Alban-Waldensian, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1967

167 N.L.R.B. 695 (N.L.R.B. 1967)

ALBA-WALDENSIAN, INC. 695
Alba-Waldensian , Inc. and International Ladies'
Garment Workers Union , AFL-CIO. Cases
11-CA-2914 and 11-CA-2972
October 11, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On September 16, 1966, Trial Examiner Eugene
F. Frey issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other alleged unfair labor practices, and
recommended that the allegations of the complaints
pertaining thereto be dismissed. Thereafter, the
Respondent, General Counsel, and the Charging
Party filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as noted below.
The Trial Examiner found that the Respondent's
refusal to grant a voluntary dues checkoff or agree
to any of the alternatives to the checkoff suggested
by the Union did not violate Section 8(a)(1) and (5)
of the Act. Although he found the reason for the
Respondent's refusals to be "weak" and charac-
terized the Respondent's attitude as "adamant" and
further found that the Board's recent Decision in H.
K. Porter Company, Inc.,' was apposite, he con-
cluded that the Union's "disruptive conduct" ex-
cused behavior otherwise violative of the Act. We
do not agree with the Trial Examiner's conclusion.
The evidence set forth in the Trial Examiner's
Decision clearly demonstrates that the Union's
negotiators bargained about a proposed checkoff
clause with reason and restraint. In answer to each
of the objections voiced by the Respondent, they
responded either by showing that there was no real
factual basis for the objection or that the objection
conjured up difficulties which a checkoff, by the
very fact of its voluntary nature, would not present.
When the Respondent then resorted to such unan-
swerable objections as that it was against company
"policy" to make deductions from its employees'
pay, and that there was a psychological factor in-
volved when the employee did not receive all of his
pay, the union negotiators abandoned their effort to
obtain assistance from the Respondent in the col-
lection of dues and proposed that a union agent or
the union chairlady be allowed to collect dues dur-
ing nonworking time thus completely absolving the
Respondent from any onus attaching to a reduction
in the employees' take-home pay. These alterna-
tives were summarily rejected by the Respondent,
and the union negotiators were told they could sta-
tion an agent at the plant gate and collect dues at
quitting time "if it was profitable for the Union."
Thereafter, the union negotiators abandoned their
efforts to secure some agreement in this matter and
turned to other subjects of negotiation.
We find nothing in the Union's proposals or argu-
ments which could be found to be offensive to the
Respondent. Nor is there anything in the conduct
of the union negotiators which could have goaded
the Respondent into the intransigent stand which it
took against the checkoff or the alternatives to a
checkoff proposed by the Union. Other than a
protest by Handler, one of the union negotiators,
against a delay in negotiations while the Respond-
ent's negotiators conferred regarding what deduc-
tions the Respondent made from the employees'
pay, a protest ignored by the Respondent's negotia-
tors, there is no evidence that there were incidents
at the negotiations over checkoff which could have
caused resentment or ill feeling among the Re-
spondent's representatives.
Unlike the Trial Examiner, we find that the
Respondent's conduct in failing to bargain in good
faith with the Union over a dues checkoff was not
excused by any conduct of the Union at the negotia-
tions, and that the Respondent thereby violated
Section 8(a)(1) and (5) of the Act.2 And we further
find that the refusal to bargain in good faith regard-
ing a dues checkoff was a contributing factor to the
prolongation of the strike by its employees.
The General Counsel and the Charging Party
have also excepted to the Trial Examiner's failure
to find that the Respondent had engaged in a course
of bad-faith bargaining throughout the negotiations
between the parties. We find merit in these excep-
tions. As the Trial Examiner found, the Respondent
refused to supply data necessary for the Charging
Party to discharge its function as the collective-bar-
gaining representative with respect to the vital sub-
ject of wages, and failed to supply other data in a
timely fashion. In addition, it eliminated piece-rate
' 153 NLRB 1370, enfd sub nom United Steelworkers of America , 2 H K Porter Company , Inc, supra ; cf Roanoke Iron & Bridge
AFL-CIO, 363 F 2d 272 (C A D.C.), cert denied 385 U S 851 Works , Inc, 160 NLRB 175
167 NLRB No. 101
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guarantees unilaterally and did not provide the
Charging Party adequate data from which to bar-
gain with respect thereto. Moreover, as we have
found above, the Respondent failed to bargain in
good faith regarding a checkoff clause or any of the
alternatives to such a clause proposed by the
Charging Party. But these are not the only factors
which indicate to us that the Respondent did not
bargain with the Charging Party with a good-faith
intention of reaching a collective-bargaining con-
tract.
There are other considerations buttressing that
conclusion. Thus from the outset the Respondent
insisted not only upon the maintenance of the exist-
ing wage structure but also upon the right to cut
wages unilaterally if it so desired. It adamantly
maintained that position throughout negotiations.
When the question of wages came up at several of
the final sessions, the Respondent merely referred
the Charging Party back to its contract proposals
embodying its position made several weeks before.
At no time did the Respondent enter into any
meaningful discussion of the wage issue, nor did it
vary its initial stand that there be no wage increase
and that it have the freedom to reduce wages at its
discretion. Good-faith bargaining does not require
the making of concessions or the granting of wage
increases but it does require that parties justify
positions taken by reasoned discussions and at least
make a good-faith effort to reach a solution of their
differences. The Respondent here did not comply
with this requirement. Its insistence upon retaining
the right unilaterally to control during the contract
term an item as vital to an agreement as wages ap-
pear to us, moreover, the clearest manifestation of
bad faith.
We also find the Respondent's conduct in bar-
gaining over arbitration and no-strike clauses in-
dicative of bad faith. In the Respondent's initial
proposal for the settlement of grievances, to which
it adhered throughout the negotiations, it proposed
the same grievance procedure then current in the
Respondent's plant, adding only the right of the
Union to have a representative present, a right al-
ready conferred to the Charging Party by the
second proviso to Section 9(a) of the Act. The
proposal contained no arbitration clause, thus leav-
ing the Respondent as the sole arbiter of all
grievances arising in its plant. The proposal did con-
tain, however, an absolute prohibition against
strikes. Thereafter, the Respondent refused to yield
on its stand on arbitration, and it modified its stand
on its proposal for a total ban on strikes so as to
permit strikes after the giving of a 30-day notice,
but couched this in language which concededly
could be interpreted as permitting such a strike only
if the Charging Party called it precisely on the 31st
day after the giving of such notice. The Respondent
must have known that by thus depriving the Charg-
ing Party of any effective weapon to protest com-
plaints and grievances , while at the same time in-
sisting upon retention of absolute authority over
the wages of the employees represented by the
Charging Party, it was presenting the Union with
terms that no responsible collective-bargaining
agent could accept. That the Respondent chose to
take that approach constitutes strong evidence that
it did not in fact intend to reach a collective-bargain-
ing agreement with the Charging Party.
Evidence of the Respondent's bad faith is also to
be found in its grant of additional benefits to the em-
ployees in its unorganized plants, all located in the
immediate vicinity of the Pons plant, while refusing
to grant the same benefits to the employees in the
Pons plant for whom the Charging Party was bar-
gaining. Thus at the beginning of negotiations the
Respondent's policy at all seven of its plants was to
give no paid holidays to any of its employees. On
July 29, 1965, the Respondent posted a notice in its
six other plants announcing that Labor Day and
Easter would henceforth be paid holidays. It did not
inform the Charging Party of this change even when
the subject of paid holidays was broached by the
Charging Party at the meeting of September 30,
stating that its position was unchanged from its
previous refusal to grant the Pons employees any
paid holidays. When it was then confronted with its
July 29 announcement, however, it took the matter
under advisement, and at the following meeting it
granted the Pons employees the same paid holidays
as those enjoyed by the employees in its other
plants. We think it clear from these facts that the
Respondent did not deny the employees increased
benefits because it was unwilling to do so from an
economic standpoint, but because it wanted to
denigrate the Charging Party in the eyes of its ad-
herents by at least initially granting its unorganized
employees greater benefits than those enjoyed by
its organized employees represented by the Charg-
ing Party.
Further evidence of the Respondent's bad faith
in bargaining with the Charging Party may be found
in its granting of a substantial raise in pay to all of
the employees in the unorganized plants while
refusing to grant such a raise to its employees
represented by the Charging Party or to notify the
Charging Party of its proposed action. These raises
were given to conform to an industry wage pattern
because of competitive conditions. Presumably the
competition referred to was the competition among
employers to retain their employees. But such com-
petitive pressures were no less applicable to Pons
than to any of the Respondent's other plants re-
gardless of their economic condition. Yet the
Respondent gave no raise to the Pons employees,
nor did it attempt to give the Charging Party any
reason for this disparate treatment of the Pons em-
ployees. As in the case of the refusal to give
holidays to the Pons employees while granting them
to its employees in its other plants, the Respondent,
we are persuaded, utilized the pay raise to demon-
ALBA-WALDENSIAN, INC.
strate to employees at Pons the impotence of the
Charging Party.
Moreover, the employees, who were striking for
a contract, were periodically advised by the union
negotiators of the progress of the negotiations and
Respondent's attitude therein, and acted in ac-
cordance with the negotiators' recommendation
that they continue the strike because of Respond-
ent's conduct during bargaining and the failure to
reach an agreement. As we have found, such con-
duct by Respondent constituted a failure to bargain
in good faith, as revealed by its conduct in connec-
tion with the negotiations after submitting its
original contract proposals. Therefore, we further
find that the Respondent's course of bad-faith bar-
gaining also contributed to prolonging the strike and
converted it to an unfair labor practice strike by
June 24, 1965, by which time Respondent had in-
dicated that its mind was closed to the Charging
Party's protests against company proposals which
no self-respecting bargaining representative could
accept.
For the above reasons, we find that the Respond-
ent refused to bargain in good faith with the Charg-
ing Party on both economic and noneconomic is-
sues. We have taken into account those instances
recited in the Trial Examiner's Decision where the
Charging Party's conduct may have, to some ex-
tent, obstructed the bargaining process. But much
of this conduct can be attributed to the intransigent
refusal of the Respondent to honor its obligation to
bargain with the certified representative of its em-
ployees, and we think it clear, moreover, that even
if the Charging Party's conduct had been beyond
reproach it would not have affected the Respond-
ent's fixed determination to avoid a collective-bar-
gaining agreement with the Charging Party. We
therefore find that the Respondent refused to bar-
gain in good faith in violation of Section 8(a)(5) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Alba-Waldensian, Inc.,
Valdese, North Carolina, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as so
modified:
1. Add the following as paragraph I (a)(iv) and
reletter the present paragraph (iv) as paragraph (v):
"(iv) Failing and refusing to negotiate with the
Union on request regarding the proposals it ad-
vances for a voluntary checkoff or other lawful
means of facilitating collection of union dues."
2. Paragraph 2(d) is modified to read as follows:
"(d) Upon request, bargain collectively with In-
ternational Ladies' Garment Workers Union,
697
AFL-CIO, as the statutory representative of all its
employees in the bargaining unit described herein,
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment, and in bargaining on wages, rates, and
similar economic issues furnished to said Union, on
request, payroll and wage data relating to em-
ployees in said unit, and timestudies and other in-
formation relating to the formulation of piece rates
paid to employees in said unit; on request, allow
said Union to make its own timestudies of piece
rates in the Pons plant under reasonable controls
and limitations; on request, bargain in good faith
with the Union with respect to proposals it ad-
vances for a voluntary checkoff or other lawful
means of facilitating collection of union dues; and,
if an understanding is reached, embody such un-
derstanding in a signed agreement."
3. Substitute the following as the eighth indented
paragraph in the Appendix attached to the Trial Ex-
aminer's Decision:
WE WILL, upon request, bargain collectively
with International Ladies' Garment Workers
Union, AFL-CIO, as the statutory representa-
tive of all our employees in the bargaining unit
described herein, with respect to rates of pay,
wages, hours of employment, and other terms
and conditions of employment; WE WILL
furnish to said Union, on request, payroll and
wage data relating to employees in said unit,
and timestudies and other information relating
to the formulation of piece rates paid to em-
ployees in said unit; WE WILL, on request,
allow said Union to make its own timestudies
of piece rates in our Pons plant under reasona-
ble controls and limitations; and WE WILL, on
request, bargain in good faith with the Union
with respect to proposals it advances for a
voluntary checkoff or other lawful means of
facilitating collection of union dues; and if an
understanding is reached, WE WILL embody
such understanding in a signed agreement. The
appropriate unit is:
All production and maintenance em-
ployees in our Pons Outerwear Division
plant at Valdese, North Carolina, includ-
ing plant clerical employees, janitors and
the truck maintenance man, but excluding
office clerical employees, professional em-
ployees, guards and supervisors as defined
in the Act.
4. Delete from paragraph 2(f) that part which
reads "to be furnished" and substitute "on forms
provided."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: The issues in this
case are whether(]) Respondent, Alba-Waldensian, Inc.,
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to bargain collectively in good faith with the
above Union as the certified bargaining agent of em-
ployees in an appropriate unit at Respondent's Pons Ou-
terwear Division plant at Valdese, North Carolina, by
various actions and omissions during bargaining con-
ferences with the Union, in violation of Section 8(a)(5)
and (1) of the National Labor Relations Act, as amended,
29 U S.C. Sec. 151, et seq. (herein called the Act), (2) its
conduct in refusing to bargain with the Union prior to cer-
tification was unlawful and caused its employees to go on
strike at a date prior to the certification and the start of
bargaining sessions, (3) it prolonged said strike by unlaw-
ful conduct during such bargaining, (4) its refusal to rein-
state striking employees after an unconditional offer to
return to work was in violation of Section 8(a)(3) and (1)
of the Act, and (5) it refused to bargain with the Union as
such agent regarding reinstatement rights of said strikers,
but instead dealt with them individually, in violation of
Section 8(a)(5) of the Act. The issues arise on a con-
solidated complaint issued March 4, 1966,' by General
Counsel of the Board through the Board's Regional
Director for Region 11, and answer of Respondent deny-
ing the commission of any unfair labor practices. A hear-
ing on the issues was held before me on various dates
between March 22 and April 23, 1966, in which all
parties participated fully through counsel. All parties
waived oral argument at the close of the testimony but
General Counsel and the Union submitted written briefs
which have been carefully considered by me in the
preparation of this Decision. Respondent filed no formal
written brief but indicated its defenses and theories by
various arguments and the scope and direction of its ex-
amination and cross-examination of witnesses during the
hearing.'
Upon the entire record in the case and from my obser-
vation of the witnesses and their demeanor on the stand,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent is a Delaware corporation operating plants
at Valdese and Lenoir, North Carolina At its Pons Ou-
terwear Division plant in Valdese, the only one involved
in this case, Respondent makes ladies' knitted outerwear
apparel. In the 12 months prior to issuance of the
amended complaint, Respondent had a direct annual out-
flow of finished goods from the Pons plant valued in ex-
cess of $50,000, to points and places outside North
Carolina. The Board asserted,lurisdication over the Pons
plant in 1965 in Case I 1-RC-2167. I find that Respond-
ent is now, and has been at all material times found
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union's Campaign and Certification
In March 1965 the Union began an organizing cam-
paign among employees of the Pons Division in Valdese.
After securing signed authorization cards from em-
ployees and making unsuccessful attempts to secure
recognition from plant officials, the Union called a strike
of employees on March 25, which continued until
February 3, 1966, when the Union sent Respondent tele-
grams containing unconditional offers by the strikers to
return to work.3 During the campaign the Union filed a
petition with the Board in Case I I -RC2167 for certifi-
cation as bargaining agent. After a Board-conducted elec-
tion on May 7, 1965, the Union was certified on May 25,
1965, as the exclusive bargaining agent of all production
and maintenance employees at Respondent's Pons Outer-
wear Division plant at Valdese, North Carolina, includ-
ing plant clerical employees, janitors and truck main-
tenance man, but excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act, as the appropriate unit for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act. On the basis of that certification, I find that
said unit is the appropriate unit for purposes of collective
bargaining, and that since May 25, 1965, the Union has
been the statutory bargaining agent of all employees in
said unit, within the meaning of Section 9(a) and (b) of the
Act.
B. The Bargaining Meetings
In contacts between Respondent and the Union
analyzed hereafter, Max Zimny, associate general coun-
sel of the Union from its New York, New York,
headquarters, was the main negotiator and spokesman for
the Union at all meetings through September 30, except
for seven in August, and was assisted by Morton Shapiro,
North Carolina State Director of the Union. Jack G.
Handler, southeastern regional counsel of the Union, at-
tended five sessions, as an observer on September 30
and actively conducting the negotiations for the Union at
the next four. Shapiro negotiated alone for the Union at
sessions on August 18 and 24, September 2 and 3, 1965,
and February 16, 1966. In addition, a committee of wor-
kers ranging from 6 to 15 attended many meetings but
took no active part in discussions except to confer with
union negotiators from time to time. Respondent was
represented at all sessions by Attorney Young M. Smith,
as chief spokesman, and at most sessions he was assisted
' The consolidated complaint issued after Board investigation of a
charge filed by the Union on November 24, 1965, in Case I I-CA-2914
and a charge filed by the Union on February 17, 1966 , in Case
I I -C A-2972
2 After close of the hearing , the Union moved on notice to all parties to
correct the official transcript in numerous instances While there was no
objection to the motion, it sought to "correct only those errors which
might materially affect the issues," hence after due comparison of the mo-
tion with the transcript, in light of my own notes taken at the trial, I have
granted the motion to the extent requested The motion is marked in
evidence as Union Exh 4
1 The attempts of the Union to talk to plant officials and Respondent's
reactions thereto, during March and April, will be discussed below
ALBA-WALDENSIAN, INC. 699
by Secretary George W. Williams, Jr., Treasurer James
Edward Garrou, Personnel Director Valdo Martinat, and
Cost Supervisor Walter Boone ; President Louis Garrou
was present for short-periods at a few meetings , but took
no part in the discussions.4
Although formal certification of the Union did not issue
until May 25, 1965, Treasurer Garrou on May 22 sent
Shapiro a letter in response to a telegram from the latter,
indicating Respondent would not formally insist upon
receipt of the certification before starting negotiations,
but was ready then to start bargaining , and made sug-
gestions about time, date, and place of the first meeting.
He also said "it would expedite our negotiations if you
could send us in advance of our meeting a draft of what
you wish to propose for a contract."
item. Respondent's agents agreed to furnish this informa-
tion.7 During review of the demands, although the com-
pany agents apparently took notes of Zimny's explana-
tions, Smith asked the Union to put the demands in a for-
mal written contract proposal which Respondent could
consider, and Zimny agreed to do so. This meeting ran
about 1- 1/2 hours. At its close, after discussion of dates,
the parties fixed the afternoons of June 8 and 11, 1965,
for the next two meetings.
On Friday, June 4, Zimny mailed to Smith the Union's
formal contract proposal, a 17-page document of 35 main
articles containing about 80 paragraphs. Smith received
it Saturday, June 5.
2. The June 8 meeting
1. The May 28 meeting
At the May 28 meeting, after preliminary discussion
about publicity, on which the parties reached no agree-
ment,5 the Union gave the Employer a list of 24 demands
labeled "contract proposals." Those dealing with wages,
overtime pay, vacation pay, and contributions to union
funds were specific in the amounts demanded, but at least
14 of them merely listed a subject without details as to the
benefit or procedure desired, such as specific paid
holidays. Hence, as the parties discussed each demand,
Smith asked many questions about its nature and scope,
and Zimny gave detailed explanations, in some instances
indicating that he was paraphrasing contract language
which the Union wanted. On a few items, Smith made
some comments without taking a specific position pro or
con. On "Fair Employment Practices," he stated that
Respondent was already complying with the law, and
Zimny replied that their differences in this area were very
small. When the checkoff was reached, Smith asked what
this covered, and Zimny replied it included everything the
workers would owe to the Union, explaining in detail how
it would operate under Section 302 of the Act. Smith
made no comment on this demand.'' When they reviewed
the wage demands, Zimny explained that the Union
wanted a raise across the board for both piece-rate work-
ers and hourly paid workers, and at this point asked
Respondent to give the union data showing its piece-rate
structure and how such rates were fixed as a "category of
material," and also payrolls showing actual earnings of
employees, explaining that since most of the employees
were paid on a piece-rate basis, the Union needed this
data in order to be able to bargain intelligently on this
Except as otherwise specifically noted hereafter, the findings in narra-
tive form of the sequence, details, and progress of the bargaining sessions
are based on credited testimony of Zimny, Shapiro, Handler, Smith, J E
Garrou, Williams, and Boone, which is mutually corroborative in most
substantial aspects Testimony of any of these witnesses at variance
therewith is not credited, where the conflict is on a crucial fact issue the
reason for my resolution of credibility is set forth in detail
s The Union issued one press release on a national scale on June 18.
1965, about the progress of the negotiations, while Respondent issued
none
^ I make this finding on the checkoff discussion on credited testimony
of Smith, Garrou, Williams, and Boone, and do not credit testimony of
Zimny and Shapiro that Smith bluntly advised them, directing his remarks
to the workers ' committee sitting behind the union agents , that Respon-
dent would not accept this demand because it was a union problem and
Respondent would not "serve the Union's convenience" in this regard
Zimny was self-contradictory on this point, admitting on cross-examma-
At the outset of this Tuesday meeting, Zimny an-
nounced that Respondent had had the original union de-
mands for i I days, and the Union wanted an immediate
answer to them. Smith replied that he would like to go
through the Union's formal contract proposals and have
them explained before Respondent made any response.
The parties went through the proposal, clause by clause,
with Zimny often making a detailed, line-by-line, explana-
tion of provisions in answer to Smith's questions. In this
discussion, Smith indicated that Respondent agreed "in
principle" with all or most of five provisions," although he
suggested some changes in wording or phraseology for
clarification; and their discussion shows there was no
wide disagreement in principle on three other provisions."
Zimny asked Smith to put his suggestions into a formal
company proposal and send it to Zimny so that he could
have it in hand before the June 11 meeting. Smith replied
he would do his best to give it to Zimny before that date.
In the course of this review, Smith suggested that the
parties proceed on the basis that they reach agreement on
as many clauses as possible, but that all such agreements
should be "tentative" and not finally binding on either
until they have agreed on a "full contract," so that in
negotiations each should be free to suggest amendments
on any provisions tentatively agreed upon, on the basis of
developments in bargaining. Zimny did not object to
this. "'
When they reached the wage demands, Zimny asked
for the data requested at the May 28 meeting, and Smith
gave him a single sheet showing average hourly earnings
at Pons, listed by job title or operation, for a 2-week
period in March. Zimny complained this did not fulfill the
Union's request, for it only stated conclusionary facts in
tion that Respondent made no response to any of the union demands at
this meeting
7 In discussion of piece-rate data, the union agents offered Respondent
the services of the management engineering department of the Union, but
the reason for the offer at this point does not appear
" "Mutual Obligations," .. Union Membership." .. Trial Periods,"
"Wages and Standards," and "Union Recognition "
9 "Assignment to Other Work." "Right to Leave Shop," and "Job
Rights, Illness, Leave of Absence "
10 I find the facts as to the "tentative agreement " procedure on credited
testimony of Smith, and I do not credit Zimny's testimony of his protest
against this procedure, because he admitted in other testimony that there
was no legal obligation on Respondent to adhere to any provision agreed
upon, as such, whether in or out of context with other negotiable items.
and it is clear from the Union's position on other demands at later
meetings, as will appear below, that it followed this very procedure in
making its agreement on certain provisions "tentative" or contingent upon
satisfactory agreement on other items.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form of average hourly earnings , not the actual earnings.
The above discussion consumed 2 hours until 4 p.m.
After a short recess, Zimny then asked Smith for Respond-
ent's answer to its original 24 demands . Smith and Gar-
rou replied that they had no answer then as they needed
time to study the demands . Zimny expressed surprise that
Respondent had not prepared any "counter -proposals"
although it had the demands since May 28. Smith said
Respondent had other problems in its business and had
no chance to study the demands. Zimny insisted that,
because of the urgent situation created by the strike, the
negotiations must have "top priority," and could not be
given a "back seat to other company business ," there
must be "crash bargaining ." He demanded that Respond-
ent have its counterproposals prepared for the June I 1
meeting , and that Smith forward a copy to Zimny in suffi-
cient time for him to review them before that meeting.
Smith said he would try to do this. Edward Garrou ex-
plained that he would like to discuss the demands with
President Louis Garrou before giving a reply, but Louis
was in New York City and would not return to Valdese
before June 12 Zimny replied that if Louis was important
to the negotiations , Respondent should bring him into the
meetings . Smith suggested cancellation of the June II
meeting because Respondent needed more time to study
the Union ' s proposals and prepare a serious reply to
them, pointing out the number and length of the
proposals. Zimny refused to put off the meeting , saying
that Respondent must prepare its answer for Friday, that
the situation required "no further delay ," that the parties
"must get down to serious , hard bargaining at once."
After this exchange of remarks , the parties spent
several hours until 8:15 p.m . in reviewing the remainder
of the union contract , with Zimny explaining its provi-
sions, and Smith from time to time suggesting changes in
wording Near the close , Zimny repeated his request for
receipt of Smith ' s suggested changes in form of a contract
proposal before June 11. Smith said he would try to do
so. He also requested that additional copies of the union
proposal be sent to him. Zimny sent them on June 9.
On June 10, Respondent mailed to Shapiro at his
Greensboro , North Carolina, office a single sheet con-
taining average hourly earnings of Pons workers covering
the first 3 months of 1965. Shapiro got this in the usual
course.
3. The June 11 meeting
At the outset, Zimny asked for Respondent's response
to the union demands Smith replied that he had been
preparing the company proposals and would submit them
to Zimny before the next meeting, and asked that
Respondent not be required to give an answer on the
economic demands at that time, as it had not fully studied
them and was not yet prepared to respond, because com-
pany personnel were working on a compilation of the
economics of the Union's contract demand, hence
Respondent would be in a better position to reply at the
next session, and it would be more constructive and
would save time if Respondent presented a complete set
of counterproposals at that time. Zimny insisted that
Respondent should give its reply on economic demands
at once, saying it had had them for 2 weeks. Smith then
said that the Union's demand for a general 20-percent
wage raise was too high, "unrealistic " Zimny asked for
a counterproposal on wages and allied demands, and
Smith said Respondent had none at that time, only in-
dicating that Respondent presently desired to continue its
present wages, overtime, and vacation plan. During this
discussion, Smith gave Zimny a copy of the 3-month
average hourly earnings previously sent to Shapiro.
Zimny commented that this was no more than an amplifi-
cation of the data submitted previously, but did not give
the Union the "basic resource data" on which the piece
rates were constructed, and which the Union needed.
Garrou said the basic data would be furnished at the next
meeting.
They discussed the Union's demands for reopening of
the contract for negotiations for changes in the Federal
minimum wage and increase in cost of living, but did not
agree; Smith expressed his personal opposition to any
reopening of a contract during its life.
Regarding the demand for employer contributions to
the Union's health and welfare, pension, and severance
pay funds, Smith replied that Respondent desired to con-
tinue its present deferred profit-sharing plan for all em-
ployees, which had operated in all its plants since 1962.
He claimed its benefits were equivalent to a severance
pay and pension plan, and gave Zimny copies of the com-
pany plan, plus other literature given to employees about
the plan, as well as a sample certificate of the company
group life insurance plan. Zimny asked if Respondent
would improve on these plans instead of contributing to
the union funds, and Smith said it would not. In this
discussion Zimny gave Smith copies of the bylaws, rules,
and regulations of the union pension and severance pay
plans, and told Smith that those governing the health and
welfare fund were being revised by the trustees of that
fund with the help of Frank Constangy, an attorney in At-
lanta, Georgia, and that Smith could get the new rules
from Constangy.
The union proposal left the term of the contract blank.
In answer to Smith's inquiry, Zimny said the length of the
contract would "depend on the economic package, a
more attractive package justifying a longer agreement "
Smith replied that Respondent was opposed to a contract
running longer than 1 year. Zimny argued that a short
term made for turmoil and instability, and indicated sur-
prise at Respondent's stand, since he felt Respondent
wanted to end the strike and prevent its recurrence. Smith
argued that Respondent wanted to get better acquainted
with the Union before making a longer term contract.
Zimny's reply was that a year was not long enough to
develop such acquaintance, and then charged that
Respondent was trying "to prevent the establishment of
any relationship rather than truly test the stability of a
relationship," and called this "very bad news." The
parties reached no agreement on this point.
At the close, Zimny again complained about the lack of
any counterproposals from Respondent, asked if it had
any "positive" counterproposals then. Smith replied it
had none at that time, but that each item of the union de-
mands was being considered and any counterproposals
would be incorporated in Respondent's own contract
proposals. The Union asked for the next meeting on June
14 or 15. Smith suggested June 23, because of other com-
mitments. Zimny protested the delay, citing the strike and
arguing that negotiations could not wait on Smith's con-
venience, saying that the parties should meet the next
week, with or without Smith, as the local attorney,
Harold Mitchell (who had appeared at the earlier
meetings) would be available. They finally agreed on June
23. Zimny again urged that he receive Respondent's
counterproposals before that date so that he could study
ALBA-WALDENSIAN, INC.
them and be prepared to discuss them. Smith said he
would try to get them to Zimny by June 22, but doubted
if he could. Zimny complained this would give him too lit-
tle time to study them, and Smith said he was too busy to
furnish them earlier.
On June 21, Treasurer Garrou mailed Zimny Respond-
ent's formal counterproposals in contract form. Zimny
received it at his New York office the afternoon of June
22
4. The June 23 meeting
At the outset, when Zimny reminded Smith of his May
request for piece-rate data, Smith gave him a sheet enti-
tled "Method of establishing piece rates," which stated
that Respondent used "generally accepted time study
procedures for setting individual piece rates on incentive
jobs, and the particulars of which are available to the
general public from many sources," and indicated the
procedure might vary in minor detail depending on the
complexity of the job, and whether it involved a routine
style change, new job setup, or new method. It then
stated three steps followed by Respondent in setting rou-
tine rates on new styles: (1) a timestudy of a number of
qualified operators to reach a fair time, (2) addition of a
15-percent factor for variables, and (3) use of a mathe-
matical formula to fix the piece rate. Zimny protested that
the paper did not describe how piece rates were set, and
that it was "insulting" to refer the Union to "generally ac-
cepted time study procedures available to the public,"
that the Union did not want a reference to a textbook, but
the actual data Respondent was then using to fix rates.
Respondent's agents made no reply.
At one point Smith asked the Union for the health and
welfare data he had requested earlier , indicating surprise
that the Union could not furnish it, as it was distributing
such information to Pons employees in leaflets. The
Union's response, if any, is not clear.
Zimny complained about having received the company
proposals only the afternoon before, after a lapse of 11
days, and that he concluded it contained "no counter-
proposals at all" except for the concession of a 2-hour
call-in pay provision," and that it embodied the "status
quo" in all other respects , on some subjects made no
response at all, contained no provision for arbitration
while including a no-strike clause and a grievance
procedure which vested final authority on grievances in
Respondent without other recourse by the workers or the
Union, and that it provided for only a 1-year contract
term. He told Respondent the proposal was "wholly
unacceptable," that the employees had struck "against
the status quo," and it was absurd to think that the Union
would accept a contract containing only the "status quo"
except for one small concession . Smith and Garrou did
not deny Zimny's characterization, and Smith asked if the
Union was rejecting the company counterproposal.
Zimny replied there "were no counterproposals," but
only an insistence on the "status quo," which the Union
would not agree to , that it wanted to negotiate "our de-
mands" and hear and negotiate "counter-proposals."
At one point in the morning session , Respondent stated
that insurance premiums on group insurance covering all
11 Art 6, "Wages," was left blank , with the notation that the company
wage proposal had not yet been determined and would be submitted as
soon as possible
701
Pons workers was coming due, and it had paid about $220
toward the cost of the strikers' contributions to those
premiums, but it could not continue to do so. Zimny
replied that the Union wanted time to consider that.
Respondent also proposed to pay vacation pay to all
employees including the strikers, while admitting
Respondent had no fixed policy on that. Zimny warned
that the Union would consider it a violation of the Act if
strikers were treated any differently, as regards vacation
pay, from nonstrikers or workers on leave or layoff.
Smith assured him strikers would be treated the same as
other workers. Zimny asked that strikers' time out on
strike be treated as "service " with Respondent , and not
be deducted from length of service for computing vaca-
tion pay. Respondent agreed to this, and asked the Union
to agree to payment of vacation pay to the strikers. Zimny
said the Union would not agree , but warned that it would
be a violation of the Act if Respondent failed or refused
to pay them.
After a lunch recess, during which both sides took
extra time to allow the union representatives to tour the
plant, they resumed review of the company proposal.
Zimny asked if the one concession involved any cost, and
Boone said it was a small -cost item . Zimny then said he
wanted "economic counter-proposals " which were not in
this proposal.
When Zimny also complained about the lack of arbitra-
tion Smith replied in effect that : Respondent did not want
third parties deciding for it how it should run its business,
because it alone had the responsibility for managing the
business ; problems of operating the plant were un-
derstood best by the parties involved; and grievances
could best be resolved by them rather than a third party
who knew nothing about the operation. He argued that if
disputes about union activities of workers arose, the
Board would protect the Union and the workers, and if
Respondent violated the contract, the Union could al-
ways take the violation to court. He argued that arbitra-
tion was a time-consuming process, which left matters un-
settled in the plant until the decision came out , and also
objected to the fact that arbitrators' decisions were final,
not appealable. He argued that many union contracts con-
tain no provisions for arbitration. Zimny's overall reply
was: The company provisions invited strife and produc-
tion stoppages; it would be beneficial to both sides if
disputes were settled by an arbitrator just as judges settle
disputes between parties in court ; and "in our society
such third-party dispute settlement is traditional." Re-
garding the frequency of contracts with no arbitration,
Zimny replied that the Union had broad experience in
this field, as most of its contracts contained arbitration,
which had worked out satisfactorily. Smith asked to see
some of them, but Zimny refused on the ground that they
were confidential. He also refused to give Smith the
names of other plants in North Carolina under contract
with the Union. 12 Smith said he would be willing to ex-
amine a "representative" contract, with the name of the
employer deleted , but Zimny said he could not disclose
even this, without consent of the other employer . In sum,
Zimny firmly announced that the Union would not make
any contract which omitted arbitration and also
prohibited strikes, since the law gave the Union the right
12 He did furnish the names of two union employers in the State, at a
later date , but there is no proof that Respondent procured copies of their
contracts from them
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to strike, and it would give up that right only if it got
"meaningful arbitration ." As Respondent still insisted on
its provisions , there was no agreement on this,"' and they
turned to the manner in which Respondent was described
in its proposal.
The company proposal described the employer as
"Pons Outerwear Division , Alba-Waldensian, Inc.,
located at Valdese, North Carolina." Zimny said this
described a nonexistent entity, that the description should
be only "Alba-Waldensian , Inc." He explained that he
knew Respondent desired to contract only for the cer-
tified unit in the Pons plant , and he had no objection to
stating that in other ways in the contract , but he insisted
that the accurate corporate and responsible entity be ac-
curately described, otherwise the contract meant nothing.
He suggested alternative wording and phrases , such as
citation to the Board ' s Decision and Direction of Elec-
tion, and "Alba-Waldensian, Inc., solely for and on behalf
of its Pons Outerwear Div.," to show that the Union was
bargaining specifically for the unit at the Pons plant.
Smith insisted that his contract language must stand, that
the name in the preamble and elsewhere in the contract
must be the same as in the Board certification. 14 They ar-
gued about 2 hours, but without agreement on the issue.
After a dinner recess , the parties reconvened at 8:30
p.m. and talked for about an hour , mainly about the com-
pany discontinuance of payment of insurance premiums
for the stnkers. The Union finally agreed that it wo.tld
pay the strikers' proportion of 42 percent of the total
premium , to avoid hardship to them , and asked Respond-
ent to send it a list of the strikers and the amount due
from each . At the close, Respondent promised to give the
Union some counterproposals the next morning.
5. The June 24 meeting
When the meeting convened late in the morning,
Respondent gave the Union the list of stnkers with in-
surance premiums due for each. Smith then gave the
Union a packet of papers showing existing base rates and
piece rates at Pons for various operations , with changes
being considered on some jobs from hourly basis to incen-
tive rate , contemplated changes in job loads and rear-
rangements of some work layouts and job loads to accom-
plish labor cost reductions , and detailed piece-rate
schedules for operations in various categories of work,
with incentives on each . The union agents commented
that the papers contained only present pay provisions, as
they existed before the strike. Zimny asked if they
"amounted to a refusal to grant any economic improve-
ment and as insistence that the status quo be maintained."
Smith admitted that Respondent desired to continue its
present economic program without change , except for the
call-in pay provision, including the right to change the ex-
isting wage structure and cut piece rates and wages when
it desired . Shapiro and Zimny then emphatically charged
that this was bad-faith bargaining , asking again why it
took Respondent a month to tell the workers it would give
them no "improvements ." Smith replied that Respondent
had been studing the Union 's demands in this period, felt
that they were "unrealistic ," and that the Union ought to
scale down its demands. Zimny replied that the union de-
mands were negotiable , but the Union could not negotiate
on them in face of "outright rejection by Respondent with
no counter-proposals ." Zimny then said that , if it would
help, the Union would reduce its wage demands from 20
percent to 19 percent , and asked if Respondent would
change its position on wages. Smith said it was " not now"
willing to do so, and it was unlikely to do so in the future,
but that its present position did not "close the door" on a
wage increase. The union agents asked Smith why
Respondent would not make any "counter -proposals" on
economic demands, and Smith replied that Respondent
had been engaged in an economy program at Pons in an
attempt to reduce costs and remain competitive in rela-
tion to other textile plants in the area, and that main-
tenance of present wages and other economic benefits,
with the right to cut wages if necessary, was the only way
Pons could remain competitive.'' Smith then suggested
the parties discuss other contract clauses, but Zimny
replied that no agreement was possible when all of the
Union' s economic demands, except one unimportant
item, had been rejected outright "without counter-
proposals," this was bad-faith bargaining, and that it
would be futile and a waste of time to discuss contract
wording or other issues under the circumstances. The
parties then adjourned for lunch.
On resuming at 2:30 p m , Zimny asked if Respondent
had changed its position on economics , and was ready to
"make counter-proposals ." Smith said, no. Zimny again
charged Respondent with bad-faith bargaining , saying he
saw no purpose in continuing the discussions that day,
but that the Union would resume bargaining when
Respondent indicated that it would bargain in good faith,
and it appeared that "genuine" bargaining might take
place. Zimny asked if Respondent still insisted on no ar-
bitration and a no-strike clause. Smith said , yes. Zimny
said this was further proof of bad -faith bargaining, and he
saw no sense in continuing the talk , that Respondent's
"outright" rejection of the wage demand , and its stand on
arbitration "rendered any agreement on anything else an
academic exercise ." Smith still suggested that the parties
continue discussion of wording of other contract clauses,
but the union representative walked out about 3 p.m.,
leaving the company agents still sitting at the table.
On June 26, 1965, Smith sent the Union a letter con-
firming the agreement of the parties on the Union's pay-
ment of insurance premiuns for the strikers , and recount-
ing Respondent ' s version of the scope and progress of the
negotiations to date, and repeating that Respondent's
stand on wages as stated earlier was based on the need to
remain competitive in the industry. Zimny replied for the
Union on July 1, challenging Smith ' s statements , giving
his version of the company position on the union de-
mands, accusing it of "delay upon delay ," that its position
on the status quo, no arbitration and no strike "com-
pounds the insult and adds to the injury," accusing it of
17 At one point , apparently in this discussion , Smith alluded to the "ten-
tative agreement " procedure which Respondent was following , as stated
earlier , but Zimny objected to it, saying it was illegal under the law, and
that it impeded bargaining Smith insisted Respondent would continue to
bargain on that basis
14 The Decision and Direction of Election, dated April 30, 1965, in
Case 11 -RC-2167 and the certification dated May 25, 1965, both
described the Employer as "Pons Outerwear Division , AlbaWaldensian,
Inc
15 The discussion on wage rates is found from forthright and credible
testimony of Smith , as corroborated in part by admissions of Zimny
Testimony of the latter at variance therewith is not credited because of his
marked vagueness and evasiveness on cross-examination on this point, in
contrast to his precise and self-serving testimony on other points based on
his voluminous notes made during and following negotiation sessions
ALBA-WALDENSIAN, INC
only "going through the motions," and bad-faith bargain-
ing, but at the end suggesting resumption of bargaining on
July 6, pursuant to suggestions made by Shapiro.
After the June 24 meeting , the Union requested the in-
tervention of Federal and State mediators , who arranged
the next bargaining session for July 13, 1965.
6. TheJuly 13 meeting
At this all -day meeting , the morning session was
devoted to a review for the benefit of the mediators by
both sides of their respective and conflicting positions on
the bargaining to date , with Zimny charging Respondent
with bad -faith bargaining and Smith disagreeing . The sub-
ject of discontinuance of the strikers' share of the health
premiums was the first matter for bargaining , and was set-
tled by the Union 's agreement to collect all premiums
from the strikers and send it to Respondent in a lump sum
for transmission to the insurance carrier.'6
In the afternoon session , the mediators reviewed the
Union 's 24 original demands, item by item . When they
reached arbitration , Zimny repeated the Union 's firm de-
mand for third -party arbitration as a substitute for
economic warfare , for which it would give up its right to
strike , while Smith repeated Respondent's prior stand
against any arbitration and the reasons therefor , while of-
fering to provide a grievance procedure in which the
Union would participate as representative of the workers.
Thus, the parties neither changed position nor reached
agreement on this. However , after apparent full discus-
sion, they reached substantial agreement on the
"Discharge and Discipline ," "Conformity to Law," and
"Trial Period " clauses. In extended discussion on the
"Access to Shop" clause , Respondent objected that the
union proposal would give its agents unlimited access to
the plant , as well as all company books and records, and
proposed that such access be limited to one visit a month,
during which the agent would be accompanied by a plant
representative . Respondent argued these limitations were
needed to reduce interference with production. The
Union replied they were too restrictive , arguing that it
must have the right to visit the plant at other than
specified times to handle "emergency " situations involv-
ing grievances , but it recognized the force of Respond-
ent's argument by suggesting language to provide that
such visits should not unreasonably interfere with
production . To a company implication that "emergency"
visits might be manufactured by the Union , Zimny said
workers had a right to state a grievance , whether merited
or not , and that " if the Union is faced with a situation
where , by reason of its relationship to Respondent, its
day-to-day survival is ever-present , irresponsibility rather
than responsibility can be expected to be the order of the
day" and in such case the Union would be unlikely to
discourage processing of unmerited grievances, and
"would be less likely to act responsibly ," but that he
wanted a relationship where this could not happen and
the Union 's desires to administer the contract responsibly
"could be given full play." After a 15-minute private cau-
cus on this , the company negotiators said they would con-
sider this suggestion further and offer a counterproposal.
In discussion of the Union 's "Fair Employment Prac-
tices" and " Union Label " clauses, Respondent suggested
'" Early in this session, the Federal mediator prescribed as a mode of
procedure that the parties would try to agree to specific issues as rapidly
as they could , and all such agreements would be tentative "pending the
703
word changes in the first clause , which the Union took
under consideration overnight , and they apparently
reached no conclusions or agreement on the record. On
the "Job Rights, Illness, Leave of Absence " clause, they
had full discussion , with Respondent offering one conces-
sion and asking for one , but no agreement had been
reached when the meeting adjourned at 6 p . m., to resume
on the 14th
7. The July 14 meeting
The parties quickly reached agreement on the "Job
Rights, etc.," "Shop Steward ," " Distribution of Work,"
and "Assignment of Work " clauses, with some changes
of wording after short discussions After comparing
proposals on "Individual contracts - subcontracting,"
they did not reach agreement . The Federal mediator then
summarized their progress, indicating they had reached
agreement on eight noneconomic clauses. The Union
asked deferment of discussion of a "seniority " clause so
that Zimny could write up a proposal for the next meet-
ing.
The mediators then devoted the remainder of the meet-
ing to checkoff, names of parties in the contract, and a
date for another meeting . In a long argument about the
checkoff and union - security proposals , Smith said
Respondent opposed them and had no counterproposals,
because Respondent felt the employees should have the
right to do what they saw fit with their money, and
Respondent did not want to be in a position of pressuring
them into doing something that was a matter of their in-
dividual right and privilege , particularly through the agen-
cy shop service charge provision , which would require
those not joining the Union to pay it a service charge,
nevertheless , for its representation of them under the con-
tract . The Union argued that Respondent should have no
objection to checkoff because it was already required by
law to "checkoff," in effect , Federal income , social
security, and other taxes , and that Respondent had been
deducting other sums from workers ' pay for purchases of
company products , U.S. savings bonds, rental on com-
pany housing, local community fund contributions, work-
ers' club dues , etc. Smith replied that the deductions
required by law were a bookkeeping burden which it had
to assume by law , but it did not want to take on others
voluntarily , saying all deductions created an unfavorable
psychological result in that workers tended to credit
Respondent only with the exact amount of their take-
home pay, and for these reasons Respondent had stopped
most voluntary contributions cited above in the past, and
was preparing to discontinue the savings bond deductions
January 1 , 1966; the only exception was the single annual
deduction for community fund . Smith said that for the
same reasons Respondent specifically did not want em-
ployees blaming the Company for withholding of more
money from their paychecks for the Union , hence it did
not want to be party to any handling of employees'
money, and that it did not want to become the Union's
"bookkeeper." Smith also argued that there were other
union contracts without checkoff provisions , to which
Zimny replied that some of them in New York City had
none for "historical reasons ." The parties reached no
agreement on the subject.
complete picture " Smith replied that Respondent had always adhered to
that procedure I do not credit testimony of Zimny denying the Union's
agreement to this procedure, for reasons noted later
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the company name in the contract , Zimny repeated
the Union 's position stated earlier , and Smith still wanted
the description in the Board ' s Decision and Certification.
As before , Zimny suggested wording be placed elsewhere
in the contract to assure that no other plant but Pons was
covered by this contract . Smith repeated that his descrip-
tion was best , because the full resources of Respondent
stood behind any contract it made , and there was no in-
tent to avoid that full liability by use of the official
description . Zimny still insisted the official description
was not sufficient to make Respondent fully responsible
under the contract . They reached no agreement.
At the close , the Union wanted bargaining to continue
the next day , but they could not agree , and Smith
promised to give the Federal mediator a list of available
dates shortly , to let him fix the date. He finally fix' d July
22.
8. The July 22 meeting
When the parties resumed discussion of the company
name, Respondent submitted contract clauses naming it
as "Alba-Waldensian, Inc., solely for and on behalf of its
Pons Outerwear Division, located at Valdese, North
Carolina." This was substantially the wording suggested
by the Union on June 23, and Zimny replied the Union
could agree to this, but because of the long discussion on
it and to avoid misunderstanding, the Union wanted a
side letter of intent signed by the parties stating that this
language meant that the financially responsible parties
under the contract would be Alba-Waldensian, Inc., and
the ILGWU. Smith agreed, and in the presence of the
Federal mediator they dictated to a stenographer a joint
letter, to be signed by the mediator, which was to be
reviewed by the parties the next day.
When the mediators brought up "Access to Shop,"
Smith agreed to the principle of access, but wanted
reasonable limitations put on visits, asking for advance
notice of visits of union agents to the plant, with only one
visit per month except in emergencies (when the visit
would be confined to the company office) and a company
representative to accompany the union agent during
visits, except that the union agent could talk privately
with employees in the plant. Zimny countered with word-
ing to require advance notice "when feasible," and
providing against unreasonable interference with produc-
tion by the number or manner of visits. He argued against
Respondent's proposal saying it might induce a union
agent to create emergencies in order to secure a general
inspection of the plant. Zimny also argued that Respond-
ent's proposal was generally too restrictive, and would
also conflict with its own grievance procedure which
required processing of grievances within 5 days. Smith
then said Respondent would consider this further, and
Zimny suggested, after some discussion of the manner
and extent of inspection of company records, that discus-
sion on this paragraph be deferred for later discussion as
a separate provision.
11 Smith testified that the mediator had suggested both he and Zimny
draw up their own separate versions of clauses agreed onto that point, and
bring them to the meeting, and that he accordingly prepared 3 sheets con-
taining his version of the 8 agreed clauses, and submitted them at the same
time as Zimny brought in his packet of 10 The union agents denied
receipt of Smith's three sheets on August 4 or any other date, and I am
inclined to credit the denials because Smith was very vague about the date
of the mediator's alleged suggestion, as well as the date when he submitted
After discussion, the parties reached agreement on "In-
dividual contracts" and "Contractors - Additional
Shops," with some changes in wording, with the Union
agreeing to drop the requirement that new shops be
unionized. One paragraph of the latter clause was held
over for discussion on July 23.
9. The July 23 meeting
Continuing from the day before, the parties quickly
reached agreement on the remainder of the "Contractors
- Additional Shops" clause, with Respondent accepting
the union suggestions on revised wording of one para-
graph. Turning to the letter of intent concerning the com-
pany name, Smith submitted a separate draft prepared by
him which in effect was designed to make it clear that
wages, hours, and working conditions at other plants
could not be brought into the present bargaining or ad-
ministration of any contract achieved. Zimny objected
that this was illegal because it prevented the Union from
even bringing up other plants for discussion, during bar-
gaining on Pons. He requested adoption of the letter of in-
tent as originally dictated, but the parties could not agree.
The mediators had a private talk with the company
negotiators on this before lunch, and open discussion of
it resumed in the afternoon, but an impasse was reached
both on the contract name and wording of the letter. The
Federal mediator suggested that issue be tabled for the
present.
In the afternoon, Smith submitted a proposal on "Ac-
cess to Shop" including the provisions he suggested the
day before, but Zimny raised the same objections to
them, and no agreement was reached. Before closing, the
Union requested a session the next week, but after
discussion the mediator fixed August 4 at 1:30 p.m., ask-
ing the parties to hold open August 5 and 6 also. At the
same time, on Smith's suggestion the parties agreed that
Smith would prepare drafts of clauses agreed on to date,
and send them to the Union and mediator before the next
meeting.
Sometime after the meeting, Smith prepared an entire
new contract form of 28 articles, sending it to the Union
on August 2. However, Zimny did not get his copy by
that date, so he prepared a packet of 10 separate clauses
containing his understanding of the parties' prior agree-
ments and brought it to the August 4 meeting.
10. The August 4 meeting
At the outset, Zimny announced he had prepared his
own drafts of agreed clauses, since he had not received
any prepared by Smith, and gave copies of 10 clauses to
Smith and the mediators. At the same time, Smith gave
the Union his new contract proposal, saying it contained
the provisions agreed on and some new clauses." Smith
then reiterated his understanding of the "tentative agree-
ment" procedure. Zimny objected, saying it was improper
because the number of clauses already agreed on should
the three sheets, and in view of the mediator's salutary practice of getting
the parties to agree tentatively on one clause at a time during the July
meetings, I consider it unlikely that he would have suggested each side
submit its own version of the terms of agreement, which would have im-
plied some measure of disagreement still remaining for consideration,
rather than complete agreement on 8 or 10 clauses Further, Smith did not
specifically deny Zimny's testimony that Smith suggested that he draw up
the settled clauses, as he already had them in draft form
ALBA-WALDENSIAN, INC.
not be thus subject to revocation . Smith adhered to his
contention , saying Respondent would find it easier to
agree if the parties were not finally bound to each clause
as agreed on.
The mediators then brought up the wage demands. The
Union reduced its general wage demand from 19 percent
to 15 percent, but asked that any wage raise for piece
workers be calculated as a separate item above the piece-
rate earnings. Smith replied that Respondent rejected any
demand for any wage raise, that it stood on its previous
statement on this issue, and its position was contained in
its new contract proposal (which in effect continued its
present rate structure, and management's right to change
rates, work methods and workloads, piece and incentive
rates, and grant raises, but giving the Union the right to
discuss such changes with Respondent). Smith explained
that Respondent must continue its present wage structure
because of present competitive conditions of the Pons
plant, and began to refer to rates of competitors in the
area, but Zimny stopped him, saying the Union would not
listen to that because mere discussion of that subject was
hazardous and probably illegal under the Pennington
case,18 and he would not even stay in the room where
competitors' rates were being discussed. He also said the
Union was bargaining only for the Pons plant. Smith told
Zimny he had not read the Pennington case, but indicated
that if Zimny did not want to talk about competitors,
there was no way Respondent could show the competi-
tive position, so there was no need to discuss it further if
the Union would not.
Shapiro then reduced the union demand on overtime
pay to require such pay after 7-1/2 hours, instead of 7, for
the first year of the contract, and raising it to 7 hours for
the second year. Smith said Respondent would consider
this and respond the next day.
Shapiro reduced the holiday demand from 7 to 6 paid
holidays. Respondent replied it would not give any paid
holidays, but offered to add a 5th holiday, Easter Mon-
day, to those listed in its latest proposal. The Union re-
jected this because it offered overtime pay only for
holidays worked, and nothing for those not worked. The
parties did not agree on this.
Shapiro reduced the paid vacation proposal from 5 per-
cent to 4 percent of annual earnings for workers with ser-
vice up to 5 years, and from 10 percent to 8 percent for
those with more than 5 years' service. Smith said Re-
spondent would consider this and reply at the next
meeting.
On arbitration, the parties took the same positions on
the same grounds , as stated at earlier meetings . The argu-
ment on this issue was long and became rather animated,
with Zimny at one point calling the Respondent 's position
"stupid." Zimny again stated that the Union would not
give up arbitration unless it had an absolute right to strike
over an unresolved grievance . Smith said Respondent
would consider this, and reply the next day. There was
also a brief but inconclusive discussion of checkoff.
When the meeting adjourned about 5:20 p.m., the
Federal mediator suggested that Zimny, Shapiro, and
Smith meet with the mediators at their motel room that
evening, to try to reach some agreement on pending "dif-
ficult" matters which were causing a roadblock in the
discussions. The three agreed, and Smith had dinner with
the two mediators in the motel, and then went to their
room about 9:30 p.m. Zimny and Shapiro came in shortly
705•
after. The Federal mediator suggested to all that it might
speed the negotiations and reduce the "formalities" if
both sides reduce the number of their negotiators. Both
sides were agreeable, but when Smith suggested that the
Union cut its representatives from nine to four, the same
number that Respondent had at the table, Zimny
demurred because of the relationship of the union agents
to the plant committee (which would have to be cut down
under this proposal), and suggested the only way the
Union could reduce its group without embarrassment
with the plant committee was for both sides to cut their
bargainers to two, so that the Union could then advise the
worker committee that they could not attend any longer.
The mediator considered this a good idea, and Smith
agreed, but said he would discuss it with his fellow
negotiators and advise the mediators and the Union.
Zimny also suggested that the negotiations be removed
to the Union's main office in New York City, so that
company negotiators could get acquainted with Union
President Dubinsky and other high union officers. Smith
said he was available for the trip, but would have to talk
to James E. Garrou to see if he could go, as he would
have to be present.
11. The August 5 meeting
When the meeting began, Respondent and the Union
were represented by the same negotiators (less one com-
pany official at the outset); the workers' committee was
reduced to one person. The Federal mediator suggested
the terms be reduced to two on a side, to aid the negotia-
tions and reduce "formality," indicating other agents on
each side could be nearby for consultation. After a 30-
minute private conference of the company team, Smith
announced the Company would not reduce its team but
suggested the Union reduce its numbers. Zimny refused,
saying the Union would reduce its team only if Respond-
ent did, that it would not be fair otherwise. They did not
agree on this. Zimny asked Smith about a New York con-
ference, and Smith said that, while the company men
were not against it, they did not see what could be accom-
plished by it. Zimny suggested it was a way to meet the
Union's top officials and become "more relaxed" in deal-
ing with the Union. Smith said he would discuss it further
with the company group.
The mediators brought up arbitration. One union objec-
tion to lack of arbitration without the right to strike was
that it deprived the Union of any ready means of policing
or enforcing the contract. At this meeting Smith said
Respondent would grant the Union the right to strike on
90 days' notice, in return for elimination of arbitration,
explaining that if the Union considered an adverse deci-
sion by the Company serious enough to call a strike, it
should give the Company some advance notice of its in-
tent to strike, so that Respondent could seriously recon-
sider its decision and try to work out the dispute
agreeably to the Union, because Respondent feared
strikes and desired to avoid them in any way. Zimny re-
jected this, saying 90-day notice was in fact none at all,
since few grievances would survive that length of time,
and in a short-term contract, a 90-day notice would
severely limit the Union's legal right to strike. He argued
the workers should have the same unconditional right to
strike without notice, as the Company had to finally reject
agreement on a grievance under its proposal. This argu-
"United Mine Workers ofAmerlca v Pennington, 381 US 657
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment was lengthy, both sides were firm in their positions,
and when Respondent would not change its position,
Zimny emphatically charged that the company negotia-
tors were "stupid," the company position was "primi-
tive," "Neanderthal" and a "throw-back to industrial
warfare." He argued that the Union did not want the right
to strike, but only peaceful relations, however "third-
party adjudication was essential or else we had no rights."
He gave other arguments, but the company group still re-
jected any arbitration, and the morning session ended
without agreement on this. In the afternoon, the parties
continued the argument for about an hour without
progress toward agreement. The Federal mediator then
held a private conference with the company team for
about an hour. When the parties reconvened about 4
p.m., Smith asked if the Union had changed its position,
and Zimny said, no. Smith then asked the Federal media-
tor for suggestions, but he would not broach any particu-
lar suggestion openly, unless both parties assured him
they would accept it.
12. The August 6 meeting
At the outset , Zimny again inquired about a bargaining
session in New York. Smith replied that the company
negotiators could not go to New York in the next 3
weeks, and in any event the meeting would be pointless,
as they did not see what it would accomplish.
The mediators then held private discussions with both
sides on arbitration , suggesting nonbinding advisory ar-
bitration , with a 30-day strike notice clause . The media-
tors could not secure agreement on this proposal. When
the parties could not agree on a meeting the following
week due to other engagements of the company negotia-
tors, the Union asked the Federal mediator to arrange the
next meeting . The union men had to leave the meeting
after only a morning session , to meet with the Union's
local attorney.
13. The August 18 meeting
Sometime after the August 6 meeting, Shapiro through
the Federal mediator asked and secured a private talk
with Secretary Garrou, which was held on the 18th for
about an hour in Smith's law office, to discuss the
progress of the bargaining, and in an effort to get better
acquainted and try to "remove the basic underlying
problems" obstructing the negotiations and agreement on
a contract. Shapiro complained that the Company had not
submitted any "real counter-proposal," that wages,
hours, holidays, vacations with pay, hospitalization in-
surance, the company name in the contract, arbitration,
and union security in the form of checkoff and union
membership had to be negotiated and settled "in order to
achieve a contract." Shapiro mentioned that he felt
Respondent feared the Union was trying to get Respond-
ent's other plants involved in the negotiations. Garrou
said he understood that some organizational activity was
going on in its other plants, and asked if the Union was
trying to organize those plants, and if the Union was
responsible, why it was going on. Shapiro replied that the
Union felt it had to harass Respondent by passing out
leaflets at other plants, but that it had no jurisdiction over
the other plants and was not interested in any except
Pons, where it was certified, and possibly the Alba plant.
Garrou replied he was glad Shapiro had clarified the
Union's position on that.
Garrou said he felt that the issue of company name had
been settled, but Shapiro reminded him that the Union
still wanted a letter from Smith indicating Respondent
would assume full financial responsibility under the con-
tract. Garrou said he thought the contract wording fully
protected the Union, but Shapiro maintained it did not.
They discussed briefly the problems of checkoff, the in-
surance plan, size of the negotiating teams, without trying
to bargain formally on them.
They discussed arbitration at length. Shapiro insisted
this was an item which "had to be negotiated" in order to
reach an agreement, because union security could not be
protected without arbitration. Garrou argued that he had
done business for years with other companies and people
on the basis of mutual understanding, good faith, and
trust, and had always managed to work out differences on
that basis, and felt they could do the same without arbitra-
tion. He referred to a remark of Zimny that Respondent
should "respect" the Union, and said that respect was
something to be earned, not demanded. Shapiro argued
that arbitration was the only way to settle a dispute, that
a strike, whether on 90-day or 7-day notice, was no way
to settle a problem. Garrou replied that Respondent
feared strikes, and would do everything in its power to
prevent strikes by reaching decisions on grievances
agreeable to both sides. Shapiro argued that arbitration
was not so formidable by saying that in all his years with
the Union he had only gone to arbitration "2 1/2 times."
Garrou replied that if he had used arbitration so little,
"that proves my point, we don't need arbitration here."
He also argued that an arbitrator "does not have to live
with his decision, but we do, and for that reason we do not
want it here," that if Shapiro and Garrou, as reasonable
men knowing the operation of the plant, could not sit
down and work out a dispute to their satisfaction, they
could hardly expect someone with no such knowledge to
do it any better. Shapiro said the Union would be glad to
use an arbitrator well versed in the textile and knitting in-
dustry, and also suggested that both might agree on a
specific arbitrator. He asked if Respondent had ever con-
sidered "limited" arbitration. Garrou replied that
Respondent would consider anything the Union offered.
At the close, Garrou said the meeting had been useful
to clear up some questions in his mind , by clarifying the
Union's position, and he wanted to discuss this talk with
company officials, as Respondent wanted to conclude a
fair agreement They apparently fixed August 20 as the
date for the next bargaining session, but it was later can-
celed by agreement.
14. The August 24 meeting
At this 3-hour meeting, without mediators present,
Shapiro was the chief union spokesman; aided by one
Nick Bonnano. At the outset, Bonnano said he assumed
any agreements reached by the parties on any single item
were tentative "until we get the whole works." Smith
agreed to this.' 9
Prior to the meeting Shapiro had sent Respondent's
19 I find this agreement on clear and credible testimony of Smith Bon-
nano did not testify at all I do not cremt Shapiro's denial, because it is
vague, based only on a lack of recollection.
ALBA-WALDENSIAN, INC. 707
agents a proposal on "seniority," and after detailed
discussion of its paragraphs, they agreed upon its sub-
stance, including an added phrase suggested by Smith.
However, Shapiro said that in the absence of Zimny, he
could not give final consent to the exact language
changes, although he could agree finally to its substance.
When Shapiro brought up arbitration, Smith, Garrou,
Shapiro, and Bonanno held a private discussion (with the
workers' committee excluded), in which Smith repeated
in detail Respondent's reasons for opposing any arbitra-
tion, also citing a strike in another textile mill and circum-
stances indicating an abuse of arbitration by another
union . Shapiro replied that, if Respondent was afraid the
Union might abuse the right of arbitration, the parties
should consider ways of limiting the rights of an arbitra-
tor, and Shapiro offered to prepare a clause to that effect
and submit it at the next meeting. Smith agreed. The four
then returned to open meeting where Shapiro reported
the private discussion to the workers' committee.
15. The September 2 meeting
At this meeting, attended by the mediators, Shapiro at
the outset submitted his proposal for limited arbitration,
and the meeting adjourned for 1-1/2 hours to allow the
company negotiators to consider it privately. On recon-
vening, there was open discussion of it, with Smith asking
questions. He also suggested language changes, which
Shapiro said he could not accept in the absence of Zimny.
Smith said Respondent objected to the clause mainly
because its wording had not limited the arbitrator along
the lines it had in mind.20 He said Respondent would give
its counterproposal the next day.
16. The September 3 meeting
At the outset, Smith presented a new grievance
procedure clause, which included the right to strike on 30
days' notice, but omitted any provision for arbitration.
Shapiro examined it and rejected it "out of hand," saying
that if Respondent insisted on this, the Union wanted the
right to strike at once on final rejection of a grievance by
Respondent, and would accept nothing else. Shapiro also
charged Respondent with dilatory tactics in using the
September 2 meeting to review the Union's proposal, and
charged it with adamant refusal to accept any form of ar-
bitration. The Federal mediator called a short recess to
confer privately with the company negotiators. On
resuming the discussion, he announced that, due to the
firm and unyielding position of both sides, the parties had
reached a stalemate, and he felt that mediation could no
longer aid the negotiations. The union representatives
then left the meeting. The mediators did not appear at any
later meetings.
17. The September 21 meeting
The parties resumed negotiations by agreement on this
date, with Zimny and Shapiro speaking for the Union.
Shapiro claimed he had reached a mutual understanding
with Garrou in their private talk, that Respondent would
agree to the principle of limited arbitration, and the Union
had submitted a proposal on that. Smith denied that
Respondent had agreed to any arbitration, and said he
had examined the limited arbitration proposal, but could
find no limitation in it. Zimny charged that this made it fu-
tile to discuss the limitations, but nevertheless proceeded
to explain how it varied from the first union arbitration
proposal. Smith replied that he did not know of any form
of arbitration which Respondent would accept, but said
it was always possible that the Union might "come up
with something." He reiterated that Respondent would
not surrender any of its managerial rights to an arbitrator.
At this point (after a half-hour discussion), the company
team caucused privately for 15 minutes, following which
Smith said that Respondent insisted on no arbitration, but
would give the Union the right to strike on 30 days'
notice. Shapiro then charged Respondent with bad faith,
and announced the Union was ready to tell Respondent's
consumers and retailers about the bad faith of Respond-
ent in the negotiations. Zimny repeated that the Union
demanded "meaningful arbitration" or the absolute right
to strike. The company team caucused privately for 10
minutes, and then Smith suggested the Union prepare
another proposal on limited arbitration. Zimny said it had
already submitted two, and the mediator a third, all of
which Respondent had rejected, so that Zimny could not
figure out what kind of arbitration Respondent might ac-
cept. He suggested that Respondent prepare and submit
its own proposal on what it would accept. Smith refused,
insisting the Union submit another proposal. In further
discussion, Zimny referred back to the two union
proposals, and proposed that the Union would give ad-
vance notice of a strike if Respondent would give some
advance notice of its intended decision regarding a
grievance, explaining that the Union would not insist on
the absolute right to strike, so long as company action on
a grievance did not become final. Smith rejected this,
reiterating that "there would be no contract -which would
sacrifice management's right to manage the company, the
company would not surrender that right to any arbitra-
tor." Zimny suggested it might be helpful if the parties
exchanged proposals on arbitration in advance of the next
meeting, and both sides agreed to do this by Friday, Sep-
tember 24, and also fixed September 30 for the next
meeting.
On September 24, the parties sent each other their
proposals on arbitration and strikes. Smith's letter en-
closed as Respondent's third proposal a provision repeat-
ing its previous proposal on grievance procedure, and
granting the right to strike on 30 days' notice, with the
same supporting arguments. Smith also indicated resent-
ment at Shapiro's threat of a consumer and customer
boycott, and expressed the hope that there would be no
future "personal insults" or attacks on Respondent's in-
tegrity. Zimny's letter, while submitting a new strike
clause with a 10-day notice provision, repeatedly charged
that Respondent's rejection of the principle of arbitration
forced the Union to insist on the right to strike reasonably
soon after presentation of a grievance, and that the com-
pany position was a "rejection of peaceful industrial rela-
tions and a return to the discredited past when economic
warfare rather than third party adjudication was em-
ployed in resolving differences of opinion," and that it
"substitutes war for peace" in settlement of industrial
problems.
20 The clause, in effect, limited the powers of the arbitrator only so that
he could not alter, or go beyond the terms of, the contract, but made his
decision final and nonappealable
310-541 0 - 70 - 46
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18. The September 30 meeting
At this session Attorney Jack G. Handler also ap-
peared for the Union, but merely observed the
proceedings. Zimny rejected Respondent's grievance
proposal because it was the same as prior proposals, and
argued that the 30-day notice on strike did not amount to
any right to strike at all. Zimny called it a "phony" and a
"joke" because under its wording the Union would have
to waive its right to strike, in effect, unless the strike took
place immediately after expiration of the 30th day. Smith
admitted that his construction of the company proposal
was substantially correct, arguing that the Union should
act promptly and not leave the Company in suspense, so
to speak, about the status quo of the disputed grievance.
Smith rejected the Union's proposal with its 10-day
notice of strike.
Zimny reverted to the Union's original 24 demands,
trying to review them in detail. Smith objected to this,
saying Respondent had submitted several counter-
proposals covering the whole list, and such a review
would ignore all the bargaining on them since May 28.
Zimny replied that the Union had received "no counter-
proposals."
Shapiro then turned to economics, asking if Respond-
ent had anything to offer in reply to the Union's last
wage demand of 15 percent. Smith said it had none.
Shapiro asked for the company position on the Union's
latest overtime pay proposals, and Smith reiterated that
Respondent offered only its current practice which con-
formed to Federal law. The Union asked if Respondent
would pay overtime after 8 hours per day, which was in
effect a concession from the Union's last proposal of 7-
1/2 hours per day, but Smith made no other offer than
current practice.
Shapiro then brought up the last union proposal on paid
holidays, but Smith said Respondent would not discuss
economics any further, that Respondent's position stated
in its contract proposals was unchanged. Zimny charged
this was not collective bargaining, because a refusal to
discuss and negotiate items made bargaining impossible.
Zimny then displayed a notice posted by Respondent on
July 29, in its other six plants, announcing the grant of
two paid holidays, and argued that Respondent was refus-
ing that benefit at Pons. Smith replied that Respondent
was bargaining for Pons alone, that action at other plants
was not an issue here, however, that Respondent was not
refusing two paid holidays at Pons, but would consider it
further and give an answer as soon as possible.
Zimny brought out a trade paper report about Respond-
ent's most recent annual report to its stockholders,
which indicated that Respondent's profits had risen about
83.9 percent in the past fiscal year. Zimny asked why
Respondent refused to make any "counter-proposals" on
economics if it had such a large profit. Smith said that ar-
21 I find the facts on this portion of the discussion from credited
testimony of Smith and Garrou, as corroborated in substantial part by ad-
missions of Zimny and Shapiro I do not credit testimony of Zimny at vari-
ance therewith Zimny testified his mention of the Pennington case and
refusal to discuss competitors or their rates arose when Smith brought up
the subject of other I LGWU contracts with textile mills, and asked for co-
pies thereof, but I do not credit this, because the record clearly shows that
Smith mentioned and asked for such contracts only in connection with the
discussion of the arbitration clause proposed by the Union, during wt ich
the union agents cited their alleged successful use of arbitration with other
employers , which prompted Smith to ask to see the arbitration clauses in
ticle contained serious omissions, commented that
Respondent's rate of return on investment was less than
one could obtain from a savings and loan account. He
added that the trade report made no difference in the
discussions, because they were bargaining only for the
Pons plant, not the whole Company. He then began to ex-
plain that Respondent's position on economics at Pons
was based on its competitive position there, but Zimny
stopped that discussion again by citing the Pennington
case, the hazards and possible illegality of discussing
other employers and their rates because of a "dictum" in
that case, and the Union's refusal to discuss that point,
listen to any remarks about it, or even sit in the same
room while that discussion went on In this discussion,
Smith offered to show the union negotiators a sheet of
paper showing that Pons rates for various operations
were in excess of rates of three alleged competitors
(designated by letter, not by name) for the same jobs.
Zimny refused to receive, look at, or even discuss the
sheet or the facts on it for the same reason.21
Zimny then referred to a company letter of September
13 requesting the Union's consideration and approval of
its desire to eliminate a guarantee of pay to piece-rate
workers which was instituted after the strike began, on
the ground that smooth production had been restored in
the plant, eliminating the need for the guarantee.22 Zimny
said the Union could not bargain on this request , unless
it had the data underlying the piece-rate earnings of these
workers, and he requested that Respondent furnish the
Union promptly after this meeting the earnings and
production percentage of the employees, both when they
were hired and periodically thereafter.
The company officials indicated they also wanted to
give merit raises to certain employees, and Zimny asked
for their names with data supporting the raises.
19. The October 7 meeting
At this all-day meeting, the union spokesmen were
Handler and Shapiro; Zimny was not present. Shapiro
said he had Just received the names of eight workers listed
by Respondent for merit raises, and had no chance to
consider it. After Cost Supervisor Boone had recited for
Handler the specific data which Zimny had requested on
September 30, the parties spent most of the morning
discussing the proposed raises, and Respondent's reasons
for them, with the union representatives questioning Gar-
rou, Boone, and Assistant Plant Manager Bleynat about
the justification for the raises, company policy on such
raises and raises in general, and how often wages were
reviewed, all of which the company agents answered in
general terms, such as that there was no written rule
prescribing regular annual or other raises, which were al-
ways based on the judgment of the supervisors based on
all the circumstances, and that various factors entered
those contracts, there is no indication that wages or other economic items
were being discussed at these times, hence it is unlikely that Smith would
have asked to see them at that time under guise of looking at the arbitra-
tion provisions, but really to see the economic provisions Since the
Pennington decision dealt with an illegal conspiracy by contract to regu-
late wages in an industry, as noted thereafter, I cannot believe that Zimny
would have used it to cut off discussion of other ILGWU contracts with
arbitration clauses
22 In the same letter , Garrou indicated a desire for an early meeting, fol-
lowing discussions between Shapiro and Smith earlier
ALBA-WALDENSIAN, INC.
into the decision Handler said the Union needed to know
the factors considered in justifying the eight raises. He
said they were not making any progress on this, that the
Union needed more information, and requested that
Respondent furnish a list of all Pons employees, with
dates of hiring, dates and amounts of last raises, pay
received before the raises, and the pay with all variations
received by all employees for a 10-year period before July
1, 1963. Smith replied that this broad demand was
completely out of reason, and that Respondent did not
have the clerical staff to prepare it. Boone gave Handler
an estimate of the average number of persons receiving
merit raises annually. Handler withdrew his request for
information about the piece rates of the eight workers.
Smith then proposed that Bleynat be brought in at the
next meeting to explain in detail the reasons he had
requested these raises, in lieu of all the data the Union
requested. Handler asked if Bleynat would bring the
books and records the Union asked for, and Smith said,
no. Handler then asked when Smith could tell the Union
what information Respondent would furnish. The com-
pany team held a 15-minute private caucus, following
which Smith said the period of time for which the Union
wanted this data was unreasonable, but Respondent
would consider the request, although it felt the Union was
not entitled to any data before July 1, 1963. Handler
pressed his request. Smith said Respondent would
comply with it to the extent it considered reasonable, and
thought Respondent might have such data available for a
2 p.m. meeting the next day, if the Union could meet
then. The union agents said they would not meet then.
Shapiro then asked for the data the Union had
requested on the company proposal to eliminate the
piece-rate guarantee. Smith gave the Union two typed
sheets containing a "Summary of Information" which
contained a general explanation of the reason for the
proposed elimination and two sets of figures dealing with
past and present production at Pons. Shapiro said the
Union would respond to this at the next meeting. Smith
asked for its reaction by mail before that, and the union
agents said they would try to do that.
Shapiro then asked for the company counterproposal
on paid holidays. Smith asked for deferment of that issue
until the next meeting, but Handler requested that any
counterproposal be submitted then. After a 10-minute
private caucus of the company team, Smith said Respond-
ent's proposal was in article 12 of its contract proposal
of August 4 (which had listed four stated holidays for
which employees would be paid overtime rates if they
worked), but that Respondent would add Easter Monday,
and would pay employees 8 hours' pay at straight time if
they did not work on any of those days, and holiday pay
plus actual pay if they did. The union agents were dubious
about this proposal, rejecting it "tentatively." Smith
asked what that meant, and Handler replied that it was
possible the Union "could find this acceptable if the
Union's other bargaining demands were satisfied." Smith
then repeated the "tentative agreement" procedure which
he said the parties had adhered to from the outset, and
Handler did not disagree with it.
Handler asked for the company position on wages, and
Smith said it was in article 6 of the company proposal of
August 4. Handler then referred to the prior discussion
23 The findings on the wage discussion are based on credited and mu-
tually corroborative testimony of Handier, Shapiro, Smith, and Garrou
Testimony of any of these witnesses at variance therewith is not credited
709
about the trade report of the Company's financial status,
and both he and Shapiro asked Smith if he still claimed
that report was inaccurate Smith repeated that it con-
tained serious omissions. Shapiro asked him if the last
year's financial report had not shown payment of an in-
creased dividend per share. Smith said he had not seen
that. Shapiro said he understood that company earnings
per share had doubled over the prior year. Smith asked if
he was talking about the earnings of Pons Outerwear
Division, or the whole Company, and Shapiro said the
whole Company. Smith replied that the only relevant sub-
ject for discussion was the condition of the Pons plant.
Shapiro commented that when the Union had produced
the financial report at the last meeting, Respondent
refused to discuss it because it was not limited to Pons,
and did not show the complete picture. Smith repeated
that he would not get into a discussion of the financial
condition of the whole Company, because the certifica-
tion covered only Pons. Shapiro then said that he thought
Respondent should disclose the financial situation of that
division. Smith replied that the company position on
wages was article 6, and that if Respondent ever did alter
that position, it would do so in writing.23
Shapiro then said the Union was reducing its wage de-
mand from 15 percent to 12 percent across the board, and
asked if Respondent had any "counterproposal." Smith
said, no. Shapiro asked what this meant, and Smith said
_"Article 6." Shapiro then asked if Respondent had any
other "counter-proposal" to make, and Smith replied that
it was "not likely," but if it did have any, it would be sub-
mitted in writing, that its mind was "not closed," the
"door was not closed." Handler then asked why Re-
spondent was so adamant in maintaining the status quo
and in its refusal to grant a wage raise. Smith replied that
its position was based on its judgment as to the Pons
plant.
Handler then started to review the Union's original list
of 24 demands, item by item, asking the Company for its
position on them. Smith said he would not talk about that
list, because Respondent had already given counter-
proposals on some, the parties had discussed all of them
in the past, and he saw no reason to start from the
beginning. Handler replied he did not blame Respondent
for refusing to talk about the "list," but he wanted to
discuss only the "contractual areas" covered by the items
on the list Smith replied the company proposal of August
4 stated its position on them. Handler asked about wages,
and Respondent replied "Article 6." Handler asked for a
"counter-proposal." Smith repeated, "Article 6, but our
minds are not closed." The union men then asked if
Respondent would let them know at the next meeting if it
had any counterproposal on wages. Smith replied "if we
have something," and also promised to try to give the
Union a written counterproposal on paid holidays.
On October 13, Boone mailed to Zimny, with copies to
Handler and Shapiro, computations showing all merit
raises given at Pons from July 1, 1963, to date, covering
34 employees so honored.
20. The October 19 meeting
At the outset, Respondent submitted its "third" coun-
terproposal offering two paid holidays, with Smith ex-
In particular, I do not credit testimony of Handler and Shapiro that Smith
admitted that only the financial condition of the Pons plant was relevant
to the negotiations
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaming the first was in its original contract proposal, and
its second had added Easter Monday. Handler claimed it
contained three limitations not stated in the Company's
verbal proposal at the last meeting. Handler asked why it
was offered in this form and accused Respondent of giv-
ing Pons workers the same, or less, than it gave workers
in other plants. Smith replied it had been drafted to con-
form its benefits to modifications which Respondent had
made July 20 in its holiday program at other plants. Hand-
ler asked questions about Respondent's exclusion of
seasonal, temporary, part-time, and casual employees, its
definition of those categories, how many employees were
included therein, and the amount of money involved in
such exclusions. Smith defined the categories, and said
such employees were also exempted from other company
benefits. Handler complained that this was all new data,
and "onerous," and the Union would temporarily defer
response on it, as he did not consider that the Company's
oral response on October 7 had included the three limita-
tions, but that the Union would study the proposal for
discussion at the next meeting.
Shapiro brought up the piece-rate guarantee and the
piece-rate data which Respondent had given the Union,
and asked the company group how Respondent arrived at
the starting rates. When Smith and Boone indicated there
was no single starting rate, that each man 's rate was based
on various factors, such as experience, skill, requirements
of the job, etc., Shapiro asked for the guaranteed or
minimum rate paid a fairly skilled worker on a given job.
Boone replied that rate was a constant which did not
change during a worker's tenure. Shapiro asked for the
maximum rates paid by Respondent. After a 20-minute
private discussion of the company team, Smith said this
data was in a document Respondent sent Shapiro on June
10. Handler examined it, and argued it was not what he
asked for, as it gave only average hourly earnings.
Shapiro asked again for the guaranteed or minimum rate,
but Respondent's agents gave no further answer.
The parties discussed the proposed merit raises for
eight workers most of the afternoon. Handler asked for
certain information which he said the Union needed to
bargain on the raises, and Smith referred to data enclosed
in Boone's letter of October 13. About 6.30 p.m., Smith
proposed continuing the meeting after dinner that even-
ing, but Handler said he could not because of plane reser-
vations secured for that evening, and also indicated he
could not meet the next day due to prior commitments
However, he suggested the next meeting be set up as a 2-
day, or "back-to-back," session . He asked for a new date,
Garrou said he could not meet for part of the next week,
and Smith finally said he would call Handler at his Atlan-
ta office on the 20th to arrange a date.
Before adjournment, Smith asked if the data Respond-
ent had sent the Union on elimination of the piece-rate
guarantee was adequate, and asked for answer to the
proposal, as Respondent wanted to cut out the guarantee.
Handler replied the data was conclusionary, not enough
to enable the Union to decide if the move was justified,
and that Respondent should supply "non-conclusionary"
data if it really wanted to bargain on this. He said he could
state in detail what Respondent wanted, but felt that all
the negotiators were tired out, and doubted whether they
were accomplishing anything. Smith asked him to spell
out the information he wanted. Handler then listed (1) the
criteria or formula the Company used to reach the per-
centage figures, and the dozen-per-operator week figures
set forth in the October 7 document; he asked for this
data for the four different periods stated in it; (2) the
description of the type of work and styles handled by
operators in each of the periods, and (3) copies of
timestudies or like information which Respondent had
used to reach the conclusions in the document. Boone
noted these requests in longhand, and while he did so,
Smith said Boone did not have to "listen to that stuff,"
that he did not understand what the Union was asking for.
Handler suggested adjournment, but Smith said he
wanted an answer then on elimination of the guarantee, as
Respondent had already given the Union more than
enough data on that and the merit raises , hence Respon-
dent might decide to act on one or both matters uni-
laterally before the next meeting. Handler warned that
Respondent did this at its peril, insofar as a violation of
the law was concerned, and Smith said he was aware of
this.
On October 20 Handler and Smith by telephone ar-
ranged for a dual meeting on October 25 and 26, but on
the 24th Handler became ill and did not want to risk a trip
by air to Valdese, so he asked Smith for postponement of
that meeting; Shapiro was also agreeable, as he had hurt
his foot that weekend. By telephone call and confirming
letter of October 27, Smith and Shapiro agreed on
November 2 and 3 for the next meeting , and they ad-
vanced the date to November 1 and 2 at Snith's request.
On October 27, Boone sent Handler, with copy to
Shapiro, figures showing average dozen-per-week
production for four periods, to supplement the data previ-
ously given to the Union.
21. The November 1 meeting
At the outset the union agents told Respondent they
would not object to the specific eight merit raises
proposed by it, but that they made this concession
without admitting they were merited or otherwise
justified under Respondent ' s past practices, and still
protesting Respondent's failure to give them adequate
data on this subject.
Handler then complained that the additional data on
piece-rates sent by Respondent on October 27 was no
better than the data it submitted on October 7, was mere-
ly an "alternate formulation " and "equally conclusiona-
ry," and that unless the Union got the basic data
requested , it could not intelligently evaluate, much less
bargain about , the proposed guarantee elimination, that
if it accepted this inadequate data, it was "buying a pig in
a poke" and would be derelict in its duty to the workers.
He said that , in lieu of the basic data it asked for, the
Union should get the three types of material Handler
requested on October 19, plus a timestudy of plant piece-
rate operations by its own engineer, so the Union could
determine for itself the basis of the rates . Handler said
that , while he was not questioning Respondent ' s figures,
he wanted the study by the engineer so that the Union
could independently "confirm or evaluate" those figures.
Smith asked what controls would be placed on the en-
gineer in the plant, what he would want to see , and what
employees he would talk to. Handler said he did not
know, that the engineer could submit an agenda and work
it out with Respondent in advance , but the engineer
would want to examine data of the three types Handler
had outlined in the last meeting After more discussion,
during which Handler indicated he could not be more
specific, Smith rejected the engineer proposal because the
Union could not then indicate what limitations would be
put on his movements in the plant , and Respondent did
not want to leave him in a position where he could
ALBA -WALDENSIAN , INC. 711
propagandize for the Union. Handler said a policing ar-
rangement could be worked out, but Smith refused to ac-
cede to the visit, without knowing the precise data and
precise operations the engineer would examine. After
further talk without agreement on this, the company team
had a half-hour private caucus, after which Smith said
they felt Respondent had given the Union all the data it
had requested and needed, so it was rejecting the
engineer-visit proposal at that time; however, Respond-
ent would consider a clause in the contract permitting a
union engineer to enter the plant to assist Respondent in
reviewing and setting up piece rates. Shapiro asked
Respondent to put this in writing for the next meeting,
and Smith agreed to do so. Handler said the Union would
consider that proposal, although he did not view it as
"responsive" to, or a real alternative to, his proposal.
Handler then asked if Respondent had any offer on
checkoff. Smith said the answer was in article 3 of its first
contract proposal, which he read out loud. Handler asked
if Respondent had any other proposal than restating
provisions of the Act. Smith said this should satisfy the
Union, as it paraphrased Section 7 of the Act, and that
this was the company position on checkoff. Handler then
asked why Respondent objected to the checkoff, and
Smith repeated essentially the same arguments as made
on July 14. Handler raised substantially the same coun-
terarguments based on past deductions from employees'
paychecks, and said the written checkoff authorizations
from them required by the Act was the best proof of their
desire to have dues withheld from their paychecks. After
a short private consultation of the company team about
past deductions, to which Handler strenuously objec-
ted,24 Smith recited the same facts as before and admitted
that, aside from deductions required by law, Respondent
still deducted once a year for United Fund contributions,
monthly premiums for health and accident insurance, and
also monthly for contributions of employees to the com-
pany profit-sharing plan, all upon authorization of the em-
ployees involved. Smith emphasized the psychological
factor stated previously, and added that deduction of
union dues might also be considered interference with
employees' rights under Section 8(a)(1) of the Act. In
answer to counterarguments by Handler, Smith sug-
gested the employees could send their dues directly to the
Union, or the Union could solicit and collect them
directly from the employees. Handler admitted that the
Union had the right to do this without bargaining, but said
the Union was bargaining for the checkoff as something
beyond the statutory requirements. He then proposed
two alternate procedures: (I) that a union agent be al-
lowed to enter the plant, either during lunch or before or
after work hours, to collect dues, or (2) the union chair-
lady be allowed to collect dues during nonwork hours in
the plant. Smith replied that the Company had considered
these alternatives "long and hard, and the answer is still,
no." Handler asked how this could be so when he had just
offered them. Smith replied that the Company did not
want to get "involved." Handler argues these plans "un-
involved" the Company. Smith still said, no. Garrou ex-
plained the company policy against any type of solicita-
tion in the plant, and Smith argued that, while these
proposals did not really involve solicitation, "if we start
this kind of thing, where does it end," arguing that local
banks, merchants, and other financial instututions would
want the same type of in-plant collection rights as the
Union. Handler replied that none of these institutions had
been certified to bargain for the workers. Smith then sug-
gested the Union could have its agent collect dues outside
the plant at quitting time, "if it was profitable for the
Union." Handler then said it was more profitable to go
back to a discussion of paid holidays.
Handler had previously discovered that the October 19
company proposal on holidays requiring work before and
after a paid holiday, was like one the Union submitted
earlier, and that it gave Pons workers the same holidays
as in other plants of Respondent, so he told Smith he dis-
agreed only with the company omission of the exemption
of an employee's absence before or after a holiday "for
justifiable cause," and requiring that such absence be
"excused by the employer." There was no apparent
resolution for this difference in discussion.
The Union then offered a new economic proposal;
reduction of the wage demand from 12 to 9 percent across
the board, overtime pay after 7-1 /2 hours' work each day,
5-1/2 guaranteed paid holidays, a reopening of the con-
tract in event of any statutory change in the Federal
minimum wage or 4 percent or larger raise in the cost of
living under the Index of the Bureau of Labor Standards,
a 5-cent-an-hour premium differential for second shift,
and 10 cents an hour for third shift, and a 3-percent com-
pany contribution to the Union's health and welfare and
severance funds; Shapiro said he also had a revised
proposal on vacation pay, but would bring that up the
next day. The union agents asked Respondent to consider
these proposals overnight and "would expect the Com-
pany to come up with counter-proposals on some of these
matters" the next day. Smith commented only that he
personally did not like contract reopenings, as he thought
any contract should be settled for the contract year, but
he would let the Union know if Respondent felt dif-
ferently. He said Respondent would consider the
proposals overnight. Garrou commented that Respond-
ent had never received the new health and welfare fund
rules from Attorney Constangy. Shapiro said it was the
company duty to follow up on that, but offered to inquire
of Constangy himself.
22. The November 2 meeting
At the outset, Shapiro presented a revised vacation pay
proposal, the amount varying from 2 to 6 percent of gross
annual pay, depending on the worker's length of service.
The company negotiators caucused privately on this for
about an hour, and Smith then said the proposal required
intensive study by Respondent before a response could
be given, because Respondent wanted to work out a
"happy medium" between that and the company
proposal. Shapiro asked when the Union could expect a
counterproposal, whether in a week or a month. Smith
said he was not sure about a week, but probably within a
month.
Handler then asked for company proposals on the
other revised demands, and Smith replied that on wages
and overtime pay, the company position was article 6 of
its second proposal, and on paid holidays it stood on its
third counterproposal of October 19, after Shapiro ex-
plained the Union asked for the same holidays as in that.
Garrou asked what half a paid holiday meant, and
29 Handler told the company group he was tired of "company adjourn- or not, that Smith could ask the company officials about this at the bar-
ments," that it was a simple thing to know if there were other deductions gaining table without leaving the room
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shapiro said this was Election Day. Smith felt that a half
day was too long for voting.
On contract reopening, Smith expressed the same per-
sonal opinion as before, but said that was still open for
consideration, depending on the feeling of the Company,
which he did not know at that time. This was left open for
further consideration.
Smith said Respondent had no counterproposal then
about the shift premium demands, but would further con-
sider them because much study was necessary to estimate
the cost involved, before it could give a counterproposal.
Shapiro protested the delay on this, on the ground that
Respondent had known of the Union's demands on this
for several months and he could not see the need for
further extensive study at this point. Smith admitted
Respondent had had the Union's economic proposals for
a long time, but that up to this point it had shown no
desire to talk about economics, but only about arbitration,
and that Respondent had concentrated on trying to find
a satisfactory counterproposal on that subject. After a
short private company caucus, called by Garrou, the
latter said Respondent would offer a 10-cent premium for
third shift, but none for second.
On the demand for 3-percent contributions to two
union funds , Smith said the Company offered only arti-
cles 13 and 14 of its original contract proposal, pointing
out that Respondent had never received from Attorney
Constangy the new rules of the Union's health and wel-
fare fund. He and Garrou asked some questions about the
union demand on this point, including the scope of the
benefits of the two funds, which Shapiro answered; in the
discussion he told Respondent that the Union was
dropping the demand as to the retirement fund. He also
promised to procure the new health and welfare rules for
the Company in time for the next meeting.25 This issue
was left open.
After a 10-minute private caucus of the union agents
just before noon, Shapiro announced that Respondent
still had to offer a counterproposal on three subjects: va-
cation pay, contract reopening, and contributions to two
funds, and asked for a meeting on November 3 if Re-
spondent would be ready to answer on these subject at
that time. Smith suggested the parties continue bargain-
ing the remainder of that day. Garrou said Respondent
had a lot of "tall thinking" to do before it would be ready
to meet again. Shapiro. questioned whether Respondent
would need much time for "tall thinking," as it had had
the economic demands several months. Smith proposed
November 23 and 24 for the next sessions, but Shapiro
protested that Respondent was delaying the bargaining,
since the economic proposals were not new, only revised
and reduced, and he saw no excuse for nearly a month's
delay in responding. Smith pleaded pressure of other
professional engagements in the next 2 weeks, and said
Respondent needed more time for considerable study on
the revised proposals, saying it would try to get some
counterproposals to the Union before the next scheduled
meeting, but could not promise it because of the amount
of "research" required. Shapiro asked for a meeting the
25 Smith actually received them from Constangy on November 4,
although Constangy had promised them "a few days" after June 15 At
some time earlier in the negotiations , the Union had distributed a leaflet to
workers at the Pons plant, detailing the benefits paid out of its health fund,
and after Smith got the new rules from Constangy he discovered that the
benefits provided therein were the same as those in the leaflet
26 In that letter , Respondent said it could not agree to arbitration on the
next week, but Garrou replied that the vacation proposal
alone would require several weeks of study Shapiro dis-
agreed, but said the Union had no alternative but to meet
on the 23d; however, he asked for a firm promise of coun-
terproposal from Respondent before that date, and Smith
said that if Respondent had any to make, they would be
in the Union's hands at least 4 days before the 23d, and
that at the same time Respondent would have a written
proposal on plant visits by the union engineer to review
or set up piece rates.
Shapiro then asked for the present company position
on arbitration. Smith replied that it was stated in Wil-
liams' letter of October 13 to Zimny.26 Smith repeated
the basic philosophy of the Company against arbitration.
Handler asked for the Company's specific stand on ar-
bitration, and Smith referred him to article 24 enclosed in
its September 24 letter (which proposed the existing com-
'pany-controlled grievance procedure with privilege of the
Union to be present during the operation and to strike on
30 days' notice after an adverse decision). Handler com-
mented that the proposal omitted any arbitration, and said
the Union took the position that "some form of arbitra-
tion is basic to any collective-bargaining agreement," and
he could not understand Respondent's refusal to accept
the most basic rudimentary form of arbitration. Smith
replied he could not see why the Union wanted it. Hand-
ler replied that the Union had not in fact insisted on hav-
ing an arbitration provision, but had reluctantly proposed
its right to strike in the absence of arbitration. Smith
reviewed Respondent's various revisions of its position,
down to the offer of a right to strike on 30 days' notice.
Handler said this meant nothing, referring to Zimny's ar-
guments on that point. Smith started to explain Respon-
dent's basic reasons for opposing any arbitration, but
Handler stopped him, saying it was fruitless to listen to
each other's philosophical views on that, and suggested
turning to other subjects.
Shapiro again sought a promise of counterproposals
from Respondent before November 23. Smith said the
revised economic proposals required extensive study so
that he could not commit himself to promise a reply be-
fore that meeting. Shapiro then accused Respondent of
not really desiring time for study, but that it only wanted
time in which to consult Attorney Blakeney to find out
whether it was legally required to make any economic of-
fers to the Union, and if so, "what amount." As the basis
for this, Shapiro showed Smith a copy of his last letter to
Constangy, marked "blind copy to Blakeney."27 He
asked Smith if the Company was still consulting Blakeney
on the question of "how to conduct" bargaining, stating
that if Blakeney was in fact "calling the shots for the
management," it seemed "it was essential that Blakeney
appear at the negotiating sessions and participate in them
as a company representative." Smith replied that the four
men at the bargaining table were fully empowered to bind
the Company, and that Smith's relationship with
Blakeney was none of the Union's business. Shapiro then
suggested by various questions to Smith that the various
"delays and their length" were caused by the Company's
basis of arguments presented to that date , but was willing to discuss it
further , that it still preferred its existing grievance procedure , feeling that
the Union and the workers were protected by recourse to the Board or the
courts for violations of the law or the contract
27 The only such letter in the record is the original request of June 14,
1965
ALBA-WALDENSIAN, INC. 713
refusal to respond to union demands without first consult-
ing Blakeney . Smith denied this, saying that in any event
it was not the Union ' s business . In other questions to
Smith , Handler in effect charged that company recesses
for private caucus had at times been taken for purpose of
telephone calls to Blakeney to find out what response or
position the company negotiators should take on some
matters Smith admitted he had on occasion consulted
Blakeney about the negotiations and other matters as
well, but said that was not the Union's business. He
asked whether the Union had secured his telephone bills
as the basis for the Union's accusations about telephone
calls. Handler replied that it had reason to believe that
Blakeney was "calling the negotiating shots for the com-
pany," and that while this was not wrong , if the Company
wanted to use him in this way, it was obligated to produce
him (or whoever it was) at the bargaining table so that the
Union did not have to "deal with the continuing frustra-
tion of having to negotiate with a silent partner ." Handler
then expressed the view that the absence of Blakeney,
"or whoever it was," from the bargaining table was an in-
dication of bad faith by Respondent. Smith repeated that
Blakeney's connection with the matter was not the
Union ' s business , and asked how many times Handler
had conferred with Zimny or Union President Dubinsky.
Handler retorted he had not used such communications,
and they did not have the effect , "of dragging out and
delaying the negotiations ." Smith then offered to bring
President Louis Garrou to the bargaining table, to swear
that Smith had authority to execute a contract on behalf
of Respondent. Handler replied that this was not neces-
sary, as he was confident that Smith had that authority,
and he did not question it, but that the issue was the
"technique of negotiating the contract ." The meeting
ended with the parties agreeing to meet on November 23.
The Union received no written communications or
material from Respondent at any time before November
23 on the subjects discussed on November 2. However
it did receive in due course a letter from Garrou dated
November 3 advising that Respondent was giving eight
individuals merit raises as agreed on, and also resuming
its normal piece rate and incentive procedures as of
November 8, but that it was not thereby foreclosing the
subject from further discussion , explanation , alteration,
or revision.
On November 22, the Union sent Respondent a tele-
gram , formally charging it with a persistent refusal to bar-
gain, describing its actions during the negotiations in
disparaging terms of the type often used to denote bad-
faith bargaining , and refusing to hold further bargaining
sessions until such time as Respondent's alleged conduct
showed willingness to give the employees and the Union
"proper recognition ." This telegram was clearly self-serv-
ing, but indicates the reason why the November 23 and
24 meetings were not held as scheduled. The Union filed
its first charge herein on November 24.
ary 8, so that Respondent could record name and address
and "then determine as rapidly as possibly whom we will
be able to call in , and in what sequence ." By telegram of
February 7, the Union repeated its offer, rejecting the
idea of individual reporting at the plant as illegal , but ad-
vising it would send Respondent a list of those desiring an
immediate return . On the 8th it gave Respondent a list of
some 139 strikers making the offer. Thereafter, Respond-
ent began to recall them by direct telephone or mail con-
tact , singly and in groups, on the basis of seniority and
need for their services, beginning February 9, 1966. Of
68 recalled through March 15, 1966 (a week before the
hearing began), 19 who had been on first shift before the
strike were reinstated to similar jobs on second shift.
Respondent represented at the hearing that it was con-
tinuing to recall others as it had need for them. The Union
on February 10 protested the piece-meal recall method,
challenged the direct contact as a refusal to recognize the
Union as their representative, and offered to meet with
Respondent to facilitate the mechanics of immediate re-
call of all. By reply telegram of the 12th, Respondent said
it could not put them all back to work at once, felt its
present method of recall was best, but offered to meet
with the Union to see if it could offer any better arrange-
ment. It repeated this position in a conference with union
representatives February 14. On the 17th, the Union re-
peated its charges of improper conduct in the piece-meal
method of recall by direct contact, also the recall to other
than original work shift , and said it would file charges
with the Board thereon , which it did on the same date. On
the 18th , it advised Respondent that six named strikers
formerly on first shift who had been directed to report for
work the next week on second shift refused to do so
because the assignment to second shift was a hardship
and discriminatory , and repeated their offer to return to
their original shift.
One striker , Bruce Oxentine, at the time of the strike
had top seniority on second shift and had also been used
for a time in setting up a new machine on first shift. When
he was recalled by Respondent on February 28, he went
back to his old job and machine on second shift , but was
never put to work on first shift on the new machine,
which during and since the strike has been in full produc-
tion with a new employee running it. During the strike
three new workers were hired on first shift running the
same type of machine as Oxentine , but he has never been
transferred to first shift.
D. Contentions of the Parties With Ultimate Findings
and Conclusions
The complaint alleges that Respondent engaged in bad-
faith bargaining in 11 specific areas, with a 12th catchall
allegation of general negotiation in bad faith with no in-
tent to make any final or binding agreement . These will be
discussed seriatim.
C. The Cessation of the Strike, and Offers of Strikers to
Return
On February 3, 1966 , the Union advised Respondent
by telegram that the striking employees were thereby
making an unconditional offer to return to work. By letter
of the same date, Respondent replied that due to the
unexpected nature of the offer , it was not in position to
put any of them back to work at once, and suggested that
each one report at the Pons office any time up to Febru-
1. The arbitration and no-strike issuue
A claim of refusal of good -faith bargaining is based on
Respondent 's alleged fixed and adamant attitude against
arbitration coupled with an insistence on a "limitation of
the Union's right to strike." Respondent 's basic objection
to arbitration became clear at the fourth session (June 23)
when its first contract proposal provided for continuance
of its present grievance procedure but with participation
by a union representative therein and also stated an ab-
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solute prohibition against strikes or lockouts. When the
Union at once rejected this, Respondent then gave
detailed and basic reasons for its stand against arbitration.
The Union gave equally basic reasons for its insistence
on third-party adjudication of disputes, and took the firm
stand that it would not give up its legal right to strike at
will without "meaningful arbitration." Neither side con-
vinced the other to change position, and the cleavage
remained in the review of their respective positions be-
fore the mediators July 13 and on August 4, but Respond-
ent made its first concession on August 5 by offering the
right to strike on 90 days' notice, giving reasons, but the
Union rejected it, in its argument disparaging the com-
pany position, but remaining adamant in its demand for
arbitration or an absolute right to strike as essential to a
contract. Neither party receded from their positions
despite various suggestions by the mediators , including a
30-day strike clause. At the private Shapiro-Garrou talk
of August 18, the Union still insisted on arbitration,
despite argument by Garrou to show that settlement of
grievances on mutual good faith and trust was possible
without arbitration. In this discussion both men indicated
mutual dislike of strikes as means of settling disputes, and
Garrou left the door open for consideration of any other
ideas the Union might offer, after Shapiro threw out sug-
gestions about " limited" arbitration and selection of an
acceptable arbitrator. When Respondent on August 24
also cited alleged abuse of arbitration as a reason against
it, Shapiro broached the idea of "limited arbitration,"
which the parties discussed at length on September 2
without agreement; and on September 3, Respondent
countered with the 30-day strike notice proposal which
the mediator had first suggested, but the Union rejected
this. The mediator could not get them together on this,
finally announced a stalemate and withdrew from the
negotiations . However , the parties continued lengthy
discussions on the issue on September 21 and 30, in
which Respondent stood on its 30-day strike notice
proposal, and on the 30th rejected the Union's counter-
proposal of a 10-day notice, which in effect would have
required Respondent to consider and decide any
grievance in the same 10 days. The issue was not
discussed again until the final November 2 meeting, when
both sides repeated their respective positions and argu-
ments , but neither one could change the other 's convic-
tions , and the Union recognized the impasse by turning to
economic issues.
On this sequence of facts, it seems clear that the parties
engaged in hard, arms-length bargaining during 10 ses-
sions on a point about which both had equally strong but
opposite convictions, and that during the discussions
Respondent gave in to the union demands on the right to
strike to some extent but not enough to resolve the im-
passe. General Counsel recognizes there was give-and-
take bargaining on this, but argues that the company
proposals "emasculated the right to strike," that it
knowingly made proposals which it knew no "self-
respecting union would accept" and thereby deliberately
engineered their rejection and the impasse, all in bad
faith. He also argues that concession of a right to strike on
19 The Board has long held, as the Union concedes , that in bargaining
an employer has the right to insist that a union give up the right to strike
Shell Oil Company, 77 NLRB 1306 And if the employer supports its
stand with reasons and arguments , this is indicative of an honest claim and
of good-faith bargaining N L R B v Truitt Mfg Co, 351 U S 149,
152-153
30 days' notice is such a severe limitation that it amounts
to an absolute no-strike clause. The Union argues that
Respondent was denying it any "real right to strike."
There is authority for the proposition, as the Union points
out, that employer insistence on a contract which omits
arbitration of grievances and leaves resolution thereof
solely in employer hands, and at the same time prohibits
a union from striking, is significant evidence to be con-
sidered in deciding whether the employer engaged in bad-
faith bargaining. See "M" System, Inc., 129 NLRB 527,
550, 551, where the Board (adopting the Decision of a
Trial Examiner) held that the employer' s insistence on
this position, particularly in light of other proof indicating
bad faith, was weighty evidence of an unlawful refusal to
bargain. While I will later consider this attitude in con-
junction with other conduct and attitudes of Respondent
in appraising the whole course of bargaining, at this point
I feel it proper to review only the Respondent's attitude
and arguments on this subject. I find no cases, nor does
General Counsel or the Union cite any, which indicate
that it is improper for an employer during bargaining to
oppose arbitration or the right to strike on any one or all
of the grounds company negotiators argued to the Union
at one meeting or another. On the contrary, it would ap-
pear to be a normal aspect of good-faith bargaining for an
employer to take such a stand (or any other which might
still be abhorrent to a union) if it supports the stand with
specific and persuasive reasons and arguments.28 Here,
I find nothing inherently improper or suspicious in the
company arguments (although I recognize that the Board
is not allowed to "sit in judgment on the substantive terms
of collective bargaining agreements"29). In addition, I
cannot ignore argument by Shapiro on August 18 which
tended to indicate that arbitration, if granted, would likely
be little used, hence Respondent should not fear it so
much; this led Respondent to argue that this supported
the probability that management and union could more
likely than not iron out grievances among themselves on
the basis of mutual good faith and trust, better than an
outsider. Respondent maintained this position
throughout. Further, Respondent's early adamancy on
no-strike, no-arbitration finally gave way to an admission
of the right to strike, limited only by 30-day notice (at the
last) which it argued would act in effect as a warning
period during which Respondent would surely take steps
to reexamine its disputed decision and attempt to resolve
it to satisfy the Union, in order to avoid the ultimate
strike, which it dreaded.30 The Union argued that the 30-
day notice provision did not give it anything, on the
theory that the wording was such as to require it to begin
the strike immediately on expiration of the 30th day.
However, the wording of Respondent's waiver clause is
not that precise, hence under ordinary rules of contract
interpretation the wording would be held against Respond-
ent, in effect giving the Union a reasonable time after ex-
piration of the 30 days to start the strike. The Union
could have argued for clarifying wording which would
have protected it on this point, but it did not. In any
event, the requirement that it exercise its right promptly
at the end of the 30-day period was no hardship or real
deprivation of the basic right, for it is well known irr in-
dustrial life that labor organizations as matter of course
19 N L R B v American National Insurance Co , 343 U S 395, 404.
30 It was already going through the agonies of coping with the existing
strike
ALBA-WALDENSIAN, INC. 715
arrange for strikes to begin immediately on expiration of
waiting or "cooling-off' periods, whether prescribed by
contract or law. Hence, I must conclude, for purposes of
determining good faith here, that Respondent's last offer
on this point was not in such terms as clearly to deny or
emasculate the Union's right to strike; at most it
amounted merely to a postponement of exercise of that
right, which the Union itself considered acceptable when
it countered with a proposal which in effect would give it
the right to strike at the end of 10 days running concur-
rently with Respondent's consideration and decision of a
grievance. This proposed compression of the grievance
procedure came from the Union for the first time at the
19th meeting (September 30), and was a drastic change
from its earlier position: in the past it had not objected to
the management grievance procedure as such, which did
not limit the time in which top management could finally
decide the grievance, whereas now for the first time it not
only truncated that procedure into a 10-day period, but
also gave itself the absolute right to strike at the end of
that period. If anything, this withdrawal from its earlier
position tended to widen, not narrow, the cleavage
between the parties on this point. I think this change of
position significant for, while the Union does not mention
this effect of its last proposal, it argues as a secondary
proposition that the employer 's stand on it is per se an un-
lawful refusal to bargain, because it would prohibit the
Union from "effectively striking." At the outset, it must
be noted that "cooling-off' periods or procedures of vari-
ous lengths imposed upon labor organizations and em-
ployees under various statutes are recognized as legiti-
mate postponements of, and thus limitations on, the right
to strike in the interest of delaying industrial warfare and
giving more time for mediation and conciliation processes
to operate, but they do not prohibit the ultimate right to
strike . 31 Hence , the proposal of a similar waiting period
by Respondent, for the clear purpose of enabling it to
review its decision and possibly resolve the dispute ac-
ceptably to the Union is not lethal to the right to strike,
but merely delays ultimate use of that weapon , and in this
respect is not inconsistent with modern governmental
policy of avoiding industrial strife, and tends to increase
rather than diminish the chances of labor peace. How-
ever, both General Counsel and the Union rely on deci-
sions of Trial Examiners in United Clay Mines Corpora-
tion , 102 NLRB 1368, 1383, and H. K. Porter Company,
Inc.,32 to support the per se proposition. I do not consider
either ruling as binding authority, for in the United Clay
Mines case the Board did not adopt, or base its finding of
a refusal to bargain on , the finding ofper se violation from
a similar employer stand made by the Trial Examiner, and
enforcement of the Board order was denied 219 F.2d 120
(C.A. 6), and the decision in the H. K. Porter case was
adopted by the Board pro forma as required by the Act,
when no exceptions were filed . Recognizing this, the
Union now asked the Examiner and the Board to find that
Respondent's last proposal was per se a refusal to bar-
gain, on the ground that it denied the Union a "real right
to strike " while retaining for Respondent the right of uni-
lateral determination of grievances . It argues that under
Section 8(d) of the Act, the employer is bound to bargain
in good faith not only in "negotiation of an agreement,"
but with respect to "any question arising thereunder,"
and that, to deny a union during the contract term both
the right of decision by an outside arbitrator and the right
to strike is tantamount to requiring it to give up its right to
bargain on any of the usual subjects of bargaining during
the contract period, which would destroy its statutory
right to represent employees in administration of the con-
tract, and undermine the collective-bargaining purposes
of the Act. The Union also argues that concession of the
right to "discuss" grievances with management during
operation of the grievance procedure does not give the
Union an "effective voice," by way of true collective bar-
gaining, in protecting and administering terms and condi-
tions of employment of employees under the contract,
hence only the right to strike recognized by the Act and
the courts can give and maintain the "equality of bargain-
ing power between employer and employees" recognized
by the Act , and give meaning to the use of economic pres-
sure by unions which is considered by the courts as a
basic part of the collective-bargaining process.33 If
Respondent had in fact been adamant or arbitrary
throughout in rejecting arbitration and insisting on an ab-
solute no-strike clause, there would be force to this argu-
ment. But it appears that Respondent was sincerely op-
posed to the idea of third-party adjudication for reasons
which it stated repeatedly and in detail throughout the
negotiations . The Union had no answer to them except
the broad argument that arbitration was the generally ac-
cepted, modern way of resolving disputes, and finally that
Respondent's idea was "primitive," "stupid" and "Nean-
derthal," a throwback to industrial warfare. While this
was a permissible theoretical argument, the Union ap-
parently did not support it, so far as the record discloses,
with figures, treatises, or examples of arbitration cases or
clauses successfully used in the past; to the contrary, it
refused to disclose similar clauses from other textile mill
contracts which might show this, and also admitted that
not all its own contracts provided for arbitration.34
Further, Shapiro admitted that his own experience in
labor relations had involved little need for arbitration.35
Although Shapiro's attitude may well have tended to
bolster Respondent 's view that arbitration was not neces-
sary, and the Union's caustic and somewhat contemp-
tuous characterization of Respondent 's stand against it as
outdated may well have tended to harden Respondent in
its position , it is significant that Respondent never cut off
negotiations on the issue , but repeatedly indicated its
mind was open to any further ideas the Union might
31 See for example Labor-Management Relations Act of 1947, Sec
206-210 , 29 U S C 176-180, and the Railway Labor Act of 1926, 45
U S C Sec 152, 155, 156, 160 , Pan American World Airways, Inc v
Flight Engineers International Association , 306 F 2d 840, 841, 845, 846
(C A 2)
32 TXD-436-63 in Case 5-CA-2344
33 N L R B v InsuranceAgents' International Union , 361 U S 477,
495
31 In its brief , the Union now argues that over 90 percent of all collec-
tive-bargaining agreements provide for arbitration of gnevances Assum-
ing this to be true, there is no cogent proof that it submitted this argument,
or figures to prove it , to Respondeet Nor can the Union find figures
showing that "most" contracts without arbitration also eliminate a no-
strike clause Its "presumption " that the latter is the situation overall is a
very weak argument
35 Considering his comparatively even-tempered attitude and manner
of speech during his testimony , in contrast to the far more aggressive at-
titude and speech of Zimny during negotiations , which appears not only
from his manner of testimony on the stand but also his conduct of ex-
amination as counsel for the Union , and also considering the nature of the
"heart-to-heart" private talk between Shapiro and Garrou on August 18,
it is reasonable to infer that Respondent 's negotiators , particularly Gar-
rou, may well have received the impression that dealings with Shapiro, the
local union representative , under a contract would be such that resort to
arbitration would rarely, if at all, become necessary
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present , and it considered the ideas of "limited" and "ad-
visory" arbitration put forth by the mediators and the
Union , rejecting them only after full discussion.
It displayed the same flexibility in discussion of the no-
strike clause. While it stood firm on that during the first
10 sessions , it recognized the right to strike on August 4
and thereafter bargained on it , with discussion centered
largely on the amount of advance notice of strike which
should be given . At the meetings from September 30 on-
ward , the parties were at odds only on whether the notice
should be 30 days after final decision by Respondent
under its three -step grievance procedure , or after only 10
days which ran concurrently with the Union 's proposed
one-step grievance procedure which had to be exhausted
in those 10 days. While the Union 's 10-day proposal in ef-
fect widened the gap between the parties as noted above,
Respondent did not shut the door by refusing to talk
further , but was ready to continue discussions on this and
other issues November 23 and 24; it was the Union
which refused to continue the negotiations . It is reasona-
ble to assume that further discussion on this issue might
have led to further changes of positions with possible nar-
rowing of the differences between them. In view of
Respondent 's flexibility on this point , and its oft -repeated
desire for reasonable advance notice which would give it
a last chance to review and possibly revise its decision on
a grievance so as to satisfy the Union , and avoid the ulti-
mate blow of a strike I must conclude that Respondent,
while bargaining hard all the way on it, was not adamant
in its refusal to grant the right to strike , but at the end was
willing to grant it , with some limitation which cannot be
said to be unreasonable in return for no arbitration. In
this posture, the cases cited by General Counsel and the
Union are inapposite on the facts and not controlling.
In summary, it appears that the conduct of the parties
was largely parallel on this issue; Respondent was ada-
mant against all types of arbitration offered by the Union,
but remained flexible to the end on the manner of use of
the strike weapon by the Union , while the Union
remained adamant on the right to strike without notice,
while offering suggestions on varied types of arbitration.
Neither one could persuade the other to change , despite
full argument and interchange of ideas. I think the picture
here is only one of hard , arms-length bargaining which
ended in a true impasse. I conclude that General Counsel
has not sustained the ultimate burden of proof that
Respondent refused to bargain in good faith in its negotia-
tions and attitude on arbitration and the right to strike. I
therefore grant Respondent ' s motion to dismiss para-
graph 13 (a) of the amended complaint dealing with this
subject and will recommend that the complaint be
dismissed accordingly
2. Refusal of union dues checkoff
The complaint alleges the Respondent improperly took
a fixed and adamant position in refusing to grant the
checkoff. The record clearly shows that Respondent did
maintain throughout an adamant position against the
usual type of checkoff of union dues . The Union 's initial
proposal of the usual checkoff was explained to Respond-
ent on May 28. Respondent initially rejected it by its
first counterproposal of June 23 , but there was no serious
negotiation on the subject until the seventh meeting (July
14) when the mediators brought it up. Respondent gave
detailed reasons for opposing checkoff , based generally
on past experience with the clerical burdens of voluntary
deductions from paychecks , its desire to avoid any volun-
tary bookkeeping for the Union , and the negative effect
on employees , in their attitude toward the employer, of
apparent shrinkage of take-home pay caused by any type
of deductions . It cited these factors in answer to various
union arguments for the checkoff. Aside from short
discussion of it on August 4, the parties did not advert to
it again until the private August 18 talk of Shapiro and
Garrou , who merely reviewed the positions of both sides
on it, without formal bargaining . The Union did not bring
up the subject again until November 1 when , in repeating
its opposition to any checkoff , Respondent at the request
of one new union negotiator , repeated all past arguments
in support of its opposition , plus the view that checkoff
might be considered a violation of Section 8(a)(1) of the
Act, and then proposed the Union collect its own dues
directly from employees . The Union countered with two
alternate proposals for collections by union agents within
the plant on nonworking hours, which Respondent
quickly rejected as "involving " the Company in a matter
concerning solely the Union and the employees , but sug-
gested collections by the Union at the plant gates. In ar-
gument , Respondent conceded it made deductions for
taxes required by law, U.S . savings bonds (a matter of
patriotic national interest), a one-time yearly community
fund contribution , and two types of monthly deductions
for health insurance and profit -sharing funds created by
it. The course of the negotiations on this clearly appeared
to involve hard bargaining with no appreciable conces-
sions by Respondent . The basic position of Respondent
was that, while it was willing to recognize and deal with
the Union to the extent required by law under its certifi-
cation (which it did on proposed changes of some wages
during negotiations), its main objection to adding another
voluntary pay deduction for the benefit of the Union was
that it did not want to be placed in a position of appearing
to the employees as assisting the Union (beyond the point
required by the law) by agreeing to handle the dues
deduction for it , as its bookkeeper , or even by allowing
union agents officially to collect dues in the plant.
It is well settled that Respondent was not required to
agree to any union -security clause including checkoff, but
only to bargain in good faith on that and other demands.
However , while the Board cannot sit in final judgment on
the substance of any proposal or counterproposal by
Respondent , it still has power to consider in light of all the
circumstances whether a counterproposal was made, or
a union proposal rejected , in good faith or simply to frus-
trate bargaining.36 Viewed in this light, it appears that
Respondent ' s rejection of checkoff , even though on
voluntary authorization from employees , stands on weak
ground insofar as it is based on the so-called psychologi-
cal factor , because it is hard to understand how an em-
ployee who voluntarily told the Company to reduce his
take-home pay by the amount of the • dues he wanted
deducted and sent to the Union , could or would hold the
Company responsible for that reduction . Again , the al-
leged claim of inconvenience and clerical burden appears
weak because, while Respondent had cut off various
36 Capitol Aviation , Inc, 152 NLRB 745, 752, 753, H K Porter Com-
pany, Inc, 153 NLRB 370, enfd sub nom United Steelworkers ofAmer-
ica, AFL-CIO, 363 F 2d 272 (CAD C)
ALBA-WALDENSIAN, INC.
types of personal deductions in the past because of the
bookkeeping burden, it still shouldered that burden for at
least three deductions required by law, and for one
patriotic and one local charitable purpose, and to build up
two worker funds created by it, so it is hard to see how
addition of one more deduction requested by employees
would overburden its clerical operations. This leaves only
the objection that it refused as a matter of policy to act as
bookkeeper for the Union, as such, and this, in light of its
further refusal even to allow union agents, particularly the
plant chairlady authorized by its own proposals, to collect
dues in the plant on nonworking time, indicates strongly
its real desire to avoid any appearance of aid to the
Union. These same arguments in similar circumstances,
and with the same motive, were considered and found
evidential of a bad-faith desire to frustrate bargaining, by
the Board and court in H K. Porter Company, Inc.,
supra. While the facts in that case were somewhat
stronger against the employer than here,37 I think the
similarity of the situations is enough to make it apposite
here. I therefore conclude that, while both sides bar-
gained hard on this issue, and it appears that the Union
throughout took the position that there must be some type
of checkoff or dues collection in the plant as a sina qua
non of a contract,33 the Company's refusal thereby to aid
the Union, as such, is some evidence tending to indicate
a desire to frustrate bargaining and prevent true agree-
ment on a contract, which must be considered along with
other conduct of Respondent analyzed below. 39
3. Failure to supply information on piece rates, and
elimination of guarantees thereof
Most Pons employees in the unit aforesaid were paid
on a piece rate plus incentive system, under which they
received a specified pay based upon adherence to a cer-
tain rate of production per hour, called the "standard,"
and additional incentive pay above that to the extent that
they exceeded the base rate. The data Respondent gave
the Union shows that the final piece rate was calculated
on the basis of actual timestudies and use of a formula, a
practice prevalent in the textile industry . The Union al-
ready knew this from employees when it submitted its
first wage demand . We may assume that this demand was
deliberately high , as is customary in bargaining , to leave
room for negotiation and possible concessions . Knowing
the piece-rate method of payment and expecting bargain-
ing on wages , the Union at the outset asked Respondent
for data showing how its piece rates were set and the actu-
al payroll earnings of all employees in the unit. Respond-
ent agreed to furnish this without objection. It never did
furnish actual payrolls , but it gave the Union , piecemeal,
average hourly earnings by job classification for a short
period on June 8 , and the same type data for 3 months on
June 11. Still promising the basic data requested , on June
23 it furnished data referring to "accepted time study
procedure " as its basis for setting rates, and listing three
" There , the employer had checkoff provisions in its other plants, had
no general policy against checkoff, it made no claim of inconvenience, and
there was potent evidence by Board determination and judicial decree of
its pnor refusal to bargain in good faith See also Roanoke Iron & Bridge
Works, Inc , 160 N LRB 175
38 The position will be considered later in analysis of the union position
on the "tentative agreement" stand of the employer
18 I do not find that Respondent 's stand on this was per sea violation of
the Act because there was clearly some apparent justification for the
717
steps used to set rates under these procedures. The
Union said this was inadequate for bargaining purposes
and again asked for actual piece rates , timestudies made
by Respondent , and actual work allowances . On June 24
Respondent furnished , as part of its first counterproposal
on economic items, actual base rates and piece rates,
listed by operation , description , number , and style
number The Union again said this was not enough, ask-
ing for actual computations of piece rates.
The request for this information was not brought up
again until Respondent on September 13 asked for the
Union 's approval of elimination of piece-rate guarantees
installed as a protection for workers because of disruption
of production caused by the strike. The Union repeated
its request for data underlying these rates, listing it as
"Earnings and the production percentage when the em-
ployees had been hired and periodically thereafter." On
October 7, Respondent gave the Union a "summary of
information ," citing the strike as the reason for installa-
tion of the guarantee, its conclusion that production had
been restored to the prestrike level so that normal pay-
ments under the piece-rate system could be resumed, and
giving general production figures for three periods during
the strike, as a percentage of normal prestrike production,
both on basis of normal greige and finished production,
and in terms of "dozen per -operator-week ," to justify the
elimination. On October 19, the Union asked for the
general method for fixing starting piece rates , and after
discussion asked specifically for maximum and minimum
rates paid, but was referred to the prior average hourly
earnings furnished to it in June . The Union then repeated
its request for "criteria and formulae " used in arriving at
these figures , description of types of work and styles in-
volved , and actual timestudies made in arriving at existing
rates. Respondent on October 27 furnished average
figures of production , in "dozens-per-week" for the same
comparative periods stated in its prior letter . When the
Union on November 1 indicated this was just as conclu-
sionary as the earlier data, it suggested the independent
timestudy of rates by its own engineer , offering sug-
gestions about general advance limitations on his work
and movements in plant , all of which Respondent rejected
because the union agents could not then specify precisely
what he would want to see , and where he would want to
go, in the plant.
The above summary shows that Respondent has never
furnished the Union ( 1) payrolls of employees in the unit,
(2) actual timestudies and other data on which it had set
piece rates at any time , despite the fact that it did disclose
in its first contract proposal the actual piece-rate struc-
ture by style and job classification and thereby indicated
its desire to continue those rates , or (3) a chance for a
union engineer to make his own timestudies in the plant.
Since piece rates were the main method of payment at
Pons, Respondent 's timestudies were the best method of
checking the manner in which it had set those rates, and
reasons based on economic self-interest which it advanced I have also
carefully considered the wording of the Union 's agency-shop portion of its
union-security proposal , in light of cross-examination of union witnesses
designed to point out possible conflict with North Carolina "right-to-
work" laws, but find no indication that the Union was proposing a
procedure which would flatly violate State laws, at most , the Union
proposed that the agency-shop provision go into effect if the "union shop"
clause violated State law I find nothing illegal in this position to condone
orjustify Respondent 's position on the checkoff
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether the rates were high, low, proper, or improper,
and as it quickly developed that Respondent was adamant
about continuance of those rates, and even reduction of
them if economically necessary , it hardly needs argument
that the Union needed to examine and evaluate the basis
of those rates, in form of the actual timestudies and com-
putations therefrom used to establish them, or by its own
timestudies of operations, before it could decide whether
such studies, computations, and the rates themselves
were fair or proper (as Respondent argued), so that it
could determine whether to accept them, or to argue for
something more (whether 20 percent or less). Since
Respondent also indicated it wanted the unfettered right
to continue to lower piece rates if necessary, and the
Union knew piece-rate workers were dissatisfied with
some labor-cost reduction moves already in progress, the
data requested was all the more needed to enable the
Union to decide whether it might want to resist any
elimination of the piece' rate guarantees, if it found any
rates unfairly set or fixed too low, for then the Union
would have the duty of protecting the workers by arguing
at least for maintenance of the guarantee as a floor for
such rates. While agreeing to give specific data at the out-
set, as requested, Respondent's piecemeal release of con-
densed and largely conclusionary information over the
first five meetings tended to hinder the Union in bargain-
ing about wages, and in determining when or whether to
yield in its wage demands. This delay in submitting partial
data (27 days between May 28 and June 24) contrasts
sharply with Respondent's prompt production of detailed
data relating to its proposed merit raises and elimination
of piece-rate guarantee (furnished in 8 days), when it
wanted a quick answer on that; but even on the latter
proposal, Respondent still avoided giving actual formulae
and timestudies to support existing rates 4° Respondent
offers no explanation for its failure to follow through on
its initial agreement to furnish what the Union requested,
other than a remark by Smith at a late session that the
Union had been given all that was necessary and that it
needed, and Smith's remark on October 19 to Boone that
the latter did not have to listen to the Union's repeated
request for detailed data relating to the piece rates. It did
not at any time question the relevancy of the data
requested. It is also significant that Respondent adopted
a rather arbitrary stand on its refusal to allow an indepen-
dent timesfudy proposed by the Union, even with
proferred safeguards, when it insisted on immediate
agreement on a detailed agenda for that engineer, which
could hardly be set up by two union lawyers and a union
regional representative, who were not engineers and un-
likely to be versed in the industrial science of timestudies,
computation of "standards," incentives, etc. On these
considerations, I must conclude as follows:
(1) By failing to furnish payrolls and detailed wage and
rate structure data as requested by the Union and agreed
to by Respondent, on and after June 24, 1965 (27 days
between May 28 and June 24 seems ample time in which
to collect and submit data already in existence ), and by
failing to furnish other data on that subject in timely
fashion , Respondent thereby hindered true bargaining
and possible progress toward agreement on the vital is-
sues of wages , thus refusing to bargain in good faith, in
violation of Section 8(a)(5) and (1) of the Act. Dierks
Forests , Inc., 148 NLRB 923, 927, 940; Curley Printing
Company, Inc., 159 NLRB 1489 , The Rangaire Cor-
poration , 157 NLRB 682; Ingalls Shipbuilding Corpora-
tion, 143 NLRB 712, 717; Whitin Machine Works, 108
NLRB 1537, enfd . 217 F.2d 593, cert . denied 349 U.S.
905.41
(2) Respondent 's failure and refusal to allow an inde-
pendent timestudy by a union engineer of its piece rates
under reasonable limitations and safeguards , following its
bad-faith refusal to make its own timestudies and other
relevant data available for examination by the Union both
generally and in connection with elimination of piece-rate
guarantees , was a further refusal to bargain in good faith.
Fafnir Bearing Company , 146 NLRB 1582 , enfd. 362
F 2d 716 (C.A. 2). The duty to allow that study is
stronger here than it was in the Fafnir case, where the
employer had turned over such data for union examina-
tion , but the union engineer had been unable from study
thereof to decide whether piece rates in dispute had been
properly established under an existing contract, so he
wanted to make his own study to enable the Union to de-
cide whether to proceed to arbitration on them under the
contract . Here, the independent timestudy was all the
more necessary to enable the Union to decide how to
react to Respondent 's insistence upon existing rates, with
the right to reduce them further , because Respondent had
refused to disclose its own studies.
(3) Having unlawfully refused to give the Union rele-
vant data , including timestudies , about its present wages
and piece -rate structure , which the Union needed in order
to bargain intelligently on Respondent ' s proposal to
eliminate piece-rate guarantees , Respondent further vio-
lated Section 8(a)(5) by its unilateral elimination of the
guarantees . There was no true impasse on this subject, as
I am convinced that the failure of the parties to reach any
agreement on this point was due mainly to Respondent's
refusal to give the Union data previously promised, or put
it in a position to secure such data independently , so that
it could evaluate the piece rates and the guarantees and
determine intelligently whether to accept or oppose
elimination of the guarantees. Hence, I can find no factual
or legal justification for Respondent ' s elimination of the
guarantee while negotiations were still in progress and
this issue was still open for discussion.
4. Respondent 's position on wages
General Counsel and the Union argue strongly that
Respondent exhibited bad faith by (1) refusing to'raise
wages and holidays from the status quo ante the strike,
and offering no concessions on that , (2) at the same time
40 Respondent had no difficulty in supplying detailed rate data on 34
workers who had received merit raises , when it wanted to give merit raises
to 8 people , although it still did not furnish actual payrolls for these peo-
ple However , the Union admitted it finally got most of the data it
requested on this subject, and approved the raises
41 The amended complaint in this area is based only on a delay and
refusal to deliver piece - rate guarantees and structure , but the failure to
furnish actual payroll data as requested and agreed was fully litigated and
argued in the bnefs , hence I think this is also part of the issue to be de-
cided
At the October 7 meeting, Shapiro suggested Respondent must furnish
the Union with financial records relating to Pons alone However, I find
no violation of the Act in Respondent ' s refusal to talk about that subject,
nor its failure to furnish such records , for a similar situation the Board has
held that the employer did not violate the Act by refusal to produce finan-
cial records Empire Terminal Warehouse Company, 151 NLRB 1359,
1360, affd 355 F 2d 842, 845 (C A D C ).
ALBA-WALDENSIAN, INC. 719
giving raises and more holidays costing about $300,000
in its other plants during the negotiations, solely to dis-
credit the Union, and (3) in support of this stand refusing
adamantly to discuss wages and working conditions at
other plants.
The record clearly shows that from June 24 onward,
Respondent refused to offer any raises as such, aside
from a minor concession on call-in pay which was trifling
in cost, while insisting on the right to cut rates and wages
further, if found necessary in its current economy pro-
gram at Pons. When questioned about this stand, Respond-
ent explained on June 24, orally, and its letter of June
26 that present wages at Pons must be continued, in its
business judgment, as part of its economy program and to
enable that plant to remain competitive with other plants
in the area, Respondent tried to make the same argument
twice in later meetings, and in support of it once offered
the Union statistics from its own survey of competitor
wages. However, both times the Union summarily and ef-
fectively cut off any discussion or consideration of com-
petitors' wages with the warning that a "dictum" in the
Pennington case, supra, would subject the parties to the
hazard of antitrust action. After hearing this warning
twice, Respondent did not try to repeat that argument,
but confined its answers to criticisms of its stand to the
claim that its position was based on its best judgment, that
it was the sole "concern" of Respondent, and that the
union demands were too high, "unrealistic," and should
be reduced. It maintained this position even after the
Union reduced its general wage demands several times,
from 20 percent to a final 9 percent. While cutting off all
discussion of competitive conditions, the Union on Oc-
tober 7 and later tried to inject into the wage negotiations
a discussion of Respondent's overall financial condition,
questioning the sincerity and validity of Respondent's
stand, and arguing in effect that it could afford to raise
wages, by reference to a report of a huge increase in
Respondent's overall earnings, and trying to draw Smith
into a discussion of that report and an expression of view
on Respondent's overall ability to pay some wage raises
However, Respondent's agents steadfastly refused to
discuss its overall financial condition and even other
benefits and working conditions at other plants, or to
discuss its overall ability to pay, on the theory that the
negotiations related and should be confined only to Pons,
the sole plant covered by the Union's certification. In this
argument Respondent even refused to discuss the finan-
cial situation at Pons alone.
If Respondent had adamantly insisted upon the status
quo in wages, with the added right to cut wages and rates
unilaterally in the future, without any attempt at explana-
tion, while making unimportant economic and other con-
cessions, I would consider this powerful evidence of a
bad-faith desire to avoid true bargaining or agreement
with the Union, in light of East Texas Steel Castings
Company, Inc., 154 NLRB 1080, and authorities cited
therein. But such a conclusion is negated by various other
circumstances. First, when the Union violently objected
to company reliance on existing wages, Respondent at
once offered and gave reasons for its stand and was ready
to discuss them, which is an indication of bona fide bar-
gaining over an honest claim rather than the opposite.42
Second, Respondent's reliance on reasons based on com-
petitive conditions was not so unusual as to indicate they
were pretexts put forth in bad faith, for it is well recog-
nized that employers in collective bargaining often raise
the competitive nature of their business as an argument
for maintenance or even reduction of existing wages, with
requests for concessions thereon by labor organiza-
tions.43 Here, the Union had known from the outset that
Respondent had been engaged for some time in an econo-
my program at Pons, cutting wages there in an effort to
keep it competitive in the textile industry in the area. 44 It
has also been recognized that labor organizations often
find this argument hard to combat, and in similar situa-
tions they have been known to accept existing wages, or
even reduced wages, in order to enable a business to
survive.45 Hence, it is inferable that when the Union was
faced with the claim of competitive conditions confront-
ing a plant seeking to cut costs, it seized upon a "dictum"
in a Supreme Court case to cut off these economic argu-
ments which were apparently difficult, if not impossible,
to answer.46 This conclusion becomes compelling
because it appears that Chief Negotiator Zimny, a lawyer
experienced in labor relations law, never explained to the
company negotiators at the bargaining table, never stated
in his testimony or argument in the hearing, nor cited in
his brief, the particular portions of the Pennington case
which support his refusal to discuss competition. His
mention of a "dictum" indicates reliance on something
not necessary to or inherent in the decision of that case,
hence not usually considered by lawyers or courts as a
binding precedent. A careful reading of that decision in-
dicates that the only binding pronouncement of the
Supreme Court was that, it may be a violation of the
Federal antitrust laws for a union and a group of large em-
ployers to enter into a collusive agreement, whether as a
result of the usual collective bargaining or otherwise, with
the intent and effect of fixing wages of employees of such
employers in such fashion as to maintain an acceptable
net income for them and at the same time obligating the
union to impose such wages on other employers so as to
eliminate them from the industry. The Court also in-
dicated that national labor policy expressed in the Act
would not permit a union and an employer to bargain col-
lectively about wages, hours, and working conditions of
other bargaining units or thereby try to settle such mat-
ters for an entire industry, because such action might run
afoul of the antitrust laws. Its theory appears-to be that
the union in such agreement is going beyond its normal
duty of bargaining for a specific unit of employees which
it represents, and entering into a conspiracy to regulate
wages and working conditions in other employee units
and thereby controlling wages, prices, competition, and
market conditions in an entire industry. The "dictum" on
which the Union apparently relied here was the complaint
42 See Montgomery Ward & Company, 37 NLRB 100, 123, N L R B
v George P Pilling & Son Co , 1 19 F 2d 32 (C A 3), N L R B v Truitt
Mfg Co,351 U S 149,152-153
43 A recent instance appears in The Celotex Corporation, 146 NLRB
48, enfd . as modified 364 F 2d 552 (C A 5), and see the remarks of Mr
Justice Goldberg on this subject in his dissenting opinion in Local Union
No 189, Meat Cutters v Jewel Tea Co , 381 U S 676, 715, 716
44 These facts appear from credible testimony of Williams , and admis-
sions of Zimny and Riddle
41 See N L R B v Truitt Mfg Co, 351 U S 149,152
46 i note in this connection that the comparison of rates which Respond-
ent offered to show the Union clearly indicates that, out of 34 types of
work listed , Respondent 's rates were higher , in many cases substantially
so, than rates of one or more competitors for 32 types , which warrants the
inference that if the Union had permitted itself to be confronted with such
data, it would have a hard time selling Respondent on the proposal to raise
rates even more
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by dissenting Justice Goldberg (who concurred in the
technical result reached by the majority) that the majority
ruling would severely restrict collective bargaining by
eliminating discussion of the "impact of the wage agree-
ment reached with a particular employer or group of em-
ployers upon competing employers" where, as part of
that agreement, the union undertakes to use its best ef-
forts to make other employees accept the wages agreed
upon; and this, whether such agreement is stated in
specific terms or implied or inferred from conduct of the
parties. The Justice reasoned that the majority ruling was
so broad that an employer's resistance at the bargaining
table to union wage demands on the basis of competitive
factors "may start both employer and union on the road
to antitrust sanctions, both criminal and civil," and in an-
titrust actions based on such discussions judges or juries
might well substitute their own ideas of proper wages not
violating antitrust concepts for those of the parties, in
determining whether the motives of the bargainers were
limited to the particular plant or unit of employees in-
volved, or went beyond to an extent falling within the an-
titrust laws.
While these views from a dissenting Justice are entitled
to serious and respectful consideration, and I am sure
Zimny was well aware of their implications, the difficulty
is that there is no clear proof that he explained these dan-
gers to the company negotiators, or that he offered to
discuss the wages of competitors with Respondent but
understated limitations which would make it clear to any
reviewer of the bargaining that neither party was con-
sidering or proposing that any agreement on wages was to
be used by the Union in possible later negotiations with
competitors for any purpose. The Union could, of course,
use a signed agreement, on its own initiative and without
knowledge of Respondent, for any purpose it desired in
negotiations with others, in aid of its own union policies
and interests, but this is far from a situation where the
Union and Respondent might agree or contemplate that
this should be done. Hence, I think that the Union's great
reliance upon fears for the collective-bargaining process
expressed by Justice Goldberg was misplaced, particu-
larly when it was raised at the first real attempt to discuss
competition, before either side had any clue as to the
direction that discussion might have taken. Further, since
Smith was also a lawyer, it is inferable that a detailed
discussion between him and Zimny of the latter's ap-
prehensions, whether at the bargaining table or else-
where, might have resulted in an agenda or mode of
discussion on wages designed to avoid the pitfalls pointed
out by the Pennington "dictum." The possibilities along
this line were limited only by the ingenuity of the parties,
and I am sure that the legal knowledge and ability of both
lawyers would have produced a modus operandi to
safeguard their clients against those dangers. This is what
lawyers do constantly in this modern economy to steer
their clients in lawful channels in light of changing legisla-
tion, legal precedents, and the implications of "dicta" of
courts. Indeed, this type of protection is exactly what the
parties agreed as early as July 13 to provide themselves
by the wording of the "Conformity to Law-Savings"
clause Therefore, considering the aggressive manner in
which Zimny conducted and tried to direct the course and
scope of the negotiations (as noted in detail hereafter), it
is inferable that if the Union sincerely wanted to hear and
counter the claim of competitive conditions, he would
have taken the lead to endeavor to chart a similar course
and clause on this subject, so that the parties could
discuss the problem of competition and the merits of
Respondent's stand on wages in that light. The fact that
he did not, but acted to foreclose all discussion of com-
petition, indicates to me that the Union acted thus to
deprive Respondent of a normal and potent argument
used in resisting union wage demands, thus maneuvering
it into the position of refusing to offer any substantial con-
cessions on wages without apparent justification, which,
of course, would bring Respondent squarely within the in-
terdiction of the Board stated in East Texas Steel
Castings Company, supra. On all the circumstances, I
must conclude that Respondent's later repeated assertion
of its desire for the status quo on wages without offering
any real concessions thereon, with no more reason than
the exercise of its business judgment, was thus created by
the Union's own bad-faith conduct which removed the
possibility of real and full negotiation on this point on the
basis of which Respondent's good faith could fairly be
tested.47 I must therefore conclude that Respondent's
overall position on wages at Pons, with only the limited
justification therefor which the Union permitted it to
make, and failure to make any concessions on economic
matters other than those found above '411 in face of sub-
stantial concessions by the Union, was not such an ar-
bitrary and adamant position on that point alone as to in-
dicate bad-faith bargaining per se or otherwise. All it in-
dictated was hard but good-faith bargaining by Respond-
ent under rather difficult circumstances.49
In reaching this conclusion, I have considered carefully
Respondent's grant of wage raises totaling about
$300,000 on November 19, 1965, to employees at other
plants, which contrasts with its steadfast refusal during
negotiations to give any general raise at Pons The com-
plaint charges this as a specific instance of bad faith, and
the obvious argument from both General Counsel and the
44 See Times Publishing Company, 72 NLRB 676, 683, where the
Board recognized before the enactment of Sec 8(d) and 8(b)(3) of the Act
that a union 's refusal to bargain in good faith may remove the possibility
of negotiation and must be considered in deciding whether an employer
acted in good faith it reiterated the rule in Phelps Dodge Copper
Products Corporation, 101 NLRB 360, 368, after those sections were
added to the law. Both sections now make clear the mutual obligation on
both employer and union to bargain in good faith N L R B v Insurance
Agents ' International Union , 361 U S 477, 487, 488 See also Radiator
Specialty Company, 143 NLRB 350, 373, 374
48 While its initial concession on call-in pay was trifling in cost , I cannot
assume the same for Respondent's later concessions of two paid holidays,
and a shift premium for third shift, for while there is no proof from either
side about the exact cost, the grant of paid holidays to about 225 em-
ployees can hardly be considered inconsequential in a plant already losing
money
11 N L R B v United Clay Mines Corporation, 219 F 2d 120, 125, 126
(C A 6), where the court held that the Act does not require an employer
to abandon a settled position on an issue either because of the quantity or
quality of concessions by a union, and that the statutory right to refuse a
concession includes the right to stand firmly on a proposal previously
made and not accepted In Jake Lipsitz, 157 NLRB 1092, it was held that
an employer does not violate Sec 8(a)(5) per se where it indicates it is un-
willing to make any real monetary concessions which would increase the
cost of doing business, and argued during bargaining that its present wage
structure reflected the local labor market and was adequate for the type of
work involved, especially where the employer bargained hard with the
union about this at numerous bargaining meetings, but remained unper-
suaded that it should grant wage raises or other economic benefits See
also cases in fn 47 These authorities are also the complete answer to the
Union's repeated charges of bad faith in the refusal to make any economic
"counterproposals" which , from testimony of union agents, meant to the
Union "substantial wage concessions "
ALBA-WALDENSIAN, INC.
Union is, if Respondent can afford to give those raises,
why can't it give some raises at Pons, and that Respond-
ent's refusal to make such concession when it could af-
ford to do so was a bad-faith attempt to discredit the
Union at Pons. I find no merit in this argument for several
reasons. First, the Union never raised this argument in
bargaining, and obviously could not have done so,
because the general raise came after the last bargaining
session. Second, even when the Union posed a similar
question on October 7, based on the net profit picture,
Respondent never claimed financial inability to give a
raise at Pons, but steadfastly relied on what it had said be-
fore about competitive conditions there, but stating that
argument in the only way the Union would permit; i.e.,
the refusal to raise wages at Pons was based on its best
judgment Third, credible testimony of Smith indicates,
and I find, that the raise in other plants was given to con-
form those plants for competitive purpose to an industry
pattern of raises given in the area in mid-November, and
that Smith never mentioned this to the Union during the
negotiations , because he did not learn until after
November 2 that the raises would be given These cir-
cumstances militate strongly against a finding that these
raises were given elsewhere, but-not at Pons, in order to
undermine the Union or destroy its bargaining status, and
render apposite the ruling of Shell Oil Company, 77
NLRB 1306, cited by General Counsel, that, absent an
unlawful motive, an employer may give wage raises to his
unorganized employees while negotiating with a union re-
garding other employees.50
However, General Counsel argues that unlawful mo-
tive appears from Respondent's continuous refusal during
the negotiations to discuss wages, hours, and working
conditions at other plants, and that such conduct as part
of its steadfast refusal to make any "real" concession on
wages, is also evidence of bad faith. The argument is that
Respondent was required by the Act to discuss other
plants at the Union's request, because of their proximity
to Pons, the integrated corporate structure, and the timing
of the all-inclusive wage raise (but excluding Pons). The
timing and economic purpose of the general raise is ex-
plained by Smith's uncontradicted testimony above, and
neither General Counsel nor the Union present any facts
or argument to show that the economic reasons he cited
were spurious On the question of integration, the record
shows that: six of Respondent's seven plants are located
in Valdese, the seventh about 25 miles away. Some of the
plants have the same job classifications and type of work
as Pons, and several do finishing operations on basic
work done in others. Personnel problems and services51
for all plants are handled from Respondent's central of-
fice in the Alba plant. However, each plant is largely au-
tonomous in procurement of most supplies, responsibility
for production of its products, hiring and discharge of its
50 On the same considerations 1 find nothing unlawful in Respondent's
grant of paid holidays to unorganized workers in other plants on July 29,
1965, and its failure to give such holidays at Pons until confronted with
that fact by the Union in October 1 note that the cost of the paid holiday
grant at other plants does not appear , but aside from that the added ex-
pense thereof at Pons where an economy program was still in progress, as
the Union well knew, furnishes the ready answer to Respondent's
reluctance to extend the program to that plant until it was mentioned by
the Union In addition , such reluctance might well have been due to a fear
that the Union might turn it down , if offered by Respondent , with a warn-
ing of possible violation of the law, just as the Union refused approval of
Respondent 's request to pay vacation pay to strikers as well as other em-
ployees
721
employees;52 and in the requirement that it operate effi-
ciently and carry its own financial load as a separate
unit;53 one or more plants are not required to subsidize
others. While all plants have piece-rate workers, each
plant has its own piece-rate structure, and employees of
the same classification in two plants cannot transfer from
one to the other without retraining. In 1947 and 1949, the
Board held elections for appropriate units covering three
separate plants (Valdese finishing, Pine Burr, and box
plants) while owned by another employer, rejecting con-
tentions of that employer that a unit covering all plants
was the only appropriate one, notwithstanding some of
the same common or centralized personnel and adminis-
trative controls.54 The argument is made that, because of
the integration of all plants to the extent noted above,
discussion and release of data on wages, hours, and work-
ing conditions at other plants were vital to enable the
Union to bargain intelligently on those subjects for Pons
workers. General Counsel also claims that Respondent
opened up this subject and made other plants pertinent to
the discussion by giving the Union at its request at the
outset data on its profit-sharing plan covering all plants.
However, I do not consider that the mere happenstance
of a commonality of that plan to all plants automatically
opened the door wide to discussion of all wages, hours,
and working conditions at plants which the Union did not
represent, particularly where that plan was produced at
the Union's request only to support Respondent's
proposal to continue the existing pension plan for Pons
workers The company profit plan was relevant only in-
sofar as it would indicate whether Pons workers' benefits
therefrom were more or less than those proposed by the
Union for those workers, but I do not think the Union
had a right to use it as an entering wedge to open up a
broad discussion of wages, hours, and working conditions
in other plants which were not an issue in the bargaining;
and I am of opinion that Respondent was not acting in
bad faith in resisting this attempt, particularly where it
had good reason to believe that the Union was using these
negotiations to circularize workers in the other plants, at
least to "harass the company" in the negotiations at Pons
(as Shapiro admitted), if not to prepare for organizing
campaigns at other plants It certainly had no duty (or
even right, because of Section 8(a)(2) of the Act), inde-
pendently or arising out of the status of the Union at
Pons, to assist the Union by giving it information relating
to other plants which would make it possible for the
Union to organize such plants.
In reaching this conclusion, I have carefully examined
Curtiss-Wright Corporation v. N.L.R.B., 347 F.2d 61
(C.A. 3), enfg. Board Order in 145 NLRB 152, cited by
General Counsel and the Union, but I do not think it is
apposite here. In that case, the Union requested current
wage and other data for administrative workers outside
11 A single profit- sharing plan and workmen's compensation policy
cover employees in all plants Payrolls of all are made up at the central of-
fice at Alba Piece rates for all plants are set by one engineer in that office,
though the rates for each plant are different
52 There is a separate seniority system for each plant, and hiring and fir-
ing problems come to top management at Alba for decision only rarely,
when they cannot be solved at the particular plant
5' The record shows that Respondent keeps separate financial records
regarding the Pons operation
54 Waldensian Hosiery Mills, Inc, 74 NLRB 315, 83 NLRB 742, and
85 NLRB 758
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bargaining unit. The Board and the court held that the
union must show such data was relevant to negotiations
of a contract or administration of an existing contract, be-
fore the employer could be required to furnish it, and that
the union there satisfied that requirement by showing that
under prior contracts there had been instances of misclas-
sification of administrative workers to give them work of
those in the bargaining unit, hence the union needed data
on the administrative workers both to enable it to process
existing grievances properly, and to negotiate terms in the
new contract which would obviate such difficulties in fu-
ture. In the case at bar, however, I find no pertinent facts
stated by Respondent, or advanced by the Union in
negotiations or its arguments, which tend to show that
wages, hours, and working conditions at other plants
were needed by it, or relevant, to enable it to bargain
properly for workers at Pons.55 Its mere statement re-
peated often in Board-type language that it needed that
outside data is merely an opinion or argument, and not
proof of need or relevancy.
Acceptance of the thesis of General Counsel and the
Union on this point would mean that the Board has the
right to and must consider the overall financial condition
of Respondent and its actions at other plants, and decide
therefrom that it could afford to give a raise at Pons as the
Union contended, and must conclude that its failure to
make the same raise at Pons came from an unlawful anti-
union motive and is per se unlawful. But this logic cannot
stand in face of (1) the Board's own decision that the
Union represented workers only at Pons, and the Union's
repeated assurance that it was not organizing and had no
aspirations at other plants, in face of which facts I cannot
see the right of the Union and the General Counsel to
reverse position and integrate all plants for the purpose of
showing an unlawful action at Pons; (2) the clear mandate
of Section 8(d) of the Act that an employer is not required
to make concessions in bargaining, and (3) the settled law
that the Board cannot substitute its judgment for that of
the employer about the ability to give raises, particularly
where, as here, the employer never pleaded inability to
give a raise at Pons, but relied only on the special and
competitive conditions existing at Pons.
In making this finding I do not rely on a remark by At-
torney Smith to Attorney Zimny, made "off-the-record"
and in confidence„which indicated why Respondent as a
legal matter would not claim inability to pay I consider
the Union's reliance on such remark an unfair tactic
which is not calculated to enhance any feeling of trust and
respect for the Union by Respondent in future negotia-
v"^tions. Aside from that, the remark is not indicative of bad
faith, for Respondent never disputed its overall net in-
come situation or claimed inability to pay. which Respond-
ent's negotiators might as well have stated at the bar-
gaining table, and this would have justified their refusal to
talk about or submit financial data of the whole company.
See Charles E. Honaker, 147 NLRB 1184, 1187, where
the Board held that, in similar circumstances, the em-
ployer was not required to discuss or submit data relating
to its general financial situation.
Considering all the circumstances and for the reasons
stated above, I conclude that General Counsel has not
proved a violation of the Act as claimed in paragraphs
13(h), (i), and (k) of the amended complaint. I grant
Respondent's motion to dismiss said allegations, and will
recommend dismissal of the complaint accordingly.
5. The charges of delay
General Counsel and the Union argue that bad faith
was shown by Respondent's (1) delay of the bargaining
through insistence on longtime periods between meetings,
through its refusal to hold meetings in rapid sequence in
order to serve other business and personal needs, (2)
holding numerous unnecessary private caucuses during
meetings which impeded collective bargaining, and (3)
deliberately delaying the submission of data and counter-
proposals promptly with the same motive. These claims,
as well as the "catch-all" charge of general lack of good
faith and intent to make any final agreement, which is
considered below, require a careful review of the totality
of Respondent's conduct, including the sequence of
events, timing and nature of its proposals and counter-
proposals, and its arguments and remarks on issues, and
progress of the bargaining at various points, etc. But this
review must be made with equally careful examination of
the Union's own conduct, and its actual and reasonable
effect on the Employer's conduct, for it is well settled that
Section 8(d) of the Act as explained and applied by Board
and judicial precedents places the same duty of good-faith
bargaining on the union as on the employer, hence we are
required to appraise the employer's conduct in light of the
union's conduct and its effect on negotiations, as well as
the employer's attitude and reactions thereto.56
Between May 28 and November 2, a little over 6
months, the parties met 22 times.57 Twelve sessions or
more ran most of a working day apiece, and twelve
meetings were held as "back-to-back" sessions (two more
consecutive days) as requested early by the Union, with
the purpose of expediting the bargaining. While the Union
usually pressed for continuation of a session the next day
or meeting the following week, Smith on three or four oc-
casions pleaded pressure of other professional commit-
ments to ask for a later date. However, the first three ses-
sions were only I or 2 working days apart, which does not
seem unduly long because they were devoted mainly to an
exposition, in principle and exact terms, for Respond-
ent's benefit, of the Union's many proposals. Although
the Union as early as June 11 was demanding a full-scale
reply to all its demands, I consider this unreasonable in
the circumstances, in light of the answer that Respondent
was even then preparing its written responses. Although
Zimny had prepared the Union's first contract proposal
in written form in about a day, largely by taking much
wording from other union contracts at hand (without ap-
parent discussion with other union agents or the work-
ers), Respondent had a far different job of private analy-
sis and discussion of the 24 demands and clauses cover
ing them, review of their effect and cost among company
officials, and then preparation of a complete response
Hence, I find no evidence of deliverate delay in Respond
55 This is not a situation like that in Hollywood Brands, Inc , 142
NLRB 304, cited by the Union, where the employer supported its stand
on wages at one plant represented by the Union, by conditioning any raise
there upon a raise at another plant
56 See cases cited in fn 47, above In the Times Publishing case, supra,
the Board said that "the test of good faith in bargaining that the Act
requires is not rigid but a fluctuating one, and is dependent in part upoi
how a reasonable man might be expected to react to the bargaining at
titude displayed by those across the table "
57 1 include the August 4 evening and August 18 sessions, which wen
valuable for exploring issues and ways to expedite negotiations
ALBA-WALDENSIAN, INC. 723
ent's failure to submit any "economic concessions" by
June 11 since this was its first labor contract, and particu-
larly since it agreed in principle with three union clauses
at the first meeting, and accepted eight others in sub-
stance on June 8.58 While the Union demanded two
meetings in the week of June 14, I see nothing dilatory in
Smith's initial plea of other professional commitments
that week and continued preparation of the company
proposals, in asking for meetings on June 23 and 24.
When the proposal was produced on June 23, the Union
at once stigmatized it as "absurd," "wholly unaccepta-
ble," mainly because of the lack of any "counter-
proposals" in the form of economic concessions. This
charge was clearly without merit at that time because this
was the first submission by Respondent, and first chance
it had to give reasons in support of its proposals. Hence,
under Section 8(d) of the Act it was fully within its rights
to make no economic concessions, subject to explanation
of that stand. It gave that explanation on the 24th and, as
found above, the Union already knew that the Pons plant
was in straitened circumstances and trying to ecomomize,
so that it could readily infer this was the main reason for
no offer of immediate wage or other money concessions.
In addition, it is normal practice in bargaining for a union
to make a very high wage demand merely for bargaining
purposes with expectation of scaling it down during bar-
gaining, and for the employer to make no immediate move
toward concessions until it finds out in discussion what
the Union will settle for. Nor can I find anything unlawful
in Respondent's initial stand on arbitration, considering
that in later negotiations it made concessions on the right
to strike, as found above. I also note that at this session
the Company fully recognize the Union's status as bar-
gaining agent by bringing up for discussion the problem of
continued payment of health insurance premiums for the
strikers, which was apparently amicably discussed that
evening and the next day. Notwithstanding, the Union
used most of the June 24 session to continue to disparage
the company failure to grant economic concessions in
terms legally used to denote bad-faith bargaining, even
after Respondent explained its economic reasons for that
position. When Respondent tried to turn the negotiations
to other matters, the Union abruptly cut short the discus-
sion, with another claim of bad faith in failure to make
concessions on economics and arbitration, and walked
out. The Union made it clear that no agreement at all was
possible unless Respondent made concessions on
economics and arbitration. I find that at this point the
Union arbitrarily cut off bargaining after creating an im-
passe, and that any bad faith or delay in bargaining at this
point came from it, not Respondent, bearing in mind that
these first "back-to-back" sessions were the first time the
parties got down to serious discussion of the company
counterproposal.
The reasonableness of the company stand in its desire
to continue talk about other matters is shown by the
progress of the negotiations under the guidance of the
mediators. Although they arranged their first meeting
July 13, 19 days after the Union shut off the negotiations,
there is nothing substantial in the record to show that
Respondent caused this long hiatus, by arbitrarily refus-
ing any mediator request to meet earlier. When the media-
tors turned the bargaining to noneconomic clauses, they
secured agreement from the parties on eight clauses in
two sessions; the problem of payment of strikers' in-
surance premiums was quickly solved; the "seniority"
clause was left open, but the mediators could not get
agreement on the tough questions of arbitration, union
security with checkoff, and several lesser provisions,
although there was clearly serious discussion on all of
these. At the next "back-to-back" meetings in the follow-
ing week,59 the mediators procured agreement on two
more noneconomic clauses, but negotiations continued
with some progress toward a meeting of the minds on
both substance and wording of two other clauses. At the
close on July 23, Respondent agreed to prepare a
recapitulation of all agreed clauses, in the form agreed on,
for consideration at the next meeting, but Smith, for
reasons unexplained, used these clauses, with some
modifications, as the basis for Respondent's second con-
tract proposal which he submitted at the meeting of Au-
gust 4 (having sent it to Zimny so late that the latter could
not review it before that meeting). While the Union
makes much of this as a significant breach of promise and
indication of bad faith, I find nothing significant in it.60 At
this meeting Respondent further modified its second
broad proposal by an immediate though small concession
on holidays, after the Union reduced its demands on
general wages, overtime, holidays, and vacations. The
rest of that session, and those of August 5 and 6, were
devoted to hard bargaining on arbitration and the no-
strike issue, with some talk about checkoff, but both sides
remained far apart in their positions, even after the media-
tors held separate private conferences with them; how-
ever, Respondent gave ground on the 5th on the no-strike
issue by conceding the right to strike, but with the limita-
tion of advance notice. These concessions, as counter-
proposals, on wages and the strike issue came promptly
and naturally in course of bargaining on those issues, and
are more consistent with hard but bona fide bargaining
than otherwise.
The parties could not agree on the date for the next
meeting, so left that to the Federal mediator. However,
he did not fix a negotiation date, but instead, at the
request of Shapiro, arranged the August 18 private ex-
ploratory session between Shapiro and Garrou, and those
two fixed August 20 as the next negotiation date, and
then by agreement moved it up to August 24. 1 can find
58 See Charles E Honaker, 147 NLRB 1184, 1186, 1187 Zimny ad-
mitted Respondent had no legal duty to furnish complete counter-
proposals to the Union before June 11
59 On July 14, although the Union wanted to continue negotiations the
next day, Smith said he could not set a new date then, but would send the
mediator a list of his open dates, and let him fix the date He sent the list
on the 16th, and the mediator chose the 22d and 23d. Although it is infer-
able that Smith wanted to consult his calendar of professional commit-
ments, and possibly secure open dates from others on the company team,
I cannot find any deliberate attempt at delay in this procedure, in light of
the Union's unwarranted cutoff of the June 24 session, and its later cancel-
lation or truncation of meetings for the personal convenience of its nego-
tiators, which tended to stretch out the bargaining
11 if Smith had merely prepared sets of the agreed clauses for delivery
to the Union and mediators on August 4, he would then have been com-
pelled to submit a separate second proposal containing the agreed clauses
and new proposals, which would have required detailed comparison of
both documents either in or out of meeting By working from the agreed
clauses as the nucleus, Respondent thus saved time and appeared to be
moving ahead on the basis of what the parties had already accomplished
This is also indicated by Zimny's admissions that Smith's modifications of
three of the clauses in question were not important or significant enough
to change the substance, and I find that in three others Smith's wording in
fact favored workers' rights more than the agreed wording, and in only one
instance did Smith's new wording appear to give the employer slightly
more flexibility in his operations Hence, Smith's mode of procedure was
not indicative of bad faith or delay
310-541 0 - 70 - 47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no evidence of delay of bargaining by Respondent in the
18-day hiatus between sessions caused by this joint ac-
tion of the parties. At the August 24 and September 2
meetings, the parties could make only limited progress
toward final agreement on the seniority and limited ar-
bitration proposals of the Union, because Union Agents
Handler and Shapiro would not accept wording changes
proposed by Respondent without approval of Zimny,
who was absent. While this was not an improper stand
(since Smith in like manner always handled the legal end
of the negotiations for Respondent), it indicated that Han-
dler and Shapiro did not have final binding authority, and
the Union's failure to have Zimny present to make the
final decisions held up negotiations and final decision to
that extent pending final word from him. At the Sep-
tember 3 meeting, although Respondent yielded further
on the tough arbitration issue, by again reducing its limita-
tion on the right to strike (in accordance with the media-
tors' prior suggestions) the Union was now adamant on
an absolute right to strike without notice, accusing
Respondent of bad faith in not accepting any type of ar-
bitration. After discussions with both sides privately, the
Federal mediator announced a stalemate on this, and both
mediators then withdrew from the negotiations. At the
September 21 meeting (arranged by agreement with no
apparent protest by the Union at the 18-day spread
between that and the September 3 meeting), the parties
continued hard bargaining on arbitration and no-strike,
but without change of position. Although requested to do
so by the Union, Respondent did not offer any counter-
proposals on arbitration apparently because it had no
modifications to offer, while still indicating its mind was
open to consider anything else the Union might offer. If
the parties were basically in the same position of
knowledge and experience on this point, t would consider
this stand a rather arbitrary position which might be in-
dicative of bad faith.st However, there is no proof that
Respondent had ever had actual experience with or prac-
tical knowledge of any type of arbitration, while the
Union admittedly had long experience with it in many of
its contracts, which is proven by Shapiro's suggestions
earlier to Garrou about the scope and procedure of ar-
bitration and his own experience with it. Hence, Respond-
ent's insistence that the Union come up with other sug-
gestions about arbitration does not constitute substantial
evidence of bad faith or delay of the negotiations. On the
contrary, I am of opinion that the Union very early
limited effective bargaining on this subject when it
refused on June 23 to produce sample arbitration clauses
from actual contracts to support its claim that arbitration
had worked satisfactorily for it in the past. Its claims of
the confidential nature of such contracts were specious in
view of Smith's suggestion that the names of employers
could be deleted, and its stand foreclosed Respondent
from testing the Union's arguments and finding possible
alternate ideas for a compromise proposal. When the
Union put Shapiro's ideas in proposal form on September
2, Respondent did not foreclose discussion on it, but
agreed with the Union to exchange counterproposals on
it before September 24, in preparation for the agreed
meeting of September 30. Respondent adhered to this ar-
rangement by its letter of September 24 to the Union.
On September 30, the Union reverted to its original 24
demands, trying to review them and ask Respondent's
present position on each. While this was a form of
recapitulation, it also required Respondent to restate
positions and contentions made in the past, including
many clauses which had been fully discussed with tenta-
tive agreement reached. When Smith objected that this
procedure ignored what the parties had accomplished to
date, Zimny defended the review on the ground that
Respondent had given no "counter-proposals," meaning
economic concessions. This argument ignored, of course,
actual financial concessions made by Respondent, though
small, and the economic reasons for its basic stand, which
the Union already knew, as well as the substantial prog-
ress made on noneconomic items. Although Respond-
ent at first stood pat on its last economic proposal, refus-
ing further concessions, it yielded by agreeing to consider
a concession on holidays when confronted with the July
holiday notice covering other plants. While the Union
tried to create an issue involving Respondent's ability to
give economic concessions, mainly on wages, at the same
time it cut off discussion by Respondent of competitive
conditions, thereby substantially foreclosing possible
fruitful negotiation on this issue by Respondent. For
reasons stated above in subsection 4, 1 consider that this
was a deliberate strategic move by the Union which
tended to retard full bona fide bargaining by Respondent
on this all-important issue and thus delayed possible
agreement on it.
At the October 7 meeting, which was fixed apparently
by agreement, the Union again tried to turn the clock
back by Handler's attempt to bring up the original union
demands. While protesting this back-tracking. Respond-
ent still repeated its last offers on economic subjects, but
on paid holidays it made another counteroffer which the
Union reluctantly and "tentatively" accepted, contingent
on "satisfaction" of other union demands. On wages
generally, the Union tried again to steer the discussion
into Respondent's overall financial condition and ability
to pay, but Smith insisted the discussion involved only
Pons. When the Union again reduced its overall wage de-
mand , Respondent promised a written counterproposal
on paid holidays, and submitted it on October 19, when
it was the subject of full discussion only of excluded
categories of workers which the Union considered to be
a new matter. The agreed on "back-to-back" sessions of
November I and 2 included a long detailed discussion of
Respondent's stand on checkoff, which in effect repeated
what Zimny and Shapiro had heard at prior meetings.
This was apparently done to bring Handler up to date on
the company position, although he could have learned
that from both Zimny and Shapiro beforehand. When the
Union further reduced its demands on wages, paid
holidays, overtime pay, and shift differential premiums,
Respondent offered a concession on third-shift premi-
ums. When the Union wanted the next session the follow-
ing week, Respondent insisted the next meetings be set
no earlier than November 23 and 24, to give it time for
extensive study of the Union's new economic demands,
and due to Smith's inability to meet earlier because of
other professional engagements. The Union agreed reluc-
tantly.
In summary, I conclude that:
(I) While Respondent at times was slow in giving
responses or counterproposals, the record falls short of
01 This would be supported by the assumption that Smith, as a lawyer,
had the same access as Zimny to current treatises on labor relations in-
sofar as they deal with arbitration clauses and experiences of both em-
ployers and unions in their use.
ALBA-WALDENSIAN, INC.
establishing that Respondent throughout the negotiations
unreasonably delayed the submission of proposals and
counterproposals to an extent that retarded the progress
of bargaining and indicated a definite intent or desire to
avoid any final agreement on a contract.62
(2) The record fails to establish that Respondent
deliberately and in bad faith refused to fix meeting times
by short dates, or otherwise delayed meetings so as to
stretch out and delay the bargaining to an extent indicat-
ing bad faith and a desire to avoid reaching an agreement.
In this connection, Respondent's refusal on three dates
(June 11, August 6, and November 1) to agree to short
dates requested by the Union because of other profes-
sional commitments of Attorney Smith and a desire to
study the effect and cost of union proposals is more than
counterbalanced by the Union's abrupt and arbitrary cut-
off of bargaining on June 24, its refusal to bargain more
than a few hours on August 6 due to other commitments
of its agents, its cancellation of the August 20, October
23, and October 24 bargaining sessions, and refusal to
continue bargaining on October 8, or October 19 or the
following day, because of other commitments or the per-
sonal convenience of its agents.
(3) The record completely fails to establish that
Respondent impeded bargaining by taking eight or so
private caucuses, ranging from 10 minutes to 1 hour, at
six bargaining sessions to consider promptly demands or
claims of the Union,63 where four of the caucuses
resulted in immediate concessions or other-counter-
proposals by Respondent, which tended to narrow the
areas of disagreement somewhat, two produced indica-
tions that Respondent would consider instant proposals
of the Union and respond shortly with counterproposals,
and two resulted in detailed explanations of the company
position on the checkoff and piece-rate data already
furnished. On balance, such caucuses tended to expedite
rather than hinder bargaining. Further, it appears that this
claim by the General Counsel is rather a makeweight
because the record shows clearly that many sessions did
not begin at the agreed time due to delayed appearance by
one side or the other, time was taken from one session to
enable the union agents to tour the plant, and the Union
held a few short caucuses itself, or deferred responses
until the next day or next meeting, to study company
counterproposals, all of which indicates that at the time
the parties were lenient with each other on such matters,
and that such delays, singly or in toto, did not delay bar-
gaining.
On all the circumstances, I conclude that General
Counsel has failed to sustain the ultimate burden of prov-
ing that Respondent delayed the bargaining in the aspects
cited above such as to indicate bad faith, and I therefore
grant Respondent's motions to dismiss paragraphs 13(c)
and 6) of the amended complaint, and will recommend
that the complaint be dismissed accordingly.
6. The charge of general bad faith and intent to avoid any
agreement
Following the guidelines cited above, I find in the
record significant instances of union conduct and attitude
which was reasonably calculated to affect, as well as
" See Charles E Honaker, 147 NLRB 1184, 1186, 1187
s3 Respondent cannot be charged with several long private conferences
called by the mediators in the August meetings , since those officials were
725
throw a different light on, employer attitude and conduct
charged as violative of the Act. I have already noted the
Union's successful elimination from discussion of the
Respondent's main argument of competition for its
refusal to grant substantial economic concessions, par-
ticularly on wages, which controlled the scope of bargain-
ing unfairly and prevented a fair test of Respondent's
good faith in its stand on the vital issues of economics.
The Union also tried to control the course of the negotia-
tions, and Respondent's conduct and participation in
them, in other ways:
(1) Consistent with its limitation of Respondent's
negotiations on wages, the Union throughout the bargain-
ing refused to furnish its new health and welfare rules
from its own sources, as requested by Respondent, so
that the latter could appraise the union health and welfare
funds and compare them with its own funds. Such com-
parison was clearly necessary to enable Respondent to
decide whether to stand on its own, accept the union
proposals, or offer a compromise. Refusal of the Union to
get the new rules from the attorney who was revising
them as its agent thus hindered effective bargaining on
this subject, and I think it was and is evidence of bad faith
for the Union to insist, as it did during bargaining and at
the hearing, that it was Respondent's responsibility to get
the new rules, not that of the Union, which contrasts
sharply with the Union' s insistence (which is legally cor-
rect) that Respondent furnish certain data in its posses-
sion concerning rates, etc. I conclude that the Union's
delay in procurement of such data thus relieved Respond-
ent of any responsibility of negotiating further on the
fund demands, and created a true impasse on that point.
Again, during the hard bargaining on arbitration, the
Union limited Respondent in its bargaining by refusing to
disclose copies of arbitration. clauses from other contracts
administered by it, even in annonymous form, to support
its claim that arbitration worked satisfactorily for it in the
past. Refusal to submit such data not only foreclosed
Respondent from testing the sincerity of its arguments,
but also deprived Respondent of possible guides toward
alternative suggestions which might have been the basis
for further negotiation on arbitration, as such, leading to
a possible compromise on that subject.
(2) On June 8 the•Union demanded "crash bargain-
ing" during the strike, with an immediate complete
answer to its original 24 skeleton demands, although
Respondent had not yet received a detailed exposition of
the whole of the Union's contract proposal, to which it
was entitled before it could fairly be expected or required
to submit a counterproposal of comparable scope. The
union demand also ignores the circumstances, noted
hereafter, that the strike did not start during bargaining
and because of events in its course, but stemmed from
worker dissatisfaction with plant conditions before the
advent of the Union, and that the Union, having called
the strike, could always have arranged for the strikers'
return to work during the negotiations and thus
eliminated the "emergency" which it manufactured and
used as the basis for the "crash" program demand.
(3) On June 11 the Union demanded, in effect, that
Respondent dispense with the services of Smith, when he
could not meet the next week because of other commit-
merely following their normal practice of separate talks with both sides on
tough problems
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments, and bargain through another local attorney,
Mitchell, who had been present during early meetings but
took no active part in the discussions. Considering
Smith's experience and Respondent's reliance on him
throughout as chief negotiator, a surrender to that sug-
gestion in order to satisfy the union demand for "crash"
bargaining might well have served to slow down the bar-
gaining (as occurred on August 24 and September 2
when the Union deferred agreements on items pending
approval of Zimny) by depriving Respondent of the ser-
vices of its top negotiator and thus putting it at a distinct
disadvantage in the bargaining.
(4) Similar attempts to dictate Respondent's conduct
appears in the Union's complaint on November 1, when
Smith held a short private talk with his associates to get
facts about plant deductions, that it was tired of "com-
pany adjournments," and that Smith should get the facts
from his team in open meeting, and the Union's prolonged
and caustic disparagement of Smith's authority on
November 2, the accusation that the company team had
been operating under guidance of another lawyer working
behind-the-scenes, with constant time-consuming
telephone talks with him during private caucuses, and the
demand that he be produced to do the bargaining. The
union charge that this was bad-faith bargaining by
Respondent is not supported by any substantial evidence
in the record. On the contrary, when Smith promptly of-
fered to produce proof of the authority of the employer
negotiators, the Union's agent hastily retracted the
charge of lack of authority, but complained of Respond-
ent's "technique of negotiating." In addition. Zimny ad-
mitted that on two or three occasions he questioned the
authority of the company negotiators by noting the
absence of Attorney Blakeney, and stating that he was
important to the "decision and counselling process" and
should be brought to the bargaining table, and that Smith
was not the real attorney counseling Respondent. Zimny
admitted that he made these charges and demands
without real proof but based on surmise from a single
letter from Respondent to the Union, indicating a copy
went to Blakeney, and the fact that the latter represented
Respondent in the representation case. When the Union
as early as June 8 demanded a total response to its con-
tract demands, and a company official said he would have
to consult about them with President Garrou who was out
of town, Zimny suggested that Louis be brought to the
bargaining table. The Union's remarks on this subject on
November 2 took up much time at that meeting which
might have been devoted to bargaining on open issues;
and Zimny's repeated face-to-face disparagement of
Smith's authority and demands for change of composi-
tion of the company team were well calculated to cause
resentment in Smith and his associates and to create an
unamiable atmosphere in which the chances of progres-
sive bargaining would be lessened, if not eliminated, to
the same extent as similar conduct by an employer. In
this respect, I consider such conduct by the Union bad-
faith bargaining which explains and renders insignificant
many aspects of Respondent's conduct cited in the
briefs.64
(5) Another type of control was tried in the Union's
arbitrary cutoff of negotiations on June 24 with repeated
charges of bad faith because Respondent had failed to
make any large concessions on economic matters and in-
dicated its desire to maintain the status quo (as the Union
continually phrased it) at Pons. In walking out, the Union
made it clear that large concessions on wages and other
economic demands were a sine qua non to further discus-
ion and any agreement on a contract. This attitude and
action of course completely stopped the bargaining until
the mediators got it going again July 13. I think the walk-
out was unwarranted this early in the negotiations,
because it is not unusual for the employer's first response
to union demands to offer little, if anything, just as a
Union's first demands are usually very high, far more
than it expects to settle for. Hence, the Union's violent
response to the total company response on June 24, as
viewed in light of the Union's continued self-serving
disparagement and villification of the company conduct
in its letter of July 1, in terms often used in Board deci-
sions to denote serious violations of the Act, warrants the
inference that the Union was engaged in a "grandstand
play" for the benefit of the large workers' committee
present, or was more interested in building a "pro forma"
record looking to Board litigation, than it was in sincere
collective bargaining to achieve an agreement. This type
of intemperate conduct early in the negotiations not only
hindered the negotiations,65 but also was calculated to
raise doubts in the employer's mind about the stability of
the Union and the prospects of true and progressive bar-
gaining toward a contract, as well as dealing with it during
the administration of any contract.
(6) While proclaiming during negotiations and in its ar-
guments here that it was entitled to be treated with
"respect" and as a "self-respecting" Union by Respond-
ent in responses to its demands, and that it wanted
peaceful negotiations and stable industrial relations,
rather than industrial warfare, the Union exhibited other
contrasting evidence of imminent belligerence and a
disposition toward irresponsibility. On July 13 and 22, in
arguing for unlimited access to the plant for administering
a contract and handling grievances, the Union frankly ad-
mitted that it might find situations where, in order to "sur-
vive" in its relationship with Respondent, it would find it
expedient to become "irresponsible" and process (if not
actually create) unmerited grievances, in order to create
"emergency" situations for access to the plant. On Au-
gust 5, the Union's chief negotiator resorted to an
emphatic use of personal and disparaging terms in
describing the company stand against arbitration. On Au-
gust 18, the Union admitted it was distributing propagan-
da leaflets at other plants of Respondent in order to
"harass it," while professing no organizing interest in
those (except one). On September 21, when Respondent
would concede on that subject no more than a right to
strike on 30 days' notice, the Union once again charged
Respondent with bad faith, and threatened to spread that
charge among its customers. Respondent deprecated this
type of talk in its September 24 transmittal of its third
counterproposal on the arbitration issue.
(7) Throughout the 22 sessions, the union negotiators
charged Respondent's agents with bad faith and viola-
tions of the Act on at least 15 occasions. Many of the ac-
cusations came when Respondent repeatedly refused to
"Cabinet Manufacturing Corporation, 140 NLRB 576, 586, sidered similar employer conduct a factor supporting a finding of bad-faith
American Radiator & Standard Sanitary Corporation, 155 NLRB 736. bargaining
"S In Oneita Knitting Mills, Inc , 150 NLRB 689, 690, the Board con-
ALBA-WALDENSIAN, INC. 727
make any concessions on wages as such or did not submit
counterproposals as promptly as the Union desired.
Some of the more virulent charges disparged Respond-
ent's stand on arbitration, the right to strike, and the
checkoff. Most of them were couched in terms often used
in Board and court decisions to denote various types of
8(a)(5) violations. While the Union had the clear right to
adopt the tactics of accusation, recrimination, and
disparagement, both personal and otherwise, in an obvi-
ous attempt to coerce Respondent into making conces-
sions, I think it is obvious that such tactics did not tend to
promote sincere and progressive bargaining, but rather
created an atmosphere of suspicion, resentment, and per-
haps anger, as well as continued turmoil, which could not
help but retard amicable and progressive negotiations. It
is difficult for any person to talk or bargain in a friendly
and flexible manner when he is constantly being accused
of being a lawbreaker or subjected to threats in disparag-
ing terms . The continued attacks by the Union were also
well calculated to increase any doubts in Respondent's
mind about the stability and responsibility of the Union
and the chances of dealing with it in an atmosphere of mu-
tual good faith and trust under any contract, and I am
convinced such doubts were the reason why Respondent
refused to change its initial stand on a 1-year contract,
based on its desire better to learn to know and deal with
the Union before committing itself to a longer term con-
tract with it. I have no doubt that these belligerent and
corrosive tactics also tended to foster in the minds of
Respondent's agents a distrust of the Union to a point
where they tended to harden their stand on economics
rather "than give concessions, and this would explain their
reluctance to make economic concessions until fairly late
in the bargaining, and then only on lesser items like paid
holidays, etc .66 It is highly significant that when the
mediators presided at 12 sessions, the accusations of law-
breaking dwindled to two, of which one (the Union's
recapitulation on June 13 of its position and opinion of
the bargaining to date) was predictable and probably
given in temperate manner, and that in an atmosphere
cleared of such turbulence the parties made progress, at
least on noneconomic matters; and in sessions from Oc-
tober 7 onward, when Shapiro and Handler were bargain-
ing for the Union, there were comparatively few
recriminations by the Union, the parties indulged in hard
bargaining, and Respondent made most of its economic
concessions. The inference is compelling that when the
Union stopped constant recrimination, the bargaining at-
mosphere cleared and the parties got along better, so that
at the final meeting they had cut down the areas of
cleavage substantially to the hard-core economic issues
of wages, overtime, vacation pay, holidays, and the tough
problem of arbitration versus the right to strike, and
checkoff and union security, with relatively narrow dif-
ferences of view on holidays, the amount of notice, if any,
to be given before a strike, the company name in the con-
tract, and the contract term.67
(8) The Union repeatedly claimed during negotiations,
and intimates in its argument, that Respondent's in-
sistence that agreement on particular provisions or sub-
jects was "tentative" upon agreement on an entire con-
tract, was evidence of a bad-faith desire to retard bargain-
ing and avoid any agreement. I find no merit in this argu-
ment, because the record clearly shows that the Union
consistently, and more emphatically than Respondent,
took the same position on the vital issues of wage raises,
arbitration, and checkoff, usually whenever it would
serve its purpose to try to show that Respondent's
proposals or lack of them denoted bad faith. Thus, as
early as June 11, the Union indicated that its proposal on
the length of the contract would "depend on the economic
package, a more attractive package justifying a longer
agreement." On June 23 and 24, the Union made it clear
that there could be no contract at all without large wage
concessions from Respondent, another way of saying that
any items agreed upon were tentative and contingent
upon such concessions; and on August 4 and later, the
Union was adamant in its insistence that arbitration or an
absolute right to strike, and some form of union security
including checkoff, was essential to any contract it
signed. The mediators operated under the "tentative
agreement" procedure at their 12 meetings; and the union
agents adopted it specifically at the August 24 meeting.
At one point, Zimny admitted that the Union did not ex-
pect a complete binding obligation on every item as soon
as agreed on, regardless of agreement on other items.
Hence, I must conclude that the Union's repeated
protests against this procedure in earlier sessions were
made more "for the record" than as an indication that
bargaining was being hindered, and constitute more
evidence of instability, irresponsibility, and lack of good-
faith bargaining on its part. On the other hand, any in-
ference of bad faith from Respondent's proposal of and
adherence to the "tentative agreement" procedure is
negated by its refusal to retrace the whole of past bargain-
ing on September 30 and October 7 when the Union
wanted to go back to a review of its original 24 demands,
with Respondent insisting that the parties should proceed
only on issues remaining unsolved. 68
Considering all of the above circumstances, I must con-
clude that the Union's attitude, conduct, and tactics
throughout the bargaining was such as to compel Respond-
ent to bargain on all issues, even that of wages, under
limitations and restraints not of its own making to an ex-
tent that precluded a fair test of its overall good faith.
Therefore, except for Respondent's unlawful failure to
produce wage rates and other data as found above, which
I consider a technical violation of the Act under the
authorities, I must conclude that General Counsel has
failed to sustain the ultimate burden of proof on the entire
record that Respondent negotiated with the Union in bad
faith with no intention of entering into any final or binding
collective-bargaining agreement.69 This conclusion also
66 In marked contrast , the record indicates that the conduct of Respond-
ent's negotiators was singularly devoid of this type of remark and attitude
titude
8' The problem of reopening the contract for changes of wages was still
open for discussion , as well as the demand for employer contribution to
two union funds , and the union request for timestudies of piece rates by its
own engineer On the fund contribution issue , both parties had jointly
suspended negotiations pending receipt of the Union 's health and welfare
fund rules from Constangy, which the Union did not secure for Respond-
ent until after the last bargaining session
se I have carefully considered other authories cited by General Counsel
and the Union in their briefs on all pertinent and corollary issues and, ex-
cept to the extent adopted, noted , or commented on above, I find them
either mapptsite on the facts or not controlling or pertinent as legal
precedents as applied to the findings herein
69 In reaching this conclusion , I have given weight to the circumstances
that throughout the bargaining Respondent recognized its obligation to
deal with the Union, not only in negotiation of a contract for the future,
but also on workers' current working conditions , such as vacation pay,
elimination of piece-rate guarantees, and grant of ment raises
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covers Respondent's continued adamant attitude against
the checkoff; for in light of the various instances of the
Union's disruptive conduct analyzed herein, I am unable
to find or conclude that its position on this issue, though
supported by rather weak reasons, was of such a
character as to support an inference that it was taken in
bad faith. See Heck's, Inc., 159 NLRB 115 (fn. 1), and
Aaron Brothers Company of California, 158 NLRB
1077, and compare Hartmann Luggage Co., 145 NLRB
1572.
I therefore grant Respondent's motion to dismiss sub-
paragraphs 13(b) and (1) of the amended complaint, and
will recommend that the complaint be dismissed ac-
cordingly.
E. The Strike and Reinstatement of Strikers
The record shows, and I find, that employees at Pons
were dissatisfied with wages'and working conditions and
were preparing to strike over a wage cut with the
assistance of another union , before the Union came on
the scene, but Organizer Jesse Riddle of the Union ar-
ranged about March 14 to have that strike held up.
Thereafter the Union solicited employees for member-
ship, and by March 23 had secured about 150 signed
authorization cards. After unsuccessful attempts by Rid-
dle and a worker committee to confer with Plant Manager
Kowalski that day about recognition of the Union, a large
number of workers voted that night at the Union's sug-
gestion to "demonstrate" their support for the Union on
the 24th, which they did when about 130-150 of them
that morning congregated outside the plant. They went
back to work at Riddle's direction after Kowalski and
Respondent's personnel director, Valdo Martinat, came
out and told them they would be fired unless they
returned to work at once. On that occasion Riddle talked
to Kowalski, requesting recognition and offering to show
the signed cards. Kowalski refused to talk to him, so Rid-
dle at once sent a telegram claiming majority status and
requesting recognition and bargaining. The Union or-
ganized and began a formal strike of employees on March
25, and the same day sent Respondent another demand
for recognition. Respondent replied by letter of March
29, suggesting a Board election to settle the question of
representation, and stating its assumption that the Union
would use the appropriate Board processes. By telegram
of March 3 1, the Union again offered a card check, and
demanded recognition, following this by delivery to the
plant of a petition, purporting to be signed by about 140
employees, reaffirming their adherence to the Union.
Respondent did not reply to these documents.
Both General Counsel and the Union argue on these
facts that the strike began as an unfair labor practice
strike due to Respondent's unlawful refusal to recognize
the Union, and General Counsel also claims it was pro-
longed by unfair labor practices during bargaining as al-
leged in the amended complaint. However, the complaint
only charges that the strike began as a recognition strike,
and was prolonged since May 28, 1965, by said unfair
labor practices; it does not allege that Respondent unlaw-
fully refused to recognize or bargain with the Union at
any date earlier than May 28, the first bargaining session.
"' There is uncontradicted proof that the union negotiators reported
periodically to the employees on the progress of the negotiations and
Respondent ' s attitude therein, and recommended they continue the strike
While the Union claims the refusal to recognize the
Union in March was at least an 8(a)(1) violation, General
Counsel only relies on the events of March as
background proof showing a disregard of employee statu-
tory rights and antiunion animus, to color Respondent's
attitude during the bargaining. In his testimony, Zimny
admitted that he told Respondent several times in bar-
gaining that the workers would never accept the status
quo in wages and other matters because they were strik-
ing against the status quo. Since the issue of unlaw-
ful refusal to bargain before May 28 is not raised by the
pleadings, and I have found an unlawful refusal to bargain
by Respondent after that date only in certain aspects but
not in others due largely to the Union's conduct, I deem
it unnecessary to make any background findings of im-
proper attitude or animus based on the March events, but
find only that the strike began as an economic strike in
part over wage cuts and in part for recognition of the
Union. However, I also conclude that it was prolonged
by Respondent's unlawful refusal to furnish necessary
data to the Union from June 24, 1965, onward when, as
found above, Respondent unlawfully failed to give the
Union basic wage and other data as previously agreed,
hence after that date it continued as an unfair labor prac-
tice strike.70
It is well settled that unfair labor practice strikers are
entitled to immediate reinstatements to their jobs upon an
unconditional request therefor, even if this requires
discharge of replacements for the strikers. Mastro
Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278. In addi-
tion, they are entitled to reinstatement as a group, not
piecemeal, so that Respondent's failure to take them back
as a group, and place those for whom no work was availa-
ble (after displacing new hires) on a preferential hiring
list, and its reinstatement of some to other than their
original jobs or shifts, was discrimination against those
not immediately taken back or placed on such list, in
violation of Section 8(a)(3) and (1) of the Act, as it does
not appear that Respondent discharged striker replace-
ments to make room for any strikers as they were re-
called. Robert S. Abbott Publishing Company, 139
NLRB 1328, 1330, 1331; Berger Polishing, Inc., 147
N LRB 21, 39; My Store, 147 N LRB 145, 157.
In addition, although the Union protested the
piecemeal recall and requested that Respondent make the
recalls through it, and negotiate with it regarding the rein-
statements, Respondent persisted in recalling strikers by
direct contact according to its own schedule, merely
sending the Union copies of recall letters. By this conduct
Respondent not only deprived the striking employees of
their right to representation by the Union on this phase of
their employment and tenure, but also refused to recog-
nize the Union as their statutory representative for such
purpose, in further violation of Section 8(a)(5) and (1) of
the Act. See Phaostron Instrument and Electronic Com-
pany, 146 N LRB 996, 1006.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
because of Respondent 's conduct during bargaining and the failure to
reach an agreement , and that they did so
ALBA-WALDENSIAN , INC. 729
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization, within the meaning
of the Act.
2. On and after May 25, 1965, the Union was the cer-
tified and exclusive bargaining representative of Re-
spondent's employees in an appropriate unit found above.
3. By failing and refusing to furnish the Union upon
request during bargaining payrolls, wage data, piece rates,
and other financial data relating to employees in said unit
to the extent found above, refusing to permit the Union
upon request to make its own timestudy of piece rates and
their composition in the Pons plant, unilaterally discon-
tinuing piece-rate guarantees affecting employees in said
unit , and by refusing to negotiate with said Union con-
cerning the reinstatement of striking employees, Re-
spondent has failed and refused to bargain with said
Union in good faith in violation of Section 8(a)(5) of
the Act.
4. The strike of employees in said unit, called on
March 25, 1965, became and continued as an unfair labor
practice strike from and after June 24, 1965, by reason
of Respondent's unfair labor practices found above.
5. By refusing to recall and reinstate striking em-
ployees forthwith upon their unconditional offer to return
to work, Respondent has discriminated against them in
regard to their hire and tenure of employment, in violation
of Section 8(a)(3) of the Act.
6. By the above conduct, thereby interfering with,
restraining, and coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act,
Respondent has violated Section 8(a)(1) of the Act.
7. The above conduct constitutes unfair labor prac-
tices affecting commerce within the meaning of Sections
8(a)(1), (3), and (5) and 2(6) and (7) of the Act.
8. Respondent did not engage in unfair labor practices
as alleged in the amended complaint other than those
specifically found herein.
THE REMEDY
Having found that Respondent engaged in certain un-
fair labor practices, I shall recommend that it cease and
desist therefrom, and take certain affirmative action
which is necessary to effectuate the policies of the Act.
Having found that Respondent refused to bargain with
the Union in certain respects only, I shall recommend the
usual type of bargaining Order as set forth below but, for
guidance of Respondent in future bargaining, including
the requirement of disclosure of payroll, wage, piece-rate
and other data relating to employees in the unit, al-
lowance of a timestudy by a union engineer, if desired by
the Union, subject to reasonable restrictions, and negotia-
tion on reinstatement of employees.
As Respondent has discriminated against unfair labor
practice strikers by its piecemeal method of recall, I shall
recommend that, to the extent that it has not already fully
reinstated striking employees, Respondent reinstate them
to their former or substantially equivalent positions
without prejudice to seniority or other rights and
privileges, discharging if necessary any replacements
hired on and after June 24, 1965. If after such discharges
it still has no work for striking employees, it should place
such employees upon a preferential hiring list for recall
before any new employees are hired, as and when it has
openings at Pons. Respondent should also make all the
striking employees whole for any loss of earnings they
may have suffered by reason of Respondent's failure to
reinstate them promptly after their offer of return of
February 3, 1966. For those already properly reinstated,
the backpay period should run from that date to the date
of actual reinstatement; for those not yet so reinstated
(whether working in other jobs at Pons or not), it should
run from that date to the date of a proper offer of rein-
statement; for any strikers not yet recalled due to bona
fide lack of work, the period runs from said date to the
date of placement of their names on the preferential list
aforesaid; in all cases, net earnings in the proper period
should be deducted from the amount due. Backpay shall
be computed in accordance with the formula in F. W.
Woolworth Company, 90 NLRB 289, and shall include
interest at the rate of 6 percent per annum, Isis Plumbing
& Heating Co, 138 NLRB 716.
While there is no proof that, after its unlawful elimina-
tion of the piece-rate guarantee on November 8, 1965,
Respondent in fact cut any piece rates below those exist-
ing before May 28 as part of its economy program, the
fact that it insisted during negotiations on the right to con-
tinue to cut rates where necessary raises the possibility
that elimination of the guarantee may well have resulted
in reduction of some piece rates below those existing on
November 8, 1965. Hence, I shall also recommend that
Respondent be directed to restore that guarantee
forthwith pending proper negotiation thereon with the
Union as recommended above, and also pay to any em-
ployees whose piece rates may have been reduced by
reason of the elimination of the guarantee, the difference,
if any, between the amounts they would have received
under the guarantee from November 8, 1965, onward,
and their actual earnings from that date until Respond-
ent's restoration of their former guaranteed piece rate."
While the refusal to furnish proper wage and other
financial data during bargaining and to allow a timestudy
by a union engineer are considered technical violations of
the Act for reasons stated above, Respondent's later
refusal to negotiate with the Union on reinstatement of
strikers and its unilateral elimination of the piece-rate
guarantees without giving the Union pertinent data or
permission to make a timestudy sufficiently indicate
Respondent's propensity in the later stages of the negotia-
tions and after they were cut off, to bypass the Union as
the statutory bargaining agent. This attitude, plus its dis-
crimination in reinstatement of the strikers, justifies a
broad cease-and-desist-order.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in the case, I recom-
mend that Alba-Waldensian, Inc., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
11 C & S Industries, Inc., 158 NLRB 454
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Failing and refusing to bargain collectively with In-
ternational Ladies' Garment Workers Union, AFL-CIO,
as the statutory bargaining representatives of its em-
ployees in the unit found above to be appropriate-
(i) By failing and refusing to give said Union, upon
request, during bargaining payrolls and wage data relating
to employees in said unit, and timestudies and other infor-
mation relating to formation of its piece rates paid to em-
ployees in said unit;
(ii) By refusing to allow the Union to make its own
timestudy of piece rates in the Pons plant under reasona-
ble controls and limitations;
(iii) By eliminating guarantees of piece rates of such
employees without prior negotiation thereon with the
Union, including furnishing it upon request pertinent data
and allowing independent timestudies, as set forth in the
preceding subparagraphs; and
(iv) By failing and refusing to negotiate with the Union
upon request regarding reinstatement of striking em-
ployees.
(b) Discouraging membership in said Union by refusal
to reinstate striking employees, or in any other manner
discriminating in regard to the hire or tenure of employ-
ment or any term or condition of employment of any of its
employees in said unit.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of any of the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to all striking employees in the unit aforesaid,
who have not already been reinstated, immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to seniority or other rights
and privileges, and make them whole for any loss of
earnings that may have suffered by reason of Respond-
ent's discrimination against them, and also make whole
any employees for any loss of earnings they may have
suffered by reason of its unlawful elimination of the piece-
rate guarantee, all in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Notify any of said striking employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze and compute the amount of
backpay due under the terms of this Recommended
Order.
(d) Upon request, bargain collectively with Interna-
tional Ladies' Garment Workers Union, AFL-CIO, as
the statutory representative of all its employees in the
bargaining unit described herein, with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and in any bargaining on
wages, rates, and similar economic issues furnish to said
Union upon request payrolls and wage data relating to the
formation of piece rates paid to employees in said unit;
upon request allow said Union to make its own timestud-
ies of piece rates in the Pons plant under reasonable con-
trols and limitations; and, if an understanding is reached,
embody such understanding in a signed agreement.
(e) Forthwith restore the guarantee of piece rates of
employees in the unit which it eliminated on November
8, 1965, and maintain such guarantee in effect pending
negotiations with the Union thereon and until such time
as an agreement or bona fide impasse on that issue is
reached in bargaining
(f) Post at its Pons Outerwear Division plant at Val-
dese, North Carolina, copies of the attached notice
marked "Appendix."72 Copies of said notice, to be
furnished by the Regional Director for Region 11, after
being duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. 73
IT IS FURTHER RECOMMENDED that the amended com-
plaint be dismissed insofar as it alleges violations not
found herein.
92 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
'a In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 11, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL NOT fail or refuse to bargain collectively
with International Ladies' Garment Workers Union,
AFL-CIO, as the statutory bargaining representa-
tive of our employees in the bargaining unit
described below , by failing or refusing to furnish said
Union , upon request , payrolls and wage data relating
to employees in said unit , or timestudies and other in-
formation relating to formation of piece rates paid to
such employees , or refusing to allow it to make its
own timestudies of piece rates under reasonable con-
trols and limitations, or failing or refusing to
negotiate with said Union upon request regarding
reinstatement of striking employees.
WE WILL NOT eliminate guarantees of piece rates
of employees in said unit without prior negotiation
thereon with said Union , including furnishing it upon
request pertinent data and permitting timestudies of
the type described above.
WE WILL NOT discourage membership in said
Union , or any other labor organization of our em-
ployees, by refusing to reinstate striking employees,
or in any other manner discriminating in regard to the
hire or tenure of employment or any term or condi-
ALBA-WALDENSIAN, INC. 731
tion of employment of any of our employees in said
unit.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
WE WILL offer to all striking employees in the unit
aforesaid, who have not already been reinstated, im-
mediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to
seniority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered by reason of our discrimination against
them.
WE WILL make whole any of our employees in said
unit for any loss of earnings they may have suffered
by reason of our unlawful elimination of the piece-
rate guarantee on November 8, 1965.
WE WILL notify any of said striking employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act
and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
WE WILL, upon request, bargain collectively with
the Union aforesaid as the statutory bargaining
representative of our employees in the apppropriate
unit described below, and in the course of such bar-
gaining on wages, rates, and similar economic issues
furnish to said Union upon request payrolls and wage
data concerning employees in said unit, and timestud-
ies and other information relating to formation of
piece rates paid to employees in said unit , and upon
request allow said Union to make its own timestudies
of piece rates in the Pons plant under reasonable con-
trols and limitations ; and, if an understanding is
reached, embody such understanding in a signed
agreement. The appropriate unit is:
All production and maintenance employees in
our Pons Outerwear Division plant at Valdese,
North Carolina, including plant clerical em-
ployees, janitors and the truck maintenance
man, but excluding office clerical employees,
professional employees, guards and supervisors
as defined in the Act.
WE WILL forthwith restore the guarantee of piece
rates of employees in the above unit which we unlaw-
fully eliminated on November 8, 1965, and will
maintain such guarantee in effect pending negotia-
tions with the Union thereon and until such time as
an agreement or bona fide impasse on that issue is
reached in bargaining with the Union.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization.
Dated By
ALBA-WALDENSIAN, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 723-2911, Ex-
tention 302.