Hamburg Shirt Corp.

National Labor Relations Board - Board Decisions

Apr 9, 1969

175 N.L.R.B. 284 (N.L.R.B. 1969)

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamburg Shirt Corporation and Amalgamated
Clothing Workers of America , AFL-CIO. Cases
26-CA-3076 and 26-CA-3076-2
April 9, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Hamburg Shirt
Corporation, Hamburg, Arkansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER ' S DECISION
On December 27, 1968, Trial Examiner Milton
Janus issued his Decision in the above-entitled
proceedings, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He further found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, the General
Counsel and Respondent filed exceptions to the
Trial Examiner's Decision and supporting briefs, the
Charging Party filed cross-exceptions to the Trial
Examiner's Decision and a supporting brief, and
Respondent filed an answering brief thereto.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the
cross-exceptions, the briefs, and the entire record in
this case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner.
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner: On charges filed by
Amalgamated Clothing Workers of America, AFL-CIO,
on May 2 and May 29, 1968, the General Counsel issued
a consolidated complaint against Hamburg Shirt
Corporation, herein called the Respondent or the
Company. The complaint alleges that (a) the Union has
been the authorized exclusive bargaining representative for
a unit of production and maintenance employees at the
Company's plant at Hamburg, Arkansas, since June 5,
1964, and that from on or about April 4, 1967, the
Company has negotiated with the Union with no intention
of entering into a collective bargaining agreement with it;
(b) the Company has wrongfully refused to allow the
Union to conduct its own timestudies of rates which are
the subject of employee grievances and of bargaining
issues raised during the course of negotiations; (c) the
Company made certain changes in wages and working
conditions without notice to, and without bargaining with
the Union; (d) it discharged two employees on May 8,
1968, in violation of Section 8(a)(3), and (e) about May 1,
1968, the Company, through certain named agents,
obtained signatures for a petition to decertify the Union,
in violation of Section 8(a)(1). The Respondent's answer
denies the commission of any unfair labor practices on its
part.
This proceeding was heard before me in Hamburg,
Arkansas, on August 20-22, 1968. Briefs have been
received from the General Counsel, the charging Union
and the Respondent, and have been fully considered
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor, I make
the following:
The Charging Party has excepted to the Trial Examiner ' s rejection of
its request for a monetary remedy to make the employees whole for losses
they may have suffered as a result of the Respondent 's unlawful refusal to
bargain We deem it inappropriate in this case to depart from our existing
policy with respect to remedial orders in cases involving violations of
Section 8(a)(5), and, therefore , deny said request See Monroe Auto
Equipment Company, 164 NLRB No 144, fn I
The Charging Party also excepted to the failure of the Trial Examiner
to permit a Union or Board representative to explain the Employer's
violation to Respondent's employees , specify a period of at least an
additional year from the time the Respondent commences to bargain in
good faith during which time the Union certification shall be immune from
attack and provide for a simplified form of notice In the circumstances of
this case we find that the Charging Party's proposed remedy modifications
are unnecessary The Respondent ' s obligation to bargain in good faith with
the Union will of course continue for a reasonable time after compliance
with the terms of the Board's Order Cf Mar-Jac Poultry Company Inc ,
136 NLRB 785
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Arkansas corporation with its
principal place of business at Hamburg, Arkansas, where
it is engaged in the manufacture and sale of shirts. During
the past year, it manufactured, sold, and shipped from its
Hamburg plant, finished products valued in excess of
$50,000 directly to points outside the State of Arkansas,
and during the same period, it received at its plant
material valued in excess of $50,000 directly from points
outside the State of Arkansas. Respondent admits, and I
find , that it is engaged in commerce within the meaning of
the Act.
175 NLRB No. 48
HAMBURG SHIRT CORPORATION 285
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
On December 15, 1966, the Court of Appeals for the
District of Columbia Circuit issued its opinion in
Amalgamated Clothing Workers of America, AFL-CIO v
N L.R B , 371 F.2d 740, enfg the Board's Decision and
Order in Hamburg Shirt Corporation, 156 NLRB 511.
That Decision and Order, to the extent pertinent here,
held that Hamburg Shirt Corporation had illegally refused
to recognize Amalgamated as the bargaining
representative for a unit of production and maintenance
employees, and required it, upon request, to bargain
collectively with Amalgamated.
Pursuant to the decree of the court of appeals, the
Company met with Amalgamated and proceeded to
bargain. Their first meeting was on January 26, 1967
There were 16 bargaining sessions in all, some of them
lasting more than I day, between January 1967 and April
30, 1968, when negotiations were broken off. The parties
met and negotiated through 11 sessions between January
and July 1967. They did not meet again until November
1967, and thereafter continued to bargain approximately
once a month through the last, or April 1968 session.' The
chief negotiators were William Sutton, the attorney for
the Company, whose office was in Little Rock, Arkansas,
and Philip Lampert, the Union's regional counsel who is
stationed in St. Louis. All bargaining sessions took place
in Hamburg, Arkansas. Besides meeting at these formal
sessions, Sutton and Lampert were also in touch with each
other by telephone and letter whenever the occasion
required
Shortly after April 30, 1968, the date of the last
bargaining session, the Union filed its original charge in
this case, alleging that the Company was refusing to
bargain with it in good faith, and had made unilateral
changes in wages and other terms and conditions of
employment without bargaining. The Union has not
requested any further sessions.
On May 29, 1968, a second charge was filed by the
Union alleging that the Company had discharged two
employees on May 9, 1968, because of their union
activities, and that about May 1, 1968, the Company had
coerced employees into signing petitions purporting to
revoke the Union' s bargaining status.
The Course of Bargaining
I note first of all that the complaint does not allege,
nor is there any evidence, that Respondent engaged in
certain types of action commonly committed by employers
accused of surface bargaining. Thus, there was no attempt
to show that the Company's negotiating agent lacked the
necessary authority to reach agreement on particular
issues or on an overall contract, that he engaged in
dilatory tactics, that he insisted that bargaining be
'There is no explanation for the break in bargaining between July and
November I note from official files of the Board that the Amalgamated
filed a charge alleging a refusal to bargain on March 6 , 1967, in Case
26-CA-2697, and that the charge was withdrawn on May 18, 1967 The
parties continued to bargain dunng the 2-month period the charge was
pending
conducted in a particular manner or order, or that
nonmandatory bargaining issues be considered as a
prerequisite to arriving at an agreement. Finally, there is
no claim on the part of the General Counsel that the
Company refused to supply promptly any data or
information requested by the Union.
Basically, it is the position of the General Counsel on
the surface bargaining charge, that Respondent's bad faith
is revealed by certain alleged unilateral changes it is
alleged to have made during the course of negotiations,
and by its refusal to make meaningful counter-offers to
the Union's proposals, mainly to its economic demands.
The Union's maneuverability, that is, its ability to exert
economic pressure on the Company in support of its
demands was seriously affected by one consideration
which was beyond its control. It was that dunng these
crucial months of bargaining the Company had to give
substantial wage increases under the Federal minimum
wage law for which the Union could not assume credit.
Although none of the parties make this point in their
briefs, it is so obvious from the course of the negotiations
that it cannot be ignored in determining why a bargaining
agreement was not reached.
Certain other general observations on the nature and
techniques of the bargaining sessions are pertinent here.
Lampert was the Union's chief negotiator, being
accompanied at most of the sessions by Ellison, manager
of the Union's Arkansas District Joint Board, and by four
employees of the Company who were there as
representatives of the rank-and-file membership of the
Union Such a number was certainly not unwieldy but it
contributed to some extent to the length and duration of
the negotiations since the employees' committee,
concerning with day-to-day occurrences in the plant,
brought up individual grievances which were then thrashed
out by the negotiators. In effect then, instead of limiting
itself to negotiating a contract, the union bargaining team
was acting in part as a grievance committee. I certainly
attach no blame to anyone for this, since it was the duty
of the union representatives to service their members in
this informal way until the contract could spell out a more
suitable grievance procedure, but the consequence was that
a disproportionate amount of time was spent on matters
other than negotiating contractual provisions.
The Situation in December 1966
The Company is engaged in the manufacture of boys'
shirts; most of its more than 200 employees are women
engaged in sewing, pressing, packing etc.; and most of the
operators are paid on a piecework incentive system
In 1966, the Company had engaged Summerour and
Company, of Atlanta, Georgia, to restudy its operations
and pay system, and to put into effect an incentive system
based on new time and motion studies. When negotiations
began in January 1967, most of this engineering work had
been completed, and new rates, quotas, and standards had
been established for most of the many separate
operations. In the pressing department however, and
apparently for some few other operations, time and
motion studies were still underway but new incentive rates
had not yet been put into effect. Thus, the situation at the
close of 1966, for most of the piecework operations,
employees' pay was computed as follows: Every employee
without regard to her productivity was paid at least $1 25
per hour, the then Federal minimum wage; (2) each
operation which had already been time-studied had a base
rate of $1.37 1/2 per hour and a production quota which
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a normally efficient operator was expected to attain. An
operator who achieved her quota was paid a base rate of
$1.37 1/2 per hour, or 10 percent more than the $1.25
minimum wage. Operators who failed to produce the
quota set for the base rate were said to be in "makeup,"
but were, of course, paid for the amount produced and, in
no event, less than $1.25 per hour. Operators producing
more than their base rate quota were paid additional
amounts at the price per dozen set for the individual
operation. This constituted the incentive system.
Timeworkers received a fixed sum per hour, most of them
apparently at the $1.25 Federal minimum.
On February 1, 1967, the Federal minimum wage was
raised to $1.40 per hour, and on January 1, 1967, in
anticipation thereof, the Company raised its timeworkers
to that rate and made the necessary changes to bring its
piecework system up to the new required minimum The
quotas and price per dozen remained unchanged, and a
normal operator, that is, one who was not in makeup,
producing her same quota, would now be paid at the new
base rate of $1.55 per hour, or 10 percent above the $1.40
minimum rounded off. Thus, just a few weeks before the
negotiations began, all pieceworkers who produced their
quota received a real increase in wages from $1.37 1/2 to
$1.55 per hour, while those who did not, were assured of
at least $1.40, instead of $1.25 per hour. It was also
known that a year later, as of February 1, 1968, the
Federal minimum would become $1.60 per hour.
Lampert, the Union's negotiator, testified for the
General Counsel, and Sutton, the Respondent's
negotiator, for the Respondent. Each was cross-examined
by the other. The testimony was given in topical, rather
than chronological form, so that each major item of the
negotiations was treated by itself, with all changes in
position as developed over the entire period, being brought
in. I propose to discuss the negotiations in the same
fashion, but to consider first those items, mainly
noneconomic, on which there appears either to have been
substantial agreement in principle, or at least a willingness
to postpone further discussions until the major economic
issues were settled.
Bargaining on Proposed Contractual Provisions
The parties quickly agreed on the language of a
recognition clause, based on a union proposal as modified
by the Employer. The entire clause was not introduced,
but its Section B was apparently the only part on which
the Company asked for some modification. After the
changes, it read as follows: The Employer shall recognize
and deal with such representatives of the employees as the
Union may select or appoint, and shall permit such
selected or appointed representatives to visit its plant at
reasonable times after due notice to the plant manager,
during working hours for the purpose of investigating any
grievance, complaint or any other matter involved.
The Company and the Union were apparently not far
apart on language of a management rights clause,
although no final provision was agreed upon, apparently
because of differences on the arbitrability of the
Employer's right to subcontract, on the removal of the
plant, and on the direction of the business and limitations
on the size of the work force. There were more serious
difficulties over the Union's claim to demand arbitration
over other differences between the parties, but since they
arose mainly in negotiations over particular topics such as
layoffs, changes in -rates, quotas etc., my discussion on
arbitration will be treated with the substantive matters to
which it is related. I do note, however, that the Company
was not hospitable to the general concept of arbitration,
but on the other hand, it did not demand, so far as the
evidence reveals, that the Union agree to a no-strike
clause.
Arkansas is a right-to-work State, so the Union did not
request a union shop. It did however request a checkoff of
dues which the Company was not willing to grant. The
Company did agree to allow a union representative to
collect union dues once a month in the plant. Apparently,
no firm agreement was reached on the point, but it was
not considered to be a major obstacle to reaching a final
agreement.
The Company and Union agreed on rest periods and
guaranteed pay for reporting, which had apparently not
previously been conditions of employment. The Union
requested its standard insurance-retirement package,
which the Company rejected. Fairly early in the
negotiations however, a tentative agreement, or perhaps
more accurately, a willingness to forego further discussion,
was reached on a health insurance offer proposed by the
Company which was similar to one already in effect in
another of its plants. It was less than what the Union had
wanted, but again, it was not an item over which
bargaining would have foundered if agreement could have
been reached on the important economic items of wages,
holidays and vacations.
The Union requested premium pay for hours worked in
excess of 8 per day, and for Saturdays, Sundays and
holidays. The Company resisted it, but when it was
pointed out to it that an Arkansas statute already required
time and a half for women who worked more than 8
hours per day, the Union agreed to pay the premium to
men as well as to women to the extent required by the
Arkansas law The Company refused however to grant the
Union's demands for premium pay for work performed on
Sundays and holidays.
The Major Economic Items
Wages: As I pointed out earlier, the Company had
already put into effect a wage increase in January 1967,
shortly before bargaining began, through its establishment
of new base rates which were set, after time and motion
studies, at $1.55 per hour, roughly 10 percent above the
Federal minimum of $1.40 per hour An operator working
at normal effort was expected to be able to produce the
quota set for her base rate. Production beyond her quota
would increase her earnings above her base rate. Thus, by
fulfilling the same quota which, before January 1967,
would earn her $1.37 1/2 per hour, a piecework operator
could now earn $1.55 per hour.
At the first bargaining session, on January 26, 1967,
which Lampert did not attend, Ellison presented the
Union's model contract for consideration and asked for
certain wage data, which the Company furnished on
February 16, the date of the second session. At that
second session the Union asked, according to Lampert, if
the Company would adjust its base rates in February
1968, so as to make them 10 percent higher than $1.60
per hour, the Federal minimum wage as of that date. This
would retain the Employer's recent past practice of setting
the normal, or base rate, at 10 percent above the Federal
minimum. The Company said that it was not willing to
raise the base rate from $1.55 per hour to a figure of 10
percent above $1.60 (roughly, $1.75 per hour). All that it
was willing to promise, with respect to wages after
February 1968, was to raise the base rate from $1.55 to
HAMBURG SHIRT CORPORATION 287
$1.60 per hour. The Federal minimum wage, of course,
had to go up to $1.60 per hour in February 1968, but the
Company's offer to raise the base rate from $1.55 to
$1.60 per hour was nevertheless something additional. An
employee who could make her quota when her base rate
was $1.55, but who could not make an increased quota
based on a rate of $1.60 per hour, would not be
considered to be in "makeup" if she produced the same
amount which had previously earned her $1 55 per hour.
About a week after the second session, Lampert
submitted a wage proposal to Sutton by letter, requesting
a 12 1/2-cent hourly increase to all employees in the
bargaining unit effective immediately, and a 20-cent
hourly increase effective in February 1968. Sutton's
cross-examination of Lampert on the subject of this letter
throws doubt on Lampert's recollection of what he had
asked the Company to do on February 16, 1967. Lampert
admitted on cross-examination that Sutton had telephoned
him after receiving his letter of February 24, to ask him
whether the Union's proposal for across-the-board
increases of 12 1/2 and 20 cents in February 1967 and
1968 meant that it was asking for an immediate base rate
of $1.52 1/2 cents per hour (12 1/2 cents over $1.40).
Lampert admitted that that was what he then meant, since
as he explained, he did not know that the Company's base
rate was already $1.55 per hour for pieceworkers. Thus, if
Lampert did not know on February 24 that the
Company's base rate was already 10 percent above the
minimum wage, he would hardly have asked, a week
earlier, whether the Company would continue, as of
February 1968, its alleged practice of fixing its base rates
at 10 percent above the Federal minimum wage. Whatever
the explanation, the Union quickly recovered its
composure and dropped, for the time being, its proposal
for an immediate 12 1/2-cent hourly increase for
pieceworkers.
In May 1967, the Union made a new wage proposal
asking for a 5-cent hourly increase as of June 1967, and
15 cents as of February 1968. In June, and again in
November, it made other proposals which the General
Counsel characterizes as downward revisions of its
original proposal of February 24, 1967. The scaling down
of the Union's demands seems more significant to the
General Counsel than it does to me.' In any event it is not
too important how much the Union was scaling down its
demands, since the Employer was making no significant
concessions either. Its final offer was pretty much what its
original offer had been - a base rate for pieceworkers of
$1.55 when the Federal minimum was $1.40, and a base
rate of $1.60 when the Federal minimum became $1 60.
Its argument against improving that offer was that the
incentive system was fairly new, having been installed in
late 1966, and that it needed more experience before
deciding whether it could afford to pay a $1.75 base rate
in 1968. The Company also pointed to the fact that 1967
was a slow year and that its employees were on reduced
workweeks.
'It must also have been at one of the bargaining sessions before the
Union learned that the base rate was already $1 55 per hour, that Ellison
claimed with some pride that a plant in Arkansas which he had recently
organized was paying an average hourly wage of Si 47 per hour, only to
learn that the average hourly wage at Respondent' s plant was already
$1 63 per hour
'In February 1967 the Union had asked for a 20-cent increase above the
then $ I 55 base rate as of February 1968 In November 1967, it was still
asking for a $I 75 piecework base rate as of February 1968 The
November proposal also asked for a shop minimum of $170 for all
employees (thus including pieceworkers), which would mean that the new
Another aspect of the problem over pieceworkers' base
rates needs to be covered Time and motion studies had
not been completed for the pressing department when
negotiations began, and the base rates for these employees
were therefore held at their existing rate of $1.37 1/2 per
hour. The Company wanted to equalize their base rate
with that of all other pieceworkers to $1.55 per hour, but
the Union refused permission to do so until December
1967, almost a year after the other pieceworkers had been
raised
The Union's refusal to act promptly on the pressing
department rates may have had something to do with its
later requests that its timestudy engineer be permitted to
check certain rates in the plant, but I cannot believe that
this was the only reason for its reluctance to approve an
immediate wage increase for employees whom it
represented. Thus, I note that when negotiations began,
the Union was not concerned with the rates and quotas set
by the Company's timestudy expert in 1966, but only with
changes or modification in those rates and quotas. If the
Company had completed the new pressing department
rates before bargaining began, the Union would not have
asked that they be rechecked, so that the Company's
inability to determine the final pressing department rates
by January 1967 is not at all analogous to those changes
in rates for which the Company sought approval in late
1967 and early 1968. It was with respect to these
modifications that the Union can possibly be said to have
needed additional information to be obtained only through
its own timestudy engineer.
Timeworkers' rates: The Employer's proposal was to
start timeworkers at $1.40 per hour in 1967, raise them to
$1.50 after 6 months and to go to $1 60, the new Federal
minimum in February 1968. At the meetings in May and
June 1967, the Union requested an immediate 5-cent per
hour increase to all timeworkers, when many of them
were at $1.40 or $1.50. In November, it proposed that as
of February 1968, the Employer pay a $1.70 shop
minimum to all employees, but not less than a 10-cent per
hour increase to all timeworkers. The Employer rejected
this proposal and made no counteroffers.
Holidays and vacations. The Company proposed
nothing more than a continuation of its past practice
without change. It gave two holidays, the Fourth of July
and Thanksgiving Day, for which it paid eight times the
Federal minimum wage. To be eligible, an employee had
to work 5 days in the week in which the holiday fell. The
Company also gave a paid vacation based on actual
average earnings, for the week in which Christmas fell,
and for this vacation, eligibility was based on 1 year's
previous employment. There is little point in setting out
chronologically all the revisions in the Union's proposals.
It started out asking for seven paid holidays with a less
stringent eligibility, and with payment to be based on
average hourly rates. It ended up asking for four holidays
in 1968, six in 1969, and seven in 1970. As for vacations,
the Union started out by asking, in addition to the
established 1-week Christmas vacation, for a 1-week
summer vacation for employees who had been employed 1
year; and 2 weeks for employees of 3 years' experience. In
November 1967, the Union says it scaled this down by
requesting 1 week's summer vacation in 1968 for 1-year
employees and 2 weeks in 1969 for 2-year employees, all
in addition to the 1-week winter vacation. My conclusion
shop minimum would be paid to workers who could not make their quota
(whether it was at the $1 60 or $1 75 base rate) This would set a floor for
all pieceworkers of 10 cents more than the Federal minimum
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on negotiations over vacations is that the Employer moved
not at all, while the Union's movement was imperceptible,
if it did not in fact raise its demands by seeking only a
2-year eligibility requirement for a 2 weeks' summer
vacation in 1969, rather than the 3-year eligibility
requirement originally proposed.
Seniority, layoff and recall: The Company's policy as to
layoff and recall when negotiations began early in 1967
was to favor more productive over less productive
employees, disregarding their comparative length of
service at the plant. The Union's proposal was that
temporary layoffs should be determined by fob, section or
departmental seniority, while permanent reductions in
force should be based on plantwide seniority, with
provisions for retraining employees. The Company's only
counterproposal on reductions in force was that it would
be based on work performance, with the Company being
the sole judge of that standard. At some time during the
negotiations, the Company offered to submit for the
Union's consideration a proposal for arbitrating any
claimed abuse of discretion on the Company's part. At the
next bargaining session , Sutton offered to arbitrate
questions as to which of two equal producers should be
laid off, but insisted on nonarbitrability of any layoffs
where it determined that one employee had a better
production record than another. The Union rejected this
out of hand, since it gave no preference to employees'
length of service. There the matter stood, with no further
progress in resolving that issue being made in later
bargaining sessions.
Arbitration of wage determinations . My discussion of
this subject is limited for now to the negotiation for a
contractual provision on arbitration of disputes over the
establishment and modification of piecework rates. It is
closely tied in substantively, however, with the allegation
of the complaint that the Company violated Section
8(a)(5) by refusing to permit the Union to conduct its own
timestudies That aspect of the matter will be treated
later; for now, I limit myself to setting out the opposing
views of the parties on how disputes over piece rates were
to be settled.
It was admittedly the normal practice of the Union
when negotiating an initial contract with an employer to
limit its examination of the piecework operations and
rates to a study of the rates as submitted by the employer,
and to decide on that basis whether the rates were fair
The negotiations began on that basis, with the Company
submitting a list of operations and rates, and with the
Union then making its first demand for an
across-the-board 12 1/2-cent per hour increase, which was
later modified to a demand, for 1968, of an increase in
base rates of 10 percent above the Federal minimum
wage.
The Union did not raise any objection to the piece rates
which had been put into effect in 1966 on the basis of the
time and motion studies already completed by
Summerour, the engineering firm retained by the
Company. It was recognized by both the Union and the
Company that the Union's approval of such rates would
eventually have to be secured, but no difficulties on that
score were anticipated As for a contractual provision on
modifying already established rates or for setting rates on
new operations, the outlook was less certain. The Union
sought a contractual provision for arbitration of disputes
over changes in production and related piece rates, the use
of new fabrics or other matters which would affect
employees' rates or earnings. Closely related with that
demand was one that it be permitted to send its own
engineer into the plant to make its own timestudies.
The Company refused to agree to the arbitration of
disputes relating to rates, production quotas, and other
items entering into wage determinations, and would not
agree at any time during the negotiations to permit a
union engineer in the plant to recheck its engineer's own
studies. All it would agree to in this regard was to furnish
any data obtained by its engineer to the Union for its
study and consideration and to undertake, if the Union
was still dissatisfied with the quota or rate, to have its
own engineer restudy or retime the operation. That
however was to be final, and not subject to arbitration
Unilateral Changes
The complaint alleges that the Company made changes
affecting wages without first bargaining with the Union
Additionally, another unilateral change, that with respect
to wage increases to cutting department employees is not
alleged as a violation per se because it occurred more than
6 months before the filing of a charge, but is put forward
by the General Counsel to sustain his argument that all
the changes indicate Respondent's bad faith in bargaining
with no real intention of entering into an agreement.
Since it occurred first chronologically and is relied on
by the General Counsel as part of a pattern to subvert the
Union's right to act as collective-bargaining
representative, I shall first consider the increases in the
cutting department which Respondent instituted in
October 1967.
1. At the bargaining session of November 7, 1967, the
union negotiators raised the question whether employees
in the cutting department, working on time rates, had
recently had their wages raised The Company submitted
information on this point indicating that in fact 10
employees in the cutting department had received
increases in their hourly rate, all but I at 10 cents per
hour, and all but I effective as of October 1, 1967 The
Company justifies granting these raises without first
consulting with the Union on the grounds that the cutting
department, because it was not on incentive, had not
received any benefits from the reformulated piece rate
system which had been gradually put into effect in 1966,
but had been promised that something would be done for
them. Sutton testified that a company official had asked
him if hourly-rated employees who had been promised
when hired that they would be given raises, could now
have them. Sutton advised the official that he could grant
such raises which were required under a company plan or
policy initiated before the negotiations with the Union had
begun
I need not decide whether, if these raises had been
given within the 6-month period preceding the filing of a
charge, they would constitute a violation of Section
8(a)(5). I shall however consider, in my concluding
findings, whether this event, in connection with the
unilateral changes alleged in the complaint evidenced an
intention to bypass the bargaining representative, and thus
an intention not to bargain in good faith.
2. Thanksgiving Day was one of the two holidays for
which employees were paid. In past years, eligibility for
payment required that an employee work 5 other days in
the same week, so that they would receive approximately
6 days' pay if they worked 5 days In November 1967,
many employees were on a reduced workweek, while
others were on temporary layoff. A week before
Thanksgiving Day, Sutton called Lampert and requested
permission to waive the eligibility requirement of 5 days'
HAMBURG SHIRT CORPORATION
work in the next week, so that the Company could pay for
the holiday. Lampert told Sutton that before he could
agree to doing so, he wanted to know whether the
employees on temporary layoff would also be paid for the
holiday. Sutton said he would find out and would call
Lampert back Sutton then spoke to a company official
who told him that the Company would pay the laid-off
employees for the holiday. Sutton then tried to reach
Lampert at his St Louis office, but was told that Lampert
had gone on to Chicago for the holiday. Sutton then tried
to reach Lampert in Chicago but was unable to do so,
either before or immediately after the holiday. Sutton then
advised the plant to waive the eligibility requirement and
to pay the employees for the holiday. He said he did so
because he considered that the Union's inquiry whether
the temporary laid-off employees would also be paid had
been met. Sutton did nothing more about the matter until
he received a letter from Lampert dated December 7,
1967, asking what the Company proposed to do about
waiving the Thanksgiving holiday eligibility requirement.
By this time, all the employees including those on
temporary layoff, had already been paid for the holiday.
At their next bargaining session, on December 19, Sutton
asked if what the Company had done about Thanksgiving
Day was satisfactory Members of the employees'
negotiating committee spoke up and said they were
satisfied, while Lampert made no negative response.
Thus, the Company informed the Union of its desire to
change the eligibility requirement for the holiday a week
in advance, obtained the information the Union wanted,
and put the change into effect only after trying to reach
the Union's negotiator. The General Counsel concedes
that this is what the Company did, but argues nevertheless
that the Company's waiver of the eligibility requirement
for the holiday is a violation of Section 8(a)(5), since the
Union was entitled to claim credit for granting the
employees this additional benefit and the Company, by
depriving the Union of that opportunity thereby
diminished the authority and status of the bargaining
representative
It is true that an employer who unilaterally grants his
employees a wage benefit without the approval of the
bargaining representative thereby places the representative
in the predicament of either remaining silent and seeing its
authority eroded, or of objecting to the benefit and
possibly incurring the hostility of its constituency
Whether or not a benefit is obtained directly by a
bargaining representative, the representative is entitled to
take and claim credit for what has transpired, if only to
counteract an implication which the employer may be
fostering that benefits come only from the employer. On
balance, however, I am not willing to find that the change
in eligibility for the Thanksgiving holiday constituted a
unilateral violation of Section 8(a)(5) It was a matter
which could have been quickly handled by telephone once
all the facts were known. Sutton gave Lampert adequate
advance notice, and but for Lampert's unavailability, the
Union could have given a clear cut approval of the
Company's offer and taken credit for it. Further,
Lampert's response when Sutton first reached him was
such as to reasonably lead Sutton to conclude that the
Union's permission was conditioned solely on whether the
temporary laid-off employees would also receive the
holiday pay.
3 Paragraph 15 of the complaint alleges that on or
about February 1, 1968, Respondent changed the wages
and production quotas of certain unit employees The
changes referred to in this paragraph, insofar as they can
289
be identified from the data given, as well as other changes
referred to in subsequent paragraphs of the complaint are
closely bound up with the Union's demand that its
engineer be admitted to the plant to make certain
independent timestudies The General Counsel has also
alleged that the Company's refusal to grant access to the
plant to the Union's engineer is in itself a violation of
Section 8(a)(5). I will consider this matter subsequently,
but insofar as they can be extracted from that problem
and considered separately, I set out the relevant facts
here
On February 1, 1968, the new Federal minimum of
$1.60 per hour became effective The base rate for
pieceworkers, that is, the hourly rate which an operator
who made her quota would earn, was then $1.55 per hour.
An operator who had been making the quota necessary
for her to earn exactly $1.55 per hour would now have to
be paid $1.60 per hour for producing the same amount of
work. In effect, this would constitute an increase in her
base rate, or stated differently, an increase in her piece
rate. But the Company could not increase the base or
piecework rates without the Union's consent On the other
hand, if the base rate was not raised to $1.60 and the
quota remained unchanged, then an operator who could
just meet that quota would be in "makeup" because of
her inability to produce enough to qualify for the new
$1.60 rate. In July 1967, the Company had offered to
raise the base rate, as of February 1968, from $1.55 to
$1.60, without increasing the quota, so that each dozen
produced would be paid for at a slightly increased rate,
but no agreement had been reached, as the Union's last
request had been for a $1.70 per hour minimum as of
February 1968.
I confess to some difficulty in understanding the
testimony on this point, which comes out mainly in
Sutton's cross-examination of Lampert, but my best
reconstruction of what it amounts to is that the Company
did not raise the base rate from $1.55 to $1.60 as of
February 1968, that it paid, as required by Federal law, a
minimum of $1.60 per hour, but that it advised piecework
operators what they should produce in order to earn $1.60
per hour When Lampert protested what he regarded as
changes in quotas at the bargaining session of March 6,
1968, Sutton asked him if he would like to have the
Company announce that employees who were meeting the
old quota necessary to earn $1.55 were not in makeup, to
which Lampert replied that he would not tell the
Company what to do but that it was making unilateral
changes affecting wages and production and that he
wanted his engineer to check those changes. Lampert
admitted, however, that he knew of no instance where an
employee was paid differently after February 1, 1968, for
the same amount of production than she had been paid
before then, or of any employee who had been disciplined
after that date because she could only meet her quota,
based on the same $1.55 base rate she had previously
earned.
I perceive no unilateral changes in production quotas or
rates based on advising employees what they would have
to produce to justify a $1.60 rate, so long as no employee
suffered any loss of pay thereby, or was placed in peril of
discipline for being in "makeup."
4. There are other changes in operations, quotas, rates
and in the installation of new machinery which are alleged
to constitute unilateral changes without notice to and
bargaining with the Union, in paragraphs 16, 17 and 18 of
the complaint. In fact, notices of some sort were given by
the Company to the Union, but whether they were
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficiently explicit or gave the Union sufficient time to
evaluate them are all in issue here. More importantly,
however, these changes are all bound up with the demands
that the Company permit a union engineer to study the
changed operations and new machinery in order to be able
to evaluate the Company's proposed rates. I set out here
the information as to these changes, the notice given by
the Company and the Union's responses, so that the basic
controversy over the Union's right to have its engineer
study these changes in person, can be better placed in
context.
On December 14, 1967, Sutton wrote Lampert (GC
Exh. 11) saying that he would like to take up with him
"the matter of several operations which we would like to
change. These might involve changes in operation due to
different equipment and a different quality of final
production." At the bargaining session on December 19,
Sutton said that his comments might be premature, but
that the Company was thinking of installing four new
machines (they appear to have been pressing machines).
The machines actually went into operation in
mid-February. On March 6, Sutton mentioned installing
the machinery, that the Company had no published rates
but that it had set tentative rates and quotas for four jobs
on the machines. Lampert asked for data on the new
operations and at the next (and final) bargaining session
on April 30, Sutton told the Union that the operators had
been assigned temporary rates.
Somewhat similar in nature is the issue raised in the
complaint as to whether the Company instituted a
unilateral change in rates or quotas for certain new or
revised operations on matching plaids and solids, changing
back stitch to angle tacks on pocket. corners, changing
gauge from right to left side of foot, and changing cuff
stitching from double to single stitching. The Company
advised the Union on April 22 and 24 of its desire to
make the changes and to set rates for the new operations.
These revised operations were called for by new materials,
styles and changes in product. Each such change in
product might require a revision in the method of
operation and in the time needed to accomplish it. The
Union refused to discuss new rates for the revised
operations unless its engineer could first make his own
independent study of the change. According to Plant
Manager McNeely, when the Union refused to participate
in setting wage rates for these revised operations, the
Company continued to pay the operators their former
average hourly rate.
Although it was not alleged in the complaint as a
unilateral change, Lampert identified two lists of rates,
one as of April 1968, and one as of March 1967 (G.C.
Exhs. 7 and 8), supplied by the Company to the Union,
and testified that he made a sample survey of a few
operations which showed changes in rates and quotas not
discussed with, or approved by, the Union. Here too, the
General Counsel's reason for producing this testimony was
to reemphasize the Union's inability to evaluate these
changes without having the Union's engineer granted
access to the plant. I have examined the two lists and note
that the' earlier one is based on a $1.40 per hour
production quota while the latter is based on a $12.80
production quota, which I take to be the daily rate
computed at $1.60 per hour. Of the three or four
examples given by Lampert in his testimony, I could
check only two operations, Turn and Trim Collar Points
and Run Collars as being on both the 1967 and 1968 lists.
My computation as to these operations shows that in each
case the production quota was increased in 1968 over 1967
by just an amount which would be sufficient to raise the
operators' earnings from $1.55 to $1.60 per hour, that is,
from the 1967 base rate to the new Federal. minimum as
of February 1968. Neither the exhibits nor the testimony
on this matter indicate how the difference in quotas or
rates affected an employee' s earnings , except to the extent
required by the new Federal minimum of $1.60 per hour.
The matters discussed in this section, the installation of
machinery, changes in materials and product, and in
manufacturing methods, were effected by the Company in
disregard of the Union's request to conduct its own
engineering studies in order to determine how these
changes would affect employees' earnings . I believe there
would have been no difficulties in obtaining the Union's
approval of what required its approval, that is, possible
changes in rates and quotas, if the Union could have
participated in those matters which might affect employee
earnings . Since employees had to be paid promptly for the
work they performed, the Company had to set a rate for
each operation, whether new or revised.
I find no violation of Section 8(a)(5) in the installation
of machinery, in establishing different manufacturing
techniques, or in the decision to manufacture new
products. It is, however, a different question as to whether
the Company was entitled to set new rates for such new
work. I think it was entitled to do so on a temporary
basis, but was obligated to bargain with the Union if the
Union raised a question as to the rate. The Union did
object, because it was deprived of all opportunity of
properly evaluating the validity of the new rates. This
brings us then to the underlying question of whether the
Company violated Section 8(a)(5) by refusing to permit
the Union access to the plant, in the person of the union
engineer who would conduct independent time and motion
studies.
5. The Union's request of the Company to allow its
engineer access to the plant in order to study particular
operations became, over the extended course . of
bargaining, the focal point for a number of unresolved
disputes over grievance-arbitration, setting of rates and
quotas on revised or new operations, and even at times,
over the question of studying all existing rates.
The Union' s original contract proposal did not
specifically ask for the right to have its own engineer visit
the plant to redetermine or restudy the piece rates already
in effect, and the Union claimed on some occasions that it
could determine the justness of such rates by examining
only the Employer's data. Such information was available
to the Union on request, and all its requests for data were
filled without undue delay. It is true that, toward the end
of 1967, and again early in 1968, Lampert wrote Sutton
(see G.C. Exhs. 3 and 12) insisting that the union engineer
be granted access to the plant in order to study the entire
rate structure and incentive system. However, on other
occasions, the Union's demand was limited to requests
that its engineer be given the opportunity to conduct its
own time and motion studies as to new or revised
operations when the Company insisted on retaining the
right to set what it called "temporary" rates.
On the other hand, the Company admitted that all
piecework rates (as well as all time rates ) had to be
incorporated in the final agreement, and would require the
consent of the Union. Its proposal was to set piecework
rates on the basis of its engineer 's studies .' The Company
'I recognize that Summerour & Company, the engineering firm used by
the Respondent was an independent professional engineering firm and that
the engineer who actually compiled the data by firsthand study in the plant
HAMBURG SHIRT CORPORATION
was prepared to turn over to the Union, on its request, the
data supporting its rate determinations; to have its
engineer restudy operations on which the Union raised
some objections, and to consider the Union's position in
the light of such restudy. Under no circumstances though,
was the Company willing to permit the Union's engineer
to study the operation at firsthand or to grant to an
arbitrator the right to overturn its own engineer's final
determination on any particular rate. By insisting on
ultimate control over the factors which determined the
piece rates, the Company was in effect insisting on, and
retaining, sole control over the rates themselves.
The Union's right of access to the plant in order to
conduct its own timestudies may appear to be a relatively
minor issue separating the parties. It is true that the
economic questions of what the base rate for pieceworkers
was to be, whether a shop minimum higher than the
Federal minimum would be established in February 1968,
how many paid holidays there would be, and the question
of a paid summer vacation, were more important in the
contract negotiations then independent timestudies. If the
parties had been able to settle their economic differences,
it is probable that the question of the Union's access to
the plant could have been amicably resolved. But the
Company's refusal to make concessions to the Union on
the major issues served to emphasize for the Union its
inability to move the Company on any matter affecting
wages and wage rates.
I find no merit in the Company's argument that the
union engineer's access to the plant depended on whether
the Union had some good reason for conducting its own
timestudies. Although the Company was willing to submit
its own timestudy data to the Union, and although the
Union might find such data satisfactory and sufficient
under some circumstances, it nevertheless had a right to
make its own studies of rate factors in order to be able to
bargain intelligently on individual rate determinations. Its
willingness to forego such studies in order to expedite
reaching an agreement is not a waiver of its statutory
right to be consulted, and to participate fully in all
rate-setting matters. I find that the Company's denial of
access to the plant by a union engineer for the purpose of
making independent timestudies was a violation of Section
8(a)(5).'
Concluding Findings as to Section 8(a)(5)
There are three types of violations of Section 8(a)(5)
alleged in the complaint (1) Surface bargaining, with no
intention of reaching an agreement; (2) alleged changes in
rates, quotas, eligibility requirements, etc., made by the
Company without adequate notice to, or consultation
with, the Union; and (3) refusal to permit union access to
the plant for the purpose of conducting its own
timestudies."
was Summerour 's employee It was the Respondent , however, which had
selected Summerour without asking the approval of the Union. Whether
Summerour was impartial because it was an "independent" firm is beside
the point The fact is that Summerour was the Respondent 's agent,
responsible to it and presumably as solicitous of its views and welfare as
the union engineer would have been for the Union 's views and welfare
'Fafnir Bearing Company v N L R B, 362 F.2d 716 (C A 2), enfg. 146
NLRB 1582, N L R B v Waycross Sportswear, Inc 403 F 2d 832 (C A
5), enfg 166 NLRB No 14, McGraw-Edison Company (Bersted
Manufacturing Division ). 172 NLRB No 178 (TXD), and Vernon
Calhoun Packing Company, Inc, 173 NLRB No 112 (TXD).
'Additionally , the charging Union 's brief argues , without support from
the complaint or the General Counsel ' s brief, that Sutton , the Company's
chief negotiator , was limited in his authority and that his lack of working
knowledge of the Company 's piece-rate structure was instrumental in the
291
I find that the allegations of the complaint as to surface
bargaining, and the allegations as to unilateral changes
without proper consultation with the Union, have not been
sustained and should be dismissed. I also find, however,
that the allegations as to the Respondent's refusing to
allow the Union access to the plant to conduct its own
time and rate studies is fully established by the evidence,
and that it constitutes, in law, a violation of Section
8(a)(5) which, in my opinion, is sufficiently serious to
warrant a cease and desist order and an affirmative order
to resume bargaining until the effect of Respondent's
illegal conduct has been dissipated.
1 Surface Bargaining- The relevant principles are well
known and can be succinctly stated. Section 8(d) of the
Act requires, inter alia, that the parties "meet at
reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of
employment, or the negotiation of an agreement . .. .
Although neither party is required to make concessions or
enter into a contract, the Act contemplates a willingness
to engage in discussions with an open mind and purpose
to reach an agreement, rather than merely a willingness to
enter upon a sterile discussion of union-management
differences. The ultimate issue of good faith in bargaining
negotiations involves a finding as to state of mind which
can only be inferred from the totality of the parties'
conduct. It is only the application of these principles to a
particular set of facts which presents some difficulty.
The General Counsel is careful not to say that the
Company refused to make concessions, since refusal to
make concessions is not per se surface bargaining He
accuses the Company with refusing to make meaningful
counteroffers, limiting its wage proposals to the existing
terms and conditions of employment, and by abandoning
its incentive plan.'
But is the refusal to grant any improvement beyond
existing terms and conditions of employment somehow
more reprehensible than failing to make a concession?' An
employer does not bargain in bad faith by refusing to
accept the Union's first offer, nor by refusing to "split the
difference" between the Union's offer and his first, last or
any intermediate counteroffer. All that is required of him
is that he listen with an open mind and a willingness to be
persuaded by rational argument. Here, the rationality of
each side's position was quickly made evident The Union
failure to reach agreement on that issue . I am satisfied that the evidence
does not support these arguments Sutton was empowered to negotiate and
to reach an agreement On the few occasions when he chose to refer some
new or disputed matter to his principals, he received a prompt answer
which he relayed promptly to the Union. As for his knowledge of the
piece-rate system, he made available to the Union the Company's data
when requested , and also supplied the engineer and plant manager when
specific matters needed to be explored in greater detail What the Union's
contention amounts to is not that Sutton was unprepared or dilatory, but
that he would not permit the union engineer access to the plant
'The General Counsel's argument as to "abandonment" of an incentive
plan must be understood in its context in order not to be misled by a latent
ambiguity in the use of the term "incentive " The General Counsel means
only that by refusing to grant a base rate higher than the $1 60 Federal
minimum in February 1968, the Company was abandoning its former
practice (established as recently as 1966) of paying " normal" pieceworkers
more than whatever the Federal minimum wage happened to be at a
particular time . He cannot mean, since it is contrary to the fact, that the
Company refused to pay pieceworkers who were able to produce more
than their quota, additional amounts based on their extra or incentive
effort
'The Company did, of course, offer some minor improvements in wages
and working conditions It agreed to a reporting time provision and to a
health insurance plan
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted a larger wage package than the Federal minimum
required, while the Company, aware that the employees
would, between January 1967 and February 1968, receive
wage increases totaling 22 1/2 cents per hour (from $1.37
1/2 to $1 60 per hour) preferred to wait awhile before
granting anything in excess of $1 60. The presentation of
these opposing views required no intricate or subtle
development. Once said, it has been said for all time. The
same was true of the negotiations over holidays and
vacations. The Union wanted immediate substantial
improvements; the Company offered nothing beyond what
it was already giving Would the Company have bargained
in good faith if the parties had reached an impasse, with
the Company offering four paid holidays and the Union
asking for five, and can it be said to be bargaining in bad
faith by offering only two instead of seven?
The Board has made it clear that Trial Examiners are
not to speculate as to concessions and counteroffers which
they think employers could or should have made, since to
do so would be contrary to the Supreme Court's
admonition that "The Board may not, either directly or
indirectly, compel concessions or otherwise sit in judgment
upon the substantive terms of collective-bargaining
agreements "'
Here, the Company's offers on economic matters were
not so predictably unacceptable as on its face to
demonstrate its bad faith'° nor were its positions on
arbitrability, layoff and recall so demonstrably devoid of
reasonableness or merit as to indicate an unalterable
opposition to entering into a bargaining agreement The
cases I cite below are not necessarily factually similar to
those in this proceeding, but they serve to illustrate that
irreconcilable differences over the content of a bargaining
agreement is not per se bad faith."
2. Unilateral changes' In considering the unilateral
changes alleged to have been made by the Company
without adequate notice to or consultation with the Union,
I found that the changes had either been discussed with
the Union or that the wage rates set for the new or
revised operations were temporary, and that the Union
was free to bargain over the permanent rates if it so
wished However, as I noted in that discussion, the dispute
was not so much over the initial setting of a rate, but over
whether the Union would be permitted to evaluate it by a
firsthand study I find, therefore, that even with respect to
those rates which the Company set unilaterally, the Union
was not deprived of the opportunity to consult on the
permanent rate, but that such opportunity was effectively
curtailed by its inability to make its own in-plant study of
the operation.
3 The Union's right to make timestudies The Fafnir
and Waycross cases, cited in fn. 5, decided by the Second
and Fifth Circuit Courts of Appeals lend weighty support
to the Board's position that an employer violates Section
8(a)(5) by refusing to permit representatives of an
authorized bargaining representative to make an in-plant
study of piece rates and their underlying factors. The
argument of the Company in this case that reexamination
by a union engineer of its own engineer's studies might
'Siskm Steel and Supply Co, 160 NLRB 1038 at 1040, quoting from
N L R B v American National Insurance , 343 U S 395, 404
"See N L R B v Reed & Prince Manufacturing Company, 205 F 2d
131, 139 (C A I)
"Phil Rich Fan Mfg Co, Inc, 171 NLRB No 87, Taft Broadcasting
Co, 163 NLRB No 55, Procter & Gamble Manufacturing Company, 160
NLRB 334, and The Philip Carey Manufacturing Company, 140 NLRB
1103, 1104-05
cause its employees to lose faith in the correctness of their
rates does not withstand analysis. If the Union, after
making its own timestudies, agreed with the Company's
work, then the employees' faith in their piece rates would
in fact be reinforced And if the Union disagreed, then
any possible unrest of the employees over their rates could
be effectually settled by the parties' eventual resolution of
their differences The Company's refusal then, to grant
access to the plant for a union study of piece rates could
only widen the existing differences between the parties. As
the Court said in the Waycross case:
We agree with the Second Circuit's recent decision
holding that the refusal of an employer to allow the
Union to make a piece-rate study in connection with
evaluating the merits of a grievance constitute
independently a violation of Sec. 8(a)(5). Fafnir Bearing
Co v. N L.R B., 2 Cir., 1966, 362 F 2d 716 If needed
during the performance under an existing contract, such
information may be of even more significance in
negotiations looking toward the making of an
agreement. [Emphasis supplied ]
Although it is true that in the Waycross case, the
employer was also found to have refused to bargain in
good faith on other counts than its refusal to allow a
union study of piece rates inside the plant, the Court's
emphasis of this particular ground for its decision
indicates the seriousness with which this infraction must
be regarded. It would be sheer speculation on my part to
decide that the Company and the Union would or would
not have reached a binding agreement if the union
engineer had been allowed to make his own timestudies
That is not within my competence. But what is within my
competence is to recommend a remedy for the violation of
Section 8(a)(5) which has occurred. It can only be
remedied, it seems to me, by requiring the Company to
resume bargaining, upon request, after the Union has had
an adequate opportunity to make its own study of the
piece-rate operations in the plant. This may serve to break
the impasse over economic and other issues which existed
on April 30, 1968, and may incline the parties to
reexamine their previously inflexible positions in the light
of their joint consideration of the piece rates, and of
whatever changes in circumstances have occurred in the
past year.
The Discharges of Carpenter and Crouch
On May 9, 1968, Plant Manager McNeely discharged
Faye Carpenter and Jewel Crouch for violation of a plant
rule against an employee clocking in or out for anyone
but himself. It is admitted that Carpenter, while punching
her own timesheet shortly after quitting time the day
before, had also punched Crouch's sheet which Crouch
had given her.
Carpenter and Crouch were both members of the
Union, had attended union meetings, and had either filed
grievances or had filed them for other employees. In
addition, Crouch was a member of the Union's
negotiating team, and had participated in most of the
bargaining sessions through April 30, 1968. On the other
hand, McNeely who had only become plant manager in
November 1967, during the course of bargaining, testified
that he had no animus against Crouch, that he had in fact
promoted her to a new job at her request, and had on
another occasion granted her a leave of absence instead of
requiring her resignation. McNeely said he had not know
that Carpenter was a member of the Union.
HAMBURG SHIRT CORPORATION
Crouch and Carpenter were friends and usually drove
together to and from work. On May 8, when the buzzer
signaled the end of the workday at 4:15 p.m., the two met
in the plant near the timeclock. There are three timeclocks
and well over 200 employees, so that a delay of 10
minutes or so in reaching the clock could be expected if
one is towards the end of the line. Each employee carries
his timesheet with him from his job station, inserts it into
the machine for punching, and then deposits it in a box
nearby.
The testimony of Carpenter and Crouch on the events
leading up to their discharge is that they got into line
together, and as they were advancing, Crouch remembered
that she had left her purse behind at her work station. She
asked Carpenter to hold her sweater, thermos bottle and
timesheet while she went back for the purse. Both testified
that Crouch did not ask Carpenter to punch out for her,
but since Carpenter got to the head of the line before
Crouch had returned, Carpenter decided to punch both
timesheets and did so. Their testimony is that when
Crouch returned after retrieving her purse, Carpenter was
waiting for her outside
McNeely testified that he had placed himself near the
plant entrance that day shortly before the buzzer sounded,
as he frequently did, and that he saw Crouch leave the
plant so soon after 4:15 p.m. as to raise a question in his
mind since her department, because of its location in the
plant, was usually the last to clock out. A little later, the
office manager told him that an employee had told her
that Carpenter had clocked Crouch out.
The next morning McNeely sought out Carpenter and
Crouch separately and spoke to them. The two women
testified that this first conversation with McNeely took
place about 7:45 a.m., while McNeely testified that he
first spoke to them an hour or more later that morning,
because he had waited to see if they might come to him to
admit their infraction of the rule and to offer some
explanation for it. I need not resolve this difference in
their testimony. When McNeely did speak to Carpenter
he asked her if she had punched Crouch's card She
admitted she had and he then asked her if she know it was
a violation which could lead to discharge. She said that
she knew.' i McNeely then went to Crouch and asked her
if she had personally punched out the day before. She
admitted to him that she had not, and that Carpenter had
done it for her.
About 10 a m. both were summoned to the office.
McNeely told them they had violated the rule on punching
timesheets. Crouch said she did not know the rule, and
each claimed that Crouch had not asked Carpenter to
punch her timesheet McNeely nevertheless insisted that
the rule had to be enforced and discharged them both.
The rule against one employee punching another's
timesheet was printed on a sheet of paper which new
employees were given to read when hired and were
required to sign. The list of rules was not posted on
bulletin boards, but the testimony of the various witnesses
satisfies me that it was generally known in the plant, and
that Carpenter and Crouch were specifically aware of it.
I personally believe that the discharges of Carpenter
and Crouch for violation of the rule was harsh, since its
"Carpenter did testify on direct examination that though she had told
McNeely she knew she had violated a rule, she did not in fact know then
that there was a rule against punching another employee ' s timesheet
However, on cross -examination , Carpenter did admit that when McNeely
sent for her , a little later , she had told her foreman that she thought she
might be discharged for a violation of a rule
293
obvious purpose, that no employee be paid for time not
worked, was irrelevant here. I mention this belief, not for
the purpose of judging McNeely's action by my own
uncertain moral standard, but only to determine whether
rigid enforcement of the rule might in itself indicate
disparate treatment. It is undenied that no other employee
had ever been discharged for violation of that rule, but
McNeely testified that he knew of no other instances of
its violation, but that in the 6 months he had been plant
manager he had discharged about 20 or 25 employees,
many of them for disciplinary reasons. I may assume
from this that the plant was run tightly and that it was
likely that discipline was strictly maintained.
It appears from the testimony of various witnesses that
there may have been other infractions of the rule, but I
am satisfied that they were not widespread, that they
occurred sporadically and under rather special conditions.
I leave out those instances when supervisors punched
timesheets for their employees, since they were authorized
to do so. Other occasions involved another rule, that
employees should not punch in more than 15 minutes
before the official starting time. It appears that employees
who got to the plant earlier than that would congregate in
the lunchroom and that one of their number might be
deputized to punch them in within the proper time period.
Even this occurred infrequently, and seems to have
involved mainly two employees, a husband and wife, one
of whom had been observed in the act of punching the
other's timesheet. I am satisfied that McNeely did not
know of these occurrences.
Furthermore, my impression of the testimony of
McNeely, Carpenter and Crouch inclines me to believe
McNeely's story that he saw Crouch leaving almost
immediately after quitting time, rather than the other
version, that Crouch handed her timesheet to Carpenter
but did not ask her to punch it, that she went back to get
her purse, and that she then left the plant only after
everyone else had punched out. It is possible, of course,
that a woman would remember to take her thermos bottle
and sweater from her work station and still forget her
purse, but it seems improbable. I think the truth of the
matter is that Crouch left quickly as soon as work ended
and asked her friend to punch her timesheet in order to
save herself 5 or 10 minutes standing in line
Based on the foregoing, I conclude that McNeely
discharged Crouch and Carpenter for what he honestly
considered a serious infraction of a plant rule, and not for
reasons of hostility or animus because of their union
membership or activities." I shall therefore recommend
dismissal of those paragraphs of the complaint pertinent
here.
Circulating Petition to Decertify the Union
The final bargaining session was held Tuesday, April
30, 1968, and almost immediately there was talk in the
plant of a union meeting where a strike vote would be
taken. Employees who were fearful that a strike might be
called and those who were generally opposed to the Union
itself, began to coalesce and within a day a petition was
drafted to get rid of the Union. The complaint alleges that
the Company used certain employees to solicit and obtain
signatures for the petition to decertify the Union, in
violation of Section 8(a)(1).
"The Martin Bros Container & Timber Products Corp, 171 NLRB
No 46
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Judy Stafford testified that the morning of
May 1, Louise Coody, a supervisor, asked her if she
would be interested in starting a petition to get rid of the
Union. When Stafford said she was, Coody told her to see
Zack Bozeman, the shipping clerk. Stafford left her
machine to see Bozeman and asked him what was to be
done. He told her they would go to the office of Attorney
Hamilton to have something drawn up Later, Stafford
learned that her friends were unwilling to help, but sent
her to talk to Pearl Morgan, a fellow employee, who
agreed to go with Bozeman to see Hamilton. That
evening, Stafford testified, Coody called her at home and
suggested that she talk to Pennington, another employee,
who was also interested in getting rid of the Union.
Stafford did not talk to Pennington, and never signed the
petition, although she said that Coody told her to.
Coody's version of her conversations with Stafford is quite
different. Coody, who described herself as being
everything from a marriage counselor to an unlicensed
doctor (she impressed me as a friendly, sympathetic
person) testified that it was Stafford who told her she was
interested in getting up a petition, and that she then
referred Stafford to Bozeman, because it was already
common knowledge in the plant that he too was interested
in getting rid of the Union Coody denied having any
further conversation with Stafford about the matter.
Other than this incident, there is no testimony of any
direct involvement of a supervisor suggesting that a
petition be got up or in telling employees to sign it. The
preparation of the petition on May 1, and the solicitation
of employee signatures was the work of Bozeman, Pearl
Crawford and Lorraine Morgan, all rank-and-file
employees. Glenn Carpenter, a young college student with
rather indeterminate duties, ranging from maintenance
helper to timestudy expert, also played a role, limited
apparently to driving with Bozeman to solicit signatures.
Bozeman , Crawford and Morgan got together on May
1 during nonwork time, apparently at Bozeman 's home,
and drafted a heading for a petition requesting that the
Union no longer represent the employees at the plant.
They then drove over to talk to Herman Hamilton, an
attorney in town, who happens to be counsel for the
Company. Bozeman denied that he knew that fact, and I
am inclined to believe him because Hamilton immediately
told Bozeman that he would have nothing to do with the
petition. They did not go to see another attorney. The
next morning the petition was available in an area at the
back of the plant, near where Bozeman carried out his
duties as shipping clerk. It was apparently well known
among the employees where the petition was kept, and
they signed before and after work, during lunch and break
periods. Morgan, Crawford and Bozeman also visited
employees at their homes soliciting their signatures to the
petition. Bozeman's job included picking up mail and
running errands in town, and for these purposes he was
permitted to drive the company car, a green Chevrolet.
On one occasion, he and Carpenter took the car, during
working hours, without McNeely's permission, according
to both McNeely and Bozeman , and went to the home of
Mr. and Mrs. Dewin Johnson, both of whom were plant
employees but were then at home recuperating from an
auto accident.10
"Employee Marione Rowe was solicited at home one evening by
Bozeman, Morgan and Crawford. She testified that they drove up in a
green car and that Bozeman said it was the company car. However,
Crawford testified that it was her own car, a green Ford I credit
Crawford, not because I think Rowe ' s testimony was false, but because
McNeely admitted that he knew that the petition was
available at the plant and was being signed there. One of
his informants was Lou Taylor, a member of the
negotiating team, who demanded that he get hold of the
petition and destroy it. McNeely told her that if the
petition was being signed on company time he would do
so, but that he was not aware that it was. There is in fact
no evidence that signatures were solicited or obtained on
company time, except for Stafford's testimony that Coody
told her to leave her machine to sign the petition
I would not hold the Company responsible for the
circulation of the petition, even if I were to credit Stafford
over Coody. Stafford, in fact, took no part in the
circulation of the petition and refused to sign it even
though, according to her testimony, Coody had told her to
do so. Crawford and Morgan, who impressed me as
credible witnesses, had no contact so far as the evidence
reveals, with any supervisors; and Bozeman, though
inclined to exaggerate his importance, was not shown to
have been approached by any supervisor in the matter of
the petition. Given the atmosphere of apprehension in the
plant over talk of a strike being called by the Union, I
consider it quite understandable that a spontaneous
movement against the Union should have developed so
quickly after the breakdown of negotiations.
I find, based on the foregoing, that there is insufficient
evidence under accepted agency principles to establish the
Respondent's responsibility for the circulation of the
petition.1s Accordingly, I shall recommend dismissal of
this allegation of the complaint
CONCLUSIONS OF LAW
1. All production and maintenance employees employed
by Hamburg Shirt Corporation at its Hamburg, Arkansas
plant, excluding office clerical employees, professional
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.
2. Amalgamated Clothing Workers of America,
AFL-CIO, has been, since June 5, 1964, the exclusive
representative of all the employees in the above-described
unit, within the meaning of Section 9(a) of the Act.
3. The Company violated Section 8(a)(5) and (1) of the
Act by refusing permission to the Union to make its own
timestudies at the Hamburg plant.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Company has not violated the Act in any other
respect.
THE REMEDY
I have already explained why I believe that the
Company's refusal to allow the Union to make its own
in-plant studies of piece-rate operations frustrated the
entire course of bargaining, by blocking the Union's
access to data which might have assisted it in negotiating
on the wage and arbitration provisions of a contract. The
pernicious effects of the Company's conduct cannot be
overcome merely by now requiring the Company to grant
access to the Union to make its own timestudies. These
having seen Bozeman, I believe he was inflating his status by claiming
McNeely's approval of his actions
"Southern Tours, Inc, 167 NLRB No. 42, and Stewart & Stevenson
Services, Inc, 164 NLRB No 100 Cf River Togs, Inc., 160 NLRB 58,
60
HAMBURG SHIRT CORPORATION
studies are not an end in themselves, but only a means to
supplying the Union with information it needs for
informed bargaining. The effective remedy for restoring
the parties to their proper status is to require the
Company to resume negotiations for a bargaining
agreement, on the Union's request, either during, or after
the Union has completed, its in-plant studies of piece-rate
operations.
I consider it unnecessary to discuss the extensive
remedial provisions proposed by the Union, since they are
based on the assumption that the Company would be
found guilty of refusing to bargain in good faith by such
egregious conduct as failing to cloak its negotiator with
sufficient authority, failing to make significant
counteroffers, and unilaterally changing rates and quotas
without adequate notice to, and consultation with, the
Union. I have found that these allegations and contentions
have not been proved, and that the Board's normal
remedial provisions for a violation of Section 8(a)(5) are
sufficient here.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
RECOMMENDED ORDER
Hamburg Shirt Corporation , its officers , agents,
successors , and assigns , shall:
1 Cease and desist from:
(a) Refusing to bargain with Amalgamated Clothing
Workers of America, AFL-CIO, as the exclusive
bargaining representative of the production and
maintenance unit at its plant at Hamburg , Arkansas, by
refusing to permit the Union to perform independent
timestudies through its own experts, on piece-rated jobs.
(b) In any other manner , interfering with , restraining,
or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, permit the Union under reasonable
terms and conditions to perform its own timestudies on
piece-rate jobs in the bargaining unit.
(b) Upon request , resume negotiations for a bargaining
agreement either during , or after the Union has
completed , its timestudies of piece-rate jobs in the
bargaining unit
(c) Post at its Hamburg, Arkansas , plant, copies of the
attached notice marked "Appendix ." " Copies of said
notice, on forms provided by the Regional Director for
Region 26, shall after being duly signed by the
Respondent be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
"In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board ' s Order be enforced by a decree of a United States
Court of Appeals , the words , "a Decree of the United States Court of
295
thereafter in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not
altered, defaced or covered by any other material
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith."
IT IS FURTHER RECOMMENDED that those allegations in
the complaint found herein not to constitute violations of
the Act be dismissed.
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order be adopted by the Board
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain with Amalgamated
Clothing Workers of America, AFL-CIO, as the
representative of the production and maintenance
employees at our Hamburg plant, by refusing to permit
the Union to perform independent time studies through
its own experts on piece-rated jobs. We will, upon
request, permit the Union to conduct its own time
studies.
All our employees have the right to join or support a
labor union. WE WILL NOT in any manner interfere with
their exercise of this right.
WE WILL, on the Union's request, resume
negotiations for a collective bargaining contract either
while the Union is conducting, or after it has
completed, its time studies of piece-rate jobs in the
bargaining unit.
Dated By
HAMBURG SHIRT
CORPORATION
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.