Barney Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1975

219 N.L.R.B. 41 (N.L.R.B. 1975)

BARNEY MANUFACTURING, INC. 41
Barney Manufacturing, Inc. and International Ladies'
Garment Workers' Union, AFL-CIO. Case 10-
CA-10943
Upon the entire record in this case, and from my obser-
vation of the witnesses, I hereby make the following:
July 9, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On March 28, 1975, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs, and Respondent filed exceptions combined
with a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Barney Manufacturing, Inc.,
Waycross, Georgia, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on October 1, 1974, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 10 (Atlanta, Georgia) issued a complaint on
November 12, 1974, against Barney Manufacturing, Inc.,
herein called the Respondent or the Company, alleging
that it had engaged in certain unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the National La-
bor Relations Act, as amended, herein called the Act. The
Respondent filed an answer denying the allegations of un-
lawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held in Waycross,
Georgia, on December 5 and 6, 1974. Briefs were received
from the General Counsel, the Charging Party, and the
Respondent on January 20, 1975, and they have been care-
fully considered.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Georgia corporation with its princi-
pal office and place of business located at Waycross, Geor-
gia, where it is engaged in the sewing and sale of garments.
During the year preceding the hearing herein, Respondent
sold and shipped finished products valued in excess of
$50,000 to points and places located outside the State of
Georgia.
The Respondent concedes, and I find, that it is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, AFL-
CIO, herein called the Union, is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
This is a so-called surface bargaining case, the complaint
alleging that Respondent failed and refused to bargain in
good faith in violation of Section 8(a)(5) and (1) of the Act.
The complaint further alleges that Respondent indepen-
dently violated Section 8(a)(5) of the Act by failing to fur-
nish the Union, pursuant to request, information and data
concerning Respondent's piece rate system for the employ-
ees in the unit.
B. The Facts
On September 25, 1973, the Union was certified by the
Board as the collective-bargaining agent for Respondent's
production and maintenance employees. There were- ap-
proximately 25 employees in the said appropriate unit at all
times material hereto. The bargaining meetings between
the Union and the Respondent which followed the certifi-
cation were as follows:
1. December 11, 1973
The union negotiator for the first two meetings was Har-
ry Berger, assistant director for the Southeast. Also present
for the Union at these and subsequent meetings was Pau-
line Bennett , an organizer. Respondent's negotiator at all
the meetings was E. Kontz Bennett, Sr., its counsel. Re-
spondent Assistant Plant Manager Daniel Washington
was, with one exception, also present for all the meetings.
The first meeting was held on December 11, at which
time Berger presented a printed form of the Union 's stan-
dard Southeast agreement. At the same time he orally sub-
mitted a complete economic package, including, inter alia,
219 NLRB No. 11
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a wage proposal which would increase piece rate mini-
mums to $2.65 per hour from $1.85 per hour, the rates set
to yield an average of 15 percent above the contract mini-
mum; he also proposed that the Company contribute 5
percent of the gross weekly payroll to the Union's retire-
ment fund, and 2 percent of an employee's gross weekly
earnings into the Union's health and welfare fund.
2. February 6, March 12, and April 4
During the first of these two meetings Respondent sub-
mitted a series of 19 written counterproposals. Early agree-
ment was reached concerning the preamble, the unit de-
scription, and procedure relative to the discharge and
discipline of employees.
According to the unrefuted testimony of Pauline Ben-
nett,' Berger on several occasions asked if the Company
ever had an engineer to compute the piece rates. Upon
being apprised in the negative, Berger asked if the Compa-
ny would be willing to permit a union engineer to come
into the plant to make a piece rate study. It is undisputed
that this request was refused by Company Negotiator Ben-
nett. Pauline Bennett further testified without contradic-
tion that in these early meetings E. Kontz Bennett took the
position that it would be impractical to discuss economics
until all noneconomic items were resolved. However, the
record reflects that company counterproposal No. 18,
which was on the table on and after the March 19 meeting,
proposed that the existing minimum rates of $1.85 per hour
with piece rates set to produce not less than $1.85 per hour
be retained. This proposal included the proposition that
this rate would be changed to conform with any increase in
the Federal minimum wage rate.
At a meeting held on April 4, 1974, Milford Allen, an
organizer, substituted for Berger. From the record it ap-
pears that this meeting was brief and that little transpired.
Allen testified that at this meeting the Company withdrew
its counterproposal that there be 4-1/2 holidays with pay.
However, I do not accept this testimony, for counterpropo-
sal No. 9, which is the holiday proposal and which was
stipulated in evidence (G.C. Exh. 5a), bears the notation
that at this meeting it was "passed for further consider-
ation," and a further notation to the effect that it was dis-
cussed and "not agreed to" at a subsequent meeting held
on September 12, 1974.
3. June 27, 1974
Preliminarily, it is noted that on May 13, 1974, the
Union was certified as bargaining agent for the production
and maintenance employees of the Swain Manufacturing
Company, a closely related company to Respondent which
is also located in Waycross, Georgia. Thus, garments are
cut at Swain and are brought to Barney for the sewing
operation. Management and ownership of both companies
appear to be substantially alike. In any event, E. Kontz
Bennett was also the chief negotiator for Swain; and fol-
lowing the Swain certification, James Goldberg, the
Pauline Bennett testified on behalf of the Union concerning the first
three meetings . Berger did not appear as a witness.
Union's regional counsel who undertook negotiations on
behalf of Swain , replaced Berger and Allen as union nego-
tiator for Barney. Thereafter, various meetings between
Bennett and Goldberg were designated as either "Swain"
or "Barney" meetings, this notwithstanding that the sub-
stantive proposals and counterproposals appear to have
been substantially the same .2
A meeting held on June 27 was designated as a Barney
meeting . After reviewing previous negotiations, Goldberg
stated that he wished to talk about the economic issues,
which he said he regarded as most important. Bennett re-
plied that he was there to discuss the "ground rules" and
proposed that each proposal be initialed by the parties to
signify "tentative" agreement , but that anything thus ini-
tialed would be subject to being withdrawn prior to reach-
ing full agreement . Goldberg testified that he agreed to the
initialing process but that he objected to the proposal that
any agreed upon provision be subject to later withdrawal.;
At this meeting Goldberg also stated that dues checkoff
was a key noneconomic item. Bennett indicated that he
was opposed to a checkoff provision "in principle" and
also to the expense involved. As to the initialing process,
the record reflects that at this and subsequent meeting the
parties largely negotiated from Respondent's written coun-
terproposals. These documents, which are in evidence, bear
handwritten modification and initials of the parties where
agreement was reached.
August 7, 1974
A "Swain" meeting was held on August 6. With some
overlapping of discussion, a meeting designated as a "Bar-
ney" meeting was held on the following day, August 7.
Goldberg first sought to bargain on the question of wages.
According to the unrefuted testimony of Goldberg, Ben-
nett at this point stated that he did not have authority to
agree to a final wage schedule, that he would have to con-
sult with Respondent's president, Irwin Cohen, who resid-
ed in New York. Goldberg testified that he thereupon "re-
quested Mr. Cohen's presence at negotiations." According
to Goldberg, Bennett replied "he would get in touch with
him and contact him to see how he feels about that." How-
ever, somewhat inconsistent with his request that Cohen be
present, Goldberg then testified that he protested this "ve-
hemently," and that he told Bennett that "I was here to
negotiate and I expected that he [Bennett] was here to ne-
gotiate and I expected he would have authority to negoti-
ate on wages." At or about this point, according to Gold-
berg, Bennett stated that he would not claim that the
Company was doing "poorly," because if he did so this
would give the Union the right to look at his books and
records. Goldberg asked if this was the reason he had not
offered a raise or that he was "not giving anything on mon-
ey." Bennett responded that the reason he was not offering
a raise was because there was "sabotage" and "inefficiency
2 Goldberg testified that the Swain proposals were identical to those pre-
viously presented at Barney The first "Swain" meeting between the parties
was held on or about June 26, 1974.
J It does not appear, however, that Respondent reneged on any proposals
which it subsequently approved and initialed.
BARNEY MANUFACTURING, INC.
and confusion" among the employees in the plant. He did
not, however, elaborate.4
The discussion then turned to the piece rate system.
Goldberg testified that not only was he unfamiliar with the
piece rate system, but that the prices on the garments were
not posted and that the employees themselves had no way
of computing their piece rate earnings. Pointing this out to
Bennett, Goldberg specifically inquired "how the piece rate
system was set up" and whether in fact Respondent had an
engineer in the plant for the purpose of devising the piece
rate system. According to the undenied testimony of Gold-
berg, Bennett responded that he did not know the answer
to either of these questions, but that President Cohen had
probably set up the piece rate systems. After again com-
plaining that this was another reason for having Cohen
present at the bargaining sessions , Goldberg finally re-
quested "all of the data used to compute the piece rate
system . . . and to show what the system was." Bennett
responded that the data would be provided.5
Finally, after reviewing all the proposals and the coun-
terproposals, the parties at this meeting reached agreement
on provisions with respect to the trial period for newly
hired employees, machine breakdown, fair employment
practices, and equal distribution of work.
4. September 12, 1974
The September 12 meeting, of which there were morning
and afternoon sessions , began with Goldberg asking for the
piece rate data requested at the previous meeting, which
data Bennett indicated he would provide. Bennett re-
sponded by handing Goldberg company payroll sheets for
the weeks of May 10, June 7, and July 12, 1974. These
payrolls, however, gave no indication whatsoever concern-
ing the method or basis on which the piece rates were com-
puted. Some explanation is here in order. Thus, notwith-
standing that all employees worked and are paid on a piece
work basis, Respondent nevertheless was required to pay
the employees at least the established Federal minimum
wage rate. In this regard the record reflects that
Respondent's piece rates were such that, with but rare ex-
ceptions, the employees' piece work production was such
as to not meet the minimum wage rate. Accordingly, in
order to meet this rate, Respondent was required to pay the
difference between the employees' piece rate earnings and
the minimum wage rate. This differential which the em-
ployer is required to pay is denoted in the garment industry
as "makeup." Returning to the wage sheets provided by
Bennett, these only reflected the "makeup" amount for the
employees listed thereon which was added by the Compa-
ny to bring the employees' wage rate up to the hourly mini-
mum. From this there was no possible way that the
Respondent's piece rate system could be determined from
Unrefuted testimony of Goldberg.
5 Goldberg was a poor witness. Although he was permitted to utilize his
notes made at the bargaining sessions while testifying, his testimony was
unorganized and ill prepared . Much of it was rambling, he tended to skip
back and forth, and fragments of his testimony concerning various individu-
al meetings appear at widely scattered points throughout the record of his
testimony. However, in summarizing his testimony concerning the various
meetings as best as I can, I do note that, unless otherwise indicated , the facts
concerning which he testified as set forth herein are unrefuted.
43
the payroll sheets thus submitted by Bennett.
Upon examination of the payroll sheets noted above,
Goldberg told Bennett that these did not provide the rele-
vant piece rate data which he had previously requested.
Additionally he pointed out that on May 1, 1974, the mini-
mum wage rate had been increased by law, but that since
the sheets submitted by him (Bennett) covered only periods
subsequent to May, these did not reflect the "makeup"
amounts paid by the Company prior to the said May in-
crease. Goldberg thereupon wrote down on a sheet of pa-
per the information and data which the Union considered
necessary for bargaining purposes and presented it to Ben-
nett with the request that it be provided. This information
consisted of (1) the piece rates paid prior to May 3 and
after May 3 on the same operation and (2) data to reflect
that the piece rate system was designed to yield 15 percent
above the minimum wage, including piece rate earnings of
the operators. Concerning Bennett's response to this re-
quest, Goldberg's testimony was confusing. Initially he tes-
tified, "I think he made the response that this was going to
take a lot of time and money and that he wasn't going to
do it." However, later he testified, "He only said that he
wasn't planning on giving it because it might be too expen-
sive. I said it was mandatory that he provide it. And he
didn't give me any other answer. But he left me with the
impression that he was going to provide it even though it
was expensive." In any event, after giving this testimony
Goldberg stated that he [Goldberg] then proposed that "we
have a union engineer go into the plant so we could find
out all this information, it would save us all the time with
gathering up the data. He [the engineer] would determine
what the piece rate system then was ..." According to the
undenied testimony of Goldberg, Bennett responded that
under no circumstances would he allow a union engineer
to go into the plant.
Goldberg next inquired if Bennett had discussed the
Union's overtime proposal with Cohen and if he was pre-
pared to submit a company proposal concerning overtime
at this time. Bennett replied that he did not have the over-
time proposal, but that one would be provided as part of
the final wage offer, which would be "left to the end." With
further respect to Cohen, Bennett stated during the morn-
ing session of this meeting that Cohen had apprized him
that he did not care to be present.
The remainder of the morning session was devoted to
again reviewing, one by one, all of the union proposals and
the company counterproposals.
It is undisputed that, following the noon recess, the
Union engaged in a decided change in strategy. This con-
sisted of Goldberg's announcing at the beginning of the
afternoon session that, with the exceptions to be noted, he
was withdrawing the outstanding union noneconomic pro-
posals and that he would agree to the Respondent's out-
standing counterproposals on all these subjects. The excep-
tions were the Union's proposals pertaining to checkoff,
union representative access to the plant, duration of con-
tract, and health and welfare. The company counterpropo-
sals which Goldberg agreed to accept at this time were
provisions pertaining to a no-strike clause, management-
rights clause, assignment of work, grievance procedure,
compliance with existing laws, leaves of absence, equal
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
division of work, bulletin board for use of union, and a
seniority clause.
Upon agreement with respect to the foregoing , there fol-
lowed a discussion of the Union's proposals concerning
checkoff, and access to the plant, but no agreement was
reached. At this point, Bennett introduced an additional
Company proposal, namely, that a four page list of Com-
pany Rules (largely pertaining to various type of possible
employee misconduct and the appropriate penalty there-
for) be incorporated into the collective -bargaining agree-
ment. Goldberg testified that although he "objected vehe-
mently to this tactic" the union committee took a recess to
go over the rules , following which, after obtaining some
modification to the rules, he agreed to their inclusion in the
contract.
The discussion then continued with Goldberg stating
that he now wanted to negotiate the economic issues, par-
ticularly those pertaining to wages and overtime. Accord-
ing to the uncontroverted testimony of Goldberg, Bennett
replied that he was not prepared to do so at this time, that
in any event he would have to discuss these matters with
Cohen because he "had no authority to enter a final wage
package." Goldberg finally asked if Cohen would be pre-
sent for the next session . Bennett responded that he would
discuss it with him, but that he could not give a yes or no
answer to the question.
Since Goldberg wished to observe religious holidays, the
parties agreed to adjourn at this point until September 27.
In the meantime , however, Goldberg sent Bennett a letter
dated September 13, 1974, in which he again requested,
inter alia, that the wage and piece rate data which he previ-
ously requested be submitted to him prior to the September
27 meeting. No response was made to this letter by Ben-
nett.
5. September 27-The final session
The final meeting between the parties was held on Sep-
tember 27 , 1974. Although a Federal mediator was present,
he does not appear to have participated in the negotiations.
The meeting began with Bennett handing Goldberg the
Respondent 's economic counterproposals, the salient fea-
tures of which were comprised of the following : Wages: $2
per hour, which was the minimum wage rate then being
paid by Respondent 7 ; Vacations: 4-1/2 days of paid vaca-
tion ; Checkoff.• this counterproposal , although providing
for dues deduction , further provided that ( 1) "an employee
will have the right at any time to revoke the authorization
in writing" and (2) "the company will be entitled to deduct
10 percent of the amount collected as a service charge for
6 Although the Union agreed to accept Respondent's counterproposal on
the grievance procedure, Goldberg testified without contradiction that at
this meeting Bennett insisted upon a modification of this proposal to the
extent that any decision by an arbitrator be final and binding, except in
amounts exceeding $2,500 Although Goldberg at first objected to this addi-
tion to Respondent 's pending counterproposal , he finally agreed to it
7 This rate was applicable to operators , which classification was held by
substantially all of Respondent 's employees . This rate was also made appli-
cable to pressers , finishers , inspectors , bundlers, and trimmers An excep-
tion was the rate of $2.10 proposed for "floor help," although the record
does not reflect that any employees so classified were then employed by the
Company.
the expense of bookkeeping, remittance and other expenses
connected with such deduction"; Union access to plant:
provided that a union representative, upon first giving the
Company 8 hours' notice, would be permitted two visits
per month, with additional visits to be arranged by mutual
consent. Vacation pay-set forth in detail the vacation pay
an employee would receive based on length of service; Ov-
ertime-provided for overtime pay if overtime work ex-
ceeded 40 hours during a normal workweek.
Returning to the meeting, it is undisputed that at the
outset of the meeting Bennett also gave Goldberg checks
for vacation pay due six employees at Swain; he did not,
however, provide Goldberg with any further data concern-
ing Respondent's piece rate system as Goldberg had re-
quested at the previous meeting and in his followup letter.
After a brief discussion wherein Goldberg protested the
counterproposals , a recess was taken . During the recess,
which took about 45 minutes, Goldberg and the union ne-
gotiating committee discussed and reviewed the package
offered by the Respondent. There is some dispute concern-
ing what took place after the recess . Bennett testified that
the following occurred in the after-recess discussion:
[Goldberg said] Is this the only package you have to
make? And I said yes, this is our package offer. And I
may have said this is our final offer. I think I have
may have used words to that effect. And Mr. Gold-
berg became very angry. His eyes flashed and he said
we have nothing more to talk about. And there was a
silence of a few minutes and then Mr. Washington got
up and left and I believe Mr. Goldberg and the em-
ployees stayed there and talked then some more
among themselves.
Goldberg testified that a more thorough discussion was
held after the recess. Thus, he testified that when he at this
time protested the offer of only the minimum wage, Ben-
nett responded that "Mr. Cohen said the people would be
lucky to get $2 an hour next year." I credit Goldberg's
testimony on this point .8 He further testified that when he
asked if any raise at all would be offered, Bennett replied,
"That is right, I'm not offering any raise at all." Goldberg
further testified that during the final minutes he indicated
to Bennett that the Union would be willing to lessen its
wage demands, and that he asked Bennett if he would con-
sider any compromise on its wage offer. According to
Goldberg, Bennett replied that he would not. Bennett de-
nied that Goldberg asked for a compromise on the issue,
denying that he in fact ever used the word "compromise."
Bennett did not challenge much of Goldberg's testimony,
but on this point he appeared quite certain. I credit his
testimony concerning it. I also credit Bennett to the extent
that it was the Union representatives, not those of the
Company's, who broke off the discussion at this meeting.
C. Conclusions
It is well settled that an employer is bound to furnish, on
request, the employees' bargaining agent with information
relevant and necessary to the intelligent discharge of its
8 Bennett conceded that he could not recall all that was said on this
occasion He did not deny this specific remark.
BARNEY MANUFACTURING, INC.
function as the employees ' exclusive bargaining representa-
tive. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-
436 (1967). N.L.R.B. v. Waycross Sportswear, Inc., 403 F.2d
832 (C.A. 5, 1968), enfg. 166 NLRB 108 (1967). Inasmuch
as the Respondent at all times material hereto maintained
a piece rate system under which the employees were paid,
there can be no question that information concerning it
was relevant and necessary and that such data was needed
by the Union to intelligently bargain toward the making of
a collective-bargaining agreement. As reflected in the fore-
going recital of facts, from the outset of the negotiation,
and continuing through the last meeting, the Union sought
unsuccessfully to obtain this data. In fact, and as has been
noted, the Union in effect gave Respondent three choices
as to the means whereby the information could be provid-
ed. Thus, it first sought to obtain any company records
which would reflect the piece rate formula which was then
being utilized. When Respondent gave notice that no such
records existed but that the piece rates were personally and
mentally determined by Company President Cohen and
conveyed to the plant by him over the telephone on an ad
hoc basis, the Union sought either to have Cohen appear at
a negotiating session in person to explain the piece rate
system, or, alternatively, that a union engineer be permit-
ted to make an in-plant study of the piece rates. As hereto-
fore related, both of these requests were refused.
In looking to Respondent's brief to find a defense with
respect to the allegation that it unlawfully refused to pro-
vide the Union with the piece rate data which it requested,
I find only the following statement:
It is the position of Barney that there were no specific
written schedule of piece rates that could be supplied,
as the record shows that piece rates at Barney were
personally fixed by Mr. Irwin Cohen, who lived in
New York, by telephone instructions to Barney, that
such letters were based on the minimum plus a yield
of 15% above the minimum and that Mr. Cohen in
fixing piece rates for a new style figures the rate and
also figures whether he could sell the dress involved
for enough to come out at the rate he had figured, and
that if he had not figured such a rate and would be
changed.
While I am somewhat at loss to comprehend the above
as a statement of legal position , it appears that Respondent
is contending that it did not violate Section 8(a)(5) of the
Act by refusing to furnish the requested information be-
cause no such data was reduced to writing . However,
granting that no such data existed in written form, this
does not answer the question as to Respondent 's refusing
to provide this information by either of the alternative
means which the Union suggested, viz., by having Cohen
appear to personally explain the company piece rate sys-
tem, or to allow a union engineer to make a piece rate
study at the plant. Upon the entire record, I find that by
failing and refusing to grant either of these requests, which
thereby would have enabled the Union to obtain the piece
rate information which it sought and to which it was enti-
tled, Respondent violated Section 8(a)(5) of the Act, and
derivatively, Section 8(a)(1) thereof.
I turn now to the allegation that Respondent refused to
45
bargain in good faith; i.e., that it engaged in surface bar-
gaining with no intention of reaching agreement.
The bargaining obligation which Section 8(d) of the Act
imposes mutually on employers and employee representa-
tives is that they "meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms
and conditions of employment, or the negotiation of an
agreement . . ." Although this section further provides
that the obligation to bargain "does not impel either party
to agree to a proposal or the making of a concession, it is
well established that this does not excuse any party from
the requirement therein to bargain in good faith. Good
faith or want of it is essentially a state of mind . . . and
this is an issue of fact which can only be inferred from the
totality of the parties' conduct." The issue, obviously, is not
one of easy resolution.
The record in this case, as confused as it in many re-
spects is, leaves little doubt but that the Union's chief ob-
jection to the negotiations concerned the Company's offer
on wages, particularly its failure to offer more than the
minimum wage rates which were then prevailing at the
plant. Was Respondent required to offer more? I think ap-
plicable here is the statement of the Administrative Law
Judge in Hamburg Shirt Corporation, 175 NLRB 284, 292
(1968), which was adopted by the Board, as follows:
The Board has made it clear that [Administrative
Law Judges] are not to speculate as to concession's and
counteroffers which they think could or should halve
[been] made, since to do so would be contrary to the
Supreme Court's admonition that "the Board may not,
either directly or indirectly, compel concessions or
otherwise sit in judgment upon the substantive terms
of collective-bargaining agreements." 9
9S,skm Steel and Supply Co, 160 NLRB 1038 at 1040 quoting from
NLRB v. American National Insurance, 343 U .S. 395, 404
Indeed, Hamburg Shirt Corporation, supra, presents a
case so factually similar to the one at bar that I deem it to
be controlling here. In that case, as here, the employer was
found to have violated Section 8(a)(5) of the Act by failing
to furnish relevant piece rate data in that it refused to per-
mit the union to make time studies of the piece rate system
at the employer's plant. However, in that case, as here, the
employer's wage offer also included only the Federal mini-
mum wage rate which was the rate then prevailing at the
employer's plant. In holding that the company's offer was
not demonstrative of bad-faith bargaining, the Board stat-
ed, ". . . the Company's offers on economic matters were
not so predictably unacceptable as on its face to demon-
strate its bad faith, nor were its positions on arbitrability,
layoff and recall so demonstrably devoid of reasonableness
or merit as to indicate an unalterable opposition to enter-
ing into a bargaining agreement." Returning to the instant
case, the facts heretofore set forth reflect that the parties
had agreed upon practically all contractual provisions re-
lating to terms and conditions of employment other than
those pertaining to wages. But for the failure to agree on
wages, I am convinced that the parties would have reached
an agreement on an entire collective-bargaining contract.
However, for the reasons more fully explicated in Hamburg
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shirt Corporation, supra, I find no basis for finding that
Respondent violated Section 8(a)(5) of the Act by refusing
to grant improvement beyond the existing wage scale at the
plant.
I recognize , of course , that it is the contention of the
General Counsel and the Charging Party that it was not
Respondent's position on economic matters alone that was
indicative of bad-faith bargaining, but that it allegedly en-
gaged in an entire course of conduct that were indicative of
no sincere attempt to arrive at a collective -bargaining
agreement . Upon the entire record, and while it is no doubt
true that the Respondent engaged in "hard bargaining," I
find that the foregoing position of the General Counsel and
the Union has not been established by a preponderance of
the evidence. As heretofore noted, the Respondent not
only offered counterproposals with respect to an entire col-
lective-bargaining agreement , but agreement was reached
with respect to such substantive matters as grievance pro-
cedure (including steps through arbitration), discharge and
discipline of employers , seniority rights , assignment of
work, union use of company bulletin board, leaves of ab-
sence , and others . To be sure, not all of Respondent's pro-
posals were to the Union's liking. For example, the Union
felt that Respondent's proposal to allow an outside union
representative to visit the plant on two occasions per
month for the purpose of disposing of business by the
Union with the employees and the employer was too re-
strictive? On the other hand, although Respondent origi-
nally took the position that it was opposed to the inclusion
of any type of union-dues checkoff clause , at the last meet-
ing Respondent did change its position and offered the
Union a checkoff clause , albeit with the proviso that the
employees would have the right to revoke their authoriza-
tion in writing and that the Company would be entitled to
deduct 10 percent of the amount collected toward book-
keeping expense.
Relying on Waycross Sportswear, Inc., supra, the General
Counsel argues that Respondent 's insistence in disposing
on noneconomic matters before negotiating on economic
issues was an indicia of bad faith. However, this was only
one item among many others (including a background of
interference , restraint, and coercion , not present in the in-
stant case) which led the Board to find a refusal to bargain
in good faith in the Waycross case. Furthermore, Respon-
dent initial 19 counterproposals which were submitted to
the Union during the February 6 and March 12 meetings
included a wage proposal, thereby giving the union notice
of its position with respect to the most important economic
issue. 10 In this connection it is also noteworthy that, al-
though the meetings during the period of December 11,
1973, to September 12, 1974, were devoted to discussions
of noneconomic items, during this period the Union
changed negotiators three different times, with Goldberg
9 However, this proposal further stated that "additional units may be ar-
ranged at any time by mutual consent of the Union and the employer."
'"This was company counterproposal 18, wherein it proposed to pay "the
present scale of wages , with a minimum of $2 .00 per hour" and that piece
rates would be fixed "to produce not less than the minimum rate of $2.00
per hour ." Respondent 's wage offer at the last meeting held on September
27 (proposal 25) was substantially the same except that it spelled out the
wage rates for the various job classifications.
finally taking over for the first time at the June 27 meeting.
It is entirely possible, therefore, that the negotiations on all
items would have progressed more rapidly had one negoti-
ator persisted throughout.
Finally, there is the undeniable fact that it was the
Union, not the Respondent, who broke off negotiations at
the last meeting held on September 27. While I do not
regard this to be a decisive point in this case, it will be
recalled that this was the first time the Company presented
the Union its entire "package" proposal respecting eco-
nomic items . Although Bennett stated this to be the
Company's final offer, it may well be too early to conclude
that a reasonable period of continued bargaining between
the parties could not have resulted in further economic
concessions to the Union.
In sum, and for all the reasons aforesaid, I recommend
that the allegations in the complaint as to surface bargain-
ing have not been sustained and that to this extent the
complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
As an effective remedy for the violations herein found, I
shall recommend that the Respondent, upon request, per-
mit the Union under reasonable terms and conditions to
perform its own timestudies on piece rate jobs in the bar-
gaining unit. As a further effective remedy for restoring the
parties to their proper status, I shall also recommend that
the Company be required to resume negotiations for a bar-
gaining agreement , on the Union's request, either during,
or after the Union has completed its in-plant studies of
piece rate operations."
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees of the
Company at its Waycross, Georgia, operation, excluding
office clerical employees, professional employees, guards,
and supervisors as defined in the Act, constitute a unit
11 This remedy has been approved by the Board in Hamburg Shirt Corpo-
ration, supra
BARNEY MANUFACTURING, INC. 47
appropriate for the purposes of collective bargaining with-
in the meaning of Section 9(b) of the Act.
4. International Ladies' Garment Workers' Union,
AFL-CIO, has been since September 25, 1973, and is, the
exclusive representative of all the employees in the above-
described unit within the meaning of Section 9(a) of the
Act.
5. The Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to furnish the Union with information
concerning its piece rate system and by refusing permission
to the Union to make its own timestudies at the Waycross
plant.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent has not violated the Act in any other
respect.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record in this case and
pursuant to Section 10(c) of the Act, I hereby make the
following:
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Decision what
steps Respondent has taken to comply herewith.
12 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
13 As previously noted , the Respondent refused the Union 's request to
have the company president appear at a meeting and explain to it the opera-
tion of the piece rate system. As an alternative remedy, I shall recommend
that the Company willing, the Union at its option , be permitted to use this
method of obtaining the relevant piece rate data.
14 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
Recommended Order 12
Barney Manufacturing , Inc., its officers , agents, succes-
sors and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain with International Ladies' Gar-
ment Workers' Union, AFL-CIO, as the exclusive bargain-
ing representative of the production and maintenance unit
at its plant in Waycross, Georgia, by refusing to furnish it
information concerning its piece rate system and by refus-
ing to permit the Union to perform independent time-
studies through its own experts, on piece-rated jobs.
(b) In any like or related manner, interfering with, re-
straining , or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, permit the Union under reasonable
terms and conditions to perform its own timestudies on
piece rate jobs in the bargaining unit.13
(b) Upon request, resume negotiations for a bargaining
agreement either during or after the Union has completed
its time studies on piece rate jobs in the bargaining unit.
(c) Post at its plant in Waycross, Georgia, copies of the
attached notice marked "Appendix." 14 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 10, after being duly signed by Respondent's author-
ized representative, shall be posted by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with International Ladies'
Garment Workers' Union, AFL-CIO, as the represen-
tative of the production and maintenance employees
at our Waycross plant by refusing to furnish the
Union with data concerning our piece rate system or
by refusing to permit the Union to perform indepen-
dent time studies through its own experts on piece-
rated jobs. We will, upon request, permit the Union to
conduct its own time studies.
WE WILL, on the Union's request, resume negotia-
tions for a collective-bargaining contract either while
the Union is conducting, or after it has completed, its
time studies of piece rate jobs in the bargaining unit.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce employees in the exercise of
their rights to self-organization, to form labor organi-
zations, to join or assist any labor organization, to bar-
gain collectively through representatives of their own
choosing, to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or
protection; or to refrain from engaging in any or all
such activities.
BARNEY MANUFACTURING, INC.