Woodside Cotton Mills Co.

In the Matter Of WOODSIDE COTTON MILLS COMPANY and TExTII.E WORKERS ORGANIZING COMMITTEE 1 Case No. C-1353.-Decided March 2, 1940 Cotton Print Cloth Manufacturing Industry-Interference , Restraint, and Coercion : separate allegations of, dismissed-Collective Bargaining : refusal to recognize union as exclusive representative following certification by the Board by refusal to accept Union's recognition proposal ; submitting recognition pro- posal qualifying recognition upon continuing proof of majority ; conferences without intention of reaching agreement ; held refusal to bargain collectively. Mr. Alexander E. Wilson, Jr., Mr. John C. McRee, and Mr. War- ren -Woods, for the Board. Mr. Barry Wright, of Rome, Ga., and Messrs. Haynsworth do Haynsworth, of Greenville, S. C., for the respondent. Mr. Seth P. Brewer, of Charlotte, N. C., for the Union. Miss Marcia Hertzmark, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Workers Organizing Committee, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated May 24, 1939, against Woodside Cotton Mills Company, Greenville, South Carolina, herein called the respondent, alleging that the re- spondent had engaged in and was 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 and accompany- ing notice of hearing were duly served upon the respondent and the Union. 'The name of the Union was changed to Textile Workers Union of America at a con- vention on May 15, 1939. 21 N. L. R. B., No. 7. 42 WOODSIDE COTTON MILLS COMPANY 43 Concerning the unfair labor practices, the complaint alleged in substance (1) that on August 16, 1938, and at all times thereafter, the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit al- though the Union had been so certified by the Board; and (2) that from December 1, 1937, to the date of the issuance of the complaint the respondent urged, persuaded, and warned its employees to re- frain from becoming or remaining members of the Union, thereby interfering with its employees' right to self-organization. On June 1, 1939, the respondent filed a motion to strike certain portions of the amended charge and the complaint and a motion to require the Union to amend its "amended charge" and to require the Board to amend the complaint. Both motions sought to secure a speci- fication of the unfair labor practices alleged under Section 8 (1) of the Act, and, in the event of a denial of the motions, sought a post- ponement of,the hearing. On June 3, 1939, the respondent filed -its answer, admitting the allegations of the complaint as to interstate commerce and as to the unit alleged to be appropriate for the pur- poses of collective bargaining, but denying the commission of the unfair labor practices alleged and setting forth facts to show that the respondent had bargained in good faith with the Union. Pursuant to notice, a hearing was held at Greenville, South Caro- lina, on June 8 and 9, 1939, before William P. Webb, the Trial Ex- aminer duly designated by the Board. The Board and the respond- ent were represented by counsel and participated in the hearing. A representative of the Union appeared in its behalf. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the hearing and at the conclusion of the Board's case, the respondent renewed its motions to strike and to amend, and ruling thereon was reserved by the Trial Examiner. The Trial Examiner granted a motion by counsel for the Board to conform the pleadings to the proof. During the course of the hearing the Trial Examiner made a number of other rulings on 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 committed. The rulings are hereby affirmed. After the hear- ing the respondent submitted a brief to the Trial Examiner. On August 31, 1939, the Trial Examiner filed his Intermediate Report, copies of which,were duly served upon all the parties, finding that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (5) of the Act. Inasmuch as no evi- dence had been introduced to sustain the allegations of the complaint that the respondent, by urging, persuading, and warning its em- 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees to refrain from becoming or remaining members of the Union, had engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act, the Trial Examiner recommended the dismissal of the complaint in that respect. In view of this recom- mendation the Trial Examiner denied the motions of the respondent to strike and to amend. We concur in the Trial Examiner's recom- mendation and affirm his ruling on the respondent's motions to strike and amend. The respondent thereafter filed exceptions to the In- termediate Report and requested permission to argue orally and to file a brief. Upon permission granted by the Board, the respondent filed a brief in support of its contentions. Pursuant to notice, a hearing was held before the Board in Wash- ington, D. C. on January 18, 1940, for the purpose of oral argument. The respondent was represented by counsel. The Union did not appear. The Board has considered the respondent's exceptions to the Intermediate Report, and its brief and oral argument in sup- port thereof, and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Woodside Cotton Mills Company, a South Carolina corpora- tion, is engaged in the manufacture of cotton print cloths. It op- erates three plants, one at Greenville, one at Simpsonville, and one at Fountain Inn, all in Greenville County, South Carolina. The Greenville plant is the only one involved in this proceeding. In 1938 the respondent purchased, for use at its Greenville plant, $745,899.62 worth of cotton, 82 per cent of which had its origin within the State of South Carolina and 18 per cent of which came from outside the State. Practically all of the respondent's supplies come from States other than South Carolina although they are pur- chased by the respondent from local dealers. The respondent's total sales of products manufactured at its Greenville plant in 1938 amounted to $1,235,519.32. All sales are made through a commis- sion house in New York City, Iselin-Jefferson Company. Approxi- mately all of the respondent's finished product ultimately goes out of the State of South Carolina after having been delivered to the warehouse of William Iselin & Co. in Greenville for redelivery to various points. During the years 1937 and 1938 the respondent employed an aver. age of 998 persons in its Greenville plant. WOODSIDE COTTON MILLS COMPANY 45 II. THE ORGANIZATION INVOLVED Textile Workers Organizing Committee, now known as Textile Workers Union of America, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership production and maintenance employees in the textile industry. III. THE UNFAIR LABOR PRACTICES A. Allegations concerning interference, restraint, and coercion The complaint alleged that the respondent urged, persuaded, and warned its employees to refrain from becoming or remaining mem- bers of the Union. No evidence was introduced to sustain the allegations, and the Trial Examiner recommended the dismissal of the complaint in that respect. No exceptions were filed by the Union. We shall order that the complaint be dismissed in so far as it alleges that the respondent has urged, persuaded, and warned its employees to refrain from becoming or remaining members of the Union. B. The refusal to bargain 1. The appropriate unit On June 16, 1938, we found that the production and maintenance employees of the respondent's Greenville plant, excluding clerical and supervisory employees and watchmen, constituted a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act 2 The unit so found is not contested here. We find that the production and maintenance employees of the respondent at its Greenville plant, exclusive of clerical and super- visory employees and watchmen, constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit In our previous Decision we directed that an election be held by secret ballot to ascertain whether or not the employees in the afore- said appropriate unit desired to be represented for the purposes of collective bargaining by the Union. Pursuant to the Direction of 2 Matter of Wood8ide Cotton Mills Company and Textile Workers Organizing Committee, 7 N. L. R. B. 960. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Election, balloting was conducted on June 27, 1938, which resulted in a majority vote being cast for the Union. On July 26, 1938, we certified the Union as the sole collective bargaining agent in the aforesaid unit.3 We find that on July 26, 1938, and at all times thereafter, the Union was the duly designated representative of a majority of the respondent's employees in the appropriate unit, and that by virtue of Section 9 (a) of the Act it was the exclusive representative of all the employees in said unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment. 3. The refusal to bargain (a) The course of negotiations On August 16, 1938, following the certification of the Union by the Board, representatives of the respondent and the Union met for the purposes of collective bargaining. At the meeting, which was held in the respondent's offices, the Union was represented by Eliza- beth Hawes, State Director of the Union, J. R. Coope, its local rep- resentative, Ralph Simmerson, a representative of the Columbia, South Carolina, Branch of the Union, and four members employed by the respondent; and the respondent by S. M. Beattie, its president, W. H. Beattie, its treasurer, and M. O. Alexander, its general super- intendent. The union representatives presented to the respondent's officers a proposed contract providing for recognition of the Union as the exclusive bargaining agent for "all" of the respondent's em- ployees except executives, office ^ employees, and certain :supervisory employees; seniority in lay-offs and reemployment provided the worker involved was competent; a 40-hour week; an increase in wages which would restore a 121/2-per cent wage cut effected during the preceding summer ; and for a closed shop and check-off system of collecting dues. It also set forth a method for handling griev- ances and for arbitration of disputes and bound the parties to forego strikes, lock-outs, slow-downs, speed-ups or "any other controversy" which would interfere with production. The respondent's officers had not previously seen the proposed con- tract and there was little discussion concerning its provisions except that S. M. Beattie, the respondent's president and principal spokes- man, objected to the section providing for an increase in wages. He pointed out that the respondent was losing money and that economic conditions would not permit restoration of wages to the level re- 3 Matter of Woodside Cotton Mills Company and Textile Workers Organizing Committee, 8 N. L. R. B. 619. WOODSIDE COTTON MILLS COMPANY 47 quested by the Union. Hawes asked Beattie if he would "sign an agreement if and when a mutual agreement was arrived at." Beattie replied that "he would not promise, not knowing what the circum- stances would be at that time." Hawes then asked Beattie to submit a counterproposal and the meeting was adjourned. The next conference was held a week later, on August 23, with practically the same persons present. Again the discussion began with the section concerning wages and Beattie requested that Hawes resubmit that section to the Union. She replied that this was im- possible since no request of the Union had been granted. Beattie informed her that the Company would probably have to shut down if forced to raise wages. The provision for a 40-hour week was discussed and Beattie refused to agree thereto. He also stated that he would be reluctant to sign a contract containing a closed-shop provision. On September 15 a third conference was held. Henry I. Adams, North Carolina State Director of the Union, was present in addition to those who had attended previous conferences. In answer to the respondent's objection to the wage-increase clause the Union agreed to reconsider the question. The respondent contended at this meet- ing that there was no need to include in the contract the section as to recognition; also that the 40-hour provision was superfluous because of State legislation providing for a 40-hour maximum week and because of the Wage and Hour Law which would permit a 44-hour week. Beattie requested time to consider the clause dealing with seniority and other provisions which were explained to him at this meeting. He again expressed his reluctance to sign a contract con- taining,a closed-shop clause. Adams agreed to rewrite the sections dealing with recognition, seniority, and wages to "come more in line with the discussion that we carried on with regard to them." On about October 1 the Union, by Adams, sent to the respondent another proposed contract in which the recognition clause was changed to include the words "subject to provisions of the National Labor Relations Act," and in which the wage section called for use of the wage scale in effect during an undetermined week in 1938 as the prevailing rate. Added to the wage section was a provision that either party might request a reopening of the question of wages and that, in the event no understanding was reached in 10' days, the agree- ment as to wages should terminate and either party might take any action that it desired, including strike by the Union or change in wages or shut-down by the respondent. No change was made in the section dealing with seniority. This second proposal of the Union was considered at a conference on October 4, at which time there was a lengthy discussion of the 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changes it contained. Beattie once more expressed opposition to the closed-shop clause but did not definitely state that he would not agree to it. He stated that the condition added to the wage clause was not acceptable and that he objected to the seniority provision in that competence alone was made the basis for application of the principle. Upon the request of Adams, Beattie agreed to submit a counterpro- posal to the Union's requests. On October 11 Beattie sent to the Union a counterproposal covering recognition, reading as follows: The Company hereby recognizes the Union as the exclusive bargaining agent, subject to the provisions of the National Labor Relations Act, for its production and maintenance employees at its Greenville plant. It is understood that this applies to all em- ployees of the Company at the Greenville plant, with the excep- tion of executives and office employees, and with the exceptions of overseers, second hands and foremen who have. authority to hire and discharge. It is agreed that if at any time the active membership in good standing of the local Union includes less than a majority of the employees of the Company's said plant, as above defined, this contract shall be null and void, and the Union will cease to be the collective bargaining agent for all employees. If the Company shall determine at any time that the Union is no longer entitled to represent as the bargaining agency all of its employees as above defined, the Company shall so notify the Union by registered mail, and if within five days thereafter the Union shall question such conclusions, it shall notify the Company by registered letter addressed to the Pres- ident of the Company at the latter's Greenville, S. C. office. If no objection be made by the Union within said five days, this shall be conclusive of the fact that the Union no longer repre- sents the employees as their exclusive bargaining agent; but if within said period of five days, it claims that it still represents a majority of the employees as above defined, then the matter shall be determined by vote of such eligible employees as above defined, after ten days' notice by registered mail to the Union, and after posting in the mill building for a similar length of time. Such notice shall state the time, place and purpose of the ballotting. , Such ballotting shall be secret. Both parties agree that there shall be no intimidation nor coercion at or about the ballotting place, and both parties agree to abide by the outcome of the ballot. Such vote shall be properly supervised by four supervisors, two each selected by the Company and two by the Union. Such vote shall be with ballots furnished at the ballot- ting place, and containing merely "Do you wish to be represented by T. W. O. C.? Yes. No." WOODSIDE- COTTON MILLS. COMPANY 49 No such ballot shall be called for nor held within ninety days from the date of this contract, and if such ballotting be favorable to the Union, no further ballot shall be called for nor held within ninety days thereafter. On October 13 a conference was held to consider the respondent's counterproposal. Beattie pointed out that the respondent did not want the Union to represent the employees unless a majority were members of the Union at all times. The Union took the position that only the Board could hold an election to determine representa- tion and refused to agree to the proposal, although Beattie urged upon the .Unions representatives the, fairness of his suggested para- graph on the ground that there were some employees who had voted against the Union in the election conducted by the Board. The Union insisted that whether or not the Union, after certification by the Board, continued to represent a majority of the employees in the appropriate unit did not concern the respondent. No question was raised as to whether the Union represented a majority of the employees at the time. A conference set for October 25 was postponed until October 27 and held on that date. The proposed contracts were discussed clause by clause but no agreement was reached on any section. On November 3 Adams and Beattie conferred alone in the hope that they might be able to accomplish more without the other con- ferees present. The meeting was no more successful than previous conferences, it being described by Adams as "simply another discus- sion of world economics." There was some discussion of the proposal covering recognition previously submitted by Beattie, but Adams again refused to accept it for the Union and no progress was made. At this meeting Adams told Beattie that the Union had filed charges against the respondent with the Board, alleging a refusal to bargain. Negotiations thereafter ceased for a period of over four months. Prior to their resumption the Regional Director wrote to Beattie stating that lie was informed that the respondent had refused to bargain with the Union. The Regional Director also wrote to Seth P. Brewer, administrator of the Union for North Carolina and South Carolina, and urged him to make a further effort to arrive at an agreement with the respondent. On March 17, 1939, Brewer pre- sented a third proposal to the respondent in which the Union receded materially from the position taken in its former proposals, provisions for a closed shop and check-off of dues having been eliminated. Brewer told Beattie that he had been informed by Commissioner Heafner of the United States Department of Labor that Beattie had agreed that in the future all matters pertaining to work assign- ments, conditions of employment, wages, etc., were to be considered 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matters for collective bargaining to be taken up with the Union's representatives before any changes were put into effect by the re- spondent. A clause embodying this procedure had been incorpo- rated in the Union's third proposal and Brewer contended that all such matters should be construed as bargaining issues. Beattie, how- ever, denied having agreed to such a provision and explained that he had apparently misunderstood the Commissioner. Each section of the new proposal was discussed and, although the respondent's officers asked a number of questions, they failed to indicate a willingness to subscribe to any particular clause and offered no counterproposals. Beattie,' agreed, however, to let Brewer know in a week or 10 days whether he would then discuss the Union's proposal again or offer a counterproposal. On April 11, 1939, the respondent forwarded to the Union a pro- posed contract covering 11 typewritten pages. Upon request of the Union a conference was held on May 3 between Coope, a local repre- sentative of the Union, and a committee of the respondent's em- ployees, representing the Union, and Attorneys Barry Wright and C. J. Haynsworth, and S. M. Beattie, W. H. Beattie, E. M. Johnston, Tom Bray, superintendent of the Woodside plant, and others, repre- senting the respondent. The proposed contract was not discussed in detail but the Union's representatives objected to a number of its provisions,. including Section 3 which reads as follows : It is understood and agreed that should the Union at any time cease to represent a majority of such employees of the Company by the voluntary and continued assent of such employees, the Company shall have the right to rescind this contract, and to withdraw the recognition of the Union above granted. If at any time the officers of the Company shall be of the opinion that the Union no longer represents a majority of such employees by their free, voluntary and continued assent, the Company may give notice to the Union of its election to rescind this Agreement. Five days after the date of such notice this Agreement shall be- come null and void unless within such time notice shall be given to the Company by the Union that in its opinion it continues to represent the majority of such employees, whereupon the question of representation shall be submitted to arbitration as hereinafter provided. The pertinent part of the arbitration section referred to above reads : Where the question submitted relates to the representation by the Union of the employees of, the Company, as •provvided in Section 3, the Board of Arbitrators shall have authority to con- duct by secret ballot an election among the employees of the WOODSIDE COTTON MILLS COMPANY 51 Company, which election shall be governed by all applicable rules, regulations and practices then in effect and applicable to elections conducted by the National Labor Relations Board. Other objections by the Union to the respondent's proposal centered around a provision giving the respondent the right to determine and apply work standards, assignments, and loads without consulting the Union in advance; a section permitting the respondent to balance operations by laying off or discharging employees without consult- ing the Union; and a clause providing that working hours should be fixed by "any valid law applicable." Coope rejected the counter- proposal and no agreement was reached. However, Coope agr`ee'd- to submit to Brewer the results of the conference. A copy of the re- spondent's proposal had already been forwarded to Brewer at that time and the latter had advised Coope to tell Beattie that the proposal was objectionable and that the Union could not agree to it. No further conferences were requested or held thereafter. (b) Conclusions as to the refusal to bargain (1) Recognition The first issue presented by the foregoing facts is whether or not the respondent's action in' refusing to accept the Union's-pro- posal of recognition, and in insisting upon the recognition clauses submitted by it, constituted an unfair labor practice. The obliga- tion of an employer to bargain collectively under Section 8 (5) of the Act entails, as an essential element thereof, the duty to recog- nize the representative chosen by a majority of the employees as exclusive bargaining agency.' In the case before us the respondent insisted upon a qualified recognition, that is, it made recognition contingent upon a continuing proof of majority, first at ninety-day intervals and then as often as the respondent should demand. In our opinion the respondent has not fulfilled its obligation to bargain collectively under the Act. The Act confers upon the Board the duty and the power, when- ever a question concerning representation arises, to certify to the parties the representatives designated by a majority of the employees. Obviously the Act does not contemplate that such certification of the Board shall remain effective only for a period of ninety days and that thereafter, upon mere challenge by the employer, the question concerning representation must again be resolved. A fortiori 4N L. R. B. v. The Griswold Manufacturing Co, 106 P. ( 2d) 713 (C C A. 3 ),'enf'g Matter of The Griswold Manufacturing Company and Amalgamated Association of bon, Steel and Tin Workers of North America, Lodge No 1197, 6 N. L R. B 298; Matter of McNeely & Price Company and National Leather Workers Association Local No 30, of the C 1. 0., 6 N. L. R. B. 800 , enf'd as mod, N. L. R. B. v. McNeely & Price Co ., 106 P. (2d) 878 (C. C. A. 3). 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act does not contemplate that the Board's certification may be challenged at any* time after issuance upon the whim of the employer. On the contrary the whole spirit and purpose of the Act demands that a Board certification stand as proof of majority, at least in the absence of a marked change of circumstances which would clearly rebut the presumption of a continuing majority, for t reasonable period of time. Unless the Board's certification be given this effectiveness Section 9 (c) of the Act becomes adminis- tratively unworkable and Section 8 (5) fails to achieve that stability of bargaining relations which it is a prime objective of the Act to secure. In Matter of Whittier Mills Company, where the Board upheld the effectiveness of a certification challenged by an employer 7 months after issuance, we said : To hold that, 7 months following certification by the Board of a collective bargaining representative, the employer can question with impunity the status of the certified representa- tive as a representative of a majority of the employees in the appropriate unit, in the manner the respondents here attempt to do, would be to render such a certification nugatory. The Congress, cannot have intended by Section 9 (c) of the Act to authorize the Board to do a futile and meaningless thing. .. . To prevent employers from thus flouting the Act, to give mean- ing to the Board's authority to certify representatives desig- nated by employees in appropriate units, to effectuate the policies of the Act, the presumption of the continuing effective- ness of such a certification by the Board must be held not to be rebuttable, under the circumstances here presented, by evidence such as that here introduced by the respondents.' It follows that the respondent may not, after certification of rep- resentatives by the Board, require as a condition to recognition of G See Matter of Whittier Mills Company and Silier Lake Company et al and Textile Workers Organizing Committee, 15 N L R. B. 457 In Matter of Clark Shoe Company and United Shoe Workers of America, 17 N L R B 1070, we said The fruition of collective bargaining in an agreement often requires negotiations lasting several months . It is therefore essential to the effectuation of the policies of the Act that the representative status, once established , be vested with a degree of stability. Thus, in a recent case, we held that a refusal to bargain with iepre- sentatives 7 months after their certification by the Board can not be justified by challenging their authority to deal for a majority No reason appears why a dif- ferent rule should be applied in the instant case . The authority of the U S W as sole bargaining agent was established in a consent election under the aegis of the Board The fairness of the election is not questioned Promptly after the election the U. S. W opened negotiations for a contract To permit the respondent with impunity to interiupt the bargaining process and evade agreement by challeng- ing the authority of the U S W. only 4 months after its designation in the election would be to lender meaningless the respondent's duty and its employees' coirelative right to bargain collectively WOODSIDE COTTON MILLS COMPANY 53 such representatives the right to raise at intervals of ninety days, or at will, the issue of majority designation. Our conclusion in this matter is confirmed by the fact, evident from the record in this case, that the respondent's real objective in seeking such frequent determinations of the majority issue was sim- ply to harass the Union and undermine its morale . By putting the Union to a test of its strength at such times as it thought strategic the respondent hoped to deny the Union the prestige accorded to a recognized bargaining agent and , in the end , to avoid collective bar- gaining altogether. Moreover, it is apparent that the respondent, even if it desired to exercise its power to force the Union to an election only when it honestly believed that the Union no longer represented a majority of the employees, would perforce be required to interest itself con- tinually in the membership of the Union , a question with which it should not ordinarily be concerned once the union has been certified. The respondent argues in its brief that "while the recognition clauses in the Union proposals were basically perfectly proper, they needed correction and were in several respects subject to negotiation and alteration before agreement." The chief fault found with the recognition clauses submitted by the Union is that they failed to limit recognition to the one plant for which the Union had been certified by the Board. In oral argument counsel for the respondent stated that it was understood that the Union did not actually claim to rep- resent the employees at the other two plants and that in such respect the proposed contracts apparently were merely forms sent from the main office of the Union without having been changed to fit the specific occasion . Counsel further admitted that the error in form had not been brought to the attention of the Union 's representatives and that there was no discussion of the recognition clauses other than the respondent's refusal to agree thereto. Under such circumstances the respondent's objection to the recognition clauses proposed by the Union is without merit. The respondent ; also urges in its brief that the recognition clause submitted by the Union constituted merely one part of 'a proposed contract and that, therefore , the respondent was under no duty to agree to it alone. The Board had certified the Union as the ex- clusive bargaining agency for the employees of the respondent. While the respondent was not required to suggest that the recognition clause be signed as a separate contract , the obligation to recognize the Union as such representative followed immediately upon such certification , whether or not other requests of the Union were met. We accordingly find that the respondent , by refusing to recognize the Union as exclusive bargaining representative, has refused to bargain collectively within the meaning of Section 8 (5) of the Act. 283032-41-vol 21-5 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Conclusions as to the respondent's refusal to negotiate with the purpose of reaching an agreement The second issue raised by the facts heretofore recited is whether or not the respondent, aside from the recognition issue, has bargained with the Union in good faith in an honest endeavor to reach an agreement. A review of the negotiations convinces us that at no time did the respondent make any genuine effort to come to an agree- ment with the Union. The Union submitted an original proposal and two subsequent pro- posals. In the second and third proposed contracts the Union made serious attempts to meet the respondent's objections to the preceding ones. In both the second and third proposals the Union receded substantially from its original position. Yet the respondent made no move to come to terms with the Union. At the hearing Beattie, the respondent's president, was asked, "Was there anything in the contract that you were willing to agree to?" He replied, "Yes, sir, but why bring that up? I didn't feel it advisable or a good trading proposition for me to pick out certain sections of the contract that I would agree to or that were not objectionable. I felt that the best procedure or the procedure calculated to get the best results was to pick out the features that were objectionable and try to get those modified.,' This statement by Beattie indicates his=attitude through. out the negotiations. He listened attentively to explanations of all the sections and gave his reasons for objecting to some of them. But he would agree to nothing, although admittedly there were some provisions to which he had no objection. Moreover, at the outset, he refused to agree that he would sign a contract "if and when a mutual agreement was arrived at." 6 After the Union had made two proposals the respondent submitted a counterproposal covering recognition upon which it rested through out three conferences. The respondent's first full counterproposal was not forthcoming until April 12, 1939, after negotiations had been carried on since August 16, 1938. This proposed contract was pat- ently less desirable to the Union than the position which the respond- ent had adopted during the course of negotiations up to that time. It merely crystallized and restated the policies of the respondent in force at the time of the negotiations ; and it withdrew from the sphere of collective bargaining in the future a number of matters ordinarily considered proper subjects for bargaining. Among other things, it 9 Cf. Matter of Wilson and Company and United Packinghouse Workers L. I. U.-&1 P t1' 0 C of C I 0., 19 N L R B. 990; Matter of Highland Park Manufacturing Co and Textile Workers Organizing Committee, 12 N. L R. B. 1238; Matter of H J Heinz Company and Canning and Pickle Workers, Local Union No 325, dfliltiated with Amalgamated Meat Cutters and Butcher Workmen of North America, American Federa- tion of Labor, 10 N L. R B 903. WOODSIDE COTTON MILLS COMPANY 55 provided that the respondent might determine work standards, as- signments, and loads without consulting the Union; it empowered the respondent to establish new shifts, increase, diminish, or abolish shifts, without reference to the desires of the Union ; it reserved to the respondent absolute discretion to control production or shut down the plant and made the decision of the respondent conclusive as to the need therefor; it provided that, discharge might be for inefficiency, incompetency, neglect of duty, carelessness, insubordination, violation of rules, conviction of crime or misdemeanor, drunkenness, bad char- acter, assignment of pay, or garnishment; it gave the respondent unchecked discretion as to lay-offs to balance operations; it stated that the respondent need consider seniority in laying off employees only if they have equality in knowledge, training, ability, skill, efficiency, physical fitness, family status, industry, and initiative, hours of work were to be determined by any valid law applicable; the existing wage scale was to remain in effect unless changed by law or unless either party gave notice of a desire to negotiate the ques- tion; and it set forth a complicated arbitration procedure for griev- ances except work standards and assignments and wages. The respondent admits that its proposed 'contract, submitted 8 months after negotiations had commenced, was intended to serve only as a basis for discussion. To indulge in such tactics is to invite interminable delays before any result can be attained from the process of collective bargaining The respondent could scarcely have been surprised when the Union, confronted after months of negotiations with such a proposal, rejected it and decided that it was futile to seek further conferences We think it clear that the respondent, while attempting to give the appearance of bargaining in good faith. was merely sparring with the Union until it should have caused the Union to recede to the wall. Thereupon it delivered the final blow in the form of a proposed contract having the effect of nullifying all previous efforts on the part of the Union. Bargaining connotes an effort in good faith to reach an agreement and we cannot find such an effort in this case. We find that on August 16, 1938, and at all times thereafter, the respondent has refused to bargain collectively with the Union as the exclusive representative of its employees within an appropriate unit, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above. have a close, intimate. and substantial 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take such affirmative action as will remedy the effects thereof. We have found that on August 16, 1938, and at all times there- after, the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit. Accordingly, in order to effectuate the purposes of the Act, we shall order the respondent to cease and desist from its unfair labor practices, and upon request to bargain collectively with the Union. 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 was, and its successor, Textile Workers Union of America, is, a labor organization, within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees of the respondent at its Greenville plant, exclusive of clerical and supervisory employees and watchmen, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Textile Workers Organizing Committee, or its successor, Tex- tile Workers Union of America, was on August 16, 1938, and at all times since has been, the exclusive representative of all employees of the respondent in the above unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. The respondent, by refusing on August 16, 1938, and at all times thereafter, to bargain collectively with Textile Workers Or- ganizing Committee, or its successor, Textile Workers Union of America, as the exclusive representative of all its employees in the appropriate unit, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, 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. WOODSIDE COTTON MILLS COMPANY 57 7. The respondent has not engaged in unfair hibor practices, within the meaning of Section 8 (1) of the Act, by urging, persuading, and warning its employees to refrain from becoming or remaining mem- bers of the Union, as alleged in the complaint. 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 respondent, Woodside Cotton Mills Company, Greenville, South Carolina, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Texile Workers Union of America as the exclusive representative of its production and maintenance employees at its plant in Greenville, South Carolina, exclusive of clerical and supervisory employees and watchmen;- (b) In any other manner interfering with, restraining, or coercing 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 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 as the exclusive representative of its production and maintenance employees, exclusive of clerical and supervisory em- ployees and watchmen, employed at its plant in Greenville, South Carolina, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Immediately post notices to its employees in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b) of this Order, and that it will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order' what steps it has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint, and it hereby is, dismissed in so far as it alleges that the respondent has urged, per- suaded and warned its employees to refrain from becoming or remaining members of the Union.