Raybestos-Manhattan, Inc.

GENERAL ASBESTOS & RUBBER DIVISION General Asbestos & Rubber Division, Raybestos- Manhattan, Inc. and Textile Workers Union of America, AFL-CIO. Case 11-CA-3997 June 10, 1970 DECISION AND ORDER By MEMBERS MCCULLOCH, BROWN, AND JENKINS On February 18, 1970, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that Respondent had engaged 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 Respondent filed timely exceptions and a brief in support thereof, the Charging Party filed exceptions, and the General Counsel filed an answer to the exceptions of the Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, General Asbestos & Rubber Division , Raybestos-Manhattan, Inc., Char- leston , South Carolina, its officers , agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner 's Recommended Order. TRIAL EXAMINER'S DECISION JOSEPH I . NACHMAN, Trial Examiner: This matter tried before me at Charleston , South Carolina, on ' On December 17, at the conclusion of Respondent 's case, I granted a continuance to give the General Counsel time to investigate, and if he desired to offer evidence with respect to the circumstances under which a series of documents received in evidence as Resp. Exhs . 6(a)-(gg) were signed by Respondent 's employees. While the trial was in recess, the General Counsel advised me that he would not offer further evidence Ac- cordingly, the trial was not resumed , the record was closed, and the time for briefs fixed by my order of December 24, 1969 ' Issued October 27 on a charge filed and served September 10 These and all dates hereafter mentioned are 1969 unless otherwise indicated. 213 December 16 and 17 , 1969,1 with all parties present and represented by counsel, involves a com- plaint2 pursuant to Section 10(b) of the National labor Relations Act, as amended (herein the Act), alleging that since on or about March 11 General Asbestos & Rubber Division , Raybestos-Manhat- tan, Inc. (herein Respondent or Company), by (1) unilaterally granting a general wage increase; (2) dilatory bargaining tactics designed to avoid agree- ment; ( 3) refusing to sign an agreed upon contract; (4) negotiating in bad faith with no intention of reaching agreement; and (5 ) on or about Sep- tember 3 withdrawing recognition from and refus- ing to bargain further with textile Workers Union of America, AFL-CIO (herein the Union ), refused to bargain with the Union in a unit for which the Union had been certified by the Board , in violation of Section 8(a)(5) and ( 1) of the Act. By answer Respondent admitted certain allegations of the complaint, but denied the commission of any unfair labor practice. Thee central issue, which I regard as dispositive of the case, is whether or not the Union uncondi- tionally accepted Respondent's outstanding offer of contract terms, thereby concluding an agreement for a 3-year term, which Respondent admittedly refused to sign.' For reasons hereafter stated I find and conclude that the Union accepted Respon- dent's contract terms unconditionally , thereby con- cluding a contract , and that Respondent 's refusal to sign that contract, and its subsequent withdrawal of recognition from the Union , violated Section 8(a)(5) and (1) of the Act. Accordingly, I recom- mend an appropriate remedial order. At the trial full opportunity was afforded all parties to introduce relevant evidence , to examine and cross-examine witnesses, to argue on the record, and to submit briefs . Oral argument was waived. Briefs submitted by the General Counsel and Respondent, respectively, have been duly con- sidered. Upon the pleadings , evidence , stipulations of counsel, and the entire record in the case, in- cluding my observation of the demeanor of the wit- nesses, I make the following: FINDINGS OF FACT4 Background In June 1966, following the usual proceedings in a consent election case (11-RC-2351), the Re- ' If this question were answered in the negative , the principal issue would be whether Respondent 's admitted refusal to bargain with the Union on September 3 was motivated by its good-faith doubt that the Union then en- joyed majority status As indicated, I do not reach that question ' No issue ofjurisdiction is presented . The facts set forth in paragraphs 2, 3, and 5 of the complaint , which Respondent admitted by answer, establish that Respondent is an employer engaged in commerce and that the Union is a labor organization, both within the meaning of the Act I find those facts to be as pleaded The Board has heretofore asserted jurisdiction over Respondent. See Raybestos-Manhattan, Inc , 168 NLRB 396, 115 NLRB 1036 183 NLRB No. 27 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gional Director certified the Union as the collec- tive-bargaining representative of Respondent's em- ployees in an appropriate unit . Bargaining between the parties commenced shortly thereafter and con- tinued until December 19, 1967, when respondent withdrew recognition from and declined to bargain further claiming that the Union had lost its majori- ty. Based on a charge filed by the Union, the Re- gional Director, on behalf of the Board, issued a complaint charging Respondent with violating sec- tion 8 (a)(5) and ( 1) of the Act, but that complaint was withdrawn when the Union withdrew its charge and filed another representation petition which became Case I1-RC-2717. Pursuant to consent of the parties an election was conducted on May 16, 1968, and, after resolving certain challerges, the Board , on September 4, 1968, certified the Union as the collective-bargaining representative of Respondent's employees in an appropriate unit.' Current Facts Following the Union's certification the parties began bargaining on September 13, 1968, and between that date and the following September 3, there were 11 bargaining sessions.' At each of these meetings the Union 's chief ' negotiator was its Southern Director Scott Hoyman who is headquar- tered at Charlotte, North Carolina, while Respon- dent's chief negotiator was its attorney William H. Smith, Jr., who maintains his office at Columbia, South Carolina. Concerning the negotiating ses- sions, there is virtually no factual dispute with respect to the events which I regard as controlling the disposition of the case. Accordingly, in setting forth the events at the negotiating sessions, my findings are based on uncontradicted or mutually corroborated testimony. The first meeting on September 13, 1968, was preceded by, Respondent's letter to the Union, dated September 6, 1968 , proposing a general wage increase of 5 percent to all employees, effective September 16, 1968. Most of this meeting was, devoted to a discussion of the manner in which the increase would be applied, and it was agreed that the increase would be put into effect, but without prejudice to further bargaining on the subject of wages. At the next meeting on October 9, 1968, the parties agreed that the most logical way to proceed was to put in focus the situation that existed when negotiations broke off in December 1967 , and pur- suant to this Company Attorney Smith presented a complete set of written contract proposals.' The proposals, however, made no reference to wages or the terms of a proposed contract. At the meetings of October 25, 1968, and January 16 Respondent voiced its desire for a 3-year contract, and the Union expressed its willingness to agree to such a term if Respondent would agree to specific economic proposals including a general wage in- crease of 5 percent in each of the 3 years. Respon- dent took no position on the Union's proposals. At the meeting on January 28 Company Attorney Smith presented the Union with a complete con- tract, explaining that it included everything the Company would agree to.9 The proposed contract provided for a 3-year term, and thereafter for 1- year terms unless terminated by specified notice, and a general wage increase of 3 percent in Sep- tember of each year during the contract. In the course of discussion which followed, the Union ex- pressed its willingness to agree to Smith 's proposal if the contract was limited to 1 year but this was re- jected by Smith. At the meeting on February 18 Respondent increased its wage offer from 3 percent to 4 percent during each year of a 3-year contract. The remainder of that meeting, as well as the meetings of February 24 and June 4 were devoted to a discussion of that and other economic terms. At each of these meetings , however, Attorney Smith urged the Union to sign the agreement he submitted on January 28, as modified on the sub- ject of wages, saying particularly at the February 24 meeting that "the Company had made a fair proposal [and that the Union was] wasting time in arguing about these matters." At the June 23 meeting the Company again revised its wage proposal, offering an increase of 5 percent in September 1969, 4 percent in September 1970, and 3 percent in September 1971, instead of the 4 percent each year as previously offered, and this and other contract terms, including that of du- ration, was discussed at this and the meeting of July 24. As the July 24 meeting was concluding, Attor- ney Smith put the contract he had submitted on January 28, modified as to wages as above in- dicated, before Union Negotiator Hoyman, and said "Why don't you sign it?" Hoyman replied that he was not prepared to do so at that time. On August 5 Union Agent Hoyman sent Attorney Smith a letter on which the decision in this case de- pends. As Respondent's defense rests on the precise language of this letter, I set it out in full text italiciz- ing the words on which Respondent particularly re- lies. It is as follows: After considerable consultation, this is to ad- vise you that the Union is prepared to accept ' At the election the tally of ballots disclosed 295 votes for the Union, 277 against, and 23 challenged ballots. The Board resolved 18 of the chal- lenges following which the vote stood 297 votes for the Union and 290 against making it unnecessary to resolve the remaining 5 challenged bal- lots. 'The certification describes the unit as "All production and main- tenance employees, including loom fixers employed at Respondent's North Charleston , South Carolina, plant, excluding office clerical employees, professional employees , quality control department employees, group leaders, foremen, guards and supervisors as defined in the Act " Respon- dent's answer admits and I find the unit to be appropriate ' The parties stipulated that bargaining sessions were held on September 13, October 9 and 25, all in 1968, and January 16 and 28, February 18 and 26, June 4 and 23, July 24, and September 3, all in 1969 No contention is made by the General Counsel that there was undue delay between bargain- ing sessions ' Such proposals are Joint E;,h 6. ' The contract form referred to is Joint Exh 9 GENERAL ASBESTOS & RUBBER DIVISION the Company's proposal for a three year agree- ment covering employees of GARCO with 5, 4 and 3% wage increases effective in September of each year and the contract language for the various articles as agreed to in the current negotiations. We will of course wish to submit the total agreement for ratification by the mem- bership. In the minor points of language which remain unresolved we are prepared to agree to the latest offers of the Company. I would therefore suggest a meeting at an early date at which we can initial all the arti- cles of the contract including the proposed an- nual wage increases. I would be available for a meeting on August 15, 18, 19 or 20 at the usual time and place. The evidence is uncontradicted that Smith received Hoyman's letter and that he did not reply to it. The record contains no explanation for such failure to respond. In any event, having received no response, Union Agent Hoyman, on August 11, wrote to Company Personnel Director Sullivan, who had, except when prevented by illness, served on Respondent's negotiating committee, enclosing a copy of his August 5 letter to Attorney Smith, and stating that not having heard from Smith, he as- sumed that the latter was on vacation, and was calling Sullivan's attention to the matter because he regarded it as "important." Because Sullivan was away from his office due to illness , Hoyman's Au- gust 11 letter was received and acted upon by Assistant Personnel Director Hester on August 13. On that date Hester wrote Hoyman (1) that he was aware of Hoyman's letter of August 5, the same having been forwarded to the Company by Smith; and (2) that because the dates suggested in Hoyman's August 5 letter when the parties might meet and "initial all the articles of the contract" was "difficult for all membsrs of our committee," and he was suggesting September 3, "as a con- venient date to meet and discuss the contents of your letter." Hoyman admittedly received this letter in due course of mail. Also on August 13 Respondent posted on its em- ployee bulletin board three documents with a covering memorandum which urged the employees to "carefully read each of the attached pages." The documents so posted were (1) Hoyman's letter to Smith dated August 5; (2) Hester's letter to Hoyman dated August 13; and (3) a "News Letter" 10 The last mentioned document is in evidence as Resp Exh 5(f) 11 Another notice to the same effect was posted on September 13 refer- ring to a 5-percent increase to be effective September 16 There being no coi.trary explanation , I assume that both notices refer to the same wage in- crease and that only one wage increase was granted in mid-September " The mailing is evidenced by a registry receipt which is in evidence 215 issued by the Union's negotiating committee under date of July 29 reporting on the negotiating meet- ing held July 24.10 Thereafter, on August 22, Respondent posted on its employee bulletin board a notice signed by General Manager Drucker, read- ing, "I am pleased to announce a general increase of approximately five percent (5%) in all rates ef- fective September 15, 1969."11 Still not having heard from Smith, Hoyman on August 20 took the contract proposals submitted by the latter at the meeting of January 28, retyped them into final contract form modified to reflect the 5-,4-,and 3-percent wage increase agreed to by Smith at the June 23 meeting, dated and signed the document, and transmitted the same to Smith with a letter dated and mailed August 2 1,12 reading: Enclosed is a signed copy of the Company's contract proposal in line with my acceptance of your contract proposal made in a letter to you dated August 5, 1969. The record is uncontradicted that Smith did not respond to the above-quoted letter, nor commu- nicate with Hoyman in any manner regarding its contents . Because of such lack of response, Hoyman again wrote Smith on August 26, taking the latter to task for failing to respond to the let- ters, pointing out that the only word he had received was from Hester who had "completely ignored the fact that the Union had accepted the Company's contract proposal," and that he was at a loss to understand why, if the Company was acting in good faith, it should need 20 days "to respond to the Union's acceptance of your contract offer." Hoyman also protested Respondent's action in an- nouncing to its employees on August 23 a wage in- crease of 5 percent, "without first proposing this to the Union." Additionally, Hoyman told Smith that at a meeting on August 22 the employees involved had ratified "the signing of this agreement." The evidence shows that Smith received Hoyman's last- mentioned letter on August 27 and that he replied to it the same day, merely saying that he would at- tend the meeting scheduled for September 3. In the meantime, between August 13 and Sep- tember 3, some 33 pieces of paper bearing the pur- ported signatures of about 336 employees were left on the desk of Assistant Plant Manager Oliver 13 under circumstances and by a person or persons unknown, which in one form of words or another indicated dissatisfaction with the Union and/or with Although a delivery receipt signed on behalf of Smith is part of G. C. Exh. 12(a), the last mentioned document is not dated. I assume therefore that it was received by Smith in due course of mail " Oliver testified without contradiction that unit employment at the time was about 615, that the first such petition was received on August 13 or 14, and th e last on September 3 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contract." According to the Company's wit- nesses, Respondent had no information with respect to when, by whom, or the circumstances under which the petitions were circulated among and signed by the employees, or who left them on Oliver's desk. Oliver delivered the petitions to Assistant Personnel Director Hester with instruc- tions to check the signatures thereon against Respondent's records. Hester subsequently re- ported to Oliver that the signatures appeared to be authentic. When the parties met on September 3 Hoyman told Smith that his (Hoyman's) letter of August 5 constituted the acceptance and conclusion of a binding contract, which had been reduced to writ- ing, signed on behalf of the Union, and transmitted to Smith with Hoyman's letter of August 21, and that nothing remained except for Respondent to sign the agreed upon contract. According to Assistant Factory Manager Puckhaber, a member of the Company's negotiating committee, who was called as a witness by Respondent, Smith replied in substance, that he was in a quandry as to the course he should pursue, because while the contract Hoyman had transmitted was satisfactory, and in every way acceptable to Respondent, he knew from the petitions left on Oliver's desk that a majority of the employees no longer wished to be represented by the Union and suggested that the Union file another petition for an election.'5 According to Respondent's witness Tiedemann, Smith also told Hoyman that the latter had accepted Respondent's contract terms subject to ratification by the Union's membership and that "he had seen nothing to in- dicate that there had been a meeting to ratify 1116 and that Hoyman replied that ratification involved only the internal workings of the Union which was of no concern of the Company. Respondent's wit- ness Puckhaber also testified that at the September 3 meeting Hoyman protested the 5-percent wage increase which Respondent announced by its notice posted on the bulletin board on August 22 claiming that the same constituted unilateral action; that Smith claimed this had been agreed to in the bar- gaining negotiations, but Hoyman contended that such agreement was only as a part of negotiations in the context of a complete contract, and that not- withstanding Hoyman's request that Respondent sign the contract as agreed upon, Smith declined to do so on the ground that the petitions presented to management demonstrated that the employees did not want that contract, and did not want the Union as their bargaining representative . The meeting, which lasted about 45 minutes, adjourned on this note. On September 8 Respondent filed with the Re- gional Director a representation petition which was assigned Case 11-RM-158. The Regional Director dismissed that petition October 27, the date the complaint herein issued. Respondent's petition to review that action was denied by the Board on November 24. Contentions and Conclusions It is well settled that when an employer and a union have agreed on all terms of a collective-bar- gaining contract it is a violation of Section 8(a)(5) of the Act for an employer to refuse to sign the contract so agreed on, and that to remedy such un- fair labor practice the Board may require the em- ployer to sign and comply with all terms of the con- tract. Huttig Sash & Door Company, 151 NLRB 470, 474, order enfd. as modified in other respects 362 F.2d 217 (C.A. 4). Respondent does not ques- tion the principle above stated, impliedly conceding that on August 5 there was extant an offer by Re- spondent which the Union might have accepted and thus concluded a binding contract. Respond- ent's defense presents two questions narrower in scope, namely that (1) in his letter of August 5 Hoy- " The date and number of employees whose names appear on these peti- tions are as follows Date Petitions Employees signing Undated 12 157 August 8 1 22 (apparently incorrect) August 14 1 10 August 15 5 72 August 18 5 53 August 20 1 1 August 21 2 10 August 22 2 5 August 25 1 2 Date Petitions Employees signing August 27 1 2 September 3 2 2 Total 33 336 Most of these petitions contain a statement to the effect that the signers thereof do not wish to be represented by the Union . However, 6 petitions bearing the signature of 65 employees carry a legend to the effect that the signers do not approve of the contract negotiated between Respondent and the Union , no mention being made that those employees do not wish to be represented by the Union See Resp Exhs 6(z)-(gg ) If these 65 are deducted, the remaining 271 signers do not constitute a majority of the ap- proximately 615 employees in the unit '" This suggestion was rejected by Hoyman who said that the Union had won two elections and saw no need for another 16 As indicated above , Hoyman 's letter to Smith, dated August 26, stated that at a meeting held August 23 the employees ratified the agreement. GENERAL ASBESTOS & RUBBER DIVISION 217 man did not accept Respondent 's outstanding offer, but merely stated that the "Union is prepared to ac- cept" the Company 's proposal , and (2 ) that even if Hoyman 's letter of August 5 constituted an ac- ceptance , it was an acceptance conditioned upon ratification by the Union's membership . I find these contentions without merit. Turning first to the question whether Hoyman's letter of August 5 constituted an acceptance, I find and conclude that Hoyman so intended it, and that Smith so understood and acted upon it. I reach this conclusion for several reasons . To begin with, I am convinced that Hoyman 's expression "prepared to accept" was simply an unnecessarily verbose manner of saying "I accept." That Hoyman in- tended the letter as an acceptance of Respondent's then outstanding offer is made clear by his sub- sequent letters to Smith dated August 21 and 26, which referred to "my acceptance," or that the Union "had accepted" the Company 's contract proposals, and considered "the contract settled." That Smith construed Hoyman 's August 5 letter as an acceptance is indicated , I believe , by the fact that he did not reply thereto, nor did he inquire of Hoyman as to the latter 's intentions . Even assuming that Smith had some reason to doubt whether Hoyman was accepting Respondent 's contract proposals, a simple inquiry of Hoyman with respect to that fact-an inquiry which good faith would seem to require-would have put his doubt to rest. Cf. N.L.R.B. v. Waukesha Lime & Stone Co., Inc., 343 F.2d 504, 507 (C.A. 7). Moreover, the an- nouncement of the 5-percent wage increase, posted on the bulletin board on August 22, and which Smith contended had been agreed to by the Union, could only have been accepted by Hoyman's letter of August 5, for the evidence is uncontradicted that when the meeting of July 24 adjourned the Union had not so agreed, and the only subsequent com- munication between the parties that could have constituted an agreement on the part of the Union was Hoyman 's August 5 letter. Turning now to the question of ratification, I find unsupported by the record the Respondent's con- tention that Hoyman 's August 5 letter made em- ployee ratification a condition precedent to a meet- ing of the minds on contract terms . Rather, I con- strue Hoyman 's comment relating to ratification as no more than a statement of the course Hoyman in- tended to pursue with respect to the internal opera- tions of the Union ; a matter not relating to wages, hours, or terms and conditions of employment, and hence not a mandatory subject of bargaining. N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349; Houchens Market of Elizabethtown , Inc. v. N.L.R.B., 375 F.2d 208 (C.A. 6), enfg. 155 NLRB 729. Even assuming, as Respondent contends, that an employer and a union may agree that no contract shall result until all terms negotiated have been ratified by the union membership, and that such agreement will be given effect, upon the record in this case there is no showing that such an agreement was in fact reached. No suggestion of such an agreement was contained in any proposal submitted by Respondent during the negotiations , nor was the subject men- tioned by anyone during the period of the bargain- ing. The factual situation here therefore is nowhere near as strong as that presented in Houchens Mar- ket, supra, where the union negotiator at the start of negotiations informed the employer representatives that all agreements reached would be subject to ap- proval by the employees , but the Board nonetheless concluded that ratification was not a condition precedent to the conclusion of an agreement, but rather a gratuitous condition which the union negotiator imposed on himself. Furthermore, even if the parties did agree that employee ratification was a condition precedent to an effective contract, on the record before me Respondent 's defense must fail because it has no standing to question Hoyman 's notification to it, set forth in his letter of August 26, that at a meeting of employees held Au- gust 23 "a motion was duly made, seconded and passed to ratify the signing of this agreement." This conclusion is required by the Board 's decision in M & M Oldsmobile, Inc., 156 NLRB 903, enfd. 377 F.2d 712 (C.A. 2), where relying upon its prior decision in North Country Motors, Ltd., 146 NLRB 671, the Board said at 156 NLRB 905: As we observed therein , a bargaining agent need not assume the obligation of obtaining ratification of any contract it may negotiate on behalf of its members, but, if it does so, it is for the union, not the employer, to construe and apply its internal regulations relating to what would be sufficient to amount to ratification. If, as claimed by Respondent, an employer were free to challenge the union's assertion that ratification had taken place, it would be difficult, if not impossible , for the parties to a collective-bargaining 'agreement to arrive at a final settlement without the fear of being forced into protracted litigation regarding the union's compliance with its own procedures, clearly a collateral issue. The encouragement of industrial instability could not have been within the intendment of the Act. Therefore, even assuming that the parties had agreed that ratification by the employees was a condition precedent to a contractual agreement, I must and do find and conclude that the fact that Respondent had been advised by a majority of its employees that they did not approve of the contract which the Union negotiated , or that they did not want the Union to act as their representative, does not warrant the conclusion that the Union had not, or could not , obtain such ratification; on the contra- ry, the Union's statement to Respondent that ratifi- cation had been accomplished is conclusive. Nor do the employee petitions presented to Respondent as above indicated constitute legal justification for its failure to sign the contract agreed upon, or its subsequent withdrawal of recog- 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nition from the Union. Under familiar principles of contract law, which Respondent concedes are fully applicable to collective-bargaining contracts (Br. p. 14), the mailing of Hoyman's letter on August 5 concluded a contract binding on both parties (Am. Jur. 2d 48), and Section 8(d) of the Act therefore came into play at that moment, imposing upon Respondent the obligation to sign the contract so concluded. Certainly at that point Respondent was not aware of any employee defection from the Union (see fns. 13 and 14, supra ), and even if it was, the consummation of the contract occurred at a time when the first year of the certification had virtually a month to run, with the presumption of the Union's majority status conclusive. Ray Brooks v. N.L.R.B., 348 U.S. 96. And the consummation of the contract on August 5 established a bargaining relationship between the parties which, as the Supreme Court stated in Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 705, "must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed." Plainly, Respondent provided no such period when it evaded the Union for nearly a month, and on Sep- tember 3 completely withdrew recognition from it. Accordingly, for reasons stated, I find and con- clude that Respondent thereby refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act." Upon the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein the Union has been the duly certified collective-bargaining representative of Respondent's employees in an ap- propriate unit composed of "All production and maintenance employees, including loom fixers em- ployed at Respondent's North Charleston, South Carolina, plant; excluding office clerical employees, professional employees, quality control department employees, group leaders, foremen, guards and su- pervisors as defined in the Act." 4. By failing and refusing to execute the collec- tive-bargaining agreement negotiated with the Union effective for a term of 3 years from August 5, 1969, and by withdrawing recognition from the Union on September 3, 1969, Respondent refused to bargain collectively with the Union as the collec- tive-bargaining representative of its employees in the aforesaid unit, and interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent failed and refused to execute the contract it negotiated with the Union, I shall recommend that it be ordered, upon request of the Union, to do so and comply with all the provisions thereof retroactive to August 5, 1969, the date such agreement was consummated, including backpay to employees who may not have been fully compensated as provided in the contract, such backpay, if any is due, to be computed in ac- cordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289; Isis Plumb- ing & Heating Co., 138 NLRB 716. Relying upon Big Run Coal & Clay Company, 152 NLRB 1144, the General Counsel urges that the Recommended Order herein should provide for an option to the Union to request that Respondent sign the agreed-upon contract, or resume bargain- ing. The rationale of the cited case is that as the agreement there reached was for a period of 1 year which had run by the time of the Trial Examiner's Decision, an order which merely required the Com- pany to sign the contract might no longer be meaningful."' The factual situation in this case is different. Here the Union agreed to a contract for 3 years. During that term, in my view, the Union should not have the option of rescinding the agree- ment it voluntarily made, but like Respondent, should be held to its bargain. However, in the un- likely event that the 3-year term of the contract will have expired before Respondent complies with the order to be recommended herein, it will be recom- mended that Respondent be ordered on request of " Having reached this conclusion , I find it unnecessary to decide whether , as General Counsel contends but Respondent denies ,( 1) the events in August and September require the conclusion that Respondent's entire course of bargaining since September 13, 1968 , was in bad faith, (2) that said events require a finding that Respondent 's delay in signing the contract was in bad faith with the intention of avoiding any agreement, and (3) that the wage increase announced by Respondent on August 22, al- legedly without consultation with the Union , independently violated Sec- tion 8(a)(5) and ( 1) of the Act With respect to the first two items , in view of my findings that agreement was reached upon all terms of a contract. which the Union admits were in all respects satisfactory to it, and which I shall recommend Respondent be required to sign, nothing is to be gained by a possible finding that such agreement was reached notwithstanding bad-faith bargaining on the part of Respondent , and for which, in practical effect , no remedy is possible , other than to direct Respondent not to again bargain in bad faith With respect to the final item, as Respondent will be required to sign and comply retroactively with all items of the agreed upon contract, the wage increase announced August 22 was simply compliance with Respondent's contract obligation . Moreover, an order directing Respondent not grant unilateral wage increases can have no practical ef- fect during the 3 -year period of the contract Respondent will be required to sign 1s Such option to the Union has not always been ordered by the Board In some cases the Board merely ordered the employer to sign the agreed upon contract See, for example , Roesch Transportation Company, Inc, 157 NLRB 441, Tanner Motor Livery, Ltd, 160 NLRB 1669 GENERAL ASBESTOS & RUBBER DIVISION the Union to then bargain with it as the collective- bargaining representative of the employees in- volved. Because of the nature of the unfair labor prac- tices herein found, and in order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend an order which will require Respondent to refrain from in any manner abridging any of the rights guaranteed employees by Section 7 of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, con- clusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recom- mended that the National Labor Relations Board order General Asbestos & Rubber Division, Raybestos-Manhattan, Inc., its officers, agents, suc- cessors, and assigns, to: 1. Cease and desist from: (a) Failing or refusing , upon request, to sign and give effect retroactive to August 5, 1969, to the agreement reached with Textile Workers Union of America, AFL-CIO, on that date. (b) Failing or refusing to recognize and bargain with Textile Workers Union of America , AFL-CIO, concerning issues which have arisen , or which may arise during the term of the aforesaid agreement, including , but not limited to , the processing of grievances and the arbitration of disputes as pro- vided in said contract. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization , to form , join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection , or to refrain from any and all such ac- tivities. 2. Take the following affirmative action found necessary and designed to effectuate the policies of the Act: (a) Upon request sign and give effect retroactive to August 5, 1969, to the agreement reached with Textile Workers Union of America , AFL-CIO, on that date. 19 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102 .48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waive d for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court 219 (b) Upon request bargain collectively with Tex- tile Workers Union of America, AFL-CIO, con- cerning any question which has arisen , or which may arise during the term of the aforesaid agree- ment, including the settlement of grievances and disputes entitled to arbitration as therein provided. (c) In the event the Germ of the aforesaid agree- ment has expired before it is signed by Respondent, then , and in that event , bargain with Textile Wor- kers Union of America, AFL-CIO, as the collec- tive-bargaining representative of its employees in a unit composed of all production and maintenance employees , including loom fixers employed at its North Charleston , South Carolina , plant; excluding office clerical employees , professional employees, quality control department employees, group leaders, foremen , guards and supervisors as defined in the Act, and if an agreement is reached embody the same into a signed contract. (d) Make whole all employees or former em- ployees for any losses suffered by reason of its failure to sign and comply with the aforesaid agree- ment of August 5, 1969 , retroactive to that date, by paying to each employee a sum of money equal to the difference , if any, between his earnings under the provisions of the aforesaid contract and the amount he was in fact paid , as provided in the sec- tion hereof entitled "The Remedy." (e) 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 Recommended Order. (f) Post at its plant in North Charleston, South Carolina, copies of the attached notice marked "Appendix." copies of said notice , on forms pro- vided by the Regional Director for Region 11, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith? of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 40 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 " 220 DECISIONS OF NATIONAL APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which both sides had the oppor- tunity to present their evidence, the National Labor Relations Board has found that we, General Asbestos & Rubber Division, Raybestos-Manhat- tan, Inc., violated the National Labor Relations Act, and ordered us to post this notice. We there- fore notify you that: WE WILL upon request of the Textile Wor- kers Union of America, AFL-CIO, sign and give retroactive effect to the collective-bar- gaining contract we reached with said Union on August 5, 1969. WE WILL upon request of said Union bargain with it concerning any question that has arisen, or which may arise during the 3-year term of said contract, including the settlement of grievances and disputes entitled to arbitration as provided in said contract. WE WILL make whole all employees or former employees for the losses suffered, if any, by reason of our failure to sign and comply with the contract concluded on August 5, 1969, with interest. WE WILL, in the event the 3-year term of the contract concluded on August 5, 1969, has ex- pired before we sign the same, bargain with the Textile Workers Union of America, AFL-CIO, as the representative of our employees in a unit of all production and maintenance employees, including loom fixers, employed at our North LABOR RELATIONS BOARD Charleston, South Carolina, plant; excluding office clerical employees, professional em- ployees, quality control department employees, group leaders, foremen, guards and supervisors as defined in the Act, and if an agreement is reached reduce the same to a signed contract. The law gives all employees these rights To organize themselves To form, join or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything to interfere with you in the exercise of these rights. All our em- ployees are free to become or remain members of Textile Workers Union of America, AFL-CIO, or any other union, or not to become or remain a member of any union. GENERAL ASBESTOS & RUBBER DIVISION, RAYBESTOS-MANHATTAN, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1624 Wachovia building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211, Extension 360.