Oneita Knitting Mills, Inc.

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oneita Knitting Mills , Inc. and Textile Workers Union of America, AFL-CIO, CLC. Case 11-CA-5021 August 13, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On Feburary 21, 1973, Administrative Law Judge Fannie M. Boyls issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, as amended, and to adopt her recommended Order, with the following modification. The Administrative Law Judge found that Respondent's vice president, Urtz, in July 1972, told employee Lambert at the Andrews, South Carolina, plant and the assembled employees at the nearby Lane plant that Respondent would not grant the Union's request for a union dues deduction (checkoff) provision in the contract then being negotiated, and by such conduct interfered with, restrained, and coerced its employees in the exercises of their right to bargain collectively through a representative of their own choosing in violation of Section 8(a)(1) of the Act. The Administrative Law Judge reasoned that by announcing to the employees that he would not ac- cede to a checkoff demand, Urtz was "painting him- self into a corner and making it difficult to negotiate further with the Union on this subject." Urtz's aim, according to the Administrative Law Judge, "was to deal with the Union through the employees rather than with the employees through the Union," and thus was violative of the Act under N. L.R.B. v. Gener- i Respondent argues that a finding that the unilateral grant of merit in- creases was a violation of Sec 8(a)(5) would be inconsistent with the holding of this Board in Southeastern Michigan Gas Company, 198 NLRB No 8, wherein we found a discontinuance of merit increases to have been a viola- tion of Sec. 8(a)(5) We disagree . An employer with a past history of a merit increase program neither may discontinue that program (as we found in Southeastern Michigan) nor may he any longer continue to unilaterally exer- cise his discretion with respect to such increases , once an exclusive bargaining agent is selected N L R B v Katz, 396 U S 736 ( 1962) What is required is a maintenance of preexisting practices, i e , the general outline of the pro- gram, however the implementation of that program (to the extent that discre- tion has existed in determining the amounts or timing of the increases), becomes a matter as to which the bargaining agent is entitled to be consulted al Electric Company, 418 F.2d 736, 756 (C.A. 2, 1969), cert. denied 397 U.S. 965 (1970). We do not agree that the doctrine of the General Electric case is applicable to Urtz's statement. General Electric involved a mas- sive campaign of employee persuasion designed to undercut the bargaining representative and win sup- port for the Company's "take-it-or-leave-it" bargain- ing methods. As found by the court (418 F.2d 762, 763): We hold that an employer may not so combine "take-it-or-leave-it" bargaining methods with a widely publicized stance of unbending firmness that he is himself unable to alter a position once taken. . . . Such conduct, we find, constitutes a refusal to bargain "in fact." . . .. It also consti- tutes . . . an absence of subjective good faith, for it implies that the Company can deliberately bar- gain and communicate as though the Union did not exist, in clear derogation of the Union's sta- tus as exclusive representative of its members un- der section 9(a). But the court also specifically called attention to the fact that it was not holding "that an employer may not communicate with his employees during negotia- tions." (418 F.2d at 762). In the present case, Respondent is not alleged to have engaged in overall bad-faith bargaining. The statement about checkoff is not alleged as indicative of such bargaining. Rather it is supposed to have inde- pendently coerced or restrained employees. We can- not agree. We note first that the statement was made after the Union was certified as bargaining represen- tative of Respondent's employees. It could not, there- fore, have had any impact on the employee vote for such representative. Secondly, the statement was not accompanied by any threat. Thirdly, nothing is more common than for parties to contract negotiations publicly to take positions on bargaining issues and then to modify those positions during negotiations. We believe that employees today are sufficiently so- phisticated to appreciate this fact. Accordingly, we find, contrary to the Administrative Law Judge, that Respondent by engaging in such rhetoric did not thereby interfere with, restrain, or coerce employees in violation of Section 8(a)(1) of the Act by its state- ment that it would not accede to a demand for a union dues checkoff arrangement.' Amended Conclusions of Law Delete Conclusion of Law 3 and renumber the fol- lowing conclusions. 2 Varo, Inc, 172 NLRB 2062, 2071. 205 NLRB No. 76 ONEITA KNITTING MILLS ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, Onei- ta Knitting Mills, Inc., Andrews, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order as so modified: 1. Delete paragraph 1(b) and renumber paragraphs 1(c) and 1(d) as paragraphs 1(b) and 1(c), respectively. 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unilaterally, without prior notice to and consultation with your bargaining repre- sentative, grant wage increases or change other conditions of your employment. WE WILL NOT coercively interrogate, repri- mand, or threaten to keep under surveillance any employee because such employee has engaged in a protected union activity. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Sec- tion 7 of the National Labor Relations Act. WE WILL, upon request, bargain collectively with Textile Workers Union of America, AFL- CIO, CLC, as the exclusive bargaining represen- tative of our employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reach, embody such understanding in a signed agree- ment. The bargaining unit consists of: All production and maintenance employees, quality control employees, fixers and fixer- learners at our Andrews and Lane,-South Car- olina, plants, excluding the truckdriver, train- ers, office clerical employees, guards and supervisors as defined in the Act. ONEITA KNITTING MILLS, INC (Employer) Dated By 501 (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-2300. DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Administrative Law Judge: This case, initiated by a charge filed on July 21, 1972, and a complaint issued on September 14, 1972, was tried before me in Georgetown, South Carolina, on October 31 and November 1 and 2, 1972. The complaint, as amended at the hearing, alleges that Respondent violated Section 8(a)(5) and (1) of the Act by taking certain unilateral action without consulta- tion with the employees' bargaining representative and by other acts of interference, restraint, and coercion. Respon- dent filed an answer, denying that it had engaged in any of the unfair labor practices alleged. Subsequent to the hearing counsel for the General Counsel and for Respondent filed helpful briefs. Upon the entire record in these proceedings, upon my observation of the demeanor of the witnesses who testified, and after a careful consideration of the briefs, I make the following: FINDINGS OF FACT I JURISDICTIONAL FINDINGS Respondent is a New York corporation, having plants at Andrews and Lane, South Carolina, where it is engaged in the knitting and manufacturing of cotton knit wear, includ- ing men's under garments. During the 12-month period pre- ceding the issuance of the complaint, which is a representative period, Respondent shipped from its An- drews and Lane plants goods valued in excess of $50,000 directly to points located outside the State of South Caroli- na. During the same period Respondent purchased, from points outside the State, goods valued in excess of $50,000. On the basis of these admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, CLC, herein called the Union, is a labor organization within the 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES ALLEGED A. Setting and Issues Following a representation election held under the aus- pices of the Board's Regional Director on November 19, 1971, the Union was certified on December 23 as the exclu- sive bargaining representative of the production and main- tenance employees, quality control employees, fixers and fixer-learners at Respondent's Andrews and Lane, South Carolina, plants.[ At its Andrews plant Respondent has about 600 employees performing knitting, bleaching, T- shirt sewing, and briefs and athletic shirt sewing operations. At its Lane plant about 20 miles away, Respondent has about 250 employees engaged in T-shirt sewing operations. Respondent is charged with unlawfully refusing to bar- gain with the Union, in violation of Section 8(a)(5) and (1) of the Act, by unilaterally, without prior notice to or consul- tation with the Union, (1) granting merit increases to its employees on or about January 29, 1972; (2) on about Feb- ruary 7, 1972, changing the working hours of the knitting department employees; (3) locking its plant cafeteria on or about February 7, 1972, at a time when some of its employ- ees formerly had access to it; and (4) ceasing on about March 1, 1972, its prior practice of rotating employees on sets of knitting machines. It is also alleged that Respondent independently violated Section 8(a)(1) of the Act by threatening employees on or about July 25, 1972, that it would withhold a retirement plan from them and would never grant a checkoff to the Union and by threatening employees on about July 28, 1972, with surveillance and other reprisals because of their union mem- bership, activities, and desires. B. The Alleged Refusals To Bargain 1. The January 29, 1972, wage increases On January 29, 1972 , Respondent granted to all unit employees in the "indirect" category (those not on incentive pay), wage increases in varying amounts, as shown on the list of those increases received in evidence (G. C. Exh. 2). Thus, salaried machine fixers received increases of $7.50 or $10 a week ; one machine fixer was changed from an hourly paid to a weekly salary basis ; and other machine fixers received increases of between 5 cents and 25 cents an hour. Other hourly rated employees in the various job classifica- tions received raises of between 5 cents and 35 cents an hour. These were clearly merit increases. Although employ- ee members of the bargaining committee brought these in- creases to the attention of their bargaining negotiator, International Representative Roper , shortly after the in- creases were granted, the Union had no prior notice of or opportunity to discuss them with Respondent . It was not i Objections filed by Respondent to the election were overruled by the Regional Director On appeal by Respondent to the Board , the latter on January 21, 1972, denied review of the Regional Director's rulings until May 11 that Respondent furnished the Union with a list of these increases. As Respondent's payroll clerk, LaJean Owens, explained, it has been her practice every December since 1966 to pre- pare a list of "indirect" labor employees, with their earnings rate and the date of their last increase and give it to Frank Urtz, vice president in charge of manufacturing, for the purpose of review by him of the amounts of the annual increases to be given each employee. This list comes back to her in January or February with the amount of the in- crease granted to each employee marked thereon. Respondent contends that its grant of the increases to its employees on January 29, 1972, was pursuant to a fixed policy to grant increases annually at approximately that time of the year and was an existing working condition, the withholding of which would itself have amounted to an unfair labor practice. Respondent's argument might be per- suasive if the increases had been given in a fixed amount or automatically determined amount, such as cost of living increases, to all employees, so that there exists no element of discretion as to different treatment to be accorded the various employees. State Farm Mutual Automobile Insurance Co., 195 NLRB 871; Southeastern Michigan Gas Company, 198 NLRB No. 8. The January 29 raises, however, were strictly merit in- creases and although each employee whom Respondent was willing to retain on its payroll apparently received some increase, the amount of such increase depended in each case upon the discretion of Vice President Urtz or whatever management representative may have assisted or acted for him. The employees had no way of knowing in advance of receiving their increases how much the increases would be or how their own increases might compare with those of other employees or of those doing comparable work. Such matters are clearly appropriate for consideration and bar- gaining by the employees' chosen representative. As the Supreme Court stated in N.L.R.B. v. Katz, 369 U.S. 736, 746 (1962), regarding merit increases given pursuant to a previ- ously established policy, Whatever might be the case as to so-called "merit rais- es" which are in fact simply automatic increases to which the employer has already committed himself, the raises here in question were in no sense automatic, but were informed by a large measure of discretion. There is simply no way in such case for a union to know whether or not there has been a substantial departure from past practice, and therefore the union may prop- erly insist that the company negotiate as to the proce- dures and criteria for determining such increases. The gravamen of the offense with which Respondent is charged is not that it continued, as was its past practice, to review each employee's record for the purpose of determin- ing the amount of the annual increase to be awarded him; rather, it was Respondent's act of putting into effect those increases in the various amounts it had determined without 2 In addition to these merit increases given all employees around the first of the year Respondent automatically gives 5-cents-an-hour increases each quarter to all new employees during the first year of their employment . It also sometimes gives merit increases to some of its older employees at times other than around the first of the year as it did on or about July 3 and August 28, 1972, after prior notice to and approval by the Union. ONEITA KNITTING MILLS first notifying the employee's bargaining representative and giving it an opportunity to confer about the proposed in- creases before they became effective. It may well be that if Respondent had submitted the list of proposed increases to the Union, the latter would have approved the increases as it in fact did when Respondent later submitted to the Union a list of further proposed merit increases in June and in August. I believe that Respondent, in later submitting to the Union for its approval the further proposed increases, was giving proper recognition to its statutory bargaining obliga- tion. Respondent's unilateral action in granting the January 29 increases, however, without prior notice or opportunity for the Union to bargain about them was in derogation of Respondent's bargaining obligations under Section 8(a)(5) and (d) of the Act. 2. The change in working hours of knitting department employees It is undisputed that Respondent, without prior notice to the Union, put into effect on February 8, 1972, a change in the working hours of its hourly rated knitting department employees. Under the changed schedule employees were required to report to work 10 minutes earlier and leave work 10 minutes later than before the change. Union Negotiator Roper first learned of the changed work schedule on Febru- ary 23 when informed of it by employee members of the negotiating committee and did not receive a copy of it until on or about March 6, after Roper informed Respondent that the employees were disturbed about the change, and the subject was discussed at the first bargaining conference on February 24. Respondent did later discuss the shift schedules with the Union at several meetings between March and May 24 when, with the concurrence of the union negotiators, the schedules were again changed, effective May 29, this time to eliminate the early reporting but to add 20 minutes to the end of the shift and to provide for an extra 10-minute break and for an extra 10 minutes for lunch. As a result of these discussions, it was also agreed that Respondent would reim- burse the knitters at time-and-one-half pay for the extra time they were required to work under the unilaterally im- posed work schedule in effect between February 8 and May 29, 1972. Respondent's unilaterally imposed increase in working time for the knitting department employees in February unquestionably was in derogation of Respondent's duty to bargain with the Union about the matter and was therefore in violation of Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Katz, 369 U.S. 736 (1962); American Cyanamid Co., 185 NLRB 981. Respondent does not contend that its February action was lawful but asserts that the question whether that conduct was unlawful is now moot in view of Respondent's subsequent bargaining about the subject matter and its sub- sequent reimbursement of employees for the extra time they were required to work under the changed schedule. It is well settled, however, as pointed out by the court in N.L.R.B. v. Sewell Manufacturing Co., 172 F.2d 459, 461 (C.A. 5), "that a voluntary discontinuance of the violation by the respon- dent at a time prior to the institution of proceedings by the Board does not affect the jurisdiction of the Board to make 503 an order barring resumption. The principle supporting this rule is that the Board should have power to prohibit viola- tions in the future as well as to stop present violations." Consolidated Edison v. N.L.R.B., 305 U.S. 197, 230. The fact that Respondent has, subsequent to its violation , recognized its duty to bargain about the change in working hours and has compensated the affected employees for its unlawful conduct by paying them time-and-one-half for the extra time they were required to work is, of course, commendable and this circumstance will be taken into account in devising the appropriate remedy, infra.3 3. The locking of cafeteria doors Respondent operates a cafeteria for its employees at An- drews which, prior to February 1972, was open at all times when the plant was operating. There were vending machines and canteen services in the cafeteria available to the em- ployees at all times. In February Vice President Urtz gave orders to Respondent's night watchman that access doors to the cafeteria were to be locked between 6 p.m. and 6 a.m. and opened only at "lunch" and other break periods. Only between 35 and 50 bleaching and knitting department em- ployees working on swing shifts normally worked during those hours. Their access to the cafeteria was through the sewing room, the doors to which were locked pursuant to Urtz's instructions. There is testimony by one employee, Eaddy, that when she found the access door locked during her lunch break at one time in February, she started bring- ing her lunch to work. Another employee, Pope, testified that the access door was opened during break periods but that employees could no longer get a soda or a headache powder at other times as they had formerly done. I am satisfied upon all the evidence that except perhaps on an isolated occasion such as that about which Eaddy testified, the access doors were open at normal lunch and other break periods and that the inconvenience to employees was mini- mal. Employees complained to Union Representative Roper about the change and he discussed the matter with Respondent's representatives at the first bargaimng confer- ence on February 24. Urtz explained at the hearing (and presumably also explained to Roper and the bargaining committee) that he had ordered the doors locked because the owner of vending machines placed in the cafeteria had reported that vandalism and thefts had been occurring at nights and had threatened to remove the vending machines if security measures were not taken by Respondent. Al- though the limiting of access to cafeteria services for the 3 Puerto Rican American Sugar Refinery, Inc, 136 NLRB 428, cited by Respondent, is not apropos There the employer in reliance on a holding in Joseph J Schultz v N L R B, 284 F 2d 254 (C A D C., 1960) that an employer may not lawfully grant union-security and checkoff provisions in a contract with an individual who is the employees' bargaining representative, refused to bargain about those subjects with an individual representative, Orroyo, but, pending a decision by the Board on this issue, the employer did bargain and grant union security and checkoff to a labor organization of which Orroyo became president. The Board then granted a motion by Orroyo to amend the certification by showing the labor organization to be the bargain- ing representative, and dismissed the complaint, finding that it would not effectuate the policies of the Act to decide the issues raised by the complaint in those circumstances 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD swing shift employees did have some slight effect upon their working conditions and it undoubtedly would have been better for employee morale for Respondent to have an- nounced the change and Respondent's reasons for it to the employees prior to effectuating the change , I am persuaded because of the minimal effect upon working conditions and the lack of unlawful motivation by Respondent that its conduct in this respect did not amount to an unlawful refus- al to bargain . Retail Store Union (Coca-Cola Bottling Works) v. N.L.R B., 466 F .2d 380, 384-385 (C.A.D.C., 1972). 4. The alleged change in practice of rotating knitting department employees It is the General Counsel's contention that on or about March 1, 1972, Respondent unilaterally without notice to or consultation with the Union, instituted a change in its sys- tem of rotating knitters from one set of machines to another in such a manner as to unfairly distribute work on the machines which were harder or easier to run or which paid lower or higher rates. The General Counsel produced three employees who testified to the effect that it had been Respondent's practice prior to about the first of March to rotate the knitters weekly from one set of machines to an- other, with only occasional deviations because of the ab- sence of a knitter, so that over a period of 6 or 7 weeks each knitter would have worked on each type of machine, the more desirable as well as the less desirable, but that after about March 1, Respondent would keep the knitters on one set of machines for long periods of time, without rotating them weekly as in the past. This change, according to these three witnesses, made work more onerous and adversely affected the earning capacity of the less fortunate knitters. Respondent denies that any change in its practice of as- signing knitters to machines actually took place. It states, moreover, that the assignment of knitters to machines is done by the knitting machine fixers, nonsupervisory person- nel who are included in the bargaining unit; that it has not exercised any control over the manner in which the fixers assign work; and that it has received no complaints from any knitter as to the manner in which assignments have been made to her. It accordingly argues that it cannot be held to have violated any bargaining obligations by reason of the manner in which its fixers have operated. Respondent called two of its fixers, one over rib knitting operations and the other over flat knitting operations, each of whom testified that he received no direction from man- agement as to how he should assign knitters, that he exer- cised his own discretion in performing this duty and that no change had occurred in the manner in which he did this assigning. Respondent also adduced evidence that in Sep- tember 1971 it had physically separated the rib and flat knitting departments and that in late February it had moved all of its smaller machines in the rib knitting department to one area, whereas theretofore these machines had been in- terspersed among the larger machines. These changes, Re- spondent suggests, may have caused some of the knitters to feel, contrary to the facts, that a change had occurred in the method of rotating assignments. I find it unnecessary to resolve the conflicts in the testi- mony and to analyze the documentary evidence adduced by Respondent in purported support of its contention that no change actually occurred for I am convinced that even if a change did occur, no unfair labor practice can be imputed to Respondent by reason of that fact in the circumstances of this case. While normally persons, like the knitting ma- chine fixers in this case, who are given responsibility for making work assignments involving the exercise of discre- tion and which may affect the earnings or the earning ca- pacity of the employees, are regarded as supervisors within the meaning of the Act, neither the General Counsel, the Union, nor the Employer has contended that the fixers here involved are supervisors.' They are included in the bargain- ing unit certified by the Regional Director on December 23, 1971, as appropriate in the underlying representation case and, in its answer to the complaint, Respondent admits the appropriateness of that unit. Despite their inclusion in the unit in the representation case, however, the parties would not have been estopped from urging in this subsequent un- fair labor practice case, based upon the different record here made, that they are in fact supervisors.5 The failure of the General Counsel or Union to assert, even now, that the knitting machine fixers are supervisors leads me to conclude that the authority of the fixers to assign work is subject to review by supervisory personnel over them upon the com- plaint of any employee. The fact that no employee com- plained to her supervisor and in that manner apprised management of any alleged change in the way assignments were being made, precludes any finding that Respondent was responsible for any change, if, indeed, there was one. Accordingly, no unfair labor practice finding will be based upon this allegation of the complaint. C. The Alleged Threatening Statements 1. The alleged threats by Vice President Urtz to withhold the granting of a retirement plan and never to grant a checkoff to the Union Employee Joyce Lambert testified that on or about July 25, 1972, as Urtz was passing her work station in the ware- house building at Andrews, she stopped him, in the presence of fellow employee Sadie Howard, to talk about seniority and a retirement plan. She gave the following account of the conversation. After they had first talked about seniority, Lambert asked him about employee retirement rights, whereupon he stated that he had wanted to give the employ- ees a retirement plan and that such a plan was being drawn up "until people like you went out and brought this mess into the mill." In response to her question whether he was ° It is noted that in two prior unfair labor practice cases against Respon- dent, 150 NLRB 689 and 153 NLRB 51, the knitting machine fixers at the Andrews plant were regarded as supervisors and were excluded from the bargaining unit Those cases arose when Respondent's employees were repre- sented by another labor organization, the International Ladies' Garment Workers' Union, and the unit findings in those cases, like the one agreed upon in this case, were based upon findings in an underlying representation case 5Furr's,Inc v NLRB,381 F2d562,566,fn 8(CA 10, 1967), N L R B v Montgomery Ward and Co, 242 F 2d 497 (C A 2, 1957), cert. denied, 355 U S. 829 (1957), N L R B v Elliott-Williams Co, Inc, 345 F 2d 460, 463 (CA 7, 1965) ONEITA KNITTING MILLS referring to the Union, he replied, "Yes. And now I'll never give it, give retirement." Urtz then remarked, "Now, Joyce, I've answered your question, let me ask you one. . . . Do you predict a strike?" Lambert responded, "Well, not right at that time." Urtz then asked, if there was a strike, what would she predict would be the cause of it. To her reply, "possibly checkoff," he retorted, "You'll never get it." Lam- bert reported this conversation to members of the employee negotiating committee, to which she herself was elected shortly thereafter. Urtz's account of the July 25 conversation was substan- tially different. He testified that he was first stopped by employee Sadie Howard who asked when she was going to get her 20-year pin. Then, as Joyce Lambert walked up, Howard asked about a pension plan which Urtz had previ- ously mentioned to the employees.6 Urtz told Howard that Respondent was still working on the plan and hoped that it would go into effect "one of these days" but that it now had to be negotiated with the Union. At that point, accord- ing to Urtz, Lambert asked whether the employees still had seniority and he explained that they did. Urtz denied that any mention was made of a checkoff or of union dues deduction or of a strike. Sadie Howard's version was that Lambert asked Urtz about seniority and that after he assured her that all the employees had seniority at least for layoff purposes, How- ard asked in jest about a 20-year pin for herself and a third employee present, Alma Powell, suggested a dime store pin. Howard then asked Urtz whether the employees would re- ceive retirement benefits regardless of whether a contract was signed with the Union. He replied that "the lawyers have already got it set up, but there will not be any benefits until this is settled; that as long as negotiations were going on Respondent could do nothing but that the employees would get their retirement when things were settled. How- ard did not hear any mention of a dues checkoff or deduc- tion of union dues from checks or of a strike.' With respect to Urtz's statements about a pension or retirement plan, I am persuaded that Urtz did not say that Respondent would never grant it but, rather that Respon- dent would not grant it at that time because the Union had come in and the matter had to be negotiated with the Union. The latter version, given by both Howard and Urtz, is con- sistent with the evidence that Respondent had wanted to give the employees a pension plan even before the Union became the employees' bargaining representative and with a reference in one of the union bulletins to a pension plan presented by Respondent at the bargaining table. Accord- ingly, no violation of the Act is found on the basis of Respondent's statements regarding the pension plan. 6 The record shows that on October 29, 1971, when the Union's organiza- tional drive was in progress , Urtz wrote Respondent's employees a letter, reminding the employees , among other things, that during the spring of that year he had told them of a retirement or pension plan, to be paid for by Respondent , which experts were working on and that he expected to establish and fund such a plan soon 7 Howard concededly did not want to become involved in any Labor Board proceeding She testified that she was not interested in having a union represent her and it is likely that her recollection regarding what may have been said about union matters was not as good as that of Lambert , who was interested in the Union and reported the conversation shortly thereafter to employee members of the negotiating committee 505 With respect to the alleged statements regarding the grant of a checkoff, I am persuaded that Lambert's version is substantially accurate. Her testimony on this issue had a ring of truth. It is also consistent with other statements which, I find, were made by Urtz on the same day to Respondent's Lane plant employees. Let us now turn to the evidence regarding that speech. On or about the same day Urtz had the above-related conversation with Lambert and Howard, Urtz addressed the approximately 200 employees at the Lane plant. The occasion for this talk, according to Urtz, was that he had heard rumors to the effect that he was going to attend a union meeting that night and he wanted to inform the em- ployees that he was not going to attend. He also took this occasion to inform the employees, among other things, as to Respondent's position in regard to the subject of the deduction of union dues from employees' paychecks, which he stated was one of the issues between Respondent and the Union. Rodine McCullough and Mary McRay, both of whom worked at the Lane plant and were members of the bargaining committee, testified that Urtz told the group that he would not grant the Union's request for a checkoff provi- sion in the contract being negotiated because he did not want the employees "mad" at him for taking money out of their paychecks for the Union. Urtz's account was not substantially different from that of McCullough and McRay but he insisted that he did not mention the word "checkoff." According to Urtz he told the employees that one of the issues was the "deduction of union dues" and that he "felt that if a person wanted to belong to a union or any other organization, that they should be willing to reach into their pocket and pay the dues." He told them that when Respondent "had a union before, and a contract and dues deduction, [he] had many people get very irritated with [him] because they thought that [he] was the one who was the cause of union dues deduction out of their check" and that he did not want the employees at Lane to get "mad" at him. At the hearing Urtz made quite a point of the fact that he had never used the word "checkoff" in talking to the employees and testified that he did not tell them he would never grant a "checkoff" to the Union. Two employees, Ollie Mae Dunmore and Billie Barr, corroborated Urtz's testimony that he referred to a "dues deduction" rather than a "checkoff" (a distinc- tion which I find immaterial) and each of them testified that Urtz never said he would not grant a dues deduction provi- sion. Regardless of the precise words Urtz used, I am satisfied, as expressedly testified by McCullough and McRay, and as implicitly revealed by Urtz's own testimony, that he told the group of employees that he would not include in the con- tract then being negotiated any provision for checkoff or deduction of union dues.8 I do not agree with Respondent's argument in its brief 8 As McCullough testified, Respondent had offered a checkoff provision in a proposed package contract in May which the Union turned down be- cause it was the only concession Respondent had made Respondent's posi- tion regarding the checkoff appears to have changed thereafter as indicated by the July 25 speech and by a union bulletin issued in September or October which states . "The Company is also insisting on the kind of Union Contract which would destroy the Union's ability to survive when they refused to agree to a checkoff system to pay union dues " 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that since it may not be compelled to grant a union proposal for a checkoff (H. K Porter Company, Inc. v. N L.R.B., 397 U.S. 99 (1970) ), it may lawfully threaten employees that it will not grant such a provision. At the time Urtz told his assembled employees that he would not grant the Union's request for a checkoff of union dues, Respondent was under a legal obligation to bargain with the Union about this matter. The Union's demand for a checkoff provision was an unresolved issue at the bargaining table. By announcing to the employees that he would not grant this demand, Urtz was painting himself into a corner and making it difficult to negotiate further with the Union on this subject. Urtz's aim, it would seem "was to deal with the Union through the employees rather than with the employees through the Union." N. L. R. B. v. General Electric Co., 418 F.2d 736, 756 (C.A. 2, 1964), cert. denied 397 U.S. 965 (1970); May De- partment Stores Co. v. N.L.R B., 326 U.S. 376, 385-386. I find that Urtz by telling employee Lambert at the An- drews plant and his assembled employees at the Lane plant, while union negotiations were still in progress, that Respon- dent would not grant the Union's request for a checkoff or union dues deduction provision in any collective-bargaining agreement, interfered with, restrained, and coerced the em- ployees in the exercise of their right to bargain collectively through a representative of their own choosing and that Respondent thereby violated Section 8(a)(l) of the Act. 2. Respondent's coercive treatment of employee Glisson Dorothy Glisson is an employee member of the Union's bargaining committee. At a bargaining session on June 27, Respondent's attorney, Smith, presented to Union Repre- sentative Ted Benton a list of mechanics and fixers to whom Respondent wished to grant merit increases. The Union asked for a caucus and during the caucus as well as after returning to the bargaining meeting, Glisson made the re- mark that she felt there were some mechanics on the list who did not deserve a merit increase. During the conversation which ensued, Urtz asked Glisson which mechanics she was referring to. Union Representative Benton asked her not to reveal any names and she refused to reveal any. On the following morning Superintendent Billy Marie asked Glisson to report to the office. When she arrived, she found all of the mechanics from the department in which she worked present. Glisson's supervisor, Ronnie Newton, also came in . Employee Gloria Jean Green, who had at- tempted to accompany Glisson, was excluded. Superinten- dent Mane told Glisson that Urtz had reported to him that Glisson had said there were no mechanics in the mill who could fix a sewing machine. Glisson denied having made such a remark. Mane then stated that he was going to go get Urtz and Glisson said that she would get one of the employees. Marie replied that Urtz would run any employee out who attempted to come to the office with Glisson. When Urtz arrived, Superintendent Marie told him that Glisson had denied making the statement Urtz had attribut- ed to her. Thereupon Urtz asked Glisson, "Dorothy, what's the matter with you? You don't have guts enough to back up what you said in the meeting?" When Glisson denied saying what had been attributed to her by Superintendent Marie, Urtz told her that the mechanics were sitting before her and asked her to name the one she had referred to during the bargaining session. Glisson refused to name any mechanic but stated that if Superintendent Marie would walk around the plant, he could see which mechanic she had referred to. Urtz, in anger, shook his finger in her face as he told her: "Dorothy Glisson, I will not have you low rating my mechanics because I'm proud of them. . . . You have a big mouth, Dorothy Glisson, and you sure love to run it." He also told her that she was not going to run the mill. She replied that she was not trying to run it. He retorted, "You'- re damn right you're not going to run this mill. . . . If you couldn't get your sewing machine fixed out there, why didn't you come to me with the matter?" Glisson replied that she thought that was Supervisor Newton's job. At the conclusion of the conference, Urtz shook his finger near her face as he told her: "I know your kind. You better get out there to that sewing machine, you better keep your big mouth shut, you better do your job. Because I'm going to be watching you." Glisson was so upset over the interview that she had to take several nerve pills during the day and was unable to report for work the next day.T Glisson was unquestionably engaging in a protected con- certed activity when during the bargaining conference, and as a member of the bargaining committee, she expressed her view that some of the mechanics scheduled for a merit increase did not deserve an increase and also in refusing to divulge, upon instructions from the union representative, the names of any persons she had in mind.10 It has long been recognized that if an employer were free to reprimand or otherwise discipline an employee "because he resented a statement made by the employee during a bargaining con- ference, either one of two undesirable results would follow: collective bargaining would cease to be between equals (an employee having no parallel method of retaliation), or em- ployees would hesitate ever to participate personally in bar- gaining negotiations, leaving such matters entirely to their representative." Bettcher Manufacturing Corporation, 76 NLRB 526; Crown Central Petroleum Corporation v. N.L.R. B., 430 F.2d 724, 731 (C.A. 5, 1970). Much leeway must be permitted to both the employer and employees in the bargaining conference itself for each side to freely express views and take positions , even using strong and uncomplimentary language in doing so. An employee at such a conference is imbued with a feeling of collective security by reason of the presence of fellow employees or his bargaining representative and is thereby emboldened to speak his mind as an equal with his employer, without the degree of timidity he might normally feel when alone with his employer on an occasion when they disagree. When Respondent called Glisson to an accounting on the day following the bargaining conference for the protected statements made by her at that conference and questioned her about those statements, it was restraining and coercing her in her right freely to participate in bargaining confer- ences. By dealing with her as an individual in an attempt to 9 The above findings are based upon the credited and uncontradicted testimony of Glisson 10 The Union, as already noted, did subsequently approve the merit in- creases proposed by Respondent ONEITA KNITTING MILLS force her to reveal names which the Union's bargaining representative had forbidden her to reveal, Respondent was, moreover, seeking to undercut the Union's authority, con- trary to its obligation to deal with the Union. Independently of the above-mentioned coercive aspects of Respondent's conduct, however, Urtz's admonition to her that she get back to her machine, keep her "big mouth shut" and do her job and his warning that he would be watching her constituted a threat that she would be kept under surveillance and that reprisals against her would re- sult if she continued vigorously to express her views on bargaining issues as she had done on June 27. For the reasons indicated, Respondent's conduct consti- tuted interference with, restraint, and coercion of Glisson and other employees in the exercise of their rights guaran- teed under Section 7 of the Act and was in violation of Section 8(a)(1). CONCLUSIONS OF LAW 1. Textile Workers Union of America, AFL-CIO, CLC, is and has been at all times since December 23, 1971, the exclusive bargaining representative of Respondent's em- ployees in an appropriate bargaining unit consisting of all production and maintenance employees, quality control employees, fixers, and fixer-learners at Respondent's An- drews and Lane, South Carolina, plants, excluding the truckdriver, trainers, office clerical employees, guards, and supervisors as defined in the Act. 2. By unilaterally, without notice to or consultation with the employees' bargaining representative, granting wage in- creases to its employees on January 29, 1972, and changing the working hours of its knitting department employees on or about February 7, 1972, Respondent has refused to bar- gain with the Union, in violation of Section 8(a)(5) and (1) of the Act. 3. By telling its individual employees that it would never grant a checkoff of union dues to the Union, at a time when that subject was still an unresolved bargaining issue in con- tract negotiations with the Union, Respondent interfered with, restrained, and coerced its employees in the exercise of their right to bargain collectively through a representative of their own choosing, in violation of Section 8(a)(1) of the Act. 4. By coercively interrogating, reprimanding, and threat- ening to keep an employee under surveillance because she engaged in protected union activity, Respondent has inter- fered with, restrained, and coerced employees in the exer- cise of their rights guaranteed under Section 7 of the Act, in violation of Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not engage in other unfair labor prac- tices alleged in the complaint which have not been specifi- cally found herein. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, my recommended Order will require that it cease 507 and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. The record shows that after unlawfully refusing to bar- gain with the Union by taking certain unilateral action with respect to wage increases and changed working hours, Re- spondent did thereafter notify the Union and confer with it before putting into effect further wage increases and before again changing the employees' working hours. The record also shows that Respondent, following consultations with the Union, reimbursed its employees with time-and-one- half pay for the extra time they had been required to work pursuant to Respondent's unilateral increase in their work- ing time. Respondent accordingly will not be required to grant the employees any further payment for the extra time they were required to work. Nor will Respondent, of course, be required to take from its employees any wage increase which it unlawfully granted them through its unilateral ac- tion. The instances revealed in this record are not the first occasions when Respondent has been found to have failed in its bargaining obligations by acting unilaterally. The Board in 1965 found that Respondent had similarly violated its statutory bargaining obligations by taking unilateral ac- tion at its Andrews plant in regard to employee working conditions (153 NLRB 51, 54). The Board had earlier, in 1964, found that Respondent had violated Section 8(a)(5) of the Act by a general failure to confer in good faith with the bargaining representative (150 NLRB 689). In view of this background of failing to meet its statutory bargaining obli- gations and also because of the Section 8(a)(1) violations herein found which are related to Respondent's bargaining obligations, I am persuaded that the normal remedial order for the Section 8(a)(5) violations is necessary to effectuate the policies of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER ii Oneita Knitting Mills, Inc., its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Unilaterally granting wage increases or changing other conditions of employment without conferring about those matters with Textile Workers Union of America, AFL-CIO, CLC, as the exclusive bargaining representative of its employees in the following appropriate unit : All pro- duction and maintenance employees , quality control em- ployees, fixers and fixer-learners at Respondent 's Andrews and Lane, South Carolina, plants, excluding the truckdriver, trainers, office clerical employees , guards, and supervisors as defined in the Act. (b) Interfering with, restraining, and coercing employees 11 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, 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 waived for all purposes 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the exercise of their right to bargain through a representa- tive of their own choosing by telling individual employees that Respondent will not grant a union demand which is an unresolved issue at the bargaining table. (c) Coercively interrogating, reprimanding, or threaten- ing to keep under surveillance any employee because such employee has engaged in protected union activity. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive bargaining repre- sentative of the employees in the unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its Andrews and Lane, South Carolina, plants copies of the attached notice marked "Appendix." 12 Copies of the notice on forms provided by the Regional Director for Region 11, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- anly posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 11, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not herein found. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National 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"