Blue Jeans Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 198 (N.L.R.B. 1969)

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blue Jeans Corporation and Whiteville
Manufacturing Company and Amalgamated
Clothing Workers of America , AFL-CIO. Case
11-CA-3543
June 30, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
The case was tried before me on June 4, 5, 27, and 28,
1968, at Whiteville, North Carolina. The parties were
afforded full opportunity to file briefs with me and,
subsequently, I received briefs from the General Counsel
and the Charging Party on August 22, 1968.
Upon the entire record in the case, including his
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTION
On November 6, 1968, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceedings, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent and Charging Party filed exceptions
to the Trial Examiner's Decision and briefs in
support of these exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearings and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, Blue Jeans Corporation
and Whiteville Manufacturing Company, Whiteville,
North Carolina, its officers, agents, successors, and
assigns , shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner : Subsequent to the
filing of a charge by the Amalgamated Clothing Workers
of America , AFL-CIO , on February 9, 1968 , herein the
Union, the General Counsel of the Board issued a
complaint under date of April 16, 1968 , against Blue
Jeans Corporation and Whiteville Manufacturing
Company , herein Respondent or the Company. The
substance of the complaint is the allegation that
Respondent has refused to bargain collectively with the
Union , the certified collective -bargaining representative of
the employees in the appropriate unit , in violation of
Section 8(a)(5) and (1) of the Act. Respondent in its
answer denies the aforesaid complaint allegations.
Blue Jeans Corporation is a North Carolina
corporation with a place of business in Whiteville, North
Carolina, where it is engaged in the sale of children's
outer garments at wholesale. During the past 12 months, a
representative period, Blue Jeans Corporation sold and
shipped from its place of business at Whiteville, children's
wear valued in excess of $50,000, to points directly outside
the State of North Carolina.
Whiteville Manufacturing Company is a North
Carolina corporation having a plant and place of business
in Whiteville, North Carolina, where it manufactures and
processes children ' s garments, such garments being the
property of Blue Jeans Corporation. In a representative
12-month period, Whiteville Manufacturing Company
bought and received in its manufacturing processes
materials valued in excess of $50,000, such materials
having originated from points outside the State of North
Carolina.
Whiteville Manufacturing Company and Blue Jeans
Corporation, at all times material, are affiliated businesses
with common officers, ownership, directors and operators
and constitute a single integrated business enterprise. Said
officers, directors and operators formulate and administer
a common labor policy for the aforementioned companies.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Appropriate Unit and the Union's
Representative Status
It is found that the following, as previously determined
by the Board, constitutes an appropriate unit for purposes
of collective bargaining : all production and maintenance
employees at the Respondent's Whiteville, North
Carolina , plant , including maintenance mechanics and
quality control girls , but excluding office clerical
employees, the carpenter, the time motion and engineer
trainee , guards and supervisors as defined in the Act.
The Union was certified by the Board as the exclusive
representative of the employees in the appropriate unit on
October 16, 1967. The certification followed a
secret-ballot election among the employees in the unit that
was conducted by the Board on October 6, 1967, and in
which a majority of the employees in the unit voted for
the Union.
B. The Negotiations
Representatives of the Union and the Respondent met
with each other in 10 mutually agreed upon meetings in
Whiteville on the following dates: October 18, 19, 31,
1967; November 16; December 5 and 20, 1967; January 4,
177 NLRB No. 97
BLUE JEANS CORPORATION
18, 19, 25, 1968. The principal negotiator and spokesman
for the Respondent was Regen , the executive vice
president , who was present at all the sessions. Rodenborn,
Respondent' s general manager , was also present at all
meetings except the morning session of the January 25
meeting. Shay , the plant manager was present at three
meetings , January 4 and 18, and the morning session on
January 25 . McGill, an International representative of the
Union in the geographical area where Respondent' s plant
was located, headed the union group at the October 18
and 19 meetings, which consisted of herself and a union
committee of employees . The latter committee was also
present at all subsequent meetings . McGill was present at
all meetings except December 20. English , vice president
of the Union in charge of the Southern area , was the
principal union spokesman on October 31, November 16,
January 4, 18, 19 and 25. Sydney , assistant southern
director for the Union , headed the union group on
December 5 and 20. Eames , an attorney for the Union,
was present at all meetings at which English was present.
The October 18 meeting was apparently initiated by the
Respondent. According to McGill and Regen, whose
testimony is in substantial agreement regarding the
October 18 and 19 meetings , the Company explained that
it found it necessary to curtail work in the plant to about
3 days a week . Economic reasons were given and the
matter was discussed . The Union raised no objection. The
Union , however, suggested that as far as practicable the
available work should be divided equally among all
employees on the job or in the section . The Company
agreed to the foregoing and confirmed this agreement by
letter of October 23. The aforementioned division of work
agreement was placed in effect by the Company and was
company policy until sometime in March 1968.
The Company adhered to the policy of equal sharing of
work until about March 7, 1968.' At approximately that
time , according to the uncontroverted testimony of three
employees , Nye, Smith , and Mincey , their supervisor,
Register , advised them individually that higher
management had informed Register that thereafter the
low producers would have to stay home and that the high
producers would work during periods of scarce work.'
This change of policy was a unilateral act and was not
discussed with the Union beforehand . The announced
change of policy was also at variance with the agreement
or understanding reached with the Union in October 1967.
After the meetings of October 18 and 19 , 1967, the
Union presented a written contract proposal to the
Company on October 31. The Company presented a
written contract proposal to the Union on December 5,
1967. Another written contract proposal was submitted by
the Company on January 4, 1968. The latter proposal was
substantially the same as the original company proposal.
The principal changes were a reduction of the trial period
for new employees from 90 to 60 days, the Union having
proposed 30 days; an elimination of the no-strike, no
lock-out provision ; and two paragraphs added to the
recognition clause, whereby union representatives desiring
to talk to employees regarding grievances or other union
representation matters could come to the company office
and ask for such employees and arrange for interviews if
'Prior to the October 1967 agreement between the Company and the
Union about the equal sharing or rotation of work among employees
during slack periods, the Company had handled slack periods by laying off
low producing employees and retaining the high producers.
'For the next few weeks there was apparently no shortage of work in the
department and thereafter a strike occurred
199
such could be held without interfering with plant work;
and a statement that employees outside the unit would not
ordinarily perform unit work , except in emergency
situations.
From October 31 , 1967, on, the parties in their
meetings went over and discussed the various provisions of
their respective proposals . The net result of all the
negotiations, as described by Regen in his testimony, was
that tentative agreement on the provisions of a contract
was extremely meager and was limited to such items as
the statement in the preamble of the Union's contract
proposal that it was the intent of the parties through the
contract to promote and improve industrial and economic
relationships between them ; the recognition clause
whereby the Union was recognized as the representative of
the employees in the unit; and the trial period for new
employees to be 60 days instead of 30 or 90 days. It is
therefore the period aforementioned , from October 31,
that will merit our principal attention.
In order to determine whether there has or has not been
a violation of Section 8(a)(5) of the Act, it is necessary to
consider the total relationship involving the two parties to
the negotiations .' Since the aforementioned section
represents "the policy of Congress ... to impose a mutual
duty upon the parties to confer in good faith with a desire
to reach agreement ,"' the determination of "good faith"
and "a desire to reach agreement" requires careful
analysis of all relevant factors . These factors are not
infrequently of a circumstantial rather than of a direct
nature because of the very nature of Section 8 (a)(5) of the
Act.'
At the request of counsel for the General Counsel at
the hearing , I have taken official notice of a Board and
Trial Examiner ' s decision involving Respondent ' s conduct
in May and June 1967 when the instant union was
engaged in organizing activity at Respondent ' s Whiteville
plant.'
In the above case, it was found that Respondent had
strongly and illegally opposed the advent of the Union in
its plant . Among the findings it was determined that
Respondent had discharged five employees because of
their union activities and the Board ordered their
reinstatement. It was found that Respondent had illegally
interrogated, surveilled , and threatened employees,
including statements by the general manager to employees
that "signing a union card was a pathway to trouble and
that he would take whatever steps or means were
necessary to keep the Union from coming in ....
In the instant case where I must appraise the "good
faith" of the parties in their collective bargaining and
determine whether they bargained "with a desire to reach
agreement ," the manifest hostility of Respondent to
having the Union in its plant, as found in the cited case, is
'A "determination of good faith or want of good faith normally can rest
only on an inference based upon more or less persuasive manifestations of
another's state of mind . The previous relations of the parties , antecedent
events explaining behavior at the bargaining table, and the course of
negotiations constitute the raw facts for reaching such a determination "
Local 833, UA W Y. N L R B., 300 F.2d 699, 706 (C A.D.C.), citing
concurring opinion in N.L R B Y. Truitt Mfg. Co., 351 U S. 149, 155.
'N.L R.B v. Insurance Agents International Union, 361 U S 477, 488.
'As stated by the Court of Appeals, Fifth Circuit, "there is a duty on
both sides, though difficult of legal enforcement, to enter into discussion
with an open and fair mind , and a sincere purpose to find a basis of`
agreement . ... N L.R B v. Herman Sausage Company, 275 F.2d 229,
231, Globe Cotton Mills v. N.L.R B., 103 F. 2d 91, 94.
`Blue Jeans Corporation and Whttevdle Manufacturing Company, 170
NLRB No 149
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a circumstance that is not to be ignored . But, by the same
token it is a circumstance that is not to be exaggerated or
to be made the determinant in the present case . After the
Union was certified in October 1967, Respondent may
have changed its feeling and thinking about having a
union in its plant and may have determined to completely
fulfill its obligation to bargain in good faith and with a
desire to reach agreement . On the other hand, the hostility
toward the Union may have been so basic that ostensible
compliance with the law may have concealed a closed
mind and an unwillingness to bargain in good faith with a
desire to reach a viable agreement. The findings and
conclusions that we are required to make in cases of this
nature are not easy and to carry out this task we must
resort to the record before us and our analysis and
appraisal of all relevant factors.
The evidence reveals that, shortly before the
commencement of negotiations, the Company , on October
23, 1967, had posted a notice to its employees in which it
referred to the fact that the Union had won the election
and thereby became the bargaining agent . The notice,
while stating that an employee could join the Union if he
wished , confined its physical underscoring to, and
repeatedly emphasized that "nobody will have to join the
Union - either now or hereafter - in order to work in
this Plant . . . But any employee who does not want to
join the Union, is equally free to stay out of the Union . .
.. Nobody who works here has to join any Union - and
nobody who works here will ever have to join a Union -
in order to hold a job in this Plant."
The message of the notice in itself is unexceptional and
Respondent was certainly within its rights in posting such
a notice. Although North Carolina is a "right to work"
state whose law has prohibited compulsory union
membership for a period of years, we can have no quarrel
with a company advising its employees that no one had to
join the Union in order to work in its plant . Our interest
in the notice is focused solely on whether it sheds any
light on Respondent ' s state of mind toward the Union on
the eve of the collective bargaining between the parties.
The crux and the repeated emphasis of the notice was that
no employee had to join or support the Union. Is the
emphasis a projection of the basic hostility of the "old"
preelection Respondent who discharged union adherents
and warned employees that it would take whatever steps
were necessary to thwart the Union; and is the
Respondent's state of mind that of one who believes that,
while the Union may have won the election, we will stress
to the employees that they neither have to join it or
support it? Was the Respondent basically unreconciled to
having a Union or a viable union in its plant? Or does the
notice reflect a state of mind in which the Union is
accepted and the Respondent has put aside any thought of
undermining the Union' s status as the choice of the
majority of the employees ; and does it reflect that
Respondent is prepared to bargain in good faith in a
genuine effort to reach agreement and establish a viable
relationship with the Union as the representative of all
employees in the unit? Or is the notice indicative of
nothing regarding Respondent' s attitude toward the
presence of a union in the plant or toward its relationship
with the union or toward its state of mind in contract
negotiations? Quite clearly none of these questions can be
answered satisfactorily or convincingly on the basis of the
October 23 notice alone . It is simply a particle in a
congeries of facts that must be evaluated in overall
context.
Coming now to the negotiations , the evidence reveals
that the parties had no particular problem over a
preamble statement in the contract whereby the intent was
expressed that the contract would promote and improve
their industrial and economic relationship . They also
agreed on the "coverage" clause describing the unit of
employees covered by the contract. The same was true of
the recognition clause whereby the Union was recognized
as the bargaining representative . The parties reached
tentative agreement on a 60-day trial period for new
employees . But that was about the extent of any
mutuality.
During the negotiations , the Union objected to article
IV which was in both company contract proposals. The
article stated that employees were free to be members of
the Union or not to be members of the Union and were
free to support or not support the Union and that neither
the Company nor the Union would discriminate against
employees because of membership or nonmembership in
the Union.
The Union's position was that the provision, about
employees being able to be members of the Union or not
to be members or to support or not support the Union,
was in the nature of an advertisement or encouragement
to employees not to join or support the Union and that it
was a hostile gesture that was unnecessary as a contract
provision if the parties were dealing in good faith. It was
further pointed out that the employees already knew what
the law was.' The Union also expressed the view during
the negotiations that the Company ' s article IV was in
conflict with the union cards that employees had signed
when they had joined the Union.'
Despite the Union' s objections to the clause, the
Company remained firm in its position that the provision
must be included in any contract. As to the Company's
reason for this position , Regen testified that he told the
Union "we wanted the statement [the provision ] to stick
[remain in the contract proposal of the Company and in
any contract agreed upon]" ... because "it is a law of the
Federal Government and the State law" that a employee
has "the right to join or not join the Union." The Union
continued to oppose the inclusion of article IV in a
contract,' referring to it as a hostile gesture by
Respondent , a sentiment no doubt stemming from
Respondent's prior effort to prevent the Union securing
bargaining status in the plant and the Union's scepticism
that Respondent had reconciled itself to having a viable
union in the plant. In the course of negotiations , however,
the Union did propose that it would withdraw its
objection to the provision if Respondent would yield on
Respondent's refusal to agree to a checkoff provision.
Respondent did not alter its position either as to its
refusal to agree to a checkoff or its insistence on the
inclusion of its article IV.
Article IV was certainly in itself a legal provision. It
cannot be said that an employer who demands such a
provision in a contract is thereby refusing to bargain in
'As previously mentioned , North Carolina is a state with a "right to
work" law. Respondent had also posted a notice in the plant on October
23 advising the employees very clearly that no one had to join or to
support the Union.
'The cards were a combination of union membership and an
authorization for dues checkoff, the latter with a defined escape period.
'The Union had not objected to the October 23 notice advising employees
of their rights but apparently believed that the incorporation of such advice
or information was not appropriate in the contract and was not consistent
with the mutual trust that was supposed to exist between the parties.
BLUE JEANS CORPORATION
good faith. But each case must turn upon its own
circumstances and facts. The Union in the instant case
had been exposed to a strong campaign by the
Respondent against having its employees joining or
supporting the Union. Respondent had made it clear that
it did not want its employees to join or support the Union
and had threatened and discharged employees in the
implementation of its position.
On October 23, after the election , Respondent, by
notice , emphasized that employees need not join or
support the Union albeit they were free to do so.
Presumably, in view of the notice and the state law,
employees were fully aware of their rights . Thereafter, the
same theme as aforementioned was incorporated in
Respondent' s article IV and was undeviatingly adhered to
by Respondent despite the fact that it becomes an
obstacle, although , in my opinion , perhaps not a major
one, to the parties reaching some common grounds and a
state of mutual trust . The parties were obliged to
negotiate in an effort to reach an agreement . They were
not obliged to make concessions but they were obliged to
give some manifestation of a desire for mutual
understanding . Respondent stated that it would not yield
on article IV because the Federal and State law provided
that employees were not obliged to join or support a
union. No one was contending to the contrary. Nor was
there any claim by Respondent that the Union had been
informing employees that because the Union had won the
election all employees must therefore join the Union.
Ordinarily, although the law contains many provisions in
addition to those regarding the rights of employees to join
or not to join a union , a contract is not regarded as a
vehicle for memoralizing what is provided by the law
itself. If there is some particular conduct, as, for instance,
statements or leaflets by the Union that all employees
must join the Union in order to work, then an effort or
insistence by an employer to incorporate in the contract a
provision that employees were free to join or not to join
the Union would be understandable . But, as indicated,
such factors are not here present . There had been , in fact,
substantial emphasis and conduct by Respondent against
employees exercising their right to join the Union. The
conduct included threats and illegal discharges . And, on
the eve of contract negotiations, Respondent, by notice,
had left no doubt in the mind of anyone that no one had
to join the Union in order to work for Respondent.
The Union' s contract proposal included a provision
preventing removal of the plant without union consent and
a prohibition on subcontracting work out of the plant
when the employees in the Whiteville plant had
insufficient work. Respondent said that it had no intention
of removing the plant but did not wish to write a plant
removal provision in the contract . The matter of
subcontracting was a topic of considerable discussion.
Respondent at first said that it would not agree to the
proposal . The Union pointed out that the Company had a
nonunion plant in Henderson or Hendersonville and that
the Union wanted to be sure that the Whiteville plant
maintained an equal share of the work. Respondent said
that it planned to share the work equally and fairly.
Respondent said that it would present a counterproposal
to the Union on the subject of subcontracting . Later,
when the Union requested the counterproposal,
Respondent said that it had changed its mind and it had
no counterproposal to present because of the difficulty of
writing such a clause. In this connection , Regen testified
that he told the Union that Respondent had "a complex
contracting operation" and had many items made outside
201
the plant and "that I couldn't even come up with the
proper wording of how to handle this thing in a contract .
On "hours of work," the Union contract proposal was
that the regular daily hours of work , the starting and
quitting time, be mutually agreed upon by the Company
and the Union; that overtime be paid for hours in excess
of 40 per week or 8 hours in any one day; that the
Company give reasonable notice of when overtime was to
be worked . Respondent did not agree that hours should be
mutually agreed upon . Respondent said that it had no
plan or intention of changing existing hours of work. The
Union then proposed that the contract provide that
existing hours would prevail and would remain the same
or that existing hours be written into the contract.
Respondent said that it did not wish to put that in writing
in the contract . On overtime , Respondent said that it
would continue to pay overtime for hours in excess of 40
per week as required by law . Respondent did not agree to
pay overtime for hours in excess of 8 in any one day.
Regen testified that there was no agreement on hours of
work and overtime . Respondent' s second contract
proposal did provide that the Company would give notice
by noon of the day on which overtime was to be worked
to the employees affected.
On January 23, 1968 the Respondent, without prior
discussion with the Union , placed a notice to employees
on the bulletin board . The notice stated that as of
February 5, the working hours for everyone would be:
7:30-4:30; lunch hour, 12-1; break periods to remain the
same, and the concluding statement , "We hope this
change is to everyone ' s advantage and your cooperation
will be appreciated."
Regen testified that the change in hours was prompted
by the fact that the plant had over 300 less employees
than previously and that it was no longer necessary to
have a 10 minute differential in the hours of the
employees . Regen states that at the January 25 meeting he
asked the Union if it had any objections and that the
Union was noncommittal , so the change was placed in
effect pursuant to the January 23 notice . There is no claim
that the matter was mentioned by the Respondent at the
January 18 or 19 meetings or at anytime prior to the
posting of the notice. Although the change was relatively
minor , the decision and announcement was a unilateral
action and the notice was promulgated as a definitive
policy to employees prior to any mention to the Union."
On the Union's proposal for equal division of work
when there was insufficient work , Respondent 's second
written proposal did embody this provision , "providing
that this does not interfere with operating efficiency." As
we have seen , a change in this policy was announced in
about March 7, 1968 , when certain employees were
informed that management would revert to the former
policy of laying off low producers and retaining only the
high producers during slack periods.
The Union proposed 2 weeks' vacation and a provision
that the vacation pay be paid to employees entitled to it
on the payday immediately before vacation. As to
holidays, the Union proposed 7 holidays, and also
proposed coverage by the insurance program that the
Union had in effect in the garment industry. On vacation,
holidays, and insurance , the Respondent adhered
consistently to the position that it would provide no more
"I credit Regen that he did mention the matter on January 25 as he
testified . English had no recollection of such a conversation but was less
than certain on this aspect.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than its existing benefits on these items ; i.e., 1 week's
vacation , four holidays , and the existing insurance." At
one meeting, a member of the union negotiating
committee mentioned the possibility of six holidays. The
Union also submitted a modification of its proposal
regarding the eligibility requirements of employees for
various vacation entitlements . On insurance , the Union
said that it is primarily interested in increased insurance
benefits for the employees and it would entertain a
company proposal for increasing benefits under the
existing company plan or under some other insurance
carrier . Without alteration , Respondent rejected any
change in existing vacations , holidays, and insurance on
the ground that its benefits on vacations and holidays
were as good as those prevailing within a 25 -mile area of
the plant and above the area insurance benefits , and it saw
no reason to change.
With respect to the Union ' s written contract provision
that vacation pay be paid before the vacation commenced,
Respondent said that it was its practice to do this but it
did not wish to put it in the contract . Neither of the
Company' s written contract proposals contained this
provision . Regen testified that the aforementioned
provision "was not a big thing, we would have included it,
and it was nothing final on my part that we would not
include it ." The witness was thereafter asked:
Q. Did you agree to put it [the provision ] in there [in
the contract]?
A. No.
Article XIX of the Union ' s proposal provided that "all
existing rules, regulations and shop practices of the
employer that are more favorable to the employees shall
continue in full force and effect ." Respondent stated that
it had no intention of changing the existing practices and
rules but saw no reason for putting this in writing. The
Company did not include this provision or any similar
provision in any of its contract proposals . Regen testified
regarding the above provision about maintaining existing
practices that " . . . you never know what' s going to
happen tomorrow ... the clause you are referring to, you
can't really agree to anything you don ' t know about, you
have so many changes . . . you can ' t agree to what you
can't see and I had a feeling that that clause was way
beyond what you saw."
The union contract proposal provided that the
Company would permit union representatives to visit the
plant at any time during working hours . It was proposed
that the Company make available to the Union "such
payroll and production records as the Union may
reasonably require as the collective-bargaining agent."
Also, that the Company "shall inform the Union as to all
new employees hired and employees whose services have
been terminated and the reasons therefor ." The Union
asked for this information on a weekly basis.
The two written proposals of Respondent dealt with the
foregoing matters to the following extent : A provision in
the recognition clause of both company proposals to the
effect that "the Company will recognize and deal with
such representatives of the employees as the Union may
select or appoint"; a provision in the seniority clause of
both Company proposals stating that the Company would
prepare a seniority list of all employees in the unit and
"The Company's second written proposed contract, like the first, set
forth the existing situation in the plant on these items . For instance, ".. .
the Company shall continue to provide and pay for employee insurance
benefits to the same extent that it now provides and pays for such
benefits."
this list to be revised every 6 months and a copy furnished
to the Union every 6 months. The Company's second
written proposal included a provision that union
representatives, desiring to talk with employees regarding
grievances or other matters of representation and
administration of the contract , may come to the
Company's office and ask for such employees.
Arrangements would then be made for the Union to
interview such employees provided that it could be done as
not to interfere substantially with work or production.
The foregoing matters were discussed at length. The
testimony in the record indicates that the inclusion of the
union proposal for payroll and production records that the
Union might reasonably require as bargaining agent was
rejected as too broad by the Company. The Company said
that it was prepared to furnish specific information on
some item that might arise in the course of a grievance
but not otherwise. The Company rejected the request for a
weekly report or list of hires and terminations on the
ground that this would be clerically burdensome. The
Union proposed a biweekly list but this was rejected on
the same ground.
With respect to the Union's proposal that its
representative have free access to the plant, the positions
of the parties came down to the following: the Union
wanted unhampered opportunity to enter the plant to
investigate complaints or grievances ; the Company said
that the Union representative could have such access I
hour a week during working time at an agreed upon time.
The Union said that some weeks it would require little or
no time in the plant but in other occasions it would
require more than 1 hour and therefore the proposal of
the Company was not acceptable. At the hearing,
Respondent stated that it also made it clear to the Union
that, in the 1 hour a week proposed, the Union need not
limit the visit to grievance matters but could check on
other matters including hires and terminations.
The parties negotiated regarding a contractual
grievance procedure. They reached substantial agreement
regarding various steps to be followed regarding
grievances with the exception of the ultimate disposition
of grievances that were not resolved through the grievance
procedure. The union contract proposal provided for
arbitration as the final step in the grievance procedure.
The Company said that it was opposed to having any
provision for arbitration in the contract. The topic of
arbitration was discussed at substantially all the meetings
of the parties. The Union argued that without an orderly
way of disposing of unresolved grievances, the only
alternative was for the Union to have the right to strike
and that in a piece rate industry where there might be 30
or 40 disputes in a week there could be numerous or
almost continuous strikes . Regen and Rodenborn testified
that at one point the Union said that it would relinquish
arbitration if it had the right to strike. The union
witnesses deny this and state that at all times the Union
stressed that it considered arbitration a vital necessity in
the contract. My opinion is that at one point the
Company apparently concluded that the Union had posed
the right to strike as an alternative to arbitration and the
Company, in its second proposed contract, did eliminate
the no-strike clause that had been contained in its first
proposal.
I do not believe that the Union had said in substance
that it would forego arbitration if the no -strike clause was
eliminated and if it had the right to strike over unresolved
grievances . In any event , whatever the precise language
was on the occasion when striking was mentioned as the
BLUE JEANS CORPORATION
alternative to arbitration , the evidence satisfies me that it
was part of the Union ' s attempt to secure an arbitration
clause . Unsuccessfully , the Union apparently hoped that it
might persuade the Company that it was preferable to
have arbitration rather than strikes . However the
Company may have construed what the Union said at one
point, the record is clear that after this occasion the
Company was aware that the Union considered
arbitration an essential part of any contract that might be
negotiated and that arbitration was a major source of
disagreement . Witnesses for both parties agree on this.
In the negotiations the Company said that it wanted no
arbitration provision in the contract because it did not
want a professor or other outsider deciding what was right
or wrong in the plant and that arbitration would in effect
take control of the plant out of the Company ' s hands. The
Union stated that the arbitrator need not be a professor
but could be anyone of standing and that the Company
could make up a list of persons who would be acceptable
as arbitrators and the Union would see if it could agree to
the names . The Company said it was opposed to
arbitration in the contract. The Union pointed out that
the Company had arbitration clauses in some of its
commercial contracts and had won one such case that was
arbitrated . While admitting the foregoing, the Company
still said that it did not want arbitration in the labor
contract.
At the hearing , Regen testified that the Union in the
negotiations would agree to practically any grievance
procedure providing that the last step was arbitration.
Regen states that he told the Union that he had serious
misgivings about a preacher or law professor coming in
and running the plant . The witness also testified that while
the Company did have arbitration clauses in some of its
commercial contracts he could not see any similarity
between those situations and a labor contract.
The Union ' s contract proposal provided for a checkoff
of dues by the Company upon written authorization of
individual union members . During the negotiations the
Respondent said that it would not agree to a checkoff of
dues . Various reasons were given for this position.
Respondent asserted that the paperwork entailed would be
burdensome . The Union pointed out that the Company
already checked off insurance premiums from employees'
pay. Respondent has stated that it believed that employees
would be upset and unhappy about having dues deducted
from their pay by the Company . It was also stated by the
Company that it did not consider a checkoff to be any of
its business and that it did not want to participate in the
administration of employees ' responsibilities to the Union.
Regen testified that the Company was under a "lot of
pressure" from employees in the plant, who had signed
Union cards, that they did not want any part of the Union
or deductions of dues from their pay. Regen states that he
told the Union that he would not agree to a checkoff
because it put the Company in the middle and that while
the Union had won the election it did not have a majority
thereafter and the Company did not want to have
employees discontented over checkoff deductions from
their pay . Rodenborn testified that during negotiation the
Company told the Union that some employees who had
signed union cards told their supervisor that they did not
want deductions from their pay to the Union . Rodenborn
also testified that employees generally resented having
money deducted from their pay. Both Regen and
Rodenborn testified that 10 or more years ago the
Company had a voluntary payroll deduction savings plan
for employees but had discontinued it because it created a
203
great many problems caused by employees repeatedly
changing their minds . A new plant manager at one point
had started having deductions made from employees' pay
so that employee debts for retail purchases from the
Company could be liquidated . This was stopped , however,
as soon as higher management became aware of the
situation.
Regen testified that he also told the Union when he
rejected the checkoff that there were alternatives but he
never mentioned or proposed what the alternatives were.
In his testimony , Regen , apparently by way of explanation
for the last mentioned lack of explication of what the
Company considered to be possible alternatives , stated
that the Union never proposed alternatives to checkoff.
Very briefly summarized , the Union ' s written contract
proposal on wages provided that "wages would be paid in
accordance with currently mutually agreed upon time and
piece rates . ." By letter of November 22, 1967, the
Union advised the Company that its economic demands
were : that the contract provide for an increase of 15 cents
per hour across the board and that after the increase was
placed in effect that the Company "set rates so that the
average piece work operator working in normal conditions
who is fully trained shall have the opportunity to earn
$1.85 per hour ." The Company's two written contract
proposals both provided that "Piece rates shall be
increased by an average of 14.3 percent per hundred or
the equivalent of .20 per hour to the piece worker. This
increase will raise the piece rate base for sewing machine
operators to $1.85 per hour , so that experienced operators
should average $ 1.85 per hour."
Before proceeding to describe the negotiations on
wages, it is pertinent to observe that approximately 95
percent of Respondent ' s employees were piece workers.
The latter work on a piece rate basis which is a system
geared to provide an incentive to the piece worker so that
she will maximize her production . In a plant such as
Respondent ' s there are a large number of different
operations, e.g., to mention a few, hem hip pocket; hem
drop watch pocket; serge facings; set facings ; hang pocket;
tack pocket ; set zipper ; set hip pocket and so forth. Each
operation has its own piece rate . Within each operation
there are also different piece rates , as, for instance, for
different items , styles , sizes, and materials . Thus, style
7000, dungarees for boys 3-7 years , would have a rate
different from that of a man ' s garment for men size 42-46
and there would be differences according to the weight,
bulk, and ease or difficulty of working on the particular
fabric. The piece rate for particular operations is in
essence based upon a time study of the actual individual
operation by an industrial engineer . The engineer makes a
determination regarding each operation of how many units
per hour an average experienced employee working at a
normal pace can produce. The aforesaid number of units
is thereupon determined to be the standard for the
particular operation . In arriving at the standard, the
engineer has taken into consideration not only the factors
mentioned above , such as style, material , size, but also the
physical layout where the operation is performed, the
movements of the operator in performing the operation,
the location , speed and performance of the machines used,
the flow of work and materials to the operator , and other
elements. A judgment will also have been made in
establishing the standard as to which operators the
engineer appraises as a 100-percent operator or a
50-percent operator or some other figure . Thus, one
operator may not have been regarded as 100 percent
because of a great deal of talking to fellow workers as
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrasted with another operator who concentrated more
on her work.
When the piece work standards for the various
operations have been determined upon, the operator on
the job earns the minimum rate if she produces the
standard number of units or if she produces less than the
standard. However, in the latter situation the operator
receives makeup in order to bring her up to the minimum.
Thus, in Respondent's plant prior to February 1, 1968, the
minimum rate was $1.40 per hour as provided in the Fair
Labor Standards Act (Wage and Hour Law).'2 If a
particular operation paid 2 cents per garment and an
operator sewed 500 garments in an 8-hour day, this would
be $10, but she receives the minimum of 11.20, the
difference being the makeup. A high percentage of
makeup over a period of time might indicate that the
operator was slow or otherwise deficient, or that she was a
learner and inexperienced, or that the flow of work was
poor, or that the rate was too "tight" and set incorrectly.
The incentive factor is based on a percentage that an
average experienced operator working at normal speed
can earn by producing more garments than the minimum.
In the instant record there is evidence that both the Union
and the Company generally believed that a genuine
incentive should yield the average operator
aforementioned about 15 percent more than the minimum
and would thus be the incentive for her higher production.
Thus, if the minimum was $1.40, the standard and rate on
an operation would be generally such that the average
experienced operator should earn approximately $1.61 on
piece work through operation of the incentive. By the
same token, if the minimum was $1.60, the same
operator's yield would be approximately $1.85.
At the inception of the negotiations the Union had
asked the Company to furnish to it a representative
payroll showing the earnings of piece workers in the plant.
The Company complied with the request and submitted
eight payroll sheets for the month of September, 1967,
showing the names of the 329 employees, the departments,
the hours worked by each, the piece work earnings for
each, the timework earnings, the earnings on makeup, the
percentage of makeup, and the average hourly earnings of
each employee. Under the direction of English and
Sydney, a staff man in the Union office prepared an
analysis of the foregoing payroll information. This
analysis showed that the piece work shop average was
$1.37 per hour."
During negotiations, the Company did not deny that
the payroll it had submitted was representative but when
the Union stated that its study of the payroll showed the
shop average to be $1.37, the Company said that it
computed the figure to be $1.49. Rodenborn, in testifying
about the $1.49 figure, stated that he was unable to
describe how that figure was reached because it "was done
quite sometime back" but he said that the figure
represented pay that was given for work performed and
"my memory is that we included in the time work ...."
English testified that the Company had indicated that its
figure of $1.49 included makeup and time work and that
the Union had said that the Union was talking about the
piece rate and not the additional or supplemental makeup
or time work given to a piece worker from time to time."
"The law increased the minimum to $1.60 on February 1, 1968.
"G.C. Exh. 13. English 's testimony indicated that the average was a
weighted average based on the distribution of the piece work earnings for
each piece worker
"We have previously described makeup . In addition to makeup, a piece
Throughout their various meetings with the Company
the Union said that the Company's proposal of an average
14.3 percent increase, the equivalent of 20 cents per hour,
would not yield the average operator $1.85 per hour as
also stated in the company proposal. The Company, in
effect, said that it believed that, while not every employee
would earn $1.85, its experience with earnings on the
various operations and knowledge of its business
convinced it that the average experienced operator could
earn $1.85 as the result of the Company's proposed
increase.
The Union told the Company that in order for the
Union to have sufficient knowledge of the potential yield
of the rate increases proposed by the Company, the Union
would have to have its own industrial engineer make a
time study of the various operations performed by the
piece workers. The Union said that this was necessary
because many subjective factors of the particular engineer
entered into a timestudy, such as the PFD factor
(percentage allowed for fatigue and delay), how the
engineer rated a particular operator as 50 percent or 100
percent or some other figure, and so forth. Although
witnesses are in disagreement as to whether the Company
at various times offered additional data and records to the
Union, the evidence persuades me that the Union made it
reasonably clear that it was not interested in perusing
company timestudies and other related records and data.
This is the basic reason that the Union said that it could
not make an effective judgment on rates based on paper
data but required a time study by its own engineer. I am
also of the opinion that the record shows no refusal by the
Company to produce data or records requested by the
Union.
The Company's response to the Union's proposal, that
the Union would be in a position to say whether it agreed
or disagreed with the proposed rates of the Company if
the Union could first conduct its own time study, was that
the Company did not want a partner in setting rates. The
Company said that it wanted to set the rates and, if later,
the Union believed that a rate was wrong, it could take
the matter up as a grievance. The Union did not object to
the idea itself that the Company should set the rates and
in fact its contract proposal provided that the Company
"set rates so that the average piece work operator . . . in
normal conditions fully trained shall have the opportunity
to earn $1.85 per hour." The Union said again that it did
not consider it possible that an average 14.3 percent
increase on existing rates could yield $1.85.
Regarding a union proposal that when rates were
established, they should only be changed by mutual
agreement, the Company orally and in its written
proposals rejected and omitted such a provision. English
posed the situation during negotiations that, if the Union
accepted the Company's proposed rates and if an
employee was making 65 cents higher than $1.85, would
the Company assume the right to cut her by 65 cents. The
Company said, yes, on the basis that it would set the rates
without a partner in setting rates."
The Union then, in effect, summarized its position as
offering two alternatives to the Company. The first
worker might occasionally receive some time work , as, for instance, if her
machine had a breakdown.
"Presumably , the following provision in the Company's contract
proposals would be relevant to such a situation . "If the Union or the
employees consider that any new rates set by the Company are unfair, then
the same may be made the subject of grievance under the grievance
procedure herein provided for." Equally to be presumed is the Union's
view that a grievance procedure without arbitration was ineffective.
BLUE JEANS CORPORATION 205
alternative was that initially the Union be allowed to
make its own timestudy with its own engineer and then it
would either accept or not accept the rates proposed by
the Company . The second alternative was that the
Company set the rates but that if the rates did not
thereafter yield $1.85, the Union would have the right to
grieve and if the parties could not agree , the matter would
be decided by a third party arbitrator. The Company had
previously rejected arbitration as the final step in the
grievance procedure and it was therefore not prepared to
accept arbitration on wage rate grievances . The Company
said that the Union was asking for a guarantee of $1.85
and the Company would not make such a guarantee. As
previously indicated , the Company rejected an initial
union timestudy because it said that it did not want a
partner in setting rates . Regen testified that having a
union engineer in the plant making a timestudy would
disrupt operations and would be psychologically upsetting
to employees." Various union witnesses testified one way
and Company witnesses testified otherwise concerning an
alleged statement made by Regen in one of the meetings.
In resolving this conflict , I have relied primarily on Eula
McGill . Like all the others , she was an interested witness
but, in our opinion , in her two appearances on the witness
stand , she was a reliable witness not given to exaggeration
or misstatement . She credibly testified that Regen did say
that he would have everybody in the area on his back if he
let a union engineer in the plant . We neither ignore nor
exaggerate this evidence by thus resolving a testimonial
conflict in the record.
The last time the parties met was on January 25, 1968.
In the morning session the Company said that it wanted
to put the new rates into effect on February l." The
Company said it had a set of rates that it believed the
Union could accept . The Union reiterated that it was not
in a position to agree to the rates because of the reasons
previously stated in prior meetings , namely, without a
timestudy by a union engineer it could not make an
adequate appraisal of what the rates would yield or,
alternatively , a right to have the matter decided by an
arbitrator if it was alleged or found that the rates did not
in fact yield $ 1.85. The Union said , however , that it would
look at the rates that the Company said it had to offer.
The Company said that in the afternoon session it would
have its industrial engineer , Jorgeson , on hand to answer
any questions that the Union might have about the rates.
In the afternoon of January 25, Jorgeson was on hand.
The Company gave the Union a list of operations in the
plant showing "Present rate" and "Rate after 2 / l/68.""
At the Union' s request , Jorgeson gave they Union the
percentages of increase on each of the operations and the
Union wrote the percentages on the list. Thus, to take the
first job or operation on the list , the data was, "Present
Rate, .59; Rate after 2/1/68, .67; [increase] 13.5 percent."
The percentage increases on the various operations ranged
from 6 percent to 22.5 percent. The Company said the
increases , while varying for each operation, averaged
overall about 14.3 percent. The Union said that it could
not tell from looking at a list of rates what the rates
would yield or that they would yield $ 1.85 to the average
experienced operator . The Union pointed to one of the
"The only specifics as to what would be entailed in a time study, aside
from all the operative factors to be appraised by the engineer , was Shay's
testimony that the Union said that each operation would require an 8-hour
timestudy and Shay testified that the study would therefore take about a
month considering the number of different operations in the plant.
"As previously mentioned the FLSA minimum rose from $ 1.40 to S1 60
on February 1.
operations on the list, the "set fly" operation. The
Company's figures showed a proposed 9-percent increase.
The September payroll data that the Union had analyzed
had shown a $1.29 job average for this operation." On
January 25, the Union mentioned these figures on "set
fly" and said in effect that the proposed 9-percent increase
would not yield $1.85. Rodenborn testified that he told the
Union that the Company had checked the rates and past
earnings on the operation and would make them available.
In his testimony, Rodenborn admitted that the particular
operation did look bad from the standpoint of what the
Union had, i.e., the September figures and the January 25
proposed 9-percent increase on the particular operation.
He said that the other rates checked out. Jorgeson
testified that he had time studies and other data on hand
on January 25. English states that the Union neither
asked for nor was it offered additional wage data at this
time nor previously. The Company says that during the
various meetings it had told the Union that it had
earnings and other records for the period after September
but that the Union displayed no interest in obtaining such
records . Either at this point or earlier in the afternoon
session the Union had gone through a sort of checklist of
all the contract items on which the parties were apart and
it was ascertained that they were still apart . The Union
ended the January 25 meeting by saying that it was
prepared to meet again but that the parties would have to
check with each other on a mutual date. The meeting,
which had lasted about 30 minutes in the afternoon, then
ended. The parties have not met since.
By letter of January 29, 1968, addressed to the Union
at its Whiteville office, attention of English, Regen stated
that at the last meeting the Company had advised the
Union of the impending new minimum wage required by
the FLSA and that unless agreement was reached on
wages, the Company would have to proceed on February
I and place in effect wage increases to meet the
requirements of the law. The letter said that the Company
had, on January 25, submitted its proposed wage increases
to the Union but the latter did not agree to the increases.
The Company said it was going to place the increases into
effect to comply with the FLSA. A notice to employees
that the Company said it planned to post was enclosed.
The letter said that the Company was prepared to discuss
this and other matters further if the Union wished to do
so and that the Company was prepared to bargain
regarding wage increases or wage changes.
The aforementioned notice to employees , dated January
26, was posted. The notice stated that during negotiations
the Company had offered substantial wage increases but
the Union had not agreed to the increases . "But as we
have expressed to the Union, the new Federal
requirements are such that we now need to go ahead and
put increases into effect . We are therefore doing so as of
February 1, 1968. As we have informed the Union we are
still ready to continue our bargaining negotiations on
wages, as on all other matters ." Pursuant to the notice,
"Regen testified that the list of rates was for 5 pocket jeans which
encompassed about 50 percent of production . He said that the Company
also had with it on January 25 similar information for other items
produced in the plant and had sheets that showed the back history of the
rates and their yield . The witness said this other data was not opened up
and shown at the meeting because the Union indicated no interest in such
information but adhered to its proposal about either making its own time
study or having a right to grieve to arbitration about rates that did not
prove to yield $1.85.
"There were four operators on the operation whose piece rate earnings
in September were $1.33; 1.06 , 1.36, 1.41.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increases were thereafter placed in effect.
The letter and notice that had been sent to the Union's
office in Whiteville did not reach English, whose office
was in New York until sometime after the increases
became effective . Regen , who was aware that English's
office was in New York, testified that all Company
correspondence with the Union had been addressed to the
Union office in Whiteville.
Conclusions
There have been many descriptions of the meaning of
collective bargaining under the Act in Board and court
cases. For the most part they relate or are intended to
relate to a particular case and its own particular facts. We
believe that the following statement is less conclusionary
in its nature than some others and that it is of some help
in approaching the instant case : "Good faith bargaining
does not require the making of concessions or the granting
of wage increases but it does require that parties justify
positions taken by reasoned discussions and at least make
a good faith effort to reach a solution of their
differences.""
The complaint allegation that is broadest in scope is
paragraph 14(h) which alleges that Respondent
"negotiated with the Union in bad faith and without an
intention of entering into any final and binding collective
bargaining agreement." We have as a consequence
endeavored to consider carefully the entire bargaining
picture as revealed in the record as well as the other
specific allegations of bad- faith bargaining alleged in the
complaint.
Although the evidence is in some respects limited, it is
uncontroverted and without explanation by the Company,
that the agreement with the Union, made in October
1967, that in slack periods work would be shared equally
by employees in a section or department , was repudiated
in an announcement made by an undoubted supervisor=' in
March, 1968 to individual employees to the effect that
thereafter, in slack periods, the low producers would stay
home and the high producers would work. The supervisor
stated at the time that she had been so advised by higher
management . This unilateral action without discussion
with the Union , the collective-bargaining representative,
constituted , in our opinion , a repudiation of the
understanding and agreement between the parties and was
a violation of Section 8(a)(5) and (1) of the Act.
With respect to the Union's proposal for a contract
clause on the subcontracting out of work from the
Whiteville plant, Respondent did not manifest a good
faith effort or desire to reach agreement as required by
Section 8(a)(5) of the Act. Without repeating all the facts,
heretofore described , we believe that it was incumbent
upon Respondent, as it said it would , to make some effort
to draft a counterproposal that, while protecting what
Respondent regarded as its own vital interests , might be
acceptable by , or negotiable with, the Union in the light
of the fact that Respondent had said that it planned to
share the work equally and fairly between its plants.
Instead, when later asked by the Union for its promised
counterproposal, the Respondent simply said it had
"Alba- Waldensian , Inc., 167 NLRB 101. Factually, the cited case, in
our opinion , had significant elements not present in the instant case but we
believe that the quoted sentence has broader application than the Alba case
itself.
"This supervisor , Register, is also referred to in the prior Board case
and her status is not disputed herein.
changed its mind about submitting a counterproposal
because its operations were too complex.
On "hours of work," Respondent said that it had no
plan or intention of changing the existing plant hours. The
Union had proposed initially that hours of work be
mutually agreed upon but this was not acceptable to
Respondent. The Union then proposed that the existing
hours, starting and quitting times, be incorporated into the
contract. Despite Respondent's assertion that it had no
plan or intention to change existing hours, Respondent
said that it was unwilling to place such hours in the
contract or have the contract provide that existing hours
would prevail. Subsequently, however, during the
October-January period when negotiations were taking
place, Respondent did announce to the employees a
change in starting and quitting time and concurrently
placed the change in effect. The foregoing was done
unilaterally and without discussion with the Union.
Although the changes were relatively minor and although
the explanation for the change that was given at the
instant hearing appeared to be quite reasonable, the
situation had not been of an emergency nature and no
explanation appears for the bypassing of the Union. It is
our opinion that on the hours of work aspect of the
negotiations, Respondent did violate the requirements of
Section 8 (a)(5) and (1) of the Act.
In connection with its vacation proposal, the Union
proposed that the contract provide that vacation pay be
paid on the payday immediately before the vacation.
Respondent said that it was its practice to give the
vacation pay before the vacation as proposed by the
Union but it did not wish to have such a provision in the
contract. Respondent did not change its position in this
matter and neither of its written proposals contained the
provision. Although Respondent admitted at the hearing
that this was a minor matter as far as it was concerned
and that it had no real objection to the provision, it did
not agree to place such a provision in the contract. It is
difficult to see how parties can make any progress toward
establishing a mutual understanding and arriving at
agreement in the face of such an approach. Manifestation
of good faith and agreement on relatively minor matters
about which there is no real disagreement are the building
blocks for any possibility of reaching or even approaching
agreement on an overall contract . We find the foregoing
conduct of Respondent to be inconsistent with the
obligations imposed by Section 8(a)(5) and (1) of the Act
and to be a violation of those sections.
The Union proposed a provision that existing plant
practices and rules that were more favorable to the
employees should be continued. Respondent said that it
had no intention of changing existing rules and practices
but saw no reason for having such a provision in the
contract. At the hearing, Respondent stated, in substance,
regarding its position on the above matter that it would
not agree to the provision because " . . . you never know
what's going to happen tomorrow ...." While the latter
observation is no doubt true as to all human activities,
including those of employers, employees, and Unions, its
ostensible logic would seem to preclude any agreement or
contractual understanding between human beings or
organizations composed of beings other than those who
could foresee and predict the future with certainty.
Moreover , as to the proposal , no one knew or was in a
better position to know its own existing plant rules and
practices than the Respondent itself. Respondent, with
such knowledge , was in a position to offer some
qualification as to the continuation of existing rules and
BLUE JEANS CORPORATION
practices if there was an area in which it believed it might
possibly wish to make a change . But this was not done
and despite a statement that it had no intention of
changing existing rules and practices Respondent rejected
the union proposal. The sole reason offered by
Respondent for its position that appears in this record is
that , you never know what is going to happen tomorrow.
This approach foredooms any possibility of contractual
agreement for a reasonable future period . We cannot
reconcile this position of Respondent with the obligations
of Section 8(a)(5) and (1) of the Act and we consider it to
be in violation thereof.
The Union proposed that the Respondent furnish
information to the Union on a weekly basis showing
which employees were hired and which were terminated.22
The Union said that it wanted the information because as
bargaining representative it needed to know whom it
represented and their status . Neither in negotiations nor at
the hearing did Respondent contest the right of the Union
to the information but it rejected the proposal on the
ground that it would be clerically burdensome for
Respondent to furnish such a list . At the hearing
Respondent said that its IBM office machines were
already overburdened without additional work being
assumed. The Union then proposed that the information
be furnished every two weeks. Respondent rejected this
proposal . Respondent ' s written proposals , on the score of
information that it would furnish to the Union, provided
that Respondent would furnish a seniority list every 6
months . Under a provision dealing with discharges,
Respondent said that it would notify the Union of
discharges made . In substance , the Union said it did not
consider that Respondent was meeting the Union ' s right
to, and need of, reasonably current information on hires
and terminations.
At the hearing , Respondent stated that in response to
the Union ' s proposal that a Union representative have
free access to employees in the plant regarding complaints
or grievances , Respondent had offered that the
representative could have such access 1 hour per week at
an agreed upon time . Respondent asserts that in that one
hour the Union could have checked not only on
complaints and grievances but on other matters such as
hires and terminations.
Aside from the testimony of the Union that the matter
of a list of hires and terminations on a weekly or biweekly
basis and the matter of access to the plant to handle
grievances were two different topics and were discussed
separately , there appears to be some inconsistency in the
Company' s position . The Company did not wish to
furnish a weekly, biweekly, or any other period, list of
hires and terminations because it would be clerically
burdensome . Yet, at the hearing, Respondent states that it
was willing that , during the 1 hour a week it would
allocate to the union representative on grievance matters,
the Union have access to Company books and records. At
one point in his testimony Regen said, " . they could
come in that hour, and look at any kind of hire and fire
list." If this indicates that Respondent did maintain such a
list, presumably available each week, the burden of
making a copy of the list and sending it to the local union
office or furnishing the list to the Union would be a
simple routine matter scarcely burdensome in any respect.
If such a list was not maintained , presumably the Union
representative , under Regen 's thesis, could , during the
1-hour weekly visit on other matters , have access to
"The Union was not asking for a weekly plantwide seniority list
207
payroll records and time cards and ferret out therefrom
the information as to which employees had been hired or
terminated. It requires little imagination to foresee that
the union representative, unfamiliar with Respondent's
office and records, would reasonably have to invoke some
assistance from Respondent's clerical staff in order to
secure the appropriate records and, possibly, to interpret
their meaning. This would almost certainly be more
burdensome to Respondent than the simple furnishing of a
list.
The list could evidently show the names and next to
each name possibly a symbol "H" for those hired; "D"
for discharges and reasons, such as excessive absence,
poor work, fighting or whatever. A symbol of "Q" could
indicate quit. Respondent could have proposed
modifications as to any list but this was never done and
the Union's request was rejected as burdensome.
I have difficulty in seeing that Respondent, on the
above matter, was negotiating in good faith and evincing a
reasonable desire to reach agreement as required by the
Act. We find the conduct to be in violation of Section
8(a)(5) and (1) of the Act.
As mentioned above, the union contract proposal
provided that a union representative have the right to visit
and come into the plant and talk to employees at any time
during working hours. This proposal was asserted to be
necessary for the proper administration of the contract
and the servicing of employees regarding their rights,
particularly as to problems and complaints and grievances
regarding employees and their work. Respondent rejected
this proposal but proposed that the union representative
be accorded the right to come into the plant 1 hour a
week during working hours at a mutually agreed upon
time. The Respondent said that after working hours it
would discuss, without particular limitation, grievances or
other matters raised by the union representative or
discovered by the representative in the course of the
representative's 1 hour weekly visit. Respondent also
proposed that it would allow the union representative an
initial general indoctrination and educational tour of the
plant so that the representative would have general
familiarity with the plant's operation.
The Union rejected the Respondent's proposals and
never altered its basic demand for unlimited access to the
plant during working hours to investigate grievances. As
summarized in its brief, p. 8, the Union took the position
that it considered its proposal essential and it could not
accept those of the Company as a substitute. The reasons
stated for this position were that the investigation of
grievances "could take more than an hour as well as less
than an hour and . . . the investigation must be made at
the moment when the particular work which the grievance
concerns is going through the factory - not at some time
when it suits management to permit the business agent to
see the plant."
I do not find that Respondent violated the Act on the
above matter of access to the plant. The parties bargained
about the matter and they were apart on their positions.
As earlier described, the Union proposed 7 instead of
four holidays, additional vacation periods, and adoption of
the insurance program that the Union had instituted
elsewhere in the industry. The Respondent said that on all
these items it considered its existing vacations , holidays,
and insurance to be equal to or better than those in other
plants in the area . It therefore said that it would not
accept the Union's proposals. The Union gave specific
indications on all the items that it was not opposed to
possible alternatives or modifications of its proposals.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent adhered to its position for the reasons stated.
Because of the previously described specific instances of
Respondent's failure to bargain in good faith as required
by the Act and the manifestation of an approach to
bargaining inconsistent with its legal obligation, we
entertain a serious doubt about its good faith and motives
in the position it adopted regarding vacations, holidays,
and insurance . However , as I understand Section 8(a)(5)
of the Act, we are not warranted in concluding that
because Respondent did not offer concessions on
vacations , holidays, and insurance , it therefore was not
bargaining as required on these working conditions.
Respondent gave its reasons for its position and they are
not untenable . Whether or not we agree that they are
good reasons is not determinative.
I also conclude that Respondent ' s insistence on article
IV of Respondent' s proposed contract, providing that
employees shall be free to be members of the Union or
not, or to support or not support the Union as they see
fit, was not illegal or that it warrants an adverse finding
as to good faith . Despite the background and context
previously described and the Union ' s objection to the
provision , the clause itself is too innocuous and consonant
with the provisions of the Act to warrant an adverse
finding.
The parties were in substantial agreement about a
grievance procedure except as to the ultimate method of
disposing of a grievance that had proceeded through the
procedure without being mutually resolved . The Union
consistently adhered to its position that arbitration by a
third party was essential as the final grievance step. The
Respondent consistently opposed arbitration . Initially, the
Company's contract proposal included a no-strike
provision as well as a grievance procedure without
arbitration . In the belief that, by indicating that strikes
were the only alternative to arbitration in unresolved
grievance situations, the Union would accept the right to
strike as an alternative to arbitration , the Respondent
removed the no-strike provision from its proposal. The
Union, however, made it clear that it considered
arbitration absolutely essential in any contract with
Respondent . The Respondent continued to oppose
arbitration . The parties discussed the matter but remained
firmly apart . In essence, Respondent said that it did not
want arbitration because it did not want a third party
having decisional power regarding the running of the
plant . The fact that Respondent had arbitration provisions
in some of its commercial contracts is a factor we have
not ignored but we do not regard it as determinative of
the issue . I do not find a violation of Section 8(a)(5) and
( 1) on the issue of arbitration.
The checkoff of union dues by the Company was
another demand that the Union told the Company was
essential in any contract that might be agreed upon. We
have previously described in some detail what the parties
said to each other on the matter of checkoff . Basically,
the Company said that it considered the collection of dues
to be none of its business and that it would be
burdensome because of the expense and time involved.
The Company also said that employees would be unhappy
about additional money being deducted from their checks.
Respondent testified that employees had told the
Company that they did not want their dues checked off.
Since the Respondent did check off taxes, and Blue
Cross and Blue Shield pursuant to its insurance program,
the burden of an additional item on the office machines
and clerical staff would probably have been minimal.
However , from another aspect of this matter of deducting
items from employees ' pay, the evidence shows that
Respondent, in the past, had deliberately discontinued a
savings plan deduction program for employees as well as
any deductions from pay to liquidate debts of employees
to the Company . Respondent had no community chest
fund deductions or flower fund deductions or things of
that type . On taxes, of course , the Respondent had no
option except to make payroll deductions . Evidently on
Blue Cross and Blue Shield insurance the Company saw
no practical alternative to deductions." The
aforementioned insurance program was a company
sponsored one and it was no doubt something that the
Company regarded to be in its own interest as well as that
of employees, since such a fringe benefit was probably
deemed a necessary element to attract and retain
employees . But other than on taxes and insurance, and
wherever the Company had a real choice it opposed and
did not make payroll deductions . It is fairly clear that in
many respects and certainly from the Respondent's
viewpoint , the checkoff of union dues was in a different
category than either taxes or a company insurance
program and that dues check off was in the same optional
category as other checkoff programs that the Company
had discontinued and opposed.
Respondent' s testimony that some employees who had
signed union cards had told the Company that they did
not want their dues deducted is appropriately to be
considered in conjunction with one of the union's
arguments to Respondent on the checkoff matter. The
Union pointed out that the checkoff would apply only to
those employees who had signed a card authorizing a
checkoff of their dues. One aspect of this matter of
authorization cards is that the cards were dual purpose
cards. In other words, when the Union was organizing the
plant, those employees who wished to join the Union
signed a card which set forth not only a request for and
acceptance of membership but also stated that the
employee authorized the employer to deduct dues to the
Union . It is possible that some employees might have
wished to join the Union but without wishing to have their
dues checked off. It does not appear that they had an
option . Some of their people might have been among
those who allegedly told the Company that they did not
wish their dues checked off. Although the Company's
testimony regarding the latter is not specific as to names,
the testimony is not controverted . Perhaps the most
effective contravention to this aspect would be a union
offer to produce current dues-checkoff authorizations,
separate and distinct from the original dual purpose cards.
In rejecting the checkoff, the Company told the Union
that there were alternatives . The Company never
mentioned what alternatives it envisaged and the Union
never asked . The Union did not offer any alternative as to
methods of collecting dues to the proposal that the
company checkoff the dues from the paychecks."
There is little doubt that the Union considered the
checkoff to be of major importance to it and it made this
clear to Respondent . But, in my opinion , the evidence
does not warrant the conclusion that by rejecting the
"These are probably very few companies that sponsor a health insurance
plan for their employees who do not make payroll deductions for the plan
or who believe it to be feasible not to do so.
"In my opinion , the parties in the negotiations on another topic, the
matter of access of a union representative to the plant during working
hours, supra , never mentioned dues collection in that connection. The
Union was talking of free access to investigate complaints and grievances,
and the Company spoke of I hour access for such purpose and allegedly
for the additional purpose to obtain hiring and other information.
BLUE JEANS CORPORATION 209
checkoff Respondent violated Section 8(a)(5) and (1) of
the Act. We believe that the evidence herein is
distinguishable from the situation in such cases as
Roanoke Iron & Bridge Works , Inc., 160 NLRB 175 and
H. K. Porter , Inc., 153 NLRB 119, enfd . 363 F.2d 272
(C.A.D.C.).
The Union 's original contract proposal , which was its
standard Cotton Garment Industry Contract , did not
propose specific piece rates for Respondent 's plant. The
specifics as to the Union ' s economic demands on piece
rates was set forth in a letter to the Company on
November 22, 1967. The proposal therein was for an
across-the-board increase of 15 cents per hour and that
thereafter that "the Company agrees to set rates so that
the average piece work operator working in normal
conditions who is fully trained shall have the opportunity
to earn $1 .85 per hour."
English testified:
I have been administering contracts for 30 years and we
[the Union ] have many contracts where companies set
rates unilaterally , but no contracts where once they are
set unilaterally we don ' t have the right to grieve on the
basis of certain standards.
The witness was asked if there are not many provisions or
situations in a contract "where the Company takes the
initial action unilaterally and then that action is subject to
grievance ." English answered:
And that was exactly what we were proposing to this
Company . We didn' t care . We would take their rates,
but we wanted the right to check them if they did not
yield $1 .85. This is a common procedure we use
everywhere . We preferred the Company to set the rates
first . .. .
The Company ' s written proposals provided that "Piece
rates shall be increased by an average of 14.3% per
hundred or the equivalent of 20 cents per hour to the piece
rate workers . This increase will raise the piece rate basis
for sewing machine operators to $1.85, so that experienced
operators should average $1.85 per hour."
It is apparent that both the union proposal and the
Respondent's proposal used the figure of $1.85 as the
objective , i.e., that the piece rates would be increased so
that the average experienced operator could earn $1.85 an
hour under the incentive system . The mathematics of the
$1.85 were based on the fact that the Federal minimum
wage was to be increased from $ 1.40 to $ 1.60 as of
February 1, 1968. A percentage increase of 14.3 percent
on $1.40 would be in round numbers $ 1.60. In addition
both the Union and the Company recognized that an
incentive factor of at least 15 percent was necessary. This
percentage on $1.60 would yield approximately $ 1.85 to
the experienced operator . As English testified , "It's a
piece rate industry" and both the Union and the Company
subscribed to the necessity of an incentive since otherwise
the operators would be content to earn only the minimum
and would secure the latter whether or not they produced
less than the standard number of garments on a particular
operation.
Despite the $ 1.85 figure in both the union and the
company proposals the Union was critical of the company
proposal . The Union argued that , in October , when the
Union asked the Company for a representative payroll,
the Company had furnished the September payroll." As a
result of its analysis of this payroll , the Union told the
Company that the plant average for piece workers was
$1.37 and that a 14.3 percent increase or approximately
20 cents per hour would not place the rates in a position
to yield $1.85. The Union also told the Company that
under the latter ' s written proposal there was only a pious
hope expressed that the increases would yield $1.85 and
that the Union had no effective recourse if the yield was
not $1.85 . The Union argued and states in its brief, p. 15,
that the company ' s contract language '"should average'
was not an effective protection of earnings"; if the rates
did not yield $1.85, then, in order to rectify the situation
"the Union needs two things : ( 1) an effective grievance
procedure , terminating in arbitration . . . . (2) and a
contract provision to which the arbitrator can look to see
whether or not the rate is fair." The Union claims that
under its proposal, that the Company should set rates so
that an average trained operator working normally "shall
have the opportunity to earn $1.85,"26 "then if the
evidence at the arbitration shows that average experienced
operators were working normally and did not make $1.85,
an arbitrator can conclude that this earning experience
falls short of the contractual criterion and that the rate
must be raised . But if the contract language expresses only
one definite commitment - that piece rates will be
increased 20 cents-and then expresses simply a pious hope
that 20 cents should yield $1.85 . . ." [then if] "the rates
did not yield $1.85 . . ., an arbitrator could not find the
rate wrong, because the contract would provide no
measure of what would be right and what would be
wrong , save for the 20 cents measure , which the Company
complied with."
Although , in stating its opposition to the company
proposal the Union did propose that the Union make its
own timestudy of the plant so that it could agree or
disagree with the Company ' s initial rates, it is my opinion
that the basic premise was that the Company should set
the rates so that they would yield $1.85. This was the
position of both parties and the Union in its written
proposal and otherwise made it clear that this was its
position. But the Union wanted two things in conjunction
with the latter: (1) the union language , in substance at
least, that the contract provide that the rates be set so
that the average operator have the opportunity to earn
$1.85; and (2) arbitration when the Union believed that
the earnings of certain average operators were not yielding
$1.85.
The Company did not agree that its plant average was
$1.37 and used the figure of $1.49. This position was
muddied and unconvincing , in our view , because it was
indicated that the $1.49 included makeup and time
earnings . But the Company also said , in substance, that
the earnings were higher than the figures used by the
Union and expressed confidence that its experience and
knowledge of its operation indicated that its new rates
would yield $1.85. Regen testified that the average
experienced piece workers in the plant were making
$1.83-$1.87 and that some were making $2.05-$2.15 and
others making less than $1.83. Regen states, "We were
willing to make our records available , any request they
made we were willing to give them , they made no
request."
Whether the Company did, throughout the negotiations,
offer additional records, as it claims, is a matter of sharp
dispute in the testimony . I am uncertain what precisely
the Company said along these lines but he does believe
that the Company did refer to current earnings of
"And, therefore , in effect, as far as the Union was concerned , that was
the controlling payroll.
"This quote is from the Union's contract proposal ; the following quote
is from the Union 's brief to me.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees as supporting its contentions on earnings. I also
believe that the Union did not ask for additional records
and that the Company never refused any request for such
records. We believe that the evidence shows that, on
January 25, the Company was prepared with a substantial
amount of data and records and that if the Union had
asked for such records they would have been produced.
The indication is that the Company would have
undertaken to secure additional data, if not present, if
requested by the Union. The Union adhered to its $1.37
analysis of the September payroll, saying in effect that it
had asked for and received a representative payroll and
that it was convinced that a 14.3 percent or
20-cents-an-hour increase thereon would not yield $1.85.
Both parties consistently adhered to the $1.85 figure.
Both agreed on the necessity of an incentive of
approximately 15 percent on the $1.60 minimum. Both
agreed on the definition of an average experienced
operator working under normal conditions as the
employee who should be able to, or have the opportunity
to, earn $1.85. But one of the basic problems, in my
opinion, and one that the parties never actually got down
to was a specific delineation of which operators in the
various operations the respective parties considered to be
average operators. The Union was using a September
plantwide average figure and the Company was evidently
using a more restrictive figure and one that, according to
its testimony, was based on additional months' experience
from September on.
I am of the view that the Union did not bring the
Company's good faith or lack of good faith, depending on
what the evidence would show, into focus. A critical issue
was whether the increases that the Company proposed
would or would not yield $1.85 to the average operator.
The Union said they would not and the Company said
they would. Highly material and relevant on this issue, in
our opinion, were the piece work earnings of the average
operators not only in September but in October-January
and even possibly prior months. It would be a matter of
mathematics whether looking at those earnings, perhaps
an average of September-January, and, adding the
proposed increases, the yield could reasonably be seen to
be $1.85. If the Union asked for and secured the data, the
Company would either show its good faith or not by
producing or not producing such material. If after the
data was produced, it did not reasonably support the
Company's position, the Company's explanation or lack
of a cogent explanation could be appraised, as could any
proposal for rectifying some rate that was out of line. The
net result would have been an opportunity to evaluate the
Company's statements and good faith regarding the
asserted $1.85 yield. The foregoing, however, never took
place and the bargaining, in our opinion, never came into
true focus.
One of the problems that apparently affected the
Union's position was that it used the September payroll
earnings in conjunction with a figure of an increase 14.3
percent or 20 cents an hour. This appears many times in
the Union's testimony and it appears from the statement
in the Union's brief that "14.3 percent was the only figure
which the Union had seen until January 25 ...." 37
While the Union's proposal had been for an across the
board increase," both the Company's proposals had used
the term of "as average of 14.3 percent [increase]" and,
"The implication being that the Union was surprised when , on January
25, the Company's proposed increases ranged from 6 to 22 percent which
the Company said would average out to about 14.3 percent.
by the same token, when the Company proposal read "an
average of 14.3 percent or the equivalent of 20 cents per
hour . " it meant, in our opinion, an average of 14.3
percent which is equivalent to an average of 20 cents per
hour.29 Here, again , the proposed increases, ranging from
6 to 22 percent, either would or would not be reasonably
expected to yield $1.85 on the current earnings.39
The Company said the increases would yield $1.85 and
it said that it had the data to support its position. The
Union, in our opinion, did not go into the matter at any
length or put the Company to its proof, and the entire
afternoon session , on January 25, when the Company had
its industrial engineer present, was terminated after 30
minutes , which encompassed not only the wage issue but a
rundown or recapitulation of all the other issues on which
the parties were apart. In our opinion , the issues were not
sufficiently brought into focus by the fact that on one
operation, set fly, the Union pointed out the inadequacy
of the increase of 9 percent for that operation, based on
the September payroll. But even on this one operation
involving four operators the situation issue could have
been joined, by the Union asking the Company to produce
the earnings data on which the Company was saying a 9
percent increase would yield $1.85. The Company's good
faith could then have been appraised. Similarly, on the
other rates, the precise situation could have examined and
tested.
As previously described, what the Union wanted was an
arbitration provision so that if the rates did not yield
$1.85, it could have the disputed rate issue decided by the
arbitrator. It is also the Union's position that its proposed
contract language that the Company set the rates so that
the average operator "shall have the opportunity to earn
$1.85 per hour" would establish a "fair rate" in the
contract to which an arbitrator could refer. The Union
contended that the Company's proposal which contained
the statement that an increase of an average of 14.3
percent "will raise the piece rate base for sewing machine
operators to $1.85, so that experienced operators should
average $1.85 per hour" was simply a pious wish and
could not be used effectively by an arbitrator. It is not
necessary for the Examiner to decide this aspect but we
are less than certain that language providing that rates be
such that an experienced operator "shall have the
opportunity to earn $1.85 per hour" would be more
determinative to an arbitrator than language stating and
expressing the intent that a 14.3 percent average increase
"will raise the rate base ... to $1.85, so that experienced
operators should average [should have the opportunity to?]
earn $1.85 per hour." In any event, we believe that the
parties were entitled to their respective positions on the
wage language of the contract.
Since the Company would not agree to arbitration, the
matter of what an arbitrator could or could not do with
the respective language proposals is somewhat academic.
The question is whether under the Company's proposed
language (or the Union's, minus arbitration) the Union,
by agreeing that the Company set the rates, was thereby
being cut off from any meaningful and informed
bargaining about a rate or rates which, in its opinion, did
not yield an experienced operator $1.85. We believe that
"I understand such an increase to entail that each employee receives the
same increase.
"Under an average, the range of increases could reach from high to low
percentages
"It is probably true that the variety of the increases was indicative of
some weakness in the prior rates but apparently the Company was
endeavoring to bong its rates into line.
BLUE JEANS CORPORATION
the Union could present its argument to the Company on
rates that it said did not yield $1.85. The Company would
be obliged to respond meaningfully if it disagreed with the
Union. Supporting books or records could be called for
and good faith would entail their production. Both parties
would have been committed to the proposition that the
increases were supposed to raise the rates to yield $1.85 to
an experienced operator or that such an operator should
earn or have the opportunity to earn $1.85. What the
evidence would show as to the good-faith bargaining on
the issue, we do not know, but the Union did have the
rights and remedies under Section 8(a)(5) of the Act. If
the Union argues, as it does, that such grievance handling
and bargaining is ineffectual without arbitration that is
certainly a position that it can hold. However, the
Company's refusal to agree to arbitration, in our opinion,
is not a violation of its duty to bargain. It may be that
there should be a grievance arbitration provision in all
contracts or else the ultimate decision rests with the
employer but this is not the law as we understand it.
In the preceding paragraphs we have set forth our view
of the basic issue on wages between the parties. As we see
it, the issue was could the proposed company increases
reasonably be expected to yield $1.85 to the average
operator and was the Union in a position to call for
information from the Company that would show whether
or not the increases could reasonably be expected to yield
$1.85. On this record we do not know whether the
increases could be expected to yield $1.85. We believe that
the Union did not bring the issue into full focus by asking
for and examining and analyzing available company
records and data which the Company asserted did support
its contention that the increases would yield $1.85 and
thereby putting the Company's good faith in full issue.
It is clear that the Union wanted an arbitration
provision and the Company refused. This was a major
problem and the subject of much discussion. In their
discussions, apparently based on what the Union said an
arbitrator could or would do if the contract provided that
an experienced operator should have the opportunity to
earn $1.85, the Company said the Union wanted a
guarantee of $1.85. The Union in turn sought to deal with
the Company's refusal of arbitration by saying that it
would then have to conduct its own time study initially
because without arbitration it would have no effective way
of doing anything about rates that did not yield $1.85. In
our opinion neither the guarantee allegation nor the time
study were the real issues. With a time study of its own,
the objective of the Union was still increases of rates that
would yield $1.85. The Union, pointing to its own
timestudy, could argue that an initial rate should be set at
a certain figure. The Company could disagree. One
engineer might assess the fatigue and delay factor at 25
percent and the other at 15 percent. There might be
agreeement or disagreement on other factors. But the
objective would still be increases that would yield $1.85.
On this issue, perhaps the most cogent evidence was the
actual earnings of the operators on the same jobs over a
period of months. The jobs were the same. New jobs were
not being set up. It was principally a matter of
mathematics. If an operator' s piece earnings over a period
of months were a certain figure and the minimum was
raised from $1.40 to $1.60, would an 8-percent increase or
a 20 percent increase or some other figure raise her
potential earnings to $1.85 with a 15 percent incentive
factor on the new minimum of $1.60. And, if the rate did
not thereafter yield $1.85, it would have been subject to
the grievance procedure and the obligations of Section
8(a)(5)."
211
We conclude that the bargaining on wages was
inconclusive and we do not find that Respondent
refused to bargain thereon.32 Consistent with this view we
do not sustain the complaint allegation that the Company
violated Section 8(a)(5) by placing in effect the wage
increases on February 1, 1968. The Company
had told the Union what it proposed to do on January 25
and had generally indicated the wage formula prior to that
time. There was no agreement on the increases but this
was, in our opinion, in a context of inconclusive
bargaining on increases and not in a context of refusal to
bargain by Respondent.
For reasons previously described on specific aspects of
the negotiations, the Examiner is of the opinion that
Respondent did not bargain in good faith as required by
law. Respondent's conduct, with respect to items on which
it had no real disagreement with the Union but to which it
refused to agree on in a contract, and, in other described
respects, warrants the conclusion that, overall,
Respondent's approach to bargaining was not that
required by the Act and that Respondent did not fulfill its
obligations under Section 8(a)(5) of the Act. We believe
that this conclusion is warranted despite the fact that on
some specific aspects of the bargaining we found no
refusal to bargain. The net result of the bargaining was, in
substance, that there was no agreement on anything that
would distinguish or significantly distinguish the plant
from a nonunion plant.
It is our opinion, based on the evidence in the record
that the strike of employees against Respondent that
commenced in March 1968, was caused by the employees'
and the Union's justified belief that Respondent had not
bargained in good faith with the Union as required by the
Act. A strike thus caused is, in its inception, an unfair
labor practice strike.
CONCLUSIONS OF LAW
As found and concluded hereinabove, Respondent did
not bargain collectively in good faith and Respondent did
thereby engage in unfair labor practices and did violate
Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent did not bargain in good
faith as required by the Act, it will be recommended that,
upon request , Respondent bargain collectively with the
Union as required by Section 8(a)(5) of the Act and that
if an understanding or agreements are reached on terms of
a contract they be embodied in a signed agreement.
In its brief, the Union argues , in effect, that such an
order in the instant case would be "meaningless." We
understand the contention but we do not agree that it is
meaningless and whatever its limitations it is in the
context of a statute that expressly provides that the
obligation to bargain collectively "does not compel either
"The Examiner is satisfied , from the record as a whole , and from
specific testimony , as well as the language in the company proposal
defining a grievance , that wage rates would have been subject to the
grievance procedure.
"We regard the matter of the Union conducting its own timestudy in the
plant as neither something to which it was entitled per se nor as something
that could not be appropriate under any circumstances . If some of the
matters that we have referred to had been brought into full focus, it might
be that a picture of such unreliability could be demonstrated that a union
timestudy might be the only reasonable alternative
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
party to agree to a proposal or require the making of a
concession.""
RECOMMENDED ORDER
Upon the basis of the above findings and conclusions
and upon the entire record in this case , it is recommended
that Respondent, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from refusing to bargain collectively
in good faith with the above-named union as the exclusive
representative of the employees in the appropriate unit
described hereinabove.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Upon request, bargain collectively in good faith with
the above union , as the exclusive representative of the
employees in the unit heretofore found appropriate,
concerning wages, hours, and other conditions of
employment and, if an understanding or agreement is
reached embody such understanding or agreement in a
signed agreement.
(b) Post at its Whiteville , North Carolina , plant copies
of attached notice marked "Appendix."" Copies of said
notice , on forms provided by the Regional Director for
Region 11 , after being signed by a representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced , or covered by
other material.
(c) Notify the Regional Director , Region 11 , in writing,
within 20 days of receipt of this Decision , what steps the
Respondent has taken to comply herewith."
"Sec 8(d) of the Act.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read - "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a trial in which all parties were represented by
their attorneys and had an opportunity to present their
evidence, a Trial Examiner of the National Labor
Relations Board , who heard the evidence, has found that
we have violated the law and has ordered us to post this
notice and to comply with what we say in the notice.
WE WILL, upon request , bargain collectively in good
faith with Amalgamated Clothing Workers of America,
AFL-CIO, as the exclusive bargaining representative of
our employees in the unit named below. This
bargaining will be with respect to rates of pay, wages,
hours of employment , and other conditions of
employment , and, if an understanding is reached, WE
WILL embody it in a signed agreement . The bargaining
unit found to be appropriate is the same unit that was
certified by the Board in the prior election . The unit is:
All production and maintenance employees at our
Whiteville, North Carolina plant, including
maintenance machanics and quality control girls, but
excluding office clerical employees, the carpenter, the
time motion and engineer trainee , guards and
supervisors as defined in the Act.
BLUE JEANS CORPORATION
AND
WHITEVILLE
MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board's Regional Office, 1624 Wachovia Building, 301
North Main Street, Winston-Salem, North Carolina
27101, Telephone 919-723-2303.