Highland Park Manufacturing Co.

In the Matter Of HIGHLAND PARK MANUFACTURING Co. and TEXTILE WORKERS ORGANIZING CoMMIrrEE Cases Nos. C-414 and R-484.-Decided May 26, 1939 Textile Manufacturing Industry-Interference, Restraint , and Coercion-Unit -Appropriate for Collective Bargaining : no controversy as to; hourly and piece- Tate production and maintenance employees at three mills in two contiguous States, exclusive of clerical and supervisory employees and watchmen-Repre- sentatives : testimony of union officials ; no controversy as to-Collective Bargain- ing: refusal of employer to engage in ; refusal to enter into any agreement with labor organization irrespective of what terms might be proposed by or under- standing had with the organization ; refusal to reduce or merge in a signed written agreement any understanding that might be had with the organization ; refusal by reason of the foregoing position to consider sincerely requests of the organization involving material changes in existing conditions ; meaning of- Discrimination : by discharges ; allegations of, dismissed-Investigation of Repre- sentatives : petition for, dismissed in view of order to employer to bargain. Mr. Jacob Blum and Mr. Herbert O. Eby, for the Board. Mr. Thomas C. Guthrie and Mr. Whiteford S. Blakeney, of Char- lotte, N. C., for the respondent. Mr. Scam P. Brewer, of Charlotte, N. C., Mr. Alfred Udoff, of New York City, and Mr. Joseph Kovner, of Washington, D. C., for the Union. Mr. James A. Cobey, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On August 30, 1937, Textile Worrkers Organizing Committee, herein called the Union, filed charges with the Regional Director for the Fifth Region (Baltimore, Maryland) alleging that Highland Park Manufacturing Company,' Charlotte, North Carolina, herein called the respondent, had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1), (3), and (5) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. 1 This is the correct designation of the respondent. 32 N. L. R. B., No. 120. 1238 HIGHLAND PARK MANUFACTURING COMPANY 1239 On September 8, 1937, the Union filed with the Regional Director a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of the respondent and re- questing an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On October 5, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, Article II, Section 37 (b), and Article III, Sec- tion 10 (c) (2), of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and further ordered that for the purposes of hearing the two cases be consolidated and that one record of the hearing be made. Upon the charges theretofore filed, the Board by the Regional Direc- tor issued its complaint, dated November 1, 1937, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. A copy of the com- plaint accompanied by notice of hearing was duly served upon the respondent and upon the Union. Thereafter, on November 5, 1937, a notice indefinitely postponing the hearing was duly served upon said parties. In respect to the unfair labor practices the complaint alleged in substance (a) that the respondent discharged three of its employees, viz, B. Wilson on July 30, 1937, R. Ferrell on August 9, 1937, and Charles West on August 10, 1937, because they had joined and assisted the Union, thereby discriminating in regard to the hire and tenure of employment of these employees and discouraging membership in the Union; (b) that during August 1937 and at all times thereafter the respondent refused to bargain collectively with the Union as the exclusive representative of its hourly and piece-rate production and maintenance employees, employed at its three plants therein men- tioned, excluding clerical and supervisory employees and watchmen, although the Union had been designated by a majority of said em- ployees as their representative for the purpose of collective bargain- ing and said employees constituted a unit appropriate for such pur- pose; that the respondent so refused to bargain collectively, in that it refused to reduce to writing and sign an oral agreement entered into between it and the Union, refused to put into effect and/or establish as its policy the terms and conditions of said oral agreement, refused to post notices at its plants that said oral agreement had been made, and refused to permit its superintendent to orally notify its em- ployees of the terms and conditions of said agreement; and (c) that 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent intimidated, restrained, and coerced its employees and in other' ways attempted to prevent them from joining a labor organ. ization of their own choosing. On November 10, 1937, the respondent filed its answer to the com- plaint, objecting to the jurisdiction of the Board over the subject matter, because of the alleged intrastate character of its business, and denying generally the material averments of the complaint. Pursuant to notice, a hearing was held on December 9, 10, and 11, 1937, at Charlotte, North Carolina, before Lawrence J. Kosters, the Trial Examiner duly designated by the Board. The Board and the respondent appeared and were represented by counsel ; the Union participated only in the representation phase of the proceedings. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the beginning of the hearing and again at the close of all proof the respondent moved to dismiss the complaint and the proceed- ings upon the ground that the jurisdiction of the Board over it and its operations contravened various provisions of the Constitution. This motion was denied by the Trial Examiner. The respondent further moved at the close of the hearing to dismiss the complaint for insuffi- ciency of proof to support the allegations thereof. This motion the Trial Examiner likewise denied. The Board and the respondent moved at the close of their respective cases to amend the pleadings of each to conform to the proof. The Trial Examiner granted these motions to the extent that the amendments were only formal in nature. During the hearing the Trial Examiner made various rulings as to the admissibility of evidence. The Board has reviewed these rulings of the Trial Examiner, and save where inconsistent with what is set forth below, finds that no prejudicial errors were committed. These rulings, so limited, are hereby affirmed. On January 6,1938, the respondent submitted to the Trial Examiner a brief in support of its position. On February 14,1938, the Trial Ex- aminer filed his Intermediate Report, a copy of which was duly served upon all parties, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist from its unfair labor practices, that it reinstate with back pay Wilson, that it bargain collectively with the Union, and that it take certain other action to remedy the situation brought about by the unfair labor practices found. On February 26, 1938, the respondent filed with the Board its Exceptions to the Intermediate Report of the Trial Exam- iner, and on March 14 submitted to the Board a brief in support thereof. The Union filed its Exceptions on March 4 and submitted a supporting memorandum on March 9, 1938. HIGHLAND PARK MANUFACTURING COMPANY 1241 Pursuant to notice, and upon the written request of the respondent, a hearing for the purpose of oral argument was held on March 16, 1938, before the Board, in Washington, D. C. Both the respondent and the Union appeared, presented oral argument, and otherwise partici- pated in the hearing. The respondent orally moved that the record be reopened for the purpose of admitting to the record written state- ments concerning wages paid and other matters relating to B. Wilson, the employee named in the complaint. The granting of this motion was objected to by the Union, and the Board denied the motion. On March 24, 1938, the respondent renewed this motion by written com- munication to the Board. The motion thus renewed is hereby denied. The Board has considered the Exceptions of the respondent and of the Union and, in so far as they are inconsistent with the findings, conclu- sions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a North Carolina corporation with its principal place of business at Charlotte, North Carolina, is engaged in manu- facturing and selling broadcloth, shirting, and knitting yarn. It owns and operates three mills, each a separate manufacturing unit. Mill No. 1 and Mill No. 3 are located at Charlotte, North Carolina. Mill No. 2 is located at Rock Hill, South Carolina. At the time of the hearing, only five persons were employed in Mill No. 1; 2 approxi- mately 300 persons in Mill No. 2; and 750 persons in Mill No. 3. The raw materials used by the respondent in the process of manu- facturing are shipped to the mills, by rail and truck, from points in North Carolina, Mississippi, and Tennessee. About 95 per cent of the finished products manufactured by the respondent are sold and shipped f. o. b. the mills, to customers located outside the State of North Caro- lina, more than half of these products being shipped to customers in the State of New York, and some to customers in all the other States and principal cities of the United States. These sales are made through commission agents located in New York City. II. THE ORGANIZATION INVOLVED Textile Workers Organizing Committee, herein called the Union, is a labor organization affiliated with the Committee for Industrial Organization, a labor organization, and admits to membership all 2 These persons worked in the dye house of Mill No . 1. Other operations of this mill apparently were suspended in May 1937 and had not been resumed at the time of the hearing 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD persons employed in and around textile mills, excluding supervisory and clerical workers. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit The complaint alleges and the Union claims that all of the hourly and piece-rate production and maintenance employees of the respond- ent at its above-mentioned mills,3 exclusive of clerical and supervisory employees and watchmen, constituted and constitute a unit appro- priate for the purposes of collective bargaining. The respondent does not contest the appropriateness of this unit. The classifications of workers included and excluded by the allegation of the complaint accord in general with the eligibility requirements for membership in the Union, as well as with the character of organization of em- ployees extant in the textile industry throughout the Southeast.' The inclusion in one unit of employees of the three mills, despite geo- graphic considerations, conforms with principles we have stated in previous decisions.5 We see no reason for finding this unit inappropriate. We find that all hourly and piece-rate production and maintenance employees of the respondent at its above-mentioned mills, exclusive of clerical and supervisory employees and watchmen, constituted and constitute a unit appropriate for the purposes of collective bar- gaining and that said unit will insure to the employees of the re- spondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit In April 1937 the Union commenced to organize the employees of the respondent within the above unit. An official of the Union in charge of the organizing of these employees testified that prior to May 25, 1937, that is, by 10 days previous to that date, a substantial majority, 80 or 85 per cent, of the respondent's employees within the unit had applied for membership in the Union and designated it their 9 The complaint uses the word "plants." We have used the word "mill " herein as synonymous with "plants." 4 Cf. Matter of Aragon-Baldwin Cotton Mills and Textile Workers' Organizing Commit- tee, 10 N. L R. B. 959; Matter of Burlington Dyeing d Finishing Co. and Textile Workers Organizing Committee, 10 N L. R B 1; Erwin Cotton Mills Company and Textile Workers' Organizing Committee, 6 N. L. It. B. 595, 599. 3 For a collection of these cases , see Matter of Pittsburgh Plate Glass Company and Federation of Flat Glass Workers of America, Affiliated with C I. 0, 10 N . L. It. B. 1111, footnote 10. HIGHLAND PARK MANUFACTURING COMPANY 1243 representative for purposes of collective bargaining with the respond- ent. Another official of the Union in charge of these organizational activities at the time of the hearing in the States of North and South Carolina testified that in November 1937 he had counted union cards signed by members of the Union in the employ of the respondent designating the Union their representative for purposes of collective bargaining in regard to wages, hours of service, and other working conditions, and that approximately 1,000 such employees at the three mills had executed such cards. During the 6 months preceding De- cember 1937 the respondent had on its pay roll between 1,000 and 1,100 employees. The respondent has never questioned the claim of the Union that during the negotiations discussed below, or since, the Union was the exclusive collective bargaining representative of the respondent's employees within the unit found to be appropriate. Upon the foregoing facts and the record, we find that on May 15, 1937, and at all times thereafter, the Union was designated and selected by a majority of the employees in the unit above found appropriate as their representative for the purposes of collective bargaining, and pursuant to Section 9 (a) of the Act, was, on that date and at all times thereafter, the exclusive representative of all the employees in such unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain On May 25, 1937, the Union communicated by registered mail with the respondent informing the respondent that the Union had been designated by a majority of the respondent's employees as their repre- sentative for collective-bargaining purposes, and requesting a con- ference to discuss the "adjustment" of the wages, hours of service, and other conditions of employment of the employees. A few days later the Union and the respondent met. The Union was represented by an official, one Nixon; the respondent by its president, one C. W. Johnston, and its vice president and treasurer, one R. H. Johnston. After preliminaries, Nixon presented to the Johnstons for their con- sideration a proposed draft contract between the Union and the re- spondent for a term of 1 year, providing for wages, hours, and various other working conditions of employees at the respondent's mills. After brief discussion of the provisions of the proposed con- tract, the parties determined to meet again and adjourned. About 10 days later the second conference of the parties took place. In addition to the persons who had attended the first meeting there were present one Church, the respondent's secretary, and one Moore, a director. Because of the illness of C. W. Johnston, the discussion 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which followed was of short duration. Some of the principles of the proposed agreement, however, were reviewed. The meeting concluded with the statement of C. W. Johnston that he desired to have his attorney examine the proposed contract and that he would communi- cate with Nixon after the attorney had done so. On June 15 the parties again met. The Union was represented by one Brewer and one Lawrence; the respondent by the Johnstons. C. W. Johnston stated that his attorney still was examining the proposed agreement, and, in consequence, the parties did not discuss the provisions thereof. The conversation which occurred concerned what duty the Act imposed upon employers to bargain collectively. The next meeting of the representatives of the Union and of the respondent was on June 25. No concession or counteroffer regard- ing any of the matters provided in the proposed contract was made by the respondent. A sharp dispute arose as to the meaning of collective bargaining under the Act. The respondent's vice presi- dent, R. H. Johnston, took the position that the respondent had been bargaining with the Union in that in the interim its mill superin- tendent had conferred with the so-called shop committee of the Union concerning some employee grievances, such as "the dockage system in effect and the possibility of a stretch-out." To this the union representatives replied, in substance, that the Union was seeking to bargain collectively with respect to all of the matters contained in the draft contract it had submitted to the respondent, that the draft contract set forth the demands of the Union and the basis for nego- tiations. Although during the course of this discussion, one of the union representatives suggested that the provisions of the proposed contract be read, the draft contract in fact was never read nor dis- cussed during the meeting. On July 27 the parties held another meeting. The union repre- sentatives made an effort to have the provisions of the proposed con- tract discussed, but did not succeed. No counterproposals or con- cessions were made by the respondent's representatives. A witness described the meeting as "similar to ones" which theretofore had occurred. On August 4 representatives of the parties again met. A revised draft of the proposed contract, changed among other respects to reduce the percentage of wage increase originally provided and to omit a requirement that new employees be union members, was presented by the union representatives for discussion. The union representatives suggested that the provisions of the draft be con- sidered seriatim and that negotiations proceed on such basis. This suggestion the respondent's representatives rejected. They stated that the respondent, by meeting with union representatives and com- mittees whenever a conference was requested, already had bargained HIGHLAND PARK MANUFACTURING COMPANY 1245 collectively with the Union. Thereupon another dispute followed as to the meaning of collective bargaining. When it appeared that the respondent's representatives would not discuss the individual provisions of the proposed contract, the union representatives pre- pared to leave, declaring that negotiations upon the terms of an agreement were apparently impossible and resort would have to be had to the Board for a remedy. The respondent's president then stated that he and his associates would consider the proposed contract. The union representatives, accordingly, proceeded to a reading of the provisions. The first paragraph of the draft involved the fixing of a term for the operation of the contract. The respondent's rep- resentatives were unwilling to accept such a provision. However, there was little discussion upon the subject, for the union representa- tives were anxious to reach and have considered the more important substantive provisions. The second paragraph, setting forth that the parties would preserve harmonious relations and protect "the inter- est of the Textile Industry" occasioned little comment. The discus- sion then turned to the section providing for a workweek of 40 hours, and a workday of 8 hours, and for an increased rate of compensation for overtime work. The respondent's president, C. W. Johnston, stated that the respondent already was operating on a 40-hour week, 8-hour day basis and proposed to continue doing so, that its employees were not and would not be required to work overtime, that, consequently, there was no need for an agreement upon these matters.° With respect to the provision for observance of Labor Day, Thanksgiving Day, Christmas Day, and Fourth of July, and the payment of com- pensation at the rate of "time and one-half" for any work performed on those days, the respondent's representatives stated that the re- spondent, as a matter of practice, had always granted its employees holidays, that it had no objection to allowing these holidays if the "employees wanted them," but it "didn't care to agree to the section ... as a stipulation to be put into effect as a regular thing." A like position was taken by the representatives regarding a provision prohibiting the employment in the mills of any person under 16 years of age. They contended that the State law prohibited such employment,' that the respondent was not employing persons below e At the hearing a witness for the respondent, its secretary, testified that the re- spondent's representatives "agreed" to the 40-hour week , 8-hour day provision of the pro- posed contract , and "agreed" not to require oveitime work of its employees. It is apparent from an examination of all the testimony of the witness , in the light of the entire record, that this use of the word "agree" In this connection , as well as the use thereof elsewhere in his testimony, was not in the sense of a legally enforceable contractual undertaking but of a mere understanding terminable at will. 7 While the law of North Carolina apparently bars the employment of persons under 16 years of age ( North Carolina Laws 1937 , Ch. 317, effective March 22, 1937 ), the law of South Carolina is not as broad as the provision of the proposed contract ( South Carolina Code Ann . [Michie, 1932 ] Secs. 1469 , 1470, 1473). The mills covered by the contract were in both States 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that age and would not do so, that, therefore, an agreement concern- ing that matter was unnecessary. Similarly, a provision for settling through arbitration questions concerning "work loads, proper dis- tribution, or reclassification" was set aside, because "there is no use trying to find trouble and arbitrate some conditions that don't exist." Provisions for an increase in wage rates, for a "preferential shop" and check-off, were flatly rejected. Concerning the requested wage increase, the respondent's representatives contended that "competition would not allow us to raise wages." Throughout the August 4 conference, the respondent's representa- tives stressed the fact that while the respondent was always ready to confer with union committees on employee grievances, the respondent had no intention of entering into an agreement or signing a contract with the Union. The respondent's president, C. W. Johnston, was emphatic in this. In connection with a provision of the proposed con- tract embodying the principle of seniority for increases and reduc- tions of working force, a principle which the respondent's repre- sentatives asserted the respondent had followed in the past and would adhere to in the future, Johnston was expressly asked by the union representative, Lawrence, "Will you agree to this seniority pro- vision?" Johnston replied, "I am not going to agree to a thing." At the hearing Johnston testified that his reply to this question was, "I would not sign anything"; that "Mr. Brewer and Mr. Lawrence [union representatives] insisted on signing a contract which I stated I would not sign it because the law didn't require me to do it and I had no idea of signing a contract." While Johnston's testimony in terms refers only to the signing of a collective contract and not to the making of an agreement, we are satisfied, and find, upon the fore- going facts and the record, including the circumstances mentioned below, that the respondent had no intention whatsoever of entering into any collective agreement, written or oral, with the Union, and did so inform the union representatives. At what proved to be the end of the conference, the union repre- sentatives, "for the purpose of determining . . . whether or not it was possible to bargain at all" with the respondent, inquired of Johnston whether the respondent would be willing to make an oral agreement with the Union covering merely some of the provisions of the proposed contract, "enough of [the Union's] ... requests" to satisfy both the Union and the respondent, and then to post in the respondent's mills a written statement of the terms thereof as a "statement of policy," 8 signed by Johnston. The union representa- s The so-called "statements of policy," as these statements have come to be known, are written statements setting forth provisions in respect to wages, hours of service, and other working conditions of employees which the employer as a matter of policy but not as a matter of contractual obligation , is willing to observe . See Matter of Servel, Inc. HIGHLAND PARK MANUFACTURING COMPANY 1247 tives indicated, as an inducement to such action, that the Union would be willing to have the statement unsigned by it.9 Johnston replied that the respondent would make no agreement with the Union, even under those conditions. The union representatives then asked whether the respondent would do so if the respondent's superintendent rather than Johnston were to sign the statement of policy. Johnston's reply was again in the negative. Finally, he was asked whether the respondent would make such an agreement and merely have its superintendent read to the employees- an unsigned written statement thereof as a statement of policy for the ensuing year. Johnston answered that the respondent would not do so, and the con- ference thereupon ended. On August 15 another meeting was held. It was attended by one Nance, southern director of the Union, who attempted without suc- cess to persuade Johnston "to agree to bargain." On August 30 the Union filed its charges herein alleging among other things, that the respondent had refused and was refusing to bargain collectively in good faith with the representatives of its employees. On September 14 a strike occurred at Mill No. 3 which was terminated on October 25 pursuant to a strike settlement between the respondent and the Union. The settlement related only, as the parties understood, to a determination of the strike controversy and not of the matters arising prior to the strike upon which the charges were based b0 The attitude and position of the respondent toward collective bar- gaining with the Union may be epitomized as follows: The respondent recognized the Union as the exclusive collective bargaining repre- sentative of its production and maintenance employees; it was willing to meet with the Union whenever the Union wished; it was ready to confer about employee grievances. Furthermore, with respect to requests of the Union which involved no substantial changes in exist- ing conditions, the respondent was willing to give assurance that it intended no change in such conditions." This was its response to and United Electrical, Radio and Machine Workers of America, Local No. 1002, 11 N. L. R B. 1295; Matter of Harnischfeger Corporation and ,Amalgamated Association of Iron, Steel & Tan Workers of North America, Lodge 1114, 9 N. L R B. 676. 'That the omission of such identification may be a material consideration to a labor organization, see Matter of Harnischfeger Corporation and Amalgamated Association of Iron, Steel if Tin Workers of North America, Lodge 1114, 9 N. L. it. B. 676. See also National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U. S. 261, 267. 10 As to the force of a strike settlement upon pending charges where the Board is not a party to the settlement and has not participated therein, see Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1139, 10 N. L R B 33. u The respondent was not always ready to do this. As heretofore set forth, the union representatives were first able to obtain a review of the provisions of the proposed agree- ment at the August 4 conference, some 8 weeks after collective bargaining had originally been requested, and after the union representatives had found it necessary to state that resort would have to be had to the Board if the respondent continued in its unwillingness to consider the individual provisions. 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD r the provisions of the proposed contract involving the existing work- week, holidays, employment of minors, and seniority. However, the respondent was adamant in its stand that it would not enter into any contractual relationship with the Union irrespective of what terms the Union proposed or what understanding was reached, that it would not render legally obligatory any assurance given or understanding had with the Union, nor would it memorialize by or integrate into a written instrument, signed or unsigned, any such assurance or under- standing, or any agreement entered into with the Union. In view of this resolve of the respondent, and in the light of the entire record, we are convinced that the respondent had no intention to consider sincerely requests of the Union involving material departures from existing conditions. Collective bargaining, as contemplated by the Act, is a procedure looking toward the making of a collective agreement by the em- ployer with the accredited representatives of its employees touching wages, hours of service, and other working conditions of the em- ployees.12 The duty to bargain collectively, which the Act imposes upon employers, has as its objective the establishment of such a contractual relationship.- We have held that this duty is not limited to recognition of the employees' representatives qua representatives, or to a meeting and discussion of terms with them. The duty en- compasses an obligation to enter into discussion and negotiation with an open and fair mind and with a sincere purpose to find a basis of agreement concerning the issues presented,14 to make contractually binding the understanding upon terms that are reached,15 and, under 12ilfatter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No. 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, American Federation of Labor, 10 N L. R B 963, Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge Nos 64. 1010, and 1101, 9 N. L. R. B. 783; Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 159, 2 N. L. R. B 39. In Consolidated Edison Company of New York, Inc, at al v. National Labor Relations Board, et al , 305 U. S. 197, 236, the United States Supreme Court said : "The Act contemplates the making of contracts with labor organizations . That is the manifest objective in providing for collective bargaining " In National Labor Relations Board Y. The Sands Manufacturing Company, 59 S. Ct. 508, 513-14, that Court said : "The legislative history of the Act goes far to indicate that the purpose of the statute was to compel employers to bargain collectively with their employees to the end that employment contracts binding on both parties should be made." 19 See cases cited in footnote 12. '4 Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N. L. R. B 461, affirmative order enforced in Globe Cotton Mills v. National Labor Relations Board, 103 F. (2d) 91 (C. C. A 5) ; Matter of S L Allen d Company, Inc, a Corporation and Federal Labor Union Local No. 18526, 1 N. L. R. B. 714, order enforced (C. C. A. 3) C. C. H. Labor Law Service, par. 18589; Matter of Knoxville Publishing Company and Amer roan Newspaper Guild, The Knoxville Newspaper Guild, 12 N L R. B. 1209 15 Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 159, 2 N. L. R. B. 39; Matter of Sigmund Freisanger, doing business under the name and style of North River Yarn HIGHLAND PARK MANUFACTURING COMPANY 1249 ordinary circumstances, to reduce that obligation to the form of a signed written agreement if requested to do so by the employees' representatives.1' Manifestly, the respondent has not fulfilled its duty to bargain collectively with the Union. The attitude and position which its representatives assumed at the August 4 conference clearly show that the respondent was not then negotiating, nor did it intend to negotiate, in good faith with the representatives of its employees. Although good faith demanded that the respondent, in entering the conference, accept fully the procedure of collective bargaining the respondent was not ready to do this. From the outset its intention and purpose were to make no binding agreement with the Union, irrespective of what terms were proposed or understanding reached.17 Equally it was determined, regardless of the request of the Union therefor, to refrain from making or signing a written memorial of any agreement reached with the Union, or from integrating into a signed written agreement any understanding had with the Union.18 Dyers and Textile Workers Organizing Committee, 10 N L. R B. 1043 ; Matter of Harry Schwartz Yarn Co., Inc. and Textile Workers Organizing Committee, 12 N. L. R B 11,19 See also Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge Nos . 64, 1010, and 1101, 9 N. L. R. B. 783. 16 Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No 825, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, American Federation of Labor, 10 N L. R. B 963. Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge Nos. 64, 1010, and 1101, 9 N. L R B. 783. 'T In Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N. L R. B. 461, 467 , the Board stated : "If the employer adheres to a preconceived determination not to enter into any agree- ment kiith the representatives of his employees , . . . then his meeting and discussing the issues with them, however frequently , does not fulfill his obligations under the Act." Again in Matter of Harnischfeger Corporation and Amalgamated Association of Iron, Steel if Tin Workers of North America, Lodge 1114, 9 N. L. R. B. 676, the Board said: The respondent contends that collective bargaining is in some manner different from normal business relationships , in that it does not connote the negotiation of binding agreements . . . An essential purpose of collective bargaining is to stabilize labor relations , so that workers may deal as business equals with their employers as to their terms and conditions of employment . . . . And it seems to us that by the plain meaning of the term `collective bargaining,' a willingness to reach a bargain or binding agreement is essential if an employer is to carry out the duty imposed by the Act . This is not to say that an employer is bound to accept whatever terms the union proposes to include in the agreement There is no obligation to agree to any particular terms; but only to negotiate on the terms in good faith in an effort to make an agreement." 18 Matter of Inland Steel Company and Steel Workers Organizing Committee and Amal- gamated Association of Iron, Steel, and Tin Workers of North America, Lodge Nos. 64, 1010, and 1101, 9 N. L. R . B. 783. In this case it was said : "We regard it as well settled that collective bargaining in good faith requires a willing- aiess to consummate the negotiations, if successful , by entering into some sort of an agreement. And we hold that under circumstances such as are presented here, it is the employer 's obligation to accede to a request that understandings reached be embodied in a signed agreement . The present controversy is projected on the background of a long struggle by labor organizations to attain full recognition of their right to recognition as collective bargaining agencies with a dignity equal to that of the employers with whom they deal. We take judicial notice of the fact that today thousands of employers have accorded unions their right to normal contractual relationships , and that, as is shown by the record, the signed collective bargaining agreement is the prevailing practice. From 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We see no persuasive reason, nor has the respondent advanced any, for its unwillingness to enter into any signed agreement with the Union.19 Lastly, as we have found, the respondent had no sincere desire to explore the possibility of reaching even an understanding upon those requests of the Union which involved material changes in existing conditions.20 It first undertook consideration of the provisions of the proposed contract after the union representatives threatened resort to the Board. The provision for increased compensation for overtime work on workdays and holidays was rejected on the bare assertion that its employees would not be required to work overtime. As a matter of fact, subsequent to August 4 the employees were required to work overtime for which they were compensated at the regular rate. Throughout, the action of the respondent's representatives on issues was dominated by its intent to make no contract. We find that the respondent by refusing on August 4, 1937, and at all times thereafter, to enter into any agreement with the Union irre- spective of what terms might be proposed by or understanding had with the Union'21 to reduce to or merge in a signed written agreement any oral understanding or agreement that might be had with the Union, and/or to consider sincerely the requests presented by the Union, as afore-mentioned, did on said August 4, 1937, and at all times thereafter refuse to bargain collectively with the Union as the representative of its employees in the appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of the viewpoint of harmonious and cooperative labor relations, as well as of sensible business practice, the importance of embodying understandings in signed agreements is obvious." 1B In Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 159, 2 N. L. R. B. 39, 53-54, the Board said : "The respondent presses upon us its willingness at all times to receive and discuss the collective demands presented to it and to state its decision on those demands. But it asserts that it is enough that any acquiescence in those demands be made tangible by their adoption as part of its business policy and argues that it is not required to enter into an agreement embodying the understanding reached. . . . The respondent's statement simply means that its policy is not to enter into agreements with labor organiza- tions representing its employees . . Such an attitude grows out of an antipathy toward organization of workers and a refusal to concede that the policy of the United States shall be the policy of the respondent. It is designed to thwart and slowly stifle the Union by denying to it the fruits of achievement. ... the frequency with which the old Board was compelled to denounce such a policy on the part of employers indicates its potency as a device subtly calculated to lead to disintegration of an employee organization." 10 In Globe Cotton Mills v. National Labor Relations Board, 103 F (2d) 91 (C. C. A. 5), the court stated : . . there is a duty . . . to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of labor, and if found to embody it in a contract as specific as possible, which shall stand as a mutual guaranty of conduct, and as a guide for the adjustment of grievances." Y1 As stated above the strike settlement which the respondent entered Into,was limited in objective to the termination of the strike, and left unlouched the matter of the respondent's bargaining collectively with the Union in regard to the various requests of the Union presented prior to the strike. The record shows that the respondent even refused to sign a written statement of the strike settlement. HIGHLAND PARK MANUFACTURING COMPANY 1251 employment. We also find that by such refusal the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act.22 B. The allegedly discriminatory discharges B. Wilson was discharged by the respondent during the week of June 12, 1937, and after reemployment again was discharged about July 30, 1937. He had been employed as a weaver in Mill No. 3 since May 1, 1936. The record establishes that Wilson was an active union member and that his affiliation and activities were known to the re- spondent. At the time of the first discharge, the respondent gave Wilson a written statement of reference saying that "his production has been good and his seconds have been low." He was reemployed upon intervention of the Union after threat was made that a charge would be filed with the Board alleging a discriminatory dismissal of Wilson. The respondent contends that it discharged Wilson on both occa- sions because of the high number of "seconds," that is, defective work, which he produced. The record shows that Wilson's work compared unfavorably with the work of other weavers generally and of the operator employed at Wilson's loom on the succeeding shift. During the period in which the discharges took place, the respondent was con- ducting a campaign to reduce the amount of "seconds" occurring at the mills, and weavers other than Wilson, who did not have as poor a work record as he did, were then discharged for incompetency. While the evidence yields a suspicion that Wilson was discharged for discriminatory causes, we find the proof insufficient to establish that fact. The statement of reference given him, we are convinced, was simply a matter of courtesy, and his reinstatement thereafter at- tributable to the threat made and the recommendation outstanding. Charles West was discharged by the respondent on August 10, 1937. His union membership and activities likewise were known to the respondent. The respondent states that it discharged West because he absented himself from work without excuse. The Trial Examiner found that the respondent did not discharge West because of his mem- 'a we are aware that a variance exists between the findings we have made and the complaint. In the brief submitted by the respondent to the Board, the respondent adverted to a similar "inconsistency" between the Trial Examiner 's findings and the complaint. However, the respondent in its brief, claimed no surprise or prejudice because of the variance between the pleading and proof , nor that it was deprived of an opportunity to present what evidence it wished at the hearing on the matters shown and issues raised by the proof adduced against it. It is plain from the respondent 's answer, the case it submitted , and the briefs to the Trial Examiner and the Board, that the respondent was apprised by the complaint of the transactions or occurrences involved upon which the unfair labor practices have been found . It is equally evident that the respondent made what proof it ' wished and otherwise fully , litigated the -issues herein determined. see, - National Labor Relations Board v. Mackay Radio & Telegraph Company, 304 U. S. 333, 349-50. 169134-39-vol 12-80 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership and activities in the Union. We agree with the Trial Exam- iner's finding. R. Ferrell was discharged on August 9, 1937, by the respondent.- We are satisfied that his union membership and activities also were known to his superiors. At the time of his discharge, Ferrell was informed that the reason therefor was the poor condition in which he had left his frames at the end of his preceding shift. At the hear- ing the respondent sought to show that other reasons as well motivated the discharge. - We do not find that the evidence establishes these other alleged reasons. However, it is shown that Ferrell did leave his frames in such a poor condition that the work of two men and a boy in addition to the man regularly assigned to the frames was required to get the frames in order, that a delay of over an hour and one-half occurred before production could be resumed. Upon this record we agree with the Trial Examiner that Ferrell was not dis- charged by reason of his union affiliation and activity. We find that the respondent has not engaged in any unfair labor practice with respect to B. Wilson, Charles West, and R. Ferrell, or any of them, as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III A above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.23 V. THE REMEDY It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist from cer- tain activities and practices in which we have found it to have en- gaged, and in aid of such order and as a means of removing and avoiding the consequences of such activities and practices, that the respondent be directed to take certain affirmative action, more par- ticularly described below. We have found that on August 4, 1937, and at all times thereafter the respondent refused to bargain collectively with the Union as the representative of certain of its employees. Accordingly, we shall order the respondent to cease and desist from this unfair labor prac- tice, and upon request, to bargain collectively with the Union as the exclusive representative of all hourly and piece-rate production and maintenance employees of the respondent at its above-mentioned 21 National Labor Relations Board V. Fa :nbtatt et at., 59 S. Ct. 669, and cases there cited. HIGHLAND PARK MANUFACTURING COMPANY 1253 mills, exclusive of clerical and supervisory employees and watchmen, in respect to wages and other working conditions, and if an under- standing is reached on any of such matters, to embody such under- standing in a signed agreement, if requested to do so by the Union. We also shall order the respondent to take certain other action more particularly set forth in the Order. VI. THE PETITION In view of the findings in Section III above as to the appropriate unit and the designation of the Union by a majority of the respond- ent's employees in the appropriate unit as their representative for the purposes of collective bargaining, it is not necessary to consider the petition of the Union for investigation and certification of repre- sentatives. Consequently, the petition will be dismissed. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Organizing Committee is a labor organiza- tion, within the meaning of Section 2 (5) of the Act. 2. The hourly and piece-rate production and maintenance em- ployees of the respondent at the respondent's above-mentioned mills, exclusive of clerical and supervisory employees and watchmen, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Textile Workers Organizing Committee was on May 15, 1937, and at all times since has been, the exclusive representative of all em- ployees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on August 4, 1937, and at all times thereafter, to bargain collectively with Textile Workers Organizing Committee, as the exclusive representative of all its employees in such unit, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. By discharging R. Ferrell, B. Wilson, and Charles West, the respondent did not engage in any unfair labor practice, within the meaning of Section 8 (1) or (3) of the Act, as alleged in the complaint. 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that High- land Park Manufacturing Company, Charlotte, North Carolina, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Or- ganizing Committee as the exclusive representative of all its hourly and piece-rate production and maintenance employees employed at the respondent's above-mentioned mills, exclusive of supervisory and clerical employees and watchmen ; (b) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Textile Workers Or- ganizing Committee, as the exclusive representative of all its hourly and piece-rate production and maintenance employees employed at the respondent's above-mentioned mills, exclusive of clerical and supervisory employees and watchmen, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached on such matters, embody said un- derstanding in•a signed agreement, if requested to do so by Textile Workers Organizing Committee; (b) Post immediately and keep posted for a period of at least sixty (60) consecutive days from the date of posting, throughout its mills, copies of this Order, together with a statement that it will abide and comply therewith; (c) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent, by discharging R. Ferrell, B. Wilson, and Charles West, engaged in unfair labor practices, within the meaning of Section 8 (1) and (3) of the Act, be, and the same hereby is, dismissed. AND IT IS FURTHER ORDERED that the petition for certification of representatives filed by Textile Workers Organizing Committee be, and the same hereby is;; dismissed.