Fitzgerald Mills Corp.

National Labor Relations Board - Board Decisions

Oct 11, 1961

133 N.L.R.B. 877 (N.L.R.B. 1961)

FITZGERALD MILLS CORPORATION 877
record is totally deficient in terms of providing any answers to the
numerous questions which bear on this matter of discretion 3i
In sum, because the record in this proceeding does not contain suffi-
cient facts upon which to determine the legal issues involved, I would
remand these cases to the Regional Director for further proceedings
before a duly designated hearing officer in order to permit the orderly
development of the facts. However, since my colleagues are not simi-
larly disposed, I would dismiss the petitions without prejudice to the
parties involved.
render the party immune or disabled from the provisions of the National Labor Relations
Act. However , we are not here dealing with the question of the primacy of Federal over
State law . Rather, we are concerned with the question whether our Act applies at all to
an organization incorporated in a foreign country.
ii For example, it might be questioned whether Petitioner is considered to be a labor
organization by the Department of Labor's standards . In this regard , is it subject to the
reporting provisions of the Landrum-Griffin amendments (Titles I-VI) ? Is there any
conflict, real or potential , between the requirements of the Landrum -Griffin amendments
and the labor code of the Republic of Honduras , e.g., as to the holding of conventions,
requirements for membership , conditions of holding office, inspections of union membership
lists , nominations of candidates for office , equal rights to participate at meetings and in
elections, etc.
Moreover , suppose the Petitioner wins the election directed herein and is subsequently
certified by the Board , will the Board be able to provide real protection to the employees
and its own processes 9 The testimony shows that Sindimar holds its meetings in Puerto
Cortes , Republic of Honduras . Are the American members of that organization going to
be required to go to Honduras to attend meetings , inquire as to matters relating to bargain-
ing, and vote on general issues ? How will the American ( and other ) members express
their dissent in the event Petitioner uses the dues and fees collected to foster or promote
political parties or persons ( see International A8sociation of Machinists v. Street, 367
U.S 740 ( 1961 )) ? Further , suppose the Petitioner , during its incumbency as certified
representative , is charged with having committed unfair labor practices ; how will the
Regional Office be able to conduct an adequate investigation and gather evidence? Must
it send the Board ' s agents to Honduras ? And what will the Republic of Honduras have
to say about this? How is the Board ( or a court , for that matter ) to accomplish service
of its legal documents9 In what manner is the Board to insure that compliance with its
orders will obtain? etc.
When the Board certifies a labor organization , in addition to effectively creating a
franchise in favor of that organization as against all others , it is also recognizing the
employees ' choice by placing the Government 's imprimatur on the organization 's status-a
status which carries with it a host of legally enforceable duties. The Board will have no
excuse if , in its attempt to provide an election for the employees involved herein, it is
later unable to enforce those duties against the Petitioner . And if enforcement is not
feasible , these very same employees will be prejudiced and bear the brunt of the Board's
failure to provide safeguards for their statutory rights.
Fitzgerald Mills Corporation and Local 1252, Textile Workers
Union of America, AFL-CIO, and Textile Workers Union of
America, AFL-CIO.' Case No. 10-CA-4176. October 11, 1961
DECISION AND ORDER
On June 29, 1960, Trial Examiner Lee J. Best issued his Inter-
mediate Report in this proceeding, finding that the Respondent had
i The name of the Charging Party is hereby amended to reflect the amendment , granted
at the hearing without objection , naming the International and Local 1252 as the joint
Charging Party The International and Local 1252 are hereinafter referred to jointly
as the Union.
133 NLRB No. 98.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the Intermediate Report and Recommended Order attached
hereto. Thereafter, the Union and the General Counsel filed timely
exceptions thereto and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case, and finds merit in the exceptions as set forth below. According-
ly, the Board adopts the findings of the Trial Examiner only to the
extent they are consistent herewith.
1. The complaint, as amended at the hearing, alleges that the Re-
spondent refused to bargain collectively with the Union beginning-
on or about January 20, 1959. The Trial Examiner concluded that
the Respondent conferred in good faith at all times. We accept all
credibility resolutions made by the Trial Examiner, except as set
forth in paragraph numbered 2, below, and the facts as found in the
Intermediate Report. Based thereon and on other undenied testi-
mony in the record as recited below, we find, contrary to the Trial
Examiner, that the Respondent's whole course of dealing with the-
Union clearly demonstrates that it engaged in mere "surface bargain-
ing." 2 In so finding, we rely particularly on the following evidence
of the Respondent's bad faith :
(a) The Respondent's dilatory tactics: Beginning in the fall of-
1958,3 the Respondent clearly displayed a dilatory attitude and re-
luctance to supply information requested by the Union which was es-
sential to the administration of the then existing contract and the
negotiation of a new contract. Thus, the Union made its request for-
wage information near the end of September 1958; received incom-
plete information on January 19, 1959; and did not receive a satis-
factory incentive pay schedule until March 6, 1959, long after the
demand and the Union's notice to the Respondent on January 20, 1959,.
that it desired to negotiate a new contract. The Respondent's attitude
in November 1958, with respect to supplying wage information, is
apparent from the fact that Clark, the Respondent's general man-
ager, replied to the Union's request for social security earnings of
employees by saying that they were busy trying to run a plant and
could not furnish the information 4 Job descriptions requested at the
2 N.L R.B. v. Herman Hau8age Company , Inc., 275 F 2d 229 (CA. 5 ), enfg 122 NLRB
168, rehearing denied 277 F 2d 793
8 To the extent any of the incidents occurred prior to the 6-month limitation period of-
Section 10 ( b), which runs from December 29, 1958, they are relied on solely as back-
ground information to "shed light" on events within the period covered by the charge
Herbert D Young, d/ b/a Murfreesboro Pure Milk Co , 127 NLRB 1101, 1102
4 This finding is based on the uncontradicted testimony of Botelho , the Union's regionalL
director.
FITZGERALD MILLS CORPORATION 879
same time were not forthcoming until January 19, 1959, at which time
the Respondent supplied those that were available, but no additional
job descriptions have ever been transmitted. Moreover, in September
1958, the Union objected to the Respondent's previously having revised
its insurance benefits plan by unilateral action and requested a copy
of plan. In response thereto and to at least,one subsequent request 5 by
the Union, Clark took the position that a copy had been supplied to the
previously assigned representative of the Union and the Union was
therefore in possession of the information. Clark said that he would
nevertheless furnish a copy to Botelho. However, this copy was not
forthcoming until June 4, 1961, during the course of the strike. And
at the hearing, Clark admitted that the former union representative
had not received a copy. It is also clear that a seniority roster, re-
quested in September 1958, was never furnished. We find that the
dilatory tactics of the Respondent' are clearly established in the
record. Such tactics are inconsistent with its obligation to supply
the Union with proper information without undue delay.6
(b) The nature of Respondent's counterproposal and its adamant
refusal to enter a contract with the Union except on its own terms:
The Union's proposal sought a considerable number of changes in the
prior contract, including substantial increases in economic benefits.
The Respondent's counterproposal was essentially the expiring con-
tract, with certain changes desired by the Respondent' and the de-
letion of a substantial number of provisions which contained benefits
previously enjoyed by the employees." As a result, the counter-
proposal constituted such a radical departure from the previous con-
tract as to be predictably unacceptable to the Union.' It is abun-
dantly clear, both from the Intermediate Report and from the record,
that the Union, in effect, put aside its own proposal and that gall dis-
cussion at the negotiation meetings was based upon the Respondent's
8 The testimony is in dispute as to whether any additional requests were made for this
information prior to June 1, 1959, and the Trial Examiner made no finding as to this.
However, in view of the undenied fact that the Union 's request for increased insurance
benefits was discussed during the course of negotiations in April, it seems to us unlikely
that the need for the information was not raised again during this period.
O Butcher Boy Refrigerator Door Company , 127 NLRB 1360, 1362
7 E g, at arbitration hearings , the parties could present "evidence and argument" rather
than "evidence , argument , and other pertinent material" as formerly ; the time within
which the Company must act at various steps in the grievance procedure was lengthened ;
and workload disputes were removed from the regular arbitration procedure
8 For example , the checkoff clause was omitted ; the no -strike clause omitted the provi-
sion saving the Union , if it promptly disavowed any unauthorized work interruption and
tried by all reasonable means to prevent or terminate it, from civil action under Section
301 of the Act; the Union 's right to reopen wages for reexamination by comparison with
area rates was deleted ; determination of competence and qualification for retention or
layoff purposes was left solely to the Company 's judgment and apparently was removed
from the grievance and arbitration procedure , jobs would remain temporary until desig-
nated as permanent by the Company ; and the necessity for prior notice to the Union of
contemplated changes in workload was eliminated.
See N.L .R B v. Herman Sausage Company, Inc, supra ; N L.R B . v. Reed & Prance
Manufacturing Company , 205 F. 2d 131 , at 139 ( C.A. 1), cert . denied 346 U . S. 887.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counterproposal, with the Union stating its position with respect to
each provision. It is equally clear that the Union receded from its
original position and made a great many progressively lesser re-
quests but that the Respondent at all times maintained an uncompro-
mising attitude, rejecting the Union's requests without explanation
or discussion. Agreement ,reached on any provision was solely by
reason of the Union's acceptance of the Respondent's proposal as it
stood. The Respondent's representatives made no concessions prior
to the strike, which began on May 11, except to state that they would
recommmnd that a union representative be permitted to enter the
plant to investigate grievances and that the parties might be able to
resolve two pending grievances .10 And although there were appar-
ently some concessions made during the negotiations on June 1 and
July 1, it is clear that there was no real intent on the Respondent's
part to reach agreement. This is evidenced by Clark's statements to
the nonstriking employees in the plant in May and June and the Re-
spondent's insistence that the Union waive the strikers' right to re-
instatement as a condition of entering a contract.
While an employer is not obligated to make any concession, it is
required to make a reasonable effort to reach an agreement.ll Failure
to do little more than reject proposals is indicative of a failure to
comply with the statutory requirement of good-faith bargaining.12
It is apparent from the above facts, considered in the context of the
entire course of bargaining, that the Respondent in fact did virtually
nothing more than reject the Union's proposals. At no time did it
make a genuine effort to reconcile the differences between it and the
Union, contrary to its obligation to approach the bargaining table
with an open mind and, through the give and take of negotiations,
to attempt to reach an agreement.13
10 Except for this statement as to the possible resolution of the two grievances, the
Respondent consistently demanded a clause stating that the Union agreed that there were
no grievances pending and that all grievances had been or were thereby dismissed, and
deleting from the old contract the provision that any grievances arising during the con-
tract term which had reached step two and had been put in writing should be completed
even after the expiration of the contract term It is well settled that the expiration of a
bargaining agreement does not relieve it party of its obligation to process a pending griev-
ance under the terms of the expired agreement . See Textile Worker8 Union of America,
AFL-CIO v Lincoln Mills of Alabama, 353 U.S. 448; NLRB v Knight Morley Corp.,
251 F. 2d 753, 759-760 (CA. 6), enfg. 116 NLRB 140, cert. denied 357 US. 927, re-
hearing denied 35'8 U. S. 858 . Accordingly, we find that the Respondent's insistence upon
the Union's waiver of the pending grievances is also contrary to the duty to bargain and
is evidence of the Respondent's bad faith throughout the negotiations.
" Bonham Cotton Mills , Inc., 121 NLRB 1235, enfd 289 F 2d 903 (CA 5).
12 McLean-Arkansas Lumber Company, Inc, 109 NLRB 1082, 1034, and cases cited
therein
13 Fetzer Television, Inc., 131 NLRB 821; American Aggregate Company, Inc and
Featherlite Corporation, 125 NLRB 909, enfd 285 F. 2d 529 (CA. 5) , NLRB v
Herman Sausage Company, Inc., Supra, L L 11fajau a Transport Company v NLRB,
198 F 2d 735 (CA 5), enfg 95 NLRB 311 Cf N L R B v. American National Insurance
Co , 343 U.S. 395
FITZGERALD MILLS CORPORATION 881
(c) The limited authority of Respondent's negotiators to accept
only the Respondent's proposed contract: Respondent's attorney,
Prowell, testified that he was authorized to depart from the Respond-
ent's counterproposal except with respect to "money items." How-
ever, it is clear from the Intermediate Report and the record that
he and other agents of Respondent were, in fact, never authorized to
reach any agreement different, from the original counterproposal
without prior clearance with Horblit, an official of Respondent with
his office in Boston, Massachusetts. Thus, Clark, Respondent's gen-
eral manager, testified that he talked with Horblit after each meeting.
And, as found by the Trial Examiner, the Union was told after each
meeting that the matters discussed would have to be or were in fact
taken up with higher management. Moreover, the only meetings at
which substantial discussion took place prior to the strike on May 11,
were those of April 10 and 24. But, as the Trial Examiner found, on
April 10 Attorney Constangy, during the informal morning con-
ference, advised Botelho that decisions with respect to wages, arbi-
tration, and checkoff had been made by higher management and could
not be changed locally, and Attorney Prowell, during the formal
afternoon meeting, made it clear that questions raised by the Union
must be submitted for consideration to Constangy and higher officials
of the Respondent. In fact, Prowell testified that he was present at
that meeting only for the purpose of having Botelho explain the
Union's position on the Respondent's proposal. And it is clear that
at the April 24 meeting, Prowell in fact refused to deviate from the
Respondent's counterproposal and merely stated he would recommend
that a union representative be permitted access to the plant to investi-
gate grievances. While the absence of competent authority of a bar-
gaining representative to enter into a binding agreement is not nec-
essarily indicative of bad faith'14 the character of the agent's powers
is a factor to be given consideration. 15 We find that the limitations
imposed by the Respondent in the instant case, including its prede-
termined position concerning union security and "money items," 16
particularly when considered in the entire context of events before and
during the strike, reveal that the Respondent did not bargain in good
faith."
(d) The unilateral acts by the Respondent: As set forth in the
Intermediate Report, the Respondent 'informed the Union at the
14 See, e g, Capital Transit Company, 106 NLRB 169 ; McLean-Arkansas Lumber Com-
pany, Inc, supra, at 1038; Lloyd A. Fry Roofing ,Company v . N.L.R.B ., 216 F. 2d 273
(C.A. 9).
15 Great Southern Trucking Co. v. N.L.R.B., 127 F. 2d 180 at 185 ( C.A. 4), cert denied
317 U.S. 652 . See also Lloyd A Fry Roofing Co. v. N.L.R B., supra, at 275 and 276.
16Duro Fittings Company, 121 NLRB 377.
17 Herman Sausage Co , Inc., 122 NLRB 168, 170 ; Great Southern Trucking Co. v.
N L R B., supra; N.L .R.B., v. 'Martin Brothers Box Company, 130 F. 2d _202 at 207-208
(C.A. 7), cert. denied 317 U.S. 660.
624067-62-vol. 133-57
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiation meeting of April 10, 1959, that within the preceding 60
days it had changed the duties and wages of the forklift driver.
Botelho also testified without contradiction that in June 1959, while
the strike was in progress and during the course of bargaining, the
Respondent changed the wage rate and workload of loomfixers with-
out consulting the Union. It is clear that both incidents occurred at
times when the parties were in the course of negotiations, that the
Union protested the Respondent's actions and was willing to continue
negotiations, and that there was no impasse.'8
In addition, we find that no genuine impasse was reached on May 7,
1959, in view of the Respondent's bad-faith bargaining as revealed by
its entire course of conduct during the negotiations. Therefore, the
Respondent's unilateral institution of its wage increase effective
May 11, 1959, was not privileged and is further evidence of the
Respondent's bad faith.19
(e) The Respondent's notices to its employees on April 6, 13,
cued • 24: Contrary to the Trial Examiner, we find that the Respond-
ent's notices to its employees were designed to undermine the Union
and, hence, are additional evidence of its failure to bargain in good
faith. While an employer may report to its employees the history of
the negotiations with their representative, the cases so holding are
clearly distinguishable from the situation here in that none of them
involved reports which in their context and in the context of events
were shown to be unlawfully motivated 20 In contrast, here the form
Is Herman Sausage Co., Inc., 122 NLRB 168 , 170-171 , enfd . 279 F. 2d 229 (CA 5) ;
Amer,can ' National Insurance Co. v. NL.R.B., 187 F. 2d 307, at 309 ( CA. 5), enfg. 89
NLRB 185, affd . 343 U.S. 895. And see Dalton Brick & Tile Corporation, 126 NLRB 473
at 486-487.
19 See N L R B V Andrew Jergens Co , 175 F. 2d 130, at 136 (C .A. 9), enfg 76 NLRB
363, cert denied 338 U.S 827 , rehearing denied 338 U.S. 882.
20 Continental Bus System, Inc., 128 NLRB 384 (respondent bargained in good faith
throughout , and letters were sent during a subsequent strike which were complete copies
of all material simultaneously mailed to the union ) ; Blackstone Mills, Inc., 109 NLRB
772, 781 ( during a negotiation meeting at which the respondent 's proposal was made,
respondent began distribution of a written statement of its proposal and the reasons for
its position in which it also recited that the members should attend the next union meet-
ing to "advise their committee as to their feelings toward these adjustments") ; The
Stanley Works, 108 NLRB 734 , 741-742 ( notice that a year -end bonus would not be paid,
followed by a substantial number of negotiation meetings during which the bonus was
discussed in the course of good-faith bargaining ) ; Joseph E. Cote, d/b/a J. B Cote, et al.,
101 NLRB 1486 , 1489 ( respondent 's letters to employees set forth the.bargaining impasse
which existed , reported the offers made by respondent , the union 's demands , and the re-
spondent 's inability to meet those demands ) ; The Jacobs Manufactursng Company, 94
NLRB 1214 , 1225 ( two letters to employees reported the positions taken by the respondent
during the bargaining and explained that it could not then afford to increase wages be-
cause of its business position and "there is nothing to indicate that there were attempts
to undermine the prestige of the union")'; United Welding Company, 72 NLRB 954, 955
(the respondent bargained in good faith throughout , and the sole allegation involved
letters sent to the employees , after many bargaining sessions , which explained the re-
spondent 's position on the union 's wage demands and why it could not meet them, and
repeatedly urged the employees to continue bargaining through the union as their repre-
sentative ). Cf. Texas Foundries, Inc., 101 NLRB 1642 , 1670, where the contention was
rejected that speeches to employees announcing unilaterally determined wage increases
FITZGERALD MILLS CORPORATION 883
and timing of the notices were clearly calculated to impress the em-
ployees not only that the Respondent alone was entitled to credit for
the increase but that the Respondent intended to offer the Union no
more than the Respondent had already unilaterally determined to
grant, without reference to the collective-bargaining process. Thus,
the notices appear to emphasize the need for the Union's agreement
to the proposed effective date rather than the amount. In addition,
the proposed wage schedule posted on April 13 was clearly misleading
in that it appeared to be an across-the-board increase and would be so
interpreted by the employees. But the rates were, in fact, expected
earnings under the incentive system and individual employees might
or might not receive an increase under the proposed plan.
Moreover, the Respondent's conduct in announcing April 27, 1959,
to its employees, in its April 13 notice,,as the proposed effective date
for the wage increase further evidences the Respondent's objective.
As found by the Trial Examiner, at the negotiation meeting of
March 23, 1959, Botelho requested that any wage increase be retro-
active to the expiration date of the old contract, and Respondent's
attorney, Constangy,•proposed that this matter be left open for fur-
ther negotiation. Nevertheless, Respondent, without consultation
with the Union, fixed April 27 as its proposed effective date, an-
nounced that proposed date to its employees, and thereafter refused
to discuss any other possible effective date. The impression that Re-
spondent deserved sole credit for the increase and the fact that this
was intended is emphasized by Foreman McDowell's statement to
employee Woodard shortly after the posting of the April 13 notice
to the effect that the Union could not get a larger pay raise than the
Company was offering.
The Respondent's objective is also clearly revealed by the circum-
stances surrounding the posting of the April 24 notice. The Trial
Examiner found that at the meeting on that date the Union protested
the posting of the April 13 notice, and it is undisputed that because
of the protest the parties agreed upon the language of a notice which
was to clarify the status of negotiations. Notwithstanding this, the
Respondent's general manager, immediately upon the conclusion of
the meeting, telephoned his office and had the April 24 notice posted
in essentially the language to which the Union had objected. But
the agreed-upon notice was not posted until April 27. It seems clear
that if Respondent's motive were merely to inform the employees of
the status of negotiations, the general manager would have communi-
which would be given if the union agreed and other speeches stating the respondent's
position on issues before the bargaining conference amounted to individual bargaining
with the employees, but where there was apparently no contention that these-speeches
were attempts to undermine the union and evidenced respondent 's bads-faith bargaining
and therefore no finding was made thereon.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cated the agreed text to his office in his telephone call in order to have
it posted as soon as possible.
In these circumstances, we find no difficulty in concluding that the
Respondent's object in posting its notices was not merely to keep its
employees informed but, rather, to subvert the Union.
(f) Clark's statements in May sand June 1959: As set forth in the
Intermediate Report, Clark, during the course of the strike, made
speeches to the nonstriking employees in the plant, during which he
said, inter alia, that he would not sign a contract with the Union un-
less it agreed to his terms. These statements clearly reveal that the
Respondent was not meeting with the Union with an open mind and an
intention to reach agreement.
(g) The Respondent's proposal of July 10, 1959, concerning the
rights of the strikers: It is clear, as the Trial Examiner found, that
at the meeting on July 10 Respondent's attorney, Prowell, insisted
that before any contract could then be negotiated, the Union would
have to agree to the Respondent's proposal with respect to strikers,
and that as a result negotiations ceased. The provision demanded
by the Respondent would have required that the Union waive the
reinstatement rights of the strikers and was tantamount to insistence
that the Union abandon its unfair labor practice charges in order to
finalize a bargaining agreement. As we find, infra, that the strike was
caused by the Respondent's refusal to bargain in good faith and was
hence an unfair labor practice strike from its inception, all strikers
were entitled to full reinstatement upon application. It is well settled
that a union cannot waive the reinstatement rights of strikers," and
the demand for such a waiver constitutes bad-faith bargaining in vio-
lation of Section 8(a) (5). The conditioning of further bargaining
upon the acceptance of this provision was an unlawful condition
precedent at variance with the Respondent's obligation to bargain
with the Union in good faith and is also violative of Section
8(a) (5)•22 The Respondent's raising this demand after the termina-
tion of the strike further demonstrates its intention to avoid reaching
agreement.
It is clear from all the facts that the Respondent did not approach
the bargaining table with an open mind and sincere desire to reach
agreement, but, rather, had a predetermined intention not to do so.
Accordingly, we find that the Respondent failed to bargain in good
faith with the Union and thereby violated Section 8 (a) (5) and (1) of
the Act.
2. We further find, contrary to the Trial Examiner, that Foreman
McDowell's statements to employee Mildred Woodard shortly after
- 1 21 Heider Manufacturing tCompany, 91 NLRB 1185, 1190. See Erie Resistor Corporation,
132 NLRB 621, footnote 31.
22 Erie Resistor Corporation, Supra.
FITZGERALD MILLS CORPORATION 885
April 13 11 and in November 1959,14 were coercive and constituted in-
dependent violations of Section 8(a) (1) of the Act. In view of the
Respondent's other violations, as set forth herein, these statements
were neither isolated nor minor.
The Trial Examiner credited Clark's version of what he said to
the pickets on May 22, 1959, "because it is more consistent with past
and subsequent. negotiations between the parties." This conclusion
was reached in the context of the Trial Examiner's findings that the
Respondent bargained in good faith at all times. It is the Board's
established policy not to overrule a Trial Examiner's credibility reso-
lutions unless the clear preponderance of all the relevant evidence con-
vinces us that the resolutions were incorrect .25 In the instant case
we have rejected the Trial Examiner's findings as to the Respondent's
good faith in its bargaining with the Union and have found, instead,
that the record clearly establishes its bad faith throughout the nego-
tiations. As the Trial Examiner's reason for crediting Clark's testi-
mony as to the May 22 events thus falls, his credibility finding on this
matter must also fall26 The Trial Examiner has given no other rea-
son for discrediting the General Counsel's witnesses, each of whom
has corroborated the others as to these events, and we are convinced
that the clear preponderance of all the relevant evidence establishes
that Clark's version cannot be credited. We therefore accept the
corroborated testimony of the General Counsel's witnesses."
Accordingly, we find that during the late afternoon of May 22, 1959,
Clark, in a conversation with certain pickets on the picket line,
solicited the strikers to abandon the Union and go back to work, sug-
gested that the employees get a union of their own and if it did not go
well they could reaffiliate with the Charging Union, and told the
strikers that he would "die and go to hell" before he would sign a con-
tract with the Union. We further find that by these statements the
Respondent interfered with, restrained, and coerced its employees in
the exercise of their rights under Section 7 of the Act and that it
thereby violated Section 8 (a) (1) of the Act.
All of the conduct which we have found violated Section 8 (a) (1)
further reveals the Respondent's bad faith and is additional evidence
supporting our finding that the Respondent violated Section 8(a) (5).
"At this time McDowell said that he did not think the Union could get a larger pay
raise than the Company was offering and if the employees wanted to keep their jobs they
had better just leave the Union alone.
24 When Woodard requested additional work, McDowell said that if she had not walked
out she would have a regular job on the first or second shift ; that he could have told her
that, and in fact tried to do so, after she became a member of the Union.
22 Standard Dry Wall Products , Inc., 91 NLRB 544, enfd . 188 F. 2d 362 ( C.A. 3).
20 Cf. Combined Metal Mfg . Corp., 123 NLRB 895, 879, footnote 5
27 See Erie Dry Goods Company, 117 NLRB 815, 817-818. However , we hereby affirm
the other credibility resolutions by the Trial Examiner as we are not convinced that they
are erroneous on the clear preponderance of the evidence.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Trial Examiner concluded that the strike was called by the
Union to bring economic pressure in order to force "further conces-
sions" with respect to its demands and therefore was economic at its
inception. We do not agree. Rather, we find that the strike was the
result of the Respondent's failure to bargain in good faith and was an
unfair labor practice strike at all times. There is clear evidence which
reveals that the cessation of work was the result of the Respondent's
conduct. Thus, the Union's telegram to Horblit on May 7 informed
him that a strike would be recommended because of the position
taken by the Respondent's negotiators, and the Union's notice to the
employees calling the meeting at which the strike vote was taken refers
to the Respondent's adamant position throughout the negotiations.
Also it is undisputed that at that union meeting Botelho reported in
some detail on the events of each negotiating meeting, told the em-
ployees that "it was becoming increasingly apparent to [him] that the
Company did not want to bargain with this Union in good faith," and
recommended strike action for this reason. Further, the Union's
May 12 letter to the employees explaining its position points to the
Respondent's unreasonable contract, proposals,, adamant position, and
bad-faith bargaining attitude. Moreover, the Union could hardly
have been seeking "further concessions" in view of the absence of any
concessions by the Respondent up to that time.
4. The Trial Examiner found that the Respondent did not violate
Section 8 (a) (3) and (1) of the Act by denying reinstatement to
strikers when they offered to return to work or by reinstating some of
the strikers without their full seniority, because he found that they
were economic strikers who were permanently replaced. We find
merit in the exceptions to this conclusion.
The record establishes, and we have found, that the employees went
out on strike in protest to the Respondent's bad-faith bargaining.
For this reason they became unfair labor practice strikers who, under
established law, were entitled to reinstatement to their jobs upon un-
conditional application, regardless of whether or not they had been
replaced.211 It is undisputed that on or about July 7 and 8, 1959, most
of the strikers made such an unconditional application. Moreover, we
find that Union Attorney Goldthwaite's letter of July 15, 1959, was an
unconditional offer to return to work made on behalf of all the strikers.
In addition, it is admitted that, as the Trial Examiner states, all
strikers were required to make application as new employees. Such a
requirement is clearly improper as to employees entitled to reinstate-
ment and itself constitutes discrimination in violation of Section
8(a)(3) of the Act2a
28 N.L R B. v. National Shirt Shops of Florida, 'Inc., 212 F. 2d 491 ,494 (C.A. 5).
2DSee, e g , Jack C. Robinson, doing business as Robinson Freight Lines, 114 NLRB
1093, 1096, enfd. 251 F. 2d 639 (C.A. 6).
FITZGERALD MILLS CORPORATION 887
Accordingly, we find that the Respondent discriminated against
those strikers who were denied reinstatement on their unconditional
application and those who were reinstated without their full seniority
or other rights and privileges, in violation of Section 8(a) (3) and
(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom, and to
take certain affirmative action designed to effectuate the policies of the
Act.
It has been found that the Respondent refused to bargain in good
faith with the Union that represented a majority of the employees in
an appropriate unit. Accordingly, we shall order the Respondent,
upon request, to bargain with the Union as the exclusive representative
of the employees in the appropriate unit.
We have also found that the Respondent discriminatorily denied
reinstatement to certain unfair labor practice strikers. The record
reveals that some, of those strikers have returned to work for the
Respondent, but it is not clear whether they were reinstated to the
same or substantially equivalent employment. It also appears, that
certain of the returned strikers have not been credited with their
former seniority and may have been denied other rights and privileges.
Accordingly, we shall order the Respondent to offer the employees
named in Appendix A, attached hereto,3° immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, dis-
charging, if necessary, any replacements in order to provide work for
such strikers. We shall also direct the Respondent to reimburse the
foregoing employees for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them, by paying
to each of these employees a sum of money equal to the amount that
he normally would have earned as wages from the date of his uncon-
ditional application for reinstatement to the date of the Respondent's
offer of reinstatement, less his net earnings during said period, leaving
for the compliance stage of the proceeding the determination of the
adequacy of the reinstatement of those already returned to work.
The amount of backpay due shall be computed according to Board
policy set forth in F. W. Woolworth Company, 90 NLRB 289. Pay-
roll and other records in possession of the Respondent are to be made
available to the Board, or its agents, to assist in such computation and
in determining the right to reinstatement. Because the Trial Ex-
aminer recommended dismissal of the complaint, and in accordance
° The charge and complaint allege discriminatory treatment of 159 strikers Accord-
ingly, we shall limit our remedial order to those so named.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Board practice, we exclude from the above period the time from
the date of the Intermediate Report to the date of the Order herein
in computing the amount of backpay to which each employee is
entitled.
In view of our findings concerning the Respondent's refusal to
bargain, its discrimination against the strikers, and its coercive state-
ments, a potential threat of future violations exists which requires
the inclusion of a broad cease-and-desist provision in our Order.
CONCLUSIONS OF LAW
1. The Respondent, Fitzgerald Mills Corporation, is engaged in
commerce within the meaning of the Act.
2. Local 1252, Textile Workers Union of America, AFL-CIO, and
Textile Workers Union of America, AFL-CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees at Respondent's plant
at Fitzgerald, Georgia, excluding office clericals, professional and
technical employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. Textile Workers Union of America, AFL-CIO, at all times
material hereto, has been and still is the exclusive representative of
all the employees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively in good faith with the afore-
said labor organization as the exclusive representative of its employees
in an appropriate unit, and by insisting as a condition of entering a
contract that the Union agree to waive the reinstatement rights of
the strikers, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) and (1) of
the Act.
6. The strike beginning on May 11, 1959, was at all times an unfair
labor practice strike.
7. By denying reinstatement to the strikers upon their uncondi-
tional application and by returning some strikers to work without
their former seniority or other rights and privileges, the Respondent
has discriminated in regard to the hire and tenure of employment of
its employees, thereby discouraging membership in the Union, and
has violated Section 8 (a) (3) and (1) of the Act.
8. By making coercive statements and soliciting strikers to aban-
don the Union, the Respondent interfered with, restrained, and co-
erced its employees in the exercise of rights guaranteed in Section 7
of the Act, and has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (1) of the Act.
FITZGERALD MILLS CORPORATION 889
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Fitzgerald Mills
Corporation, Fitzgerald, Georgia, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain in good faith concerning rates of pay,
wages, hours of employment, or other conditions of employment with
Local 1252, Textile Workers Union of America, AFL-CIO, as the
exclusive representative of all production and maintenance employees
at its Fitzgerald, Georgia, plant, excluding office clericals, profes-
sional and technical employees, guards, and supervisors as defined in
the Act.
(b) Discouraging membership in Textile Workers Union of
America, AFL-CIO, or in any other labor organization, by dis-
charging, refusing to reinstate, or otherwise discriminating against
employees in regard to their hire or tenure of employment or any
term or condition of employment.
(c) Threatening employees with economic reprisals if they support
the Union, soliciting employees to abandon the Union, and indicating
that it will not sign a contract with the Union.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist the above-named Union, or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively in good faith with
Local 1252, Textile Workers Union of America, AFL-CIO, as the
exclusive representative of all production and maintenance employees
of the Respondent at its Fitzgerald, Georgia, plant, excluding office
clericals, professional and technical employees, guards, and super-
visors as defined in the Act, with respect to rates of pay, wages, hours
of employment, or other conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed written
agreement.
(b) Offer to the employees named in Appendix A, attached hereto,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Make whole the said employees, in the manner set forth in the
section entitled "The Remedy," for any loss of pay each may have
suffered by reason of the Respondent's discrimination against him.
(d) . Preserve and, upon request, make available to the Board, or its
agents, for examination and copying, all payroll records, social secu-
rity 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 Fitzgerald, Georgia, copies of the notice
attached hereto marked "Appendix B." 31 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are custo-
marily posted. Reasonable steps shall be taken by the Respondent to
insure that such notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Order, what steps the Respond-
ent has taken to comply herewith.
MEMBERS RODGERS and FANNING took no part in the consideration
of the above Decision and Order.
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
Ball, Cathalee Clark, L. H. Giddens, Emma Joyce
Ball, Clark Clemons, Giddens, Inez
Ball, Julius Irving James Giddens, James A.
Baughn, L. E. Clemons, W. Alfred Giddens, J. W.
Baughn, Louise Carelock, Eston Giddens, Melvin
Berryhill, J. W. Carelock, Lawson V. Glisson, Shafter
Bishop, Evelyn L. Cross, Daisey B. Gordon, Elvin
Bishop, John Henry Dent, Russell Gordon, Louise
Bond, Charlie Eaton, Bartow Gordon, Peggy
Brown, Jeff Fender, Virve S. Gordon, Richard
Brown, Lottie W. Fish, Frances Gordon, Thelma
Brown, W. Edison Fitzgerald, Evola Goss, Frank
Brickle, Alene Fountain, Oscar L. Graham, Aline R.
Brickle, James E. Fowler, Agnes Gresham, Dewey Lee
Bryant, Ernest Fowler, Truitt Grimsley, Bernard
Chambers, Annie L. Freeman, W. J. Grimsley, Delma F.
Chaney, Water R. Gaines, Lola M. Gunter, Nathaniel
Clark, Bessie Geiger, Willie Gunter, Ruby
Clark, Haywood, Jr. Giddens, Alvin Gunter, Sewell E.
Clark, Herlie Giddens, Clint Hadden, W. R.
FITZGERALD MILLS CORPORATION 891
Haddock, F. J. McDonald, James F. Rogers, Ola H.
Hair, Lizzie Mae McDowell, Jessie H. Rodgers, Wilbur
Hall, George A. McDowell, Julian D. Rutherford, Bertha
Hancock, McDuffie, George Seagroves, C. M.
James T., Jr. Mendell, Jeanette Shealey, H. G.
Harper, Bailey M. Mendell, Millard Shealey, Homer J.
Herring, Fannie Merritt, Eva Sheperd, Joe
Hester, George W. Merritt, Rudine Smith, Alice
Hogg, Elton Monk, Charlie Smith, James W.
Horton, Carolyn C. Mullis, Wilbur Smith, J. C.
Irvin, T. J. Musselwhite, Rufus Smith, Myra
Jowers, Harold Musselwhite, Lovelle Smith, Samuel M.
Justice, A. J. New, J. W., Jr. Stanfill, Ellis
Justice, Lucille Newsome, Carl Sutherland, Mardell
Keene, Calvin B. Newsome, Horace Swailes, R. B.
Keene, Julian W. Newsome, Ruth Swearinger, Vivian
Kilgore, George Nicholson, Ralph Taylor, Lucile
King, Murray Padgett, Bobby Thomas,
King, Ward Peacock, Mattie Mary Hannah
Lewis, C. C. Peacock, Myrna Thomas, Quincey
Lewis, Lillie Mae Peacock, Ola F. Thompson, Bethel
Lewis, Quincy Peacock, Tessie Treadwell,
Luke, James Q. Peacock, Virtue Annie Belle
Luke, Will Phillips, Aubrey R. Treadwell, Edmond
Lush, Johnny Phillips, Homer Turner, Harry
Mahoney, Edward Phillips, Thelma Walsh, Abraham
Marton, Carl L. Pope, Wilson T. Walsh, Earline
Mathis, Irene Portivent, Bernice Walsh, Lula
Mathis, Sam Reaves, Shellie Walsh, Shelley B.
Matthews, James P. Reeves, Hamilton J. White, Charles
Matthews, Thelma Revels, Winnie Woodard, Mildred
McCall, James W. Rinor, Lucille Wright, Lucille
McCall, Ruby Rogers, James H. Yancey, Carven
McCollum, Alice R. Rogers, Morgan Zaloznik, Etherie
McDonald, Esther
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 our employees that :
WE WILL bargain, upon request, with Local 1252, Textile Work-
ers Union of America, AFL-CIO, as the exclusive representative
of all employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment, or other con-
ditions of employment, and, if an understanding is reached, em-
body it in a signed agreement. The bargaining unit is :
All production and maintenance employees at our plant at
Fitzgerald, Georgia, excluding office clericals, professional
and technical employees, guards, and supervisors as defined
in the Act.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with economic reprisals
if they support Local 1252 , Textile Workers Union of America,
AFL-CIO, solicit our employees to abandon the said Union, or
indicate that we will not sign a contract with the Union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization to form, join, or assist Local 1252, Textile Workers
Union of America , AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to re-
frain from any or all such activities.
WE WILL offer the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions , discharging , if necessary, any replacements hired on or since
May 11 , 1959, and make them whole for any loss of pay suffered by
reason of the discrimination against them.
Ball, Cathalee Fowler, Agnes Herring, Fannie
Ball, Clark Fowler, Truitt Hester, George W.
Ball, Julius Freeman, W. J. Hogg, Elton
Baughn, L. E. Gaines, Lola M. Horton, Carolyn C.
Baughn, Louise Geiger, Willie Irvin, T. J.
Berryhill, J. W. Giddens, Alvin Jowers, Harold
Bishop, Evelyn L. Giddens, Clint Justice, A. J.
Bishop, John Henry Giddens, Emma Joyce Justice, Lucille
Bond, Charlie Giddens, Inez Keene, Calvin D.
Brown, Jeff Giddens, James A. Keene, Julian W.
Brown, Lottie W. Giddens, J. W. Kilgore, George
Brown, W. Edison Giddens, Melvin King, Murray
Brickle, Alene Glisson, Shafter King, Ward
Brickle, James E. Gordon, Elvin Lewis, C. C.
Bryant, Ernest Gordon, Louise Lewis, Lillie Mae
Chambers, Annie L. Gordon, Peggy Lewis, Quincy
Chaney, Water R. Gordon, Richard Luke, James Q.
Clark, Bessie Gordon, Thelma Luke, Will
Clark, Haywood, Jr. Goss, Frank Lush, Johnny
Clark, Herlie Graham, Aline R. Mahoney, Edward
Clark, L. H. Gresham, Dewey Lee Martin, Carl L.
Clemons, Grimsley, Bernard Mathis, Irene
Irving James Grimsley, Delma F. Mathis, Sam
Clemons, W. Alfred Gunter, Nathaniel Matthews, James P.
Carelock, Eston Gunter, Ruby Matthews, Thelma
Carelock, Lawson V. Gunter, Sewell E. McCall, James W.
Cross, Daisey B. Hadden, W. R. McCall, Ruby
Dent, Russell Haddock, F. J. McCollum, Alice R.
Eaton, Bartow Hair, Lizzie Mae McDonald, Esther
Fender, Virve S. Hall, George A. McDonald, James F.
Fish, Frances Hancock, McDowell, Jessie H.
Fitzgerald, Evola James T., Jr. McDowell, Julian D.
Fountain, Oscar L. Harper, Bailey M. McDuffie, George
FITZGERALD MILLS CORPORATION 893
Mendell, Jeanette Pope, Wilson T. Sutherland, Mardell
Mendell, Millard Portivent, Bernice Swailes, R. B.
Merritt, Eva Reaves, Shellie Searinger, Vivian
Merritt, Rudine Reeves, Hamilton J. Taylor, Lucile
Monk, Charlie Revels, Winnie Thomas,
Mullis, Wilbur Rinor, Lucille Mary Hannah
Musselwhite, Rufus Rogers, James H. Thomas, Quincey
Musselwhite, Lovelle Rogers, Morgan Thompson, Bethel
New, J. W., Jr. Rogers, Ola H. Treadwell,
Newsome, Carl Rogers, Wilbur Annie Belle
Newsome, Horace Rutherford, Bertha Treadwell, Edmond
Newsome, Ruth Seagroves, C. M. Turner, Harry
Nicholson, Ralph Shealey, H. G. Walsh, Abraham
Padgett, Bobby Shealey, Homer J. Walsh, Earline
Peacock , Mattle Sheperd, Joe Walsh, Lula
Peacock, Myrna Smith, Alice Walsh, Shelley B.
Peacock, Ola F. Smith, James W. White, Charles
Peacock , Tessie Smith, J. C. Woodard, Mildred
Peacock, Virtue Smith, Myra Wright, Lucille
Phillips, Aubrey R. Smith, Samuel M. Yancey, Carven
Phillips, Homer Stanfill, Ellis Zaloznik, Etherie
Phillips, Thelma
All of our employees are free to become, remain, or refrain from
becoming or remaining, members of Local 1252, Textile Workers
Union of America, AFL-CIO, or any other labor organization.
FITZGERALD MILLS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended , 61 Stat. 136 (herein called the Act), was heard before the duly
designated Trial Examiner in Fitzgerald, Georgia, on January 19, 20 , 21, and 22 and
February 9, 10, 11, and 12 , 1960 , pursuant to due notice to all parties . Based upon
charges filed by Textile Workers Union of America, AFL-CIO, and its affiliated
Local 1252, Textile Workers Union of America , AFL-CIO (herein called the Charg-
ing Union ), a complaint was issued by the General Counsel of the National Labor
Relations Board alleging that Fitzgerald Mills Corporation (herein called the Re-
spondent ) has engaged in and is engaging in unfair labor practices proscribed by
Section 8 (a)(1), (3), and (5) of the Act. In its answer to the complaint the Re-
spondent conceded certain facts with respect to commerce within the meaning of
Section 2 ( 6) and (7) of the Act, but denied all allegations of unfair labor practices.
The principal issues litigated at the hearing were whether the Respondent ( 1) inter-
fered with , restrained , or coerced its employees in their exercise of the rights guar-
anteed in Section 7 of the Act; (2) discriminated in regard to hire or tenure of
employment to discourage membership in a labor organization by refusing to rein-
state striking employees at the termination of a strike allegedly caused and prolonged
by unfair labor practices of the Respondent; and (3 ) refusing to bargain with the
Union as the certified representative of its employees in an appropriate unit for the
purposes of collective bargaining.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All parties were represented at the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence pertinent
to the issues involved, and to present oral argument on the record. At the close of
the hearing oral argument was presented by counsel for the General Counsel, but
waived by counsel for the Respondent. In due course thereafter, written briefs
were filed by counsel for the General Counsel and the Respondent, all of which
have been given due consideration.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDING OF FACT
1. BUSINESS OF THE RESPONDENT
Fitzgerald Mills Corporation is a Georgia corporation maintaining its principal
office and place of business at Fitzgerald, Georgia, where it is engaged in the opera-
tion of a cotton mill for the manufacture and sale of textiles. Respondent annually
ships products valued in excess of $25'0,000 directly to customers outside the State
of Georgia. Floyd W. Jefferson, Jr., of New York City is president of the corpora-
tion, and Mark M. Horblit of Boston , Massachusetts, is secretary-treasurer. Resi-
dent supervisors within the meaning of Section 2(11) of the Act include General
Manager Ernest O. Clark, Plant Superintendent Joe Cooper, D. R. Alligood, office
manager, Foreman Frank Mullis, overseer of cardroom, Foreman J. D. McDowell,
overseer of spinning room, and Foreman Bill New.
I find therefore and Respondent concedes that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, and its affiliated Local 1252,
herein called the Union, is a labor organization within the meaning of Section 2(5)
of the Act.
In. THE UNFAIR LABOR PRACTICES
A. Factual background
Prior to 1952 the Respondent operated under a collective-bargaining agreement
with the United Textile Workers Union of America, AFL-CIO, until, as the result
of a representation election in Case No. 10-RC-1339, the Charging Union was on
March 10, 1952, certified by the National Labor Relations Board as the exclusive
bargaining representative of Respondent's employees in an appropriate unit con-
sisting of all production and maintenance employees at the Fitzgerald, Georgia,
.plant, excluding office clericals, professional and technical employees, guards, and
supervisors as defined in the Act. For several years, thereafter, Respondent en-
tered into a series of written contracts with this Board-certified organization, the
latest of which was dated March 25, 1957, to remain in full force and effect until
March 25, 1959, and to be automatically renewed for an additional period of 2 years
unless written notice be given by either party to the other by January 25, 1959, of
its desire to terminate, amend, or change the terms of this agreement. This agree-
ment was negotiated and signed by James F. O'Shea as representative of Textile
Workers Union of America, AFL-CIO, and E. O. Clark as general manager of Fitz-
gerald Mills Corporation with the ratification and approval of a committee from
Local 1252, TWUA, AFL-CIO.
In the administration of the foregoing contract on September 23, 1958, Michael
Botelho, as regional director for the Union, submitted in writing to the Respondent
a series of grievances alleging certain failures of the Respondent to comply with the
existing collective-bargaining agreement by not furnishing wage rate information,
job descriptions, a seniority roster, introducing new insurance benefits without ne-
gotiation with the Union, not complying with an arbitrator's award as to doffer
twisters, not advising the Union as to what jobs are temporary and permanent, and
effectuating work load changes throughout the plant without negotiation with the
Union. Following conferences and additional correspondence on the subject, Re-
spondent on January 19, 1959, submitted a portion of the information demanded
by the Union with accompanying letter to Mr. Botelho, as follows:
In keeping with my letter to you of November 11, 1957, and our telephone
conversation within the last two weeks, I am herewith enclosing a copy of the
wage information which you requested in your letter of September 23, the
compilation of which has now been completed by the Company.
In the same letter, you requested certain information as to,job descriptions.
I pointed out to you at that time, and have pointed it' out to you since then,
FITZGERALD MILLS CORPORATION 895
that the Company has not until recently begun to made job descriptions. This
is a time consuming and slow job. They have completed a number of job de-
scriptions to date and rather than cause you to wait until all are completed, I
am herewith transmitting a copy of those which have been completed. When
the others are completed (and I cannot give you any real estimate as to how
long it will be), I will forward you additional job descriptions.
It was my understanding in our conversation that you told me that as soon
as you received the attached information , it was your intention to withdraw the
so-called unfair labor practice charge. I would appreciate your advising me
when this is done.
With respect to grievances submitted under the aforesaid 1957 contract, it ap-
pears that the Union filed with the Board and later withdrew a charge alleging that
Respondent was refusing to bargain in good faith . In the meantime , however,
Botelho on January 20, 1957, notified Respondent that the Union desired to termi-
nate the existing collective -bargaining agreement and negotiate a new contract; and
continued his demands on the Respondent for more complete information as to job
descriptions, wage rates, etc., including social security earnings paid to incentive
workers for the last two quarters of 1958. Following additional correspondence and
inquiry as to the nature of the information desired by the Union, the Respondent
through its attorney and public relations officer on March 6, 1959, submitted to
Botelho a pay schedule of incentive workers for the last two quarters of 1958 with
transmittal letter, as follows:
I am enclosing you herewith the incentive workers pay schedule for the last
two quarters of 1958.
While our bookkeeper has not figured out the hourly earnings of each worker,
this would be a matter of calculation and it would be a simple matter of division.
This is a straight time pay schedule and does not include any overtime pay for
those who are marked by an asterisk.
We trust this is the information desired.
In the meantime, Botelho notified the Respondent that it desired to begin collec-
tive-bargaining negotiations for a new contract at the earliest possible moment, and
submitted a list of his demands, proposals, and changes by registered mail on Feb-
ruary 16, 1959, as follows:
This letter will serve to officially advise you that Textile Workers Union of
America, AFL-CIO, desires to begin collective bargaining contract talks with
Fitzgerald Mills, Inc. at the earliest possible moment.
In going over the present collective bargaining agreement between your
company and our union, we have a number of changes that must be requested
by the union as a means of lifting the contract from the status that it is
presently in, to the type of a contract that will give the Fitzgerald workers of
our union the type of a collective bargaining agreement consistent with good
union.practices that they are justifiably entitled to. -
Therefore, I am taking the liberty at this point to advise you that the union is
requesting the following:
1. A minimum wage of no less than one dollar and twenty-five ($1.25)
cents per hour.
2. A wage increase on all skilled jobs that will bring the highest wage rate
for comparable work assignments to those rates being paid for similar type
work in other upholstery, drapery and fabric novelty plants.
3. An incentive system that guarantees workers on average incentive pay-
ment of no less than 12% above the bona fide base rate of the job.
4. A paid holiday program consistent with paid holiday programs in Mills
doing similar work.
5. A second week's vacation pay after three years of employment at Fitz-
gerald Mills, Inc.
6. A social security quarterly clause on all incentive jobs at Fitzgerald Mills.
7. A new no-strike , no lock-out clause. -
8. A two year contract with a wage and fringe benefit re-opening clause
upon notice of one party to the other.
9. A new work- load assignment clause that will completely do away with
misunderstanding in reference to work-load changes.
10. A new seniority clause to clear up misunderstanding between the company
and the union as to workers rights in accordance with their seniority status.
The above proposed changes,in the agreement encompasses practically all
of the items that the union wishes to discuss with
'j
our company- during our
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract conference. In addendum to the list of these proposals, changes other
than those listed above will be given to you at our initial contract conference.
The language covering the above will also be submitted to you during our
conference negotiating session . The union can avail itself for contract talks
at any time following the week ending Feb. 21, 1959.
Do be kind enough to advise this writer as to when you and your company
will be available to discuss the terms covering a new contract on behalf of
Fitzgerald Mills and Textile Workers Union of America, AFL-CIO.
At the suggestion of Respondent to provide a basis for negotiations, the Union
on March 2, 1959, submitted for consideration and study six copies of a new pro-
posed contract, and requested that a conference date be agreed upon to begin
negotiations . From this document, which was introduced in evidence as General
Counsel's Exhibit No. 13, the Respondent has pointed out in its brief and contends
that in comparison with the terminated contract the Union made extreme and
unreasonable demands concerning modification of each section that put in issue
for negotiations every section of the proposed new contract; and that this proposal
not only expanded the demands of Botelho set forth in his letter of February 16,
1959, supra, but constituted major departures in almost every particular from the
terminated contract, including drastic and in some instances illegal proposals for
changes in the former agreement with respect to wages, holiday pay, vacation pay,
methods of computing pay rates and workloads, leaves of absence for union busi-
ness, wage reopening, pyramiding of overtime payments , and an irrevocable checkoff
of membership dues and initiation fees with no escape clause except during a period
of 10 days immediately following the termination date of the agreement. Respond-
ent contends that aforesaid checkoff proposal was in direct contravention of a
Georgia law prohibiting an irrevocable checkoff and limiting the validity of such
authorization to such time as there is an unrevoked written authorization from the
individual employee concerned.
Submission of the union proposal (General Counsel's Exhibit No. 13) was fol-
lowed by a series of meetings between the negotiating parties in Atlanta, Georgia,
at which the Union was represented by Michael Botelho (regional director) as chief
negotiator, accompanied by Frank Barker (international representative) and various
members of a committee from Local 1252, TWUA, AFL-CIO. The Respondent
was represented by Ernest O. Clark (general manager ) and the law firm of
Constangy & Prowell, with Attorney Frank A. Constangy as chief negotiator but
in the absence of Constangy, the Respondent was represented by Attorney Marion A.
Prowell. Some meetings were 'also attended by Attorney J. C. McDonald as public
relations officer of the Respondent.
B. Bargaining conferences
The first meeting convened at 10 a.m. on March 23, 1959, but lasted only 15
or 20 minutes. Attorney Constangy requested more time in which to make a
study of the union proposal, and agreed to submit a counterproposal for the
Respondent at a later date. Thereupon, all parties signed an agreement extending
the old contract for a period of 30 days to April 25, 1959. Botelho proposed that
any wage increases subsequently agreed upon be made retroactive to the expiration
date of the old contract, but Attorney Constangy proposed that this matter be left
open for further negotiation. Botelho mentioned the fact that within the textile
industry a general wage movement was in progress, and inquired as to the Respond-
ent's position on wages. Constangy was noncommittal, but agreed to later submit
in detail a wage proposal to accompany the Respondent's counterproposal for a
new contract. Thereupon, the meeting adjourned.
Thereafter, in collaboration with Mark M. Horblit (member of Respondent's
executive committee) the company negotiators prepared the company counterpro-
posal, which has been introduced in evidence as General Counsel's Exhibit No. 18,
and three copies thereof were forwarded to the Union with transmittal letter dated
April 4, 1959, as follows:
In keeping with the commitment made to you at the time of our meeting
on March 23, in connection with Fitzgerald Mills, I am enclosing herewith
three copies of the Company's counterproposals in connection with the Contract.
I also wish to advise you, in keeping with our commitment, that the Company
proposes, effective April 27th, that it will adjust the wage scale of the various
classifications in the mill to reflect the new prevailing wage scales in the textile
mills in South Georgia and to correct certain inequities as between jobs. It is
the Company's estimate that its proposals will yield in excess of a 5% increase
overall, but it does not propose that the increase be across-the-board. The
FITZGERALD MILLS CORPORATION 897
Company is preparing a schedule of individual jobs and- the increases it pro-
poses to make in them, and this should be ready for presentation as of the date
of our meeting.
I will call you next week, as I agreed by telephone today, and advise you
if I have been able to set up a meeting for next Friday.
Having mailed copies of the company counterproposal to the Union, the Respond-
ent immediately posted on bulletin boards in the plant a notice to employees, as
follows:
APRIL 6, 1959
NOTICE
THE COMPANY IN ITS COUNTERPROPOSALS WHICH IT HAS MADE
TO THE UNION TODAY HAS INDICATED TO THE UNION THAT
IT PROPOSES TO PUT INTO EFFECT ON APRIL 27, 1959 A WAGE
INCREASE WHICH WILL REFLECT THE NEW WAGE SCALES WHICH
ARE BEING INTRODUCED IN THIS AREA AND TO STRAIGHTEN
OUT CERTAIN INEQUITIES WHICH NOW EXIST. WE ARE HOPEFUL
THAT THE UNION WILL SEE FIT-TO AGREE THAT WE CAN MAKE
THE INCREASE THAT IS BEING PROPOSED EFFECTIVE ON THE
DATE SHOWN AND WILL NOT CAUSE US TO HAVE TO DELAY THE
INCREASE BEYOND THAT DATE.
In the interim pending further negotiations , General Manager Ernest O. Clark
visited a competing plant in Alabama to obtain information from which to prepare
a wage proposal based upon wages , paid in that area. From, information obtained
the Respondent with the approval of Horblit prepared its wage proposal. for sub-
mission at the next bargaining session to the Union.
The next bargaining conference convened in Atlanta, Georgia, on April 10, 1959.
This meeting is significant in that both the union proposal and the company counter-
proposal for the first time circumscribed the maximum and minimum limits of the
area within which the parties must reach complete agreement . At this meeting
the Respondent presented to the Union in writing the schedule of individual jobs and
proposed wage increases therein, which had been promised in its letter of April 4,
1959, supra . This document was introduced in evidence as General Counsel's
Exhibit No. 23, and will be hereinafter called - company wage proposal. With
respect to negotiations on April 10, 1959, I find the testimony of witnesses for the
General Counsel uncertain , incomplete , and confusing ; and am therefore constrained
to rely on witnesses offered by the Respondent for an intelligent summary as to what
occurred on that date . Witnesses for the General Counsel either had no,accurate
recollection of this meeting or tended to confuse and merge it with a subsequent
meeting held on April 24, 1959.
A formal bargaining session was scheduled to convene at the law offices of
Constangy & Prowell in Atlanta , Georgia , at 2 p .m. on. April 10 , 1959 . Having in
the meantime received the company counterproposal , Botelho and Barker in the
absence of the local committee sought and obtained a preliminary informal con-
ference with Attorney Constangy at 10 a .m. to discuss some aspects of the company
counterproposal . At that time Constangy proposed to postpone the afternoon
session because of other business matters , but Botelho insisted that the afternoon
session proceed , because the local committee was en route from Fitzgerald , Georgia,
to hear a full discussion of both the union and company proposals . Attorney
Prowell was called in for orientation, so that he could represent Respondent during
the absence of Constangy. At this informal morning session Botelho raised objec-
tions to predicating wages at the Fitzgerald plant on wages prevailing in other
cotton textile mills in that area. He also discussed arbitration and other clauses
contained in the union proposal , and pointed out that the company counterproposal
had entirely overlooked and omitted any checkoff clause . Attorney Constangy
thereupon advised Botelho that decisions with respect thereto . had been made by
company officials superior to General Manager Clark , and suggested that Botelho
discuss the whole matter with Mark M. Horblit of Boston , Massachusetts, if he
desired to do so . This informal morning session lasted about . -1 hour.
The more formal afternoon session convened at 2 p .m. with Botelho, Barker, and
several members of the local committee present as representatives of the Union.
Constangy, Prowell , and Clark were present representing the Respondent . Attorney
Constangy opened the meeting by presenting to the Union the company wage pro-
posal . With this as a basis , the subject of wages was discussed pro and con for
approximately 1 hour until Attorney Constangy left the meeting at approximately
624067--62-vol . 13358 -
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 p.m. Before leaving, Constangy explained to the union negotiators that the com-
pany proposals contemplated an overall wage increase of approximately 5 percent
for all employees except the fork-lift driver, who had already received a raise in
pay within the preceding 60 days. Botelho protested that the Union had not been
consulted concerning a pay raise for the fork-lift driver. The discussion included
base rates, expected earnings, minimum wage, average earnings of weavers for the
preceding 6 weeks, change in assignment of loom fixers, rate differentials for two
machinists, and the union proposal to change the method of making wage adjust-
ments in the future by abandoning the use of wages paid by other cotton mills in
the area as a basis therefor. Upon the departure of Constangy, the subject of wages
was passed for further discussion at a later meeting. For the remainder of this
session Attorney Prowell acted as chief spokesman for the Respondent, and made
complete minutes and notes while Botelho reviewed and discussed, article by
article, both the union proposal and the company counterproposal, and outlined the
union position and requirements with respect thereto. Attorney Prowell made it
quite clear that he would not make further commitments on questions raised by
the union spokesmen until submitted for consideration to Constangy and higher
officials of the Respondent. This he agreed to do, and promised further discussion
at the next meeting . Thereupon, the meeting adjourned at approximately 5 p.m.
Thereafter, on April 13, 1959, the Respondent posted on bulletin boards in the
plant a notice to employees, as follows:
April 13, 1959
NOTICE
THE COMPANY MET WITH THE UNION FRIDAY, APRIL 10TH, AND
PRESENTED TO THEM THE FOLLOWING WAGE RATES THAT IT
PROPOSES TO PUT INTO EFFECT ON APRIL 27TH. THESE RATES
WILL REFLECT THE NEW WAGE SCALES WHICH ARE BEING INTRO-
DUCED IN THE AREA. WE ARE HOPEFUL THAT THE UNION WILL
SEE FIT TO AGREE THAT WE CAN MAKE THESE INCREASES ON
THE DATE SHOWN AND WILL NOT CAUSE US TO DELAY THIS
INCREASE.
On or about April 20, 1959, Botelho made a trip to Boston Massachusetts, and in
conference there with Mark M. Horblit discussed the entire situation and status of
negotiations for a new contract. Botelho related to Horblit the problems of the
Union in reaching an agreement with General Manager Clark and his attorneys,
and requested his intervention to bring about an amicable settlement of the issues
in dispute. Mr. Horblit told Botelho in substance that reports from General
Manager Clark did not quite coincide with the union interpretation, but assured
Botelho that he would go to New York and discuss these matters with President
Floyd W. Jefferson, Jr., and thereafter transmit an answer thereto either directly or
through Attorney Constangy to the Union. Upon returning to Atlanta, Botelho
reported the Horblit conference by telephone to Attorney Frank A. Constangy, and
by mutual consent a further meeting for negotiations was scheduled for Friday,
April 24, 1959. Constangy told Botelho that he could not attend this meeting, but
that Attorney Prowell would be present as spokesman for the Respondent. They
discussed a further extension of the old contract, and Constangy thereafter prepared
an agreement continuing the contract in effect to a date to be agreed upon and
inserted at time of signing.
Consequently, the next bargaining conference convened in the absence of Attorney
Constangy at 10:30 a.m. on April 24, 1959, with General Manager Clark, Attorney
J. C. McDonald, and Attorney Marion A. Prowell representing the Respondent.
The Union was represented by Botelho, Barker, and several members of the local
committee. Detailed notes and minutes of the meeting were kept by attorneys for
the Respondent, but not by representatives of the Union. With respect to the
events of April 24, 1959, the testimony,of Botelho and other witnesses for the Union
is so vague, indefinite, garbled, and confused with the prior meeting on April 10,
1959, and the posting of aforesaid notice in the plant by Respondent on April 13,
1959, that I find the union version thereof unrealistic and inaccurate as compared
with the version of the Respondent, and am constrained, therefore, to credit the
testimony of Attorney Marion A. Prowell as to what occurred.
Marion A. Prowell credibly testified in substance that the meeting convened at
10:30 a.m. and remained in continuous session to. adjournment at 1:20 p.m. on the
same date-that initially Botelho protested,the'posting.by Respondent of the notice
concerning wage rates on April 13, 1959, and accused' the Respondent of -trying
thereby to discredit the Union; whereupon, the Respondent agreed to;prepare and
FITZGERALD MILLS CORPORATION 899
post a more acceptable notice in lieu thereof. Botelho then proposed to review the
company counterproposal and point out revisions thereof demanded by the Union
along with argument as to why the Respondent should accept the proposed changes
therein. Thereupon, discussion of the company counterproposal proceeded. It was
agreed that article I (Recognition) and article II (Hours of Service) were satis-
factory. As to article III (Discrimination), Botelho proposed that the discrimination
clause from the old contract be retained,,but Respondent would not agree to that.
As to article IV (Grievances), Botelho proposed to retain the corresponding clause
from the old contract with certain changes in the arbitration clause, but the Respond-
ent would not agree to that. As to article V (Reporting Time), Botelho proposed
in lieu thereof to insert article III, section G, of the union proposal increasing the
pay for reporting time to 4 hours instead of 3 hours, but the Respondent would not
agree to that. As to article VI (Production Interference), Botelho proposed that
article VII of the old contract be retained in lieu thereof. There was also discussion
in which General Manager Clark also participated with respect to allowing repre-
sentatives of the Union to enter the plant to investigate working conditions. Prow-
ell stated that he would recommend that International Representative Barker be
permitted access to the plant for the purpose of investigating grievances. As to
article VII (Wages), Botelho objected to section (a) and (b) limiting and conform-
ing wage rates in the Fitzgerald plant to those prevailing in cotton mills located in
the area of southern Georgia. He agreed to section (c) as written, but as to section
(d) proposed to increase the pay differential of employees working on the third
shift from 5 cents per hour to 7 cents per hour in addition to their regular pay.
The Respondent would not agree to any change in article VII as proposed by it.
As to article VIII (Seniority), Botelho would not agree , and proposed that the
seniority clause of the old contract be retained in lieu thereof. As to article IX
(Management ), all parties reached agreement . As to article X (Workload), Botelho
rejected Respondent's proposals , insisted that article IV of the union proposal be
adopted in lieu thereof, but stated that he would consider retention of article XI
(Workload) contained in the old contract. Respondent would not agree to that.
As to article XI (Vacations), Botelho proposed to withdraw his original proposals
on vacation pay, and submitted a new proposal that was not accepted by the Re-
spondent. As to article XII (Bulletin Boards ), all parties reached agreement. As
to article XIII (Cooperation), all parties reached agreement . As to article XIV
(Safety and Health), all parties were in agreement. As to article XV (Acknowl-
edgment that no grievances are now outstanding), Botelho insisted that pending
grievances be settled before including such a clause in the new contract. As to
leaves of absence (omitted), Botelho insisted that article XVI of the old contract be
included in a new contract. As to article XVI (Terms of Agreement), Botelho
insisted that article XVIII (Amendments to Agreement) as contained in the old
contract be also included in a new contract. Botelho said he would agree to. a
contract for more than 1 year provided it contained a reopening clause at each
anniversary date upon notice of 60 days.
Following review of the formal contract proposals there was a discussion on wage
rates based upon the company wage proposal. Botelho insisted upon a minimum
wage rate of $1.25 per hour and a wage increase of 7 cents per hour for all em-
ployees instead of the 5 cents per hour increase proposed by Respondent. He also
insisted upon a minimum base rate of $1.33 for weavers, $1.60 for loom fixers, and
$1.70 for fixers , and proposed that all wage rates in the plant be tied in with wages
paid by textile plants in South Carolina rather than the southern Georgia area,
but the Respondent would not agree to that. General Manager Clark suggested
that the wage rates be based upon those paid by competing plants in Alabama, but
Botelho would not agree to that. Botelho demanded that a checkoff clause be in-
cluded in the contract, and Prowell told him that the Respondent had decided as a
matter of policy not to enter into another agreement containing a checkoff clause in
the form proposed by Botelho. At the conclusion of the meeting all parties signed
the extension agreement previously prepared by Attorney Constangy, and thereby
the old contract was continued in full force and effect to May 9, 1959. Another
meeting was scheduled for May 7, 1959, and Attorney Prowell with approval of
the union representatives dictated a notice to be posted on bulletin boards in the
plant, as follows:
COMPANY NOTICE
TO ALL FITZGERALD EMPLOYEES
Your management met with the Union negotiators on Friday, April 24, 1959.
At this conference the Union made a counterproposal to the Company pro-
posal on wages that, was posted throughout the plant in relation to the Com-
pany's wage_ increase proposal. - ,
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No agreement was reached on wages and the parties will meet again within
two weeks to negotiate further on the wage proposals.
Both the Union and the Company have agreed to extend the Union contract
for a period of two weeks from the expired date of April 25, 1959 to midnight,
Saturday, May 9, 1959.
Dated this 27th day of April, 1959.
Upon adjournment of the meeting at 1:30 p.m. on April 24, 1959, General Man-
ager Clark called his office at the Fitzgerald plant, dictated another notice to his
secretary by telephone, and gave instructions that it be posted prior to the shift
change at 2 p.m. on that date. This is the notice that, in my opinion, the Union has
mistakenly and unsuccessfully contended was posted prior to 6 a.m. on that date,
several hours before the above bargaining session was convened in Atlanta, Georgia.
From a preponderance of the evidence I find that this notice was in fact prepared
and posted between 1:30 and 2 p.m. as contended by the Respondent, as follows:
April 24, 1959
NOTICE -
TO EMPLOYEES:
THE COMPANY AND UNION REPRESENTATIVES MET IN CON-
TRACT NEGOTIATIONS TODAY AND THE UNION REFUSED TO
AGREE TO THE COMPANY'S WAGE PROPOSAL. THE UNION IN-
SISTED THAT NEGOTIATIONS ON WAGES BE CONTINUED AND
THEREFORE, THE WAGE INCREASE WILL NOT BE PUT INTO EFFECT
AS OF MONDAY, APRIL 27, 1959.
On or about May 5, 1959, Botelho had a telephone conversation with Attorney
Frank A. Constangy in which he inquired whether Constangy had received any reply
from higher officials of the Respondent with respect to union counterproposals sub-
mitted to Attorney Prowell at the meeting on April 24, 1959. Constangy stated in
reply that he had discussed the entire situation with Horblit by telephone, and that
the Respondent was not inclined to recede from its position as outlined in the
original company counterproposal and its wage proposal; but that Horblit was
going to New York for a conference with other members of Respondent's executive
committee, and would thereafter call him again concerning the matter. Thereupon,
Botelho unsuccessuflly tried to contact Horblit by telephone, and on May 6, 1959,
sent him a telegram requesting that Horblit call him by telephone prior to the meet-
ing scheduled for the next day. No reply thereto from Horblit was received. In
the meantime Attorney Constangy ascertained that Horblit would be in New York
on May 7, 1959, and the scheduled bargaining conference on that date was post-
poned until 1 p.m. to facilitate conversation between Horblit and Constangy prior
to the meeting. The Respondent was there represented by General Manager Clark
and Attorneys Constangy and McDonald. The Union was represented by Botelho,
Barker, and several members of the local committee. Botelho requested an answer
from the Respondent on his counterproposals made at the former meeting. Attorney
Constangy stated that the Respondent would adhere to its original proposals. There-
upon, Botelho announced that he was withdrawing any concessions offered by him-
that he would stand on the original union proposal of March 2, 1959, and that he
would hold a meeting with the employees at Fitzgerald and recommend that they go
on strike. Thereupon, Constangy proposed that the Respondent, without prejudice
to further negotiations, make effective as of Monday, May 11, 1959, its wage pro-
posal, but Botelho would not agree to that. Botelho then dispatched a telegram
to Mark M. Horblit, as follows:
POSITION TAKEN BY YOUR COMPANY NEGOTIATORS DURING
CONTRACT TALK THIS THURSDAY, MAY 7, 1959 COMPELS THE
LOCAL UNION COMMITTEE AND I TO RECOMMEND THAT THE
FITZGERALD MILL EMPLOYEES STRIKE' YOUR COMPANY BEGIN-
NING ONE MINUTE AFTER MIDNIGHT SATURDAY MAY 9, 1959.
THE UNION NEGOTIATING COMMITTEE AND I WILL CONTINUE
TO AVAIL OURSELVES FOR FURTHER CONTRACT DISCUSSIONS
WITH YOUR COMPANY NEGOTIATORS FROM THIS DATE FOR-
WARD.
Under dateline of May 7, 1959, the Respondent mailed a notice to each of its
employees, as follows:
NOTICE TO OUR EMPLOYEES:
We met with the Union committee, Mr. Botelho, and other Union officials in
Atlanta today in an effort to reach an agreement on a contract. We were not
able to reach agreement , the Union contending that unless they could get cer-
FITZGERALD MILLS CORPORATION 901
tain demands that they were making that they would not extend the present
contract. The contract expires on Saturday. The Union officially advised us
they were calling a strike as of next Monday morning.
Under the laws of Georgia and in keeping with the policy of this mill, this
mill will be open for business on Monday on all shifts. Those employees who
want to work will be free to work and their jobs will be available for them.
No employee and no other person has any right to interfere with any person
who desires to work.
Those of you who want to strike have a right to do so. Those of you who
do not want to strike and who want to work, have an equal right to do so.
The decision is up to you.
In the negotiations today we made clear to the Union even though they re-
jected our proposal, that we thought it only fair that we make effective imme-
diately the wage increases we proposed to the Union early last Monday and a
copy of which was posted on the bulletin board without prejudice to the Union's
demands.
On the same date, the Union mailed to each employee a notice, as follows:
TO ALL FITZGERALD EMPLOYEES
CONTRACT NEGOTIATIONS ARE OVER
The Union Negotiating Committee , and your International Union Negotia-
tors could not accept Mr. Clark's final offer on wages, and other contract
benefits.
BECAUSE
what Mr. Clark has offered the Union by way of a wage increase, and new
contract benefits, is an insult to all the Fitzgerald Workers.
IN THE FIRST PLACE
there is not one organized plant in the North or South , making the same cloth
that is made in Fitzgerald Mills that pays its skilled workers and machine
tenders such low sub-standard wages like you are getting in your plant.
WE PRESENTED MR. CLARK
with what we knew was a fair wage scale, and our contract demands, in rela-
tion to all of your other conditions of work were reasonable, and in all honesty
we believed was the least benefits, that you are entitled to.
MR. CLARK REJECTED
our proposals , and he insisted that we write a new contract on his terms.
THIS THE UNION COMMITTEE
could not agree to do. For to sign such a sub-standard contract, would betray
your trust in your Union and, once again deny you what you are entitled to by
way of good hourly wages, good fringe benefits, and a good Union contract.
THE CHALLENGE TO THE UNION
by Mr . Clark , must be met by you.
AND FOR THIS REASON
we are asking you to attend the Union meeting Saturday, May 9, 1959, at the
Cotton Mill School House, at 2:00 P.M. For at this meeting you will be asked
to decide your course of action from that day on.
COME COME COME
to the meeting Saturday, for the very existence of your Union is threatened.
For after Mid-night Saturday, your Union contract expires, and there will be
no Union contract to protect you on wages, grievances, seniority , and work-
loads from Monday, May 9, 1959 on.
(Signed) M. MICHAEL BOTELHO, (Signed) J. F. MCDONALD,
Regional Director, President,
TWUA, AFL-CIO. Local Union No. 1252.
(Signed) EDMOND TREADWILL,
(Signed) W. F. BARKER, Vice-President,
International Representative , Local Union No. 1252.
TWUA, AFL-CIO. (Signed) BERNARD GRIMSLEY,
Financial-Secretary,
( Signed ) WALTER WOLFE, Local Union No. 1252.
Internattonal Representative , (Signed) WILSON T. POPE,
TWUA, AFL-CIO . Committeeman.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Incidents of the strike
At 2 p.m. on May 9, 1959, the Union held a meeting at the Cotton Mill School
House in Fitzgerald , Georgia, when and where Michael Botelho reviewed the
bargaining situation and explained his position with respect thereto to approximately
130 employees . Pursuant thereto a strike was called for midnight on that date,
but in fact became effective at work starting time on Monday, May 11, 1959, when
a picket line was established along the road in front of the plant gate . The plant
continued in operation with a reduced complement of workers , and from time to
time obtained replacements for strikers by transfers within the plant, recalling laid-
off employees , and hiring new applicants for employment . On May 12, 1959, the
Union explained by letter to all Fitzgerald workers the issues involved, as follows:
TO ALL FITZGERALD WORKERS:
Greetings,
Many questions are asked by you in relation to the strike at Fitzgerald Mills,
in Fitzgerald , Georgia. This letter, in my belief would be six pages long if I
was to spell out for you in detail all of the issues that the Company and the
Union could not agree upon during our contract negotiations.
So that you may understand the most compelling reasons why the Union
representatives could not agree to the last Company proposals , I have taken
the-liberty of pointing out for you certain sections of the Company's proposal
for a contract that would hurt you, and not help you as a worker at Fitzgerald.
I have copied some of the Company's proposals to the Union that I feel
are most objectionable . I have taken the liberty to underline these proposals
so that you can understand more fully just what the issues are.
Under article I of the Company's proposal , you will find that overtime is
paid only in excess of forty hours per week and not after eight hours in any
one day.
Under article IV you will find underlined the amount of days that it would
take to dispose of a simple grievance , under the Company's proposed contract.
In other words in order to settle a simple grievance , provided however that
we could get the Company to meet on this grievance in the specified time, it
could take forty days to settle a simple grievance . But, you will note on each
of these steps there is no time limit to require the Company to meet with the
Union.
What does this all mean ? This means that as in the past the Company
could , if they wanted to , take as much as six months to a year to settle a
grievance because in no section of this article does it say that the Company
must meet with the Union in any specified time limit.
While speaking on grievance procedure, it is very important to note, that
section V does not even give the Arbitrators the right to add to, or subtract
from the grievance . This could be a hopeless situation for you.
Under article VII, on- wages, the Company again proposed to the Union,
that we tie your wages with the wages being paid in the cotton Mills of South
Georgia. The Union negotiators take the position that this is unfair to you
because the cloth that you weave is sold on the market by the Company at a
much higher price per yard than the cloth woven in any of the cotton Mills in
South Georgia.
The Union suggested in relation to wages, a very sensible wage plan, a
copy of which you received along with the other Union proposals a short
time ago.
The Company rejected our wage plan, and substituted one of their own.
When one averages out the amount of money per hour the wage increase
would cost the Company, the increase is only 50 per hour.
While this low wage increase offer was bad enough by itself, the Company
then disclosed its wage proposal to the Union . In essence , the wage rates
offered by them were not base rates, but expected earnings for all workers
on piece work.
NOW WHAT DOES THIS MEAN? For the loomfixers , the Company
proposed a rate of pay of $1.70 per hour for loomfixers provided however
that the Union would agree on behalf of the loomfixers , that they would take
18 additional looms. Thereby increasing their assignments to 53 looms per
sections.
While this is in itself was bad enough , the Company was not willing to stop
there . They also told us that the loomfixers in order to make $1.70 per hour
must maintain 86% efficiency on their sections.
FITZGERALD MILLS CORPORATION 903
This question should be asked the loomfixers , "Do you loomfixers believe
that you can maintain your efficiency average at 86 %?" While .I am not a
loomfixer , I know enough about a weaving .Mill to know that a t would be
impossible for you to keep up this efficiency and you would not be getting your
proper pay and meanwhile be increasing your work assignments by over 50%.
If the strike should fail , the loomfixers are going to find themselves in a
position that would almost be impossible to work under.
Higher work -loads and pay far below the $1.70 per hour.
Mr. Clark told me that there were many piece work jobs in the Mill that he
felt needed to be changed , by increasing their job loads . Spinners, Twisters,
Daffers, Card Tenders , Battery hands, Quill Winders , and Winders, Warptenders,
practically every job in the plant , in the very near -future would be involved in
increased work load changes.
The Union told Mr. Clark, that they . could not sign a contract with him
that did not protect the wages of the piece workers.
The Union also told Mr . Clark , that under his -formula , people could be
doing more work , and getting less money than before the contract proposal was
submitted.
On this issue alone , every worker in Fitzgerald Mill should be outraged,
because if you felt that you were being exploited before , just imagine what
would happen if the Union should agree to Mr . Clark's wage proposal.
Article VIII Seniority made it impossible for the Union, even if it wanted
to, to agree to this Company proposal, because of section A of this article.
You will see underlined in the judgment of the Company who should be laid
oft and who should not be. Who should be called back , no matter how many
years of faithful service you have given to the Company at Fitzgerald.
The older people who have worked there for many years could be laid off
sooner than a'younger person and the Union could do nothing about it.
Again we say that all of the long time employees of this Company should
strike the Company an this issue alone , because they would have no seniority
rights guaranteed them if the Union was to sign the proposed contract that it
received from Mr . Clark.
The second paragraph in relation to 'promotions , again specifies the same
ground rules as illustrated in Section A above in relation to transfers from one
job to another.
Again under this article the Company could continue a temporary job for
five years and the Union could do nothing about it.
In section 6, the Company could discharge anyone if he or she failed to
perform their work as the contract specifies.
Article X Work-loads, under the Company's proposal for workload changes,
here again , the Union found itself in a very impossible position.
As you read section B of the work-load section , you will see outlined the
method by which the Company would increase your jobs.
The next paragraph underlined , again would stop the Union from challenging
a work-load change made by the Company on the basis of ,the more efficient
performers , and not the average worker.
If the Union should agree to such a work -load clause . you could understand
that Mr. Clark and the Company could establish higher work -loads in the plant
by changing your job and establishing a new job load for you on the basis of
the proficiency of the fastest workers in the department.
How many of the older workers and yes even the average workers would
remain as employees of this Company should the Union agree to such a work-
load clause.
The answer is, that any time, the slower worker could be fired from their
jobs for inefficiency , and the Union would be unable to help them.
Under article XI, the Company again proposed one weeks vacation with pay.
The Union wanted two weeks vacation pay for all employees working for the
the Company for 5 years or more.
The Company would not give the Union paid holidays . The Union asked for
6 paid holidays and here in the South, many textile workers are getting from
one to seven paid holidays per year.
The Company would not agree to a new Union proposed Insurance-benefits
clause in the contract.
We feel that you deserve and need changes in your insurance benefits that
would be consistant with the raise in price of hospitalization , medicine, etc.
The Company said the employees must accept what they already are paving
for in the way of insurance and they refused to make any improvements what-
soever on insurance.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company would not agree to the check -off of Union dues, even though
it has been doing this for over ten years.
The Company did not agree to a new no -strike , no lock-out clause submitted
by the Union . In other words , the Company consistant with its bad faith
bargaining attitude for many years , handed the Union negotiators a 61/2 page
document that they insultingly called a Union contract.
The Union has a better name for such a contract , and unless these contract
clauses are changed, the Union , if we were to sign such a contract , would in
essence be breaking faith with you. For the contract Mr. Clark offers would
not help you.
We, in the Textile Workers Union of America pride ourselves as being a
decent and honest Union , and not a Company dominated , sellout institution.
So the strike is on, and while there is a break in the ranks, 'I am happy to
report to you that there are more people outside on strike , fighting the good fight
to preserve their jobs, than there are going into the Mill.
To those of you who are now working , and not on strike with our courageous
Brothers and Sisters , let me issue this warning to you.
Mr. Clark has done a good job of twisting the facts around . If you continue
to cross our picket lines , you will in the end be helping Mr . Clark, and the Com-
pany to destroy you and your job.
What is your answer? Will you join us on the picket line? Will you fight to
protect your seniority ? Or will you keep on working when you know already
what Mr. Clark holds for you in the future.
We sincerely hope you will join with us outside the Mill until such time as
Mr. Clark agrees to negotiate an honorable and decent contract that will protect
you rather than hurt you.
Sincerely yours,
MB/f
oeiu #21
M. MICHAEL BOTELHO,
Regional Director.
The next meeting of the negotiating parties was held at the instance of the Federal
Mediation and Conciliation Service in Atlanta, Georgia, at 14 a.m . on June 1, 1959.
Present for the Respondent were General Manager Clark , Attorney Constangy, and
Attorney Fred Elarbee of the Constangy & Prowell law firm. The Union was repre-
sented by Botelho, Barker, several members of the local committee , and others.
After separate private conferences with the parties, D. K. Jones (commissioner)
convened the meeting . Botelho announced that the issues in dispute consisted of
(1) wages, (2) grievance procedure , ( 3) workloads , (4) seniority , ( 5) checkoff,
(6) insurance , (7) holidays, ( 8) vacations , and (9) an incentive program. Dis-
cussion of the various articles and sections contained in both the union proposal
and the company counterproposal and Respondent's wage proposal ensued. With
respect to grievances , Botelho complained that under company counterproposal
the time required to reach arbitration was excessive . Thereupon , Attorney Cons-
tangy proposed to amend article IV , section ( 3), thereof by adding an additional
sentence , as follows:
If no meeting at Step 3 is held within 20 days of the request for such meeting,
the matter may then be taken to arbitration under paragraph ( b) hereof.
.With respect to layoffs and reinstatements after layoffs, Botelho expressed op-
position to making physical fitness in the judgment of the Company a condition
thereof ; and Attorney Constangy proposed to insert in article VIII ( Seniority) of
company counterproposal the following language:
In layoffs and recalls involving the same classifications and in the same jobs
with the same physical requirements , physical fitness will not be controlling as
against seniority unless there are increased or different physical requirements
on the jobs remaining or the jobs to be filled.
Botelho again raised a question under the third paragraph in section (a) of
article VIII to clarify whether jobs were permanent or temporary; and Attorney
Constangy proposed to eliminate this paragraph and insert in lieu thereof the
language which appears in his confirming letter of June 4, 1959 , infra.
Botelho reviewed at length his proposed insurance benefits, and agreed to make
certain changes and modifications in the demands set forth in the union proposal.
When it was pointed out to him that Respondent already had insurance for the
benefit of employees pursuant 'to an agreement negotiated with International Repre-
sentative James F. O'Shea , Botelho requested that he be furnished with a copy of
FITZGERALD MILLS CORPORATION 905
that policy. Respondent agreed to do so, and thereafter sent him the policy with
letter of transmittal dated June 4, 1959, as follows:
DEAR MR. BOTELHO: In keeping with our discussion at the meeting on last
Monday, June 1, 1959, I am enclosing a copy of a sample insurance certificate
with the Southern Life Insurance Company which is a policy in force on the
employees at the above mill. The premiums on this insurance are 58¢ per week
for an employee; $1.28 per week for an employee and one dependent; and $1.78
for an employee with more than one dependent.
I also agreed that I would review and submit to you specific language on our
proposal to eliminate the fourth paragraph- of Article VIII of the Company's
proposal dealing with so-called temporary and permanent jobs. The Company
proposes to eliminate that paragraph and substitute the following in lieu thereof:
The fact that a job runs only part of the time and not full time or the fact
that the nature of the Company's production is such that it necessary to run
any job on a part time basis will not be regarded as constituting a lay off
on the part of the person whose job is partially curtailed or a vacancy on
such job which would enable the employees on the curtailed job to bump
another junior employee whose job happens to be running full. An em-
ployee will exercise bumping rights only when his job is completely dis-
continued and not when partially curtailed to the point that it operates less
than a full shift or week.
With respect to workloads, Botelho complained that the clause proposed by Re-
spondent did not furnish sufficient data to the Union in connection with changes made
in the jobs of individual employees. Thereupon, Attorney Constangy proposed to
amend article X (Workload) of company counterproposal by inserting the second
paragraph from article XI of the old contract providing for specific prior notice of
changes in workloads to the president or vice president of the Local Union in advance
of any change. Botelho would not agree to that, and insisted on having an workload
clause that would provide for trial periods based upon the practices of the average
rather than most efficient producers. As to holidays, he demanded that Thanksgiving
Day, Christmas Day, and New Year's Day be paid holidays. With respect to va-
cations he withdrew a previous proposal, and requested that a second week of vacation
with pay be added for all employees after 5 years' service.
In conclusion Botelho again discussed wage rates, and demanded additional wage
increases and the checkoff clause desired by him with respect to the company
wage proposal. In that regard, Attorney Constangy advised Botelho that neither he
nor General Manager Clark had authority to increase the money items or cost items
theretofore proposed by Respondent or to agree to a checkoff clause without prior
approval of higher officials of the Respondent. Constangy agreed, however, to again
submit his demands to higher authority, but expressed doubt that Respondent would
make any further concessions with respect to wages. Thereupon, the meeting
adjourned.
Michael Botelho credibly testified without contradiction that Attorney Constanigy
went to New York shortly after June 5, 1959, discussed the situation with President
Floyd Jefferson, Jr.; and thereafter advised him that the Respondent would not
recede from its prior position. Thereupon, Botelho requested the Federal Mediation
and Conciliation Service to reconvene the parties for further negotiations.
The next bargaining session was held on July 1, 1959, in Atlanta, Georgia, before
Commissioner D K. Jones of the Federal Mediation and Conciliation Service.
Present for the Respondent were General Manager Clark and Attorney Prowell.
Constangy was ill in a hospital and did not attend. The Union was represented by
Botelho, Barker, and members of the local committee. After separate conferences
with both parties, the commissioner suggested that they again review and discuss
the outstanding proposals of Respondent and the Union. In going through the
company counterproposal, Botelho agreed to accept article I (Recognition), article
IT (Hours of Service), article IV (Grievances), article V (Reporting Time), article
VTT (Seniority), article IX (Management), article XII (Bulletin Boards), article
XTTT (Cooperation), article XIV (Safety and Health), and article XV (Acknowl-
edgment that no grievances are now outstanding, provided pending grievances were
settled). He did not agree to accept article ITT (Discrimination), article VT (Pro-
duction Interference), article VII (Wages), article X (Workload), and article XI
(Vacations). As to article III (Discrimination) and article VI (Production Inter-
ference), Botelho proposed to substitute and renew both of these articles as they
appear in the old contract. As to article VII (Wages), Botelho agreed to accept
the wage increases already put into effect by the Respondent, provided Respondent
would grant another additional 5 percent or 5 cents per hour wage increase at the
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
end of 6 months . As to article X (Workload ) Botelho proposed a clause like that
in the old contract with changes which he would later submit in writing. As to
article XI ( Vacations ), Botelho proposed to add an extra week's vacation with pay
after 5 years ' service.
With respect to demands of the Union not covered by the company counter-
proposal, Botelho agreed to accept the insurance program already in effect , offered
to reduce his demands of paid holidays from six to two, and indicated that he would
waive demands for a checkoff if agreement could be reached on all other provisions
of a complete contract . With respect to leaves of absence for illness, union business,
service in the Armed Forces, etc., Botelho requested that article XVI of the old
contract be inserted in a new contract.
By reason of his limited authority in reaching an agreement with respect to money
matters and the checkoff , Attorney Prowell kept detailed notes concerning the new
concessions and proposals being made by the Union , and agreed to submit them to
Attorney Constangy and higher officials of the Respondent for a final answer thereon.
He further agreed to furnish Botelho with a complete answer to his proposals on or
before Monday, July 6, 1959 . Thereupon , the meeting adjourned..
On Monday , July 6, 1959 , Attorney Prowell notified Botelho that the Respondent's
officials were unwilling to accede to or agree to the new proposals made at the meet-
ing of July 1, 1959 . Botelho then proposed to forthwith terminate the strike and
send the strikers back to work in the plant . Attorney Prowell 's reply was that only
21 jobs were available in the plant , and that strikers who applied for jobs would be
hired to fill these vacancies on a first -come first-served basis . Thereupon, the
strike was terminated , and all strikers applied for immediate reinstatement. The
Respondent refused to recognize any right to reinstatement , but required all strikers
to sign applications for work as new employees , and it was further required that
such applications be currently renewed from week to week thereafter , or otherwise
they would not be considered . for vacancies that might arise in the plant. At the
time of the hearing it was asserted that 49 former strikers had been rehired.
The next and final meeting of the negotiating parties was held before the Federal
Mediation and Conciliation Service in Atlanta, Georgia, with Commissioner D. K.
Jones presiding , at 10 : 30 a.m . on July 10 , 1959. The Respondent was represented
by General Manager Clark and Attorney Marion A. Prowell, the Union by Botelho,
Grossett , Attorney J. R. Goldthwaite , Jr., and several members of the local com-
mittee. Botelho stated that the strike had been terminated ,' thereby removing all
pressure from the parties, but that differences between the Company and the Union
were still in effect ; and requested that negotiations be resumed from the point at
which the last meeting had been concluded . Thereupon, Attorney Prowell explained
in substance that the Respondent had during the strike hired permanent replacements
for the strikers by assuring them that they would not lose their jobs by reason of the
seniority of strikers coming back to work and that this position of the Company must
be protected and clarified by signing a written document to that effect before any
contract could now be negotiated with the Union . Prowell presented for agree-
ment by the Union and inclusion in any contract signed between the parties a pro-
posal , as follows-
COMPANY PROPOSAL
1. Those strikers who have been permanently replaced have no rights under
this Contract.
2. Those strikers who were permanently replaced and have been placed on
other available openings shall have their seniority rights under this Contract for
future vacancies.
Botelho, thereupon , refused to enter into such agreement or negotiate on any basis
whatsoever that would foreclose the right of strikers to return to their old jobs in the
plant. The meeting ended at 11:30 a in , marking the end of all negotiations between
the parties.
On July 13. 1959, Attorney J. R Goldthwaite, Jr., on behalf of strikers and the
Union , posted a letter to the Respondent as follows:
This will confirm Mr. Botelho's conversation with*Mr . Marion Prowell on
July 6th in which he advised Mr . Prowell that the strike at Fitzgerald Mills was
being terminated and that as of the following morning, Tuesday, July 7th, all
striking employees unconditionally offered to return to their former jobs or to
any available work. Each of the striking employees did then and does now un-
conditionally offer to return to work at Fitzgerald Mills Corporation at his
former job or at any other available employment This offer is made without
waiving any rights which the employees may have tinder the National Labor
FITZGERALD MILLS CORPORATION 907
Relations Act, as amended , in proceedings now pending or which may be here-
after instigated.
In reply thereto, Attorney M. A. Prowell , on behalf of the Respondent , posted a
letter to Attorney Goldthwaite on July 16 , 1959, as follows:
This will acknowledge receipt of a copy of your letter of July 15 , 1959 to
Fitzgerald Mills Corporation.
We must advise you that your letter does not represent the events that
transpired between the writer and Mr. Botelho of the Textile Workers Union,
nor does it accurately reflect the subsequent events that took place. We can only
interpret your letter as a statement of the events as you would like for them to
have occurred . Mr. Botelho , in his letter to the Georgia State Department of
Labor under date of July 8th , accurately recorded his statement to me on July 6th
that he intended to call off the strike and to direct the strikers to report to the
Company commencing July 7th and apply for a job. Mr. Botelho also ac-
curately notes in his letter that there were less than thirty vacancies that had
not been previously filled and that the Company would consider those strikers
who applied for any vacancies that existed.
As you know , a number of the employees who went on strike have not applied
for a job with the Company.
D. Alleged violations of Section 8(a) (1); and indicia of bad-faith bargaining
Counsel for the General Counsel contends that certain conduct engaged in by
supervisors of the Respondent is indicia of bad -faith bargaining and also interfered
with , restrained , and coerced employees in their exercise of the rights guaranteed
in Section 7 of the Act. It was not denied that in April 1959 , after Respondent had
posted its notice of April 13 , 1959, proposing certain wage increases , Mildred
Woodard (employee in the spinning room ) jold her supervisor (Foreman J. D.
McDowell ) that the Company was offering less ,pay increases than expected, and
that the Union would get them a larger pay raise ; whereupon , McDowell said he
did not think so, he did not think the Union could do anything about it, and if they
wanted to keep their jobs they had better just leave the Union alone. At a later
date in November , after the strike , this employee (while employed part time) re-
quested additional work; whereupon , Foreman McDowell said that if she had not
walked out she would have a regular job on the first or . second shift-that he could
have, and, in fact tried to tell her that after she had , become a member of the
Union . (In the opinion of the Trial Examiner the foregoing remarks of a sub-
ordinate supervisor in isolation do, not constitute a violation of Section 8(a)(1)
of the Act.)
Irving James Clemon ( twister doffer) incredibly testified that about the middle of
April 1959 he had a casual conversation with General Manager Ernest 0. Clark
on the railroad tract at the plant in which Clark said that there was not going to
be any union down there, that the Company would not stand for it, (This con-
versation was credibly denied by Mr. Clark .) Clemons credibly testified further
that later in April he went into the office to see Clark , because he needed his pay-
check to support his family and was afraid there was going to be a strike-that he
volunteered to withdraw his authorization for a checkoff in - favor of the Union,
and thereupon signed a withdrawal slip tendered to him at that time. He told Clark
that the boys were talking about a strike, and Clark said, "Yeah, that is all right.
You people have chosen Michael Botelho to lead you, now let Michael Botelho lead
you,"-that he believed they were nothing but Communists , and could not picket
a fence in the State of Georgia and get away with it. He told Clark that someone
was trying to run him away from the- plant , and Clark said, "As long as I am Gen-
eral Manager nobody ain 't gonna run you off." Clark said that the Union was in-
terested only in dues, and that he would not agree to a checkoff clause that would
require employees to belong to a union. -
Clark's credible version of the foregoing conversation was that Clemons came to
his office prior to the strike, said there were rumors of a strike , that he had a big
family to take care of and was forced to have work ; that he told , Clemons the gate
would be open for him to work, and it would ,be entirely up to him whether or not
to work if a strike was called . Consequently, I- find therein no violation of Section
8(a)(1)
Mrs. Tessie Peacock (spinner ) credibly testified that - General -. Manager Clark
called her into his office about 1 week prior to- the strike and talked to her as a
friend . Clark related to her that he had heard there , would be a strike and was
afraid there would be serious trouble-that he did not want anybody to get hurt.
He recalled that his father and her husband had been killed over something like this,
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he did not want anything like that to happen again . Clark explained to her
that in the event of a strike the employees would not draw unemployment pay and
could not get jobs elsewhere until the labor dispute was settled. Clark said that
he did not like the contract that the Union wanted him to sign by reason of two
clauses in it, one of which was the checkoff-that if they wanted a union they would
just have to collect their own fees-that the other clause would require employees
to stay in the Union for a year, and he did not think it was-right to have to belong
to something they did not want or got dissatisfied with. He further stated that the
Union only wanted a fee, did not care anything about the people, and would sign
any kind of contract if the Company would agree to a checkoff. (In the foregoing
statements of General Manager Clark, I find no violation of Section 8(a) (1) of the
Act.)
J. T. Hancock, Jr., incredibly testified that Foreman Mullis at the water cooler
in the cardroom on May 16, 1959, told him that the Company was definitely not
going to sign a contract. Foreman Mullis credibly denied making any such state-
ment, and, further testified that on May 16, 1959, he was not at work in the plant,
and engaged in no such conversation.
During the strike, about dusk in the late afternoon of May 22, 1959, General
Manager Ernest 0. Clark drove out to the plant in his automobile, and stopped in
front of the gate near his office. At that point he engaged in conversation with two
strikers, John Henry Bishop and Rudine Merritt, who were sitting together in a
parked car. The conversation began on friendly terms, but soon degenerated into
a heated discussion as other strikers assembled about the 2 cars until approximately
20 people had joined the group. Counsel for the General Counsel offered the testi-
mony of approximately a dozen witnesses tending to show that Clark degraded the
union leaders as agitators , solicited these employees to abandon the Union and go
back to work, and also made, a statement to the effect that he would not sign a con-
tract. John Henry Bishop (striker) testified in substance that Clark drove up and
inquired whether he was ready to go back to work; then said, "I hear them agitating
s - o - b's told you all not to speak to me. Why don't you all get together and get
a union of your very own, and if it don't go well then you can call them back. Well,
I am not going to sign a contract . I will die and go to hell before I will sign a
contract."
Rudine Merritt (striker) corroborated the foregoing testimony of John Henry
Bishop, and testified further that she asked Clark if he would sign the old contract
without a checkoff clause, and that he said that he would do so. She then inquired
whether he planned to double up the workloads in the plant, and Clark said, "Yes-
that he planned to take 3 jobs and make 2 out of them." She again asked Clark
if he would sign the old contract without the checkoff clause, and he said, "I wouldn't
say that I would."
Wilbur C. Rogers (striker) testified in substance that he heard Clark say that he
would "die and go to hell" before he would sign a contract, and told them to get
the "Union agitating s - o - b's" out of Fitzgerald. He then told Clark that he went
out on strike because Botelho• had reported over the loudspeaker that he (Clark)
had made the statement that "they were ignorant and did not have no better sense
than to work for $1.075 an hour." Thereupon, Clark said it was "a damn lie."
Louise L. Baughan testified in substance that she heard Clark say that he could
not sign a contract if he wanted to; and that the union people had "lied to us."
J. T. Hancock, Jr. (striker), testified in substance that Clark told the strikers to
"get rid of those union agitators and get a union of our own later on"-that he had
no authority to sign a contract, and would "die and go to hell" before he would
give in to the union agitators-that Botelho "lied about his calling us stupid"-that
"all of us could go back on our jobs, and get rid of the union agitators."
General Manager Ernest 0. Clark testified in substance that in reply to the ques-
tion of his signing a contract , he said , "No, John , I can't sign the Union 's contract. I
have no authority to sign the Union's contract." He never made any statement that
the employees were ignorant, and told Wilbur Rogers that whoever told him that
"was a damn lie." He did not say he would "die and go to hell " before he would
sign a contract, but might have said so with respect to signing the Union 's contract.
He did not say anything about the people getting rid of the Union, trying it without
a union , or getting a union of their own . He did not say anything about workloads
such as having two people do the job of three people, or anything like that. (I credit
the version of Clark because it is more consistent with past and subsequent ne-
gotiations between the parties.)
During the strike , General Manager Clark made speeches to employees not on
strike or hired as replacements for strikers . Nell Gresham (weaver ) credibly testi-
fied in substance that she was not a member of the Union , and did not go out on
strike-that she remained in the plant and worked at various jobs-that she heard
FITZGERALD MILLS CORPORATION 909
two speeches made by Clark to employees at work during the strike. Clark said that
he did not want any violence, and "told us not to have anything to say to strikers,
and pay no attention to anything we heard"-that "he appreciated our coming to
work, and the plant would operate as long as anybody was there to work"-that
after the strike some of the strikers would not come back, and the replacements
would not be taken off their jobs-that he would resign rather than have some of
the strikers come back-and that the signing of a contract was out of his hands, and
he had no authority to do so. (In these remarks made by General Manager Clark,
I find no violation of Section 8(a) (1).)
Howard (Alvin) E. Dillard (yarn man) credibly testified in substance that he
applied for a job during the strike and was hired by Respondent on May 25, 1959.
About 2 weeks later General Manager Clark made two speeches to employees
working in the plant. Clark "told us to keep our car windows rolled up when we
crossed the picket line, make no reply to anything said by the strikers, and cause
no trouble"-that "we had a right to protect our property, to call him if any
trouble occurred, and he would send the patrols to where we lived"-that "most
of the strikers had lost their jobs and been replaced by us, and that he would resign
rather than have some of them come back to work"-that he would not sign a
contract with the Union unless they came to his agreements. (In these remarks
of General Manager Clark, I find no violation of Section 8 (a)( 1 )(1).)
Sewell E. Gunter (striker) credibly testified in substance that on one occasion
after May 22, 1959, General Manager Clark spoke to him on the picket line, in-
quired what he was striking for, and said that if he signed a contract it would
not do him (Gunter) any good . (In this incident, I find no violation of Section
8(a)(1).)
Concluding Findings
It is not disputed that the Charging Union is the duly elected representative of
Respondent's employees in an appropriate unit by reason of certification by the
Board in Case No. 10-RC-1339 on March 10, 1952. After 7 years of harmonious
contractual relations with the Respondent , the Union terminated the current
collective-bargaining agreement expiring on March 25, 1959, and attempted to ne-
gotiate a new contract to provide wage increases of approximately 12 to 15 percent
and other terms more favorable to the Union. The instant case arose in the course
of such negotiations by reason of Respondent's failure to meet the increased de-
mands of the Union. It is not a function of the Trial Examiner to determine griev-
ances filed by the Union under the old contract or to suggest fair and equitable
terms for a new contract. The negotiating parties must reach agreement in accord-
ance with the principles of collective bargaining , -and in the manner promoted and
provided by the National Labor Relations Act.
Section 8 of the Act defining and proscribing unfair labor practices provides,
inter alia, as follows:
(d) For the purposes of this section , to bargain collectively is the perform-
ance of the mutual obligation of the employer and the representative of the em-
ployees to meet at reasonable times and confer in good faith with respect to
wages , hours, and other terms and conditions of employment, or the negoti-
ation of an agreement , or any question arising thereunder, and the execution
of a written contract incorporating any agreement reached if requested by
either party, but such obligation does not compel either party to agree to a
proposal, or require the making of a concession:
In my opinion the record supports a finding herein that both parties in their ne-
gotiations prior to the strike on May 9, 1959, met at reasonable times and con-
ferred in good faith with respect to terms and conditions of employment with the
expectation of reaching agreement and executing a written contract incorporating
any agreement reached. Proposals and counterproposals were made in writing by
both the Union and the Respondent, and were accompanied by numerous confer-
ences, conversations over telephone, and correspondence by mail. Respondent pro-
posed to put into effect on April 27, 1959, wage increases of approximately 5 per-
cent to reflect new wage scales being introduced in the area and correct existing
inequities. I find nothing in the notices posted by the Respondent on bulletin
boards in its plant on April 6, 13, 24, and 27, 1959, which was calculated or in-
tended to discredit the bargaining position of the Union. At the bargaining con-
ference on May 7, 1959, when the Union announced its intention to strike, attorneys
for Respondent again proposed to put into effect its proposed wage increases with-
out prejudice to the continuance of negotiations with the Union. It is clear, there-
fore, that the strike was called by the Union to bring economic pressure upon Re-
spondent in an effort-to-force further-,concessions with respect to union demands.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find, therefore, that the strike of May 9, 1959, was economic at its inception, and
was not caused by unfair labor practices of the Respondent. Notices mailed to
employees on or about May 7, and 12, 1959, indicate that an impasse in negotiations
had been reached, and the Respondent did not engage in an unfair labor practice by
making its proposed wage increases effective at the time of the strike without preju-
dice to further negotiations with the Union. The plant continued in operation
throughout the strike, and Respondent hired permanent replacements for most of
the strikers, but at no time withdrew any proposals made to the Union or refused to
confer in good faith with respect to wages, hours, and other terms and conditions
of employment with the objective of reaching an agreement on the issues involved;
although it refused to make concessions of a material nature beyond those con-
tained in its original proposals. Meetings were held under auspices of the Federal
Mediation and Conciliation Service on June 1, 1959, and on July 1, 6, and 10, 1959,
but agreement on a complete contract was not reached. At the meeting on July 1,
1959, it appears that the parties were near agreement on all contract terms except
wages, and as to that issue the Union agreed to, accept wage increases already put
into effect by Respondent, provided Respondent' would grant an additional overall
wage increase of 5 percent at the end of 6 months. When at the next meeting on
July 6, 1959, Respondent refused .to grant this concession, the strike was forthwith
terminated by the Union with a demand that all strikers be returned to work in the
plant. Respondent thereafter rehired strikers on- a first come basis to fill current
and future job vacancies; but refused to displace persons 'hired as replacements
during the strike.
Having found that the strike was economic in character, it follows that Respondent
did not engage in an unfair labor practice by refusing to reinstate economic strikers
whose jobs had been filled by permanent replacements prior to any offer to return
to work, unless it be further found that such strike was prolonged or converted into
an unfair labor practice strike by subsequent illegal conduct' of the Respondent.
In the opinion of the Trial Examiner the only incident worthy of consideration
as a factor in prolonging, the strike or converting it into an unfair labor practice
strike occurred at or near the picket line in front of the plant gate on May 22, 1959,
when General Manager Ernest 0. Clark encountered a group of strikers and made
intemperate remarks concerning the union -leadership and his intentions about
signing a contract. The gravamen of his offense on that occasion was that in
replying to the goading questions of the strikers, Clark lost his temper and said that
he would "die and go to hell" before he' would sign a contract such as the Union
was demanding. At the same time Clark indicated in reply to Rudine Merritt that
Respondent would sign' an agreement in terms of the old contract without a checkoff
clause. My conclusion is that, the' aforesaid conduct and statements of General
Manager Clark were not violations of Section 8(a)'(1); and did not have the effect
of prolonging or converting the' strike into `an unfair labor practice, strike, because
at the ensuing conference with union representatives on June 1, 1959, 'Respondent
by-and through its attorneys and General Manager Clark reaffirmed its proposals
to the Union and continued to negotiate -in good faith to reach an agreement, albeit
on terms less than the union demands. , .
Conclusions
Having carefully reviewed all evidence and the entire record, in the case, I am
thereupon constrained-to find and conclude that bargaining negotiations between
the Union and the Respondent have been hard and long with respect to the terms and
conditions of a new contract. The Union submitted contract proposals demanding
wage increase of approximately 12 percent and other terms and conditions more
favorable by far towards the employee organization than those existing under the
old contract. The Respondent made written proposals offering wage increases of
approximately 5 percent and union-security provisions considerably less than those
contained in the old contract, omitting entirely the checkoff of union dues from
the wages of its employees. Thereupon, it became the strategy of the Union to
force further concessions from the Respondent. When the impasse was reached
on May 7, 1959, the Union called a strike to exercise economic pressure on
Respondent, but failed to close down the plant. Respondent continued to meet at
reasonable times with representatives of the Union, and confer in good faith with
respect to wages, hours, and other terms and conditions of employment in an
effort to negotiate a new agreement. The Respondent was no more adamant in
standing on its original proposals than the Union was in trying to enforce its
increased demands for still' higher wages and additional union-security provisions
in the contract. Few concessions were granted by 'either party. The Act does not
require Respondent to agree'to proposals made by the-Union or to make concessions
GREAT EASTERN COLOR LITHOGRAPHIC CORP. 911
with respect thereto so long as it bargains in good faith , as required by the Act. In
finality, the Union terminated its strike and demanded full reinstatement for all
strikers . Respondent rehired strikers without discrimination to fill existing job
vacancies in the plant , but refused to displace permanent replacements hired during
the strike. Except in that respect Respondent has not refused to continue negotia-
tions with the Union in an effort to reach agreement on a new contract.
[Recommendations omitted from publication.]
Great Eastern Color Lithographic Corp . and Local 52, Amalgam-
ated Lithographers of America . Case No. 3-CA-1503. Octo-
ber 11, 1961
DECISION AND ORDER
On March 28, 1961, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that
the 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 Intermediate
Report attached hereto. The Trial Examiner further found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the Respondent and the Charging Party filed
exceptions to the Intermediate Report and supporting briefs, and the
Respondent also filed a request for oral argument.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner, with the following additions
and modifications?
We do not agree with the Trial Examiner's finding that the dis-
charge of employee Pace by Frank Perretta violated Section 8( a) (3).
Pace had a had record of absences during his approximately 6 months
of employment and was discharged almost immediately upon his
As the record , including the exceptions and briefs , adequately sets forth the issues and
positions of the parties , the request is hereby denied.
2 In his Intermediate Report the Trial Examiner , in referring to a statement by Louis
Perretta , the Respondent 's president, to an employee that he could find work elsewhere
because he had joined the Union , inadvertently stated that such statement was made to
employee Case, when he obviously meant employee Cross. However , this error does not
affect the correctness of the Trial Examiner 's conclusion that such statement constituted
a violation of Section 8(a)'(1) of the Act.
133 NLRB No. 89.