Herron Yarn Mills, Inc.

HERRON YARN MILLS, INC. Herron Yarn Mills, Inc. and United Furniture Workers of America, AFL-CIO, Local 282. Case 26-CA-2609. June 19,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 29, 1967, Trial Examiner Frederick U. Reel 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 Decision. The Trial Examiner failed to find violations with respect to certain other allegations in the complaint. Thereafter, the General Counsel and Respondent filed exceptions to the Decision and supporting briefs. 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. 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications: The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(1) by promising benefits to employees if they would abandon the Union and by threatening reprisals if they did not. We also agree with his further finding that Respondent violated Section 8(a)(5) and (1) by failing to furnish the Union the dates of hire of employees in the bargaining unit, and by withdrawing from agreements made during the course of bargaining, thereby causing the strike which commenced on November 21, 1966. However, the Trial Examiner dismissed the allegation that Respondent's conduct throughout negotiations established its overall bad faith in further violation of Section 8(a)(5) and (1) of the Act. On the basis of the evidence supporting the foregoing findings and its entire course of conduct, we are persuaded that Respondent approached the bargaining table, not with a sincere purpose to reach agreement, but with an intent to prolong negotiations until the removal of the court injunction requiring it to bargain with the Union so that it might then, as in fact it did, withdraw previously agreed-upon proposals and attempt to undermine the Union's representative status. This conclusion is inescapable 553 in light of the testimony by its representative that Respondent was bargaining only because the injunction compelled it to do so, and his statements that he was "not particularly trying to make a contract" and "if it had been left up to [him], there would have been no contract ...." This attitude openly manifested at the bargaining table, together with Respondent's refusal to furnish relevant information at the outset of bargaining, its prolongation of negotiations, and its repudiation of agreements reached, many of which were its own proposals accepted by the Union, followed by the 8(a)(1) activities upon the removal of the injunction, compel the conclusion that Respondent approached the bargaining table with an intent to avoid reaching agreement. Accordingly, we find that Respondent's conduct viewed in its totality supports the conclusion that Respondent, at all times material herein, failed and refused to bargain in good faith and thereby violated Section 8(a)(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Herron Yarn Mills, Inc., Memphis, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: In paragraph l(d) of the Trial Examiner's Recommended Order and the fifth indented paragraph of the Appendix attached to the Trial Examiner's Decision substitute for the words "In any like or related manner" the words "In any other manner." IT IS FURTHER ORDERED that all allegations of the complaint not specifically found to be violations of the Act be dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Memphis, Tennessee, on January 30, 1967, pursuant to a charge filed the previous November 21' and a complaint issued December 14, presents questions whether the Respondent (herein called the Company) violated Section 8(a)(1) of the Act by certain statements of alleged supervisors, and violated Section 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Charging Party (herein called the Union). Upon the entire record, including my observation of the witnesses, and after due consideration of the unusually helpful brief filed by General Counsel (the Company, although given equal opportunity to do so, filed no brief), I make the following: ' Unless otherwise noted, all dates herein refer to the year 1966 165 NLRB No. 92 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a Tennessee corporation engaged at Memphis in the manufacture of yarn, annually ships to points outside the State products valued in excess of $50,000, and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Evidence on this record establishes that the Union is an "organization . in which employees participate and which exists for the purpose, in whole or in part, of dealing with employees concerning grievances . wages, rates of pay ... or conditions of work." It is, therefore, a "labor organization" within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion Certain employee witnesses testified to conversations with alleged supervisory employees, and attributed to the latter certain statements allegedly violative of Section 8(a)(1). 1. Willie Lee Clinton testified that in mid-November on one of the relatively few occasions when he worked on the night shift, his "foreman," Jeff George, asked if he "had heard about the Union" and what he "thought about it." When Clinton responded that he "thought a lot about it," George told him that Company President Herron had said "he was going to close down" if the employees were for the Union. Clinton replied that he was unconcerned as he owned no stock in the Company. 2. Clarence Williams, another day-shift employee who occasionally worked at night, testified that one evening in mid-November, George asked him what he thought about the Union. According to Williams, George continued by stating that he was opposed to the Union and that "a lot of us including himself would probably be out of a job, because he had heard Mr. Herron say that he was going to close it down." 3. Employee Ruby Fifer attributed to her foreman, Fred Beaver, the comment-likewise in mid-November-that Herron would give the employees a 10-cent increase if they dropped the Union. 4. According to employee Bessie Tate, Beaver came up to her on Friday, November 18 (the last working day before the strike, discussed infra), asked her if she was going to go on strike, and continued, "Well, it don't make any difference because the boss told me to get rid of all that was in the Union, anyway." 5. Employee Annie Gilbert testified that on November 9 Plant Manager Louis Saxon, after asking her if she was still on the Union's negotiating committee , continued: "I wish you all would forget about the Union, I just bought a new car. I think I could get you more pay and more vacation." The Company contends that the various threats and promises recited above were never uttered, and also that neither Beaver nor George is a supervisor, so that even if they made the statements attributed to them, the % Tate said I was working by machine alone in the early afternoon, and Fred Beaver , which is the foreman, came over and asked me if I were going to stay in , or if I were going to go out with the rest Well, I didn't answer him So, he said , "Well, it don't make Company would not be liable therefor. The question whether the statements were made raises issues of credibility as between Saxon, Beaver, and George on the one hand and the employee witnesses on the other. The demeanor of the several witnesses furnishes little assistance in this particular case. Clinton and Williams attributed substantially identical statements to George, namely, that Herron said "he was going to close down" because of the Union. George's testimony, read with extreme precision, may fall a hair's breadth short of a denial: Q. During the week immediately before the strike, did you have any discussions or anything else with any of the workers out there about the strike or the union? A. Not as I can recall. Q. Did you ever tell any of these union members that if they didn't get out of the union, that the plant was going to close down? A. I didn't have that much authority to tell nobody nothing. * Q. Did you ever tell Willie Lee Clinton? A. No, sir. Q. That if the union stayed there that the plant would close? A. No, sir. It's Mr. Herron's mill, not mine. I didn't have no authority to tell no one what to do. Q. I realize that, but the only question I am asking you is did you ever discuss it with him, or tell him that? A. No, sir. But to read testimony that precisely is probably to read it with more precision than it was given. I am satisfied that George intended to deny the statements, particularly as he also testified that he and Herron had never discussed the Union. Probably, as between Clinton and Williams on the one hand and George on the other, the latter had slightly more reason to deny falsely than the former had to fabricate. The alleged violation of Section 8(a)(1) is not critical to the Union in this case, for the Union's chief concern appears to be with the bargaining issue. Evidence of company hostility was not essential , the Company had already made in an earlier case and repeated on this record, its "revulsion" at having to bargain with the Union. One point in favor of crediting the testimony of Clinton and Williams is the similarity of the statements they attribute to George, although it is possible that this reveals nothing more than a common source of fabrication. Further belaboring of the "ins" and "outs" would be even more unprofitable than that already indulged. In the end, someone (at this moment, this Trial Examiner) has to conclude that either the two employees or George told the truth, and there is regrettably little in the record on which to rest the resolution. I have decided to credit the employees, largely on the similarity between their stories and on their relative lack of interest in the issues. Similar credibility issues are posed by Beaver's denials of the statements attributed to him by Fifer and Tate. I am inclined to credit Tate's version, set forth in the footnote,2 any difference, because the boss told me to get rid of all that was in the union any way " So, I still didn't say anything I didn't answer So, he said, "Well, what is you going to dog You don't say anything " I says, "Nothing " Then, he walked away and went over to the frame where Emma Nagles worked HERRON YARN MILLS, INC. 555 as having a certain ring of plausibility perhaps because of the details with which the story is told. Again one cannot help pondering why an employee with the Company for 23 years would fabricate such a story, or on the other hand why a supervisor, 15 years with the Company but now employed as a sheriff's aid in Mississippi, would deny it if it were true. As I have credited Tate, and thus necessarily discredited Beaver, it is an easy step, perhaps too easy, to discredit him as to Fifer as well, and accept over his dental her testimony that he said the employees would get a 10- cent raise if they abandoned the Union. Fifer also surrounded her version with an added detail which lends some plausibility to her testimony.3 The chances of a witness inventing an episode appear to me to diminish somewhat as she adds details which extend beyond the narrow confines of the critically illegal language and round out the conversation.' The conflict between the testimony of employee Annie Gilbert and Plant Manager Saxon is likewise sharp and direct. Gilbert testified as follows to a conversation with Saxon on November 9: A. He asked me if I was off of the negotiating committee, if Francis Meeks hadn't taken my place, and I told him, "No, that we had elected her shop steward when we got the union-the contract signed." And he says, "Well, I heard that she was off." He says, "I wish you all would forget about the union." He says, "I just bought a new car," and he says, "I think I could get you more pay and more vacation." Q. Okay. What did you say, if anything? A. I kept working and I didn't say anything, and he walked off. Saxon, although admitting that he talked to Gilbert and others every day, and that he had recently bought a new car, denied having any conversation along the lines of Gilbert's testimony. The Company argues that Saxon should be credited as it is improbable that he would approach a known union adherent, and one as prominent as Gilbert, with such a promise of benefit. But Gilbert's version attributes to Saxon a perfectly natural and by no means illegal inquiry, as to whether one Meeks had replaced Gilbert on the negotiating committee. Saxon denied even this innocuous part of the conversation. Once again I am moved to credit the employee's version because of the plausible details which the employee witness supplied.5 The Company in its answer concedes that Saxon was a supervisory employee, but denies that Beaver and George held such status. Beaver testified that he was the supervisor of the spinning room, that he told the employees what to do, that they obeyed his instructions, that they looked on him as a supervisor, and that he was "sort of a boss" and knew that for that reason he was ineligible for membership in the Union. Beaver apparently had some authority to grant time off, and three employees (Gilbert, Fifer, and Tate) testified that Saxon had told the assembled employees that they should follow Beaver's directions or "go home." I find that Beaver was a supervisor and that the Company is legally responsible for his statements in violation of Section 8(a)(1), as well as for Saxon's. I find otherwise as to George, however. George was the "foreman" in the cardroom during the night shift, but his primary task was to keep the machines in repair. Such direction as he gave to the three men who worked in the room appears to have been nominal. Although there is some testimony that he asked people to work overtime, the explanation appears to be that Saxon determined the need for overtime, and George would routinely inquire of each man until he had the necessary number of volunteers. Clinton testified that George gave him instructions, but this turned out to be nothing more than telling him what kind of yarn to put in the machine which Clinton operated. Williams testified that George told him where to put cans; i.e., drums of yarn which he carried on a cart from one room to another. On one occasion George told Williams to "go home" because he had been spending too much time in the restroom, but George's superior, the night superintendent, countermanded the directive. On the whole, I find that George's job as "foreman" involved only routine direction of employees, that he was primarily employed as a mechanic or "fixer," and that his authority was insufficient to make him a "supervisor" within the meaning of the Act. B. The Refusal to Bargain 1. Related proceedings The Union won a Board-conducted election, and on December 8, 1965, became the certified bargaining representative of the Company's employees.6 The Company, challenging the validity of the certification, refused to bargain, and the Union filed an unfair labor practice charge on which a complaint issued (Case 26-CA-2350). Pursuant thereto, and on petition of the General Counsel, the United States District Court for the Western District of Tennessee issued an injunction on May 27, 1966, under Section 10(j) of the Act, directing the Company to bargain with the Union. The Company filed an appeal from this injunction, but before the case could be heard in the court of appeals, the Board issued its decision in Case 26-CA-2350, sustaining the complaint, 160 NLRB 629. The issuance of the Board's decision caused the previously issued injunction to expire, and the Company's appeal from the injunction was thereupon dismissed as moot and the injunction action was discontinued and dismissed on October 17, 1966. The bargaining conferences in the instant case had commenced pursuant 3 Her testimony is. "He came over to me and said Mr Herron would give us a 10 cents increase if we dropped the union l asked him why he couldn't call us and tell us himself, and he said that the union didn't like him to talk to us , so lie told him to tell us " ' W. S Gilbert's Pooh-Bah recognized the importance of adding "corroborative detail intended to lend artistic verisimilitude to an otherwise bald and unconvincing narrative " Pooh-Bah, of course, was embellishing an untruthful tale But his embroidery was so extravagant as to tax credulity rather than to encourage it, and besides his inventive powers probably exceeded those of the employees who testified in this case ' Also, I find that Saxon testified falsely when he denied making the statement , which three witnesses attributed to him, that the employees should follow Beaver's instructions or "go home " When three employee witnesses (sequestered during the hearing) testify to an employer's using a particular expression, I am inclined to accept their testimony over his denial particularly where the employer calls no corroborating witnesses for his version And if Saxon testified falsely on this issue, his entire testimony comes under a cloud. 6 The bargaining unit is the conventional "production and maintenance unit" found appropriate in the previous proceedings. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the injunction, and, as will be seen, continued after its expiration. 2. The bargaining prior to the strike At the first bargaining conference on July 6, the Union (represented by LeRoy Clark, an International representative, and by a bargaining committee consisting of three employees) presented a proposed contract to the Company represented by its counsel, Robert Taylor. Among other provisions, this contract called for a voluntary checkoff of union dues, provided for an immediate "across-the-board" wage increase of 15 cents per hour, and a minimum wage scale with a beginner's hourly rate of $1.25, a minumum rate after 60 days of $1.35, and after 120 days of $1.45. (The then current minimum at the plant was $1.30, and under the proposed contract all employees would have qualified for the $1.45 rate.) The company negotiator commented on the various provisions, and agreed to submit a counterproposal. Such a proposal was furnished to the Union before the next meeting which occurred July 27. By the time of the July 27 meeting, the Union had analyzed the Company's proposal and had prepared a further proposal, adopting some of the Company's counterproposal. The wage rates proposed by the Company were $1.25 per hour for beginners, $1.35 after 6 months, and $1.45 after 12 months. The Union agreed to this, but proposed an added clause calling for an automatic increase in the event of an upward revision of the Federal minimum wage, and this the Company rejected. Among other points on which the parties were still apart was the checkoff. On August 4, the Company's negotiator, Robert Taylor, was elected chancellor, a judicial office in the State court system. The next meeting of the parties occurred on September 9, but it was largely unproductive. They met again on September 28, at which time Chancellor Taylor introduced the union representatives to Olen Batchelor, a local attorney, who was to succeed Taylor as the Company's bargaining representative in view of the latter's assumption of his judicial duties. Batchelor, however, had to leave this meeting early, and Taylor continued discussing the various proposals with the union representatives. It is at this point that the only significant conflict in testimony arises with respect to the negotiations. According to Union Representative Clark, Taylor said to him late in this meeting: "If you will agree with the Company's contract as proposed, I will recommend to Mr. Herron [company president] that he agree to the checkoff." Clark's testimony continues: I asked him if that included the amendments that we had discussed, and which he had agreed and said, "Yes, we would include those." I said-and, then, he said, "Well, you write me a letter setting out what we have discussed here, what we have agreed on here in the letter, saying that you will accept the company's proposal, plus the modifications, and I will take it up with Mr. Herron, and get him to agree to a check-off. I will take it up with him and recommend that he agree to the check- off." I asked for discussion with the committee, and we discussed it, and we agreed that we would go along with that proposal, and we went back and told Mr. Taylor that we would accept his proposal as it was, and I would write him the letter. Q. Is that the way the meeting ended? A. Yeah. Well, I did go down and sort of go over the things that I thought that we had reached an agreement on, the modifications in the company's contract, and which he agreed with me that those were the modifications that he would agree with. The next day Clark wrote Taylor, stating that the Union would accept Company's proposal with certain stated modifications. The letter contained no mention of a checkoff. Clark on the witness stand explained this as an oversight and an inadvertence.' The Union received no reply to its letter of September 29. After several attempts, it arranged a meeting with Batchelor on November 1. At this time Batchelor said the Company "was agreeable to everything except the check-off." Clark replied that he had made a "package proposal" which included the checkoff, and that its omission from the letter was an inadvertence. Further discussion resulted in Batchelor's agreeing to discuss with Herron three points of difference: the checkoff, whether the wage increase was to be effective immediately, and whether discharges could be handled under the grievance procedure. Batchelor shortly thereafter telephoned Clark and expressed company agreement with the Union on all matters except the checkoff. Clark then told Batchelor that the Union would look into the cost of administering the checkoff, as the Union believed this should not be a stumbling block to agreement. Clark made inquiries of other employees, and then telephoned Batchelor to report that the checkoff would require only 30 to 90 minutes a month in clerical work. Clark's testimony continues: ... and at that time Mr. Batchelor said that while we might could get together on this, there were some other important issues that we would like to discuss, and I would like to have a meeting with the committee and Mr. Herron down at the plant, and I told him all right, we would be willing to meet, and we set an agreement to meet on November the 16th, I believe. Q. Was there anything said in this conversation about a strike? A. Well, previously I think Mr. Batchelor had called me and asked me if there was going to be a strike on November the 13th. He had called me, because he said he had gotten information from the employees that there was going to be a strike on November the 13th. I told him no, there wasn't going to be any strike on November the 13th. I told him that there had been a meeting of the committee and that they had said after the 20th we would determine whether we would go on a strike; that they had voted to go on strike after the 20th. So he says, "You are sure there ain't going to be no strike on the 13th," and I told him no. ' Taylor's testimony contradicted that of Clark, for Taylor modifications stated in the letter of September 29, and also squarely denied that any agreement had been reached at the denied that he at anytime agreed to a checkoff meeting of September 28 with respect to the proposed HERRON YARN MILLS, INC. 3. The meeting of November 16, subsequent exchanges, the strike, and the final meetings On November 16 the union representatives met with Batchelor and Company President Herron. Again quoting Clark: A. Mr. Batchelor opened up the meeting by saying he had called the meeting for the purpose of discussing the company's economic position . He said that while agreement had been reached, or had been made on some of the economic issues somewhere down the line somebody had not considered the impact of this agreement on the company's financial condition, and that compared to that, the checkoff was a minor thing, and that we could agree to the checkoff, but we do want to discuss the other things; that we can agree to the checkoff, but we do want to discuss these other things. And after we had discussed this, I simply asked him, well, what does he propose and he said that he would propose, instead of the two weeks vacation, one weeks vacation; instead of the five paid holidays, he said three, but Mr. Herron said "No, we can go along with four," so, he said, "Okay, four paid holidays," and instead of the 15 cents increase for those people who had been there one year, he would be willing to give five cents increase now and five cents February 1st. We-I asked them that we would discuss this with the committee, and we had a separation and him and Mr. Herron went out, and we discussed it amongst ourselves, and we decided that we would go along with the company on the question of the vacation and the holidays, but we would insist on the wage increase being as agreed upon, previously agreed upon. Clark informed Batchelor and Herron of this decision, and they departed to discuss the matter further. That afternoon Batchelor called Clark and stated "that the company could-not-go along with 15 cents across the board, that they would go to five cents increase now, and a 10 cents increase on February the 1st." The union representatives discussed this proposal the next day, November 17, and decided to ask for a 10-cent increase then and 5 cents more on February 1. Clark so informed Batchelor by telephone, and Batchelor said he would discuss it with Herron. Later that afternoon, Batchelor telephone Clark and told him "that the company has withdrawn the checkoff and its other proposals and we are right back to where we started." Clark's testimony continues: Q. What did you say to that? A. I asked him why, and he said, "Well, that's just the way our position is at this time. That' s just it." I told him, I said, "You know that I told you if we couldn't reach an agreement that possibly there would be a possible strike the next coming week." He said yes, that he was aware of that, the company was aware of it. I said, "Okay." Q. Now, after this conversation with Mr. Batchelor, did you have a meeting of the Herron employees? A. Yes, I had a meeting with the Herron employees on this Sunday. Q. On the following Sunday? A. On the following Sunday. Q. That would be November the 20th, is that correct? 557 A. Yes. Q. Did you report to the employees what had happened during your conversation with Mr. Batchelor? A. I reported to the employees what had happened and had discussed with them what had happened, and they had already authorized the committee the Sunday before-they had already authorized two Sundays before to call a strike when necessary. Q. Was another vote-strike vote taken at this time? A. Yeah. I said that we will decide now whether we continue to go out on strike, or whether there has been any changes and there was a motion put to the floor that we go out on strike the next Sunday. Q. I believe it is admitted in the answer that you did go out on strike on November the 21st? A. We did. Q. Is the strike still going on? A. It is. On November 25, shortly after the start of the strike, the union representative again met with Batchelor, but reached no basis for settling the wage controversy between them. On December 21, the parties met for the last time. Clark again asked Batchelor on what basis they could reach agreement . Clark's testimony continues: ... he said, "Well, we have got an additional complicating factor here, now, because we have got some replacements and we are going to insist that the replacements work and continue to work, and we are working only one shift, and we have got as many people as we need for one shift," and as far as the wages and conditions are concerned, that he would be willing to agree to what he had already stated, which was five cents increase now and 10 cents increase February 1st, one weeks vacation, four paid holidays, with the understanding that the people who were hired would continue to work, and I asked him regardless of seniority, and he said, "Regardless of seniority." He said he wanted the newly hired people to continue to work, and I told him, no, we couldn't reach an agreement on that basis. So, the meeting broke up. Q. Was anything said about the checkoff at either this meeting or the other one? A. Well, at this meeting he said, no, they would not agree to a checkoff. 4. The failure to produce data At the opening of the hearing, General Counsel amended the complaint to allege that "Respondent at all times since August 23, 1966, and all times prior thereto, has failed and refused, and continues to fail and refuse, to comply with the union's request for the date of hire of the employees included in the unit." The record establishes that the Union requested such data on June 10, and on June 17 the Company submitted a list of employees showing the year of hire. On June 21 the Union replied, requesting, inter alia, the specific date of employment. The Company responded the next day, stating: "This information cannot be given with any degree of certainty. We have given you the year in which each employee was employed but since many of them have been working for our client for many years we cannot give you this information without making a thorough search of all of the old records." The Union immediately renewed its request, 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stating that in its view the reason advanced by the Company was insufficient. The matter was discussed at the first bargaining meeting on July 6. To quote Clark: A. Well, I know I had asked Mr. Taylor for the specific dates of when the people were hired, and he pointed out that this was a very difficult thing for them to do, because the records were all over the place. They didn't know where they were, but anyway to find and locate the records was difficult for them to do, in order to supply us with this information. So far as the record shows, the matter was not further discussed between the parties. Asked as a witness why the month and date would be significant, Clark replied: Well, in negotiations there is a question of seniority involved and a question of establishing the time at which people were hired. I felt that we would need that to know where a person's seniority really was in negotiations. 5. Concluding Findings In addition to alleging as a refusal to bargain the refusal to produce data, just discussed,8 the complaint alleges that the Company did not bargain in good faith, that it further violated Section 8(a)(5) and (1) of the Act by withdrawing from specific agreements made during contract negotiations with respect to the checkoff, vacations, holidays, and wage rates, by withdrawing generally from all agreements made during negotiations, and by failing "since on or about November 1" to vest sufficient authority in its bargaining representative. The last of these allegations need not detain us long. The record establishes that Batchelor had the same full and complete authority to conclude a contract that Taylor had, and the slight confusion attendant on the necessary substitution of company representative did not seriously impede the bargaining negotiations. Although Clark quoted Batchelor at one point as saying he had "no authority to change anything," this would seem to reflect only the natural reluctance of the substitute negotiator to alter positions fixed by preceding negotiations. With somewhat more difficulty, I am also inclined to dismiss the general allegation that the Company's conduct throughout the negotiations establishes its overall bad faith. It is true that the Company bargained only because compelled to by injunction, that Taylor found it "repulsive" and "nauseating" to have to negotiate with Clark, and that Taylor went so far as to testify that he was "not particularly trying to make a contract" and that "if it had been left up to [him], there would have been no contract ...." Somewhat inconsistently he later testified that he "entered into the negotiations in the best of faith" and that he "intended to, if we could have concluded a contract, to do so." But while Taylor's attitude all but invites a charge of bad faith, the actual record of negotiations shows that after a few bargaining sessions the parties were close to a contract and were kept apart only by disagreement over the checkoff, and later by a narrow disagreement over the effective date of certain wage rates. Although Taylor's hostility may have prolonged the 8 This would seem clearly violative of Section 8(a)(5) and (1) Of course, insofar as the Company does not possess the data, the Company will not be in violation if it fails to produce But the mere fact that unearthing such commonplace information as this would require "a thorough search of all the old records" is no defense negotiations and rendered certain meetings fruitless, the near agreement represented concessions by both sides from their original positions, including the acceptance by the Company of all the conditions stated by the Union in its letter of September 29. 1 would, therefore, absolve the Company of the charge that its conduct throughout was in bad faith. The record is clear that on November 16 the Company withdrew from agreements it had reached with the Union during the course of negotiations concerning vacations, holidays, and a wage increase. Such a change of position is a strong indication of want of good faith and a desire to cause a rupture in negotiations. On the other hand, the Company represented to the Union at that time that the Company's economic circumstances warranted a reexamination of those matters. Neither at the time of the bargaining nor at the hearing did the Company come forward with any particulars justifying or explaining in any detail what had caused the Company to retreat from its agreements. The Union, however, did not at any time ask for any documentation of the Company's claimed "inability to pay," although under N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, the Union could have demanded that the Company produce the evidence on which it relied. Indeed, far from challenging the Company on this point, the Union rather quickly acceded to the Company's new position on vacations and holidays, and was ready to modify the previous agreement on wages. On this record, it is difficult to avoid the suspicion that the Company reopened the economic issues because almost all the other obstacles to a contract had been removed. Certainly the only excuse offered on this record-that "somewhere down the line somebody had not considered the impact of this agreement on the company financial condition"-has a peculiarly hollow ring since the holiday, vacation, and wage provisions on which the Company now reneged were contained in its own initial proposal. It may be, however, that if this matter stood alone, the highly suspicious circumstances would fall short of requiring a finding of bad faith. But the withdrawal of agreement on these matters does not stand alone. The Company also, after telling the Union on November 16 that the checkoff was "a minor thing" and that it "could agree to the checkoff," then withdrew that agreement on the next day and adhered to the withdrawal on December 21.9 Further, when the Union made a counterproposal close to the Company's last offer on November 17, the Company's response was not only to reject it but to tell the Union that "the Company has withdrawn the checkoff and its other proposals and we are right back to where we started." This wholesale repudiation of agreements reached is the antithesis of good-faith bargaining and suggests that the Company, far from trying to avoid a strike, was welcoming and encouraging strike action. The record does contain some suggestion that the foregoing version of events does not accurately portray the Company's position or the statements of its spokesman. It is true that after the strike began the parties continued negotiating, and that they did not in fact start over "from 9 As to whether the Company had agreed to the checkoff as early as the preceding September, I find that there was a misunderstanding between Clark and Taylor on that point, and that no agreement was in fact reached although Clark believed otherwise HERRON YARN MILLS, INC. scratch." But the testimony quoted and relied on above is undenied. Batchelor, the Company's bargaining representative, was also its counsel at the hearing. But this did not prevent him from taking the witness stand, and as it was obvious from the pleadings that the events in which Batchelor participated were critical in the case he had ample opportunity to obtain the assistance of other counsel if he felt a reluctance to undertake the dual role of counsel and chief witness. The Company may be of the view (as noted, it filed no brief) that the difference between it and the Union at the time of the strike went to a mere matter of economics, that the Union had already authorized a strike, and that the ensuing walkout should be deemed an economic strike in support of bargaining demands, rather than one provoked by unfair labor practices. So far as the strike authorization is concerned, such "authorization" is far from tantamount to actually going on strike. Strike authorization is often a necessary prelude to a strike, but it is also a well-known bargaining tactic, and many more strikes are "authorized" than are called. As to the minor matter separating the parties, it is true that the Union's last offer (10 cents in November and 5 cents more in February) was not far different from the Company's last offer of 5 cents in November and 10 cents more in February. But when the Union came in with this proposal (and it was the Company which was reneging on a previous agreement to give 15 cents in November), the rupture which ensued was caused by the Company's response that it was withdrawing all its proposals. Had the Company continued to bargain, the negotiations might have come to fruition. But the Company chose to provoke the strike by announcing a withdrawal of all agreements previously reached. Hence, although in one sense it is true, as Clark candidly admitted, that the strike came about because of a minor difference as to the method of effectuating the wage increase, analysis of the situation as it actually developed shows that the basic cause of the rupture was the Company's announced withdrawal from the agreements.10 The consequence of the foregoing discussion is to find that the strike was an unfair labor practice strike, and not an economic strike. At the time of the hearing (January 30, 1967), the strike was still current, and the sole consequence of this finding is to require the Company to permit the strikers, on application for reinstatement, to return to their jobs displacing, if necessary, strike replacements. As the hearing took place so close to the erstwhile critical date of February 1, by which time, under either party's last offer before the rupture, the 15-cent wage increase would have been effective, it would seem that the question of reinstating the strikers assumed a position of cardinal importance. It may not be inappropriate to note, therefore, that-unless reinstatement is unlawfully refused-no backpay will be due, and that some of the Company's employees had been working for it since the 1940's. The Company suggested at the hearing that some misconduct had occurred during the strike, but no evidence was introduced pertaining thereto. Of course, if the Company should decline to reinstate any striker because of alleged strike misconduct, the issues 1' The difference between the two wage proposals was so negligible that it seems unlikely either to have caused the Union to strike, or to have caused the Company to break off negotiations unless it sought an excuse to avoid a contract The difference amounted to S cents per hour from November 21 to February 1, or about 10 weeks Based on a 40-hour week, this would be $2 per 559 thus raised could be litigated in an appropriate proceeding. CONCLUSIONS OF LAW 1. The Company, by promising benefits to employees if they would abandon the Union and by threatening reprisals if they did not, engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. The Company, by withdrawing from agreements made during the course of bargaining and by failing to give the Union the dates of hire of employees in the bargaining unit, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 3. The strike which commenced November 21, 1966, was caused by the Company's unfair labor practice in withdrawing from agreements previously reached. THE REMEDY I shall recommend that the Company be ordered to cease and desist from its unfair labor practices, to reinstate strikers upon their application, replacing if necessary employees hired during the strike, and to resume bargaining with the Union. In the event of a failure to reinstate any striker, the Company shall make him whole for any future loss of earnings arising out of such refusal of reinstatement, commencing 5 days after the date of his application, using the formulae approved in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend the posting of an appropriate notice. Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend the following: ORDER Herron Yarn Mills, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising employees benefits if they withdraw from or fail to support United Furniture Workers of America, AFL-CIO, Local 282. (b) Threatening employees with reprisal if they support that labor organization or retain it as their bargaining representative. (c) Refusing to bargain in good faith with the aforesaid labor organization as the representative of the employees in the unit found appropriate by the Board in Case 26-CA-2350. (d) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named labor organization as the statutory week per employee or $20 for the entire period A strike of 2 days would cost each employee that much, and, on the other hand, the total added cost to the Company for 10 weeks would have been $1,120 (based on its June payroll of 56 employees), or $112 per week, a small fraction of its payroll cost 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the employees in the unit heretofore found appropriate. (b) Upon request, furnish that organization with the dates of hire (day, month, and year) of each employee in the bargaining unit, to the extent that such information is in the Company's possession. (c) Upon application, offer to each of the employees who went on strike November 21, 1966, reinstatement to his former or a substantially equivalent position (discharging, if necessary, employees hired subsequent to that date) and in the event of failure to do so within 5 days after their respective applications, make them whole in the manner prescribed in the portion of the Trial Examiner's Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its plant in Memphis, Tennessee, copies of the attached notice marked "Appendix."11 Copies of said notice, to be furnished by the Regional Director for Region 26, after being duly signed by an authorized representative, shall be posted by it 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,the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.12 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in "In In the event that 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 In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL reinstate upon their application any of the employees who went on strike November 21, 1966. WE WILL bargain upon request with United Furniture Workers of America , AFL-CIO, Local 282, as the exclusive representative of our production and maintenance employees. WE WILL NOT threaten to discharge employees who support that Union. WE WILL NOT promise benefits to our employees in an effort to cause them to reject the Union as their bargaining representative. WE WILL NOT in any like or related manner interfere with our employees in the exercise of their right to join or assist a labor organization , to bargain collectively, or to engage in concerted activities for mutual aid or protection. HERRON YARN 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534r-3161. be substituted for the words "a Decision and Order " iz In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith."