Herron Yarn Mills, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 553 (N.L.R.B. 1967)

HERRON YARN MILLS, INC.
Herron Yarn Mills, Inc. and United Furniture
Workers of America, AFL-CIO, Local 282.
Case 26-CA-2609.
June 19,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On March 29, 1967, Trial Examiner Frederick U.
Reel issued his Decision 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 attached Trial Examiner's Decision. The
Trial Examiner failed to find violations with respect
to certain other allegations in the complaint.
Thereafter, the General Counsel and Respondent
filed exceptions to the Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the 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 and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications:
The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(1) by promising
benefits to employees if they would abandon the
Union and by threatening reprisals if they did not.
We also agree with his further finding that
Respondent violated Section 8(a)(5) and (1) by failing
to furnish the Union the dates of hire of employees in
the bargaining unit, and by withdrawing from
agreements made during the course of bargaining,
thereby causing the strike which commenced on
November 21, 1966. However, the Trial Examiner
dismissed the allegation that Respondent's conduct
throughout negotiations established its overall bad
faith in further violation of Section 8(a)(5) and (1) of
the Act.
On the basis of the evidence supporting the
foregoing findings and its entire course of conduct,
we are persuaded that Respondent approached the
bargaining table, not with a sincere purpose to reach
agreement, but with an intent to prolong negotiations
until the removal of the court injunction requiring it
to bargain with the Union so that it might then, as in
fact it did, withdraw previously agreed-upon
proposals and attempt to undermine the Union's
representative status. This conclusion is inescapable
553
in light of the testimony by its representative that
Respondent was bargaining only because the
injunction compelled it to do so, and his statements
that he was "not particularly trying to make a
contract" and "if it had been left up to [him], there
would have been no contract ...." This attitude
openly manifested at the bargaining table, together
with Respondent's refusal to furnish relevant
information at the outset of bargaining, its
prolongation of negotiations, and its repudiation of
agreements reached, many of which were its own
proposals accepted by the Union, followed by the
8(a)(1) activities upon the removal of the injunction,
compel the conclusion that Respondent approached
the bargaining table with an intent to avoid reaching
agreement. Accordingly, we find that Respondent's
conduct viewed in its totality supports the
conclusion that Respondent, at all times material
herein, failed and refused to bargain in good faith
and thereby violated Section 8(a)(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Herron Yarn
Mills, Inc., Memphis, Tennessee, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
In paragraph l(d) of the Trial Examiner's
Recommended Order and the fifth indented
paragraph of the Appendix attached to the Trial
Examiner's Decision substitute for the words "In
any like or related manner" the words "In any other
manner."
IT IS FURTHER ORDERED that all allegations of the
complaint not specifically found to be violations of
the Act be dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding,
heard at Memphis, Tennessee, on January 30, 1967,
pursuant to a charge filed the previous November 21' and
a complaint issued December 14, presents questions
whether the Respondent (herein called the Company)
violated Section 8(a)(1) of the Act by certain statements of
alleged supervisors, and violated Section 8(a)(5) and (1) of
the Act by failing to bargain in good faith with the
Charging Party (herein called the Union). Upon the entire
record, including my observation of the witnesses, and
after due consideration of the unusually helpful brief filed
by General Counsel (the Company, although given equal
opportunity to do so, filed no brief), I make the following:
' Unless otherwise noted, all dates herein refer to the year 1966
165 NLRB No. 92
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a Tennessee corporation engaged at
Memphis in the manufacture of yarn, annually ships to
points outside the State products valued in excess of
$50,000, and is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. Evidence on
this record establishes that the Union is an "organization
. in which employees participate and which exists for
the purpose, in whole or in part, of dealing with employees
concerning grievances . wages, rates of pay ... or
conditions of work." It is, therefore, a "labor organization"
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
Certain employee witnesses testified to conversations
with alleged supervisory employees, and attributed to the
latter certain statements allegedly violative of Section
8(a)(1).
1. Willie Lee Clinton testified that in mid-November on
one of the relatively few occasions when he worked on the
night shift, his "foreman," Jeff George, asked if he "had
heard about the Union" and what he "thought about it."
When Clinton responded that he "thought a lot about it,"
George told him that Company President Herron had said
"he was going to close down" if the employees were for the
Union. Clinton replied that he was unconcerned as he
owned no stock in the Company.
2. Clarence Williams, another day-shift employee who
occasionally worked at night, testified that one evening in
mid-November, George asked him what he thought about
the Union. According to Williams, George continued by
stating that he was opposed to the Union and that "a lot of
us including himself would probably be out of a job,
because he had heard Mr. Herron say that he was going to
close it down."
3. Employee Ruby Fifer attributed to her foreman, Fred
Beaver, the comment-likewise in mid-November-that
Herron would give the employees a 10-cent increase if
they dropped the Union.
4. According to employee Bessie Tate, Beaver came up
to her on Friday, November 18 (the last working day before
the strike, discussed infra), asked her if she was going to
go on strike, and continued, "Well, it don't make any
difference because the boss told me to get rid of all that
was in the Union, anyway."
5. Employee Annie Gilbert testified that on November 9
Plant Manager Louis Saxon, after asking her if she was
still on the Union's negotiating committee , continued: "I
wish you all would forget about the Union, I just bought a
new car. I think I could get you more pay and more
vacation."
The Company contends that the various threats and
promises recited above were never uttered, and also that
neither Beaver nor George is a supervisor, so that even if
they made the statements attributed to them, the
% Tate said
I was working by machine alone in the early afternoon, and
Fred Beaver , which is the foreman, came over and asked me
if I were going to stay in , or if I were going to go out with the
rest
Well, I didn't answer him So, he said , "Well, it don't make
Company would not be liable therefor. The question
whether the statements were made raises issues of
credibility as between Saxon, Beaver, and George on the
one hand and the employee witnesses on the other. The
demeanor of the several witnesses furnishes little
assistance in this particular case. Clinton and Williams
attributed substantially identical statements to George,
namely, that Herron said "he was going to close down"
because of the Union. George's testimony, read with
extreme precision, may fall a hair's breadth short of a
denial:
Q. During the week immediately before the strike,
did you have any discussions or anything else with
any of the workers out there about the strike or the
union?
A. Not as I can recall.
Q. Did you ever tell any of these union members
that if they didn't get out of the union, that the plant
was going to close down?
A. I didn't have that much authority to tell nobody
nothing.
*
Q. Did you ever tell Willie Lee Clinton?
A. No, sir.
Q. That if the union stayed there that the plant
would close?
A. No, sir. It's Mr. Herron's mill, not mine. I didn't
have no authority to tell no one what to do.
Q. I realize that, but the only question I am asking
you is did you ever discuss it with him, or tell him
that?
A. No, sir.
But to read testimony that precisely is probably to read it
with more precision than it was given. I am satisfied that
George intended to deny the statements, particularly as he
also testified that he and Herron had never discussed the
Union. Probably, as between Clinton and Williams on the
one hand and George on the other, the latter had slightly
more reason to deny falsely than the former had to
fabricate. The alleged violation of Section 8(a)(1) is not
critical to the Union in this case, for the Union's chief
concern appears to be with the bargaining issue. Evidence
of company hostility was not essential , the Company had
already made in an earlier case and repeated on this
record, its "revulsion" at having to bargain with the Union.
One point in favor of crediting the testimony of Clinton
and Williams is the similarity of the statements they
attribute to George, although it is possible that this reveals
nothing more than a common source of fabrication.
Further belaboring of the "ins" and "outs" would be even
more unprofitable than that already indulged. In the end,
someone (at this moment, this Trial Examiner) has to
conclude that either the two employees or George told the
truth, and there is regrettably little in the record on which
to rest the resolution. I have decided to credit the
employees, largely on the similarity between their stories
and on their relative lack of interest in the issues.
Similar credibility issues are posed by Beaver's denials
of the statements attributed to him by Fifer and Tate. I am
inclined to credit Tate's version, set forth in the footnote,2
any difference, because the boss told me to get rid of all that
was in the union any way "
So, I still didn't say anything I didn't answer So, he said,
"Well, what is you going to dog You don't say anything "
I says, "Nothing " Then, he walked away and went over to
the frame where Emma Nagles worked
HERRON YARN MILLS, INC. 555
as having a certain ring of plausibility perhaps because of
the details with which the story is told. Again one cannot
help pondering why an employee with the Company for 23
years would fabricate such a story, or on the other hand
why a supervisor, 15 years with the Company but now
employed as a sheriff's aid in Mississippi, would deny it if
it were true. As I have credited Tate, and thus necessarily
discredited Beaver, it is an easy step, perhaps too easy, to
discredit him as to Fifer as well, and accept over his dental
her testimony that he said the employees would get a 10-
cent raise if they abandoned the Union. Fifer also
surrounded her version with an added detail which lends
some plausibility to her testimony.3 The chances of a
witness inventing an episode appear to me to diminish
somewhat as she adds details which extend beyond the
narrow confines of the critically illegal language and round
out the conversation.'
The conflict between the testimony of employee Annie
Gilbert and Plant Manager Saxon is likewise sharp and
direct. Gilbert testified as follows to a conversation with
Saxon on November 9:
A. He asked me if I was off of the negotiating
committee, if Francis Meeks hadn't taken my place,
and I told him, "No, that we had elected her shop
steward when we got the union-the contract
signed."
And he says, "Well, I heard that she was off." He
says, "I wish you all would forget about the union."
He says, "I just bought a new car," and he says, "I
think I could get you more pay and more vacation."
Q. Okay. What did you say, if anything?
A. I kept working and I didn't say anything, and he
walked off.
Saxon, although admitting that he talked to Gilbert and
others every day, and that he had recently bought a new
car, denied having any conversation along the lines of
Gilbert's testimony. The Company argues that Saxon
should be credited as it is improbable that he would
approach a known union adherent, and one as prominent
as Gilbert, with such a promise of benefit. But Gilbert's
version attributes to Saxon a perfectly natural and by no
means illegal inquiry, as to whether one Meeks had
replaced Gilbert on the negotiating committee. Saxon
denied even this innocuous part of the conversation. Once
again I am moved to credit the employee's version because
of the plausible details which the employee witness
supplied.5
The Company in its answer concedes that Saxon was a
supervisory employee, but denies that Beaver and George
held such status. Beaver testified that he was the
supervisor of the spinning room, that he told the
employees what to do, that they obeyed his instructions,
that they looked on him as a supervisor, and that he was
"sort of a boss" and knew that for that reason he was
ineligible for membership in the Union. Beaver apparently
had some authority to grant time off, and three employees
(Gilbert, Fifer, and Tate) testified that Saxon had told the
assembled employees that they should follow Beaver's
directions or "go home." I find that Beaver was a
supervisor and that the Company is legally responsible for
his statements in violation of Section 8(a)(1), as well as for
Saxon's.
I find otherwise as to George, however. George was the
"foreman" in the cardroom during the night shift, but his
primary task was to keep the machines in repair. Such
direction as he gave to the three men who worked in the
room appears to have been nominal. Although there is
some testimony that he asked people to work overtime, the
explanation appears to be that Saxon determined the need
for overtime, and George would routinely inquire of each
man until he had the necessary number of volunteers.
Clinton testified that George gave him instructions, but
this turned out to be nothing more than telling him what
kind of yarn to put in the machine which Clinton operated.
Williams testified that George told him where to put cans;
i.e., drums of yarn which he carried on a cart from one
room to another. On one occasion George told Williams to
"go home" because he had been spending too much time
in the restroom, but George's superior, the night
superintendent, countermanded the directive. On the
whole, I find that George's job as "foreman" involved only
routine direction of employees, that he was primarily
employed as a mechanic or "fixer," and that his authority
was insufficient to make him a "supervisor" within the
meaning of the Act.
B. The Refusal to Bargain
1. Related proceedings
The Union won a Board-conducted election, and on
December 8, 1965, became the certified bargaining
representative of the Company's employees.6 The
Company, challenging the validity of the certification,
refused to bargain, and the Union filed an unfair labor
practice charge on which a complaint issued (Case
26-CA-2350). Pursuant thereto, and on petition of the
General Counsel, the United States District Court for the
Western District of Tennessee issued an injunction on
May 27, 1966, under Section 10(j) of the Act, directing the
Company to bargain with the Union. The Company filed an
appeal from this injunction, but before the case could be
heard in the court of appeals, the Board issued its decision
in Case 26-CA-2350, sustaining the complaint, 160 NLRB
629. The issuance of the Board's decision caused the
previously issued injunction to expire, and the Company's
appeal from the injunction was thereupon dismissed as
moot and the injunction action was discontinued and
dismissed on October 17, 1966. The bargaining
conferences in the instant case had commenced pursuant
3 Her testimony is. "He came over to me and said Mr Herron
would give us a 10 cents increase if we dropped the union l asked
him why he couldn't call us and tell us himself, and he said that
the union didn't like him to talk to us , so lie told him to tell us "
' W. S Gilbert's Pooh-Bah recognized the importance of
adding "corroborative detail intended to lend artistic
verisimilitude to an otherwise bald and unconvincing narrative "
Pooh-Bah, of course, was embellishing an untruthful tale But his
embroidery was so extravagant as to tax credulity rather than to
encourage it, and besides his inventive powers probably exceeded
those of the employees who testified in this case
' Also, I find that Saxon testified falsely when he denied
making the statement , which three witnesses attributed to him,
that the employees should follow Beaver's instructions or "go
home " When three employee witnesses (sequestered during the
hearing ) testify to an employer 's using a particular expression, I
am inclined to accept their testimony over his denial particularly
where the employer calls no corroborating witnesses for his
version And if Saxon testified falsely on this issue, his entire
testimony comes under a cloud.
6 The bargaining unit is the conventional "production and
maintenance unit" found appropriate in the previous proceedings.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the injunction, and, as will be seen, continued after its
expiration.
2. The bargaining prior to the strike
At the first bargaining conference on July 6, the Union
(represented by LeRoy Clark, an International
representative, and by a bargaining committee consisting
of three employees) presented a proposed contract to the
Company represented by its counsel, Robert Taylor.
Among other provisions, this contract called for a
voluntary checkoff of union dues, provided for an
immediate "across-the-board" wage increase of 15 cents
per hour, and a minimum wage scale with a beginner's
hourly rate of $1.25, a minumum rate after 60 days of
$1.35, and after 120 days of $1.45. (The then current
minimum at the plant was $1.30, and under the proposed
contract all employees would have qualified for the $1.45
rate.) The company negotiator commented on the various
provisions, and agreed to submit a counterproposal. Such
a proposal was furnished to the Union before the next
meeting which occurred July 27.
By the time of the July 27 meeting, the Union had
analyzed the Company's proposal and had prepared a
further proposal, adopting some of the Company's
counterproposal. The wage rates proposed by the
Company were $1.25 per hour for beginners, $1.35 after 6
months, and $1.45 after 12 months. The Union agreed to
this, but proposed an added clause calling for an automatic
increase in the event of an upward revision of the Federal
minimum wage, and this the Company rejected. Among
other points on which the parties were still apart was the
checkoff.
On August 4, the Company's negotiator, Robert Taylor,
was elected chancellor, a judicial office in the State court
system. The next meeting of the parties occurred on
September 9, but it was largely unproductive. They met
again on September 28, at which time Chancellor Taylor
introduced the union representatives to Olen Batchelor, a
local attorney, who was to succeed Taylor as the
Company's bargaining representative in view of the
latter's assumption of his judicial duties. Batchelor,
however, had to leave this meeting early, and Taylor
continued discussing the various proposals with the union
representatives.
It is at this point that the only significant conflict in
testimony arises with respect to the negotiations.
According to Union Representative Clark, Taylor said to
him late in this meeting: "If you will agree with the
Company's contract as proposed, I will recommend to Mr.
Herron [company president] that he agree to the
checkoff." Clark's testimony continues:
I asked him if that included the amendments that
we had discussed, and which he had agreed and said,
"Yes, we would include those."
I said-and, then, he said, "Well, you write me a
letter setting out what we have discussed here, what
we have agreed on here in the letter, saying that you
will accept the company's proposal, plus the
modifications, and I will take it up with Mr. Herron,
and get him to agree to a check-off. I will take it up
with him and recommend that he agree to the check-
off."
I asked for discussion with the committee, and we
discussed it, and we agreed that we would go along
with that proposal, and we went back and told Mr.
Taylor that we would accept his proposal as it was,
and I would write him the letter.
Q. Is that the way the meeting ended?
A. Yeah. Well, I did go down and sort of go over
the things that I thought that we had reached an
agreement on, the modifications in the company's
contract, and which he agreed with me that those
were the modifications that he would agree with.
The next day Clark wrote Taylor, stating that the Union
would accept Company's proposal with certain stated
modifications. The letter contained no mention of a
checkoff. Clark on the witness stand explained this as an
oversight and an inadvertence.'
The Union received no reply to its letter of
September 29. After several attempts, it arranged a
meeting with Batchelor on November 1. At this time
Batchelor said the Company "was agreeable to everything
except the check-off." Clark replied that he had made a
"package proposal" which included the checkoff, and that
its omission from the letter was an inadvertence. Further
discussion resulted in Batchelor's agreeing to discuss with
Herron three points of difference: the checkoff, whether
the wage increase was to be effective immediately, and
whether discharges could be handled under the grievance
procedure. Batchelor shortly thereafter telephoned Clark
and expressed company agreement with the Union on all
matters except the checkoff. Clark then told Batchelor
that the Union would look into the cost of administering
the checkoff, as the Union believed this should not be a
stumbling block to agreement. Clark made inquiries of
other employees, and then telephoned Batchelor to report
that the checkoff would require only 30 to 90 minutes a
month in clerical work. Clark's testimony continues:
... and at that time Mr. Batchelor said that while we
might could get together on this, there were some
other important issues that we would like to discuss,
and I would like to have a meeting with the committee
and Mr. Herron down at the plant, and I told him all
right, we would be willing to meet, and we set an
agreement to meet on November the 16th, I believe.
Q. Was there anything said in this conversation
about a strike?
A. Well, previously I think Mr. Batchelor had
called me and asked me if there was going to be a
strike on November the 13th. He had called me,
because he said he had gotten information from the
employees that there was going to be a strike on
November the 13th. I told him no, there wasn't going
to be any strike on November the 13th. I told him that
there had been a meeting of the committee and that
they had said after the 20th we would determine
whether we would go on a strike; that they had voted
to go on strike after the 20th.
So he says, "You are sure there ain't going to be no
strike on the 13th," and I told him no.
' Taylor's testimony contradicted that of Clark, for Taylor modifications stated in the letter of September 29, and also
squarely denied that any agreement had been reached at the denied that he at anytime agreed to a checkoff
meeting of September 28 with respect to the proposed
HERRON YARN MILLS, INC.
3. The meeting of November 16, subsequent exchanges,
the strike, and the final meetings
On November 16 the union representatives met with
Batchelor and Company President Herron. Again quoting
Clark:
A. Mr. Batchelor opened up the meeting by saying
he had called the meeting for the purpose of
discussing the company's economic position . He said
that while agreement had been reached, or had been
made on some of the economic issues somewhere
down the line somebody had not considered the
impact of this agreement on the company' s financial
condition, and that compared to that, the checkoff
was a minor thing, and that we could agree to the
checkoff, but we do want to discuss the other things;
that we can agree to the checkoff, but we do want to
discuss these other things.
And after we had discussed this, I simply asked
him, well, what does he propose and he said that he
would propose, instead of the two weeks vacation, one
weeks vacation; instead of the five paid holidays, he
said three, but Mr. Herron said "No, we can go along
with four," so, he said, "Okay, four paid holidays,"
and instead of the 15 cents increase for those people
who had been there one year, he would be willing to
give five cents increase now and five cents
February 1st.
We-I asked them that we would discuss this with
the committee, and we had a separation and him and
Mr. Herron went out, and we discussed it amongst
ourselves, and we decided that we would go along
with the company on the question of the vacation and
the holidays, but we would insist on the wage increase
being as agreed upon, previously agreed upon.
Clark informed Batchelor and Herron of this decision, and
they departed to discuss the matter further. That
afternoon Batchelor called Clark and stated "that the
company could-not-go along with 15 cents across the
board, that they would go to five cents increase now, and a
10 cents increase on February the 1st." The union
representatives discussed this proposal the next day,
November 17, and decided to ask for a 10-cent increase
then and 5 cents more on February 1. Clark so informed
Batchelor by telephone, and Batchelor said he would
discuss it with Herron. Later that afternoon, Batchelor
telephone Clark and told him "that the company has
withdrawn the checkoff and its other proposals and we are
right back to where we started." Clark's testimony
continues:
Q. What did you say to that?
A. I asked him why, and he said, "Well, that's just
the way our position is at this time. That' s just it." I
told him, I said, "You know that I told you if we
couldn't reach an agreement that possibly there
would be a possible strike the next coming week." He
said yes, that he was aware of that, the company was
aware of it. I said, "Okay."
Q. Now, after this conversation with Mr.
Batchelor, did you have a meeting of the Herron
employees?
A. Yes, I had a meeting with the Herron employees
on this Sunday.
Q. On the following Sunday?
A. On the following Sunday.
Q. That would be November the 20th, is that
correct?
557
A. Yes.
Q. Did you report to the employees what had
happened during your conversation with Mr.
Batchelor?
A. I reported to the employees what had happened
and had discussed with them what had happened, and
they had already authorized the committee the
Sunday before-they had already authorized two
Sundays before to call a strike when necessary.
Q. Was another vote-strike vote taken at this
time?
A. Yeah. I said that we will decide now whether we
continue to go out on strike, or whether there has
been any changes and there was a motion put to the
floor that we go out on strike the next Sunday.
Q. I believe it is admitted in the answer that you
did go out on strike on November the 21st?
A. We did.
Q. Is the strike still going on?
A. It is.
On November 25, shortly after the start of the strike, the
union representative again met with Batchelor, but
reached no basis for settling the wage controversy
between them. On December 21, the parties met for the
last time. Clark again asked Batchelor on what basis they
could reach agreement . Clark's testimony continues:
... he said, "Well, we have got an additional
complicating factor here, now, because we have got
some replacements and we are going to insist that the
replacements work and continue to work, and we are
working only one shift, and we have got as many
people as we need for one shift," and as far as the
wages and conditions are concerned, that he would be
willing to agree to what he had already stated, which
was five cents increase now and 10 cents increase
February 1st, one weeks vacation, four paid holidays,
with the understanding that the people who were
hired would continue to work, and I asked him
regardless of seniority, and he said, "Regardless of
seniority." He said he wanted the newly hired people
to continue to work, and I told him, no, we couldn't
reach an agreement on that basis.
So, the meeting broke up.
Q. Was anything said about the checkoff at either
this meeting or the other one?
A. Well, at this meeting he said, no, they would not
agree to a checkoff.
4. The failure to produce data
At the opening of the hearing, General Counsel
amended the complaint to allege that "Respondent at all
times since August 23, 1966, and all times prior thereto,
has failed and refused, and continues to fail and refuse, to
comply with the union 's request for the date of hire of the
employees included in the unit." The record establishes
that the Union requested such data on June 10, and on
June 17 the Company submitted a list of employees
showing the year of hire. On June 21 the Union replied,
requesting, inter alia, the specific date of employment.
The Company responded the next day, stating: "This
information cannot be given with any degree of certainty.
We have given you the year in which each employee was
employed but since many of them have been working for
our client for many years we cannot give you this
information without making a thorough search of all of the
old records." The Union immediately renewed its request,
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stating that in its view the reason advanced by the
Company was insufficient. The matter was discussed at
the first bargaining meeting on July 6. To quote Clark:
A. Well, I know I had asked Mr. Taylor for the
specific dates of when the people were hired, and he
pointed out that this was a very difficult thing for
them to do, because the records were all over the
place. They didn't know where they were, but anyway
to find and locate the records was difficult for them to
do, in order to supply us with this information.
So far as the record shows, the matter was not further
discussed between the parties. Asked as a witness why the
month and date would be significant, Clark replied:
Well, in negotiations there is a question of seniority
involved and a question of establishing the time at
which people were hired. I felt that we would need
that to know where a person's seniority really was in
negotiations.
5. Concluding Findings
In addition to alleging as a refusal to bargain the refusal
to produce data, just discussed,8 the complaint alleges that
the Company did not bargain in good faith, that it further
violated Section 8(a)(5) and (1) of the Act by withdrawing
from specific agreements made during contract
negotiations with respect to the checkoff, vacations,
holidays, and wage rates, by withdrawing generally from
all agreements made during negotiations, and by failing
"since on or about November 1" to vest sufficient
authority in its bargaining representative.
The last of these allegations need not detain us long.
The record establishes that Batchelor had the same full
and complete authority to conclude a contract that Taylor
had, and the slight confusion attendant on the necessary
substitution of company representative did not seriously
impede the bargaining negotiations. Although Clark
quoted Batchelor at one point as saying he had "no
authority to change anything," this would seem to reflect
only the natural reluctance of the substitute negotiator to
alter positions fixed by preceding negotiations.
With somewhat more difficulty, I am also inclined to
dismiss the general allegation that the Company's conduct
throughout the negotiations establishes its overall bad
faith. It is true that the Company bargained only because
compelled to by injunction, that Taylor found it
"repulsive" and "nauseating" to have to negotiate with
Clark, and that Taylor went so far as to testify that he was
"not particularly trying to make a contract" and that "if it
had been left up to [him], there would have been no
contract ...." Somewhat inconsistently he later testified
that he "entered into the negotiations in the best of faith"
and that he "intended to, if we could have concluded a
contract, to do so." But while Taylor's attitude all but
invites a charge of bad faith, the actual record of
negotiations shows that after a few bargaining sessions the
parties were close to a contract and were kept apart only
by disagreement over the checkoff, and later by a narrow
disagreement over the effective date of certain wage rates.
Although Taylor's hostility may have prolonged the
8 This would seem clearly violative of Section 8(a)(5) and (1) Of
course, insofar as the Company does not possess the data, the
Company will not be in violation if it fails to produce But the
mere fact that unearthing such commonplace information as this
would require "a thorough search of all the old records" is no
defense
negotiations and rendered certain meetings fruitless, the
near agreement represented concessions by both sides
from their original positions, including the acceptance by
the Company of all the conditions stated by the Union in
its letter of September 29. 1 would, therefore, absolve the
Company of the charge that its conduct throughout was in
bad faith.
The record is clear that on November 16 the Company
withdrew from agreements it had reached with the Union
during the course of negotiations concerning vacations,
holidays, and a wage increase. Such a change of position is
a strong indication of want of good faith and a desire to
cause a rupture in negotiations. On the other hand, the
Company represented to the Union at that time that the
Company's economic circumstances warranted a
reexamination of those matters. Neither at the time of the
bargaining nor at the hearing did the Company come
forward with any particulars justifying or explaining in any
detail what had caused the Company to retreat from its
agreements. The Union, however, did not at any time ask
for any documentation of the Company's claimed
"inability to pay," although under N.L.R.B. v. Truitt Mfg.
Co., 351 U.S. 149, the Union could have demanded that the
Company produce the evidence on which it relied. Indeed,
far from challenging the Company on this point, the Union
rather quickly acceded to the Company's new position on
vacations and holidays, and was ready to modify the
previous agreement on wages. On this record, it is difficult
to avoid the suspicion that the Company reopened the
economic issues because almost all the other obstacles to
a contract had been removed. Certainly the only excuse
offered on this record-that "somewhere down the line
somebody had not considered the impact of this
agreement on the company financial condition"-has a
peculiarly hollow ring since the holiday, vacation, and
wage provisions on which the Company now reneged were
contained in its own initial proposal. It may be, however,
that if this matter stood alone, the highly suspicious
circumstances would fall short of requiring a finding of
bad faith.
But the withdrawal of agreement on these matters does
not stand alone. The Company also, after telling the Union
on November 16 that the checkoff was "a minor thing"
and that it "could agree to the checkoff," then withdrew
that agreement on the next day and adhered to the
withdrawal on December 21.9 Further, when the Union
made a counterproposal close to the Company's last offer
on November 17, the Company's response was not only to
reject it but to tell the Union that "the Company has
withdrawn the checkoff and its other proposals and we are
right back to where we started."
This wholesale repudiation of agreements reached is the
antithesis of good-faith bargaining and suggests that the
Company, far from trying to avoid a strike, was welcoming
and encouraging strike action.
The record does contain some suggestion that the
foregoing version of events does not accurately portray the
Company's position or the statements of its spokesman. It
is true that after the strike began the parties continued
negotiating, and that they did not in fact start over "from
9 As to whether the Company had agreed to the checkoff as
early as the preceding September, I find that there was a
misunderstanding between Clark and Taylor on that point, and
that no agreement was in fact reached although Clark believed
otherwise
HERRON YARN MILLS, INC.
scratch." But the testimony quoted and relied on above is
undenied. Batchelor, the Company's bargaining
representative, was also its counsel at the hearing. But this
did not prevent him from taking the witness stand, and as
it was obvious from the pleadings that the events in which
Batchelor participated were critical in the case he had
ample opportunity to obtain the assistance of other
counsel if he felt a reluctance to undertake the dual role of
counsel and chief witness.
The Company may be of the view (as noted, it filed no
brief) that the difference between it and the Union at the
time of the strike went to a mere matter of economics, that
the Union had already authorized a strike, and that the
ensuing walkout should be deemed an economic strike in
support of bargaining demands, rather than one provoked
by unfair labor practices. So far as the strike authorization
is concerned, such "authorization" is far from tantamount
to actually going on strike. Strike authorization is often a
necessary prelude to a strike, but it is also a well-known
bargaining tactic, and many more strikes are "authorized"
than are called. As to the minor matter separating the
parties, it is true that the Union's last offer (10 cents in
November and 5 cents more in February) was not far
different from the Company's last offer of 5 cents in
November and 10 cents more in February. But when the
Union came in with this proposal (and it was the Company
which was reneging on a previous agreement to give 15
cents in November), the rupture which ensued was caused
by the Company's response that it was withdrawing all its
proposals. Had the Company continued to bargain, the
negotiations might have come to fruition. But the
Company chose to provoke the strike by announcing a
withdrawal of all agreements previously reached. Hence,
although in one sense it is true, as Clark candidly
admitted, that the strike came about because of a minor
difference as to the method of effectuating the wage
increase, analysis of the situation as it actually developed
shows that the basic cause of the rupture was the
Company's announced withdrawal from the agreements.10
The consequence of the foregoing discussion is to find
that the strike was an unfair labor practice strike, and not
an economic strike. At the time of the hearing (January 30,
1967), the strike was still current, and the sole
consequence of this finding is to require the Company to
permit the strikers, on application for reinstatement, to
return to their jobs displacing, if necessary, strike
replacements. As the hearing took place so close to the
erstwhile critical date of February 1, by which time, under
either party's last offer before the rupture, the 15-cent
wage increase would have been effective, it would seem
that the question of reinstating the strikers assumed a
position of cardinal importance. It may not be
inappropriate to note, therefore, that-unless
reinstatement is unlawfully refused-no backpay will be
due, and that some of the Company's employees had been
working for it since the 1940's. The Company suggested at
the hearing that some misconduct had occurred during the
strike, but no evidence was introduced pertaining thereto.
Of course, if the Company should decline to reinstate any
striker because of alleged strike misconduct, the issues
1' The difference between the two wage proposals was so
negligible that it seems unlikely either to have caused the Union
to strike, or to have caused the Company to break off negotiations
unless it sought an excuse to avoid a contract The difference
amounted to S cents per hour from November 21 to February 1, or
about 10 weeks Based on a 40-hour week, this would be $2 per
559
thus raised could be litigated in an appropriate
proceeding.
CONCLUSIONS OF LAW
1. The Company, by promising benefits to employees if
they would abandon the Union and by threatening
reprisals if they did not, engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
2. The Company, by withdrawing from agreements
made during the course of bargaining and by failing to give
the Union the dates of hire of employees in the bargaining
unit, has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act.
3. The strike which commenced November 21, 1966,
was caused by the Company's unfair labor practice in
withdrawing from agreements previously reached.
THE REMEDY
I shall recommend that the Company be ordered to
cease and desist from its unfair labor practices, to
reinstate strikers upon their application, replacing if
necessary employees hired during the strike, and to
resume bargaining with the Union. In the event of a failure
to reinstate any striker, the Company shall make him
whole for any future loss of earnings arising out of such
refusal of reinstatement, commencing 5 days after the date
of his application, using the formulae approved in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716. I shall also recommend the
posting of an appropriate notice.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend the following:
ORDER
Herron Yarn Mills, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Promising employees benefits if they withdraw from
or fail to support United Furniture Workers of America,
AFL-CIO, Local 282.
(b) Threatening employees with reprisal if they support
that labor organization or retain it as their bargaining
representative.
(c) Refusing to bargain in good faith with the aforesaid
labor organization as the representative of the employees
in the unit found appropriate by the Board in Case
26-CA-2350.
(d) In any like or related 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 necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the above-named labor organization as the statutory
week per employee or $20 for the entire period A strike of 2 days
would cost each employee that much, and, on the other hand, the
total added cost to the Company for 10 weeks would have been
$1,120 (based on its June payroll of 56 employees), or $112 per
week, a small fraction of its payroll cost
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees in the unit heretofore
found appropriate.
(b) Upon request, furnish that organization with the
dates of hire (day, month, and year) of each employee in
the bargaining unit, to the extent that such information is
in the Company's possession.
(c) Upon application, offer to each of the employees
who went on strike November 21, 1966, reinstatement to
his former or a substantially equivalent position
(discharging, if necessary, employees hired subsequent to
that date) and in the event of failure to do so within 5 days
after their respective applications, make them whole in the
manner prescribed in the portion of the Trial Examiner's
Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its plant in Memphis, Tennessee, copies of
the attached notice marked "Appendix."11 Copies of said
notice, to be furnished by the Regional Director for
Region 26, after being duly signed by an authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by,the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.12
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
"InIn the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL reinstate upon their application any of the
employees who went on strike November 21, 1966.
WE WILL bargain upon request with United
Furniture Workers of America , AFL-CIO, Local 282,
as the exclusive representative of our production and
maintenance employees.
WE WILL NOT threaten to discharge employees who
support that Union.
WE WILL NOT promise benefits to our employees in
an effort to cause them to reject the Union as their
bargaining representative.
WE WILL NOT in any like or related manner
interfere with our employees in the exercise of their
right to join or assist a labor organization , to bargain
collectively , or to engage in concerted activities for
mutual aid or protection.
HERRON YARN MILLS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced.
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 534r-3161.
be substituted for the words "a Decision and Order "
iz In the event that this Recommended Order is 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 Respondent has taken to comply herewith."