American Thread Co.

National Labor Relations Board - Board Decisions

Mar 25, 1985

274 N.L.R.B. 1112 (N.L.R.B. 1985)

1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Thread Company and Amalgamated Cloth-
ing & Textile Workers Union , AFL-CIO, CLC.
Cases 11-CA-10358 and 11-CA-10531
25 March 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 May 1983 Administrative Law Judge
Lawrence W. Cullen issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party filed answering briefs.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions only to the extent consistent with this
Decision and Order.
The facts are fully set forth in the administrative
law judge's decision In brief, during initial negotia-
tions for a successor contract in the fall of 1981,
the Respondent proposed that the clause providing
for dues checkoff be deleted from the parties' col-
lective-bargaining contract. As reasons for its pro-
posal, the Respondent stated that a large number of
the grievances filed by employees under the prior
contract alleged discrimination against union mem-
bers and that elimination of the dues-checkoff pro-
vision would preclude employer knowledge of
union membership. Thereafter, the Respondent ad-
hered to this proposal in the face of strong union
opposition. Negotiations reached impasse on 19
November. On 1 December 1981 the Respondent
discontinued dues checkoff. On 8 February 1982,
having received signed cards from a majority of
unit employees clearly indicating a desire not to be
represented by the Union, the Respondent notified
the Union that it was withdrawing recognition
Thereafter, it ceased to process employee griev-
ances under the terms of the expired collective-bar-
gaining agreement, instituted a new grievance pro-
cedure, and modified existing vacation and insur-
ance benefits.
Relying on Markle Mfg. Co. of San Antonio, 239
NLRB 1353 (1979), the judge found that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by insisting to impasse on the deletion of the dues-
checkoff clause He further found that the Re-
spondent's subsequent withdrawal of recognition
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d
Cir 1951) We have carefully examined the record and find no basis for
reversing the findings
from the Union violated Section 8(a)(5) and (1) as
having been advanced in the wake of its unlawful
refusal to bargain on the checkoff clause. He also
found that its later refusal to process employee
grievances, its implementation of a new grievance
procedure, and its modifications of vacation and in-
surance benefits violated Section 8(a)(5) and (1) in
light of the unfair labor practice findings noted
above. Finally, based on credited testimony, the
judge found that the Respondent's industrial rela-
tions manager violated Section 8(a)(1) by asking a
prospective employee, during a job interview, if he
would cross a picket line in the event of a strike
The Respondent has excepted to each of these find-
ings We find merit to these exceptions and, in
doing so, we reverse Markle Mfg. Co., to the extent
explained below.
In Markle, like the present case, the employer
announced, during negotiations for a successor
contract, that it would not agree to the continu-
ation of a dues-deduction clause for the stated
reason that the union was filing too many charges
and grievances alleging company discrimination
against union members and that elimination of the
dues-checkoff clause would preclude employer
knowledge of union membership. The judge in that
case dismissed the 8(a)(5) allegation. He found that,
although the proposal to withdraw the dues-check-
off clause tended to some extent to undermine the
union and be inimical to its position, nonetheless,
under H. K Porter Co. v. NLRB, 397 U.S. 99
(1970), the company could not be forced to yield
to a particular provision advanced by the union.
He noted that the General Counsel had presented
no authority for the proposition that refusal to
agree to the clause violated the company's duty to
bargain. Further, he refused to find that by taking
this position the company had evidenced a determi-
nation not to bargain in good faith. He noted that
the General Counsel did not argue that the compa-
ny took its position to frustrate bargaining and the
judge found that bad-faith bargaining had not been
shown. The judge concluded that "[s]imply with-
drawing a clause previously agreed to does not
breach Section 8(a)(5)."2
The Board in Markle reversed the judge It char-
acterized the employer as proposing to eliminate
the clause because employees were filing charges
and grievances, i.e., invoking their Section 7 rights
It then found that the employer's statement as to
why it wanted the clause removed implied that
agreement on the clause could not be obtained
absent some type of guarantee from the union that
its members would cease filing charges and griev-
2 239 NLRB at 1364
274 NLRB No. 164
AMERICAN THREAD CO 1113
ances. Building on these premises, the Board then
concluded that, by allegedly seeking withdrawal of
an existing term of employment because of the em-
ployees' participation in protected activities and by
implicitly conditioning agreement to a continuation
of that on a promise to cease these activities, the
employer had clearly demonstrated its determina-
tion to refuse to bargain in good faith and thereby
violated Section 8(a)(5) and (1) of the Act In so
concluding, the Board also found that, although H.
K. Porter would forbid compelling the employer to
grant the dues-checkoff clause, it did not "purport
to permit an employer's refusal to agree to contrac-
tual provisions for reasons clearly violative of the
Act."3 Thus, the Board reasoned that it was
"within [its] remedial power to require a respond-
ent to cease and desist from resting its refusal to
agree to a dues-checkoff clause on reasons which
are illegal."4
Applying the above principle to the instant case,
the judge found that the Respondent's insistence on
a proposal to delete the dues-checkoff clause in re-
sponse to the employees' invocation of contractual
and statutory rights violated Section 8(a)(5) and (1)
as an attempt to frustrate and impede bargaining
for no legitimate reason. We disagree. We think it
clear that the judge in Markle decided the issue
correctly, and we conclude that the Board's deci-
sion in Markle was wrongly decided on the facts
presented there.
In reexamining the Board's decision in Markle,
we find no basis for the Board's factual determina-
tion that the employer there conditioned agreement
to the continuation of the dues-checkoff provision
on a guarantee that protected activities would
cease where there is nothing in the judge's factual
findings which supports the inference that the em-
ployer imposed such a condition or sought such a
guarantee. The employer's reason for seeking dis-
continuance of the clause, i e., so that it would not
know who was or was not a union member in deal-
ing with the employees and thus could no longer
be accused of discrimination, was an "eminently
reasonable position," as the judge in Markle
noted.5 We similarly find that the General Counsel
has not carried her burden of proving by a prepon-
derance of the evidence that, in the circumstances
of this case, the Respondent made its proposal for
ulterior motives, i.e., to frustrate negotiations.
Thus, we find that the Respondent's insistence on
the deletion of the clause here did not violate Sec-
tion 8(a)(5) and (1).
3 239 NLRB at 1355
4 Id
5 Id at 1364
In light of o ur dismissal of the foregoing 8(a)(5)
and (1) allegat on, we find that the Respondent's
receipt of signe, 'd cards from a majority of unit em-
ployees clearly indicating a wish not to be repre-
sented by the U nion provided the objective consid-
erations necessai •y to support a good-faith doubt of
the Union's maj( )rity status and sanctioned the Re-
spondent's withd rawal of recognition. Similarly, in
the absence of co ntractual terms and any obligation
to bargain with the Union, we find that the Re-
spondent's subseqi lent changes in the existing griev-
ance procedure an d insurance and vacation benefits
did not violate Se, ction 8(a)(5) and (1) of the Act.
Finally, the coi nplaint alleges, and the judge
found, that the Res pondent violated Section 8(a)(1)
by interrogating employees concerning their
"union activities, i iesires, and sympathies." The
record shows that, during negotiations for a new
contract, the Respor ident's industrial relations man-
ager Chester Kilpatr ick asked a job applicant, Car-
roll Lance, if he we luld cross a picket line in the
event of a strike. Lan ice replied that he would have
to think about it. La nce began work for the Re-
spondent the next da; i. In these circumstances, we
do not find that Kilpi itrick's remarks to Lance on
that single, isolated oc, casion rose to the level of an
8(a)(1) violation.
Accordingly, we shi ill dismiss the complaint in
its entirety.
01 ZDER
The complaint is dism issed.
DECISION
STATEMENT OF THE CASE
LAWRENCE W CULLEN, Administrative Law Judge.
This case was heard before r ne on September 13 and 14,
1982, at Brevard, North Marc )lina . The hearing was held
pursuant to a consolidated complaint issued by the Re-
gional Director for Region 11 of the National Labor Re-
lations Board on September El, 1982. The complaint in
Case 11-CA-10358 is based cm a charge filed by the
Amalgamated Clothing & Texti le Workers Union, AFL-
CIO, CLC (the Charging Party or the Union) on March
29, 1982 The complaint in Cast' I1-CA-10531 is based
on a charge filed by the Chart ;ing Party on July 29,
1982. The complaint, as amendea i at the hearing, alleges
that American Thread Company, a corporation (the Re-
spondent), has violated Section 8(^ 1)(5) and (1) of the Na-
tional Labor Relations Act (the i i ct), since about Sep-
tember 29, 1981, by refusing to bargain in good faith
with the Union by "failing and refs icing on or about No-
vember 19, 1981, to agree to a cons ract clause providing
for a dues checkoff authorization be cause of union griev-
ances" and by "on or about Febri 'iary 8, 1982," with-
drawing "its recognition of the Un ion as the exclusive
collective bargaining representative of the employees";
1114 DECISION! ; OF NATIONAL LABOR RELATIONS BOARD
and by "failing and refusing since on,o r about February secret..ballot election in Case No. 11-RC-4513, conduct-
8; 1982; to accept and process ,grievan(.,es filed pursuant,. ed, under the. supervision of the Regional Director for
to the negotiated collective-bargammg agreement," and ,,the Eleventh Region of the Board, designated and select-
since about February 8, 1982, by refusir,ig to bargain with , -ed the Union as their representative for the purposes of
the Union by "unilaterally, and, withou,f prior notification collective. bargaining, and on November 28, 1978, said
to; or consulation with the Union '[changing] wages, Regional. Director certified the Union as the exclusive
hours, and working conditions of emp loyees,iii the afor- , representative of the employees in
said bargaining unit by: (a) changing it,s,emplpyees' insur-
afice coverage, and the employees' c )ntribution rate for
such coverage, (b) changing the lei igth of service re-
quirements for vacation pay, (c) crea ting and utilizing its
own grievance procedure for employ ees " The complaint
also alleges that Respondent violate ;d Section. 8(a)(1) of
the Act about September 30, 1981, , by, intgrrogating its
employees "concerning their union activities and desires,
and sympathies." The Respondent. , by its answer filed
September 13, 1982, had denied tl- ie commission of any
violations of the Act
On the entire record in this
observations of the witnesses
after due consideration of the
make the following
proceeding, including my
tha ,t testified herein and,
pot ;itions of the parties, I
FINDINGS OF FACT AN D ANALYSIS'
I THE BUSINESS OF THI 2 RESPONDENT
The complaint alleges, the R 'espondent admits, and I
find that at the time of the alleg ;ed unfair labor practices,
the Respondent was "at all tim es material herein a New
Jersey corporation engaged in manafacture and sale of
textile products with a plant a' t Rosman, North Carolina
(the Sylvan Plant)," and that " 'during the past 12 months
(prior to the filing of the cc tmplaint), which period is
representative of all times m ,aterial herein, Respondent
received goods and raw pro( lucts at its Rosman, North
Carolina, facility directly fron a outside the State of North
Carolina, which goods and I materials were valued in
excess of $50,000," and di iring this period, "shipped
goods and materials valued in excess of $50,000 directly
from its Rosman, North Ca roh^na, facility to points out-
side the State of North Cat •olrna," and the "Respondent
is now, and has been at all times material herein, an em-
ployer engaged in commerl--e within the meaning of Sec-
tion 2(6) and (7) of the Act.
iI THE LABC iR ORGANIZATION
The complaint alleges , the Respondent admits, and I
find that the Union is a labor organization within the
meaning of Section 2(51) of the Act The complaint also
alleges, the Responden.t admits, and I find that at all
times material herein "'All production and maintenance
employees employed ; it the Employer's Rosman, North
Carolina, plant, but e: tcluding all office clerical employ-
ees, professional empl pyees, plant guards and supervisors
as defined in the Act constitute a unit approriate for the
purpose of collectiv(: bargaining within the meaning of
Section 9(b) of the A ct," and on June 2, 1978, a majority
of the employees it i the aforesaid described unit "by a
' The following inclu des a composite of the testimony of witnesses
whose testimony is cred tted, except insofar as specific credibility resolu-
tions are made
the said unit."
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Independent 8(a)(1) Violation-The
Alleged Interrogation -of Employee Carroll Lance by
Respondent's Industrial Relations Manager Chester
Krlpatrick2
Lance testified he was employed in October 1981 by
Respondent and worked until March 1982 when he was
discharged., Lance had previously worked for Respond-
ent several years on one or more occasions. Shortly
before, his, employment in October 1981, he was inter-
viewed by Chester, Kilpatrick, Respondent's industrial re-
lations manager at the Sylvan Plant in Rosman. Lance
testified that during this conversation, Kilpatrick told
him "the Union was going on a strike, and he (Kilpa-
trick) asked me if they had a strike would I walk across
the picket line and I told him I'd have to think about it."
On the day following Lance's conversation with Kilpa-
trick, Lance commenced work with Respondent. Lance
acknowledged on cross-examination that he had been dis-
charged from his position with Respondent in March
1981 and had filed a charge with the National Labor Re-
lations Board alleging discrimination The charge had
been dismissed
Kilpatrick, who had been called by the General Coun-
sel in regard to other allegations of the complaint, was
recalled to testify by the Respondent. He testified with
respect to the meeting involving Lance, that he had
hired Lance in October 1981, and that Lance had
worked for the Company two to three times previously.
Kilpatrick testified that Lance's application had been
submitted several months earlier, but he would have
interviewed and talked to Lance approximately a week
before he came to work, and at that point in time in Oc-
tober 1981 negotiation meetings were ongoing, and Kil-
patrick was aware that the Union had the right to
engage in a strike. He pointed out this possibility to all
interviewees and is certain he mentioned this to Lance in
his conversation with him. He also told Lance that the
Respondent would operate the plant in the event of a
strike He did not recall having told Lance anything fur-
ther with regard to running the plant in times of a strike.
He specifically denied having asked Lance if he would
cross a picket line He does not think he ever asked em-
ployees if they would cross a picket line, but he could
have pointed out to employees that they might come to
work in the morning and find a picket line
, 2 The complaint alleges, the answer admits, and I find that at all times
material herein Plant Manager Larry Walker, Industrial Relations Manag-
er of the Southern Plants Max Poore, and Industrial Relations Manager
of the Rosman Plant Chester Kilpatrick were agents of Respondent,
acting on its behalf, and supervisors within the meaning of Sec 2(11) of
the Act
AMERICAN THREAD CO 1115
Analysis
I credit Lance's testimony as set out above. In review-
ing his testimony and that of Kilpatrick, I note that Kil-
patrick's testimony corroborates Lance's that a strike was
discussed with Lance. I found Lance's testimony to be
specific. I did not find him to be unreliable as contended
by the Respondent, notwithstanding the Respondent's
position that he is a disgruntled former employee who
was discharged for absenteeism in March 1982. I do not
credit Kilpatrick's testimony that he did not question
Lance concerning Lance's willingness to cross the picket
line in the event of a strike by the Union Given Kilpa-
trick's knowledge of the possibility of a strike by the
Union if ongoing contract negotiations were unsuccess-
ful, and in view of Kilpatrick's own testimony concern-
ing the general nature of his apprising Lance and other
applicants for employment in this regard, I find Lance's
version of this conversation more plausible than that of
Kilpatrick's. Accordingly, I find that by its interrogation
of Lance through its agent Kilpatrick, Respondent vio-
lated Section 8(a)(1) of the Act by inquiring of Lance
whether he would support the Union in the event of a
strike. Such questioning of a prospective applicant for
employment is inherently coercive of his rights under
Section 7 of the Act in the absence of assurances against
reprisals and lawful reasons for making the inquiries. No
such assurances or reasons were presented by the Re-
spondent in this case. Columbia Building Materials, 239
NLRB 1342 (1979); Borg-Warner Corp., 229 NLRB 1149
(1977).
B. The Alleged 8(a)(5) and (1) Violations
1. The elimination of the dues checkoff from the
labor agreement
The Union and the Respondent were parties to a col-
lective-bargaining agreement which spans a term from
July 9, 1979, to September 15, 1981. In May 1981, pursu-
ant to a wage reopener provision of the agreement, the
parties negotiated and agreed to a wage adjustment. In
August 1981, the parties commenced bargaining on a
new agreement . The bargaining was limited to noneco-
nomic issues.
R. L. Roper, a joint board manager of the Union's
Western Carolinas' Joint Board, was the chief union
spokesman at the initial bargaining session of August 13,
1981, and testified as follows At this session, Roper pre-
sented the Union's proposals, one of which was to
amend the collective-bargaining agreement (G.C. Exh. 2)
with respect to article 3 entitled "Deduction of Dues"
which contained a dues-checkoff provision which was
revocable by the employees during the term of the
agreement . The Union's proposal sought an irrevocable
checkoff clause for a specified period. The Union's pro-
posal (G.C. Exh. 4) also contained other proposals sub-
mitted by the Union at that time. At this meeting, Re-
spondent 's chief spokesman was Max Poore, then Re-
spondent's industrial relations director of its southern
plants . Respondent did not submit proposals at this meet-
ing. At the next meeting which took place on August 21,
1981, Roper was the chief spokesman for the Union and
James Hoover, Respondent's attorney, was the chief
spokesman for Respondent 3 At this meeting, Respond-
ent presented its proposals (G.C. Exh. 3). Included in
these proposals was a proposal to eliminate the checkoff
provision. Roper was handed a newsletter by Respond-
ent's representatives entitled "Employee Voice" which
had been distributed in the plant by union members, and
which contained allegations that Respondent's supervi-
sors had discriminated against union members. Respond-
ent's representative Hoover contended the newsletter
was not conducive to a good relationship between the
parties and was causing problems with its supervisors.
Hoover informed the union representatives that the
reason for the elimination of the dues checkoff was the
large number of grievances (estimated by Hoover to be
25 percent) filed by the Union which contained allega-
tions against supervisors and company officials relating
to their knowledge of who was, or was not, a union
member, and that Respondent was "sick and tired of
hearing this and they couldn't spend all their time in
grievance meetings regarding that." Roper responded
that there had been grievances regarding checkoffs of
the checkoff clause and the attempt of supervisors "to
get our people out of the Union." Neither party with-
drew any of its proposals at this meeting.
Bruce Raynor, a regional director and international
vice president of the union , testified as follows. He
served as the chief spokesman for the Union at the third
and fourth bargaining sessions which were held on Sep-
tember 8 and 9, 1981, and thereafter. Raynor testified
that at the September 8 meeting there was a good deal of
discussion of both Respondent's and the Union's propos-
als, particularly the subject of checkoff, and the Re-
spondent's representatives informed the Union's repre-
sentatives that Respondent was tired of all the allegations
of discrimination that were being made by union mem-
bers in the grievance procedure, and that there had been
more grievances filed at this plant than at two other
plants represented by the Union. Respondent's represent-
atives informed him that Respondent' s management and
supervisors felt harassed by this situation and contended
that the purpose of the elimination of the checkoff clause
was to foreclose Respondent's knowledge of whether or
not employees were members of the Union Raynor told
Respondent's representatives that the checkoff clause
was essential to the Union and presented arguments on
behalf of the Union's proposal for an irrevocable check-
off clause. At the meeting of September 9, Respondent's
representatives again alleged that the grievances and alle-
gations of discrimination filed by union members had
upset management, and reiterated Respondent's position
that the checkoff clause should be eliminated to remove
Respondent's knowledge of whether its employees were
members of the Union. At the end of the September 9
meeting, the parties agreed to extend the contract to the
next meeting date.4 At either the September 8 or Sep-
9 I find, on the basis of the undisputed evidence of his responsibilities
as chief spokesman for Respondent during the course of the negotiations,
that Hoover was at all times herein an agent of Respondent acting on its
behalf within the meaning of Sec 2(13) of the Act
The contract would otherwise have expired by its terms on Septem-
ber 15, 1981
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tember 9 meeting, Hoover presented leaflets which had
been handed out by the Union which Hoover contended
had upset management. Between the September 9 meet-
ing and the following meeting (which took place on Sep-
tember 25), Raynor and Hoover had a telephone conver-
sation concerning arrangements for another meeting
During this conversation. Raynor asked Hoover what
Respondent's position would be with respect to the
checkoff clause, and Hoover stated that he thought the
issue could be resolved if the Union was willing to move
on its proposals for an irrevocable checkoff. Raynor tes-
tified that he indicated to Hoover that the Union would
be willing to do so
Raynor testified that at the meeting of September 25,
Hoover announced that Respondent's position on the
checkoff issue was that the only way to deal with the
Union's grievances and allegations of discrimination
against union members was the elimination of the check-
off clause in order for Respondent to have no knowledge
of union membership among its employees Raynor asked
Hoover if Respondent was "philosophically opposed to
checkoff," and Hoover replied that it was not, but that
there was a specific problem with the checkoff clause.
At this meeting, Respondent agreed to extend the con-
tract excluding the checkoff provision until the next
meeting. Raynor inquired whether Respondent would
continue to arbitrate grievances, and Hoover responded
that Respondent would arbitrate existing grievances but
was not sure whether new grievances would be arbitrat-
ed. The next meeting occurred on November 19. Raynor
testified that the remaining proposals that Respondent
had not withdrawn at that meeting were the elimination
of the checkoff clause, a proposal to extend the proba-
tionary period, and a proposal for a 2-year agreement. At
this meeting, the Union withdrew its proposal for an ir-
revocable checkoff clause. Raynor commenced the meet-
ing by stating that the issue of checkoff was the issue,
precluding the agreement, that the Union would be will-
ing to withdraw other outstanding proposals, but that
checkoff (revocable) was essential to the Union. Re-
spondent's representatives reiterated their positions that
Respondent wanted the elimination of checkoff because
of allegations of discrimination made by union members.
Respondent's representatives did not change their posi-
tion on checkoff, but stated that they would suggest a 2-
year agreement without checkoff with the right of the
Union to reopen during the second year of the agree-
ment to discuss checkoff. This meeting ended with Re-
spondent's representatives stating that the contract would
no longer be extended, that as of December 1 there
would be no checkoff of union dues, but the remaining
terms of the contract would be continued. The Union's
representatives stated that in view of Respondent's posi-
tion, the Union would reevaluate its position on the
entire contract and would require additional information.
Hoover told Raynor to put the request in writing.
Chester Kilpatrick, who was recalled to testify by Re-
spondent, testified as follows. He has been the industrial
relations manager for the plant since July 1979 when the
initial labor agreement was executed with the Union.
During that time, Kilpatrick had been involved on a day-
to-day basis in employee relations at the plant. Kilpatrick
testified that there had been allegations of harassment of
union members and favoritism toward nonunion mem-
bers made by representatives of the Union, and that su-
pervisors had complained to him that grievances of em-
ployees contained allegations of discrimination by them
(the supervisors). Kilpatrick testified that he had men-
tioned this on a number of occasions to Roper, and that
Roper had told him that Respondent was discriminating
against union members. Kilpatick testified that newslet-
ters were distributed by the Union which contained alle-
gations of discrimination, that these allegations were in-
vestigated, and there was no evidence presented to show
the basis of these allegations.
Respondent also called Max Poore as a witness who
testified as follows. Poore served as the chief spokesman
for Respondent at the initial August meeting and, there-
after, Hoover served as spokesman and Poore assisted.
At the initial meeting, the Union presented their propos-
als, and he listened and told the Union the proposals
would be taken under consideration. At that meeting, the
Union's representative inquired whether Respondent had
any proposals, and Poore told them not on that occasion,
but that there might be some proposals forthcoming.
There was some limited discussion of the Union's pro-
posals.
James Hoover, Respondent's attorney, who represent-
ed Respondent at its contract negotiations in 1981, testi-
fied as follows. He was not present at the initial August
negotiations. However, he received the Union's noneco-
nomic proposals the following Monday or the Monday
prior to the August'20 meeting (the date of the second
bargaining session). Poore came to his office and they
discussed the Union's proposals, and at that time, Hoover
began to prepare a counterproposal. The Union's propos-
al contained a provision for an irrevocable dues check-
off. Respondent's proposal contained a provision to
delete the dues-checkoff provision in the existing con-
tract Respondent's proposal was initially presented at
the August 20 meeting. Hoover presented Respondent's
proposal which led into a discussion concerning check-
off, and Roper responded that there was a bad relation-
ship as supervisors were harassing union members.
Hoover told the Union's representatives that the allega-
tions regarding harassment of union members were the
reason for Respondent's proposal to eliminate dues de-
ductions because of "the continual accusation that within
a different context that we were harassing the Union
members."5 Hoover testified he also presented the leaflet
5 Respondent's proposal item 2 reads as follows
Article III, Deduction of Dues Delete this article During the past
two plus years of the existing bargaining agreement, there have been
several questions raised by the Union concerning the fact that em-
ployees have revoked Union authorizations for checkoff of Union
dues Several times the Union Committee has complained about the
fact that employees have dropped their membership in the Union
and questions have arisen as to employees' involvement in the Union
It is the policy of American Thread Company that employees should
have the right join or refrain from joining the Union, and that this is
a mater that is strictly personal to the employee For this reason,
based upon the experience of the past two plus years, the Company
proposes to delete the deduction of dues provision from the Agree-
ment In this way, the Company in no way will be involved with, or
Continued
AMERICAN THREAD CO
which had been entitled "The Employee Voice" which
had been distributed by the Union and which contained
allegations of harassment and discrimination by supervi-
sors of union members. Hoover denied that he had ever
claimed that Respondent was spending all of its time
processing grievances as opposed to running the plant.
Hoover testified that at the September 8 meeting , he pro-
vided the Union with certain engineering information
that they had requested pursuant to an unrelated matter,
that there was a great deal of discussion of dues deduc-
tion at this meeting, that there was no alternate method
of collection of dues, but Raynor talked about the
Union ' s proposal and the necessity of the Union having
the ability to collect its dues, and Respondent explained
its position . Hoover testified further that at the meeting
of either September 8 or 9, a number of Respondent's
proposals were withdrawn . Hoover denied having stated
that more grievances had been filed at the Rosman plant
than at two of Respondent 's other plants Hoover denied
having stated that the Union had filed too many griev-
ances at the Rosman plant . On the meeting of September
9, the checkoff clauses were discussed toward the end of
the meeting , and Raynor asked whether Respondent
would need an extension of the contract, and Hoover
said he would discuss withdrawing its proposal if the
Union would withdraw its proposal regarding checkoffs.
Hoover testified he did not request that the Union refrain
from filing grievances During a recess at the meeting of
September 9, Raynor stated that the parties would need
an extension of the contract , and Hoover said he would
discuss this with his clients and contact Raynor at his
office. No specific date for an additional meeting was set
at that time Hoover telephoned Raynor on September
14, and at that time , he and Raynor agreed to extend the
contract until September 25. A meeting was also set for
September 25. Hoover and Raynor also discussed the
checkoff clause during their telephone conversation, and
Raynor inquired whether the Union 's proposal for an ir-
revocable checkoff clause could be swapped in exchange
for the withdrawal of Respondent 's proposal to eliminate
the checkoff. Hoover told Raynor he did not think so
but agreed to check with members of Respondent's man-
agement concerning their position with respect to the
checkoff clause During the period between the tele-
phone conversations of September 14, and the meeting of
September 25, there were approximately three or four
telephone conversations between Hoover and Raynor.
Hoover did check with other management officials in the
Company during that period of time and informed
Raynor that Respondent was firm in its position with re-
spect to checkoff.
Hoover testified further that on September 25, during
a conversation prior to the meeting, he advised Raynor
that the Company was firm in its position concerning the
checkoff. During the meeting , the checkoff was not dis-
cussed although it was brought up as one of the items
for that matter even know , who is a member of the Union other than
the Union stewards and officers As stated , the Company has no in-
terest in knowing whether employees belong or do not belong to the
Union and in this way there can be no complaints by the Union
Committee as to employees dropping out of the Union or joining the
Union
1117
which were unresolved . There was also an inquiry by a
union official during recess whether Respondent would
continue to deduct in view of its proposal to eliminate
the checkoff clause, and Hoover said that Respondent
would do so . After this recess , Hoover told the Union's
representatives that Respondent ' s position was firm on its
proposal to eliminate checkoff . During that meeting,
Hoover informed the Union 's representatives, in response
to an inquiry from Raynor, that Respondent would con-
tinue the terms and conditions of the contract Hoover
testified , "they asked us if we would extend the contract.
We said no , but that we would continue the same terms
and conditions ." There was no date set for an additional
meeting at the September 25 meeting Hoover and
Raynor engaged in several telephone conversations fol-
lowing the September 25 meeting , and during these con-
versations , an additional meeting was set for November
19.
Hoover testified that on November 19, Respondent
withdrew some of its outstanding proposals and pro-
posed a 2-year agreement with a reopener at the end of
the year, and that Respondent would insert into the con-
tract its position with respect to checkoff, and at the end
of the year if the relationship had improved , then Re-
spondent would be agreeable in connection with the
checkoff to sit down and discuss it There was some dis-
cussion wherein Hoover informed the Union's represent-
atives that if there were some way the Union could col-
lect dues without Respondent 's involvement in it, Re-
spondent would be agreeable to that . At the November
19 meeting, the Union's representative (Raynor) stated
that if Respondent 's position were firm on checkoff, the
Union would need to reevaluate its proposals At the
meeting of November 19, Hoover informed the Union's
representatives that they were now at a point that it ap-
peared "we were at an impasse," and that Respondent
would discontinue checkoff of dues on December 1.
Hoover also told the Union that the checkoff provision
had caused morale problems.
Hoover testified the Company did not at any time
refuse to meet with the Union until February 8, 1982.
Hoover testified Respondent 's representatives did not ask
the Union to stop filing grievances . On cross-examina-
tion , Hoover testified that at the November 19 meeting,
Raynor had made a counter proposal that the parties
extend the current contract including the existing check-
off provision for a period of one year and indicated that
the Union would be willing to budge from its proposal
for an irrevocable checkoff and that other types of
checkoff were discussed Hoover had previously in-
formed the Union 's representatives that Respondent
would not arbitrate any new grievances filed after the
meeting of September 25, and repeated this at the No-
vember 19 meeting On November 19, the only proposals
of Respondent which were unresolved were the term
(duration) of the agreement and the deletion of the
checkoff provision . There were some union proposals
outstanding At that point , Raynor asked , "How about a
one year deal and we will just leave it like it is." And
Hoover asked what about the checkoff provision, and
Raynor stated that we can work this out. Hoover testi-
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled that the key unresolved issue at this time was check-
off.
Analysis
There were no substantial conflicts in testimony of the
parties with respect to the elements essential to the deter-
mination of this case. The General Counsel and counsel
for the Charging Party contend in their briefs that Re-
spondent violated Section 8(a)(5) and (1) of the Act by
its insistence on the deletion of the checkoff clause from
the labor agreement in response to its dissatisfaction with
the frequency and type of grievances filed by the em-
ployees and cite in support thereof Markle Mfg., 239
NLRB 1353 (1979) Respondent contends that it did not
violate Section 8(a)(5) of the Act by taking the position
in the 1981 negotiations that employees' concerns of har-
assment of union members and/or favoritism extended to
nonunion members by Respondent's supervisors and
members of management should be adressed by the dele-
tion of the checkoff clause from the labor agreement in
order that Respondent would no longer be able to ascer-
tain the identity of union members. Respondent contends
that it did not refuse to continue checkoff in order to
prevent the employees from exercising their rights under
Section 7 of the Act with respect to the filing of griev-
ances, but rather sought to resolve a problem by elimi-
nating its knowledge of union membership among its em-
ployees through the elimination of the checkoff clause in
the labor agreement. Respondent cites H. K Porter Co.,
397 U S 99 (1970), in support of its position that it was
not obligated to grant a clause providing for checkoff of
union dues and the following Board cases holding that
an employer is not compelled under the National Labor
Relations Act to agree to any term relating to wages,
hours, or conditions of employment: American Oil Co.,
164 NLRB 36 (1967); Cone Mills Corp., 169 NLRB 449
(1968), Blue Jeans Corp., 177 NLRB 198 (1969); and
Alkahn Silk Label Co., 193 NLRB 167 (1971). Respond-
ent contends in its brief that the facts in the instant case
are distinguishable from the Markle Mfg. Co. case cited
by the General Counsel and counsel for the Charging
Party as the Board found (in the Markle case) that the
employer had violated Section 8(a)(5) of the Act because
it refused to agree to a continuation of a checkoff provi-
sion in a labor agreement (for the stated reason that the
union was filing too many charges and grievances alleg-
ing discrimination against union members), and the em-
ployer's statements in the Markle case implied there
could be no agreement to a checkoff clause in the ab-
sence of "some kind of guarantee from the union that its
members cease filing charges and grievances." Respond-
ent contends further that the Board in its decision in the
Markle case noted that the sole reason for the employer's
refusal to grant a checkoff clause was to force union
members to cease exercising their Section 7 rights by the
filing of grievances. Respondent contends that it at no
time requested the Union or its members to stop filing
grievances, nor did it attempt to exact any guarantee
from the Union concerning future grievances, but rather
that the purpose of the deletion of the checkoff clause
was to improve the relationship between the Union and
the Company by "alleviating the Union members' feeling
of harassment."
I find the Markle Mfg. Co. case cited by the General
Counsel and counsel for the Charging Party to be con-
trolling herein . It is clear from an examination of the
record evidence in this case that the underlying purpose
and basis for Respondent 's proposal to eliminate the
dues-deduction clause of the labor agreement was the de-
terrence of the filing of grievances by the union member-
ship , which grievances alleged harassment of the union
membership . Although as counsel for Respondent con-
tends in its brief, there was no evidence the Respondent
at any time demanded that the Union's members cease
filing grievances in order for Respondent to agree to the
checkoff provision or that any direct threat in this regard
was issued to the members or to union representatives, it
is clear from the underlying facts and circumstances of
this case that the Company 's proposal to eliminate the
dues deduction was a direct respondse to the filing of
grievances by the union members . The inevitable effect
of this proposal was to coerce the union members in the
exercise of their Section 7 rights to file grievances pursu-
ant to the collective -bargaining agreement . The testimo-
ny of Roper and Raynor presented on behalf of the Gen-
eral Counsel 's position, and that of Hoover presented by
Respondent at the hearing, does not differ in any signifi-
cant manner . It is clear that under either version Re-
spondent was addressing its insistence on its proposal to
delete the checkoff provision as response to the com-
plaints and grievances raised by the Union and its griev-
ances in listing the grounds for Respondent 's proposal to
delete the checkoff clause. I credit Hoover 's testimony
that he did not specifically demand that the Union or its
members cease filing grievances as a condition of the
continuance of the existing checkoff clause. However, to
the extent that this absence of a specific demand or ex-
plicit statement of the reason (the filing of grievances)
for the withdrawal of the checkoff clause as a condition
of employment may arguably distinguish this case from
the Markle case, I find this distinction insignificant as it
is clear that the underlying purpose espoused by Re-
spondent for its insistence on the deletion of the checkoff
clause was deterrence of complaints and grievances by
the Union and its members concerning alleged harass-
ment by Respondent 's supervisors and members of man-
agement because of their union membership As stated
by the Board in Markle Mfg. Co., Respondent 's predica-
tion of "its withdrawal of an existing condition of em-
ployment on lack of participation in protected activity"
was an impediment and frustration to bargaining for no
legitimate purpose in violation of Section 8(a)(5) and (1)
of the Act. In reviewing the testimony of both Raynor
and Hoover concerning the impediment to negotiating a
labor agreement in this case , I conclude that under either
version as to the remaining issues at the November 15,
1981 meeting , the sole impediment to agreement was Re-
spondent 's proposal to eliminate the dues-checkoff
clause Although Respondent had no obligation to agree
to any terms or condition of employment , it could not
base its refusal to do so on reasons proscribed by the
Act. I, accordingly, find that no valid impasse existed,
AMERICAN THREAD CO
and that Respondent violated Section 8(a)(5) and (1) of
the Act by its course of bargaining and inisistence on the
elimination of the checkoff clause as a condition to its
agreement to a collective-bargaining agreement to stem
the filing of grievances by its employees and thus the ex-
ercise of their rights under Section 7 of the Act in viola-
tion of Section 8(a)(5) and (1) of the Act. Markle Mfg.
Co., supra.
2 The withdrawal of recognition from the Union of
February 8, 1982
On February 8, 1982, Respondent withdrew recogni-
tion of the Union by notifying the Union that it would
cease to recognize it as the collective-bargaining repre-
sentative of its employees (G.C. Exh. Tr. 159). This
action was taken following receipt by Respondent of a
letter dated February 5, 1982, addressed to Larry H.
Walker, Respondent's plant manager at its Sylvan plant
in Rosman, North Carolina, that the employees no
longer wished to be represented by the Union, and by
the presentation of signed cards by the employees stat-
ing, "I no longer wish to be represented by the Amalga-
mated Clothing and Textile Workers Union for purposes
of collective bargaining at American Thread, Rosman,
N.C, plant, where I work." These cards, which were
signed by a majority of Respondent's employees in the
bargaining unit at the Sylvan plant, were sent to Max
Poore who reviewed the signatures of the employees and
determined they were accurate. The accuracy of the sig-
natures is not in dispute in this hearing. The General
Counsel contends that inasmuch as Respondent violated
Section 8(a)(5) and (1) of the Act its insistence on the
elimination of the dues-deduction clause from the succes-
sor contract, and thus "germinated a situation in which a
petition to withdraw recognition from the Union arose,
the Union's presumption of majority status has not been
rebutted by Respondent, and cites in support thereof,
Mar-Len Cabinets, 243 NLRB 523 (1979), enfd. in part
659 F.2d 995 (9th Cir. 1981). The General Counsel
argues that the sole impediment to the agreement was
the checkoff provision as Raynor testified that other than
dues checkoff the only issues remaining at the end of the
session were proposals initiated by the Union. The
Charging Party contends that the assertion by Respond-
ent of a good-faith doubt of the majority status of the
Union was not made in a context free of unfair labor
practices, and that there must be presumption of contin-
ued majority status, citing in support thereof Terrell Ma-
chine Co., 173 NLRB 1480, 1481 (1969), enfd. 427 F.2d
1088 (4th Cir. 1970), Erlich's 814, 231 NLRB 1237, 1246
(1977); Carpenters District Council, 250 NLRB 901, 903
(1980), enfd. 661 F.2d 583 (6th Cir. 1981). Respondent
cites cases holding that a union's presumption of majority
representative status following the termination of a col-
lective-bargaining agreement may be rebutted by evi-
dence establishing that the union no longer enjoys major-
ity representative status. I find Mar-Len Cabinets is appli-
cable to this case. In the Mar-Len case, the Board reject-
ed a challenge by the employer to the union of presump-
tion of majority representative status by its implication of
1119
a good-faith doubt of such status because this defense
had been "advanced in the face of closely related unfair
labor practices arising from Respondent's failure . . to
bargain in good faith with the Union concerning con-
tractual terms for the very unit in which Respondent
avers an erosion of union support occurred." See also
Mark Twain Marine Industries, 254 NLRB 1095 (1981);
and Chicago Magnesium Castings Co., 256 NLRB 668
(1981). See also Carpenters District Council, supra and Er-
hch's 814, Inc., supra, cited by the Charging Party. I, ac-
cordingly, find that Respondent violated Section 8(a)(5)
and (1) of the Act by its withdrawal of recognition from
the Union on February 8, 1982.
3. The alleged unilateral changes
The grievance procedure
It is undisputed that following Respondent's withdraw-
al of recognition of the Union, Respondent ceased and
refused to process grievances under the terms of the col-
lective-bargaining agreement (G.C Exhs. 10, 11, 14, and
15). Roper testified that pursuant to this position taken
by Respondent, the Union ceased filing grievances but
retained them in its files in view of Respondent's position
(Tr. 41; G.C. Exh. 16). It is also undisputed that Re-
spondent instituted a new grievance procedure in July
1982 entitled "We've Got a Problem-How it Works."
(G.C. Exh. 17.) Respondent further admitted in its
answer to the complaint that it had failed to process new
grievances. At the hearing, Respondent's counsel admit-
ted on behalf of Respondent that on February 8, 1982,
Respondent ceased to process grievances and did not
accept new grievances filed on or after February 8, 1982.
(b) The modification of the insurance benefits
Respondent modified its existing life and medical insur-
ance benefits on March 1, 1982 (G.C. Exh. 18), by in-
creasing maximum benefits, and providing unlimited
maximum benefits under the medical insurance plan, and
changing the limits under the hospital insurance cover-
age, reducing the premium rates by 50 percent, allowing
for the possibility of election of a coverage for spouse
and dependents, and by the purchase of, and by increase
of, the life insurance policy from a $1000 life insurance
policy with an option to buy $2000 of life insurance to a
$2000 free insurance policy with a maximum of $5000
coverage. Chester Kilpatrick testified that this constitut-
ed an outright gift of life insurance.
(c) Changes in vacation benefits
On April 2, 1982, Respondent posted a notice to its
employees which informed them of modifications in va-
cation pay requirements and set forth changes and modi-
fications of vacation pay, increasing vacation pay to cer-
tain employees in designated seniority groups (G.C. Exh.
2, art. 16) Respondent also admitted the complaint alle-
gations that it instituted changes in vacation pay without
notifying or bargaining with the Union about these
changes
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis of the Unilateral Changes
I find that Respondent violated Section 8(a)(5) and (1)
of the Act by its failure to process grievances, its institu-
tion of a new grievance procedure, the changes instituted
in existing medical and life insurance benefits, and in the
existing vacation benefits As I have found above the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
its insistence on the elimination of the checkoff provision
for reasons proscribed by the Act, and by its withdrawal
of recognition from the Union, Respondent had a con-
tinuing obligation to bargain with the Union concerning
the terms and conditions of employment of its employees
in the bargaining unit . NLRB v. Katz, 369 U.S. 736
(1962); see also Colson Equipment, 257 NLRB 78 (1981),
enfd. in part 673 F 2d 221 (8th Cir. 1982); Pace Oldsmo-
bile, 256 NLRB 1001 (1981); and Precision Anodizing &
Plating, 244 NLRB 846 (1979).
CONCLUSIONS OF LAW
1. Respondent American Thread Company is an em-
ployer engaged in commerce within the meaning of Sec-
tioii 2(6) and (7) of the Act.
2. Amalgamated Clothing & Textile Workers Union,
AFL-CIO, CLC is a labor organization withing the
meaning of Section 2(5) of the Act.
3. By its interrogation of employee Carrol Lance con-
cerning his union sympathies by Respondent' s agent and
supervisor, Chester Kilpatrick, Respondent violated Sec-
tion 8(a)(1) of the Act
4. By its insistence on its contract proposal for the
elimination of dues deduction, Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
5. By its withdrawal of recognition from the Union on
February 8, 1982, Respondent violated Section 8(a)(5)
and (1) of the Act
6. By its refusal to process grievances under the col-
lective-bargaining agreement, and by its institution of a
new grievance procedure, and by its modifications of the
existing life and medical insurance benefits, and by its
modifications in vacation benefits without bargaining
with the Union, Respondent violated Section 8(a)(5) and
(1) of the Act
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
violations of Section 8(a)(1) and (5) of the ACt, it will be
recommended that Respondent cease and desist there-
from and take certain affirmative actions designed to ef-
fectuate the purposes and policies of the Act, and post
the appropriate notice The Board does not require that
employees suffer loss of increases in benefits under cir-
cumstances such as have occurred in this case with re-
spect to the life and medical insurance policies and the
vacation benefits in order to effectuate the purposes of
the Act. Kendall College, 228 NLRB 1083 (1977); Dura-
Bent Corp, 257 NLRB 430 (1981); and Pace Oldsmobile,
supra, and I, accordingly, do not recommend that the in-
creases in life and medical insurance benefits, and the in-
creases in vacation benefits, or any other increases in
wages or benefits, be rescinded I do, however, recom-
mend that all other terms and conditions of the collec-
tive-bargaining agreement which expired on September
15, 1981, be reinstated to the status quo ante until Re-
spondent fulfills its obligation by bargaining, on request,
with the Union as the collective-bargaining representa-
tive of its employees in the appropriate unit, and either
reaches, or executes, a written agreement with the Union
or until a valid impasse occurs. I further recommend that
Respondent make whole the Union for an,, loss of dues
that may have been incurred by it by reason of Respond-
ent's elimination of the checkoff clause.6
[Recommended Order omitted from publication]
6 Interest shall be applied in accordance with the manner prescribed in
Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing
Co, 138 NLRB 716 (1962)