The Windsor Manufacturing Co.

In the Matter of JOHN J. OUGHTON, CHARLES T. OUGHTON, BERTRAM E. OUGHTON, AND ROBERT B. OUGHTON, INDIVIDUALS AND CO- PARTNERS TRADING AS THE WINDSOR MANUFACTURING COMPANY and TEXTILE WORKERS ORGANIZING COMMITTEE (C. I. 0.) Case No. C-1266.Decided February 9, 19/6 -Woolen Textile I'ndustri/-I'nterfe c nce, Restraint, and. Coercion: anti-union speech and statements ; threat to shut down plant if employees joined and remained members of union; removal of part of plant equipment ; statements of supervisory employees favoring inside organization and opposing outside organization-Unit' Appropriate for Collective Bargaining : production em- ployees,' excluding executives, supervisors, and clerical help, no controversy as to-Strike: called as result of refusal to recognize; consent election agree- ment, to settle strike and recognize union if selected by majority-Representa- tives: proof of choice : result of consent election ; subsequent defections due to unfair labor practice cannot operate to change-Collective Bargaining : re- fusal of : by failing to negotiate in good faith ; by refusing to grant conferences when requested ; wage reduction and increase of hours without consulting or notifying union; refusal to embody understaridings reached with union in signed agreement ; counterproposals, failure or refusal to make-Remedy: ordered to bargain with union and to embody understandings in written signed agreement. Mr.,Geoffrey, Cunniff, for the Board. Montgomery c McCracken, by, Mr. Charles A. Wolfe, of Phila- delph,ia,, Pa., for the respondent. •Mr.'•Gilbert J. Kraus and Mr. Isadore Katz, of Philadelphia, Pa., for the Union. Mr. John F. E. Hipped, of Philadelphia, Pa., for the Committee of K employees. 'Mr. Emanuel Butter, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Workers Organizing Committee (C. I. 0.), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsyl- 20 N. L. R. B., No. 31. 301 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vania), issued its complaint dated February 28, 1939, against John J. Oughton, Charles T. Oughton, Bertram E. Oughton, and Robert B. Oughton, individuals and co-partners trading as Windsor Manu- facturing Company, herein called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hearing, were duly served upon the respond- ents and the Union. With respect to the unfair labor practices the complaint alleged, in substance, that the respondents (1) deprived their employees of the rights guaranteed in Section 7 of the Act, and (2) on or about January 19, March 4, June 24, July 12, September 30, and November 28, 1938, and at all times thereafter, refused to bargain collectively with the Union in that they refused to meet or bargain in good faith with the Union as the exclusive representative of their employees in an appropriate unit, consisting of the respondents' production employees, exclusive of executives, supervisors, and clericals ,em- ployees, although the Union represented a majority of such employees for the purposes of collective bargaining. Thereafter, the respond- ents filed their answer, admitting that they are engaged in interstate commerce but denying that they had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held in Philadelphia, Pennsyl- vania, on March 9, 10, and 13, 1939, before Howard Myers, the Trial Examiner duly designated by the Board. The Board, the Union, and the respondents were represented by counsel and participated in the hearing. 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 outset of the hearing, counsel for a committee of 5 em= ployees, herein called the Committee, claiming to represent 145 employees, whose signatures purported to be affixed to a written authorization, filed a petition for leave to intervene.' Objection to the intervention was made by 'counsel for the Board and the Union on the ground that the Committee was not a proper party to the proceeding. The Trial Examiner denied the petition. Thereupon, counsel for the Committee moved to intervene on behalf of the indi- viduals listed in the authorization. This motion was likewise denied. At the close of the hearing, counsel for the Board and the respond- ents moved to amend the pleadings to conform to the proof. These 1 The petition and the authorization were received in evidence as Board Exhibit No. 29. Neither the petition nor the authorization purports to designate a person or labor organiza- tion as bargaining representative. THE WINDSOR MANUFACTURING COMPANY 303 motions were granted by the Trial Examiner. At the conclusion of the Board's case the respondents' counsel moved to dismiss the com- plaint. The Trial Examiner denied the motion. The motion to dismiss was renewed at the end of the hearing. The Trial Examiner reserved decision thereon and denied the motion in his Intermediate Report. The Trial Examiner, at the hearing and in his Intermediate Report, made various rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings of the Trial Examiner are hereby affirmed. The respondents and the Union filed briefs with the Trial Examiner. On April 25, 1939, the Trial Examiner filed -his Inter- mediate Report, in which lie found that the respondents had interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act and that the -respondents had refused to bargain collectively with the Union as the representative of the respondents' employees in an appropriate unit, consisting of the respondents' production employees, exclusive of executives, supervisors, and clerical employees. He recommended that the respondents be ordered to cease and desist from such practices and to bargain collectively with the Union upon request. On May 5, and on May 6, 1939; respectively, the respondents and the Committee filed exceptions to the Intermediate Report. Briefs were filed with the Board by the respondents, the Committee, and the Union. On July 31, 1939, the Union filed a motion, praying, in substance, that the Board substitute the name "Textile Workers Union of Amer- ica, C. I. 0." for the name "Textile Workers Organizing Committee, C. I. 0." On October 5, 1939, the Board issued and duly served upon the parties a notice that on October 16, 1939, unless sufficient cause to .the contrary should then appear, it would effect the substitution prayed for wherever the name "Textile Workers Organizing Committee, C. I. O." may appear in these proceedings. On October 7, 1939, the respondents filed objections to the Union's motion. On October 17, 1939, pursuant to requests therefor by the respondents and the Com- mittee and notice to them and to the Union, a hearing was held before -the Board in Washington; D. C., for the purpose of oral argument on the merits of the case and on the Union's motion of July 31, 1939, and the respondents' objections thereto. The respondents, the Com- mittee, and the Union were represented by counsel and participated in the argument. No sufficient cause to the contrary having been shown, 'the motion of the Union to substitute the name "Textile Workers Union of America, C. I. 0." for the name "Textile Workers Organizing Committee, C. I. 0." wherever it may appear in these proceedings is hereby granted. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has considered the exceptions to the Intermediate Report and save as they are consistent with the findings, Conclusions, 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 'RESPONDENTS The respondents, John J., Charles T., Bertram E., and Robert B_ Oughton are brothers and copartners trading as Windsor Manufactur- ing Company. They are engaged in the manufacture and sale of worsted cloth and have their office and plant in Philadelphia,, Penn- Sylvania. The principal raw material used by the respondents con- sists of worsted' warn, nearly all of which is shipped to their plant from points outside the State of Pennsylvania. During the period from March. 1937 to February 1938, the respondents manufactured 439,930 yards of worsted cloth, valued at $890,748.06, of which 80 per cent was shipped by the respondents to points outside the State of Pennsylvania. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, C. I. 0., is a labor organization affiliated with the Congress of Industrial Organizations, admitting to its membership the production employees* of the respondents, exclusive of executives, supervisors, and clerical employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion During May 1937 an organizational campaign among the respond- ents' employees was begun by the Union by the distribution of circulars to the respondents' employees outside the plant. At lunch hours and during the change of employees between the day and night shifts, the Union used loudspeakers for the purpose of encouraging the respondents' employees to join the Union. The respondents assert that the conduct of the Union in connection with its membership drive was "outrageous"; that it resorted' to-misrepresentatioIr of the working conditions in the plant; that derogatory remarks were made of the respondents and their foreman ; and that the employees were made "nervous" with resultant curtailment of production.2 2 Witnesses for the respondents testified that the union organizers stated that the re- spondents paid "starvation wages" ; that the respondents and their foremen "drove" the employees ; that the respondents were replacing their employees with children at lower wages ; that the Union would compel the respondents to sign a closed-shop contract ; and that the respondents played golf, "going south in the winter time, going north in the summer." THE WINDSOR MANUFACTURING COMPANY 305 Contemporaneously with this campaign of the Union to organize the respondents' employees, the respondents and their supervisory em- ployees evidenced their hostility to the Union by making anti-union statements to the respondents' employees and by threatening a shut- down of the plant if the employees joined the Union or persisted in their union membership. In. June 1937, for the, asserted,.purpose of combatting the effects of," the Union's campaign, the respondents called a meeting at the plant of all their employees. Bertram Oughton, one of the respondents, 'testified as follows regarding a speech he then made to the assembled employees : I told.the workers that I knew that organizing was going on, and that they had heard what had been said, and I didn't think it was necessary for me to tell them what was the truth of those statements, and what was not the truth ; that so many of them had worked there for so many years that they knew which were the truth, and which were not the truth. I' said that it, had been stated. that I had made a statement, which I didn't authorize, that under certain conditions, the plant would be shut down. I said, "I want to correct this statement in this manner : That I didn't authorize the statement, that we hoped it will not be shut down, but," I said, "from the nature of the remarks made and the attitude of some of these people," I said, "we could not sign a contract with an organization which was so thoroughly irrespon- sible as they had proved to be, but," I said, "you have a perfect right to join any union you see fit to join," and they distinctly understood that. [Italics supplied.] I told them that we paid them as high wages as we could, as the competition would allow us to pay, and we had had no com- plaints of any nature brought to our attention as far as labor was concerned and I hoped that the plant would continue to oper- ate, that we had plenty of work and we wanted to finish that work for both the sake of the employees and the sake of our own organization. [Italics supplied.] Emma Renn, an employee of the respondents, testified, as did Edward Trainor, who was an employee at the time in question, that Oughton stated at this meeting, inter alia, that he knew that the Union was organizing the employees and that after it obtained a majority it would ask the respondents for a contract; that the respondents would never sign a contract; and that, "You think and have been told that this does 'not mean anything, that there won't be any sort of tie-up, or won't be any. shut-down. Well, there will be a tie-up and it will be a good`long tie-up." - Bertram Oughton,although called as a wit- 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness after Renn and Trainor had testiled, did not deny the statements attributed to him by these witnesses, and we find that the statements were made as testified to by Renn and Trainor. A few days after the meeting of all the employees, John Wiley,' a foreman 4 in the respondents' plant, during working hours called to- gether the 12 employees in the winding department and, according to Renn's testimony, stated to them that Now, it looks as though a majority started up with the C. I. O. I don't know whether you have signed up or you haven't, but the question is do you want to work, go along and work under the conditions; whether or not you have signed up with the C. I. 0., disregard the fact, and we will go along and work as we are, or you have this place shut down tight . . . and, in the meantime, if you haven't signed up, don't. Renn testified that, shortly prior to the speech of Bertram Oughton, Wiley had said to her and another employee, during their lunch hour, "that as foreman of the Windsor Manufacturing Company.* didn't have the right to do what he was about to do, but as an employee of Windsor Manufacturing Company he did have the right and he was placing himself in that position" and "he was going to arrange that we form a union of our own, -in order to drive away any outside organi- zation." Trainor testified that during the same month, Wiley asked him to be one of five persons needed to obtain a charter for an inside union. George Gehring 5 testified that William Robinson, the respondents' foreman of the weaving department, during June 1937 told him "that he [Robinson] thought that we all had worked there so long that we should all agree together and see if we couldn't drive the C. I. O. away from the place" and, on many other occasions, that " ... he did not understand why we wanted an outside organization, that he seemed to think everything was going along all right in the shop." Elmer Stevenson, one of the respondents' employees, testified that Wiley,'during the summer of 1937 and several times in 1939, asked him why he belonged to the Union, and that Wiley often stated to him during the 4-month period preceding the hearing herein that the Union consisted of "a bunch of Communists and Reds." Stevenson also testified that John Shuster, another foreman of the respondents, on two or three occasions in February 1939, told him that "if the Union did not let the place alone here they [respondents] are going to move 3 Referred to in the record as John whilie. 4 The respondents' foremen have the right to hire and to recommend the discharge of employees.' 5 Gehring, a union member, had been employed by the respondents for approximately 19 years. THE WINDSOR MANUFACTURING COMPANY 307 south." Trainor further testified that several times during the months of December 1938 and January and February . 1939, Wiley told him that the respondents' plant was going to be closed and moved south unless the employees "drop this outside union." ' Wiley, Robinson, and Shuster were not called as witnesses at the hearing and the statements attributed to them, set forth above, were not denied . The respondents offered no explanation for their fail- ure to call these foremen to testify . Under these circumstances, we, believe the testimony of Renn, Trainor, Gehring, and Stevenson, con- cerning the foremen's statements to be true and we find that those statements were made. The speech of Bertram Oughton was patently an appeal to the employees not to join the Union. While stating that the employees had a right to join any union , he nevertheless denounced the only labor. organization organizing the respondents ' employees by declaring it to be "thoroughly irresponsible" and further discredited it by indi catin`g that no contract would be signed with it. He also indicated that further organizational efforts and attempts to secure recognition would result in a shut-down . The respondents contend in their brief "that the `speech' of Bertram Oughton and such statements as may have been made by the foreman were the result of the unfair and out- rageous method adopted by the Union in its efforts to unionize this plant." 6 Unquestionably, Oughton had the right to defend the char- acter of the respondents and the working conditions in the plant, but in making anti-union statements at the same time in the guise of such defense, he clearly interfered with, restrained , and coerced the em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. The statements made by Foremen Wiley, Robinson, and Shuster further indicate the respondents' anti-union animus. While the re- spondents claim that they repeatedly warned their foremen against any violation of the Act, they took no effective means to stop the. repeated violations of the Act by their foremen . Furthermore, with respect to the acts of the foremen , the doctrine of respondeat superior applies, and the respondents are responsible for the actions of their foremen in this respect.7 We find that by the above-mentioned state- ments of their foremen, the respondents interfered with, restrained, 6 The respondents appear to be referring to the statements of the union organizers made during the loudspeaker campaign in the vicinity of the plant. P Swift & Company, a Corporation v. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10), enf'g Matter of Swift & Company, a Corporation and Amalgamated. Meat Cutters and Butcher TVorkmen of North America.. Local No. 6111, and United, Packing House Workers Local Industrial Union No. 300 , 7 N. L. R. B . 269 ; National Labor Relations Board v. The A. S. Abell Company, a Corporation, 97 F. (2d) 951 (C. C. A. 4), 1938, enf'g Matter of The A. S. Abell Company, a Corporation and International Printing and Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen's Union, No . 31, 5 N. L. B. B. 644. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. The threats of shut-down and prospective loss of employment in the event of unionization, made at the very time that the Union was active in organizing the employees, showed the respondents' un- mistakable hostility to the Union and to the self-organization of their employees. By expressing such hostility and threats, the respondents interfered with, restrained, and coerced their employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. In the fall of 1938, at a time when the Union was seeking unsuc- cessfully 8 to negotiate a contract with the respondents and attempt- ing to adjust with them disputes concerning the alleged discrimina- tory lay-off of union members, 24 looms and equipment incidental thereto from the respondents' plant were shipped by the respondents to a plant in Athens, Georgia, which had been opened a short time previously by John Oughton, one of the respondents. The looms were never replaced in the respondents' plant. John Oughton's Athens plant is, like the respondents', engaged in the manufacture of worsted cloth. Both plants receive their orders for the manufacture of cloth from the same New York selling agency, John Oughton Sons, a partnership composed of the four respondents and one John H. Riley. Robinson, formerly a foreman in the respondents' Phila- delphia plant, is now the assistant superintendent of the plant in Athens, Georgia. At the hearing the respondents failed to show the reason for the transfer of the equipment to the southern plant. While it is true that the removal of the 24 looms and incidental equipment did not close the respondents' plant, it is clear that the respondents thereby reduced the Philadalphia plant's productive capacity. In the light of the threats to shut down the plant and "move south" made by the respondents both before and after the shipment of plant machinery to Athens, Georgia, the action of the respondents in 'removing the equipment at a time when the Union was seeking unsuccessfully to deal with them is susceptible of but one inference, that the respondents were thereby forcefully demonstrating their hostility, to the Union. Employees who witnessed the loom removal and shipment could not have interpreted the respondents' acts other- wise than as a carrying out by the respondents, in part at least, of their threat to shut down the plant and as motivated by the respondents' hostility to the Union. We find that the respondents, by threatening their employees with a shut-down if they persisted in their union activities; by threatening 8 The Union's attempts to negotiate with the respondents are discussed in greater detail in Section III, B, 3 , below. TINE w1NDSOR MANUFACTURING COMPANY 309 to move south; and by removing part of their machinery and equip- ment, under the circumstances above described, interfered with, re- strained; and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. B." The refusal to bargain collectively 1. The appropriate unit The complaint alleges that the respondents ' employees engaged in production at their Philadelphia plant, exclusive of executives, super- visors, and clerical help ., constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. The answer of the respondents admits this allegation. The production employees of the respondents' plant, excluding executives, supervisors, and cleri- cal help, are eligible to membership in the Union. We find that the respondents' employees engaged in production at their Philadelphia plant, exclusive of executives , supervisors, and clerical help, constitute a unit appropriate for the purposes of collec- tive bargaining, and that said unit will insure to employees of the respondents 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 On June 22, 1937, the Union, claiming that it represented a majority of` the respondents' employees in an appropriate unit, requested a conference with the respondents for the purpose of negotiating a contract. A meeting was accordingly held on July 6, 1937, at the office of the respondents' counsel, attended by the respondents and the Unions The respondents' counsel stated that they did not recognize the Union, but were meeting with it merely as a matter of courtesy. Later that day, the members of the Union, because of the respondents' refusal to recognize it, went on strike. The Union established a picket line around the respondents' plant which. was continued until January 19, 1938. The respondents' plant was closed from July 6, 1937, to January 3, 1938. On January 17, 1938, at a conference attended by the respondents, the Union, and the Mayor's Labor Board of the City of Philadelphia, a consent-election agreement was entered into by the respondents and the Union which provided, in substance, that the production em- ployees of the respondents were to vote on January 19, 1938, to de- termine whether or; not they wished to be represented by the Union The union representative, attending this meeting included a committee of employees. 283031-41-vol. 20-21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that, if a majority of the production employees chose the Union as their collective bargaining representative the respondents would recognize the Union as such. The election was accordingly held, supervised by the Mayor's Labor Board. Of a total of 208 valid votes cast, 123 were for the Union and 85 against it. In their answer to the complaint, the respondents admit tliat oil January 19, 1938, the Union was designated as agent for the pur- poses of collective bargaining by a majority of their employees in the. appropriate unit. The respondents claim, however, that the Union remained a majority representative for not more than one year- thereafter. At the hearing the Union admitted that it no longer represented. a majority of the employees in the appropriate unit. The record shows that William Pollack, a union representative, testified that the- Union represented a majority of the employees at the times when the charge was filed and the complaint was issued; that he believed some members had left the Union prior to the hearing because, of the respondents' unfair labor practices; and that, therefore, he be- lieved that the Union no longer represented a majority. Pollack further testified that according to the Union's membership records, it still- represents a majority and that he has received no formal indication to the contrary. No evidence was offered by the respondents to support their asser- tion that the Union no longer represents a nmajority. On the con-' trary, the only evidence in the record indicates that the Union's majority status continued to the date of the complaint herein and, except for the effect of the respondents' unfair labor practices,lo thereafter. As we have previously held, the unfair labor practices of the respondents cannot operate to change the bargaining repre- sentative previously selected by the untrammeled will of the majority." We, therefore, find that on January 19, 1938, and at all times thereafter, the Union was and that it is the duly designated repre- sentative of the majority of the employees in the appropriate unit for the purposes of collective bargaining. Pursuant to Section 9 (a) of the Act it was therefore, and is, the exclusive representative of all the employees in such unit for the purposes of collective bargain- ing in respect to rates of pay, wages, hours of employment, and other conditions of employment. "Discussed in Section III, A, above, and Section IIT, B , 3, below. "Matter of Arthur L. Cotten, and A. J. Cblm.an, co-partners doing business as^Kiddie Kover Manufacturing Company and Amalgamated Clothing Workers of ,America, 6 N. L. R. B. 355, enf'd National Labor Relations Board v. Gotten et at., 105 F. (2d).179...(C,;1C. A.; 6) ; Matter of Blanton Company and United Oleo,n.argerine Workers Local I,idustridi Union No. 489, 16 N. L. R. B. 951. THE WINDSOR MAN;UFACT'UIRING COMPANY 311 3. The refusal to bargain collectively (a) Chronology of events On January 21, 1938, after the consent election, discussed above, the Union, by letter to the respondents, requested a conference with them. On January 24, 26, and 28, conferences were accordingly held. The main subject of dispute between the parties at these conferences was the manner of rehiring employees following the strike. Two suggestions for settling this dispute were offered by the Union at the January 26 conference : (1) a share-the-work plan 12 in every department; and (2) an alternative seniority plan to be applied in+ the lay-off and reemployment of employees. Both were rejected by- the respondents. At this conference also, after much discussion of the Union's proposals, the Union requested that the respondents enter into a contract with it covering hours of employment only, a matter as to which the parties agreed.':', Although a 40-hour schedule had been maintained by the respondents for over 4 years, the respondents refused to execute an agreement covering hours only, claiming that they were in a seasonal business and that the .maintenance of their schedule depended on production and on dates of delivery of customers' orders. At the January 28 conference, the Union proposed an agreement covering wages, hours, and other conditions of employment. The respondents were not personally present at this conference but were represented by their counsel, Charles Wolfe, who advised the union representatives that the respondents would not sign a contract, and requested the Union to wait "to give the company a chance to get used to the Union." The Union nevertheless insisted upon attempt- ing to resolve the dispute between the parties concerning the method of reemployment and lay-off of employees, and requested the desig- nation of one of the respondents for the purpose of further bargain- ing as to this. Wolfe thereupon promised to communicate with the respondents and advise the Union. Thereafter, certain employees were laid off by the respondents and on February 16, 1938, the Union sent letters to the re- spondents and their attorney requesting an immediate conference regarding alleged discriminations in connection with the lay-offs. 'r Under this plan all the work in the plant would be divided equally among the em- ployees in each department when the available work is insufficient to keep all fully employed. '3 The record indicates that at this conference the then current wages were also Con- sidered satisfactory to the parties. At the hearing, Charles Oughton stated that the Union did not request a written agreement covering wages ; and that he is uncertain whether the respondents would have signed such a contract at that time because other matters also had to be considered. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 18 the respondents, acknowledging the Union's letter, denied discrimination and stated, "The real difficulty at the present time is in the fact that we have no new business coming in and that there will probably be additional lay-offs in the near future."' Wolfe also replied on February 18 denying discrimination and asserting that the time and conferences devoted to the Union's complaints were retarding the rebuilding of the respondents' busi- ness and that unless the Union's complaints ceased "... the com- pany will have no alternative but to discontinue any attempt to conduct a business in Philadelphia." He further advised the Unioii that he had suggested to the respondents that "one more conference" be held. On February 19, after receiving the respondents' February 18 letter, the Union filed charges with the Regional Office. of the Board, alleging discrimination in the rehire and lay-off of union members and that the respondents had refused to bargain collectively with the Union.14 On February 28 and on March 4, 1938, conferences arranged by Board representatives were held at the Regional Office in connection with the charges, attended by the respondents and the Union. Most of the discussion at these conferences centered about the respondents' policy of lay-off and rehire. The Union again submitted its share-the-work and seniority proposals as well as an agreement covering wages, hours, and working conditions. The respondents refused the share-the-work proposal and contended, at first, that it was impractical for them to agree to a seniority system. However, at the March 4 conference, the respondents promised to communicate in a week with the Union regarding possible accept- ance of the Union's seniority suggestion. The respondents, how- ever, failed to do so. In April 1938 the respondents, by Bertram Oughton, without con- ferring with or notifying the Union, announced a 10-per cent wage reduction effective April 25, 1938. The Union was informed of the proposed wage reduction by its-members and on April 23 it addressed a\ letter to the respondents to the attention of John Oughton, re- questing an immediate conference to discuss the proposed wage re- duction. Bertram Oughton replied to the Union's letter on April 25, stating that its letter would be turned over to John Oughton, who was then out of town, when he returned. Bertram Oughtoit admitted at the hearing that in his reply he did not advise the Union that he was responsible for the wage reduction and testified that the reason he did not do so was that the Union's letter wits '4 By amended charge, filed February 28, 1939, upon which the complaint herein is hase•d, that portion of the charge alleging discrimination was withdrawn by the Union. TILE WINDSOR MANUFACTURING COMPANY 313 addressed to his brother, John. Bertram Oughton further ad- mitted that at the time of the wage reduction he knew that the Union was the exclusive agent of the respondents' employees for the purpose of collective bargaining with respect to hours, wages, and working conditions. When asked as to the reason for his failure to communicate with the Union prior to the posting of the wage reduction he testified, "Because, as I say, it was a. waste of their time, it was a generally accepted principle that had to be clone because of bad economic conditions." John Oughton did not thereafter reply to the Union's letter of April 23, nor did any of the respondents communicate with the Union with respect to the subject matter thereof. - Thereafter, pursuant to the Union's request to the respondents by letter of June 13, a conference was held at the office of the respond- ents' attorneys on June 24, attended by union representatives and its attorney and the respondents and their attorney 15 The Union at this conference again submitted its proposals concerning a share- the-work plan and seniority and an agreement covering wages and hours. The respondents, claiming that their employees were working only a 40-hour week and that they were receiving the same wages paid by other mills, rejected the proposals submitted by the Union and refused to sign any agreement. Although requested to. do so by the Union, no counterproposal was made by the respondents as to sen- iority or share-tbe-work. The Union, in connection with its request for an agreement, offered to include an arbitration clause for the pur- pose of adjusting any seniority disputes and also a provision estab- lishing-the -,then --current wages for < a. definite period of time • and providing for the arbitration of the wage schedules in the event of a controversy concerning same. The respondents not only refused to accept these additional suggestions, but also rejected all the Union's proposals and no understanding concerning wages, hours, or other conditions of employment was reached at the conference. Pursuant to union instructions, on July 1 a union representative wrote a letter to the respondents, stating, in part : I have been instructed to request a final conference between the Company and the Committee for some day next week, to, make one last attempt to arrive at an understanding. If we are not able to agree at that time a strike will be called. We do not wish this letter to be interpreted as a threat on our part, but we are forced to take this action clue to the persistent refusal of the management to make some satisfactory adjustment 16 A union committee composed of the employees of the respondents was also present at this conference. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of our differences. It is imperative that we hear from you next week. The respondents replied on July 5, claiming that in view of their limited personnel they could not grant conferences whenever requested and asserting that "the question of reemployment has been thor- oughly discussed . . . We are carrying out the policy stated-to you to the best of our ability." On July 8 the Union again wrote to the respondents demanding a conference that day or the next. The respondents failed to answer that letter and on July 11 the employees stopped work at the plant. Thereupon, the respondents agreed to confer with the Union that morning and the employees resumed their work. While the respondents and the Union clahn that at this conference an agreement regarding seniority was reached, it is clear that they misunderstood each other. The respondents sent a letter to the Union on July 12, 1938, which the respondents claim embodies the terms of the agreement. The pertinent portion of the respondents' letter reads as follows : We beg to advise you that we will follow the seniority basis in re-employment as far as practical, considering the type of work in plant. This, of course, has always been our policy in past years and we are glad to continue. We understand that this disposes of all controversies and matters in dispute between us.' The Union immediately replied to the respondents' letter, denying that it set forth the understanding reached on the 11th, and claiming that the agreement was ". . . that the workers would be reem- ployed according to seniority, as work permitted . .. everything that we have done has been done in an effort to change the policy you have pursued over the last few years." On September 30 the Union presented the respondents with a pro- posed contract, which, in substance, contained provisions covering ex- clusive recognition, hours, wages, prohibition of strikes, stoppages, and lock-outs, share-the-work, seniority, and arbitration. An accompany- ing letter requested the respondents to sign this contract, " . . . believ- ing that it covers the basic points which have been at issue during the past year . . ." On October 13 Charles Oughton replied to the Union by letter, stating, in part, ". . . I am at a loss to understand what your letter means by stating that `it covers the basic points which have been at issue during the past year.' . . . Practically none of the provisions in this agreement have ever been at issue between us nor have ever they been discussed ..." At the hearing Charles Oughton, admitted that of the seven provisions in the proposed agreement the THE WINDSOR MANUFACTURING COMPANY 315 only two which had not been discussed during conferences prior to September 30 were those relating to the duration of the contract and the prohibition of strikes, stoppages, and lock-outs, and that all the others had been discussed. On November 7 the Union complained to the respondents concern- ing alleged misunderstandings which had arisen in connection with the -rehiring of laid-off employees and requested a conference as to this. The respondents did not offer to confer, but instead offered to take up any such specific misunderstandings upon the Union's advis- ing them as to the names of the persons involved and the nature of the complaints. The respondents claim that no names or complaints were submitted to them; in any event, no conference took place. On November 23, pursuant to an exchange of letters between the respondents and the Regional Office of the Board concerning the rehire of employees ]aid off,16 a conference was arranged by Board -representatives for November 28, 1938, at which time the respondents -and a Board representative were present. The respondents, after waiting approximately an hour and a half, left because of the Union's failure to appear. At the hearing Pollack, the-union representative, testified that the Union was first notified of this conference when he received a telephone call from the Regional Office advising him that the respondents were there; that he stated that he would try to get there shortly, but thereafter discovered that he was unable to do so and so told the Regional Office by telephone, suggesting a postpone- ment. In the latter part of January 1939, the respondents posted a notice in, their plant stating that the plant would operate thereafter on a 48-hour 17 week basis and that overtime pay would commence after 44 hours. The Union, which had not been notified of this action in advance, wrote to the respondents on February 1, stating that this was a matter for collective bargaining and asking for a conference. On February 13 the respondents, replying by letter, refused to arrange ,',for-a-conference "in view of our past experience with your failure to keep appointments for conferences arranged with you and our belief that you represent few, if any, of our employees . . ." This was the first time that the respondents questioned the Union's majority status. (b) Conclusions regarding the refusal to bargain collectively It is apparent from the foregoing that, although on January 17, 1938, the respondents obligated themselves to negotiate with the Union, if it received a majority of the votes cast in the January 19 The Union's charges in this case were then pending. The record is not clear whether the proposed increase was to 48 hours or 54 hours. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election, "with respect to any disputes that may arise between, the production employees and the management," and although the Act imposed upon the respondents the obligation to bargain collectively with the Union as the exclusive representative of a majority of their employees in the appropriate unit, the respondents at no time fulfilled their obligations in this respect. In February 1938, shortly after the consent election, the respond- ents' attitude towards granting bargaining conferences to the Union was evinced by their attorney, who claimed that the time and con- ferences devoted to the Union's complaints were retarding the re- building of the respondents' business and impliedly threatened a shut-down in the event that the Union continued to seek conferences. Thereafter, as shown above, on April 23, July 1, and July 8, 1938, and on February 1, 1939, Union requests for collective bargaining con- ferences with the respondents concerning wages, hours, and working conditions met with the respondents' refusals to meet. The respond- ents' replies to the Union's requests for conferences that ". . . We cannot grant you conferences whenever you request" and "We.aee no occasion for arranging for a conference," indicate clearly that '.the respondents did not grant to the Union that to which it was en- titled-collective bargaining rights for the respondents' employees. It is elementary that before there can be collective bargaining, there must be meetings of the parties. Such refusals to meet as the re- spondents' constitute a refusal to bargain collectively within the meaning of the Act. Throughout the conferences between the Union and the respond- ents;'the latter not only rejected every proposal made by the Union, but also, although requested to do so by the Union, failed to make any counterproposals or to exert any effort to submit any plan or offer which could be considered evidence of the respondents' intention to bargain in good faith.," The respondents' failure in this respect was such as to-make productive negotiations impossible. The record reveals also the respondents' refusal to enter into a con- tract with the Union concerning such matters as hours of employment as to which the parties were not in disagreement. Collective bar- gaining as contemplated by the Act is a procedure looking toward the making of a collective agreement by the employer with the accredited representatives of his employees, concerning wages, hours 1s See Matter of Globe Cotton Mills and Textile Workers Organizing Committee , 6 N. L. R. B. 401 , enf'd as mod. in Globe Cotton Mills v. National Labor Relations Board, 103 F. (2d) 91 (C. C. A. 5) ; Matter of Harry Schwartz Yarn Co ., Inc. and Textile Workers Organizing Committee, 12 N. L. R. B. 1139 ; Matter of Wilson & Co., Inc., and' United Packing House Workers L . I. Union No . 51, 19 N . L. R. B. 990. THE WINDSOR MANUFACT URING COMPANY 317 of service, and other working conditions. 19 If the employer adheres to a preconceived determination not to enter into an agreement with the representatives of his employees , then his meeting and discussing the issues with them, however frequently, does not fulfill his obliga- tions under the Act. As stated above, the respondents asserted during the- Union's early organizational activities that they would never sign a.contract .with the Union. The attitude of the respondents through- out the conferences by which the Union sought recognition and agreement compels the conclusion that in fact the respondents did not recede from or alter their position at any time. To the Union's proposals of September 30,'1938, the respondents refused even the ostensible consideration they had accorded' other proposals of the Union, stating, falsely, that practically none of the proposals had ever been. at issue between the parties or discussed by them. The respondents' bad faith thus shown is clear. The respondents claim that on July 11, 1938, they did arrive at a seniority agreement with the Union, as set forth in the respondents' letter of July 12.. However, the respondents' contention as to this is unsupported by the evidence. At the hearing the respondents admitted that-AheirHletter , of July 12, as stated therein, was a restatement of the seniority policy that they had followed for years, and claimed that the.union representatives at the July 11 meeting were persuaded to agree to this. It is clear, however, that the Union was not in accord with the respondents and evidenced its disagreement with the re- spondents immediately upon receipt of their letter of July 12. Fur- thermore, in the light of the Union's frequent requests to the re- spondents to change their seniority policy as practiced "in past years" and in the light of the July 11 strike of the respondents' employees which immediately preceded the conference of that day, the respond- ents' claim that at that conference the Union agreed to the respond- ents' old seniority policy appears to us to be'contrary to reason and 11 SeerhPatter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No. 32k,'aflllated 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. 6.i, 1010, and 1101, 9 N. L. R . B. 783. set aside in Inland. Steel Conrpan.y, a Corporation v. National Labor Relations Board, 109 F. (2d) 9 C. C. A. 7) ; Matter of Highland Park Manufacturing Co. and Textile Workers Organizing Committee, 12 N. L. R. B. 1238; Matter of St. Joseph Stock Yards Company and Amalgam- ated Meat Cutters and Butcher Workmen of North America, Local Union No. 159, 2 N. L. R. B.,39; Matter of Wilson d Co., Inc. and United Packing House Workers, L. I. Union No. 51, 19 N. L. R. B. 990; See also N. L. R. B. v. Sands Manufacturing Company, 306 U. S. 332, aff'g 96 F. ( 2d) 721 (C. C. A. 6), setting aside Matter of Sands Manufacturing Company and Mechanics Educational Society of America., 1 N. L. R . B. 546 ; Consolidated Edis'ou Company of New York, Inc., et at. v. N. L. R. B. at at., 305 U. S . 197, aff'g in part and setting aside in part 95 F. (2d) 390. enfi'g Matter of Consolidated Edison Com- pany of New York, Inc., at al. and United Electrical and Radio Workers of America, affiliated- with the Committee for Industrial Organization , 4 N. L. R. B. 71. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD belief. It thus appears that while on July. 11 the parties may have come to some sort of agreement as to seniority, the respondents' letter of July 12 was not a true expression of the. agreement reached. The respondents, by putting into effect the wage reduction of April 25, 1938, at a time when the Union was seeking to bargain with them with regard to wages and to obtain a wage contract, without notifying or consulting with the Union, clearly indicated their refusal to bargain with the Union. For the respondents so to ignore the exclusive col- lective bargaining representative of their employees and unilaterally to determine the wage reduction, a matter normally the subject of collective bargaining, was a refusal to bargain within the meaning of the Act.20 The respondents, also, by putting into effect an increase in hours in January 1939 without consulting with or notifying the Union, refused to bargain within the meaning of the Act. We do not here pass upon any question as to the business necessities which may have prompted the respondents to effect the wage reduction and the increase in hours of labor. It is the respondents' failure.to give prior notice or to consult with the Union regarding these matters=and not the wage reduction and increase in hours, themselves, which we have scrutinized. We find that the respondents by (1) their refusal to meet with the Union when requested; (2) their failure to submit. any offer to the Union while at the same time rejecting the Union's proposals; (3) their refusal to enter into any contract with the Union and to con- sider the Union's proposed contract; (4) their putting into effect the wage reduction of April 25, 1938, and, in January 1939, the increase in hours of service without consultation with or notification to the Union, refused to bargain collectively with the Union as the exclusive representative of their employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment. The effect of the respondents' refusal to bargain collectively with the Union was of necessity to discredit the Union so as to discourage em- ployees from maintaining their affiliation with the Union or from affiliating therewith and from designating it as their bargaining rep- resentative. We find that by the above refusals to bargain the respondents have interfered with, restrained, and coerced their employees in the exer- cise of the rights guaranteed in Section 7 of the Act. 20 See Matter of Whittier Mills Company and Silver Lake Company and Textile Workers Organizing Committee, et al., 15 N. L . R. B. 457; Matter of Wilson & Co., Inc. and United Packing House Workers L. I. Union No. 51, 19 N. L. R. B. 990. THE WINDSOR MANUFACTURING COMPANY 319 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondents set' forth in Section III above, occurring in connection with their operations described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and have led and .tend- to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY We have found that the respondents have engaged in certain unfair labor practices. We shall order the respondents to cease and desist therefrom. and to take certain affirmative action which we find will effectuate the policies of the Act. We have found that at all times since January 19, 1938, the Union was and that it is the exclusive representative of the respondents' employees in an appropriate unit. We have also found that the re- spondents failed and refused to bargain collectively with the Union as such representative. In order to effectuate the policies of the Act, we shall order the respondents to bargain with the Union as the representative of their employees in the appropriate unit. Having further found that the respondents refused to enter into an agreement with the Union, we shall address our order specifically to the wrong sought to be remedied and order the respondent to embody any under- standings reached in a written, signed agreement.21 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 Union of America, C. I. 0., is a labor organi- zation, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. I 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, set aside in Inland Steel Company, a Corporation v. N. L. R. B., 109 F. (2) 9 (C. C . A. 7) ; Matter of Holston Manufacturing Company and American Federation of Hosiery Workers, 13 N. L. R. B. 783; Matter of Bussmannt Manufacturing Company and McGraw Electric Company and International Association of Machinists, District No. 9, affiliated with American Federation of Labor, 14 N. L. R. B. 322; Matter of Wilson t Co., Inc. and United Packing House Workers L. I. Union No. 51, 19 N. L. R. B. 990. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The respondents' employees engaged in production at their Philadelphia plant, exclusive of executives , supervisors, and clerical help, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9, (b) of the Act. 4. Textile Workers Union of America , C. I. 0., was on January 19, 1938, . and .it all times thereafter has been, the exclusive represent- ative of all the employees in the appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. The respondents, by refusing to bargain collectively with Tex- tile Workers Union of America , C. I. 0., as the exclusive represent- ative of their employees in the appropriate unit, have engaged in and. are engaging in unfair labor practices, within the meaning of Section 8 (5) 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. 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 the respondents , John J. Oughton, Charles T. Oughton, Bertram E. Oughton, and Robert B. Oughton , individuals and as co-partners trading as Windsor Manufacturing Company, their agents, succes- sors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Union of America , C. I. 0., as the exclusive representative of their em- ployees engaged in production at their Philadelphia plant, exclusive of executives , supervisors, and clerical help; (b) In any other manner iiiterfering,with, restraining, or coercing: their employees in the exercise of their rights .to self-organization, to form, join , or assist labor organizations, to bargain collectively through representatives of their own choosin g' , or to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations 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 Union of America, C. I. 0., as the.exclusive representative of their employees engaged in production at their Philadelphia plant, exclusive of executives, supervisors , and clerical help, in respect to rates of pay, THE WINDSOR MANUFACTURING COlIPANY 321 wages, hours of employment, and other conditions of employment, and, if an understanding is reached on any such matter, embody said understanding in a written, signed contract; (b) Post immediately in conspicuous places in and about their plant notices to their employees, and maintain said notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the respondents will cease and desist in the manner set forth in paragraphs 1 (a) and (b) and` that they will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith.