Cone Mills Corp.

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondents are engaged in commerce and the Union is a labor organiza- tion, all within the meaning of the Act. 2. All truckdrivers, loader-operators, plant operators, and mechanics of the Respondents, excluding office clericals, professional employees, watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since 1960 and continuing to date, the Union has been the exclusive representative for the purpose of collective-bargaining within the meaning of Section 9(a) of the Act, of all the employees in the aforesaid appropriate unit. 4. By refusing, since March 28, 1964, to bargain collectively in good faith with the Union as the exclusive representative of their employees in the aforesaid appro- priate unit, by unilaterally changing existing wage rates and disregarding seniority rules, by failing to notify, consult, or bargain with the Union with respect to changes in wage rates and seniority rules, the discontinuance of a portion of their trucking operation, the subcontracting of a portion of their yard operation and the layoff and termination of employees, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Stanley Mason, Jose C. Moniz, John Camara, Antone Costa, Michael Creeden, Omer Tes- sier, Glen Simcock, Frederick Haskins, Donald Martin, Manuel Medeiros, and Frank Oliver, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Cone Mills Corporation and Textile Workers Union of America, AFL-CIO. Case No. 11-CA-P2334. December fd7, 1965 DECISION AND ORDER On October 13, 1965, Trial Examiner Abraham H. Mailer issued his Decision 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 attached Trial Examiner's Deci- sion. He also found that Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations of the complaint. Thereafter, only the Respondent filed exceptions to the Trial Examiner's Decision, with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, 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 156 NLRB No. 38. CONE MILLS CORPORATION 371 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, with the modifications noted below.' [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Substitute the following for subparagraph (a) of paragraph 1: ["(a) Unilaterally changing. seniority rights without first giving notice to, and bargaining With respect thereto with, Textile Workers Union of America, AFL-CIO, as the exclusive representative of all its employees in the appropriate bargaining unit." [2. Substitute the following for the first indented paragraph of the Appendix : ["WE WILL NOT unilaterally change seniority rights Without first giving notice to, and bargaining with respect thereto with, Textile Workers Union of America, AFL-CIO, as the exclusive representative of all our employees in the appropriate bargaining unit."] 1 Respondent's motion to remand the case to the Trial Examiner for the taking of fur- ther testimony is denied as the record is adequate and fully supports the findings of the Trial Examiner. Moreover, Respondent's motion is not directed to any newly discovered evidence or evidence not available at the time of the hearing. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On January 10, 1964, Textile Workers Union of America, AFL-CIO, herein called the Union, filed a charge against Cone Mills Corporation, herein called the Respond- ent. Upon said charge, the Regional Director for Region 11 of the National Labor Relations Board, herein called the Board, on February 26, 1965, issued a complaint on behalf of the General Counsel of the Board against the Respondent. In substance, the complaint alleged that the Union had been the exclusive representative of Respondent's employees at its Minneola plant in an appropriate unit consisting of all production and maintenance employees of Respondent, excluding certain employees, by reason of a collective-bargaining agreement dated November 10, 1955, and auto- matically renewable each year absent notice by either party; that following the Union's notice of termination of the contract, Respondent entered into collective- bargaining negotiations with the Union and while so engaged, unilaterally terminated the superseniority provisions 1 of the contract and refused to grant superseniority to Estelle Dunn, a shop steward and a member of the general shop committee, and dis- criminatorily laid her off on or about January 3, 1964; and that said layoff and Respondent's refusal to recall her to her former or substantially equivalent position was because she had engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection, in violation of Section 8(a)(1), (3), and (5). In its duly filed answer, Respondent denied the commission of any unfair labor practice. Affirmatively, Respondent's answer alleged that following the Union's notice of termination of the contract in November 1962, Respondent entered into collective-bargaining negotiations with the Union as requested by it and has continued to meet with the Union upon its request; that when employee Dunn was laid off by Respondent for lack of work for which she was qualified to perform, Respondent 1 The parties have sometimes described these provisions as conferring "superseniority," at other times as "preferential " or "top" seniority . For the purposes of this case the terms are treated as being synonymous and are used interchangeably herein. 217-919--66-vol. 156--2 5 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered and treated the superseniority provision of the expired contract as no longer effective and applicable to employee Dunn or other stewards of the Union; and that a contract was not in effect between the parties in January 1964, and nego- tiation between the parties had either reached an impasse or had voluntarily been abandoned by the Union Pursuant to notice , a hearing was held before Trial Examiner Abraham H. Mailer at Greensboro, North Carolina , on May 5, 1965 . All parties were represented and were afforded full opportunity to be heard and to introduce revelant evidence. At the close of the hearing all parties were given the opportunity to present oral argument and to file briefs with me. Briefs were filed by counsel for the General Counsel and by the Respondent. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses , I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE BUSINESS OF THE RESPONDENT Respondent is now, and at all times material herein has been, engaged in the processing, printing, and finishing of textile products at its several plants located in the State of North Carolina and elsewhere . Respondent's Minneola plant located at Gibsonville , North Carolina, is involved in the instant proceeding . Respondent, during 12 months immediately preceding the issuance of the complaint, which period is representative of all times material herein, purchased raw materials , goods, and supplies valued in excess of $100 ,000 from points outside the State of North Carolina, and in a like period sold and shipped finished products valued in excess of $100,000 to points outside the State of North Carolina. In view of the foregoing, I find and conclude that the Respondent is engaging in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. H. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America , AFL-CIO, is and has been at all times material herein, a labor organization within the meaning of Secton 2 (5)- of the Act. III. THE ISSUES 1. Whether the Respondent, in unilaterally terminating the superseniority provi- sions of the expired contract , violated Section 8(a)(5) and ( 1) of the Act. 2. Whether the Respondent laid off employee Dunn in violation of Section 8(a)(3) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The unilateral termination of supersenioi ity Since at least November 10, 1955, the Union has been the exclusive bargaining representative of Respondent's employees at the Minneola plant The most recent contract was entered into on November 10, 1958, and provided for automatic renewals thereafter, except that either party could terminate the contract at the end of its term by giving the other party written notice at least 60 days before the end of its term. The contract was terminated on November 10, 1962, pursuant to an effective written notice by the Union. The contract contained the following pertinent provisions regarding seniority: SECTION IX-SENIORITY (a) Definition and Purpose . Seniority is defined as the length of an employ- ee's service with the Company , dating from the date of last employment by the Company, except as otherwise provided herein; the purpose of which is to pro- vide a declared policy of right of preference as hereinafter provided , measured by such length of service. (b) Layoffs and Recalls. Seniority within departments in layoffs and recalls shall prevail , provided the employee retained or, recalled is adequately qualified to fill the -position. Each employee who is displaced from a job by a layoff may elect , within the following one working day , to exercise seniority to displace the junior employee in any job classification on any shift in the department ; provided, however, that: 1. such senior employee must be qualified to perform the work; . 2. no employee in any job classification will be allowed - such exercise of seniority in another job classification 'on any shift until- after he has exhausted the exercise of his seniority in his regular job classification on the shift involved; CONE MILLS CORPORATION 373 3. no employee will be allowed such exercise of seniority in another job classification and shift unless he has first exhausted his seniority in the elected classification of his regular shift. Members of the General Shop Committee , not exceeding five in number, who shall be designated by the Union , shall head the seniority roster for the purposes of layoffs and recalls.2 B. The transfer of employee Dunn and her subsequent layoff Mrs. Dunn had been employed by Respondent since 1942, and at various times held the following positions : weaver trainee , weaver, spare hand, and battery filler.3 Dunn was a member of the general shop committee during the term of the 1961 extension of the contract, and in such capacity she and four other members of the general shop committee headed the seniority roster at the Minneola plant for the purposes of layoffs and recalls. She continued to be a member of the general shop committee at the Minneola plant in December 1963 and in January 1964. In November 1963, her regular job was a battery filler in the weaving department .4 Around the end of November 1963, all jobs of battery filler at the Minneola plant were eliminated because of the installation of automatic battery loaders. There were two other battery fillers, Mrs. Love and Mrs. Munn, whose jobs were also eliminated at the same time. These three employees were told by Respondent that they would either have to be laid off or become weaver trainees. After several days' work as spare hands, these three employees accepted jobs as weaver trainees.5 They worked as weaver trainees during the month of December 1963. As a weaver trainee, Dunn worked under the supervision of Mrs. Margaret Barber, a weaver who usually did the training work on the third shift, for which she received extra pay.3 According to Barber's credited testimony, Dunn's performance as a weaver trainee was not satisfactory, because she made mispicks, broken picks, and wrong draws. This caused defects in the cloth, resulting in seconds. While Barber admitted that she and the other weavers make occasional errors in picks and draws, the errors made by Dunn were excessive. On January 3, 1964, Barber reported to W Jasper Randolph , general overseer of weaving, that in her opinion Dunn would not develop into a weaver.? In the beginning of January 1964, Respondent changed the work assignment of each weaver from 25 looms to 35 looms. This eliminated the necessity of using weaver trainees. Accordingly, on January 3, 1964, Dunn and Munn, who were on the third shift, were laid off for lack of work. Love, the other weaver trainee, worked on the second shift. She was laid off later that month for lack of work. Respondent kept 2 The Union had contracts with other plants of the Respondent , which also expired in 1962. These contracts have since been renegotiated. The new contract at the White Oak plant in Greensboro contains a preferential seniority provision similar to that in- volved in the instant case 8 Dunn's employment record is as follows: Date Job March 3, 1942 ________________________________ Weaver trainee. April 18,1949_________________________________ Weaver. September 19, 1949 ---------------------------- Extra help ( spare hand). December 19, 1949 _____________________________ Battery filler. March 19 , 1956 _______________________________ Extra help July,8, 1957__________________________________ Battery filler. November 8 , 1960------------------------------ Extra help. November 20, 1961 ____________________________ Battery filler. December 1963__ _____________________________ Weaver trainee January 3 , 1964------------------------------- Laid off-lack of work. 4 A battery filler, also known as a battery hand,'supplies batteries or loading -hoppers of automatic looms with bobbins of filling. s Spare hands do not have regular employment , but are called as needed. e Of the weaver trainees previously trained by Barber only one failed to qualify as a weaver. 7 While it is true that Dunn had worked as a weaver for 5 months during 1949, it appears that the looms then operated were different Barber testified that on the looms operated in 1963 "you had to get your pick where you didn't 'before on the ones you used to run " Dunn testified that the looms were of the same type as she used to operate, but admitted that the cloth made was different. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Love on the job after the layoff of Dunn and Munn, because Love had more normal seniority than either of them. None of these women has been recalled from layoff to work at Respondent's plant. Nor has Respondent hired any new help in the weaving department since then. Following her layoff, Dunn filed a grievance with the Respondent. The grievance was discussed and processed at two levels. At the first level, the grievance was dis- cussed by Dunn, James Boone, president of the local, Howard Anderson, plant manager, and Ralph Wood, personnel manager. According to the credited testimony of Anderson, he told Dunn that he was not familiar with her background and asked her about her qualifications. He asked her whether she could handle the job of smasher .8 Dunn replied that she could not do it all by herself. Anderson then asked her whether she could run a set of Draper-X looms, and Dunn replied that she could not. He then asked her, "What do you feel that you are qualified to do in that depart- ment?" She replied that qualifications did not enter into the matter, that this was strictly a matter of superseniority.9 Anderson denied the grievance, saying that he had a set of rules that he went by.10 At the second level the grievance was discussed by Anderson, Wood, and Clarence Cone, Jr., and John W. Bagwill, vice presidents of the Respondent, the members of the general shop committee, and Joe Pedigo, general counsel of the Union. The grievance was discussed solely on the basis of whether the superseniority provision of the contract were applicable. Neither party went into the question of Dunn's qualifications for another job.11 On January 24, 1964, Respondent notified the Union as follows: "The Company denies the grievance of Estelle Dunn, dated January 4, 1964, pertaining to super seniority." In a letter to the Board, dated March 4, 1964, after the filing of the charge, Respond- ent stated the basis of Dunn's layoff as follows: Estelle Dunn was laid off in a work reduction in accordance with her position on the seniority roster. If Mrs. Dunn had possessed super-seniority in her department, she would not have been laid off at that time, but she no longer possesses such seniority in view of the termination of the contract. It is the position of the Company that super-seniority for a shop steward is a right that is bestowed solely as a result of an existing collective bargaining contract. When this union voluntarily terminated the contract in 1962, any rights or privileges to super-seniority under that contract automatically terminated with the expira- tion date of the contract. It is the Company's position that super-seniority is one of those negotiated provisions of a contract such as a no strike clause, a right to arbitrate, etc., which terminate upon the expiration date of the contract. Dunn's layoff is also alleged to be discriminatory because of her membership in and activities on behalf of the Union and because she engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The only evidence in support of this allegation is as follows: In 1963 Overseer Randolph had a discussion with her concerning an insurance plan that Respondent wanted to put into effect at the plant. Randolph showed her the insurance forms and said that he wanted her and others in the plant to take a copy of the policy and talk to some of the employees about it. Later, at a Christmas party held at the plant on December 19, 1963, Plant Manager Anderson asked Dunn what she thought about the insurance plan. She replied that she did not know enough about it, but she did know that the union membership had voted it down at a meeting. Anderson then said that he thought the plan had been misrepresented by the Union to its membership, and they discussed the matter in a "fairly argumentative" way for about 35 to 40 minutes. Anderson admittedly told her that: He was a little bit upset because a lot of people in the plant had mentioned to him that they were unhappy about not having had the 8A smasher or smashhand repairs warp threads of the loom At about the time of this meeting, Respondent had cut down its force of smashers from two to one per shift. The credited testimony of Anderson. Dunn's and 'Boone's versions are very sketchy, but are not contradictory of Anderson's version. 10 Anderson's reference to a set of rules is in all probability the new policy manual which Respondent issued sometime after the expiration of the 1961 extension of the contract, in which Respondent made no provision for superseniority for members of the general shop committee. u At one point during the second grievance meeting, Mrs Scott, a member of the gen- eral shop committee, raised a question "about what we could do to get this woman back to work" Pedigo said to her, "Now, hold on, we have agreed that this grievance is going to be processed on superseniority , and that is all it is." CONE MILLS CORPORATION 375 insurance plan explained correctly; the people were entitled to know; he felt that they ought to have been given the correct information, and if they had been, they would have accepted the insurance plan. Concluding Findings The General Counsel contends that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by unilaterally abrogating the preferential seniority granted in the expired collective-bargaining agreement to members of the general shop committee for the purposes of layoffs and recalls, and by its act of refusing employee Dunn her right as a member of the general shop committee to superseniority at the time of her layoff in January 1964. Respondent contends that Dunn's layoff was in no way caused by her union activities and that there was no discrimination against her because of her union activity. With regard to the question of superseniority, Respondent contends that the collective- bargaining agreement, which contained the preferential seniority clause for members of the general shop committee, had been terminated by the Union, and no subsequent contract had been entered into between the parties to replace the terminated contract; that under these circumstances, the superseniority provision of the expired contract was not effective in January 1964, and the Respondent had the right to withdraw such provision at some point between the termination date of the contract and January 4, 1964. Respondent further contends that even if it should be found that Respondent violated the Act by treating the preferential provisions of the contract as withdrawn or ineffective upon the termination of the contract, the appropriate remedy would not be to restore Dunn to a job for which she is not qualified and that there are currently no jobs in Respondent's plant which she is qualified to hold. In support of his position, the General Counsel relies upon the decision of the Board and the Court of Appeals for the Third Circuit in Bethlehem Steel Company (Shipbuilding Division), 136 NLRB 1500 (Supplemental Decision), reversed and remanded on other grounds, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO (Bethlehem Steel Co.) v. N.L.R.B., 320 F. 2d 615. In that case, a collective-bargaining agreement was due to expire on July 31, 1959. The agreement had provided, inter alga, for preferential seniority for union representatives. Negotia- tions toward a new agreement began on July 7, 1959, when the union made an oral presentation of its demands. The following day the company presented its proposed new contract. After conferring frequently during the next few weeks with little progress in the bargaining, the company on July 28, 1959, informed the union that if no agreement were reached by July 31, it would discontinue, among other things, preferential seniority for union representatives. Since no agreement was reached on August 1, this was done. The Board held that by virtue of the expired collective-bargaining contract, certain employee representatives of the union had become vested with "top seniority rights"; that the company acted unilaterally on August 1 when it abrogated these seniority rights and thus terminated the benefits which had accrued to the employees, and thereby violated Section 8(a) (5) of the Act. The court of appeals affirmed this holding of the Board. The court said at page 620: We agree with the Board that both seniority rights and a grievance procedure are within the phrase "wages, hours, and other terms and conditions of employ- ment" and hence are mandatory bargaining subjects.... Accordingly, the com- pany's unilateral action with respect to them was unlawful. NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed. 2d 230 (1962). The fact that there was no agreement in effect at the time does not alter our conclusion.... The vice in this was not the refusal to comply with the provisions of an agreement which had already expired, but the unilateral elimination of accrued seniority rights, .. . With regard to the company's contention that it was justified in its action because the union had notice of the changes and an opportunity to bargain with respect thereto, the court pointed out that since the union was not notified until July 28 of changes to be effective August 1, "it can hardly be said that the union was given the bargaining opportunity to which it is entitled under NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed. 2d 230 (1962); and NLRB v. Crompton-Highland Mills, Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L Ed. 1320 (1949)." (Ibid.) The General Counsel argues that the Bethlehem case is strikingly similar to the case at bar, that the only major difference makes the instant case even stronger, for there is a total absence of evidence that the Union in the instant case was ever notified of the Respondent's withdrawal of preferential seniority. Consequently, the Union did 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not have any opportunity to bargain. The record supports the General Counsel's contention in this respect. Moreover, Vice President Cone testified that the Respond- ent's policy manual was revised and reissued after November 1962 (the precise date was not fixed) and that the revised manual made no provision for superseniority for shop stewards. There is no evidence in the record that the Union was ever notified of this revision. Indeed, the record is completely silent that the Union was ever informed of Respondent's abrogation of the preferential seniority provisions until the grievance was filed by Dunn after her layoff. Respondent contends that the Bethlehem case is not controlling because there the unilateral abrogation of the preferential seniority occurred on the very date when the contract terminated, while the instant case the Union is claiming the benefits of the preferential seniority clause for an indeterminate period after the expiration of the contract. Respondent argues that to carry the General Counsel's position to its logical conclusion would mean that, once a company had agreed to such preferential seniority, such right continued in perpetuity and the company could never free itself from this provision even though the contract which created the right was no longer in existence. Respondent argues further that to hold that preferential seniority continues even though there is no bargaining agreement in effect would raise serious legal ques- tions: (1) to give preferential seniority to five chosen members of the Union in the absence of a contract obligation could constitute a violation of Section 8(a)(3) and (1) in that it would be clearly discriminatory vis-a-vis other employees, and (2) it would not effectuate the purposes and policies of the Act because it would make it unnecessary for a union to engage in earnest collective bargaining in order to reach terms of agreement with an employer. I am of the opinion that the Bethlehem case is dispositive of the instant case. It is not the proximity of the company's unilateral action to the expiration of the preexist- ing contract which is controlling. Rather, the crucial issue is whether the company gave the union an opportunity to bargain about its proposed action. This is the rationale of the Bethlehem case. See also N.L R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736; Fibreboard Paper Products Corp. V. N.L.R B., 379 U.S. 203.12 Thus, if Respondent wished to terminate preferential seniority, it should have given the Union notice of its proposed action and an oppor- tunity to bargain about it. Respondent failed to do so In view of the foregoing, there is no merit to the subsidiary argument offered by Respondent that if it continued to observe the preferential seniority provisions of the expired contract it may be found guilty of violating Section 8(a)(3) of the Act. Nor is it realistic to say that the Respondent's observance of the supersemority provi- sions would make it unnecessary for the Union to engage in earnest collective bar- gaining in order to reach terms of agreement with an employer. Collective bargaining normally covers a whole spectrum of wages, hours, and other terms and conditions of employment, and it is difficult to conceive of a union's being willing to maintain the status quo of preferential seniority for its shop committee in preference to bargaining about other matters. Particularly is that so in the instant case where the Union was apparently dissatisfied with the preexisting contract and had served notice of termination. Accordingly, I find and conclude that Respondent unilaterally abrogated the prefer- ential seniority of members of the general shop committee in violation of Section 8(a)(5) and (1) of the Act. However, insofar as the complaint alleges a violation of Section 8(a)(3) of the Act, it must be dismissed. In the Bethlehem case, the abrogation of preferential seniority was found to be a violation of Section 8(a)(5) of the Act, not of 8(a)(3) of the Act. Nor is there any evidence in the instant case that Respondent's action in refusing to accord superseniority to Dunn and in laying her off thereafter was in any way motivated by her membership or activities on behalf of the Union. It is true that she had an argumentative discussion with Plant Manager Anderson regard- ing Respondent's proposed insurance plan, but there is no evidence that Dunn was singled out for unfavorable action because of that discussion. To the contrary, the evidence is clear and I find that the layoff was because of economic reasons, i.e., Respondent no longer required the services of weaver trainees because it had increased the work assignment of each weaver from 25 to 35 looms. And this is fully v Respondent in its answer alleged that "negotiations between the parties had either reached an impasse by said time [ January 19641 or had voluntarily been abandoned by the Union." No evidence was offered by Respondent to support this allegation. To the contrary , it appears that as late as December 1963 the Respondent had proposed an insurance plan for its employees, which the Union had rejected. CONE MILLS CORPORATION 377 demonstrated by the fact that the other two weaver trainees were also laid off in January. Accordingly, I find and conclude that Dunn was not laid off for discrimi- natory reasons, and I shall therefore recommend that the complaint be dismissed insofar as it alleges a violation by Respondent of Section 8(a)(3) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in con- nection with the operations of Respondent 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 thereof. VI. THE REMEDY Having found that the Respondent unilaterally abrogated the seniority rights of the members of the general shop committee, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. The General Counsel requests that the Respondent be ordered to reinstate Dunn. The request must be denied. Superseniority does not operate in a vacuum. To be effective, there must be another position which the employee having superseniority is qualified to fill.13 The only positions in the weaving department in Respondent's Minneola plant which female employees can fill are those of weaver and smasher. As far as the job of weaver is concerned, I have heretofore noted the credited testi- mony of Barber to the effect that Dunn's performance as a weaver trainee was not satisfactory. In addition, Plant Manager Anderson testified without contradiction that at the first grievance meeting, he asked Dunn whether she could run a set of Draper-X looms and that she replied that she could not do that. He also asked her whether she could run a smash job and she replied that she could not do it by herself. At that time, Respondent had cut down its smasher force from two smashers to one per shift. It is also significant that when the batter filler job was eliminated through automation and Dunn was transferred to weaver trainee, she did not insist upon her superseniority and claim a job either as weaver or smasher, but was satisfied to take a job as weaver trainee at a substantially lower wage. The foregoing is not overcome by the fact that for 3 nights while she worked as weaver trainee, Dunn operated a set of looms or by the further fact that during her employment by the Respondent as a spare hand or extra help, she at times operated looms as a weaver and on other occasions assisted another smasher. It may well be that she was qualified to assist another smasher, but it is apparent from the foregoing that she was not qualified to do all the smashing jobs on the shift by herself. Also, while Respondent may have been willing to use her as a weaver when another weaver was absent, it does not follow that she was qualified to operate a set of looms regularly. It may well be that Respondent was willing to accept a lesser performance in preference to gettmg no production at all from idle looms. But, again, this does not indicate that Dunn was qualified to handle the job of weaver on a regular basis, par- ticularly after Respondent had increased the assignment of weaver to 35 looms.14 One more matter remains. As previously noted, Love, the third weaver trainee, was kept on the job for a "few days" longer than Dunn. The record does not reveal precisely how much longer Love was kept on the job, except that she was also laid off later the same month The reason for Love's longer retention was the fact that she had more normal seniority than Dunn. Respondent concedes in its brief that if Dunn had superseniority in January 1964, she would have been entitled to stay on the job as a weaver trainee several days more in January and would have been the last of is In this connection, it is also significant that the contract superseniority provision on which the General Counsel and the Charging Party rely requires that the employee seek- ing to exercise seniority "must be qualified to perform the work" of the position being claimed. 14 In view of the substantial evidence of Dunn's lack of qualifications for another posi- tion In the department , I do not attach much significance to Bagwill's statement in his letter to the Board : "If Mrs. Dunn had possessed super-seniority In her department, she would not have been laid off at that time," particularly since Bagwill testified credibly that when he wrote the letter "it was my assumption that she was qualified to do the work." In this connection , It is noted that, as previously set forth, Bagwill participated only In the second grievance meeting in which the matter of Dunn 's qualifications was not discussed and the only issue raised was whether the superseniority provision was still effective. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that classification to be laid off. However, Respondent argues this would be a de minimis remedy for Dunn. I do not agree. What may be de minimis to the Respond- ent may be substantial to Dunn. And since Dunn was entitled to superseniority, she should not have been laid off before any of the other weaver trainees .15 Accordingly, I shall recommend that the Respondent be required to pay Dunn wages equivalent to that which was earned by Love after the layoff of Dunn. The amount is a matter to be determined in a compliance proceeding, if the parties cannot agree. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, it is hereby ordered that the Respondent, Cone Mills Corpora- tion, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally changing seniority rights, rates of pay, wages, hours of employ- ment, or other terms or conditions of employment without first giving notice to, and bargaining with respect thereto with, Textile Workers Union of America, AFL-CIO, as the exclusive representative of all its employees in the appropriate bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist Textile Workers Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, as guaranteed in Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make Estelle Dunn whole for any loss she may have suffered as a result of the Respondent's failure to accord her superseniority, in the manner set forth in the sec- tion of the Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary for the determination of the amount of backpay due. (c) Post at its Minneola plant in Gibsonville, North Carolina, copies of the attached notice marked "Appendix." 16 Copies of said notice, to be furnished by the Regional Director for Region 11, shall, after being duly signed by its authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 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 said notices are not altered, defaced, or covered by any other material. (d) 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 therewith.17 "In this connection, I reject the argument in Respondent's brief that Dunn failed to follow the contract procedure for exercising superseniority, which provided that "each employee who is displaced from a job by a layoff may elect, within the following one working day, to exercise seniority to displace the junior employee in any job classification on any shift in the department . . . This defense was not raised by Respondent in its answer, nor was her grievance denied because she failed to follow the procedure. To the contrary, on both occasions Respondent took the position that the contract pro- vision regarding superseniority was no longer in effect by virtue of the termination of the contract. is In the event that this Recommended Order be 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. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, there shall be substituted the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." 171n the event that 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 Respondent has taken to comply herewith." SIOUX CITY BOTTLING WORKS 379 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, as amended, we hereby notify our employees that: WE WILL NOT unilaterally change seniority rights, rates, of pay, wages, hours of employment, or other terms or conditions of employment without first giving notice to, and bargaining with respect thereto with, Textile Workers Union of America, AFL-CIO, as the exclusive representative of all our employees in the appropriate bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Textile Workers Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Sec- tion 7 of the Act, and will refrain from any and all such activities. WE WILL make Estelle Dunn whole for any loss she may have suffered as a result of our failure to accord her superseniority. CONE MILLS CORPORATION, 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. If employees have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone No. 723-2302. Reuben R. Miller, and Reuben R. Miller and Philip L. Miller, Trustees of Morris Miller, d/b/a Sioux City Bottling Works and General Drivers, Warehousemen & Helpers Union Local No. 383, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 18-CA-1980. December 27,1965 DECISION AND ORDER On October 25, 1965, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled case, finding that Reuben R. Miller, individually, and Reuben R. Miller and Philip L. Miller, Trustees of Morris Miller, as copartners doing business under the trade name Sioux City Bottling Works, together herein called 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 attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision, and a plea in bar. 156 NLRB No. 41.