Cone Mills Corp.

CONE MILLS CORPORATION 449 Cone Mills Corporation and Local 259, Textile Work- to cost, actuarial assumptions, and employee cen- ers Union of America, AFL-CIO, CLC. Cases sus figures. Respondent's assertion that the Union 11-CA-3036 and 11-CA-3038 needed to know only the benefit levels under the January 30, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On July 12, 1967, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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 also recommended that certain allegations of other unfair labor practices be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision with a supporting brief. The General Counsel also filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. 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 recommendations of the Trial Ex- aminer to the extent consistent herewith. Various Locals of the Textile Workers Union" represent employees at Respondent's seven plants in North Carolina. The Union, after terminating ex- isting contracts at these seven plants, began negotiations for new agreements in May-November 1965. These negotiations failed to produce any final, written agreement despite some 39 bargaining sessions extending into February 1967. The Ex- aminer found that Respondent's conduct regarding the pension plan and dues checkoff proposals failed to satisfy its duty to bargain in good faith and thus violated Section 8(a)(5) of the Act. We agree with his findings respecting the pension plan, but dis- agree with the finding of bad-faith bargaining con- cerning a checkoff. The facts, as more fully set forth in the Trial Ex- aminer's Decision, amply support the finding that Respondent violated Section 8(a)(5) by refusing to provide the Union with information relevant to bar- gaining on the Company's pension plan proposal, and by thereafter unilaterally implementing that proposed plan.2 The Union sought information as company plan is no defense. For the requested data was clearly relevant to a comparison of, and bar- gaining on, the Company's and Union's proposals; the refusal to make these figures available to the Union served to frustrate meaningful bargaining. It is also no defense that Respondent desired quick union approval of its plan for tax purposes and of- fered to bargain about changes or improvements in the plan which it implemented. The Act requires that a pension plan, as a term or condition of em- ployment, be instituted through a bargained agree- ment with the Union, and not unilaterally established by the Company. Respondent has defaulted in its bargaining obligation in respect to the pension plan by withholding relevant informa- tion from the Union and then imposing its own plan. Such conduct violates Section 8(a)(5) of the Act. Respondent's bargaining with respect to Union dues is in a different posture. It is true that Respond- ent came up with some rather vague and specious reasons for declining the Union's proposals. And, as also appears from the Trial Examiner's Decision, there are other circumstances which render suspect Respondent's bargaining in the matter of dues col- lection. But, at the same time, there are factors which offset these suspicious circumstances. Thus, we find insufficient evidence of any determination by Respondent to weaken or destroy the Union. Respondent has dealt with the Union almost con- tinuously since the 1930's. And since 1955 the Union has functioned without any provision for the checkoff of dues. The present negotiations produced agreement on many items, including a 6.2 percent wage increase. The checkoff proposals received much attention throughout the negotia- tions. And the Company was not shown to have precluded the Union from exploring the dues col- lection topic; in fact, it indicated some willingness to go along on two of the Union's alternatives - col- lecting dues during work time and providing a dues collection booth on company property. The record shows, contrary to the Examiner's finding, that these two proposals originated with the Union, and we perceive no basis for terming Respondent's in- terest in them a sham or "joker." Thus, the bargain- ing background and overall course o_f the negotia- tions tend to negate the "bad faith" import of the above-mentioned evidence. Upon the entire record, we cannot say that Respondent's bargaining on checkoff went beyond "hard bargaining" into the realm of bad-faith bargaining such as would warrant an 8(a)(5) finding.3 1 For sake of simplicity, the Locals are referred to herein as the continued refusal to provide the requested data and its January 1, 1966, "Union " unilateral implementation of its own plan fell within the 10(b) period. 2 We agree with the Examiner that these findings are not precluded by S C£ H. K. Porter Co., Inc, 153 NLRB 1370, enfd. 363 F.2d 272 Section 10(b)'s limitations period. The Union made it quite clear that its (C.A.D.C.); Roanoke Iron & Bridge Works, Inc., 160 NLRB 175, enfd. interest in bargaining on pension plans and request for information ex- 390 F.2d 846 (C.A.D.C.); Alba-Waldensian, Inc., 167 NLRB 695. tended beyond the December 2, 1965, cutoff date. Thus , the Company's 169 NLRB No. 59 450 DECISIONS OF NATIONAL The Trial Examiner also concluded that Respond- ent violated Section 8(a)(3) and (1) of the Act by discharging greige tender Ralph Johnson. This con- clusion rests on his subsidiary findings that the Company "considered Johnson to be the Union's leader in the workload dispute," and that this leadership, plus the desire to discourage union ef- forts to favorably settle the dispute, motivated the discharge. We do not agree. It does appear that Johnson complained to the Union and to fellow employees about the printers shifting work to the tenders. But there is no evidence that Johnson was delegated the role of a union leader or spokesman in this dispute. John- son's complaint on May 12, which started the events leading to the discharge, was admittedly prompted by his personal concern that printer Kirk- man had failed to do his share of the work, and not by. any broader interests of the Union. Moreover, there is insufficient basis for inferring that Respond- ent viewed Johnson as a union advocate or, spokeman for other employees. The record shows that the Company was faced with a troublesome, longstanding dispute between the printers and the tenders over the division of work on the printing machines. Johnson had engaged in conduct which, in the Company's eyes, hindered the resolution of this dispute. Respondent had warned Johnson several times about coming in early and stirring up "trouble" with employees working on the third shift. On two occasions, Johnson challenged the Company to "prove" he was causing trouble. When charged again with creating "trouble" on May 12, John anded that Superintendent-Thornburg "prove it." Thornburg, nnown for his temper, im- mediately decided to discharge Johnson as a "troublemaker." On this record, we find an insufficient showing that the Respondent, in discharging Johnson, was unlawfully motivated. As noted, the record does not establish Johnson's role as a union "leader," and Johnson's flippant "prove it" response, in the cir- cumstances described, offered ample legitimate reason for discharge to the quick-tempered Thorn- burg. In sum, we find General Counsel has failed to show, by a preponderance of the evidence, that the Company unlawfully discharged Johnson. Finally, the Trial Examiner found that Respond- ent violated the Act by discharging eight em- ployees for participating in a one-half hour, in-plant "protest" of Ralph Johnson's discharge. Concerted action to protest the discharge of a fellow employee is, of course, a protected activity.4 Hence, we adopt the Trial Examiner's finding that Respondent's discharge of the eight protesters violated Section 8(a)(1) of the Act.5 4 Summit Mining Corp., 119 NLRB 1668, 1672-73, enfd. 260 F.2d 894, 897 (C.A. 3). LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Cone Mills Corporation, Greensboro, Nort h Carolina, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with the Union as the representative of all the employees in the appropriate bargaining units, by failing to pro- vide information relevant to bargaining on a pension plan and by unilaterally instituting a plan of its own. (b) Discharging or otherwise discriminating against employees for engaging in concerted activi- ties protected by Section 7 of the Act. (c) In any like or related manner interfering with the employees' right to self-organization, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action that we find will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the Union as the exclusive bargaining representative of all the employees in the ap- propriate units, and embody in a written, signed document all understandings reached. (b) Promptly furnish to the Union the requested information on pension plans. (c) Upon request of the Union, rescind the pen- sion plan which the Respondent unilaterally imple- mented on January 1, 1966. (d) Offer to each of the employees named below immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each of them whole in the manner set forth in "The Remedy" section of the Trial Examiner's Decision: Eugene Henley, Edward Dick, Ronald Gardner, William Tingen, Jr., Lester Flippin, Al- fred Walker, Noah Lewis, and Jack Wells. (e) Notify the above-named employees, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- 5 We also adopt the Eaminer's dismissal of certain other 8(a)(1) allega- tions. CONE MILLS CORPORATION 451 ports, and all other records necessary to analyze the amount of backpay due under the terms of this Decision. (g) Post at Respondent's plants herein in the State of North Carolina, copies of the attached notice marked "Appendix."6 Copies of said notice, to be furnished by the Regional Director for Region 11, after being duly signed by Respondent's 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 Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (h 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. WE WILL respect the rights of our employees to self-organization, to form, join, or assist any labor organization, or to bargain collectively in respect to terms or conditions of employment through said Union, or any representative of their own choosing, or to refrain from such ac- tivity, and WE WILL NOT interfere with, restrain, or coerce our employees in the exer- cise of these rights. You and all our employees are free to become members of any labor or- ganization, or to refrain from doing so. Dated By 6 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge or in other way dis- criminate against employees for protesting the firing of another employee or for other con- certed activities protected by Section 7 of the Act. WE WILL, upon request, bargain collectively in good faith with the Union as the representa- tive of all our employees in the appropriate units. WE WILL furnish the Union with requested information concerning pension plans, and, upon request, rescind the pension plan we in- stituted on January 1, 1966. WE WILL offer to each of the employees named below immediate and full reinstatement to his former or substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and will make each whole for any loss. of pay he may have suffered by reason of the discrimination practiced against him together with interest thereon at 6 percent per annum: Eugene Henley Lester Flippin Edward Dick Alfred Walker Ronald Gardner Noah Lewis William Tingen, Jr. Jack Wells CONE MILLS CORPORA- TION (Employer) (Representative) (Title) Note: We will notify the above-named em- ployees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive 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, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S . WILSON, Trial Examiner : Upon separate charges.duly filed on May 27, 1966, and on June 2, 1966, respectively , by Local 259, Textile Workers Union of America, AFL-CIO, CLC, hereinafter called the Union, the General Counsel of the National Labor Relations Board, hereinafter referred to as the General Counsel' and the Board, respectively , by the Regional Director for Region 11 , Winston-Salem, North Carolina, issued its consolidated complaint dated July 29, 1966 , against Cone Mills Corporation, hereinafter referred to as the Re- spondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Labor Management Rela- tions Act, 1947, as amended, herein referred to as the ' This term specifically includes the attorney appearing for the General Counsel at the hearing. 350-212 0-70-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. The consolidated complaint was further amended on January 18, 1967.2 Respondent duly filed answers admitting certain allega- tions of the complaint and amendment thereto but deny- ing the commission of any unfair labor practices. Pursuant to notice , a hearing thereon was held in Greensboro, North Carolina, from March 13 to March 16, 1967, inclusive , before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing, were represented by counsel , and were afforded full opportuni- ty to be heard, to produce , examine and cross-examine witnesses , and to introduce evidence material and per- tinent to the issues . At the conclusion of the hearing, oral argument was waived. Briefs were received from General Counsel and Respondent on May 1, 1967. Upon the entire record in the case and from my obser- vation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Cones Mills Corporation is now, and has been at all times material herein, a corporation 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 Proximity Print Works plant, White Oak plant, Minneola plant, Edna plant, Salisbury plant, Granite plant, and Tabardrey plant, all located in North Carolina, are involved in this proceeding. Respond- ent, during the past 12 months, which period is represent- ative of all times material herein, purchases raw materi- als, 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. As these jurisdictional facts are admitted in Respond- ent's answer, I, accordingly find that at all times materi- al herein, Respondent was and is an employer engaged in commerce within the meaning of the Act. II. THE UNION INVOLVED Local 259, Textile Workers Union of America, AFL-CIO, CLC, is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The Refusal to Bargain 1. The facts There are, as noted above, seven of Respondent's plants involved in this refusal-to-bargain phase of the in- stant matter. All seven are located in and around the city of Greensboro, North Carolina, area: The White Oak and Proximity Print Works in Greensboro itself, Salisbury plant at Salisbury, Edna plant in Reidsville, Minneola plant in Gibsonville, and the Granite and Tabardrey plants in Haw River. 2 Thus, the General Counsel's pleading in this case consisted of the consolidated complaint dated July 29, 1966, and a separate amendment to complaint dated January 10, 1967. At this hearing the fact that the issues were stated in two distinct separate documents caused some confusion. The Trial Examiner suggests that , when separate complaints are con- The complaint alleged and Respondent's answer ad- mitted, the appropriate units in each individual plant and the Union's majority representation therein at all times material here. Therefore, I find in accordance with such admission by Respondent. The evidence showed that for approximately 10 years prior to 1962, Respondent and the Union had annual col- lective-bargaining agreements in each of these seven plants. All these contracts were automatically renewable in the absence of notice of termination thereof. Since about 1952 none of these collective-bargaining agree- ments contained a dues-checkoff clause in favor of the Union. Prior thereto some of these agreements had con- tained such a dues-checkoff clause. Commencing in or about 1962, the agreements at vari- ous of these plants were terminated by the Union although recognition of the Union continued and the Union and Respondent maintained their relationship on a continuing basis without benefit of written contracts. The collective agreement at White Oak, Respondent's largest plant, was terminated by the Union on October 20, 1965, after which time there were no written agree- ments in effect at any of these plants. Negotiations looking to a new contract at Edna began at Edna on May 11, 1965, at Salisbury on October 4, 1965, at Proximity on October 6, at Granite on the morn- ing of October 12, at Tabardrey on the afternoon of Oc- tober 12, at White Oak on the morning of November 17, and at Minneola on the afternoon of that same day. These so-called negotiations had, at the time of the hearing, con- tinued through a total of 39 sessions over a period of better than 21 months through February 24, 1967, without agreement at any of the seven plants. Early in the negotiations the Union suggested the negotiation of one contract to cover all seven plants as the demands at each of the seven would be similar. Respond- ent rejected the suggestion on the grounds that it "preferred" to negotiate for each plant individually as it had customarily done in the past. The Union acceded to Respondent's preference. At the hearing evidence was developed by General Counsel as to the negotiations at each individual plant and about all 39 meetings held between May 11, 1965, and February 24, 1967. This Trial Examiner has no in- tention of wasting the time and space necessary to describe the negotiations at each plant because the testimony of these negotiations at each plant as adduced by both General Counsel and Respondent sounded like nothing more than a phonograph playing a broken record where the needle continues to revolve in one groove only. This reiteration of the same themes continued more than 1 year and 9 months at each negotiation session no matter what contract was being there considered. It was a test of human endurance, to say the very least. a. The pension plan At the commencement of negotiations the Union set forth 12 demands, the same 12 demands at each plant. By the time of the instant hearing the Union at least had abandoned six of these and reduced others. Among the solidated for hearing or amended prior to hearing, better practice dictates the issuance by General Counsel of a single amended consolidated com- plaint. This problem is so rampant throughout the various regions of the Board that it should be corrected. CONE MILLS CORPORATION demands made were one for a pension providing $175 per month, including social security, for employees having 20 years of service and another clause permitting employees at each plant to have their dues checked off by Respond- ent to the Union. It was on these two issues that the negotiations floundered-and ended with diametrically opposite results. Apparently the parties were in agree- ment in regard to all other issues. As found above, the original union demand made in May 1965, was for a funded pension plan providing each employee at retirement age, after 20 years' service with Respondent, a minimum pension of $175 per month, in- cluding social security, and vesting on all employees after 10 years continuous service but at a proportionately reduced amount. On September 29, 1965, Respondent forwarded to the Union its own counterproposal on the pension plan. This plan provided a pension figured at $1 per month per year of service at retirement age of 65 with percentage reduc- tions thereof on earlier retirement beginning at the age of 60. The plan guaranteed retirees a minimum monthly pen- sion of $20 a month. But, under the terms of this plan, this minimum would also be the maximum for those retiring within the first 20 months of the institution of the pension plan regardless of the length of the employees' service with Respondent prior to the establishment of the plan. The plan also failed to vest rights in an employee prior to retirement. The plan proposed was companywide and not restricted to any individual plant. The first discussion of the Company's proposed pen- sion plan occurred at the negotiations on the Salisbury contract on October 4, 1965. At this time the union representative, Mullins, objected to the proposed plan, first because those retiring immediately after the institu- tion of the plan would be deprived of their previous years of service with Respondent and restricted to a pension of $20 per month regardless of previous service, because the employees received no vested rights to a pension prior to retirement; and further urged that the pension be figured at $1.50 per month per year instead of the $1 as specified in Respondent's proposed plan. Vice Presidents Clarence Cone and John Bagwill for Respondent rejected these ob- jections out of hand saying that this plan was all Respond- ent could afford and that it was the "best" possible pension plan. On or about October 12, 1965, the Union's research department in New York City had compiled a com- parison of Respondent's proposed plan with four other pension plans which the Union had previously accepted at mills in nearby North Carolina or Tennessee. This comparison disclosed a number of shortcomings in the plan proposed by Respondent. Soon after the receipt of this comparison Mullins for the Union again rejected Respondent's proposed plan but offered to accept any one of the four plans used by the research department in making its comparison. Cone and Bagwill rejected this offer stating only that Respondent's plan was all that Respondent could afford and that it was the "best" of all pension plans. Thereafter this broken phonograph record was replayed at each negotiation session at each plant up to the date of the hearing. The Union's Regional Director, Paul Swaity, accom- panied by one Prosten who was the Union's expert on pension plans, appeared at the negotiations on the Edna contract on November 9, 1965. Swaity orally requested the cost of Respondent's proposed pension plan and the 453 actuarial assumptions upon which it was based. Cone an- swered that the Union did not need to know the cost of the plan and should be interested only in the benefits thereunder. Finally, however, Respondent gave an esti- mated guess that the cost of the plan would be about 5 cents per hour. The Union answered that on what little in- formation they were able to adduce, it figured the cost at no more than 1-1/2 or 2 cents. Prosten again requested that Respondent furnish the cost and the actuarial as- sumptions upon which the plan was based. Cone reiterated his refusal again stating that the Union "did not need" the cost or actuari al figures as the benefits were all the Union need be concerned with. Before the meeting ended Swaity had protested that the pension con- tribution was insufficient, requested a pension based upon $1.50 (instead of $1) per month per year of service, and repeated his request for the cost and actual assump- tions of the plan. This whole scene was repeated the next day, November 10, at the Proximity Print Works negotiation and again on November 11 at the Salisbury negotiations with Respondent reiterating the negative position it had originally taken in regard thereto on November 9. In other words, the phonograph needle remained in the same groove. Under date of November 15, 1965, Paul Swaity, on be- half of the Union, wrote Respondent as follows: During our recent round of negotiations at the Edna, Print Works and Salisbury Cone plants we pointed out the serious shortcomings in the com- pany's pension proposal. We are particularly con- cerned that the pension proposed by the company does not provide for vesting or increased payments based on years of service. At our last negotiating conference we brought in a specialist on pensions in the hope we could prevail on the company to amend its pension proposal. In view of the complexity of this subject, it seems clear that further discussion is necessary before a satisfac- tory arrangement can be achieved. It is our intention to submit to the company a pension proposal that more closely meets the wishes of our people. To do so, however, requires specific data on which to base our assumptions. This will, therefore, confirm our oral request of November 9, 10 and 11 wherein we requested the following actuarial information on which the com- pany's pension proposal is based. (1) Set of actuarial assumptions, including (a) mor- tality, (b) turnover, and (c) interest. (2) Census of employees to be covered by plan, in- cluding (a) age, (b) length of service, and (c) sex. I am aware of the company's desire to implement the pension as quickly as possible. However, this is a very vital aspect of our contractual agreement and more discussion is necessary. We will make every ef- fort to prepare the Union's counter proposal as quickly as possible after receiving the above actuari- al data. It is undisputed that Respondent did not answer this letter and never supplied the information requested. About this time Cone announced at one of the negotia- tion sessions that Respondent intended to put the pension plan into effect on January 1, 1966, and thus needed the Union's prompt approval thereof so that the plan could be 454 DECISIONS OF NATIONAL submitted to the Internal Revenue Service for tax pur- poses prior to the effective date thereof. The Union specifically stated that it did not approve Respondent's proposed plan and wanted further negotiations on it after receipt of the requested information.3 On December 3, 1965, Swaity wrote Respondent as follows: I am deeply disturbed to learn that, notwithstand- ing my letter to you of October [November] 15th, the company has decided to implement its pension proposals without giving the union a chance to sub- mit its counter proposals. The subject of a pension is vital to the workers the union represents at Cone Mills. At our Negotiations meetings on November 9, 10 and 11, we requested actuarial information to enable the union to submit counter proposals that would meet the shortcomings of the plan the company submitted. I am at a loss to understand why the company has not answered my letter of October 15th and, instead, implemented a pension plan without further notice as though no collective bargaining relationship existed with this union. I can only view this action of the company as a refusal to bargain on a subject that the NLRB has re- peatedly held as a mandatory subject for collective bargaining. As threatened Respondent made its pension plan effec- tive as of January 1, 1966, without change and without the Union's approval but with the stated reservation that the Union could continue to bargain regarding it if the Union cared to. However, despite the Union's objections thereto, this pension plan has remained without change since January 1, 1966. According to Cone some union members have since retired and accepted their pensions thereunder; i.e., the minimum $20 per month regardless of their previous length of service. b. The checkoff Negotiations between Respondent and the Union floundered also on the question of union security. Among the Union's original demands was one that Respondent permit its employees to have their union dues checked off monthly by Respondent to the Union. Admittedly Respondent permitted their employees without objection to employ such checkoff system to pay their United Fund contributions, their debts to the credit union, and their purchase of United States saving bonds among other things. The negotiators reached this demand for the first time at the first negotiation session on May 11, 1965, at Salis- bury. Cone's prompt answer to this demand of the Union was in the negative on the ground that "it was not in the best interest of the Company." Cone gave the same an- swers throughout every negotiation session to the very last one on February 24, 1967, when he again refused Respondent's request on the ground that "it was not in the best interest of the Company." That in a nutshell is the history of the negotiations over the checkoff. LABOR RELATIONS BOARD When it was pointed out to Cone that the checkoff was used for the above-enumerated purposes, Cone agreed but distinguished the use of the checkoff for those pur- poses from its use for the payment of union dues on-the grounds that its use for the United Fund, credit union and United States bonds was "in the company's best in- terests" whereas for union dues was not. During the course of the negotiations the Union made several alternative suggestions which were all rejected by Respondent. One of these was that the union employees would buy United States bonds in the name of the Union on the checkoff system which Respondent would turn over to the Union when paid for. Cone rejected this on the grounds that it was pure "subterfuge" masking a regu- lar dues-checkoff system and so was not "in the best in- terest of the company." Respondent itself made, two suggestions. Cone said Respondent would permit a union departmental represent- ative to collect dues from the employees during working hours and on company property provided, as Respond- ent's brief states it, that "such solicitation does not inter- fere with the work of the employees involved." And at the Proximity Print Works Respondent said it would build a permanent booth to be placed at a gate entrance where dues could be collected by the Union on payday. In fact Respondent stated it would put this booth on wheels so that it could be moved from gate to gate. The Proximity plant has seven such employee entrance gates. Respondent's brief argues that, if Respondent has been interested in weakening the Union on this union-security issue , or preventing it from carrying out its statutory rights of representation, Respondent would not have of- fered "these procedures which facilitate the collection of dues by the Union from its members." The brief further cites these two offers as proof that the Respondent has bargained over this issue of union security "with an open mind and desire to reach an accord." These arguments must have been made with tongue in cheek. The quoted proviso in Respondent's offer No. 1 effectively eliminates that procedure as a method of collecting dues for it is quite impossible during working hours to solicit dues from a working employee without "interfering" with his work, as well as the work of the solicitor. And one booth, even on wheels, could hardly cover seven gates adequate- ly for the collection of dues on payday. The jokers in- herent in each of these so-called offers render each of them practically useless for the collection of dues. The making of such offers, contrary to the contention in Respondent's brief, hardly qualifies as proof of Respond- ent's bargaining "with an open mind and desire to reach accord." In fact, it tends to prove the contrary. When pressed for specific objections to the checkoff during negotiations, Cone stated that: (1) the Union had been a source of trouble to the Company during the years the checkoff had been in existence; (2) the Company's ex- perience was that it had much less trouble with the Union when the Union did not have any checkoff; (3) "in 1951 [when the checkoff was still permitted] the Union had a strike which .. did great harm to the Company"; and (4) he felt that the 1959 strike at Dwight Mill in Gadsden, Alabama, was the "direct result" of the checkoff. Hence, according to Cone, the checkoff was "not in the best in- 8 Admittedly the above is a capsulized account of the negotiations at the Cone plants . The admitted fact is, however, that the needle remained in the same groove throughout all the negotiation sessions. CONE MILLS CORPORATION terest of the Company."4 Cone ended by stating that he was not going to grant the checkoff to help the Union build a "strong" union. At the hearing--but not during the negotiations - Cone cited certain other reasons for Respondent's refusal to grant the checkoff. First, Cone maintained that unions required to collect their own dues without reliance upon a checkoff were more responsive to the interests of its membership and attuned to their desires. Second, Cone believed that payroll deductions tended to create a feeling of ill will among the employees and appeared to fear that dues deductions might alienate employees from their union on that account. In Cone's mind apparently the deductions made for the United Fund, credit union or United States bonds did not create this feeling of ill will -but union dues deductions would. Third, the collec- tion of union dues was an internal union matter with which Cone did not desire to become involved because the Act requires an employer to maintain a "hands off policy" in such matters. And lastly as the Union had been "irresponsible" in the past, Cone did not desire to make it into a "strong" union 5 Respondent's brief sums up the matter this way: "This long period of experience of dealing with this Union has led Respondent to the considered judgment that it does not advance its interests or those of its employees to serve as a collecting agent of financial obligations from the members to the Union. This is particularly true in view of the type of checkoff clause requested by this Union (Exhibit A to R: E.3) which is fraught with problems to Respondent from some of its employees." [Emphasis supplied j6 Once during the negotiations the Union offered to withdraw its demand for the checkoff provided that the Respondent would agree to certain stated financial im- provements in the contract. Respondent did not choose to accept the trade. Thus the matter stood at the time of the hearing. The Union was still demanding the checkoff. Respondent was still refusing on the grounds that it "was not in the best in- terest of the Company" and, as Cone said, Respondent was going to do nothing to help the Union become a "strong" union. 2. Conclusions The history of the negotiation at issue here lead but to the conclusion that Respondent entered the negotiations on May 11, 1965, with the fixed determination, adhered to the very end on February 24, 1967, that it would reach no collective agreement with the Union except on Respondent's own terms. To date, Respondent has been eminently successful in this endeavor. At the very commencement of the negotiations here the Union suggested that the parties conduct one set of negotiations covering all seven of Respondent's plants, a suggestion of merit from the point of view of efficiency and timesaving. Cone promptly rejected the idea. The ' Yet, during his testimony, Cone cited this Dwight strike as a "good strike." It was a "good strike," according to Cone, because Dwight was not "competitive" in the textile field so that Respondent would have had to close it anyhow. So the 1959 strike was a "good strike" because it helped Respondent in so doing. However other testimony indicated that the purpose of the strike at Dwight was to force Respondent to grant the same 8-cent wage increase which was at the time going through the southern textile industry. As a result of this 5-week strike, Respondent 455 only argument he gave for this was that Respondent "preferred" to negotiate for each plant separately because it had always been done that way in the past. For an employer entering negotiations with an open mind and anxious to reach agreement, this seems a strange, ineffi- cient, and unbusinesslike decision. For an employer en- tering the negotiations with a mind determined not to reach agreement, Cone's decision makes sense. Seven negotiations can be made to take at least seven times as long and, if agreement appears imminent at any one point, a shrewd negotiator can always play one plant off against another so that agreement can either be forestalled or, at the worse, interplant union friction can be created. By the date of the hearing herein the parties had reached agreement on all items except two: Respondent's pension plan and the checkoff. But because of these two items no agreement has been consummated. Section 8(d) defines the statutory duty to bargain col- lectively as "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, ..." The facts here prove that Respond- ent always had the time and the vice presidents to spare to sit and chat with representatives of the Union over wages, hours, and working conditions through 39 meetings covering a period of more than .1 year and 9 months. The facts likewise prove that these vice pres- idents on these occasions over this period of time did no bargaining on either of the two issues which divided the parties, pension plan and checkoff, other than to repeat over and over again that the pension plan proposed by the Respondent, being the "best" of all possible pension plans, would go into effect as of January 1, 1966, that the Union had "no need" for the cost and actuarial informa- tion which it had requested from Respondent about that plan, and "no" to the Union's request for the checkoff. Respondent most certainly fulfilled the first part of the mutual obligation required by Section 8(d) "to meet at reasonable times." But just as certainly Respondent failed in the second part of that mutual obligation to "confer in good faith." While it is also true that Section 8(d) does not require "concessions" by any party to the negotiations, it still verges on the unusual, if the bargaining is actually being conducted in good faith, to find the parties 1 year and 9 months and 38 meetings later in the exact same position they were in at the very first meeting- as occurred in this case due exclusively to the incessant repetition throughout these so-called negotiations of two statements by Respondent's vice presidents: (1) Respondent's pen- sion plan being the best possible pension plan was going into effect on January 1, 1966, regardless of the Union's opposition thereto; and (2) the checkoff was not "in the best interest of the Company." The only possible implica- tion from this incessant repetition was that Respondent was bound and determined under all circumstances to put its own pension plan into effect on January 1, 1966, negotiated the 8-cent wage increase and then closed the Dwight mill. In addition the Union acknowledged that there had been some irresponsible local union leaders at Dwight. 5 Cone evaded answering the question as to whether Respondent would grant the checkoff to a union it considered to be "responsible." 6 There is not one word of testimony in this record that Cone made any objection to the phraseology of the checkoff authorization card during the negotiations. In fact the discussion never got that far. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without change and that the idea that Respondent would ever grant checkoff rights was ridiculous. Of course, the Union could have had seven agreements on Respondent's terms-but with Respondent's pension plan unchanged and no checkoff. This was conclusively proved when the Union offered to swap its demand for the checkoff for certain economic benefits and Respondent rejected the challenge. In other words there was to be no give or take in these negotia- tions. Any contract executed would be exclusively on terms predetermined by Respondent- otherwise no con- tract. This is not bargaining in good faith. And that is the way it is today; Respondent's pension without change has been in effect since January 1, 1966, and no contract has been executed. a. The pension plan As regards the negotiations of the pension plan, Respondent submitted its plan to the Union on Sep- tember 29, 1965. The Union's research department made a comparison of the plan submitted with four plans al- ready in effect, with the Union's consent, at other com- pany plants in the vicinity by October 12, 1965, which in- dicated several aspects of the Respondent's plan con- siderably less favorable to the employees than the other four plants; to wit, the amount of the pensions, credit for previous service, the vesting of pension rights, etc. When the Union offered to accept any of the other four plans in- stead of Respondent's, Cone rejected the offer on the grounds that Respondent's was the "best" plan and all Respondent could afford.7 Then orally on September 9, 10, and 11 and in writing on September 15, and again on December 3, 1965, the Union requested the cost figure of Respondent's plan and the actuarial assumptions on which the plan was based. These requests Respondent refused and ignored on the grounds, as Cone put it, that the Union had no "need" therefor as the Union should be interested only in the benefits provided therein. Cone's refusal to supply the requested information was thus due either to his own omniscience in knowing that that infor- mation would do nobody any good or because Respond- ent had no intention of bargaining in relation to the plan it had proposed. Subsequent facts indicate the latter. The information requested was pertinent to a mandatory sub- ject of bargaining,8 necessary and important for any further bargaining or trading on the subject." Respondent's brief argues that the Union had no "need" for the facts requested because it actually had suggested improvements in the amount of the benefits and in the vesting of rights under the plan without the in- formation. However the brief fails to consider the fact that the Union might have preferred to substitute wage in- creases for the pension plan proposed. In fact, if Respond- ent's "guess" that the pension plan would cost 5 cents an hour was true, it is possible that Respondent could have saved money in such a swap. But Respondent was adamant-it was Respondent 's pension plan or nothing. This is not good-faith bargaining. As the facts requested by the Union and refused by Respondent were necessary, pertinent and material to further bargaining on the pension issue , Respondent's ' Cone did not specify the best for whom. 8 Reed & Prince Manufacturing Company, 96 NLRB 850, enfd. 205 F.2d 131 (C.A. 1). Inland Steel Company v . N.L.R.B ., 170 F.2d 247 (C. A. 7). refusal to supply same as requested constituted a refusal to bargain in violation of Section 8(a)(1) and (5) of the Act. I will recommend that Respondent supply the requested information. Respondent's brief introduces the technical defense as to this information issue that , as Respondent originally refused the Union's request for the information a couple of weeks before the Union's written request for the same sated November 15, 1965, this refusal of information cannot be found to constitute an unfair labor practice because of the 6-month limitation of Section 10(b) of the Act. The charge here was filed June 2, 1966, so that the critical or 10(b) period began, according to Respondent's figures, on December 2, 1965. Respondent's contention might be meritorious if the Union's last request for infor- mation had been the request of November 15, 1965, but the facts show without dispute that the Union renewed its request for this information by letter dated December 3, 1965, which Respondent again chose to ignore. If Respondent were bargaining in good faith and with an open mind, there was always a chance that Respondent might change its mind and supply the requested informa- tion-although in this case it did not . Because of this December 3 letter at least, this contention of Respond- ent's is without merit. This defense could have merit only on the theory that once Respondent had said "no," that ended the matter. This theory tends to confirm the thought that Respondent did not enter these negotiations with an open mind. By putting its own pension plan into effect on January 1, 1966, without change and without the Union's consent thereto, Respondent unilaterally changed the wages and working conditions of its employees . By so changing the wages and working conditions of its employees uni- laterally and over the Union's objection, Respondent again violated Section 8(a)(1) and (5) by failing to bargain in good faith. Respondent's brief suggests that Respondent had the right to make such unilateral changes because an "im- passe" had developed between the parties on the pension plan issue. This Trial Examiner cannot agree that an im- passe had in fact developed. However if, contrary to this last finding, an "impasse" had in fact developed on the is- sue, this "impasse" resulted solely from the fact that Respondent illegally refused to supply information requested by the Union and required in order to continue negotiations thereon. Thus this so-called "impasse" resulted exclusively from the lack of good faith on the part of the Respondent. This is not the type of "impasse" which would justify Respondent in unilaterally instituting the pension plan over the Union's objections. b. The checkoff The complaint next alleged that Respondent had failed to bargain in good faith about union security ; i.e., the checkoff. The facts show that Respondent never did bargain about the checkoff in good faith. At the very first meeting at which the issue was discussed Cone and Bagwill refused the checkoff- in fact, ridiculed the idea of a checkoff-because "it was not in the best interest of the ' Sylvania Electric Products, Inc., 154 NLRB 1756, enfd. 358 F.2d 591 (C.A. 1), and see May 11, 1967, address by Stanley S. Surrey, 65 LRRM 53. CONE MILLS CORPORATION 457 Company. " One year, 9 months, and 38 meetings later Respondent was still refusing to grant the checkoff- because "it was not in the best interest of the Company." When pressed for reasons as to why the checkoff was not in the best interest of the Company, Cone quite can- didly stated that Respondent was not about to help make the Union into a "strong" union, that Respondent had had less "trouble" with the Union without the checkoff than it had had when the Union enjoyed the checkoff right, i.e., during the period preceding , but including, the 1951 strike, and that the 1959 Dwight strike was the "direct result" of the fact that the checkoff was in effect there. Obviously Cone and Respondent equated a "strong" union with one which received its dues by means of the checkoff. Equally, obviously neither Cone nor Respondent wanted a strong union representing its employees. In this Respondent may well have been right-from the company standpoint. The same argument leads to the conclusion that "it is not in the best interest of' the employer to have any union representing its em- ployees. Cone, however, did not vocally carry his argu- ment to the ultimate. To counterbalance the idea that Respondent had a closed mind on the checkoff issue, Respondent's brief points out that Respondent offered : (1) to allow the Union to have an authorized agent collect dues in the de- partment of the plant during working time "provided that that did not interfere with the work," and (2) to build a permanent booth on wheels where the Union could col- lect dues at the gate on payday. Respondent's brief ap- pears to argue that these two offers "to facilitate the col- lection of dues" proves that the Respondent was bargain- ing on the issue with an open mind. The bona fides of these two offers is questionable at the very least because an employee at work can hardly be solicited for his union dues on working time "without interfering with his work" and one permanent booth located at a gate entrance, even when on wheels, is hardly to be considered an efficient method for the collection of dues at a plant having seven entrance gates for employees . These offers would have hardly facilitated the collection of dues. In fact the jokers contained in these offers were so obvious that Cone must have been having his little joke at the Union's expense by even making the offers. Cone's arguments , both during negotiations and at the hearing, suggest also that Respondent recognized the Union's need for a steady source of income and had determined resolutely to refuse any such type of procedure in order to prevent the Union from having the capacity to perform its representative functions and thereby becoming what Cone described as a "strong" responsible union. Respondent had appreciated those years without a collective-bargaining agreement and with a weak representative of its employees and intended to keep things that way. At the hearing Cone made the charge that Respondent refused the right of'checking off union dues because the Union was "irresponsible" in having caused the 1951 and 1959 strikes but, when asked, refused to make any intel- ligible answer as to whether the checkoff would be given to a union which Respondent considered "responsible." When the Union offered to pay the cost of the checkoff, Cone refused stating that the cost thereof would be negligible as the payroll was handled on an IBM machine. Cone carried his arguments so far as to say that it was not in "the best interest of the employees " to permit the checkoff of union dues because that might cause "ill will" between the employees and the Union. As Cone discovered no creation of ill will from the checkoff of em- ployee contributions to the United Fund, the payment of credit union debts or the purchase of United States bonds, it is hard to see why the deduction of union dues would so result, especially as the deduction of union dues, like the other deductions, would result only from the em- ployees' own voluntary execution of such a checkoff authorization. The refusal of the checkoff of union dues while permitting it for such activities as the United Fund, the credit union and United States bond proves Respond- ent's desire to discriminate against the representative of its employees. It also proves that this discrimination was being practiced for Respondent's purposes only and not that of its employees. This was further proven when Cone rejected the Union's suggestion that employees be permitted to checkoff the amount of their union dues for the purchase of United States bonds made payable to the Union. Cone rejected this as a mere "subterfuge." Respondent wanted a weak union or none at all. Cone also testified that Respondent rejected the checkoff of union dues because it was his feeling that a union forced to collect dues itself from its members was "more responsive" to the aims and desires of its member- ship. This contention qualifies both as subterfuge and evidence of Cone's omniscience. In addition it concerned a matter exclusively between the member and his union and of no concern to Cone or Respondent. When the Union offered publicly to withdraw its request for the checkoff in return for certain economic ad- vantages for the employees, Cone rejected the offer. Cone recognized that he had an issue in the checkoff with which he could prevent an agreement being reached and he did not intend to lose it. He was not about to bargain it away. Upon the evidence presented here I must find that the Respondent entered the negotiations with a hermetically sealed mind on the issue of the granting of the checkoff for union dues, never bargained in good faith thereon but instead used the issue to prevent the reaching of a collec- tive-bargaining agreement with the Union in violation of Section 8(a)(5) and (1) of the Act.10 B. The Discharges 1. The facts Ralph Johnson was first employed by Respondent on September 25, 1947, and worked continuously thereafter until his discharge on May 12, 1966. At the time of his discharge Johnson was a greige or "gray" tender working on machine No. 3 of Respondent's 10 printing machines in the Proximity Print Works. Each of these machines is operated by a crew of three men: A printer, a gray tender and a backtender. On machine No. 10 H K. Porter Company, Inc., 153 NLRB 1370, enfd. 363 F.2d 272 (C.A.D C.); Roanoke Iron & Bridge Works, 160 NLRB 175. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 the printer was Daniel Kirkman, the gray tender Ralph Johnson, and backtenderJames "Pete" Johnson. At Respondent's Proximity plant the tenders were represented by the Union whereas the printers were members of a labor organization known as the Machine Printers Beneficial Association. For a considerable period of time the tenders had been complaining that the printers were refusing to do part of the work which they had been doing for the past 19 years at least and thus forcing the tenders to do that work thereby increasing the workload of the tenders. In the early part of 1966 this workload dispute began coming to a head with the printers continuing to say more and more often "that ain't my work" and forcing that work onto the tenders. Two of the three shifts, at least, were involved in this workload dispute. On March 3, 1966, the Union filed a grievance with Respondent over this workload dispute. At that time Respondent returned the Union's grievance on the technical grounds that the grievance failed to specify specific instances and was not signed by all members of the complaining group. However in the early part of April Ben Thornburg, su- perintendent of the Proximity plant, held a meeting with the tenders and printers about the dispute. Union Busi- ness Agent Mullins happened to hear that the meeting was to be held and attended although without invitation. At this meeting an attempt was made to work out a job description of the duties of each of the three members of the crew. The attempt was unsuccessful as the job description satisfied none of the parties, particularly the Respondent which thought that the operation should be "a team effort" with everybody keeping busy until the machine was back in operation . During the meeting Thornburg took occasion to notify Ralph Johnson that Respondent did not like his arriving at the plant early and going up and down the line talking and wanted the prac- tice stopped . Johnson denied causing any trouble and asked Thornburg to prove it. Thornburg stated that he did not have to prove it." Sometime in April a 1-day "holiday" was called to protest this workload problem. Finally on May 11, 1966, Thornburg again called each crew into conference individually and read them a prepared statement to the effect that from that time on the operation of the machines was to be "a team effort" dur- ing color and roller changes with each man keeping busy until the machine was back in operation. He added "and that's the way its going to be from now on." Thornburg first asked Ralph Johnson if he would cooperate with that program. Ralph agreed "100 percent, if you will carry it out that way." Pete Johnson also agreed to cooperate. Kirkman answered, "well, I'm a skilled man, myself" but, when Thornburg pointed out that both Ralph and Pete were also skilled men, Kirkman agreed, adding that he thought he had said "too much." Thornburg again re- minded Ralph that he wanted Ralph to stop coming in early in the morning and "causing trouble" by going from machine to machine. Ralph requested that he call some- 11 This subject came up at this meeting , according to Thornburg's testimony , because a third shift supervisor [who did not testify] had recently told Thornburg that Johnson was arriving early and going up and down the lines talking and asked Thornburg that it be stopped because his third shift was not having any workload problems and he, the supervisor, did not want it to get started on his shift. Admittedly Thornburg and the supervisor both thought, without having heard any of the conversations, that Johnson was talking about the workload problem. body in to prove that he was causing trouble. Thornburg answered that he did not have to. Thornburg ended the meeting by saying, "if you boys have any trouble or dis- agreement about working together on that machine, noti- fy your supervisor and it will be looked after." Pete and Ralph returned to the machine. But Thornburg kept Kirk- man for a few words alone before sending him back to work. The following day, May 12, machine No. 3 had to make a color change about 11:30 a.m. The machine was stopped. Ralph, as usual, went in search of the four trucks necessary to remove the boxes to the color room, Pete began raking color out of one box while Kirkman left for the restroom. Raking colors out of the box was one of the jobs which the printers were forcing onto the tenders by their refusal to consider it part of their, printer's, job. Ralph secured his trucks and began raking color out of another box while Pete continued raking colors out of other boxes. When Kirkman returned from the restroom, he stood at the workbench watching the others work. Pete remarked to Ralph, "Is that cooperating?" Ralph then stopped working and walked to get a sandwich from a machine some 400 or 500 feet away. Pete continued working. Kirkman continued watching. After Ralph finished his sandwich, he went to Super- visor Billy Gene Thornburg and complained that Kirk- man was not carrying out his agreement and doing his share of the work. Billy Gene stated that he would have to wait until somebody got back from lunch and hastily left the scene. According to Ben, Billy Gene reported to his brother, Ben Thornburg, that he, Billy Gene, had heard that Ralph was saying that General Manager Gardner would have Thornburg raking out colors before he would have the printers do that work and also that Ralph had complained to him that Kirkman was not keeping his part of the agreement. 12 Upon receiving this report, Ben Thornburg sent for Pete Johnson, Kirkman, and the Printers Association representative to meet with him in the conference room. At this meeting Thornburg asked Pete if Kirkman was keeping his agreement and, according to Thornburg's testimony, Pete answered the question "yes."13 After receiving this affirmative answer Thornburg then sent Billy Gene to bring Ralph and Union Representative Noah Lewis to the conference too.14 With the arrival of Ralph and Lewis, Thornburg asked, "What's the trouble on number three?" Ralph answered that Kirkman was not doing his job whereupon Thornburg continued, "Well, I understand that you are going up and down the line telling that Daniel Kirkman is not carrying out his part of the bargain." Thornburg then asked Pete if Kirkman was keeping his share of the bargain15 and Pete nodded. Thornburg turned and said, "Ralph, I warned you about going up and down the line and stirring up trouble." When Ralph answered, "Prove it," Thornburg replied that he did not "have to prove a damn thing" and continued, "Ralph, I have warned you about going up and down the line, trying to create trouble. Now, you are just a Billy Gene Thornburg was not called as a witness. 3 Pete Johnson was not called as a witness. 14 Ralph Johnson testified that he sought out Noah Lewis to accompany him to the conference room. This conflict is not important enough to be resolved. 15 Neither Ralph nor Lewis heard this question asked. CONE MILLS CORPORATION 459 troublemaker." Ralph repeated, "Prove it." Thornburg said, "Well, its evident that you are just a troublemaker. I'm discharging you as a troublemaker. Get your damn clothes and leave."16 Thereupon, about 1:30 p.m. Ralph walked out of the plant informing a few fellow em- ployees who inquired that he had been fired. Upon learning of the discharge of Ralph Johnson, the plant grapevine began carrying the rumor that there would be a one-half hour protest work stoppage beginning at 2 p.m. to protest Ralph's termination. About 2 p.m., a crowd of employees variously esti- mated at from 12 to 20 gathered at machine No. 3. One of the employees present was Pete Johnson. Some of the machines were shut down while others continued operat- ing. Assistant Manager Joseph Wright was promptly in- formed of the work stoppage and went to the scene where he estimated some 15 employees had gathered. The first employee Wright spoke to was Noah Lewis, the union steward, because, as Wright expressed it, he figured the union steward "would know what was going on." In answer to Wright's inquiry if the men were on strike, Lewis said that they were "protesting the firing of Ralph ... we want you to put him back to work right now" and suggested further, "Now, Joe, why don't you talk to some of the boys in here, and we can get this thing settled right off, and talk to the management just a little bit." Wright answered, "I ain't got no time for that now" and added "We have a regular grievance procedure to handle this sort of thing and we will not put him back to work right now." He requested Lewis to get the men back to work. Wright then asked, "Noah, are you on strike? If you are on strike, you have to leave the plant and if you don't leave the plant or go back to your job, then I'll have to discharge you." Lewis again stated that the men were protesting the discharge of Ralph Johnson. Wright thereu- pon discharged Lewis.17 - Employee William Tingen, Jr., said, upon hearing Wright discharge Lewis, "If you fire Noah, you're going to have to fire me too." Which Thornburg promptly did, ordering Billy Gene to escort the two men out of the plant. 18 Upon seeing Lewis and Tingen escorted from the plant some of the protesting group returned to work while others remained standing in the corridor. Wright then spoke individually with each of the follow- ing employees: Eugene Henley, Edward Dick, Ronald Gardner, Lester Flippin, Alfred Walker, and Jack Wells. These conversations were all similar and went about as follows, as described by employee Ronald Gardner: [Wright] said, "What's going on?" And I said, "We are protesting Ralph Johnson's job." And he said, "Well, is this a strike?" And I said, "No." He said, "What are you doing?" And I said, "I'm protesting." He said, "Why don't you go back to work?" And I said, "I will when the rest of the fellows does." And he said, "You are terminated." There were three notable exceptions to this routine. When Wright told employee Eugene Henley to "go back to work," Henley answered, "Well, I'm protesting. IT go back to work as soon as this wrong that I feel has been committed is right." Wright then ordered Henley to leave the premises. Then, in Henley's words, "I told him I would have to be evicted." When Wright asked employee Ronald Gardner to leave, Gardner told Wright that he "was going to stay until 3 o'clock, at the regular quitting time." Wright discharged him promptly. When Wright told employee Edward Dick to go back to his job or he would have to fire Dick, Dick told him, "I couldn't go back after they had fired all my friends." Wright discharged him. About this time someone stated that the half-hour protest was over and they should go back to work. Ac- tually Henley, Gardner, and Dick did return to their machines. However, just about the time they had arrived at their machines , police officers whom Ben Thornburg had called also arrived in the plant. Ben Thornburg pointed out Henley, Gardner, and Dick at their machines to the officers and said he wanted them arrested for "trespassing." The officers arrested the three only after Thornburg had assured them that he-would appear at the police station to sign warrants for their arrests. The of- ficers then accompanied the three employees to the patrol wagon, drove them to the police station where the three were "booked," fingerprinted, and photographed before being released. About 4 p.m., Ben Thornburg appeared at the police station and signed the warrants for their arrest. About a week later a hearing was held but it was stipu- lated that the court dismiss the charges against the three on the ground that the warrants were improperly drawn. No further action has been taken in regard thereto. 2. Conclusions a. The discharge of Ralph Johnson Why was Ralph Johnson discharged on May 12? Ben Thornburg who discharged Ralph admittedly told him that it was because Ralph was a "troublemaker." The evidence proves that in Thornburg's opinion Ralph was a "troublemaker" because he was the Union's chief ad- vocate in the workload dispute which had been simmering in the Proximity plant for a long period of timer between the Union representing the tenders and the Printers Beneficial Association representing the printers. For reasons best known to itself Respondent ap- parently did not want to settle this dispute, perhaps because, as Respondent's brief acknowledges, the prin- ters had been increasing the workload on the tenders by refusing to do work which for 19-1/2 years past the prin- ters had customarily performed and so the settlement would have had to favor the Union. A settlement in favor of the Union's position might have enhanced the Union's reputation among the employees -but as Cone candidly 16 According to Respondent, all discharges have to be cleared by General Manager Gardner. According to Thornburg, this discharge was not cleared with Gardner until about 4 o'clock Also according to Ben Thornburg, he, Thornburg, was at the police station about 4 o'clock.- 17 According to the testimony of Lewis, after Wright said, "I ain't got no time for that now," be promptly discharged Lewis is Both Lewis and Wright estimated that their conversation lasted 6 or 7 minutes. 19 According to Personnel Manager Kinney's letter of March 7, 1966, that dispute had been in existence for 3 years. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acxnowledged, Respondent would do nothing to help the Union become a "strong union." When on March 3, 1966, the Union had filed a written grievance over this workload problem, Kinney by letter dated March 7 returned the written grievance on the highly technical grounds that it was not specific enough and that it was not signed by all members of the affected group. This latter reason obviously tended to denigrate the Union's representative capacity. Respondent's opinion of Ralph as the ringleader for the Union in this . dispute was based upon two things: (1) Ralph did not conceal the fact that he objected to hearing printer Kirkman say "that ain't my job" to work which the printers had been doing for 19-1/2 years to Ralph's personal knowledge and thus forcing extra work onto the tender; and (2) a report received by Thornburg from a su- pervisor-who was not called as a witness - who reported that he feared that Ralph was spreading the workload dispute to the third shift (which was the only shift unaf- fected therewith) by coming in early for work and talking to the third shift tenders.20 As to this latter point it must be here noted that, even according to Thornburg's testimony regarding the supervisor 's report to him, the supervisor had heard none of Ralph's conversation. But the fact remains that Respondent through Thornburg con- sidered Ralph to be the union ringleader in the workload dispute. ` By the middle of April, however, this workload dispute had grown to such proportion that Respondent, even in the absence of a filed grievance, made efforts to straighten out the dispute by means of . detailed job descriptions for each of the three jobs. It is to be noted here that Respondent did not invite the union representa- tive to this settlement conference but that Mullins , having by chance heard that the meeting was to take place, at- tended without invitation. But these detail job descrip- tions satisfied none of the parties, particularly the Respondent. Finally on May 11, again without consulting with the Union, Thornburg, "settled" this workload dispute on Respondent's own terms, as was to be customary, by reading a statement to the individual crews to the effect that on color and roller changes the crew was to act as a "team" with everybody keeping busy until the machine was back in operation. At the conference with the opera- tors of machine No. 3 Ralph expressed 100 percent satisfaction "if it was carried out that way." Kirkman's qualified acceptance thereof based upon the fact that he "was a skilled man" caused Thornburg to have a few words in private with Kirkman in the presence of the Printers Beneficial Association representative before Kirkman returned to work. The very next day when the machine was shutdown for a color change about 11:30 a.m., Kirkman promptly de- parted for the restroom and, upon his return, stood idly by doing nothing but watching while Ralph and Pete worked. Even after Ralph had quit and walked some 400 or 500 feet to get a sandwich and returned, Kirkman was still idly watching and doing nothing. Ralph thereupon fol- lowed Thornburg's instructions and reported Kirkman's inactivity to Supervisor Billy Gene Thornburg.21 Billy Gene made no attempt to settle the dispute but instead re- ported to Ben Thornburg. I here make the finding that Kirkman did nothing dur- ing this color change and thus failed to cooperate with the settlement of the workload dispute made by Thornburg on May 11. This finding is made upon the credited and uncontroverted testimony of Ralph Johnson. Upon receipt of Billy Gene's report, Ben Thornburg had Kirkman, Pete, and the Beneficial Association representative brought to his office. There, according to Ben Thornburg's testimony exclusively, he inquired of Pete if Kirkman had been complying with the May 11 agreement and that Pete thereupon gave the answer "yes."22 Having thus gotten the desired answer, whether truthful or not,23 Thornburg had Ralph brought to the conference and either invited or permitted Union Steward Noah Lewis to attend also. It is significant that Thornburg did not question Ralph about the facts of the matter but instead preemptorily discharged Ralph as a "troublemaker" without any consideration of the merits of the grievance at all. In fact if Thornburg had chosen to get to the merits of Ralph's grievance, he would have had to discharge Kirk- man for loafing and breaking the agreement of the previ- ous day. But the facts might well have justified the discharge of Ralph for loafing as well. But instead of that Thornburg carefully discharged Ralph for allegedly being a "troublemaker" and not for 20 Regardless of Ralph's conversation, the third shift remained unaf- fected. 21 Billy Gene was not called as a witness so this fact is undisputed. 22 Respondent's brief indicates that Respondent believes that this testimony regarding Pete 's affirmative answer as testified to by Ben Thornburg constitutes a full and satisfactory refutation of Ralph's detailed testimony showing that Kirkman did no work during color change here in- volved. This is not so. Ralph gave an eyewitness account from the witness stand of Kirkman's activity or lack thereof and was subject to cross-examination thereon. Thus Ralph's testimony was affirmative probative evidence that Kirkman did no work. On the other hand the testimony given by Ben Thornburg that Pete gave an affirmative answer to Thornburg 's question is probative evidence that Pete gave such affirmative answer in answer to the question posed. But on the question of whether Kirkman was in fact working during the color change or not, Thornburg's above testimony amounts only to rank heresay. Thornburg himself had no personal knowledge of whether Kirk- man worked or not. So the answer to this latter question of Kirkman's working or not depended upon Pete's capacity as a witness, Pete's oppor- tunity for observation of Kirkman 's activities and upon Pete's -not Ben Thornburg's -credibility. But under the method by which Respondent chose to present this evidence regarding Kirkman's activities, i.e., through Ben Thornburg's testimony as to what Pete answered , Pete could not be tested on any of the above matters through cross-examination . Pete was not presented as a witness and, therefore , could not be cross-examined. So Thornburg's testimony as to the contents of Pete's report to him amounts to nothing but hearsay is not substantive , probative testimony on that subject given by Ralph. Of course Respondent could have controverted the testimony of Ralph Johnson on Kirkman's lack of activity by presenting either Pete Johnson or Kirkman himself. Respondent chose to present neither as a witness. The inference is plain. It should also be pointed out that Ralph testified that Pete said to him in reference to Kirkman 's lack of activity, "Is this cooperation?" On the question of Kirkman's working or not, this report also amounts to hearsay. Ralph's eyewitness account of Kirkman's doings, however, is not hearsay. 11 It is a well-known phenomenon that employers often receive an answer from employees which the employee believes the employer desires when that employer questions the employee about union matters in the absence of the union representative. CONE MILLS CORPORATION 461 loafing or for failing to keep the agreement of the previous day. Thornburg was thus saved the embarrassment of having to discharge Kirkman and thus by implication at least finding in favor of the Union on the workload dispute thereby enhancing the Union's prestige. As Cone frankly stated, Respondent was going to do nothing to assist the Union to become a "strong" union. The facts are convincing and consequently I find that Respondent discharged Ralph Johnson on May 12, 1966, because he was considered to be the Union's leader in the workload dispute, because as such he had the temerity to report Kirkman's failure to comply with the agreement of May 11, 1966, to his supervisor as ordered so to do by Ben Thornburg as part of that agreement and in order to discourage further activities by the Union and its mem- bers to secure a favorable settlement of the Union's work- load grievance and to prevent any enhancement of the Union's prestige among the employees and thus in viola- tion of Section 8(a)(3) and (1) of the Act. b. Subsequent discharges Considering the discharge of Ralph Johnson to be un- fair and a threat not only to Ralph's tenure of employment but also to their own tenure and conditions of employ- ment, some 15 to 20 employees ceased work in concert about 2 p.m. that same day in order to protest the discharge of Ralph to Respondent. This concerted action was intended by the employees as a protest both to the unfair nature of the discharge and to the threat to their own tenure and conditions of em- ployment. Such protest was, therefore, a legal protected concerted activity under Section 7 of the Act, if not also a union activity due to the nature of the dispute over which the discharge of Johnson occurred. It is too well established to require any extended citation of authority that a concerted stoppage of work, or strike, to protest the discharge of a fellow employee or supervisor, especially when, as here, the protested discharge, constituted an un- fair labor practice, is a legal protected concerted activity.24 Respondent through Assistant Plant Manager Wright was promptly informed of the protest and its underlying cause as well as being requested for an immediate con- ference to settle the grievance or dispute by Union Steward Noah Lewis. Wright was also informed at that time that the men intended to return to work after a one- half hour protest. Respondent, however, "didn't have no time" for any such immediate conference or prompt settlement of the dispute, a reaction or a tactic conducive to enlarging a relatively minor dispute into a major one. In this it is reminiscent of the tactics then being utilized by Respond- ent in its alleged bargaining with the Union. From its ac- tions throughout Respondent appeared to be aching for a major labor dispute with the Union and its adherents. Wright was interested in only one thing: That those protesting should either work or leave the plant. He was definitely disinterested in hearing or determining the ex- isting protest. According to his own testimony, Wright did suggest that the union steward file a written grievance over the Johnson discharge .25 This was subterfuge. The collective agreement at Proximity establishing this grievance procedure had ended on October 18, 1956. But at the hearing Wright testified that, despite the absence of an existing collective agreement, Respondent still "honored" the grievance procedure established in that nonexistent collective agreement. However Wright was highly indefinite as to whether Respondent still "honored" the arbitration provision of that prior con- tract A grievance procedure without some final decisional procedure such as arbitration is a worthless thing. This is particularly so when one party thereto is so addicted to the persistent use of the adamant "no" as this Respond- ent had proven itself to be during its so-called collective bargaining. Wright's attitude proved that Respondent was not about to amicably settle any wrong or dispute with the Union. Respondent was accustomed to giving any and all orders without let or hindrance from any source, particu- larly from a group of employees or the Union. Respond- ent intended to keep it that way. And so Wright preemptorily discharged eight em- ployees for their concerted act in protesting Respondent's discharge of Ralph Johnson even though those employees were then and there engaged in a protected concerted or union activity and thus Wright and Respondent violated Section 8(a)(3) and (1) of the Act. Five of these employees, Noah Lewis, William Tingen, Jr., Lester Flippin, Alfred Walker, and Jack Wells were discharged for their part in the protected concerted protest and immediately left the plant. On the other hand Eugene Henley, Edward Dick, and Ronald Gardner were discharged by Wright for the same reason but refused to leave the plant because at the end of the half-hour protest, they intended to, and did, return to work. But Plant Su- perintendent Ben Thornburg discharged them again while they were at work and had policemen remove them from the building as "trespassers." Obviously the last three, like the first five, were fired for their part in engaging a protected concerted protest in violation of Section 8(a)(3) and (1). In its brief, Respondent stresses the fact that the protesting employees left their machines "without per- mission of their supervisors" and complains that this protest action was "premeditated and planned." The Act contains no requirement that employees have the permis- sion of their supervisors to engage in protected concerted activities. Nor is there any requirement in the Act that such activities be unpremeditated or unplanned. Any such requirements would effectively nullify the Section 7 right which guarantees employees the right to engage in protected concerted activities. Although not citing the cases, Respondent's brief treats this protest action as though it was a Fansteel case, 306 U.S. 240; or a Clinchfield Coal case, 145 F.2d 66 (C.A. 4); or a Southern Steamship Company case, 316 U.S. 31. This case is none of these. 24 For one of the more recent cases on the point see Lee Cylinder of Golay & Co., Inc., 156 NLRB 1252, enfd. (but with this point expressly left undecided) 371 F.2d 259 (C.A. 7). Cases cited by Respondent for the opposite proposition are inapposite under the facts of the instant case. 25 Respondent's brief says- "A grievance procedure existed for handling discharges and grievances in the operation of the department but this was not resorted to by the discharges on 12 May " zs In Cone Mills v. N.L.R.B., 373 F.2d 595 (C.A. 4), Respondent had maintained the opposite position , i.e., that contractual "super seniority" for union stewards did not survive the decease of the collective agreement upon which that superseniority was based. It almost seems that Respond- ent's position on this matter depended upon the exigencies of the particu- lar situation confronting it at the moment 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This case involves a peaceful concerted cessation of work to protest an unfair labor practice by Respondent. There was no violence. There was no profanity. There was no seizure of the plant. There was no prevention of operations . There was no loss to Respondent beyond that which would have been caused by a cessation of work. There was no misconduct. All eight dischargees are thus entitled to reinstatement with backpay.27 The Trial Ex- aminer so finds. c. Interference, restraint, and coercion In addition to the above General Counsel presented testimony of four employees regarding some six short one or two sentence conversations had with minor super- visors in three of Respondent's plants. With one or two exceptions these conversations were denied by the super- visors involved. As these conversations, even assuming they were had, contribute nothing to the determination of this case and would be merely cumulative as far as the remedy is con- cerned , I will recommend the dismissal of the allegations of the complaint relating to them. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE above, I will recommend that Respondent promptly supply the Union with the information regarding the pen- sion plan as requested heretofore and that, upon request, Respondent bargain in good faith with the Union as such representative and embody any agreement reached into a written signed document. In regard to the checkoff issue the General Counsel in his brief states: With reference to the 8(a)(5) portion of the Order and Notice, General Counsel would contend that such Order and Notice contain specific directions with reference to Respondent's position on the Union's security*issue as shown in this record. Thus, Respondent should be directed to refrain from taking the position that checkoff gives the Union the power to operate and it will not permit such a situation to develop again. On the same point Respondent's brief contains the fol- lowing: Quite simply, the Union prefers that it be relieved of all responsibility and obligation to collect dues and fees from its members and have this obligation as- sumed by the Respondent, and upon its failure to ac- complish this end at the bargaining table it resorted to the National Labor Relations Board for an order which would produce this result. The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affir- mative action designed to effectuate the policies of the Act. I have found that Respondent discriminated in regard to the hire and tenure of employment of the following named individuals on May 12, 1966: Ralph Johnson, Eu- gene Henley, Edward Dick, Ronald Gardner, William Tingen, Jr,, Lester Flippin, Alfred Walker, Noah Lewis, and Jack Wells, and that none of them did anything which would bar his reinstatement, so accordingly I will recom- mend that Respondent offer each of the aforementioned employees, immediate and full reinstatement to his former, or substantially equivalent, position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suf- fered by reason of said discrimination against him by pay- ment to him of a sum of money equal to that which he would have earned as wages from the date of the dis- crimination to the date of his reinstatement , less his net earnings during such period, in accordance with a formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum. Having further found that Respondent has refused to bargain collectively with the Union in good faith as the exclusive bargaining representative of the majority of Respondent's employees in the appropriate units found * In summary, it is clear that the Board is being asked to do by order what the charging Union has failed to do at the bargaining table, by demonstra- tions, by public appeals, and by strikes. [Citations omitted.] Regardless of these suggestions I have only made the usual and customary recommendation in refusal-to-bar- gain cases that "upon request Respondent bargain in good faith ... etc.," with the Union as the representative of its employees in the appropriate units above. If I possessed the authority, which I do not, I would recommend that Respondent grant the checkoff and thus complete the collective agreements now under negotia- tion. Admittedly the checkoff will cost Respondent nothing in time, labor, or expense and, if it should, the Union has offered to repay such cost. But primarily I would make this recommendation to forstall future damage to Respondent, the Union and the employees which I forsee to come out of the present dispute. I fear the present recommendations will prove futile due to the fact that the record here proves that, while Respondent has made one concession to the Act in that it will sit and talk interminably around the negotiation table, it still has shown no conception of the meaning of "good faith." This inevitably will result in aggravated labor strife damaging to all parties concerned. Because of the variety, extent, and type of the unfair labor practices engaged in by Respondent, I sense an op- position by_ Respondent to the policies of the Act in general, and hence I deem it necessary to order Respond- ent to cease and desist from in any manner infringing upon the rights guaranteed its employees in Section 7 of the Act. 27 See N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9. CONCLUSIONS OF LAW CONE MILLS CORPORATION 463 1. Local 259, Textile Workers Union of America, AFL-CIO, CLC, is a labor organization admitting to membership employees of Respondent. 2. By discriminating in regard to the hire and tenure of employment of each of the individuals named hereinafter, by discharging each of them on May 12, 1966, thereby discriminating against them because of their concerted and union activities and discouraging union membership and activities among its employees , Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act: Ralph Johnson, Eugene Henley , Edward Dick, Ronald Gardner, William Tingen, Jr., Lester Flippin, Alfred Walker,_Noah Lewis, and Jack Wells. 3. By refusing to bargain collectively in good faith with Local 259, Textile Workers Union of America, AFL-CIO, CLC, as the exclusive representative of Respondent's employees in the appropriate units found above, Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.]