Oneita Knitting Mills, Inc.

ONEITA KNITTING MILLS, INC. 689 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, we are posting this notice to inform our employees of the rights guaranteed them in the National Labor-Relations Act to conform to the policies of the aforementioned law: WE WILL bargain collectively , upon request, with Food Store Employees Union, Local ,# 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all employees, in the bargaining unit described below, with respect to wages, hours of employment, and other conditions of employment, and, if an understanding is reached we will embody such understanding in a signed contract. The bargaining unit is: All employees at our wholesale grocery warehouse and Cash and Carry store, exclusive of office clerical employees , salesmen, guards, professional employees, supervisors, and personnel identified with management by rea- son of their duties and, responsibilities. - WE WILL NOT discriminate against Blaine Johnson, Madison Cook, or any other employee because of union affiliation or union activity protected by the National Labor Relations Act. WE WILL pay to Blaine Johnson and Madison Cook the portion of the wages that they lost when they were discharged on May 25, 1964, and which they have not received. We will also grant to the two aforesaid employees any vacation rights or vacation pay that they would have received if they had not been discharged. WE WILL NOT interfere with, restrain, threaten , or coerce our employees in the exercise of the rights guaranteed to them under the National Labor Relations Act including the right to join the Food Store Employees Union, aforementioned, and the right to be represented by the said union for the purpose of collective bargaining, as well as the right of employees to refrain from joining a union or to refrain from union activity , except as the last-mentioned rights may be affected by a mutually agreed-upon contract between the Company and the union that could require membership in the union as a condition of employment. SEHON STEVENSON & CO., INC., Employer. Dated------------------- By------------ _------------------------------ (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. - Employees may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200, if they have any . question concerning this notice or compliance with its provisions. Oneita Knitting Mills, Inc. and International Ladies' Garment Workers' Union, Local 371. Case No. 11-CA-2170. December 29, 1964 DECISION AND' ORDER On July 20, 1964, Trial Examiner Harold X. Summers issued his Decision in the above-entitled proceedings, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dis- 150 NLRB No. 54. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD missal of the complaint as to them. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Deci- sion and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner as modified herein. The Trial Examiner found that on and after June 24, 1963, Re- spondent violated Section 8(a) (5) of the Act by refusing to discuss the Union's subcontracting proposal. In so finding, he rejected Re- spondent's contention that the proposed subcontracting clause was unlawful, and found that Respondent's "intermingling" of the sub- contracting clause with the Union's demand that Respondent agree to a position of neutrality as to the Union's campaign to organize the employees of Respondent's Cullman, Alabama, plant was a pre- text to avoid discussion of the subcontracting issue.' We believe these findings are fully supported.by the record and we therefore affirm the Trial Examiner's findings and conclusions on this aspect of the case. We find further, in basic agreement with the Trial Examiner, that Respondent's failure to bargain was not limited to the subcontracting issue, but evolved, oh and after June 24, 1963, into a general failure to confer in good faith within the meaning of Section 8(d)' of the Act. We base this conclusion on the following factors: (1) Respond- ent's refusal to discuss other matters until and unless the Union with- drew its subcontracting proposal and its neutrality pact proposal; (2) Respondent's refusal to bargain over economic matters until it had furnished certain financial information requested by the Union, even though the Union sought to bargain pending receipt of the in- formation; (3) Respondent's refusal to accept the Union's with- drawal of its request for information and Respondent's continued refusal to discuss economic issues until the information was fur- nished; and (4) the failure of Respondent's representative to-confirm his earlier statements concerning Respondent's profit picture. The foregoing actions are not the actions of one who is interested in nar- 1 By June 24 the Union had withdrawn its demand for a "neutrality clause" as a mat- ter to be included in the contract. Although the Union was still seeking such a pact, agreement thereon was not a condition to execution of a collective -bargaining agreement covering other matters . We therefore need not pass on the question. whether demand for such a clause is a mandatory subject of bargaining. ONEITA KNITTING MILLS, INC. 691 rowing issues of disagreement and broadening the areas of agree- ment. Viewed in the light of Respondent's intransigent position re- specting the subcontracting clause, a position that continued to dom- inate its strategy even after its employees struck in protest of its failure to bargain, the foregoing actions betoken an attitude opposed to any real discharge of the bargaining obligations imposed by the Act. Accordingly, we find that on and after June 24, 1963, Respondent refused to confer in good faith within the meaning of Section 8 (d) of the Act thereby violating Section 8(a) (5) and (1). ORDER. Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order, the Order recommended by the Trial Examiner and orders that the Respondent, Oneita Knitting Mills, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications : (1) Delete paragraphs 2 (a) and (b). (2) Paragraphs 2(c), (d), (e), and (f) are redesignated 2(b), (c), (d), and (e), respectively. ' (3) Add the following to paragraph 2: "(a) Upon request, bargain collectively, including discussion of the issue of subcontracting, with the above labor organization as the exclusive bargaining representative of the employees in the above- described unit, and, if an understanding is reached, embody such understanding in a signed agreement." TRIAL EXAMINER'S DECISION This case was heard upon the complaint 1 of the General Counsel of the National Labor Relations Board, herein called the Board, alleging that Oneita Knitting Mills, Inc., herein variously called Respondent, Oneita, or the Company , had been.and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, herein called the Act. Respondent's answer to the complaint admitted some of its allegations , denied some, and disclaimed knowl- edge of others ; in effect, it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Harold X . Summers at Georgetown and at Charleston, South Carolina, on January 20 through 22, 1964. All parties were afforded full opportunity to examine and cross -examine witnesses, to argue orally, and to submit briefs. Briefs filed by the General Counsel, the Charging Party, and Respondent have been fully considered. Upon the entire record in the case, including my evaluation of the witnesses based upon the evidence and my observation of their demeanor , I make the following: FINDINGS OF FACT 1. COMMERCE Respondent is a New York corporation operating a garment factory at Andrews, South Carolina, herein called the Andrews plant. During the 12 months preceding the issuance of the instant complaint, Respondent caused goods to be shipped directly 1 The complaint was issued November 22, 1963 The charge initiating the proceeding was filed June 20, 1963. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to its Andrews plant from points outside the State of South Carolina and shipped goods from its Andrews plant to points outside the State of South Carolina, each of a value in excess of $50,000. I find that Respondent is an employer engaged in commerce within the meaning of the Act. II. THE UNION The Charging Party, International Ladies' Garment Workers' Union, Local 371, herein variously called Local 371 or the Union, is a labor organization within the meaning of the Act.2 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting and background At its Andrews, South Carolina, plant Oneita manufactures briefs, athletic shorts, T-shirts, thermal underwear, and polo shirts. Since 1953, when, after an election, Local 371 was certified by the Board as the bargaining agent ' for employees at this plant, the Company and that organization have dealt with each other concerning the working conditions of these employees. Throughout the intervening 10-plus years, the relationship has been crystallized in the form of collective-bargaining agreements, with modifications and/or extensions. The last complete contract, by its terms, was to be effective from May 15, 1960, through May 14, 1963. In April 1962 the Company started an operation at Cullman, Alabama. There, in two buildings, it has engaged in the production of infants' wear, children's pajamas, and a line of T-shirts. As of the opening of this hearing, the employees of the Cullman plant have been unorganized. B. Chronology of events 3 1. In January 1963,4 Local 371 gave notice of a desire to reopen the then current contract and, pursuant to such notice, it and Oneita met nine times during the suc- ceeding months. 2. Representatives of the Company and the Union 5 first met on April 23 at the Company's office in Andrews. The Union-Regional Director Kehrer was its main spokesman-presented 16 proposals or demands involving changes in working condi- tions for inclusion in a new contract. Secretary-Treasurer Wood, speaking for the Company, said that the proposals would be studied; continuing, he noted that a casual glance at the proposals indicated that the cost of their adoption would be quite high and that he did not know where the money would come from-the Com- pany had netted but $41,000 the previous year and no longer enjoyed the tax loss write-off advantage of previous years.° 3. One of the 16 proposals related to the coverage-plantwise-of the contract and to the right of Oneita to contract work out. Presented in writing, the proposed provision, read: ARTICLE XVIII: APPLICATION OF AGREEMENT-ASSURANCE OF WORK CONTRACTORS-ADDITIONAL SHOPS 1. The terms of this agreement will apply to the shop or shops specified in this agreement and to any other shop operated by or for the Employer engaged in the production of the same general line of apparel. 2 Local 371's parent body, occasionally mentioned herein, will be referred to as the International or the ILGWU. 3 My findings of what occurred-or did not occur-as recited in this section will not be repeated elsewhere in this Decision. References to items in this section will take the form of the abbreviation "Chron.'" followed by the item number or numbers being alluded to. * Unless otherwise indicated, all dates referred to herein are within the year 1963. 5 For the Company Robert Devereux, president ; Charles Wood, secretary-treasurer ; Frank Urtz, plant manager; and Anthony Devereux, foreman. For the Union: E. T. Kehrer, southeastern regional director; Mary Cameron, International business agent; and a committee of, employees, Including LeRoy Payne, Local president, and Hazel McLaulin, chairlady. To some extent, the participants at the subsequent meetings changed from meeting to meeting, but, except where dictated by the necessities of relevance and com- pleteness, such changes will not be noted herein. 9 This finding is substantially based on the testimony of Kehrer as corroborated, In lesser detail, by Wood. ONEITA KNITTING MILLS, INC. 693 2. The Employer shall have no work performed outside of its own shop unless the workers of its inside shop are fully supplied with work, and unless such out- side shop is under contract with a local union of the International Ladies' Gar- ment Workers' Union and has complied with the terms thereof, is registered by the Employer herein with this Union, and maintains the standard of wages and hours established under the agreement herein. In addition, the Employer herein shall be responsible to the employees of such outside shop for their wages if they are not paid for the work done by them on garments of the Employer. 3. Should the Employer desire to open additional shops, notice thereof shall be given by said Employer to the Union prior to the opening of such shops and such shops shall be operated under all the terms and conditions of this agreement. In no case, however, shall the operation of such shops result in reducing the work or the number of workers at present employed in the shops to which this agreement is now applicable. (This provision shall be referred to herein as the subcontracting clause.7) There was some discussion at the April 23 meeting of the meaning of the clause and Kehrer explained.that the clause was intended to apply to the Cullman plant.8 It is clear, and I find, that as of this time-other than might be found in this explana- tion and in the express words of the proposal-there was no full discussion or explica- tion of the meaning of the clause. 4. The second meeting took place on May 14 9 at Charleston, South Carolina. Wood stated that the cost of the Union's proposals came to $382,000, an expense which the Company could,not afford to incur. To make matters worse, he continued, the Company was faced with a serious "quality" problem: rejections by a major customer, Montgomery Ward, were costing $1,000 per day. A long discussion of the problem ensued, in the solution of which the. Union offered its cooperation. Except for Wood's opening statement, there was no allusion during the meeting to the Union's original 16 demands. - 5. Before the meeting ended, Company President Devereux said that, if Ward's was lost as a customer, Oneita might be forced out of business, and he raised the possibility of there being a 1-year instead of a 3-year contract 10 At any rate, in view of the present quality problem, he asked for a 30-day postponement of negotiations. The Union agreed, and the following writing was executed by the parties: May 14, 1963 This Agreement between Oneita Knitting Mills and Local 371, ILGWU, dated May 15, 1960, is extended to June 15, 1963, with the understanding that improvements, if any, negotiated in the new contract shall be made retroactive to May 15, 1963. (S) E. T. KEHRER for Local 731, ILGWU (S) CHARLES H. WOOD for Oneita Knitting Mills 6. Pursuant to arrangements previously made, the parties met (for the third time) at the Holiday Inn, Charleston, on June 4. Wood opened the meeting with the observation that the Company had "not made much money" in the past 3 years and that its 1963 year compared unfavorably with 1962. He suggested, therefore, that the minimum hourly pay be set at $1.25 as of the following September. Kehrer , 7 Kehrer, called as a witness by the General Counsel, constantly referred to it as the "shop or shops clause" ; Wood, called by Respondent, referred to it as the "Cullman clause" ; while counsel for the General Counsel generally called it the "job-security clause." It goes without saying that, in arriving at the conclusions herein, I have not been influ- enced by any connotations found in the labels, including my own. 8 This finding is based on Wood's uncontradicted testimony. Despite the parties' stipu- lation that his reference was to the union-security clause in the contract about to expire, I find, in context, that Kehrer was speaking of the subcontracting clause, that he was saying that that clause was meant to include the Cullman plant, and that both parties were aware that he was speaking of the subcontracting clause. 8 The transcript, at one point, shows the parties to have stipulated this date to be "May 4." Subsequent testimony indicates that either they or the official reporter were in error. is Since 1956, contracts between the Company and the Union had been,of 3 years' dura- tion, and it was implicitly understood that the present negotiations were for a 3-year contract. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sarcastically expressed his "pleasure" that Oneita was willing to comply with the Federal law on hourly minimum pay,11 and the rest of the meeting was devoted to a discussion of the subcontracting clause. 7. With respect to this clause, Wood said that the Company was unwilling to accept it; Oneita felt, he said, that the Cullman employees should have the right to vote on whether or not they wanted a union . Kehrer explained that, while the pro- tection of the Andrews workers' jobs was a "must," the Union was not asking that Oneita "organize" the Cullman workers for the Union-it was merely seeking a "friendly neutrality." Further explicating, Kehrer wanted company officials at Cullman to tell any employee there who asked that Oneita had a contract with the ILGWU at Andrews and that relations there were harmonious. 8. Robert Devereux, company president, was not present at the daytime session of the meeting. When the meeting resumed upon his arrival at 10:30 p.m., he asked for an unequivocal explanation of the subcontracting clause. In response, Kehrer told him that the Union wanted language in the contract which would protect the Andrews workers' jobs; also, that it wanted a "side gentlemen's agreement" that Oneita would not fight the Union's organizing efforts at Cullman. The achievement of both points, Kehrer said; was a "must." Devereux said he could not make the decision himself- he would have to discuss the matter with his uncle (presumably a member of man- agement ) or with the board of directors, 12 and he left. 9. At one point during the meeting of June 4, Robert Noblett, secretary-treasurer of Oneita, had charged that the subcontracting clause was of interest to Kehrer per- sonally but that the Andrews employees would not "risk starving" to secure the clause. The shop chairlady, also present, had told Noblett not to be too sure about that- "If it took going back to chopping cotton, that's what we would do " At a Local 371 meeting held on June 6, the membership approved the union negotiators' stand taken on the Cullman matter, a fact telegraphically conveyed to the Company next day. 10. A meeting for June 14 was arranged by letter and by telephone. In a telephone conversation with Devereux on June 11, Kehrer attempted to reassure him with respect to the subcontracting clause. He said the Union was not "wedded" to the proposed language-that he was confident it could be "worked out." 11. On June 14, the fourth meeting took place, at the Andrews plant. The sole topic of discussion was the subcontracting clause and "neutrality" agreement. Devereux said that the board of directors had rejected the clause on the grounds that it was illegal and that the Cullman workers had the right to vote on union repre- sentation. Kehrer claimed that the clause was-legal and in common usage; also, that he knew of nothing in any law which obligated an employer to resist the unionization of its employees, as opposed to taking a 'neutral position. Devereux said that, far from being friendly, Oneita would fight the Union at Cullman-more successfully, he expressed the hope, than at Andrews in 1952 and 1953 Kehrer, alluding to the need for the subcontracting clause, charged the Company with already having moved work from Andrews to Cullman, a charge which was undenied.13 Once again, he said that a job-protection clause for Andrews and a gentleman's agreement for Cull- man were both necessary. As for the former, he said that the Union would strike for such a clause in the contract.14 The meeting was adjourned upon the parties' agreement that they were making no progress. 12. The June 14 meeting ended at 11 a.m. Fifteen minutes later, all employees of the Andrews plant left their work to meet at the Andrews Armory, where they voted to authorize the taking of any strike action by their officers before they returned to work at 2 p.m. (The action was later duplicated by workers on the second shift, who reported for work at 5 p.m. instead of their regular 3:45.) 15 11 The statutory minimum at the time of this discussion was $1 15 ; it was scheduled to rise to $1 25 on September 1. Among the 16 demands presented on April 23, Local 371 had asked for a shop minimum 15 cents higher than the statutory minimum. 12 A resolution of this irrelevant conflict in the testimony of the two witnesses testify- ing on this point is unnecessary In all material respects, their testimony did not clash. 13 Within the year preceding these negotiations, the Andrews plant had experimented with and had made samples of infants' wear. No shipments of infants' wear had been made from Andrews, however, the machinery used was moved from Andrews to Cullman and, thereafter, infants' wear was produced at Cullman 14 The finding contained in the last sentence is based on the credited testimony of Wood It did not appear in Kehrer's testimony, which otherwise was in substantial agreement with Wood's 15 No one was disciplined for being away from his work. ONEITA KNITTING MILLS, INC. 695 13. At or about the middle of June, Anthony Devereux,16 supervisor in charge of briefs and athletic shorts and assistant to the president,17 approached Bessie Howard, a sewing employee of Oneita, at her machine. He told her that, if there were a strike, she did not have to go out. When she said she was aware of this but that she would not travel the long distance from her home alone if there were a strike, he said that if she called in on the previous day, she would be given transportation and protection. Furthermore, he said, if she stayed at work she would "have seniority" because return- ing strikers would have to be "rehired." 18 14. The fifth meeting between the parties took place at the Andrews City Hall on June 18. Among Oneita's representatives, for the first time, was Thomas Kemmerlin, an attorney.19 He said that the Union had made such an issue of the subcontracting clause that the clause ought to be clarified before going further. Kehrer reviewed the history of relations between Oneita and Local 371, concluding with the observation that there was a necessity for job protection at Andrews and for an understanding about Cullman. Kemmerlin said that the proposed clause was illegal as a violation of the South Carolina right-to-work law and as a "sweetheart agreement" in violation of Section 8(a)(2) of the Act. Kehrer denied the illegality of any agreement calling for neutrality and of any agreement protecting workers' jobs. Kemmerlin said that unless the Union retreated from its position on the clause, the Company would dis- cuss nothing further. Asked to repeat this, he said he was prepared to discuss one thing-a revision of the union-security clause because it violated the State right-to- work law. Kehrer agreed, saying he had been prepared to propose the change him- self. He also expressed a willingness to table the subcontracting issue and go on to other matters, but Kemmerlin refused. Upon this note , the meeting ended 20 15. Pursuant to an exchange of telegrams initiated by David Dubinsky, president of the International, a sixth meeting was arranged to be held on June 24, at the Sheraton-Atlantic Hotel in 'New York City. The starting time was delayed 6 hours by the late arrival of Ellison Smith, an attorney 21 and one of Oneita's representatives at the meeting. Smith said he was there for the purpose of "exploring the issues"- that once he found out what they were, negotiations should resume in South Carolina. Dubinsky expressed surprise at this, since he had been under the impression that he was to help negotiate the contract 22 Nevertheless, he said the Company was entitled to know "where the Union stood" on its various proposals. He proceeded to drop or to recede from a number of the 16 original proposals,23 and to take firm positions' on others.24 Among other things, he said that a job-protection clause at Andrews was a "must," and that he "would ask" the Company not to fight the Union, at Cullman. 18 Not to be confused with his brother Robert, president of the Company. The latter is referred to herein as "Devereux" only. 17I find Anthony Devereux to have been a supervisor of and agent for the Company at all pertinent times 18 This finding is based on the credited testimony of Howard, who struck me as being a truthful person. Anthony Devereux , testifying to a conversation with Howard which he places in late May or early June, gives a completely different version-the subject of the conversation having to do with changing Howard's shifts . He conceded however,, that he may have had a subsequent conversation with Howard but that he could not recall it. Assuming that he may have forgotten the conversation in question-for he did not appear to be lying-I find that there were two conversations, the second being the one recorded above. 18 Cocounsel for Respondent in this matter. 28 This finding is based substantially on the testimony of both Kehrer and Wood. 21 Cocounsel for Respondent in this matter. 22 In one of the telegrams setting up the meeting, Robert Devereux had made the state- ment ". . . assume you [Dubinsky] have taken over negotiations." 23 Examples : He said the requested 35-hour week could be "waived"; the proposals for additional paid holidays, for shop minimum pay, and for additional vacations could be "compromised " ; the proposed craft minimums "weren't necessary" ; the Union "wouldn't strike over" the requested increase in the Company's contribution to the health fund ; and the requested leave for a death in an employee 's family "was not an issue " Upon ascertaining that Local 371 representatives had in the past been permitted to look at the Company's books, he asked his own people , "Then what have you got this the proposal that the Company's books be open for examination ] down for?" 2 He said the base rate should be at least $1 .45 and that the requested employer con- tribution to the retirement fund could not be compromised. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith stated that it was the Company 's position that the subcontracting clause was illegal, upon-which Kehrer reminded him that he well knew that the proposed lan- guage of the clause was not firm . Dubinsky apologized for what might be inept handling of issues by younger organizers ; he assured Smith that nothing illegal was being sought-"We don't want you to organize the Cullman workers; that's what we have organizers for"-and that he was confident that "lawyers could work out legal language." Smith again declined to be drawn into a discussion of substantive issues but said that, in view of the revised demands, the Company would study them and come back with counterproposals-in South Carolina. (He invited Dubinsky to participate.) 16. Before the meeting ended , it was pointed out that, the extension agreement having expired, work was now being performed without a contract . A new exten- sion was drafted on the same paper as contained the first extension, as follows: June 24, 1963 The above agreement is hereby further extended to July 10, 1963, with the same understanding that improvements, if any, negotiated in the new contract, if any, shall be made retroactive to May 15, 1963. (S) E. T. KEHRER for Local 731, ILGWU (S) CHARLES H. WOOD for Onesta Knitting Mills 17. On June 27, the parties met for the seventh time, back at Andrews. As the meeting opened, Devereux proposed that it be limited to 2 hours, a proposal rejected by the Union. Devereux then presented Company positions on five points,25 each raised for the first time and none directly keyed to any of Local 371's earlier proposals. Kehrer, for the Union, charged that these were not counterproposals as promised by Smith in New York City; and, when Devereux now asserted that the Company was entitled to make its own proposals, Kehrer added that the proposals were untimely. The meeting then recessed while the Union committee caucused. Upon resumption of the meeting, Kehrer announced that, despite the Union's belief that the Company's proposals were not counterproposals within the meaning of Smith's' promise, he was ready to state the Union's position on the Company's' pro- posals. He then proceeded to do so; in effect, the Union gave in, in whole or in part, on all five points.26 During this meeting, the only one of the Union's past proposals which was dis- cussed was one calling for a change in the method of computing pay in the knitting department; upon Kehrer's raising the subject, Wood stated that "the problem" in that department was not the method of payment but rather the location and position of the machines. Kehrer then asked if the Company was prepared to discuss any other issues at the meeting. Devereux's reply: his presentation had constituted the Company's counterproposals to the Union's demands. 18. On or about the same day (June 27), Phyllis Tisdale, supervisor of the finish- ing department,27 had a number of conversations with employees. One of these was 25 (1) The Company asked for the elimination of the dues checkoff clause (a part of the expired contract) on the ground that no "escape" period was provided. (2) It asked for the exclusion from the unit of the sewing machine fixer, who had been in the unit from the inception of this bargaining relationship. (3) It asked that "something be done" about excessive absenteeism (4) It asked that an adjustment be made in the pay of the service girls, allegedly overpaid through a past misunderstanding. (5) It asked that vacation pay be given employees directly by the Company rather than ( as since 1956) through the Union's health and welfare fund. (1) The Union would not eliminate the checkoff clause but was willing to put "escape" language in the checkoff authorization card and incorporate the whole into the contract. (2) It would agree to exclude the sewing machine fixer from the unit if this were possi- ble in the face of a prior Board finding (3), Asserting that the problem of excessive absenteeism was not one for contractual treatment, it nevertheless volunteered its coopera- tion in solving, the problem. (4) If in fact the service girls were being overpaid, the Union would enter into an appropiiate adjustment. (5) The Union was willing that vacation pay beyond the first week be given to the employee directly by the Company. 211 find Tisdale to have been a supervisor of and agent for Oneita at all pertinent times. ONEITA KNITTING MILLS, INC. 697 with Lorene Radcliffe . Radcliffe asked her what would happen - in the event of a strike-would those who stayed in have seniority over those who went out? Tisdale's answer : she didn't know and could promise nothing.28 ' 19. Tisdale also spoke to employees Dora Cameron and Flossie Lambert. They asked her what would happen in case of a strike-could they come back to work? Radcliffe said that that was their privilege if they so desired.2° 20. By letter dated June 28,30 Local 371, by Robert Cohn , its attorney, requested certain information of the Company "in order that the Union may bargain intelli- gently with respect to the issues involved." Specifically, it asked for full information, including books and records, bearing on the Company's contention that financial hardship rendered it unable to meet the Union's financial demands; facts and figures about the Cullman operation , as bearing on Local 371's efforts to protect the work- opportunities of Andrews employees ; and-presumably, on the same issue-similar facts and figures about other operations of Oneita or any persons performing work for Oneita. 21. The eighth meeting of the parties took place at the Andrews City Hall on July 8. Plant Manager Urtz said that "makeup work" had increased, and Devereux asked if Local 371 was engaged in a slowdown . Kehrer replied that he knew of no slowdown and that the Union certainly was not involved ; it was understandable, however-he continued-that the current concern and confusion in the shop could lead to a drop in production . Thereupon , Devereux said he wanted another clause denying arbitration rights to any worker disciplined by the Company for engaging in an unauthorized stoppage [sic: slowdown?] or strike.31 The next-and only other-issue discussed at the meeting was the subcontracting clause. Wood stated that the Company could not agree to it. In the course of the meeting, Devereux referred to the Union's request for infor- mation. (See Chron. 20.) Saying that he had not had the opportunity to discuss the request with Attorney Smith (not present at this meeting ), he asserted he was not prepared to make any proposals on "economic" issues at this time; furthermore, refer- ring to the fact that the Union had said it needed the information "in order to bargain intelligently," he would not make any offers in economic matters until the informa- tion had been given. Kehrer offered to withdraw the request if it caused such con- cern, but Devereux replied, "No , we have it now .... You may withdraw it but we won't withdraw it." Kehrer then went down a list of the Union's original demands, as modified by Dubinsky on June 24 . He asked Devereux's position on additional paid holidays; Devereux said this was economic in nature , and he could not respond until he had discussed the matter with Smith. Kehrer asked about the base rates requested; Devereux said this also was economic. Kehrer asked about the requested clarifica- tion of ambiguity as to Saturday overtime pay; Devereux said that the requested clarification 32 was agreeable . Kehrer then asked whether, if he went down the entire list, Devereux would take the same position-that the issues were economic and that he could make no proposal ; the answer-yes. Kehrer then asked Wood if it were not true that Wood had stated that the Company had made a profit of $41,000 (see Chron. 2); Wood said he could not answer without consulting Smith. Kehrer then asked Wood to confirm the Company's prior offer to meet the Federal standard of $1.25 per hour (see Chron. 6); Wood declined to answer without consulting Smith. This finding is based on the credited testimony of Tisdale. (Her testimony had the ring of truth, even considering any animosity she may have had arising out of a 2-year earlier defeat in an election for union shop chairlady .) I do not credit Radcliffe in her version-that Tisdale told her those who stayed in would have seniority over those who went out. (Radcliffe was a rattled witness whose memory needed jogging on a number of occasions.) 2D This is based on Tisdale's credited testimony . Cameron, who testified that Tisdale said that those who worked during a strike would have seniority , did not impress me as a witness: her attention called to the fact that the date she originally gave for the con- versation was within a vacation week , she only reluctantly corrected her testimony, and, as an afterthought during cross -examination , she imputed to Tisdale a promise of protec- tion if she had trouble reporting during a strike. Lambert did not testify. ° The time of receipt of the letter is uncertain . I find, however, that it was received by company representatives at least prior to July 8. m The current ( extended ) contract contained an arbitration clause a: Which would result in no change of working conditions. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This constituted the entire business conducted at this meeting.33 Kehrer asked for a meeting that night, to continue negotiations, but Devereux declined. He then asked to meet next morning; again Devereux declined, saying that the earliest he could meet was the following week. 22. Immediately after the meeting of July 8 ended, Kehrer addressed a gathering of over 200 of the approximately 300 employees in the bargaining unit. He told them of the failure to achieve any results at the last bargaining session, said that the Com- pany had not been responsive to union requests, and gave his opinion that it would make no offers; he said that it was crystal clear that the Company had not been bar- gaining, and would not bargain, in good faith. Local 371's only remaining course of action, he recommended, was to declare the plant on strike. A motion to author- ize the local offices to declare a strike was passed unanimously, by a show of hands. 23. Another meeting of the membership was held on July 10, starting shortly after 11 a.m. Just over 250 persons attended. Nick Bonanno, assistant director of the International's Southeast Region, addressed them. He reviewed the Company-Union meetings he had attended,34 discussing issues which had been considered. He explained that the Union had been seeking nothing which was illegal, a fact clearly explained to Company representatives and-he said-admitted by their attorney to be understood. He related in some detail how President Dubinsky had gone over Local 371's demands and had reduced or eliminated them. He said that what he called "the Spirit of New York" was created, and that the Company was thereafter supposed to present counterproposals; instead, at subsequent meetings, the Company presented new proposals, neither responsive nor germane. His conclusion (as he now related) was that the Union had been negotiating not with the Company but with itself. He closed by saying that the International was ready and willing to support any action the local deemed necessary. Bonnano was followed by Hazel McLaulin, shop chairman and a member of the Union's negotiating committee. She noted that previously (on July 8-see Chron. 22) the membership had given the committee authority to set the hour for a strike if necessary, and that now the Company had further refused to bargain. She recom- mended that a strike be declared in effect as of 11:20 a.m. A motion to this effect passed unanimously. 24. Picketing commenced immediately-at approximately 11:30 a.m. Employees refrained from reporting for work, and picket lines were formed. The legends on the signs took two forms: _ EMPLOYEES of ONEITA KNITTING MILLS on STRIKE LOCAL 371 International Ladies' Garment Workers' Union AFL-CIO and EMPLOYEES of ONEITA KNITTING MILLS on STRIKE AGAINST COMPANY UNFAIR LABOR PRACTICES LOCAL 371 International Ladies' Garment Workers' Union AFL-CIO 25. The ninth-and last-meeting between Company and Union was held on July 15. As Kehrer laid out his papers, Devereux made a statement: In view of the illegal strike and in view of threats of violence, threatening telephone calls, and threats to dynamite the plant, he did not believe there was a good atmosphere in which to bargain and, therefore, the Company was not going to bargain with the as Although the findings surrounding this meeting are based upon the uncontradicted, credited testimony of Kehrer, I find no probative value, because of its lack of specificity, in his testimony that, at the meeting' s end, Devereux made a statement "to the effect that it was necessary for the Union to give way on all of the Company's proposals in order to get a satisfactory agreement " [Emphasis supplied 1 u Those of June 24 and 27, and July 8. ONEITA KNITTING MILLS, INC. 699 Union. He charged one member of the Union's negotiating committee with having been seen purchasing roofing nails for the purpose of distributing them on company property, but, when she challenged him on this, he withdrew the statement . There- upon, the company representatives left the meeting. 26. On or about July 18, Spivey Cooper, knitting room superintendent ,33 visited the home of a striker, Ruth Mixon, with whom he had been acquainted for the 10 years she had been employed by Oneita but whose home he had not visited for years, if at all. He asked if she knew why he was there, and she said , "Yes." (In view of the situation at the plant where both worked and in view of the ensuing conversation, I find that he meant, and she knew he meant , that he was there to discuss the strike.) He then said that "they" (meaning the Company ) were trying to contact ' all good workers who "they" felt were interested in their jobs, and he thought she was one of these. He said he would like her to return to work-the sooner she came back, the sooner she would "have seniority"; if she waited until all jobs in her operation were taken, he did not know what would happen.36 , 27. One week later, Cooper again visited Mixon's home, going there from the home of her next-door neighbor and fellow striker, one Mrs. Campbell. He said that he would like her and Mrs . Campbell to go to the plant, that one of the officials would be glad to talk to her. He said he could promise nothing himself but would appreciate her going in and talking to "them." 37 28. An exchange of correspondence took place between July 26 and August 9. It can best be summarized by being paraphrased: (a) Letter of July 26 , from Smith, Company attorney, to Cohn, Union attor- ney: Employees are still being followed by strikers in an attempt to keep them from going to work . We have received no word from the Union repudiating picket line violence or attempts to block plant entrances . To bargain in this atmosphere serves no useful purpose under the Act .... If you repudiate strikers' coercion and restraint and say you do not condone violence, the Company stands ready to bargain; we are ready to resume negotiations in a favorable atmosphere, at a suitable time and place .... You should also know that employees mass withdrawal of services for union business during the contract extensions was a contractual violation and does not lead to harmonious relationship between contracting parties. (b) Letter of July 29, Cohn to Smith : The Union's position on responsibility for alleged picket line violence will be outlined in a State court action this week;, suffice it to say now that the Union denies any responsibility and has consistently instructed its staff and members not to engage in same . . . . On first day of strike, you procured injunction against violence in ex parte State court proceed- ing and, to our information, have claimed no injunction breach . Accordingly; your claim that atmosphere is not conducive to bargain is pretext to hide Com- pany's real desire not to bargain under any circumstances . This is confirmed by its pre-strike refusal to bargain in good faith despite Union's willingness to compromise its original demands .... I am advised you have avoided attempts of Federal and State mediators to resume negotiations ; if you have real desire to bargain collectively you would respond to such attempts. (c) Letter of August 6, 1963, Smith to Cohn : Your stated position that Union has instructed staff members to refrain from violence or threats has not been forwarded to Company .... Obligation of both parties is to resolve differ- ences by bargaining and not by violence, intimidation, or illegal demands. Com-' pany stands ready to resume negotiations providing Union agents are instructed that their bargaining demands are illegal and that bargaining sessions will be 3-1 find Cooper to have been a supervisor of and agent for Respondent at all pertinent times. 3a In so finding, I credit Mixon Cooper testified that , during this period , he visited the homes of perhaps 10 to 12 strikers , his primary purpose was to answer "certain things floating around" ; he did not know exactly why he visited Mixon-he selected per- sons to be visited at random ; in her case , as in all others , he merely reminded her of her right and privilege to return to work and he invited her to discuss any questions with company officials at the plant , and he neither promised nor mentioned seniority I per- ceived Cooper to be a nervous , evasive, argumentative , and confused witness, and I would not credit him on contradicted matters. However he may have limited his remarks to others whom he visited , I find that his conversation with Mixon was as reported above. 37 This finding is based on Mixon's credited testimony . Cooper, in his testimony, failed to distinguish between this conversation and that found in Chron. 26. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conducted in peaceful atmosphere. If you inform me you wish negotiations under this atmosphere, Company stands willing and ready to resume negotia- tions. Please inform me of intentions. (d) Letter of August 9, Cohn to Smith: You have added nothing new to your letter of July 26. Testimony of your witness [in court] last Monday shows no disorders amounting to violence since July 11; there is no atmosphere of vio- lence or intimidation providing a legal or moral excuse for not bargaining .... We disclaim any illegal demands, as long ago made clear by Kehrer and Dubin- sky .... Your excuses do not hold water ; if you are sincere about negotiating in good faith, give us a couple days', notice and let's begin. 29. On or about August 10, Cooper visited the home of striker Grace Wright, 61/2 miles from the plant. After some preliminaries, he asked her if she knew she could have her job back if she went back to the plant-and that if she went back she would have both her job and top seniority, whereas if she did not go back she'would have no job. When she said that even if she did go back she believed (on the basis of past experience ) she would lose her job for reasons unrelated to union considerations, he assured her that her job was open.38 30. As of the first day of this hearing-January 20, 1964-the strike was still in effect.39 No meeting between company and union representatives has been held since July 15, 1963, and there has been no contact by correspondence since August 9. The Company has not submitted the financial information requested by letter of-June 28; on the other hand, subsequent to the "withdrawal" of the request on July 8, the request has never been renewed. C. The refusal to bargain. 1. Unit and majority On the allegations and admissions in the pleadings , and upon the evidence, I find that the appropriate bargaining unit herein , at all pertinent times, consisted of Oneita's production and maintenance employees at its Andrews , South Carolina, plant, includ- ing, the carpenter, truckdrivers, janitors, knitting machine fixer-learner, and sewing machine fixer, but excluding office clerical employees, payroll clerk, forelady and assistant forelady, knitting machine fixer, and all other supervisors as defined in the Act. The complaint herein alleged that at all times since on or about September 15, 1953, the Union was and had been the representative of the majority of the employees in the above unit and, by virtue of Section 9(a) of the Act, the exclusive bargaining representative of all the employees in said unit . Respondent, in its answer, dis- claimed sufficient information as to the present majority representation status of the Union and, therefore, denied the allegation40 As earlier indicated, Local 371 won a representation election among the employees in the above unit in 1953 and was certified by the Board as their-bargaining agent. Ten-plus years of bargaining , marked by collective-bargaining agreements , culmi- nated (for the purposes of this case ) in a series of negotiating meetings on the terms of the next succeeding contract. During these meetings , Respondent never questioned the Union's majority ; indeed, as far, as this record reveals, it first raised the issue by the disclaimer of information contained in its answer . Neither at the hearing nor in its brief did Respondent press a claim that Local 371 lacked a majority; con- trariwise, it denied that it had refused to recognize the Union as its employees ' bargain- ing agent or that, as late as first day of this hearing , it was refusing such recognition. For the period beginning 1 year after the certification of a bargaining agent,41 there is a rebuttable presumption that the certified union represents a majority of the employees in a unit .42 Respondent herein has offered no evidence in support of any sa This finding is based on the credited testimony of Wright. 19 This record contains no testimony bearing on the extent of the interruption of work after the first day. 40 At one point in the hearing, Respondent withdrew its denial of the allegation ; sub- sequently, with the permission of the Trial Examiner, it reverted to its original position. "As for the certification year itself, see Ray Brooks v. N L R.B., 348 U.S 96 42 Celanese Corporation of America, 95 NLRB 664, 672; N.L R.B. v Whittier Mills Com- pany, et at., 111 F. 2d 474, 478 (C .A. 5). See also N.L.R.B . v. International Furniture Company, 212 F. 2d 431 (C.A. 5), enfg. 106 NLRB 127. ONEITA.KNITTING MILLS, INC. 701 subjective good-faith doubt as to Local 371's majority, let;alone any evidence rebut- ting the presumption. Under the circumstances, I find that Local 371, at all times pertinent, represented a majority of the employees in the bargaining unit involved 43 2. Respondent's course of bargaining conduct The complaint alleged that Respondent, on and after April 23, 1963: (a) Failed and refused to meet with the Union at reasonable times and places. (b) Failed and refused to deliver promised counterproposals.to the Union. (c) Failed and refused to negotiate concerning the removal of work from the Andrews plant to another location. (d) Failed and refused to furnish to the Union financial data requested by the Union subsequent to a plea of financial inability to meet the Union's finan- cial demands.- (e) Failed and refused to discuss any issues between the parties relating to economic matters involving wages, hours; and working conditions. (f) Negotiated with the Union with no- intention of entering into a binding collective-bargaining agreement. -• Respondent's answer denied each of these allegations, asserting that the Union had failed to bargain in good faith in that it made certain unlawful demands upon the Company. With respect to count (a), I find that the General Counsel has failed to present preponderating evidence that Respondent would not meet at reasonable times and places. Its representatives met with union representatives on nine occasions in less than 3 months,, which span included a 3-week agreed-upon interruption of negotia- tions; and they met at various places-including New York City, at the Union's invi- tation. While the record reveals several delays or recesses occasioned by the late arrival of one or another company representative and a number of, instances of inability to meet on one or another specific date, there has been no showing that the reasons assigned therefor were spurious; I do not perceive, in this, a pattern of con- duct designed to avoid,face-to-face contact. • - With respect to count (d), I find that Local 371's request for financial data made on June 28 44 was withdrawn on-July 8.45, Granted that it was withdrawn only after it became apparent that the injection of this issue might further delay collective bar- gaining and granted that Respondent objected to its withdrawal,46 it can reasonably be inferred, and I find, that Union Representative Kehrer's offer to withdraw' the request relieved Respondent from complying therewith. Counts (b), (c), (e), and, (f) are inextricably interwoven and will be considered together. - ' At the parties' first meeting on the new contract, held on April 23, 1963, the Union submitted 16 proposals or demands,47 but there was no serious discussion about them. At the second meeting, 3 weeks later,48 the Company's response was that it could not afford the changes sought. Otherwise, the' 16 proposals were not discussed; instead, company representatives raised, and extended discussion was devoted to, a current production problem. At the third meeting, on June 4,49 the Company, in response to one of the Union's demands (seeking a shop minimum hourly pay rate 15 cents above the statutory minimum), proposed that the shop minimum be set at the statu- tory minimum. The rest of this meeting was devoted to a discussion of the subcon- tracting clause ; Company Representative Wood, voicing the Company's unwillingness to accept the clause, said that the Cullman employees should have the right to vote for or against a union. • r ' ' It becomes necessary, at this point, to discuss in some detail the impingement of the subcontracting clause on the Company's Cullman employees. It is clear, and I find, that the original proposal by Local 371 contemplated that (1) all terms of any 4 While this factor is not conclusive 'in proving union majority, I note that 281 of approximately 300 in the unit joined in the strike which began on July 10. 44 See Chron. 20. 45 See Chron. 21. 49 Consideration of both these points as bearing on the Company's good, faith in bargain- ing is here reserved. • • 47 Chron. 2. . 49 Chron. 4 and 5. 49 Chron. 6 and 7. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract reached in these negotiations should apply to all present or future plants of Oneita, including the Cullman plant, and (2) in the event the Cullman plant not be covered by an ILGWU contract, that the prohibition against contracting out Andrews work be applied to Cullman as well as to other plants. I find that this was what Kehrer meant when (as found in Chron. 3) he explained at the April 23 meeting that the clause covered the Cullman plant. On the other hand, I find that company representatives , at that time, understood, and not unreasonably so, that he *as also asking company assistance in organizing the Cullman plant 50 But it was at this June 4 meeting that Union Representative Kehrer, in response to Wood's comment, explained that the Union was not seeking company assistance in organizing the Cullman employees-it merely sought a "friendly neutrality"; and he further clarified what he meant by the term . He repeated his explanation at the second session of the meeting held that night . Now, moreover, he made it clear that the sought restrictions on contracting out Andrew s work and the desired "friendly attitude" in organizing Cullman were separate items: the one was to be a part of the new collective-bargaining agreement, the other was to be the subject of a "side gentle- men's agreement" between the parties 51 And, 1 week later,52 he further clarified: the Union was not committed to the language of the proposed subcontracting clause-that could be "worked out." At the fourth meeting, on June 14,63 the Company took the position for the first time that the proposed subcontracting clause was illegal and-repeating itself- asserted that the Cullman employees had a right to vote on the union question. When Kehrer, for the Union , defended the clause's validity and signified that requiring an employer to be neutral during a union organizing campaign was not unlawful, Com- pany President Devereux said that, far from being "friendly," Oneita would resist the Union's organizing at Cullman . Kehrer then gave the basis for the Union's demand for a subcontracting clause-that some work had already been moved-from Andrews to Cullman-and he explained that, while both a clause protecting Andrews work and a "gentlemen's agreement" for Cullman were "necessary," Local 371 would go on strike for the former. At the meeting of June 18,54 the Company , represented for the first time in these negotiations by an attorney, reiterated its position that the subcontracting clause was unlawful, both under the South Carolina right-to-work law and Section 8(a)(2) of the Act. The attorney (Kemmerlin) said further that, unless the Union retreated from its position on the clause, the Company would discuss nothing further .55 When the Union expressed its willingness to table the issue and go on to other matters, the Company, through-Kemmerlin , refused. At the meeting held in New York City on June 24 ,58 the Company was represented by a second attorney, Ellison Smith . Although the exchange of telegrams setting up the meeting had specifically denominated it as being for "negotiations" and for "the purposes of collective bargaining ," Smith announced that he was there only for "exploring the issues" and that, once he found out what they were , negotiations should resume in South Carolina . He reiterated Oneita's position that the subcontracting clause was unlawful . International President Dubinsky, who was present, denied that anything illegal was being sought ; he specifically disclaimed any desire that the 65 This finding Is based upon the potential ambiguity of Kehrer 's explanation of April 23, viewed in the light of the Company 's June 4 reaction . (Also, it should be noted that, at one point In the hearing, Respondent offered to prove that, in connection with the organiz- ing of the Andrews plant In 1953, the ILGWU threatened a strike at an Oneita plant In Utica, New York , if the Company opposed the Union at Andrews ; and that, 3 weeks later, ILGWU representatives told a company official he "would have to" tell the Andrews em- ployees of the Company's good relations with ILGWU. Since I rejected this offer as Irrelevant to the main issues herein-a ruling which I reaffirm-I must assume, without finding, the offered testimony to be true. If true, it furnished a reasonable. basis for the Company's interpretation.) 63 See Chron. 8. 52 See Chron. 10. G9 See Chron. 11. 64 See Chron. 14. 65 There was one exception : Kemmerlin was willing to discuss an item unrelated to the Union's demands, the deletion of the old union-security clause as being violative of South Carolina law ; Kehrer agreed. In its brief, Respondent urges that not until this date did the Union indicate its willingness to drop this "unlawful" demand. Clearly, this clause had not been an issue between the parties ; the "illegality" imputed to Local 37 in the course of negotiations had been related to the subcontracting issue. 56 See Chron. 15. ONEITA KNITTING MILLS, INC. 703 Company organize the Cullman workers for the Union; and he expressed confidence that "lawyers could work out legal language." He apologized for the ineptness of his organizers and-despite Smith's refusal to be drawn into a discussion of the substantive issues-proceeded to discuss and,to "cut down" a number of the Union's original proposals.57 . As for the matter of protecting against the subcontracting of Andrews work, he, said this was a "must"; as for the organizing of the Cullman workers, he said that "he would ask" the Company not to fight the Union at Cullman. Smith said that the Company would consider the "revised" demands and come back with counterproposals-in South Carolina. By the meeting of June 24, I find, any doubts which the Company may have had about the Union's desires In connection with the subcontracting of Andrews work and the organizing of the Cullman workers were completely dissolved. As- found above, the Union, at least by the end of this meeting, had made it quite clear that the protection of Andrews work and the organization of Cullman workers, although related, were to be separately treiated. As for the first, (1) the Union wanted a contractual restriction upon the subcontracting of Andrews work; (2) it was not committed to the language of the original proposal, but was willing to discuss details; (3) it would strike for such, protection, if necessary; and (4) finally, it was willing to table the matter to discuss, other issues. As for the second, (1) although the language of the original proposal contemplated the extension of the coverage of any contract reached at Andrews to Oneita's other plants, including Cullman, the Union's actual intention was to conduct an organizing , campaign among the Cullman employees, (2) in the course of such campaign, the Union considered it essential and desired that the Company maintain an attitude of "friendly neutrality" rather than resistance, but it did not seek Company assistance, and (3); finally, the Union sought a "gentlemen's agreement," not part of the Andrews contract, evidencing such an attitude on the part of the Company.58 Obviously,-at least on and after June 24, the Union was seeking, and the Company knew it was seeking, a contractual limitation upon the subcontracting of work normally performed at the Andrews plant. Also, although the Union was pressing for a company commitment of neutrality in an anticipated- organizing campaign at the Cullman plant, it did not seek, and the Company knew it did not seek, such a com- mitment in the Andrews contract being negotiated. Yet, as it had before, Respondent persisted in lumping the two issues into one 59 and, other than labeling the Union's proposal "unlawful," refused to discuss it further. The Union's demand for a limitation on subcontracting, far from being unlawful, was an issue for mandatory bargaining.60 While Respondent was not obligated to accept the Union's demand, either in whole or in part, it was obligated to discuss it, at least to the point of impasse. I find that its claim of "illegality," deprived, as it was, from an unwarranted intermingling of issues,61 was a pretext to avoid good-faith discussion of the issue. I find that, in such avoidance, at least on and after June 24, 1963, Respondent refused to bargain collectively, in violation of Section 8(a) (5) of the Act.62 But the instant question goes beyond Respondent 's failure-ti discuss one issue. The General Counsel urges, in effect, that the pattern of Respondent 's conduct demon- strates an all-round failure to bargain in good faith. It has long been settled that an employer violates Section 8 (a)(5) and ( 1) of the Act if he fails to bargain in good faith with his employees ' bargaining representative. "In the words of a witness for the General Counsel, the Union, through Dubinsky, was "bargaining with itself." 56 Whether'the "gentlemen's agreement" was to be oral or written was never discussed, nor was its wording. 60 At the hearing itself, Respondent's counsel continued to treat the two issues as one. 60 See Town & Country Manufacturing Company, Inc., etc., 136 NLRB 1022, 1027, enfd. 316 F. 2d 846 (C.A. 5) ; Fibreboard Paper Products Corporation, 138 NLRB 550, 552-554, enfd 322 F. 2d 411 (C A.D C) 61 This is not to say that Local 371's request for company neutrality at Cullman was unlawful. Apparently a case of first impressions,- I fail to see where an agreement not to resist an organizing attempt violates the law. (On this record, it is necessary to decide whether a strike, or threat to strike, to deprive an employer of his lawful means of resist- ing unionization, is violative of State or Federal law.) ' 62 Thus, I reject the General Counsel's contention that the failure to bargain on this issue began on April 23 I make no finding of a pre-June 24 refusal because it was not until that date that, beyond peradventure, Respondent was aware of the Union's complete position. 775-692-65-vol. 150-46 704 DECISIONS OF NATIONAL LABOP RELATIONS BOARD This principle is generally embodied in Section 8(d) of the Act, which defines the bargaining obligation as requiring , inter alia, that the parties "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and con- ditions of employment, or the negotiation of an agreement...." Although the obliga- tion does not "compel either party to agree to a proposal or require the making of a concession," 63 it does contemplate It willingness to enter the discussions "with an open mind and purpose to reach an agreement consistent with the respective rights of the parties," 64 and it presupposes that the parties will bargain "with an open and fair mind and a sincere purpose to find a basis for agreement touching wages and hours and conditions of labor." 65 Simply entering ".upon a sterile discussion of union management differences" 66 is not sufficient. Essentially, then, the "ultimate issue whether the Company conducted its bargaining. negotiations in good faith involves a finding of motive or state of mind which can only be inferred from circumstantial evidence." 67 I have set forth the facts surrounding these negotiations in some detail because I am convinced that this case calls for a determination of whether we have been "hard bar- gaining" or "bad-faith bargaining," a determination which requires a consideration of all the circumstances. Having carefully considered all the facts and circumstances above recited, I con- clude that, on and after June 24, 1964, Respondent was not bargaining in good faith within the meaning of Section 8(d).68 I base this finding on a number of factors: (1) the foregoing refusal to discuss the subcontracting issue; (2) the Company's refusal to discuss other issues until and unless the Union should drop this "unlawful" demand; 69 (3) the Company's injection of extraneous issues at the bargaining table; 70 (4) the submission of an obviously unacceptable proposal; 71 (5) Respondent's rejec- tion of the Union's attempt to withdraw its request for financial information,72 which, as I see it, could only have been designed to delay negotiations;. (5) Respondent's refusal to discuss economic issues until it had furnished the financial information requested by the Union-even though the request had been withdrawn; 73 (6) despite its commitment to submit counterproposals,74 Respondent's submission, late in the negotiations, of proposals on new issues; 75 and (7) its 'representative's refusal to con- firm his statements made earlier in negotiations.76 In summary, on this record, on what I consider to be a preponderance of the evi- dence, I am persuaded and I find that Respondent on and after June 24, 1963, has refused to bargain in good faith. 68 Section 8 ( d). Also see N.L.R.B. v. American National Insurance Co., 343 U.S 395, 402, 404 84 L. L. Majure Transport Company v. N.L.R.B., 198 F. 2d 735, 739 (C.A. 5) ; see also N.L R.S. v. Darlington Veneer Company, Inc., 236 F 2d, 85, 89 (C.A. 4), and N L R B. V. Herman Sausage Company, Inc., 275 F. 2d 229, 231-232 (C.A. 5). 65 Globe Cotton Mills v. N.L R B., 103 F. 2d 91, 94 (C.A. 5). - 66 N L R.B. v. American National Insurance Co , 343 U.S. 395, 402 07 N.L.R B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 139-140 (C.A. 1), cert. denied 346 U.S. 887. 68 Here again, I used the date June 24 instead of April 23. While I have considered Respondent's entire course of conduct as bearing upon the issue of the existence or absence of good faith in bargaining, my finding, although based on a number of factors- enumerated below-depends in great part upon its refusal to discuss other issues until the "unlawful" subcontracting demand was disposed of. - 69 Chron. 14, 15, and 17. Even the fact that the parties may have reached an impasse on one item "constitutes no defense to a refusal to bargain with respect to other matters " Chambers Manufacturing Corporation, 124 NLRB 721, 734, enfd. 278 F. 2d 715, (C.A. 5) 70 The "quality" problem (Chron. 4), absenteeism (Chron. 17), and the alleged slow- down (Chron. 21). 11 71 E.g., the proposal that the shop minimum be equal to the statutory minimum (Chron 6). As one court so aptly stated, "It is difficult to believe that the Company with a straight face and in good faith could have supposed that this proposal had the slightest chance of acceptance by a self-respecting union, or even that it might advance the negotiations by affording a basis of discussion ; rather, it looks like, a stalling tactic by a party set upon maintaining the pretense of bargaining." N L.R.B v. Reed & Prince Manufacturing Company, supra , at 139. 72 Chron. 21. 73 Chron. 21. 74 See Chron. 15 75 Chron. 17. 76 Chron. 21. ONEITA KNITTING MILLS, INC. 705 3. The strike of July 10 The complaint alleged, and the answer denied, that the strike which began on July 10, 1963, was caused and prolonged by Respondent's unfair labor practices. During the negotiating meeting of June 4 77 in response to a charge by an official of Respondent that the subcontracting clause was of interest only to a union official and that the employees would not "risk starving" to secure it, an employee-member of the Union's negotiating committee asserted that the employees would go back to "chopping cotton" if that proved necessary; and the negotiators' actions, including the taking of this position, were endorsed by the Local 371 membership 2 days later. On June 14, at a negotiating meeting, union representative Kehrer said that Local 317 would strike for a subcontracting clause; later the same day, the membership conferred strike authority upon their officers. Upon this record, had the strike occurred pursuant to this authority without intervening and altering circumstances, I would have found the strike to have been designed to exert pressure to achieve such a clause and, hence, to have been economic in nature. But circumstances changed. Meetings were held on June 18, 24, and 27 and on July 8; as found earlier, the Union's position on the subcontracting issue was thoroughly clarified, and Respondent displayed its lack of good faith in its bargaining, both on this issue and in general. At the meeting of July 8, Respondent attempted to block the Union from withdrawing its request for financial information; Respondent's representatives conditioned the discussion of other issues upon Local 317's dropping the subcontracting demand because of "illegality"; and they refused to confirm or deny positions previously taken. All this was communicated to Local 371's membership immediately after the July 8 meeting, and a recommendation for strike action, bottomed upon the expressed opinion that the Company was not bargaining and would not bargain in good faith, culminated in a new grant of authority to the union officers to declare a strike. Two days later, details underlying the union officials' opinion (that the Company was not bargaining in good faith) having been given them, Local 371's membership declared the strike in effect. Upon the entire record and on the basis of what I am convinced is a fair preponder- ance of credible evidence, I conclude and find that the strike of July 10, 1963, was caused-and, since no change in circumstances has been shown, was prolonged-by Respondent's refusal to bargain in violation of Section 8(a)(5) of the Act. Respondent, in effect, makes the contention that, whatever the situation existing prior to the strike, it was under no obligation to bargain with Local 371 after the strike began.78 This position is based upon a number of assertions: (1) The strike was in violation of the existing contract; (2) the strike was in violation of Section 8(d) of the Act; and (3) the strike was accompanied by strikers' violence. (1) The last complete -contract between the parties contained a clause forbidding strikes and lockouts. The latest extension of the contract-"to July 10, 1963"-was executed on June 24.78 Respondent contends that the contract, with its no-strike clause, was thereby kept in effect until the end of July 10, while the General Counsel urges that the contract thus extended expired at midnight, July 9. In the absence of specific expression to the contrary, the Board has held that a contract running "until" or "to" a specified date is not to be construed as including the named date.80 Moreover, even if the word "to" be considered ambiguous (as urged by Respondent), several circumstances point to the parties' intention. The termination clause of the original contract, the subject of the extension, used the words "up to and including May 14, 1963"; the. different treatment in the two extensions connotes a different intent. A similar clue is found in the circumstances surrounding the first extension: the extension was the result of the Company's request for a 30-day exten- sion; a reading of "to June 15" as "through June 15" would have constituted a 32-day extension. I conclude that the contract, as extended, expired at midnight on July 9, and that there was no violation of a no-strike commitment. Ti See Chron. 9. 78 In the absence of any allegation in the complaint that Respondent independently violated Section 8(a) (5) by refusing to bargain when, on July 15, it would not discuss the issues because of the existence of the strike, I make no such finding (despite the raising of the contention in the General Counsel's and in the Union's briefs). As indi- cated, however, the matter becomes an issue by virtue of its assertion as a defense by Respondent at the hearing and in its brief. "See Chron. 16. A prior extension, using similar wording, is found at Chron. 5 80Hemasphere Steel Products, Inc, 131 NLRB 56, and precedents cited therein. 706 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD At any rate, I find, in agreement with the General Counsel, that a strike caused and prolonged by Respondent's unfair labor practices is not prohibited by a strike-waiver clause in the contract 81 (2) Likewise, a strike in protest of unfair labor practices is not a strike to,terminate or modify a contract; therefore, the loss-of-status provision of Section 8(d) is not applicable 82 (3) This record is barren of any evidence that the strike was accompanied by, vio- lence, imputable to the Union, which would relieve the Company of its obligation to. bargain collectively. In short, I find that Respondent's bargaining obligation was unaffected by the strike of July 10. D. Independent interference, restraint, or coercion The complaint alleges that Respondent interfered with, restrained, or coerced employees in the exercise of their self-organizational rights, in that named supervisors, on specified dates, (a) informed employees that if they did not go on strike, they would, have seniority over those who struck; (b) informed employees that they would have less seniority than others upon their return to work after a strike; (c) informed employees that if they did not go out on strike they would be given a preferred shift; and (d) solicited striking employees to,return to work. The persons alleged to have thus acted for Respondent are Phyllis Tisdale, Spivey Cooper, and Anthony Devereux. The facts with respect to Tisdale's activities appear at Chron. 18 and 19. `I perceive nothing there which supports a finding of interference, restraint, or coercion. As for Anthony Devereux, I have found 83 that, at or about the middle' of June- authority to call a strike having been granted to Local 371 officials` on June 14L-he spoke with employee Bessie Howard about courses of action open to her in the event of a strike. Among other things, he told her that, if she did not join the strike, she would "have seniority" over those who went on strike. Clearly,'this promise of bene- fit, a promise conditioned upon her refraining from exercising a concerted right, con- ditioned upon her refraining from exercising a concerted right; constituted inter-' ference with Howard's Section 7 rights. Cooper, according to the evidence, visited a number of strikers' homes-at least 10 or 12-after the strike started. His purpose, in general, was to remind strikers of their "right and privilege" to return to work. Specifically, with respect to striker Ruth Mixon on or about July 18,84 he told her that the sooner she returned to work the sooner she would "have seniority"-if she waited until the jobs in her operation were taken, he did not know what would happen; and, with respect to striker Grace Wright, on or about August 10,85 he told her that if she went back to the plant she would have both her job and "top seniority." 1 find both to be instances of solicitation to withdraw from a strike accompanied by a 'promise of benefit (superseniority) and to b e inter- ference, restraint, and coercion of employee`s in the exercise of the rights guaranteed them in Section 7 of the Act.86 IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall- recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action in order to effectuate the policies of the Act. Having found that Respondent has failed to-bargain concerning a mandatory bar- gaining issue, I shall recommend that, upon request, it bargain concerning the issue. Having found further that Respondent has failed to confer in good faith'm violation of Section 8(a)(5) of the Act, I shall recommend that it bargain collectively, upon request, with Local 371 as exclusive bargaining representative of the employees in the appropriate bargaining unit and, if an understanding is reached, embody such under- standing in a signed agreement; - - It has been found that the strike of June 10, 1963, was caused by the unfair labor practices of Respondent. The striking employees are, therefore, entitled to reinstate- ment irrespective of whether their positions may have been filled by Respondent's hire si N.L.R.B. v. Mastro Plastics Corp., etc, 350 U.S. 270, 279-284. 88 N.L.R.B. v. Mastro Plastics Corp., supra, pp. 284-289; also, see Mrs. Fay's Pies, Inc., 145 NLRB 495. "See Chron 13. 11 See Chron. 22. 85 See Chron. 29. se In view of the remedy which I shall recommend therefor , I find It unnecessary to consider whether the solicitation of strikers to return to work, unaccompanied by promises or threats, is violative of the Act. ' ONEITA KNITTING MILLS, INC. 707 of other employees:' It will be recommended that employees who joined the strike of July 10 shall, upon application , be offered reinstatement by Respondent to their former positions (or, if their former positions no •longer exist, to substantially equivalent posi- tions ), without prejudice ,to their seniority or other rights and privileges , even though this may necessitate the dismissal of persons hired after July 10, 1963; and that each such employee shall be made whole for any loss of earnings by the payment of a sum of money equal to that which he would have earned as wages from Respondent during the period beginning 5 days after his application for reinstatement and ending with the date of Respondent's' offer of reinstatement , less his net'actual earnings during that period. Backpay,'if any is due, shall be computed "on a quarterly basis in the manner prescribed by the Board in F. W Woolworth Co., 90 NLRB 289, with interest at the rate of 6 percent,per annum computed quarterly.' As the unfair labor practices committed by Respondent are of a character striking at the roots of employee rights safeguarded by the Act, it will also be recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of `the Act. Upon the foregoing factual findings and conclusions and upon the entire record in the case, I come, to the following: CONCLUSIONS OF LAW 1. Respondent is'an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 371 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent's production and maintenance employees at its Andrews, South Carolina, plant, including the carpenter, truckdrivers, janitors, knitting machine fixer- learner and sewing machine fixer, but excluding office clerical employees, payroll clerk, forelady and assistant forelady, knitting machine fixer and all other supervisors as defined in the Act, constitute and at all times material herein constituted a unit appropriate for purposes of collective *bargaining within the meaning of Section 9(b) of the Act. , 4. Local 371, on and since June 24, 1963, has been and is the exclusive representa- tive of all employees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 5. On and since June 24 , 1963,-by refusing to discuss Local 371's demand for a limitation bn subcontracting work performed by employees in the aforesaid bargaining unit, and by failing, within the meaning of Section 8(d) of the Act, to confer in good faith with respect to wages, hours, and other terms of employment and with respect to the negotiation of • an agreement , Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 6. By, the foregoing conduct, by promising a benefit to an employee for refraining from joining a strike, and by soliciting employees, by promise of benefits, to abandon a strike, Respondent has interfered with, restrained , and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 7. Except for the foregoing, Respondent has committed no unfair labor practices under the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in.the case, and pursuant to Section 10(c) of the Act, it is hereby ordered that the Respondent, Oneita Knitting Mills, Inc., of Andrews, South Carolina, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Ladies' Garment Workers' Union, Local 371, as the exclusive representative of its employees in a bargaining unit consisting of the production and maintenance employees at its Andrews, South Caro- lina, plant, including the carpenter, truckdrivers, janitors, knitting machine fixer- learner and sewing machine fixer, but excluding office clerical -employees, payroll clerk, forelady_ and assistant forelady, knitting machine fixer, 'and all other supervisors as defined in the Act. - (b) Promising employees benefits in return for refraining from or withdrawing from strike action. (c) In any.other manner interfering with , restraining, or coercing its employees in the exercise of their right of self-organization, to form labor organizatiohs , to join or assist any labor organization , to bargain collectively'-through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action , which I find will effectuate the purposes of the Act: (a) Upon request, discuss the issue of subcontracting work with the above labor organization. (b) Upon request, bargain collectively with the above labor organization as the exclusive bargaining representative of the employees in the above-described unit. (c) Upon application, offer immediate and full reinstatement to their former posi- tions (or, if their former positions no longer exist , to substantially equivalent posi- tions), without prejudice to their seniority or other employment rights and privileges, to all employees who went on strike on July 10, 1963, or thereafter, dismissing, if necessary, any person hired on or after that date, and make each such applicant whole for any loss of pay suffered by Respondent's refusal, if any, to reinstate him for the period beginning 5 days after his application to the date of Respondent's offer of reinstatement. - (d) Preserve and, upon request , make available to the Board and its` agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or useful in analyzing the amount of backpay due and the right of reinstatement. (e) Post at its plant in Andrews, South Carolina, copies of the attached notice marked "Appendix." 87 Copies of such notice, to be furnished by the Regional Director for Region 11, shall, after being duly signed by an authorized representa- tive of Respondent, be posted immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 11, in writing, within 20 days from the date of the receipt of this Decision , what steps Respondent has taken to comply herewith 88 IT Is FURTHER RECOMMENDED that the complaint be dismissed insofar as it contains allegations not encompassed by the foregoing Recommended Order. If this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . If the 'Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing, an Order" for the words "a Decision and Order." - sa If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 11, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we notify our employees that: WE WILL, upon request, bargain collectively with International Ladies' Gar- ment Workers' Union Local 371 as the exclusive bargaining representative of our nonsupervisory production and maintenance employees at Andrews, South Carolina; WE WILL, upon request, discuss the issue of subcontracting work with this union; and WE WILL, if an understanding is reached , embody any such understanding in a signed agreement. WE WILL- NOT promise employees benefits in return for refraining from or withdrawing from strike action. • WE WILL NOT, in any manner, interfere with, restrain, or coerce our employ- ees in the exercise of their rights to organize; to form, join, or assist a labor organization; to bargain collectively through a bargaining agent chosen by them- selves; to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any such activities. WE WILL, upon application , offer any employee who engaged in the strike of July 10, 19463, his former or a substantially equivalent job (without prejudice) to his seniority or other employment rights and privileges), discharging, if neces- SIMMONS COMPANY 709 sary any person hired on or after July 10, 1963; and WE WILL make any such applicant whole for any loss of pay suffered by reason of our refusal , if any, to reinstate him within 5 days of such application. ONEITA KNITTING MILLS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1831 Nissen Building, Winston-Salem, North Carolina, Telephone No. 724-8356, if they have any questions concerning this notice or compliance with its provisions. Simmons Company and Mary L. Bernard Local 185, Mattress, Spring & Bedding Workers' Union, AFL- CIO [Simmons Company] and Mary L. Bernard . Cases Nos. 13-CA-5962 and 13-CB-1553. December 09, 1964 DECISION AND ORDER On June 30, 1964, Trial Examiner C. W. Whittemore issued his Trial Examiner's Decision in the above-entitled proceeding finding that Respondents had engaged in and were engaging in certain un- fair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, Respondents filed exceptions to the Trial Examiner's Decision and General Counsel filed cross-excep- tions thereto together with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel. [Chairman McCulloch and Mem- bers Fanning and Brown]. 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 Trial Examiner's Decision, the exceptions, cross-exceptions, and briefs and the entire record in the case, and finds merit in Respondent's exceptions. Accordingly, the Board adopts the Trial Examiner's find- ings, conclusions, and recommendations only insofar as they are con- sistent herewith. The facts are not materially in dispute and are set forth in detail in the Trial Examiner's Decision. In brief, the Union and the Em- ployer had maintained a contractual relationship since 1959, but none of the contracts had required union membership as a condition of employment. However, the contract executed on July 24, 1962, con- tained an "agency shop" provision under which any employee who 150 NLRB No. 61.