Collins & Aikman Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1967

165 N.L.R.B. 678 (N.L.R.B. 1967)

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collins & Aikman Corporation and Textile
Workers Union of America , AFL-CIO and
Carl Jenkins Furr , Jr., James W. Isenhour,
Charles E. Krick, Judy E. Misenheimer,
Edna H. Bailey , Evelyn Clark , Martin
L. Drye, Daniel C. Hinson , Mack W. Lam-
bert , Polly G . Mason , Jewell Lambert, Bobby
Ray Martin , Peggy Wagoner, William
Crawley, Sherrill Vanhoy, Katherine
C. Watson , George C. Murray , William
C. Efird , Charles E. Jordan , Tony M. Jordan,
Pauline V. Rinehardt , Billy Thompson,
Cassie L. Thurman, George Bill Misen-
heimer , Marion P. Wilhoit , Barbara Poplin,
Larry Gene Efird , Martha Gaye Efird,
Douglas B. Morgan, Elmer Hamp Talbert,
James Douglas Talbert , Johnny M. Garmon,
Ira Lee Burleson , James M. Dennis, John
E. Eudy, Phyllis Howell , William H . James,
Richard Mauney , Howard C. Montgomery,
J. D. Almond, Vernon C. Furr, Artis
B. Sellers, Tim L. Eudy , Ray F . Howard,
and Edith R. Russell . Cases 11-CA-2971,
11-CA-2978-1-33, and 11-CA-2978-35-46.
June 21, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 3,1967, Trial Examiner Phil Saunders
issued his Decision in the above-entitled
proceedings, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices, and
recommended that those allegations of the
complaint be dismissed. Thereafter, the General
Counsel and Charging Party filed exceptions to the
Trial Examiner's Decision, and supporting briefs,
and the Respondent filed 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 these cases to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner to the extent consistent with our
Decision herein.
' About August 18 the Respondent , with union approval,
granted a 4-1/2 percent wage increase for "several job
We affirm the Trial Examiner's Section 8(a)(1)
findings. However, we disagree with his conclusion
that the extensive interference and coercion
engaged in by the Respondent during bargaining
negotiations lack significance in assessing its 8(a)(5)
responsibility.
As we analyze this record, the employees were
restive in early September, when 3 months of
bargaining by their representative gave no indication
of resulting in a contract. The Union expressed its
concern about the failure to bargain on wage rates
and workloads,' evidenced by its August 27 letter to
the Respondent. The employees, having been
advised by International Representative Hoyman
that another month of negotiations was needed, set a
strike deadline for September 30 and so informed
the Respondent in early September. The plan to
strike, as the Trial Examiner specifically found,
resulted from the feeling of the employees that the
Respondent was not bargaining in good faith.
During the month of September, and continuing
during the month-long strike, Respondent through
its foremen attempted to discourage adherence to
the Union by telling employees they would never get
a contract because the "Company won't sign," or
would pack up and move rather than sign , or would
not give "any money," or would blacklist
committeemen and shop stewards and strikers
would have to leave the county to get jobs and would
suffer economic losses, as well as interrogating
employees concerning union activities, soliciting
employees to withdraw from the Union and to
abandon the strike after it started, all as the Trial
Examiner found. Also, during September no
meaningful bargaining concessions were being made
by the Respondent until September 29, the day
before the strike deadline; the Respondent
capitulated on arbitration, checkoff, and its no-strike
clause, and offered a wage reopener provision and a
lump sum for adjustment of inequities. The Union
considered the wage proposals unacceptable. The
parties continued discussions on the 30th. In the
afternoon the Union requested that Respondent
reduce its final offers to writing so that some sort of
list or outline of its proposals could be presented to
the membership. Respondent apparently said that it
could not prepare such a list by the end of the day.
Admittedly the Union did not agree to recommend
the offer to the membership. However, the
membership had voted on September 26 to give its
negotiating committee discretion to extend the strike
deadline beyond September 30.
On the 30th, beginning about 9 p.m., while the
second shift was still working at the plant, union
representatives came to the company guest house
where bargaining representatives were staying to
see whether the list was ready and to request further
bargaining so that the third shift could be instructed
classifications " considered by it to reflect inequities, but
indicated that this was about as far as it would go on wages
165 NLRB No. 76
COLLINS & AIKMAN CORP.
to report for work and some proposals could be
taken to the membership at the coming meeting on
Sunday, October 3. Manager Frisch was critical of
the presence of the union representatives at the
guest house on this occasion, commented that there
had not been enough time for the Respondent to
reduce its proposals to writing, and stated that in any
event previous offers were "out the window" and
also that "there would never be a check-off or
arbitration in a contract." This withdrawal by
Respondent of its previous offers the Trial Examiner
placed about 10 p.m., at which time he concluded
that Frisch had reasonable grounds fot assuming
that the strike had already started because of the
report of a telephone call from the plant.' We note,
however, that the record shows that the strike did
not actually start until after 11 p.m., when the union
president went from the guest house to the plant and
told employees that they might as well strike
because there was nothing to report from the
Company.3 We also note that in the interim following
the call to Respondent from the plant, the Union had
contacted the remaining members of the union
negotiating committee by telephone and
corroborated the fact that the strike had not yet
started, and had informed the Respondent's
representatives at the guest house of this fact.
Nevertheless, the Respondent would have no part in
further negotiations.
We conclude in these circumstances that the
Respondent's actions as a whole do not constitute
good-faith bargaining with desire to reach an
agreement, or qualify as mere "hard bargaining."`'
The Respondent's serious 8(a)(1) violations in
disregard of its employees' statutory rights while
going through the motions of bargaining,' its failure
to make concessions on important contract clauses
such as arbitration, checkoff, and strike liability
until the day before the strike deadline, and its
withdrawal of such concessions the next evening on
the mere assumption that the strike had started,
despite contrary information from responsible union
officials that it had not yet started and could still be
averted, we find amounts to bad-faith bargaining on
the part of Respondent in violation of Section 8(a)(5)
and (1).fi
Having found that the Respondent's failure to
bargain in good faith in violation of Section 8(a)(5)
and (1) precipitated the strike which began on
September 30, we also find that the strike was
caused by the Employer's unfair labor practices and
therefore became an unfair labor practice strike
x The call was attributed to managerial employee Diaz , who was
not called as a witness
3 This testimony was corroborated in detail by Deputy Sheriff
Simmons, who rode past the plant at regular intervals beginning
about 10 p in , when he saw no activity which attracted his
attention
' See N L R B v Herman Sausage Co , Inc ., 275 F.2d 229, 231
(C A 5)
' This activity by the Respondent is consistent with
679
rather than an economic strike as found by the Trial
Examiner. Thus these unfair labor practice strikers
were entitled to reinstatement upon their personal
application to return to work on November 1, 2, and
3. The Union, as it had a right to do, reserved the
right to litigate the unfair labor practice character of
the strike, and in the meantime agreed with the
Company that the strikers could be put back to work
according to the Respondent's needs and the
strikers' qualifications. This type of reinstatement,
suitable for economic strikers, was not appropriate
for unfair labor practice strikers. Accordingly, as to
those strikers not reinstated upon their personal
application to return to work, the Respondent has
violated Section 8(a)(3) of the Act.
The Trial Examiner also dismissed that portion of
the complaint which alleged a refusal to bargain
based on the Respondent's August 29, 1966, letter,
written in response to the Union's notice of
termination of the contract and desire to negotiate
an improved contract, withdrawing recognition and
stating that the Union no longer represented a
majority. Had the unfair labor practice strikers been
reinstated immediately, as was their right, the
assertion of lack of continued majority would
probably not have arisen. There can be no doubt,
however, that the reasons asserted by the
Respondent as indicative of the Union's alleged loss
of majority constitute an insufficient affirmative
showing with respect to majority status when viewed
in the context of the Respondent's unfair labor
practice violations which we have found herein.
Accordingly, we find that commencing on
August 29, 1966, and continuing to date, the
Respondent has refused to recognize and bargain
with the Union notwithstanding that the Union was
the duly designated exclusive collective-bargaining
representative of its employees, and has thereby
violated Section 8(a)(5) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices. we shall order it to
cease and desist therefrom and take certain
affirmative action to effectuate the policies of the
Act.
Having found that Respondent on August 29,
1966, and thereafter, violated Section 8(a)(5) and (1)
of the Act by withdrawing its recognition of the
Union as the exclusive representative of the
employees at the end of the contract term based
background evidence introduced by the General Counsel showing
marked opposition to the Union from the time of the election in
December 1964 and beyond the certification on May 3, 1965,
including threats to discharge union officers and disciplinary
layoffs of shop stewards for interceding in behalf of other
employees.
s See "M" System, Inc, 129 NLRB 527, 548, Texas Coca-Cola
Bottling Co, 146 NLRB 420, 431, Phodes-Holland Chevrolet Co,
146 NLRB 1304, 1316, Berger Polishing , Inc , 147 NLRB 21,36
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apparently on alleged loss of majority status in the
months following a strike which we find to be an
unfair labor practice strike, we shall order
Respondent to recognize, and upon request bargain
with, the Union as such representative, and in the
event an understanding is reached, embody such
understanding in a signed agreement. As we have
found that Respondent unlawfully refused to
reinstate its striking employees upon application, we
shall order the Respondent to offer to all strikers at
Respondent's Albemarle, North Carolina, plant, who
have not been reinstated, immediate and full
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, discharging,
if necessary, any replacements in order to provide
work for the strikers, including those who may have
subsequently been reinstated, and to reimburse
them, for any loss of earnings they may have
suffered by reason of the discrimination against
them, by'payment to each of a sum of money equal to
that which each normally would have earned as
wages during the period from their unconditional
request for reinstatement to Respondent's offer of
reinstatement, less the net earnings of each, to be
computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth
Company, 90 NLRB 289, with interest at 6 percent
per annum as provided in Isis Plumbing & Heating
Co., 138 NLRB 716.
CONCLUSIONS OF LAW
Paragraph 4 is deleted and the following
paragraphs are inserted:
4. All production and maintenance employees,
including plant clerical employees and local pickup
and delivery drivers at Respondent's Albemarle,
North Carolina, operation, excluding all professional
employees, techincal employees, office clerical
employees, watchmen and/or guards, over-the-road
truckdrivers, and all supervisors as defined in the
Act, constitute an appropriate unit for the purpose of
collective bargaining within the meaning of
Section 9(b) of the Act.
5. At all times since May 3, 1965, Textile Workers
Union of America, AFL-CIO, has been and now is
the exclusive representative of the employees in the
above appropriate unit , for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
6. By the totality of its conduct, culminating on
the evening of September 30, 1965, in the
withdrawal of previous bargaining offers,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the
Act.
7. By refusing to recognize and bargain
collectively since August 29, 1966, with the aforesaid
labor organization as the exclusive representative of
its employees in the appropriate unit , Respondent
has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(5) and
(1) of the Act.
8. The strike , which commenced on
September 30, 1965, resulted from Respondent's
unfair labor practices and hence was an unfair labor
practice strike.
9. By refusing immediate reinstatement to the
unfair labor practice strikers upon their uncon-
ditional request , Respondent has discriminated
in regard to their hire and tenure of employment,
thereby discouraging membership in the above labor
organization , and has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
10. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Collins & Aikman Corporation , Albemarle, North
Carolina, its agents , officers , successors, and
assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees and job
applicants as to their union activities, soliciting
employees to abandon a strike, and to withdraw from
the Union, threatening employees with economic
losses and inability to find work in the local area
because of union activities , and threatening plant
closure rather than sign a contract with the Union as
well as the futility of contract negotiations.
(b) Refusing , upon request, to bargain in good
faith with Textile Workers Union of America,
AFL-CIO, as the exclusive representative of the
employees in the certified unit : all production and
maintenance employees , including plant clerical
employees and local pickup and delivery drivers
at Respondent 's Albemarle, North Carolina,
operations , excluding all professional employees,
technical employees, office clerical employees,
watchmen and/or guards, over -the-road truckdrivers,
and all supervisors as defined in the Act.
(c) Discouraging membership in the above-named
Union, or in any other labor organization , by refusing
reinstatement to unfair labor practice strikers upon
their unconditional request, or by discriminating
against their employees in any other manner in
regard to their hire or tenure of employment or any
terms or conditions of their employment.
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which it
deemed necessary to effectuate the policies of the
Act:
(a) Upon request , bargain collectively in good
COLLINS & AIKMAN CORP.
faith with Textile Workers Union of America,
AFL-CIO, as the exclusive representative of all
production and maintenance employees of
Respondent at Albemarle, North Carolina, including
plant clerical employees and local pickup and
delivery drivers, but excluding professional
employees, technical employees, office clerical
employees, watchmen and/or guards, over-the-road
truckdrivers, and all supervisors as defined in the
Act, with respect to rates of pay, wages, hours of
employment, or other conditions of employment, and
if an understanding is reached, embody such
understanding in a signed agreement.
(b) Offer to the employees named in the attached
Appendix A, who have not been reinstated to their
former or substantially equivalent positions,
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges,
displacing, if necessary, all employees hired since
September 30,1965.
(c) Make whole the said employees in the manner
set forth in the section of this Decision entitled "The
Remedy," for any loss of pay they may have suffered
by reason of the Respondent's discrimination
against them.
(d) Preserve and, upon request, make available to
the Board, or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amounts of backpay due under the terms of this
Order.
(e) Post at its plant in Albemarle, North Carolina,
copies of the attached notice marked
"Appendix B."7 Copies of said notice, to be
furnished by the Regional Director for Region 11,
after being duly signed by Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for Region 11, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the amended
complaint be dismissed insofar as it alleges
violations of the Act other than those found herein.
APPENDIX A
Adkins, Winfred C. Efird, Larry Gene
Aldridge, Phillip Efird, Martha Gaye
' In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
Blakeley, William
Blalock, William
Bowers, Mickey
Brown, Henry
Burris, Harlan E.
Burris, Jimmy D.
Clark, Ray Von
Colely, Doyce L.
Earnhardt, Jimmy W.
Faggart, Daniel A.
Fesperman, Hoyle
Furr, Colon B.
Gainey, Ronald
Greene, Joel E.
Harris, Billy D.
Helms, Lonnie J.
Holt, Larry Ray
Hopkins, Alvin
Hopkins, Elmer
Knight, Raymond
Lambert, Gene
Lemmons, Edgar L.
Meeks, Hazel M.
Morton, Joel M.
Parnell, Bob
Presson, Lynwood
Spinks, Jimmy R.
Thompson, Lanny
Vanhoy, Hollie K.
Whitley, Edward R.
Almond J. D.
Bailey, Edna H.
Burleson, Ira Lee
Clark, Evelyn
Crawley, William
Dennis, James M.
Drye, Martin L.
681
Efird, William C.
Eudy, John E.
Eudy, Tim L.
Furr, Carl Jenkins, Jr.
Furr, Vernon C.
Garmon, Johnny M.
Hinson , Daniel C.
Howard, Ray F.
Howell, Phyllis
Isenhour, James W.
James, William H.
Jordon, Charles E.
Jordon, Tony M.
Krick, Charles E.
Lambert, Jewell
Lambert, Mack W.
Martin, Bobby Ray
Mason, Polly G.
Mauney, Richard
Misenheimer, George Bill
Misenheimer, Judy E.
Morgan, Douglas B.
Montgomery, Howard C.
Murray, George C.
Poplin, Barbara
Rinehardt, Pauline V.
Russell , Edith R.
Sellers, Artis B.
Talbert, Elmer Hamp
Talbert, James Douglas
Thompson, Billy
Thurman, Cassie L.
Vanhoy, Sherrill
Wagoner, Peggy
Watson, Katherine C.
Wilhoit, Marion P.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL bargain in good faith, upon request,
with Textile Workers Union of America,
AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described
below , in respect to rates of pay, wages, hours of
employment, or other conditions of
employment , and, if an understanding is
reached, embody it in a signed agreement. The
bargaining unit is:
All production and maintenance employ-
ees, including plant clerical employees
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and local pickup and delivery drivers at
our Albemarle, North Carolina, plant,
excluding all professional employees,
technical employees, office clerical
employees, watchmen and/or guards, over-
the-road truckdrivers, and all supervisors
as defined in the Act.
WE WILL NOT interrogate our employees or
job applicants as to their union activities and
memberships.
WE WILL NOT solicit employees to withdraw
from the Union or to abandon strike activity.
WE WILL NOT threaten our employees with
economic losses and inability to find work
because of their union activities, or with plant
removal, or refusal to sign a contract.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed in
Section 7 of the National Labor Relations Act.
WE WILL offer the employees listed in the
attached schedule i reinstatement to their
former or substantially equivalent positions, to
the extent that we have not already done so, and
WE WILL make them whole for any loss of pay
suffered by reason of the discrimination against
them.
All of our employees are free to become , remain,
or refrain from becoming or remaining , members of
Textile Workers Union of America , AFL-CIO. or
any other labor organization.
COLLINS& AIKMAN
CORPORATION
(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.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 1624 Wachovia Building, 310 North Main
Street, Winston-Salem, North Carolina 27101,
Telephone 723-2911, Extension 392.
' Such schedule shall contain all the names listed in Appendix
"A," above
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Trial Examiner : The unfair labor
practice charges and amended charges on which the
consolidated complaint herein is based were filed by the
Textile Workers Union of America , AFL-CIO, herein the
Union, on February 17, 1966 , and on May 31, 1966. The
individual charges in Case 11-CA-2978-1 through 46 were
filed on various dates in February, March, and April 1966.
The complaint was issued on June 1, 1966, against Collins
& Aikman Corporation, herein the Company or the
Respondent , alleging violation of Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended. The
Company filed an answer denying the commission of any
unfair labor practices. The parties were represented by
counsel and participated fully in the hearing before me.
The General Counsel filed a brief.
Upon the entire record in the case and from my
observation of witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
Respondent is now, and has been at all times material
herein, a corporation operating a plant in Albemarle,
North Carolina, engaged in the manufacture of textile and
related products. During the last 12 months, which period
of time is representative of all times material herein, the
Respondent manufactured, sold, and shipped goods
valued in excess of $50,000, to points and places directly
outside the State of North Carolina. I find that Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. I
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint , as amended , alleges that in numerous
instances certain supervisors of the Company unlawfully
interrogated, threatened, promised, and solicited
employees, and that supervisors also informed employees
the Company would not sign a contract and any contract
signed would give employees less or no increased
monetary benefits. It is further alleged the Company
refused to bargain in good faith with the Union, and
specifically that the Respondent showed bad faith in
unilaterally changing wage rates and working conditions in
the molding department, withdrawing, without good cause,
previously made agreements on workloads, voluntary
checkoffs , arbitration, pay inequities and wage reopening,
delayed in furnishing information on incentive pay, and
that the Company negotiated without any intention of
entering into a meaningful agreement. The complaint
further alleges that the strike starting on September 30,
1965, was an unfair labor strike, and that after the Union
made an unconditional offer to return employees, named
in the schedule A attachment to the complaint, the
Company refused such reinstatement. The complaint was
further amended at the hearing to include the allegation
that since August 29, 1966, the Company also refused to
bargain with the Union.
This record shows that in October 1964 the Union filed a
representation petition in Case 11-RC-2059. In December
1964, a consent election was held which the Union won,
and after considering the Respondent's objections to the
' The Company has four plants in its Automotive Division with
three of them located in North Carolina We are concerned here
with only the plant located at Albemarle
COLLINS & AIKMAN CORP. 683
election the Board certified the Union on May 3, 1965 2 On
June 7, 1965, the Union sent a letter to the Company
asking for information on seniority, wages, and incentive
rates. The first negotiating session was held on June 22,
1965, and thereafter some 18 to 20 negotiating sessions or
meetings between the parties were held. On October 30,
1965, a memorandum of agreement was reached between
the parties which ended the month-old strike, and on
November 15, 1965, an agreement or contract was signed
for a 1-year duration and retroactive from November 1,
1965.
Basically, the General Counsel contends that the
Respondent's' bad faith is readily apparent from the
record in this case, and outlines, in support of his
position, numerous reasons and arguments discussed
below and herein, which he contends was to disparage,
undermine, and destroy the Union. The General Counsel
also maintains that the Respondent's unfair labor
practices caused and prolonged the strike. The Company
initially maintains that the question of whether or not they
bargained in good faith was essentially put to rest by the
execution of the collective-bargaining agreement achieved
through the negotiations between the parties, and would
deem the strike starting on September 30, 1965, as an
economic strike 3
At the first negotiating meeting on June 22, 1965,4 the
Union presented their proposed contract. Prior to the start
of the negotiations the Union had filed with the Company a
number of employee grievances, and at this first meeting
there were also some discussions on these matters with
the Union proposing an interim grievance procedure.
At the second and third meetings on July 13 and 14 the
Company agreed to the installation of a temporary
grievance procedure. At these meetings the Union again
went over their proposed contract with the Company
requesting information, and the parties concluded with an
understanding that the next few meetings would be largely
devoted to discussions and the handling of grievances
which had been filed by employees in the first 4 months of
1965. The Union also renewed its request for the
information on piece rate jobs and average earnings.
The fourth meeting on July 21 was taken up wholly with
discussions on the grievances and the Company went over
each grievance in considerable detail. At the next meeting
on August 3 some time was first given to the various
grievances, and the Company then presented its proposed
contract. The Respondent's original proposed contract did
not contain clauses or provisions relating to checkoff,
arbitration, and workloads, but did contain a no-strike
clause and also a provision for unlimited financial liability
on the Union. At the meetings on August 3 and 4 the Union
made a wage proposal for an 8-percent across-the-board
increase for unit employees and a 2-percent increase for
"inequities."5 The Company then made their first wage
proposal and suggested a general wage increase of about
4-1/2 percent which had been previously installed in
Respondent's other plants in North Carolina. The Com-
pany indicated that such a wage increase would preclude
further economic considerations during the negotiations.
The Union replied that they would like to accept a 5-
percent general wage increase, but the Company would
have to leave the balance of the Union's wage proposal
open for further negotiations. At these meetings on
August 3 and 4 the parties also had discussions on
seniority, arbitration, and on checkoffs. The parties agreed
on a preamble clause, and reached a tentative agreement
on a recognition clause.
At the next negotiating session on August 12 the Union
again requested more information on job classifications,
and also raised other matters which the Union registered
complaints about.6 The parties then had further
discussions on wages and the Company stated that they
wanted to institute a wage increase and would make
another wage proposal at the next meeting. At this meeting
on August 12 the parties also had a discussion about some
88 people who had been challenged at the election, and
further talked about the major omissions in the
Respondent's proposed contract (no arbitration, checkoff,
and workload provisions or clauses). At the meeting the
Company presented to the Union a roster of employees by
departments and by job classifications, and with their
hiring dates, and this filled out the information given to the
Union on July 13 when the Company had presented an
alphabetical list of employees and their rates of pay.'
At the meeting on August 18 the Company instituted a
wage increase of about 4-1/2 percent covering several job
classifications where the Company felt there were
inequities, and this action was commensurate with the
June 28 increases previously given to employees in the
other North Carolina plants of the Company. This wage
increase at the Albemarle plant went into effect on
August 23, and the Union agreed to it. The Company also
informed the Union that by these increases they were not
precluding further discussions on wages, but that this was
about as far as the Company would be able to go. The
Company then sent a letter to the Union on August 23
further advising them of the wage increases at the
Albemarle plant (G.C. Exh. 21). At this meeting the
Company further discussed the 88 challenged voters in the
election, as aforestated, and as a result the parties were
able to reach agreements on a considerable number of
these employees and whether or not they should be
included or excluded from the unit. The Company's letter
to the Union dated August 19 shows the extent of these
agreements on the challenged voters (Resp. Exh. 3). The
Union's International representative, Scott Hoyman,
testified that at this meeting on August 18 he informed the
Company that the employees were concerned over the
2 The basic bargaining team for the Company was the
Respondent's director of personnel, Donald Burger, plant
personnel manager, Paul Cox, Riley, and Frederickson The basic
bargaining team for the Union was International Representative
Scott Hoyman, mine employee members, and Union
Representative Michael Botelho, who entered into the
negotiations after the initial meetings
' The appropriate unit involved consists of all production and
maintenance employees, including plant clerical employees and
local pickup and delivery drivers at the Respondent's Albemarle,
North Carolina, operations, excluding all professional employees,
technical employees, office clerical employees, watchmen and/or
guards, over-the-road truckdnvers and all supervisors as defined
in the Act
4 All dates mentioned are 1965 unless specified otherwise
5 Apparently some unit employees had dropped behind in their
wage scale, and the 2-percent proposal was to cover such
situations.
6 See G.C Exh 16
'On July 13 the Company had also given the Union a
description of their fringe benefits (holidays, vacation plan, He
and hospitalization plan) and on July 16 mailed to the Union a
brochure which described the Company' s pension plan
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lack of progress in the negotiations.8
At the negotiation session on September 1, the parties
reviewed all the proposals that both sides had made. At
this meeting, and the next one held on September 3, the
discussions mainly revolved around seniority and the
grievance procedure. There was a mutual agreement on
using departmental seniority and the parties agreed on
what constituted the various departments within the
Albemarle plant . There was also an agreement on large
segments of the grievance procedure-particularly on
steps 2, 3, and 4. Hoyman testified that at this meeting the
Union again informed the Company that the employees
were very distrubed over the delays, and that the
negotiations would have to be expedited.
On September 10 the parties discussed workloads, work
assignments , shift rotations, lunchbreaks, and fatigue
time. The Company detailed information on how it made
up or calculated workloads. The parties also discussed
incentive pay and the Company gave full details on their
incentive methods and the potential earnings on their
molding lines.9
At the September 15 meeting the parties again
discussed seniority and grievance procedures, and the
Company also submitted a redraft of all proposals that had
been agreed upon up to this time.10
On September 16 the Union presented their
counterproposal. In part it called for a 15-cent across-the-
board wage increase, $75,000 for inequities to certain
employees, 8 paid holidays instead of 6, a vacation plan
going to 3 weeks after 10 years' service, jury duty pay,
improvements in insurance payments by employees, and
full settlements on grievances. The Company indicated
that the Union's economic proposals were far above
anything they could consider, but that they would
nevertheless look over the counterproposal and see if
there was any area they might consider. The Company
pointed out that they had a superior fringe benefit plan in
effect, and that the Union was attempting to divorce the
Albemarle plant from the basic textile industry and trying
to link it to the automotive industry. At this time there was
no change in the Respondent's position on arbitration,
checkoffs, and their no-strike clause."
At the negotiation session on September 24 the
Company stated that they could not grant any general
wage increases, but indicated that something might be
done on the proposal relating to inequities. At this meeting
the Union also suggested a "fall-back" rate to employees
on the mold line, and the Company supplied the Union
with a proposal on workloads and work assignments.
On September 28 the parties again reviewed the various
economic proposals, and the Company indicated a
willingness to pay $15,000 for the elimination or
adjustments of the inequities in pay to certain employees.
The Company also informed the Union that they would
8 By letter dated August 27 the Union advised the Company
that the parties should meet and bargain on any further changes
in rates and workloads. Hoymen testified that by August 30 he
had received reports of unilateral changes, the tightening up of
rest periods and smoking areas , and that the employees wanted to
strike at this time Hoyman stated he then informed the
employees that the parties needed another month of negotiations
to reach the basic issues involved
8 Incentive pay only existed in the molding department and
there were no other incentives in the Albemarle plant.
10 Agreements or understandings reached at this time included
the following the recognition clause, bulletin boards, the wage
agreement put into effect on August 23, call -in and report-in pay
take a "hard look" as to the possibility of including an
arbitration clause in their proposed agreement. Chief
negotiator and director of personnel for the Company,
Donald Burger, testified that in this general period of time
the September 30 strike deadline was fast approaching
and that the strike talk was rampant in the plant. Burger
stated that the Union had informed the Company at the
beginning of September that it had imposed a strike
deadline, and that the parties would have to reach an
agreement by September 30.
At the session on September 29 the Company changed
its previous positions with regard to arbitration, checkoffs,
and its no-strike clause. The Company informed the Union
that if they would agree to a suitable management clause
the Company would offer arbitration. The Company
agreed to a voluntary and revocable checkoff procedure,
and the Company further indicated that they could revise
their proposal on the no-strike clause to provide some
method whereby the Union could be relieved of potential
liability in event of a strike. The Company again offered
$15,000 for the adjustments of inequities, and also offered
a wage-reopener provision effective in June 1966,
conditioned upon the amount of wages then being paid in
the textile industry. The Company indicated that they
would also consider higher fallback rates on incentive
work, and that they would consider a clause on protective
clothing, workloads, and on seniority. The Union then
informed the Company their proposals were entirely
unacceptable, and the Union countered with a proposal
calling for $75,000 for inequities and a 3-year contract with
wage increases to be spread throughout the contract term.
On September 30 the Company withdrew its proposal
on payment of inequities as it would not cover the entire
bargaining unit, and in lieu thereof offered to make its
August wage increases, as aforestated, retroactive to
June 28. The Company informed the Union that this action
would amount to more than the $15,000 it had offered for
the adjustments of inequities, and also told the Union that
they would include a wage-reopener clause on June 1,
1966, regardless of the general wage picture in the textile
industry. The Union stated that the above was
unsatisfactory. The Company then countered and offered
both the $15,000 in inequities and the retroactive pay
proposals, and also offered protective clothing for
employees as the Union had requested and further
informed the Union that it would again take into
consideration some improvement in the fallback rates
(incentive pay) for mold line employees. Furthermore, the
Company made it clear that its other offers made on
September 29 were still standing. The negotiating team for
the Union-including the negotiating employees'
committee, herein the committee-then caucused before
informing the Company "that its going to take more money
to set up this agreement." The Company then informed
language, incentive earnings to be computed on a daily shift basis,
fatigue allowances (breaks and lunchtime), supervisory people not
to displace employees, discipline and discharge , grievance
procedures (steps 2, 3, and 4), seniority (that such list be brought
up to date every 6 months-seniority on transfers to a new
department-and seniority of laid-off employees), leaves of
absence, health and safety, union representatives ' access to the
plant, and agreement that there should be no discrimination by
the Company because of race, color, creed, and sex.
11 On September 22 the Company sent a letter to its employees
outlining certain aspects in the bargaining between the parties
and right of employees in the event of a strike (G.C. Exh. 29)
COLLINS & AIKMAN CORP.
the Union that it could not make any additional offers.
A. Additional Events on September 30
Union Representative Hoyman testified that during the
conclusion of the negotiating meeting on September 30,
the Union advised the Company that it wanted the
Respondent's final offer in writing so that it could be
submitted to the membership on the following Sunday,
and that the union negotiators and the committee would be
kept together for the balance of the day at the nearby
Sunset Motel. Hoyman stated that Burger replied he would
"get off" a paper outlining the Respondent's offers.
Hoyman also testified that he and the other people on the
negotiating team for the Union then returned to the motel
and waited for the Respondent's written proposals, and
during the afternoon Burger was contacted over the
telephone about this matter , and stated that Burger then
informed the Union he would be unable to reduce the
Respondent's offers to writing on September 30, but might
be able to do so by the next day. Hoyman also stated that
Burger was informed that the Union needed the
Respondent's proposals in writing for a meeting that night
and in order to keep the employees in the plant . President
of the union local , Charles Krick, testified that at the
negotiating meeting on September 30 the Company was
informed that their final offers were "totally
unsatisfactory," but the door was "left open" for the Union
by asking that these proposals be put in writing. Krick
then admitted that on September 30, the Union left the
impression that the offers by the Company were "flatly
rejected," and at this meeting never indicated to the
Company that the Union would recommend their final
offers to anyone. Krick also admitted that on
September 30, the Company was told by their chief
negotiator that the Union had to have more money.
Burger testified that at the conclusion of negotiating
meeting on September 30 he was again told there was a
strike deadline at midnight. Burger stated that on the
afternoon of September 30 he received a telephone call
from the Union, and was then asked for the first time to
put down in writing the final offers by the Company.
Burger testified he then informed the Union that he did not
see what good this would do since the Union had rejected
the last offers by the Company, that it would take some
time to do this, but possibly he could have something on it
by the next day. Burger also stated that about 6:30 p.m. on
this same day the Union again called him and asked for his
final proposals in writing , and he informed the Union that
he would put the same in writing and might be able to have
it by tomorrow or on the next day thereafter. Paul Cox, in
his appearances as a witness , corroborated the above
testimony by Burger.
B. Events at the Company Guest House on the Evening of
September 30
This record shows that on the evening of September 30
Federal Mediator Roseberry who had entered the
negotiations, and two members of the employees' union
negotiating committee, Charles Krick and Lynwood
Presson, went to the guest house of the Company. Krick
and Presson testified that they left the motel for the guest
house at or about 9:45 p.m.12 Presson testified that their
685
mission was to get the written proposals of the Company in
order to avert the pending strike. Presson stated that upon
arrival he informed Burger that money was by no means
the biggest issue in the negotiations . Presson also testified
that after they had been at the guest house for about 15 or
20 minutes, Michael Frisch, the Respondent's General
Manager of the Automotive Division, drove up to the house
and after inquiring as to what Presson, Krick, and
Roseberry were doing there, told them "they had every
damned thing they wanted, but they hadn't got nothing
now." Hoyman testified that he and Union Negotiator and
Representative Botelho had waited at the motel for about
45 minutes and then they also decided to go to the
Company's guest house . Hoyman stated that Botelho
informed Frisch that he had come to seek a further
meeting and that the Union had not received the
Respondent' s written proposals. Hoyman testified that
Frisch then replied, "What paper-that paper is out the
window," and that Frisch also stated, "If you want a strike
you can have it, this money will be used up in a strike, and
as far as we're concerned, we're withdrawing our offers."
Hoyman further testified that Frisch then told him he had
been advised by Krick and Presson that settlement could
be reached without any money and Hoyman stated he then
replied, "it will take money." Hoyman also testified he
informed Frisch that the Union could arrange a negotiating
session and get the third shift into the plant and then take
the company proposals to the membership on October 3.
Presson testified that, beforehand, Krick had used the
telephone in the guest house to call the remainder of the
Union's employees negotiating committee waiting at the
motel to "make sure" the committee was waiting until
they heard from the union representatives at the guest
house. Krick testified that about 10:45 or 10:50 the
Respondent's personnel manager at the Albemarle plant,
Paul Cox, and who also was at the guest house, told the
gathering that there was a strike on. Krick stated he
then called the motel again and was assured by the
committee that there was not any strike activity, and he
then told Cox and Burger, "There are people congregating
around on the lot, but there is no strike at this time." Krick
further related that he and Presson left the guest house
and went to a lot close by the plant entrance-which they
had rented in case of a strike-and that they arrived there
about 10 minutes after 11 p.m. Krick stated that people
gathered there inquired as to what was going on, and he
replied the Company had refused to give the Union their
proposals on paper so that they might as well go ahead
with the strike, and that this was actually the official
beginning of the strike.
Burger testified that when Hoyman and Botelho arrived
at the guest house, Botelho stated that the Union had to
have $75,000 for inequities , and Hoyman told them that it
would take more money. Burger stated that about 10 p.m.
they received a telephone call from the plant to the effect
that pickets were in front of the plant and the plant was
struck, and at this time Frisch told Botelho that the
company offers of September 29 and 30 had been
withdrawn. Frisch testified he arrived at the guest house
about 9 p. m. and at this time there was a general discus-
sion on what could be done to avert a strike. Frisch also
stated that about 9:30 p.m. Botelho and Hoyman arrived
and they informed him the Union had to have money to
settle the dispute. Frisch further related that about 10 p.m.
12 The guest house is a relatively short distance from the
Sunset Motel and from the Albemarle plant
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cox told those assembled at the guest house that the
picket lines were up, and he then informed Botelho it was
pointless to talk about another negotiating meeting, that
the "matters on the table were no longer there, that we
would have to reposition ourselves." Paul Cox testified
that Burger told Krick at the guest house he could not see
what good it would do to talk further with negotiating
committee for the Union since the committee had already
rejected the Respondent's final offers that morning. Cox
also stated that Botelho told them it would take $75,000
for inequities. 13
C. Further Events on the Night of September 30 Following
the Guest House Incident
Hoyman testified he thought the picketing began at
11 p.m. and that the strike prevented the 11 and
11:30 p.m. shifts from going into the plant. Deputy Sheriff
Ardell Simmons testified that in driving past the plant
around 10 p.m. on September 30 he did not see anything
which attracted his attention. In 15 minutes or so after
10 p.m. Simmons again went by the plant and testified that
at this time he saw four or five people, and about 25 or 30
cars were parked alongside the road leading to the plant
and waiting to get into the nearby vacant lot. Simmons
stated that on his next trip pass the plant about 10:40 p.m.
there were some 50 to 75 persons gathered, and there were
men along the edge of the road hollering at cars going by,
and upon being asked if the employees were striking the
employees replied, "no, not officially." Simmons further
related that about 11 or 11:10 p.m. he heard Krick tell
some of the gathered crowd that the "company didn't sign
no contract and he guessed the strike would be official."
James Burris testified for the General Counsel that on the
night of September 30 he arrived at the plant about
10:30 p.m., and that while there were 30 to 40 people on
the nearby lot he did not see any picket signs, and the
picket signs were not put up until about 6 a.m. the next
morning. W. C. Adkins testified that when he arrived at
the plant at 11:30 p.m. no one was blocking the plant
entrance road and he did not see any picket signs.
John Reilly, testifying for the Company, stated that
around 9:45 p.m. on September 30 he observed a large
gathering of people (between 60 to 80) walking around in a
circle at a slow pace, and he then got in contact with the
plant manager and department heads as he thought the
strike had started. Roy Lomp testified that about 10 p.m.
he received a telephone call at the guest house from Ed
Diaz, the Respondent's director of management
recruitment, and was told by Diaz the picket line had gone
up and he then so informed Cox. Albert Wolpin stated that
after Cox informed the group that the picket line was up he
left the guest house and went to the vicinity of the plant.
Wolpin stated that there were about 75 persons gathered
at the intersection of Betheney Road and the road going
into the plant and 20 or 30 of them walking in a circle.
Wolpin further testified that upon returning to the guest
house he and others in management decided to go to the
plant and did so in a caravan of cars. Robert Hoerter, the
division comptroller for the Company, testified he was in
the lead car of the caravan and he observed many people
at the entrance to the plant road and that there were
pickets circling in the roadway. Hoerter also stated that
13 The Company also presented some evidence through John
Reilly and Cox to the effect that on the afternoon of September 30
they had noticed people putting up stakes and a rope around a
nearby vacant lot After the strike started this lot was used as
his car was stopped and was "rocked," but then the crowd
recognized the caravan as officials of the Company and
they went into the plant. Paul Cox, who was also in the
caravan, testified he observed people across the road as
they were going into the plant, but did not see any picket
signs. Rudolph Long stated that someone called him at his
home about 9:45 on September 30 and told him not to
report to work as the strike was on. Long testified that,
nevertheless, he went to the plant and when he arrived
about 10:20 p.m. there was a big crowd of people standing
in front of the road. Woodrow Almond stated that when he
reached the plant at 10:35 p.m. he observed "masses" of
people on the road, and that he was surrounded by them.
D. Negotiations and 1. -ppenings Subsequent to the
September 30 strike
At the negotiating session on October 9 Burger offered
the Union the agreement as it stood on September 15. The
Union replied that if the Company would reinstitute their
proposed contract of September 30 the Union would
recommend this proposal to their membership. At the
meeting on October 13 the Company again referred to
their September 15 proposal. Subsequently, however,
Burger and Botelho drew up the memorandum of
agreement, and, as aforestated, a contract was signed on
November 15,14 after approval at a union membership
meeting on October 30, and which ended the strike.
This record shows that the day after the strike
terminated Hoyman and Cox also reached an agreement
on the procedures to be followed in putting the strikers
back to work. This agreement provided that during the 6
weeks to follow the Company would put people back to
work according to its needs and their qualifications, and at
the end of the 6 weeks the Company would supply the
Union with the names of people who had not been put back
to work and the reasons therefor. It also provided that at
the end of the 6-week period there would be a 10-day
period within which such persons could notify the
Company they were still available, and those so notifying
the Company would be given first consideration as their
qualifications would permit.'5 The Company, with no
objections from the Union, also asked the strikers to
immediately start registering with them as to whether or
not they wanted to return, and accordingly registrations
were so held on November 1, 2, and 3. Cox testified that
during the 6 weeks following the termination of the strike
the Company put back to work about 200 employees in
accordance with its needs and based on their particular
qualifications for the specific job to be filled. Cox further
stated that at the end of the 6-week period as set forth in
General Counsel's Exhibit 43, he furnished the Union with
a listing of employees who had not been recalled, and at a
meeting on December 14 informed the Union that the
reason these strikers had not been rehired was because
the Company did not have work available for them. Insofar
as the 10-day grace period following the 6-week period is
concerned, Cox told Hoyman on December 14 that the
Company would recognize such notifications, and
subsequently the Company received about 65 such notices
or applications (G.C. Exh. 46). Cox testified that the
Company also fulfilled this provision of the agreement.
Another document agreed to between the parties on
union headquarters.
1"G C Exh 41
15 G C Exh 43
COLLINS & AIKMAN CORP.
October 30 dealt with persons engaged in violence during
the strike. The document provided that within 3 weeks
from October 30 the Company would inform the Union of
the names of such employees, and the reasons why they
should be refused jobs or disciplined because of violence
or threats of violence (G.C. Exh. 42). Cox stated that the
Company also complied with this agreement.
E. The 8(a)(1) Allegations and Findings
The credited evidence in this record shows the
following: A week or so before the strike on September 30,
Foreman Robert Holt told Lynwood Presson "you boys are
fighting a losing battle. You won't ever get a contract
because the Company won't sign ." On the same occasion
Foreman Olin Griffin told Presson, "if you did strike, the
Company will starve you out so that yQu'll lose your
homes, your cars, your furniture, and everything else that
you owe money for." Foreman Holt and Griffin also told
Presson that if the employees did get a contract it would
not do any good because the Company would pack up and
move. A week before the strike Foreman Holt told
employee James Isenhour "we weren't going to get a
contract," and that the Company would "pack up and
leave" before they would give the employees a contract.
Holt also told Isenhour that if the employees in the
Albemarle plant received a contract the employees in the
other plants of the Company would also want the same
benefits. Holt further inquired if Isenhour would support a
strike by the Union, told Isenhour that he would lose his
car, home, and that his family would "starve to death,"
and further stated that the Company would move to
Marion before they would sign a contract. About a week
after the strike started Foreman Holt called Isenhour and
wanted to talk to him about coming back to work.
On September 18 Foreman Herrin inquired of Walter
Thompson, who was on the employees' negotiating
committee, as to the progress of the contract negotiations,
and then told Thompson, "Well you're not going to get
one. The Company has done told me so." Herrin also told
Thompson that he was too old to "get mixed" up in the
Union, and further stated, "The Company will have every
committeeman, shop's steward's name over every
company in town and you cannot get a job." Herrin then
asked Thompson if he was trying to bargain the Company
out of business. Employee Lamar Eudy was also present at
the time of the above conversation between Thompson and
Foreman Herrin. A week before the strike Foreman Roy
Mason inquired of Elmer Talbert whether he and the other
employees were going to strike. Three or four weeks
before the strike Foreman Phil Weatherby inquired of
Tony Frick as to whether or not he was going to strike, and
then further stated that the Company knew all the people
who had signed cards for the Union and who the officers
were. Weatherby also informed Frick that he had written
out forms so that the employees could get their union
cards back, and asked Frick to send in such a form so that
his card would be returned (see G.C. Exh. 33). Weatherby
told Frick that he had written up copies of General
Counsel's Exhibit 33 for other employees to use. Mack
Lambert was contacted by Foreman Griffin during the
strike and was asked if he was coming back to work, and
Griffin then stated "Well, you just as well to come back
because the Union was as near in as it would ever be." A
few weeks before the strike Foreman Almond inquired of
employee Jim Burris how the negotiations were
16 In addition to the above the General Counsel also placed into
this record a few instances of background testimony to support
687
going-Burris was also on the employees' negotiating
committee-and after Burris told Almond that money was
not the main issue, Almond replied, "you're not going to
get any money." During the strike Foreman Jerry Maiden
asked Roger Bunting when he was coming back to work.
During the strike Foreman Tom Fretina inquired of
William Bowers as to why he was striking, and then told
Bowers, "If you don't come back chances are you won't
ever get a chance for a better job." Fretina also informed
Bowers that the Union was losing the strike. Prior to the
strike Foreman Griffin asked Frank Cranford if he was
going out on strike. During the strike Foreman Burbank
inquired of Brice Witley if he did not want to give up the
strike and return to work.
On about September 27 Gay Efird applied for a job at
the Company and in so doing Paul Cox inquired, off the
record, if she would join the Union. Mrs. Efird replied that
she had already done so. A few days before the strike
Foreman Shelley Bowers told Donald McGhee that if he
went on strike he would not be able to secure employment
because the Company had distributed a list of people who
were connected or who had anything to do with the Union.
A few days after the strike started Foreman Herrin told
McGhee that he would not be driving his car very much,
and then stated, "The Union wasn't going to make the
payments or buy the groceries, or make payments like
that," and he said when my children get hungry that "I'd
wake up and see the light and come back to work."
Clifford Smith had some previous discussions with
Foreman Maultsby about the possible purchase of a
carpet, and on the afternoon or night of the strike
Maultsby told Smith that if he was at work on the next day
Maultsby would give him the carpet. Smith then informed
Maultsby that he would not cross the picket line. A few
days before the strike Foreman Herrin told Floyd Efird
that he might as well come back to the Company because
every place in the county would know about Efird being
involved with the Union. A week after the strike started,
Foreman Herrin told Jim Morgan that if he ever returned
to work he would find "things" different, and also told
Morgan that the strikers would not be able to get a job and
that they would have to go out of the county to get
employment. During the strike Foreman Herrin informed
Robert Litaken that if a contract was signed the employees
would get less wages than they received before the strike,
and that the employees would have to get employment
outside the county. On the morning of September 30,
before the strike, Foreman Burbank inquired of Lonnie
Helms if the men would work in event of a strike, and then
told Helms and Colon Furr that if anyone harmed or
threatened his family he would get his gun and kill "one"
of them. During the strike Foreman Burbank and Foreman
Hatchock inquired of Douglas Burkson if he was coming
back to work. During the strike Foreman Kay Mason and
Foreman Joe Morgan would call Carl Efird and ask how he
was getting along, and on the first call Mason told Efird
that he might lose his job and that he wanted Efird to
return to his job. On the next two calls Mason informed
Efird that the Company was going to replace him. On one
occasion Foreman Morgan told Efird that it would be hard
to get a job and that his job was open anytime he wanted it
back. Before the strike started on the night of
September 30, Foreman W. Lapiere told Hoyle Festerman
that if he went on strike Festerman would not have a job
when it was over.16
his 8 (a)(1) evidence The cutoff date in which unfair labor
violations may be found in this case is August 17, 1965.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing instances that have been credibly
attributed to the Respondent include unlawful
interrogations into union activities and memberships,
interrogating a job applicant as to union membership,
soliciting employees to withdraw from the Union, soliciting
individual employees to abandon the strike, threatening
employees with reprisals because of their union activities,
threatening employees that they would be unable to secure
jobs, threatening to kill any striker, threatening to move
the plant, threatening employees that they would not be
rehired, statements that the Respondent would not sign a
contract, and informing employees that a contract would
give them less pay or no increased monetary benefits than
they had received before the strike. This conduct on the
part of the Respondent constitutes violations of Section
8(a)(1) of the Act, and I so find.
Final Conclusions
In evaluating the totality of the Respondent's conduct to
ascertain whether or not the Company bargained in good
faith, I think it initially important to emphasize several
factors. As aforestated, the Company met with the Union
in at least 18 negotiating sessions, and had several other
side meetings or conferences with the Union. As I have
pointed out the Company also submitted numerous
counterproposals, changed its original positions on
different occasions, discussed at length the Union's
various proposals, and where the Company remained
adamant on an issue gave the reasons for its position in
considerable detail. This record further shows that by
September 15 the parties had reached complete or partial
agreements on about 15 different subject matters. By the
end of September the Company had further changed its
previous positions on arbitration, its no-strike clause,
checkoffs, and in its original wage proposals, as previously
set forth herein. The Company thereby demonstrated a
continual and flexible position, and did not remain
adamant on highly important proposals to both parties.
Moreover, the parties were ultimately able to reach a
contract effective November 1 and were also able to work
out certain agreements as to how the employees would be
called back to work. The Board prescribes no timetable
for negotiators, nor does it lay down any rules as to
required substance or content of agreements. With this
general format I will turn now to the specific 8(a)(5)
allegations in the complaint.
The complaint alleges that since August 17 the
Company refused to bargain in good faith in that it
unilaterally changed wage rates and working conditions in
the molding department at their Albemarle plant. In this
respect the General Counsel generally relies on the
testimony of Hoyman and Presson to the effect that the
lines in the molding department were being speeded up
and that workloads were being increased. Hoyman stated
that he advised the Company on August 18 that this was a
dangerous situation and requested the Company to
bargain on any such changes. Presson stated that the
parties discussed these changes in their bargaining
sessions, and that the piece rate was changed when the
mold line was speeded up. Presson further testified that
during the negotiations a mechanic was taken off work in
the fabrication department and that prior thereto there
had always been two men. Presson admitted that this
matter had been brought up in negotiating sessions, but
testified that the Company was never able to give a
satisfactory answer. Burger testified that whenever there
were changes forthcoming in the molding department the
Company would, ahead of time, contact Charles Krick,
president of the union local and give him the information.
Burger also stated that there were some routine changes
made from time to time, and that the employees or the
Union could also use the grievance procedure which was
available. Cox testified that during the negotiations there
was a discussion about the mold line and the increase in
the rate from $1.75 to $1.80 an hour. Cox stated that he and
Foreman Maultsby talked with Charles Krick about it. In
my analysis of this allegation it appears clear to me that
the Company adequately explained these circumstances
and changes to the Union on several occasions during the
negotiations with extensive discussions between the
parties, and there is also adequate evidence that these
minor changes were made necessary in the usual, and
more or less routine, operation of the plant. Hoyman even
admitted in his testimony that there were 3 or 4 months
in the year when the plant was "cleaning up" on new
floormat styles and the mold lines were then speeded up.
Krick, president of the Local, admitted that Foreman
Maultsby informed him of a change on the mold line, but
then ventured that the change was made before he could
notify the Union. Krick was also a member of the
employees' negotiating committee, as aforestated.
The complaint alleges that since August 17 the
Company refused to bargain in that it had unreasonably
delayed furnishing to the Union information concerning
the wage rates, wage structure, and incentive pay in the
molding department. The General Counsel maintains that
as late as September 24 the Union was unable to make its
proposal on wages because they did not have the
necessary data which they had requested in June.
However, Hoyman testified that at the session on
September 10 or 15 the Company described the three
different methods of pay for employees on the mold line,
and admitted that on September 21 the Union received the
actual piece rate incentive earnings for mold line
operators. Hoyman further testified that prior to August 3
he advised the Company that the Union would not make a
wage proposal in advance of getting the economic
information he had requested, and then Hoyman stated,
"and which we were gradually getting at." In the first
instance it is noted that the Company as early as July 13
provided the Union with an alphabetical listing of
employees and their rates of pay, and also gave the Union
a description of their fringe benefits. On August 12 the
Company gave the Union a roster of employees by
departments and by job classifications, and admittedly by
September 24 the Union received the piece rate incentive
earnings that had been previously requested. This record
further shows that the matter of wage discussions between
the parties was not of immediate importance in the initial
phases of the negotiations as reflected in Hoyman's
testimony, and that the parties had numerous other
matters to discuss prior to their wage talks. Based on the
employee rosters and rates of pay provided the Union as
early as July 13, the subsequent discussion on
September 10 as to the method of pay in the molding
department, and upon the other factors herein mentioned,
there is no real basis in the record which will adequately
sustain this allegation in the complaint.
The complaint alleges that since August 17 the
Company refused to bargain in that it withdrew without
good cause or proper explanation previously made
agreements on workload clauses, voluntary checkoffs,
arbitration, pay inequities, and wage reopening. While the
COLLINS & AIKMAN CORP.
General Counsel does not specifically discuss this
allegation in his brief it must be assumed that he relies on
the events at the guest house on the night of September 30
for proof thereof. As noted earlier herein, the Company
made numerous concessions and changes in its positions
on the above clauses or matters at the negotiating sessions
on September 29 and 30. However, the Union terminated
the meeting on September 30 by informing Burger that the
Respondent's final proposals were completely
unacceptable, and by this time the Company had also
received numerous prior announcements and warnings,
through the Union, that unless a contract was reached by
the end of September there would be a strike. On the
evening of September 30 the parties gathered at the guest
house, and after some aspects of the negotiations and the
possibility of another meeting had been reviewed or
discussed, the Company then received word from the
plant that the strike was on. The credited testimony in this
record shows that after General Manager Frick was so
advised he informed the union negotiators that the final
company offers were withdrawn. There is a good deal of
emphasis in the testimony as to the time elements here
involved, and at what time the various parties arrived at
the guest house on the night of September 30, as
aforestated, but for the purposes here it is crystal clear
that the Union had made extensive prior preparations for
the strike, and it is also clear that by 10 p.m., or
thereabouts, there was sufficient activity and people
gathered on the road or lot for the reasonable assumption
by Ed Diaz that the strike had started. This is also
indicated from the admitted fact that Krick had to place
two calls from the guest house to the Sunset Motel where
the remainder of the employees' negotiating committee
was assembled, and from the fact that by 10:15 p.m. there
were 25 to 30 cars parked alongside the road leading to the
plant waiting to get into the lot used as union
headquarters. It appears obvious to me that the Company
revoked their final contract proposals on the night of
September 30 because it became readily apparent that
their proposals and negotiations could not avert the strike.
In addition, there is also interwoven into this allegation the
contention by the General Counsel that there was a failure
of the Company to reduce its final proposals to writing.
While there is, no specific allegation in the complaint
which alleges such conduct as indicative of bad-faith
bargaining, it was, nevertheless, fully litigated before me,
and I will therefore make a brief analysis. The credited
evidence shows that Burger was not requested to put his
final offers in writing-made on September 29 and
30-until about 3 or 3:30 p.m. on September 30. Burger
replied that he did not see what good this would do as the
Union had completely rejected his final offers at the
negotiating session that morning, but nevertheless, agreed
to put them in writing but informed the Union that it would
take a day or more to do so. It appears to me that under the
circumstances Burger was perfectly justified in taking this
position. The Union admittedly informed Burger that his
final offers were totally unsatisfactory; admittedly the
Union left the impression that the Respondent's proposals
were flatly rejected, and admittedly the Union never
indicated that they would recommend the Respondent's
proposals to anyone. Therefore, Burger had ample reasons
and grounds to reasonably assume that placing his final
offers in writing would be of no help, yet, in the final
it The Union informed their people that it was necessary to
register their willingness to return to work
689
anaylsis, he did agree to do so, but needed extra time in
order to comply with the request. Furthermore, it is also
admitted by the Union that most of the bargaining had
been previously done on an oral basis. The Union
maintains that the written company proposals were
necessary in order to present them to its membership on
the following Sunday. In this respect it is pointed out that
in 1965 September 30 fell on Thursday, so the Union
actually had a grace of 2 days before their membership
meeting , and by Sunday Burger would have had sufficient
time to comply. There is insufficient evidence in this
record to adequately sustain the allegation that the
Company withdrew its final offers without good cause and
likewise, no sufficient basis to show bad faith by the
Respondent's inability to have its final proposals reduced
to writing within the time limitations noted above.
The -matters thus far discussed are the only specific
allegations in the complaint bearing directly on the 8(a)(5)
aspect of this case. However, as aforestated, there is also a
good deal of testimony in this record bearing on the overall
conduct of the Company subsequent to the ending of the
strike on October 30. While it is not entirely clear as to the
exact purpose of this testimony, the Respondent's entire
course of conduct must be taken into consideration, and,
therefore, at this time I think it essential to briefly discuss
and consider these aspects in relation to the total 8(a)(5)
picture and bearings on subsequent issues and findings
herein. In the first instant it is noted that on October 30
the Union and the Company agreed in writing, as
aforestated, on the procedure to be followed in putting
employees back to work because of the strike and
pursuant thereto, in agreement with the Union, the
Company then requested that striking employees register
for purposes of ascertaining their availability." In
accordance with company needs, as specified in the
agreement, about 200 employees were returned to work.
Also at the end of 6 weeks, again pursuant to the written
agreement made on October 30,18 the Company furnished
the Union with the names of employees who had not been
recalled, and orally stated their reasons. In addition, the
agreement called for a 10-day grace period following the 6-
week interval, as aforestated. This record shows that
about 65 employees filed notifications with the Company
in the 10-day grace period, and as the Company received
such notifications a departmental list was compiled and as
jobs opened up the plant personnel manager would check
this list to see if any person on it had qualifications to fill
that particular job. Pursuant thereto, approximately 14
persons were rehired, and the Company is still operating
from this list. The other written agreement between the
parties made on October 30 and also coupled to the main
collective-bargaining contract dealt with persons accused
of engaging in violence during the strike, as previously
noted herein. At a meeting on November 22 the Company
supplied the Union with a list of such employees pursuant
to their agreement, and admittedly explained to the Union
what misconduct these individual employees had been
charged with. The Union made notes on each one, and the
Company maintained that the people on this list, because
of evidence on their misconduct, warranted discharge.
Hoyman testified that after the meeting on November 22
the Union then interviewed such employees and
concluded that much of the misconduct these employees
had been accused of was incorrect, and that he
18 This agreement was attached to the main collective-
bargaining contract between the parties.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordingly informed the Company that some of them
could not be discharged . For purposes in this stage of my
Decision I think it sufficient to merely note here that the
Company substantially complied with both of the
agreements in question . As to the recalls , the credited
evidence shows that the Company did not deal individually
or unilaterally with the employees except upon and after
specific knowledge and authorization from the Union. The
Union , beforehand , was given an opportunity to register
any objections and to bargain or negotiate with the
Company. It had no objections and the parties then
reached the agreement , and the Company duly recognized
and carried out its main responsibilities in fulfillment of
this agreement. The Company also supplied the Union
with the list of employees it had accused of violence and
stated the individual reasons on which they based such
determinations , and this is all the agreement called for.
The Company maintained they had sufficient evidence on
each for discharge , and the Union maintained that there
were insufficient reasons on at least some of the strikers.
Again , the Union was given full opportunity to bargain and
negotiate over the matter after the agreement was reached
and after receiving the Respondent 's list and reasons.
However , subsequent to their own investigation the Union
merely concluded that some of the Respondent 's reasons
were insufficient . I submit that upon the basis of both
these agreements and'the events that followed there is
insufficient evidence to adequately show that the
Company was not bargaining in good faith.
In other attempts to show bad faith the General Counsel
also relies to some extent on his testimony that the
Company insisted on a strict no-strike union liability
clause while rejecting arbitration . It appears to me that
this argument is largely disposed of by merely pointing out
that on September 29 the Company changed its position in
respect to such proposals , and Hoyman admitted the same
in his own testimony . The original proposal by the
Company,19 and the clause contained therein on union
liability, provided that the Union would be liable to its full
resources if it directly or indirectly authorized any strike,
walkout , or other such activity . However , in the signed or
executed contract between the parties, and on which the
General Counsel also relies , the Union is given the right to
strike under certain conditions and notifications following
the failure to satisfactorily settle grievances , and it is also
provided , in the executed contract , that if the Union does
not authorize a strike, lockout , or other concerted activity,
then the Union shall not be in any respect liable for such
violations . The Union is held liable only for strikes and
walkouts it directly or indirectly authorizes . Furthermore,
in the executed contract between the parties the Company
is also held liable if it directly or indirectly violates any
provisions of article IX. From this record it is clear that the
above changes in the Respondent ' s original proposals
were contemplated by the Company on September 29 and
30 when they openly announced to the Union that they
were changing their former positions on these proposals.
We now can see that in the final analysis the Company
changed its original position and permitted the Union to
strike upon the unsatisfactory settlement of a grievance,
and that the two factors relied upon by the General
Counsel to show bad faith-a no-strike clause coupled
with no arbitration of grievances-are not combined
together in the existing contract between the parties in this
case, and all indications show that this was the change
offered by the Company immediately prior to the strike.
The General Counsel's contention that the Company
adamantly rejected any change in its original positions on
these proposals cannot be adequately sustained. A like
determination must also be made on the General
Counsel's argument that the Company remained adamant
with respect to checkoff clause. Hoyman even admitted
that at the meeting on September 29 the Company
changed its position on checkoffs, and the evidence shows
that the Company then suggested or indicated the strong
possibility of including a voluntary and revocable checkoff
clause. Thus, it can be readily seen that the Company did
make a significant concession from its original position
whereby they had refused any such proposal, and it cannot
be successfully contended that the Company entered into
the negotiations with a predetermined resolve not to budge
from its initial positions.
Based upon the 8(a)(5) allegations and other testimony
bearing and litigated in relation thereto, I have found
insufficient evidence to sustain the General Counsel's
contention that the Company did not bargain in good faith.
However, before any final dismissal of such allegations
can be made there remains for consideration the impact
and effect of my 8(a)(1) findings, as aforestated, upon the
8(a)(5) aspect of this case wherein various foremen or
supervisors committed serious violations of Section 8(a)(1),
and on which the General Counsel relies in his
presentation of the Respondent's total conduct. I can find
no reliable evidence that these relatively minor
supervisors, involved in the 8(a)(1) violations, were acting
at the instigation or with the knowledge or authority of
responsible officials in the Company, and the fact that
Burger, Cox, and others on the company negotiating team
were bargaining in good faith with the Union at the
conference table places such violations on a minor
premise as relating to the overall and total conduct. The
threat to move the Albemarle plant has a restricted impact
in that by July of 1964 the Company had definite and
known plans to build a new plant in McDowell County,
North Carolina, and upon its completion in March and
April 1966, some of the machinery and operations from the
Albemarle plant were moved to the new plant in
accordance with the expansion plans formulated long
before. Lynwood Presson even admitted in his testimony
that he had heard from outside sources about the
Company building a new automotive division plant. It is
noted also that several instances of interrogation centered
around questions by supervisors as to how the negotiations
were proceeding. Admittedly, none of the foremen making
such inquiries were in the Respondent's negotiating group,
had no knowledge of the meetings, and it appears to me
that such questions were merely an instant and natural
exercise of curiosity. The General Counsel also offered a
few instances of background testimony to shed light on the
violations within the 10(b) period, and in accordance
therewith Walter Thompson testified that in 1964 a
supervisor had informed him that he would not be with the
Company much longer. On cross-examination Thompson
then admitted that on the next day he was told by the same
supervisor that he should have known the Company would
not fire him since he had been with them 8 to 10 years, but
that he must work properly. Thompson also testified that
when he was informed that the Company would not give
the employees a contract he replied, "Well, I'll wait to see
about that when Mr. Burger says so."20 It is obvious from
19 See G C Exh 36 returned to his same job He was also on the employees'
20 Thompson was one of the stokers, and after the stoke was negotiating committee
COLLINS & AIKMAN CORP. 691
this record that the employees did not consider the
remarks by these minor supervisors as final or controlling
and were looking to the officials in the Respondent's
hierarchy. Elmer Talbert stated that when he was asked
whether or not the employees would strike, he then asked
Foreman Mason if he was afraid of his (Talbert's job) being
left unattended, and admitted that Mason then stated,
"Yes, that's the point that I'm getting at." In the final
analysis, Tony Frick admitted that Foreman Weatherby
never put any pressure on him, nor did he ever directly
inform him that he, should or must send in a letter to the
Union requesting the return of his authorization card.
Frick testified that a week or so later he told Weatherby
that he had not sent the letter in as yet. It appears to me
that this is another good example where employees
exercised their own discretion and paid little or no
attention to their immediate boss in matters of this kind.
Jim Burriss admitted that when Foreman Almond told him
that the employees were not going to get any money during
the negotiations he knew that Almond was not in the
Respondent' s negotiating group and that Almond said
nothing as to whether he had received such information.
When Gaye Efird was applying for a job she told Personnel
Manager Cox, in reply to his question, that she was already
a member of the Union, but, nevertheless, Cox then hired
her. Certainly the technical violation in this instant was
also considerably diluted by the fact that a known union
member was employed by the Company about 3 days prior
to the strike. When Supervisor Treadway told Brenda
Doby in early August (background) that the Company was
not going to give the Union a contract, she inquired where
he had acquired such information, and Treadway then
walked off. This again shows or indicates that employees
were in no way convinced by the statements of minor
supervisors who they were in daily contact with. Several of
the employees (Floyd Efird, Jim Morgan, and Robert
Litaker), who were told that they would have to go out of
Stanley County to secure jobs because of their activity for
the Union, were reinstated by the Company at the
Albemarle plant in Stanley County following the
termination of the strike. Carl Efird admitted that when he
was contacted during the strike the Company was having
trouble with the tubes in the plant boilers, and they were
asking him to do the Company a favor by returning and to
help out in this particular situation since he had
considerable past experience in such work.
Unless I were to hold, contrary to precedent, that the
commission of 8(a)(1) unfair labor practices by an
employer automatically precludes the existence of a good
faith in bargaining, I do not believe that a finding of bad
faith is justified on the total facts of this case. The
determination of an employer's good or bad faith depends
on the particular facts and circumstances in each case.
For the reasons given here-upon my observations of the
witnesses and their demeanor, and my feelings in the case
based upon the record as a whole-I find that neither
separately nor collectively do the 8(a)(l) unfair labor
practices found evidence a plan or a campaign upon which
it can be successfully concluded that the Company was
bargaining in bad faith under all the circumstances here.
The only unlawful acts were committed by relatively
minor supervisors, and there is no evidence whatsoever
that such were made pursuant to any instructions or
authority from the Respondent's hierarchy. The
Respondent's good faith in bargaining established after
many months at the conference table must stand in this
case, and its unfair labor practices away from the table
were sufficiently separated and understood so that they do
not in themselves destroy or override the good bargaining
between the parties. The total picture will not so warrant
nor does it show a pattern of behavior which directly
obstructed or inhibited the actual process of discussion
which reflected a cast of mind against reaching a contract.
The complaint alleges that the strike was caused an
prolonged by the unfair labor practices of the Respondent.
The General Counsel contends that Section 8(a)(3) was
violated by failing and refusing to offer immediate and full
reinstatement to all strikers. The Company would deem
the strike economic in nature . I find that the strike against
the Respondent was called and waged to compel
capitulation to the Union's economic demands, and that it
remained an economic strike. This record clearly indicates
that the main stumbling block between the parties was the
differences in their economic proposals. As shown herein
the Company made various monetary offers throughout
the negotiations, and on September 29 and 30 favorably
revised their economic measures . Hoyman even admitted
that on the night of September 30 at the guest house he
informed the Company that a settlement between them
would "take money." After leaving the guest house,
Charles Krick admittedly informed the gathered
employees at the nearby lot that the Company had refused
to give the Union their final proposals in writing, and
stated that this was the beginning of the strike. It is
abundantly clear that the strike was planned and resulted
because of the feeling on part of the employees'
negotiating committee that the Company had refused to
bargain in good faith. Since I have found that the
Respondent did bargain in good faith the strike at its
outset cannot be deemed an unfair labor practice strike
nor was it ever converted into such. For numerous reasons
given herein I also find there is insufficient evidence to
establish a causal connection between the strike and the
8(a)(1) violations. Overwhelming evidence shows that the
bargaining issue was the sole and controlling element in
calling the strike.
Hoyman testified- that on October 30 the membership
approved the agreement by a vote, and stated that the
Company was then advised by telegram that the strike was
over. As detailed earlier herein the parties also
immediately reached a written agreement as to how the
employees would be returned to their jobs (G.C. Exh. 43),
and such agreement contained definite steps to be
followed and with the specific provision that the Company
would put people back to work "according to its needs and
their qualifications." At this point it appears to me that
even the Union acknowledged that the strike was an
economic one. By the agreement the Union gave their
consent to return the strikers pursuant to the written
conditions between the parties, and most certainly there is
lacking any unconditional offer to return them. There is no
credited evidence in this record to the contrary, and the
personal applications by the strikers at the plant on
November 1, 2, and 3 with admitted instructions from the
Union that it was necessary for the strikers to register their
willingness to return, is further indicative of the Union's
consent to meet the conditional requirements of
reinstatement which it had previously agreed to on
September 30. Had the Union or its negotiators and
advisors entertained any thoughts at this time that the
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike was an unfair labor practice one they would have
demanded full and unconditional reinstatement as a
group.21
An employer's lawful right during a strike to operate his
business by hiring employees to replace economic strikers
is not challengable.22 If economic strikers were replaced
before their application to return, and if the Company
rehired on the basis of the agreements reached herein,
actually preferential hiring list, then the Respondent's
refusal to take back certain strikers was justified. There is
no contention or evidence that the agreements in question
were in any way discriminatory on their face. Recalls were
to be based on company needs, and qualifications for the
particular jobs unfilled. Pursuant to the above about 200
employees were returned, and at the end of the 6-week
period, in accordance to the agreement, the Company
furnished the Union with a list of about 104 employees who
had not been returned, and at a meeting with the Union in
December explained that there was no work available for
these employees 23 A further list was also prepared in
recognition of applications received during the 10-day
grace period also provided for in the agreement, and as
jobs opened up this list is checked and 14 employees had
thus far been rehired from it, out of approximately 65 who
signed up. Furthermore, this record shows that pursuant
to the above, striker James Isenhour was offered
reinstatement in April 1966, and at least three strikers on
the employees' negotiating committee were called back.
Also relevant in this discussion are the 40 strikers who
were not recalled because of accused violence during the
strike, and some of the other strikers failed to sign up
during the 10-day grace period so they are not eligible for
recall by the terms of the agreement.
The General Counsel attempted to show that employee
Polly Mason was not recalled although she had signed up
and listed the number of jobs she could perform. It
appears, however, that Mason filed a grievance which was
denied, and that the employee hired had experience in the
particular job to be filled. The General Counsel also tried
to show that another employee was hired while striker
James Isenhour was still out. The record shows that
Isenhour was not qualified for the particular job open and
that he so informed Paul Cox. There is insufficient
evidence to show that the Company delayed or refused in
the reinstatement of returning economic strikers or that it
violated the conditional agreements of their recalls.
At the hearing before me the General Counsel amended
the complaint, and added a separate and new 8(a)(5)
allegation which reads as follows:
Commencing on or about August 29, 1966, and
continuing to date Respondent did refuse to recognize
and bargain with the Union notwithstanding that the
Union was at the time the duly designated exclusive
collective bargaining representative of the employees
as described in paragraph 6.
This record shows that on August 29, 1966, both the
Union and the Company exchanged correspondence
relating to the termination of the existing contract (G.C.
Exhs. 30 and 31). The Union first notified the Company
2' On November 15 the Union notified the Company by letter
that in consideration of the agreements reached they were
waiving and withdrawing all grievances and unfair labor practice
charges heretofore filed against the Company, and that the same
would not be renewed or reinstituted in any way . The Union also
stated that in giving the Company such assurances , they would
not waive the right to claim that the strike was an unfair labor
that pursuant to the existing contract they were giving a
60-day notice of their intention to terminate the contract
upon its expiration date and desired to negotiate for
improvements of the contract. The Company on the same
date then notified the Union that in accordance with the
contract they were giving notice of termination at the
expiration of the contract-November 1, 1966. The
Company further informed the Union that all
circumstances indicated that a great majority of
employees at the Albemarle plant no longer desired to be
represented by the Union, and that, therefore, the
Company would not be able to enter into negotiations for a
new contract, but would continue to deal with the Union
under the terms of the existing contract until its
expiration.
It has been well established by the Board and the courts
that there is an irrebuttable presumption that a union-
majority status continues for 1 year from the date of
certification, but that after the year the majority status is
normally rebuttable by an affirmative showing that the
Union no longer commands a majority status. The General
Counsel maintains that the Respondent offered no
probative evidence to rebut the presumption of continuing
majority status of the Union.
Initially, it is clear to me that the 1-year doctrine of an
irrebuttable presumption of union majority is not a bar to
the Respondent, nor is it in issue here. The Union was
certified on May 3, 1965, and the company letter to the
Union in August 1966 specifically stated that the Company
would continue to recognize and deal with the Union and
fulfill the terms and provisions of the existing contract in
every way until the time of its expiration-November 1,
1966. As noted, the certification year expired on May 3,
1966. There is no contention by the General Counsel
otherwise, and it is most obvious that the Respondent's
position is only aimed at the lack of majority upon the
Union's request for renegotiations. Since the 1-year bar is
not available to the General Counsel, the basic question
for determination is whether or not the Company made a
sufficient showing that the Union no longer retained a
majority status. I find that it did.
Testimony in this record indicates that the Union had
not set up a shop committee until September 1966. The
Union has shop stewards in only 2 departments out of 10 to
15 departments in the plant, few grievances were filed,
there were also few union meetings with small turnouts,
and also reports from employees in the bargaining unit
that there were no dues being paid to the Union. While
some of the circumstances relied on may be somewhat
sketchy, it must be remembered that there was also a
considerable loss of union members through the many
replacement workers hired during the strike. Accordingly,
the Company had sufficient evidence upon which it could
base a reasonable cause to believe that the Union had lost
its majority status24
In accordance with my entire findings and discussions
herein, I hereby dismiss all of the 8(a)(5) allegations in the
complaint and the 8(a)(3) allegations.
practice stoke if they "hereafter" see fit to do so. G 1. N.xh 44.
22 G C Exh. 54 shows about 170 employees hired during the
stoke.
23 Some departments in the plant are now only working 4 days a
week
24 Titan Metal Manufacturing Co., 135 NLRB 196
COLLINS & AIKMAN CORP. 693
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close , intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Since I have found that the Respondent interfered with,
restrained , and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, I shall recommend that
they shall cease and desist from such activity and take
certain affirmative action designed to effectuate the
policies of the Act . I shall also recommend that the
complaint be dismissed in all other respects.
Upon the foregoing findings of fact, and upon the entire
record in the case, Imake the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with , restraining , and coercing their
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The Respondent has not refused to bargain with the
Union within the meaning of Section 8 (a)(5) of the Act.
[Recommended Order omitted from publications.]
299-352 0-70-45