning of Section 9 of the Act: All production employees of Respondent employed at its Waterbury plant, exclusive of office-clerical employees, maintenance employees professional, employees, shipping employees, order pickers, factory-clerical employees, guards, and all supervisors as defined in Section 2(1(1) of the Act. The Respondent asserts that the Union does not represent a majority of the employees. A refusal to bargain based on good-faith doubt as to a union's ma- jority may, in an appropriate circumstance, constitute a valid defense to a refusal-to- bargain charge. Here there was no refusal to bargain based on asserted doubt as to the Union's majority. The Union had been the contractually recognized bargain- ing agent since 1954. In the absence of evidence of initial irregular recognition or of uncoerced loss of representative status, there is a presumption of regularity in the recognition of and of continuing majority status in a contractually recognized union. Shamrock Dairy, Inc., et al., 124 NLRB 494. There is no evidence of any defection until February 1961. This was more than a year after the bargaining negotiations had begun, and months after the Respondent had commenced its dilatory bargaining tactics and the coercive practices designed to secure repudiation of the Union. The defections, as has been indicated, are to be attributed to the unfair labor practices, and consequently do not affect the Union's majority status. Medo Photo Supply Corporation, 321 U.S. 678, 687; Parma Water Lifter Company, 102 NLRB 198, enfd. 211 F. 2d 258 (C.A. 9), cert. denied 348 U.S. 829; Charles C. Cathey, etc., d/bla Cathey Lumber Company, 86 NLRB 157, 168, enfd. 185 F. 2d 1021 (C.A. 5). What the Supreme Court said in Medo Photo Supply Corporation is applicable here: [The Respondent] cannot, as justification for its refusal to bargain with the Union, set up the defection of union members which it had induced by unfair labor practices, even though the result was that the union no longer had the support of a majority. It cannot thus, by its own action, disestablish the union as the bargaining representative of the employees, previously designated as such of their own free will. . . . [The Respondent's] refusal to bargain under those circumstances was but an aggravation of its unfair labor practice '= In this connection it is of interest to note that some of the reasons cited by the Respondent for the disaffection related to action or positions of the Respondent itself the "unconscionable procrastination of the Union in getting a contract signed," inade- quacy of the Union's hospitalization program, inadequacy of the wage increases secured by the Union from the Respondent, and the Union's "Failure to object to unilateral cutting of piece rates by the Company " These observations are to be compared with the Re-, spondent's admitted efforts to dilute even such benefits as the Union had secured. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in destroying the majority's support of the union, and was a violation of [Section 8(a)(1) and (5) of] theAct.13 In any event, the situation is such that effectuation of the policies of the Act requires an order to bargain, whether the loss of majority is attributable to the unfair labor practices or to other causes. Franks Bros. Company, 321 U.S. 702. The decertification petition did not cause the Respondent to doubt the Union's continued majority since it met with the Union thereafter without indicating it doubted the Union's representative status. The Perry Rubber Co., 133 NLRB 225. Not until late spring 1961, is there any suggestion that the Respondent questioned the Union's majority. By that time the Respondent's unfair labor practices had made the issue inadmissible. Nor, under the circumstances, would the filing . the decertification petition have excused refusal to bargain even if urged as ground, which it was not. An employer may lawfully bargain with a union during the pendency of a decertification petition. Perry Rubber Co., supra. The petition here was dismissed by the Regional Director. There could therefore be no claim of good-faith doubt by reason of the pendency of such a petition. The asserted willing- ness to contract in June does not excuse the prior refusal to bargain. Perry Rubber Co., supra. It is found that at all times material the Union was and is now the exclusive col- lective-bargaining representative of all employees in the appropriate unit within the meaning of Section 9(a) of the Act. F. General conclusions Upon the basis of the foregoing findings, it is not concluded that the Respondent did not bargain in good faith with the Union, repudiated agreements made with the Union, refused to sign a contract containing the terms agreed upon between the parties, and negotiated an employee insurance program without notification to the Union, thus refusing to bargain collectively, and by those actions and by the conduct described in subsection C, paragraphs numbered (2) to (11), inclusive, supra, inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. The Respondent was thus in violation of Section 8(a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent refused to bargain collecitvely with the Union it will be recommended that the Respondent so bargain. In addition, it hav- ing been found that on April 20, 1961, the Union withdrew its demand on the only remaining issue between the parties, the "Southern Shop" clause, the Respond- ent, by refusing, then and thereafter, to execute such agreement, refused to sign a contract upon agreed terms. It will therefore be recommended that the Respond- ent, upon the Union's request, sign a collective-bargaining agreement with the Union incorporating the terms of Respondent's Exhibit No. 2. If no such request is made it is recommended that the Respondent, upon request, bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed contract. WATE, Inc., 132 NLRB 1338; Winchester Electronics, Inc., et al., 128 NLRB 1292, enfd. 295 F. 2d 288 (C.A. 2); cf. Shreveport Garment Manufacturers, 133 NLRB 117; Ridge Citrus Concentrate, Inc., 133 NLRB 1178. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 13 The probative value of repudiations secured under circumstances such as these may be gauged from the action of one employee, Carmena Fonzo, whose signature appears on WATERTOWN UNDERGARMENT CORPORATION 305 2. All production employees of Respondent employed at its Waterbury plant, exclusive of office clerical employees, maintenance employees, professional em- ployees, shipping employees, order pickers, factory clerical employees, guards, and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The Union at all times material herein has been, and is now, the exclusive repre- sentative of all employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing to bargain collectively, and by interfering with, restraining, and coercing employees in the exercise of their rights under Section 7 of the Act, Respond- ent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)^(5) and (1) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent, Watertown Under- garment Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 223 of the International Ladies' Garment Workers' Union as the exclusive bargaining representative of all its employ- ees in the appropriate unit. (b) Repudiating collective-bargaining agreements reached with the bargaining representative of its employees. (c) Refusing to sign or execute collective-bargaining agreements reached with the collective-bargaining representative of its employees. (d) Threatening employees with reprisals in employment, or threatening to close or to move the plant, or promising employees economic benefits in connection with their union membership or designation or their union or concerted activity. (e) Making unilateral changes in employment conditions without consultation with the collective-bargaining representative. (f) In any other manner refusing to bargain with the collective-bargaining repre- sentative, or interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) If requested to do so by Local 223 of the International Ladies' Garment Workers' Union, sign forthwith a collective-bargaining agreement with such union incorporating the terms of Respondent's Exhibit No. 2. (b) If no such demand is made, then, upon request, bargain collectively with Local 223 of the International Ladies' Garment Workers' Union, as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed contract. (c) Post at its plant in Waterbury, Connecticut, copies of the notice attached hereto marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for the First Region, in writing, within 20 days from the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith.15 the "Out With The Union" petition. Fonzo thereafter refused to sign the declaration of refusal to pay union dues 14In the event that these recommendations be adopted by the Board, the words "Deci- sion and Order" shall be substituted for the words "Recommendations of a Trial Ex- aminer" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." is in the event that these recommendations be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 649856-63-vol. 187-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL, if requested to do so by Local 223, of the International Ladies' Garment Workers' Union, sign and execute forthwith a collective -bargaining contract with Local 223 incorporating the terms of our previous agreement. If no such request is made, WE WILL , upon request,, bargain collectively with Local 223 of the International Ladies' Garment Workers' Union, as the exclusive representative of our employees in the following appropriate unit with respect to rates of pay , wages, hours of employment , and other terms and conditions of employment, and, if an agreement is reached, embody such agreement in a signed contract . The appropriate unit is: All production employees at the Waterbury plant, exclusive of office clerical employees , maintenance employees , professional employees, ship- ping employees , order pickers , factory clerical employees , guards, and all supervisors as defined in Section 2(11) of the Act. WE WILL NOT by refusing to bargain with the collective -bargaining repre- sentative of our employees , by repudiating agreements reached in collective bargaining , or by refusing to sign or execute collective -bargaining contracts on which agreement has been reached , by engaging in threats of reprisal in em- ployment, or threats to close or to move the plant, or promises of benefit, or by making unilateral changes in employment conditions without consulting the collective-bargaining representative , or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join or assist Local 223 of the International Ladies' Garment Workers' Union , or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act , or to refrain from any and all such activities. All our employees are free to become or remain , or to refrain from becoming or remaining, members of Local 223 of the International Ladies' Garment Workers' Union, or any labor organization of their own choice, or to designate such labor organization as their collective-bargaining representative. WATERTOWN UNDERGARMENT CORPORATION, Employer Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced , or covered by any other material. Savoy Laundry, Inc. and Food, Beverage and Express Drivers Local Union No. 145, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case No. 2-CA-8082. May 24, 1962 DECISION AND ORDER On February 7, 1962, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and 137 NLRB No. 21.