Highland Park Manufacturing Co.

National Labor Relations Board - Board Decisions

May 26, 1939

12 N.L.R.B. 1238 (N.L.R.B. 1939)

In the Matter Of HIGHLAND PARK MANUFACTURING Co. and TEXTILE
WORKERS ORGANIZING CoMMIrrEE
Cases Nos. C-414 and R-484.-Decided May 26, 1939
Textile Manufacturing Industry-Interference, Restraint , and Coercion-Unit
-Appropriate for Collective Bargaining : no controversy as to; hourly and piece-
Tate production and maintenance employees at three mills in two contiguous
States, exclusive of clerical and supervisory employees and watchmen-Repre-
sentatives : testimony of union officials ; no controversy as to-Collective Bargain-
ing: refusal of employer to engage in ; refusal to enter into any agreement with
labor organization irrespective of what terms might be proposed by or under-
standing had with the organization ; refusal to reduce or merge in a signed
written agreement any understanding that might be had with the organization ;
refusal by reason of the foregoing position to consider sincerely requests of the
organization involving material changes in existing conditions ; meaning of-
Discrimination : by discharges ; allegations of, dismissed-Investigation of Repre-
sentatives : petition for, dismissed in view of order to employer to bargain.
Mr. Jacob Blum and Mr. Herbert O. Eby, for the Board.
Mr. Thomas C. Guthrie and Mr. Whiteford S. Blakeney, of Char-
lotte, N. C., for the respondent.
Mr. Scam P. Brewer, of Charlotte, N. C., Mr. Alfred Udoff, of New
York City, and Mr. Joseph Kovner, of Washington, D. C., for the
Union.
Mr. James A. Cobey, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On August 30, 1937, Textile Worrkers Organizing Committee, herein
called the Union, filed charges with the Regional Director for the
Fifth Region (Baltimore, Maryland) alleging that Highland Park
Manufacturing Company,' Charlotte, North Carolina, herein called
the respondent, had engaged in and was engaging in unfair labor
practices, within the meaning of Section 8 (1), (3), and (5) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
1 This is the correct designation of the respondent.
32 N. L. R. B., No. 120.
1238
HIGHLAND PARK MANUFACTURING COMPANY 1239
On September 8, 1937, the Union filed with the Regional Director
a petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of the respondent and re-
questing an investigation and certification of representatives pursuant
to Section 9 (c) of the Act.
On October 5, 1937, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, Article II, Section 37 (b), and Article III, Sec-
tion 10 (c) (2), of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice, and further ordered that for the purposes of
hearing the two cases be consolidated and that one record of the
hearing be made.
Upon the charges theretofore filed, the Board by the Regional Direc-
tor issued its complaint, dated November 1, 1937, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (3),
and (5) and Section 2 (6) and (7) of the Act. A copy of the com-
plaint accompanied by notice of hearing was duly served upon the
respondent and upon the Union. Thereafter, on November 5, 1937,
a notice indefinitely postponing the hearing was duly served upon
said parties.
In respect to the unfair labor practices the complaint alleged in
substance (a) that the respondent discharged three of its employees,
viz, B. Wilson on July 30, 1937, R. Ferrell on August 9, 1937, and
Charles West on August 10, 1937, because they had joined and assisted
the Union, thereby discriminating in regard to the hire and tenure
of employment of these employees and discouraging membership in
the Union; (b) that during August 1937 and at all times thereafter
the respondent refused to bargain collectively with the Union as the
exclusive representative of its hourly and piece-rate production and
maintenance employees, employed at its three plants therein men-
tioned, excluding clerical and supervisory employees and watchmen,
although the Union had been designated by a majority of said em-
ployees as their representative for the purpose of collective bargain-
ing and said employees constituted a unit appropriate for such pur-
pose; that the respondent so refused to bargain collectively, in that it
refused to reduce to writing and sign an oral agreement entered into
between it and the Union, refused to put into effect and/or establish
as its policy the terms and conditions of said oral agreement, refused
to post notices at its plants that said oral agreement had been made,
and refused to permit its superintendent to orally notify its em-
ployees of the terms and conditions of said agreement; and (c) that
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent intimidated, restrained, and coerced its employees and
in other' ways attempted to prevent them from joining a labor organ.
ization of their own choosing.
On November 10, 1937, the respondent filed its answer to the com-
plaint, objecting to the jurisdiction of the Board over the subject
matter, because of the alleged intrastate character of its business, and
denying generally the material averments of the complaint.
Pursuant to notice, a hearing was held on December 9, 10, and 11,
1937, at Charlotte, North Carolina, before Lawrence J. Kosters, the
Trial Examiner duly designated by the Board. The Board and the
respondent appeared and were represented by counsel ; the Union
participated only in the representation phase of the proceedings.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties. At the beginning of the hearing and again at the close of all
proof the respondent moved to dismiss the complaint and the proceed-
ings upon the ground that the jurisdiction of the Board over it and its
operations contravened various provisions of the Constitution. This
motion was denied by the Trial Examiner. The respondent further
moved at the close of the hearing to dismiss the complaint for insuffi-
ciency of proof to support the allegations thereof. This motion the
Trial Examiner likewise denied. The Board and the respondent
moved at the close of their respective cases to amend the pleadings
of each to conform to the proof. The Trial Examiner granted these
motions to the extent that the amendments were only formal in nature.
During the hearing the Trial Examiner made various rulings as to
the admissibility of evidence. The Board has reviewed these rulings
of the Trial Examiner, and save where inconsistent with what is set
forth below, finds that no prejudicial errors were committed. These
rulings, so limited, are hereby affirmed.
On January 6,1938, the respondent submitted to the Trial Examiner
a brief in support of its position. On February 14,1938, the Trial Ex-
aminer filed his Intermediate Report, a copy of which was duly served
upon all parties, finding that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7)
of the Act, and recommending that the respondent cease and desist
from its unfair labor practices, that it reinstate with back pay Wilson,
that it bargain collectively with the Union, and that it take certain
other action to remedy the situation brought about by the unfair labor
practices found. On February 26, 1938, the respondent filed with the
Board its Exceptions to the Intermediate Report of the Trial Exam-
iner, and on March 14 submitted to the Board a brief in support
thereof. The Union filed its Exceptions on March 4 and submitted a
supporting memorandum on March 9, 1938.
HIGHLAND PARK MANUFACTURING COMPANY 1241
Pursuant to notice, and upon the written request of the respondent,
a hearing for the purpose of oral argument was held on March 16,
1938, before the Board, in Washington, D. C. Both the respondent and
the Union appeared, presented oral argument, and otherwise partici-
pated in the hearing. The respondent orally moved that the record
be reopened for the purpose of admitting to the record written state-
ments concerning wages paid and other matters relating to B. Wilson,
the employee named in the complaint. The granting of this motion
was objected to by the Union, and the Board denied the motion. On
March 24, 1938, the respondent renewed this motion by written com-
munication to the Board. The motion thus renewed is hereby denied.
The Board has considered the Exceptions of the respondent and of the
Union and, in so far as they are inconsistent with the findings, conclu-
sions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a North Carolina corporation with its principal
place of business at Charlotte, North Carolina, is engaged in manu-
facturing and selling broadcloth, shirting, and knitting yarn. It owns
and operates three mills, each a separate manufacturing unit. Mill
No. 1 and Mill No. 3 are located at Charlotte, North Carolina. Mill
No. 2 is located at Rock Hill, South Carolina. At the time of the
hearing, only five persons were employed in Mill No. 1; 2 approxi-
mately 300 persons in Mill No. 2; and 750 persons in Mill No. 3.
The raw materials used by the respondent in the process of manu-
facturing are shipped to the mills, by rail and truck, from points in
North Carolina, Mississippi, and Tennessee. About 95 per cent of the
finished products manufactured by the respondent are sold and shipped
f. o. b. the mills, to customers located outside the State of North Caro-
lina, more than half of these products being shipped to customers in
the State of New York, and some to customers in all the other States
and principal cities of the United States. These sales are made
through commission agents located in New York City.
II. THE ORGANIZATION INVOLVED
Textile Workers Organizing Committee, herein called the Union, is
a labor organization affiliated with the Committee for Industrial
Organization, a labor organization, and admits to membership all
2 These persons worked in the dye house of Mill No . 1. Other operations of this mill
apparently were suspended in May 1937 and had not been resumed at the time of the
hearing
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persons employed in and around textile mills, excluding supervisory
and clerical workers.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges and the Union claims that all of the hourly
and piece-rate production and maintenance employees of the respond-
ent at its above-mentioned mills,3 exclusive of clerical and supervisory
employees and watchmen, constituted and constitute a unit appro-
priate for the purposes of collective bargaining. The respondent does
not contest the appropriateness of this unit. The classifications of
workers included and excluded by the allegation of the complaint
accord in general with the eligibility requirements for membership
in the Union, as well as with the character of organization of em-
ployees extant in the textile industry throughout the Southeast.' The
inclusion in one unit of employees of the three mills, despite geo-
graphic considerations, conforms with principles we have stated in
previous decisions.5 We see no reason for finding this unit
inappropriate.
We find that all hourly and piece-rate production and maintenance
employees of the respondent at its above-mentioned mills, exclusive
of clerical and supervisory employees and watchmen, constituted
and constitute a unit appropriate for the purposes of collective bar-
gaining and that said unit will insure to the employees of the re-
spondent the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
In April 1937 the Union commenced to organize the employees of
the respondent within the above unit. An official of the Union in
charge of the organizing of these employees testified that prior to
May 25, 1937, that is, by 10 days previous to that date, a substantial
majority, 80 or 85 per cent, of the respondent's employees within the
unit had applied for membership in the Union and designated it their
9 The complaint uses the word "plants." We have used the word "mill " herein as
synonymous with "plants."
4 Cf. Matter of Aragon-Baldwin Cotton Mills and Textile Workers' Organizing Commit-
tee, 10 N. L R. B. 959; Matter of Burlington Dyeing d Finishing Co. and Textile
Workers Organizing Committee, 10 N L. R B 1; Erwin Cotton Mills Company and Textile
Workers' Organizing Committee, 6 N. L. It. B. 595, 599.
3 For a collection of these cases , see Matter of Pittsburgh Plate Glass Company and
Federation of Flat Glass Workers of America, Affiliated with C I. 0, 10 N . L. It. B.
1111, footnote 10.
HIGHLAND PARK MANUFACTURING COMPANY 1243
representative for purposes of collective bargaining with the respond-
ent. Another official of the Union in charge of these organizational
activities at the time of the hearing in the States of North and South
Carolina testified that in November 1937 he had counted union cards
signed by members of the Union in the employ of the respondent
designating the Union their representative for purposes of collective
bargaining in regard to wages, hours of service, and other working
conditions, and that approximately 1,000 such employees at the three
mills had executed such cards. During the 6 months preceding De-
cember 1937 the respondent had on its pay roll between 1,000 and 1,100
employees. The respondent has never questioned the claim of the
Union that during the negotiations discussed below, or since, the
Union was the exclusive collective bargaining representative of the
respondent's employees within the unit found to be appropriate.
Upon the foregoing facts and the record, we find that on May 15,
1937, and at all times thereafter, the Union was designated and
selected by a majority of the employees in the unit above found
appropriate as their representative for the purposes of collective
bargaining, and pursuant to Section 9 (a) of the Act, was, on that
date and at all times thereafter, the exclusive representative of all
the employees in such unit for the purposes of collective bargaining
with the respondent in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
3. The refusal to bargain
On May 25, 1937, the Union communicated by registered mail with
the respondent informing the respondent that the Union had been
designated by a majority of the respondent's employees as their repre-
sentative for collective-bargaining purposes, and requesting a con-
ference to discuss the "adjustment" of the wages, hours of service,
and other conditions of employment of the employees. A few days
later the Union and the respondent met. The Union was represented
by an official, one Nixon; the respondent by its president, one C. W.
Johnston, and its vice president and treasurer, one R. H. Johnston.
After preliminaries, Nixon presented to the Johnstons for their con-
sideration a proposed draft contract between the Union and the re-
spondent for a term of 1 year, providing for wages, hours, and
various other working conditions of employees at the respondent's
mills. After brief discussion of the provisions of the proposed con-
tract, the parties determined to meet again and adjourned.
About 10 days later the second conference of the parties took place.
In addition to the persons who had attended the first meeting there
were present one Church, the respondent's secretary, and one Moore,
a director. Because of the illness of C. W. Johnston, the discussion
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which followed was of short duration. Some of the principles of the
proposed agreement, however, were reviewed. The meeting concluded
with the statement of C. W. Johnston that he desired to have his
attorney examine the proposed contract and that he would communi-
cate with Nixon after the attorney had done so.
On June 15 the parties again met. The Union was represented
by one Brewer and one Lawrence; the respondent by the Johnstons.
C. W. Johnston stated that his attorney still was examining the
proposed agreement, and, in consequence, the parties did not discuss
the provisions thereof. The conversation which occurred concerned
what duty the Act imposed upon employers to bargain collectively.
The next meeting of the representatives of the Union and of the
respondent was on June 25. No concession or counteroffer regard-
ing any of the matters provided in the proposed contract was made
by the respondent. A sharp dispute arose as to the meaning of
collective bargaining under the Act. The respondent's vice presi-
dent, R. H. Johnston, took the position that the respondent had been
bargaining with the Union in that in the interim its mill superin-
tendent had conferred with the so-called shop committee of the Union
concerning some employee grievances, such as "the dockage system
in effect and the possibility of a stretch-out." To this the union
representatives replied, in substance, that the Union was seeking to
bargain collectively with respect to all of the matters contained in
the draft contract it had submitted to the respondent, that the draft
contract set forth the demands of the Union and the basis for nego-
tiations. Although during the course of this discussion, one of the
union representatives suggested that the provisions of the proposed
contract be read, the draft contract in fact was never read nor dis-
cussed during the meeting.
On July 27 the parties held another meeting. The union repre-
sentatives made an effort to have the provisions of the proposed con-
tract discussed, but did not succeed. No counterproposals or con-
cessions were made by the respondent's representatives. A witness
described the meeting as "similar to ones" which theretofore had
occurred.
On August 4 representatives of the parties again met. A revised
draft of the proposed contract, changed among other respects to
reduce the percentage of wage increase originally provided and to
omit a requirement that new employees be union members, was
presented by the union representatives for discussion. The union
representatives suggested that the provisions of the draft be con-
sidered seriatim and that negotiations proceed on such basis. This
suggestion the respondent's representatives rejected. They stated
that the respondent, by meeting with union representatives and com-
mittees whenever a conference was requested, already had bargained
HIGHLAND PARK MANUFACTURING COMPANY 1245
collectively with the Union. Thereupon another dispute followed
as to the meaning of collective bargaining. When it appeared that
the respondent's representatives would not discuss the individual
provisions of the proposed contract, the union representatives pre-
pared to leave, declaring that negotiations upon the terms of an
agreement were apparently impossible and resort would have to be
had to the Board for a remedy. The respondent's president then
stated that he and his associates would consider the proposed contract.
The union representatives, accordingly, proceeded to a reading of
the provisions. The first paragraph of the draft involved the fixing
of a term for the operation of the contract. The respondent's rep-
resentatives were unwilling to accept such a provision. However,
there was little discussion upon the subject, for the union representa-
tives were anxious to reach and have considered the more important
substantive provisions. The second paragraph, setting forth that the
parties would preserve harmonious relations and protect "the inter-
est of the Textile Industry" occasioned little comment. The discus-
sion then turned to the section providing for a workweek of 40 hours,
and a workday of 8 hours, and for an increased rate of compensation
for overtime work. The respondent's president, C. W. Johnston, stated
that the respondent already was operating on a 40-hour week, 8-hour
day basis and proposed to continue doing so, that its employees were
not and would not be required to work overtime, that, consequently,
there was no need for an agreement upon these matters.° With
respect to the provision for observance of Labor Day, Thanksgiving
Day, Christmas Day, and Fourth of July, and the payment of com-
pensation at the rate of "time and one-half" for any work performed
on those days, the respondent's representatives stated that the re-
spondent, as a matter of practice, had always granted its employees
holidays, that it had no objection to allowing these holidays if the
"employees wanted them," but it "didn't care to agree to the section
... as a stipulation to be put into effect as a regular thing." A
like position was taken by the representatives regarding a provision
prohibiting the employment in the mills of any person under 16
years of age. They contended that the State law prohibited such
employment,' that the respondent was not employing persons below
e At the hearing a witness for the respondent , its secretary , testified that the re-
spondent 's representatives "agreed" to the 40-hour week , 8-hour day provision of the pro-
posed contract , and "agreed" not to require oveitime work of its employees . It is apparent
from an examination of all the testimony of the witness , in the light of the entire record,
that this use of the word "agree" In this connection , as well as the use thereof elsewhere
in his testimony , was not in the sense of a legally enforceable contractual undertaking but
of a mere understanding terminable at will.
7 While the law of North Carolina apparently bars the employment of persons under 16
years of age ( North Carolina Laws 1937 , Ch. 317, effective March 22, 1937 ), the law of
South Carolina is not as broad as the provision of the proposed contract ( South Carolina
Code Ann . [ Michie, 1932 ] Secs . 1469 , 1470, 1473). The mills covered by the contract
were in both States
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that age and would not do so, that, therefore, an agreement concern-
ing that matter was unnecessary. Similarly, a provision for settling
through arbitration questions concerning "work loads, proper dis-
tribution, or reclassification" was set aside, because "there is no use
trying to find trouble and arbitrate some conditions that don't exist."
Provisions for an increase in wage rates, for a "preferential shop"
and check-off, were flatly rejected. Concerning the requested wage
increase, the respondent's representatives contended that "competition
would not allow us to raise wages."
Throughout the August 4 conference, the respondent's representa-
tives stressed the fact that while the respondent was always ready to
confer with union committees on employee grievances, the respondent
had no intention of entering into an agreement or signing a contract
with the Union. The respondent's president, C. W. Johnston, was
emphatic in this. In connection with a provision of the proposed con-
tract embodying the principle of seniority for increases and reduc-
tions of working force, a principle which the respondent's repre-
sentatives asserted the respondent had followed in the past and would
adhere to in the future, Johnston was expressly asked by the union
representative, Lawrence, "Will you agree to this seniority pro-
vision?" Johnston replied, "I am not going to agree to a thing." At
the hearing Johnston testified that his reply to this question was, "I
would not sign anything"; that "Mr. Brewer and Mr. Lawrence
[union representatives] insisted on signing a contract which I stated
I would not sign it because the law didn't require me to do it and I
had no idea of signing a contract." While Johnston's testimony in
terms refers only to the signing of a collective contract and not to
the making of an agreement, we are satisfied, and find, upon the fore-
going facts and the record, including the circumstances mentioned
below, that the respondent had no intention whatsoever of entering
into any collective agreement, written or oral, with the Union, and did
so inform the union representatives.
At what proved to be the end of the conference, the union repre-
sentatives, "for the purpose of determining . . . whether or not it
was possible to bargain at all" with the respondent, inquired of
Johnston whether the respondent would be willing to make an oral
agreement with the Union covering merely some of the provisions
of the proposed contract, "enough of [the Union's] ... requests"
to satisfy both the Union and the respondent, and then to post in
the respondent's mills a written statement of the terms thereof as a
"statement of policy," 8 signed by Johnston. The union representa-
s The so-called "statements of policy," as these statements have come to be known, are
written statements setting forth provisions in respect to wages, hours of service, and
other working conditions of employees which the employer as a matter of policy but not
as a matter of contractual obligation , is willing to observe . See Matter of Servel, Inc.
HIGHLAND PARK MANUFACTURING COMPANY 1247
tives indicated, as an inducement to such action, that the Union would
be willing to have the statement unsigned by it.9 Johnston replied
that the respondent would make no agreement with the Union, even
under those conditions. The union representatives then asked
whether the respondent would do so if the respondent's superintendent
rather than Johnston were to sign the statement of policy.
Johnston's reply was again in the negative. Finally, he was asked
whether the respondent would make such an agreement and merely
have its superintendent read to the employees- an unsigned written
statement thereof as a statement of policy for the ensuing year.
Johnston answered that the respondent would not do so, and the con-
ference thereupon ended.
On August 15 another meeting was held. It was attended by one
Nance, southern director of the Union, who attempted without suc-
cess to persuade Johnston "to agree to bargain." On August 30 the
Union filed its charges herein alleging among other things, that the
respondent had refused and was refusing to bargain collectively in
good faith with the representatives of its employees. On September
14 a strike occurred at Mill No. 3 which was terminated on October
25 pursuant to a strike settlement between the respondent and the
Union. The settlement related only, as the parties understood, to a
determination of the strike controversy and not of the matters arising
prior to the strike upon which the charges were based b0
The attitude and position of the respondent toward collective bar-
gaining with the Union may be epitomized as follows: The respondent
recognized the Union as the exclusive collective bargaining repre-
sentative of its production and maintenance employees; it was willing
to meet with the Union whenever the Union wished; it was ready
to confer about employee grievances. Furthermore, with respect to
requests of the Union which involved no substantial changes in exist-
ing conditions, the respondent was willing to give assurance that it
intended no change in such conditions." This was its response to
and United Electrical, Radio and Machine Workers of America, Local No. 1002, 11 N. L.
R B. 1295; Matter of Harnischfeger Corporation and ,Amalgamated Association of Iron,
Steel & Tan Workers of North America, Lodge 1114, 9 N. L R B. 676.
'That the omission of such identification may be a material consideration to a labor
organization, see Matter of Harnischfeger Corporation and Amalgamated Association of
Iron, Steel if Tin Workers of North America, Lodge 1114, 9 N. L. it. B. 676. See also
National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U. S. 261, 267.
10 As to the force of a strike settlement upon pending charges where the Board is not
a party to the settlement and has not participated therein, see Matter of McKaig-Hatch,
Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North America,
Local No. 1139, 10 N. L R B 33.
u The respondent was not always ready to do this. As heretofore set forth, the union
representatives were first able to obtain a review of the provisions of the proposed agree-
ment at the August 4 conference, some 8 weeks after collective bargaining had originally
been requested, and after the union representatives had found it necessary to state that
resort would have to be had to the Board if the respondent continued in its unwillingness
to consider the individual provisions.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
r
the provisions of the proposed contract involving the existing work-
week, holidays, employment of minors, and seniority. However, the
respondent was adamant in its stand that it would not enter into any
contractual relationship with the Union irrespective of what terms
the Union proposed or what understanding was reached, that it would
not render legally obligatory any assurance given or understanding
had with the Union, nor would it memorialize by or integrate into a
written instrument, signed or unsigned, any such assurance or under-
standing, or any agreement entered into with the Union. In view
of this resolve of the respondent, and in the light of the entire record,
we are convinced that the respondent had no intention to consider
sincerely requests of the Union involving material departures from
existing conditions.
Collective bargaining, as contemplated by the Act, is a procedure
looking toward the making of a collective agreement by the em-
ployer with the accredited representatives of its employees touching
wages, hours of service, and other working conditions of the em-
ployees.12 The duty to bargain collectively, which the Act imposes
upon employers, has as its objective the establishment of such a
contractual relationship.- We have held that this duty is not limited
to recognition of the employees' representatives qua representatives,
or to a meeting and discussion of terms with them. The duty en-
compasses an obligation to enter into discussion and negotiation
with an open and fair mind and with a sincere purpose to find a basis
of agreement concerning the issues presented,14 to make contractually
binding the understanding upon terms that are reached,15 and, under
12ilfatter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No.
325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America,
American Federation of Labor, 10 N L. R B 963, Matter of Inland Steel Company
and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel,
and Tin Workers of North America, Lodge Nos 64. 1010 , and 1101, 9 N. L. R. B. 783; Matter
of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen
of North America, Local Union No. 159, 2 N. L. R. B 39.
In Consolidated Edison Company of New York, Inc, at al v. National Labor Relations
Board, et al , 305 U. S. 197, 236, the United States Supreme Court said :
"The Act contemplates the making of contracts with labor organizations . That is the
manifest objective in providing for collective bargaining "
In National Labor Relations Board Y. The Sands Manufacturing Company, 59 S. Ct.
508, 513-14, that Court said :
"The legislative history of the Act goes far to indicate that the purpose of the statute
was to compel employers to bargain collectively with their employees to the end that
employment contracts binding on both parties should be made."
19 See cases cited in footnote 12.
'4 Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N. L.
R. B 461, affirmative order enforced in Globe Cotton Mills v. National Labor Relations
Board, 103 F. (2d) 91 (C. C. A 5) ; Matter of S L Allen d Company, Inc, a Corporation
and Federal Labor Union Local No. 18526, 1 N. L. R. B. 714, order enforced (C. C. A. 3)
C. C. H. Labor Law Service , par. 18589; Matter of Knoxville Publishing Company and
Amer roan Newspaper Guild, The Knoxville Newspaper Guild , 12 N L R. B. 1209
15 Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local Union No. 159, 2 N. L. R. B. 39; Matter of
Sigmund Freisanger, doing business under the name and style of North River Yarn
HIGHLAND PARK MANUFACTURING COMPANY 1249
ordinary circumstances, to reduce that obligation to the form of a
signed written agreement if requested to do so by the employees'
representatives.1'
Manifestly, the respondent has not fulfilled its duty to bargain
collectively with the Union. The attitude and position which its
representatives assumed at the August 4 conference clearly show
that the respondent was not then negotiating, nor did it intend to
negotiate, in good faith with the representatives of its employees.
Although good faith demanded that the respondent, in entering the
conference, accept fully the procedure of collective bargaining the
respondent was not ready to do this. From the outset its intention
and purpose were to make no binding agreement with the Union,
irrespective of what terms were proposed or understanding reached.17
Equally it was determined, regardless of the request of the Union
therefor, to refrain from making or signing a written memorial of
any agreement reached with the Union, or from integrating into
a signed written agreement any understanding had with the Union.18
Dyers and Textile Workers Organizing Committee, 10 N L. R B. 1043 ; Matter of
Harry Schwartz Yarn Co., Inc. and Textile Workers Organizing Committee , 12 N. L.
R B 11,19 See also Matter of Inland Steel Company and Steel Workers Organizing
Committee and Amalgamated Association of Iron, Steel , and Tin Workers of North
America, Lodge Nos . 64, 1010, and 1101, 9 N. L. R. B. 783.
16 Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No
825, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America,
American Federation of Labor, 10 N L. R. B 963. Matter of Inland Steel Company
and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel,
and Tin Workers of North America, Lodge Nos. 64, 1010 , and 1101, 9 N. L R B. 783.
'T In Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6
N. L R. B . 461, 467 , the Board stated :
"If the employer adheres to a preconceived determination not to enter into any agree-
ment kiith the representatives of his employees , . . . then his meeting and discussing the
issues with them, however frequently , does not fulfill his obligations under the Act."
Again in Matter of Harnischfeger Corporation and Amalgamated Association of Iron,
Steel if Tin Workers of North America , Lodge 1114 , 9 N. L. R . B. 676, the Board said:
The respondent contends that collective bargaining is in some manner different from
normal business relationships , in that it does not connote the negotiation of binding
agreements . . . An essential purpose of collective bargaining is to stabilize labor
relations , so that workers may deal as business equals with their employers as to their
terms and conditions of employment . . . . And it seems to us that by the plain meaning
of the term ` collective bargaining ,' a willingness to reach a bargain or binding agreement is
essential if an employer is to carry out the duty imposed by the Act . This is not to say
that an employer is bound to accept whatever terms the union proposes to include in the
agreement There is no obligation to agree to any particular terms; but only to negotiate
on the terms in good faith in an effort to make an agreement."
18 Matter of Inland Steel Company and Steel Workers Organizing Committee and Amal-
gamated Association of Iron , Steel, and Tin Workers of North America , Lodge Nos. 64,
1010, and 1101, 9 N. L. R . B. 783. In this case it was said :
"We regard it as well settled that collective bargaining in good faith requires a willing-
aiess to consummate the negotiations, if successful , by entering into some sort of an
agreement . And we hold that under circumstances such as are presented here, it is the
employer 's obligation to accede to a request that understandings reached be embodied
in a signed agreement . The present controversy is projected on the background of a long
struggle by labor organizations to attain full recognition of their right to recognition as
collective bargaining agencies with a dignity equal to that of the employers with whom
they deal. We take judicial notice of the fact that today thousands of employers have
accorded unions their right to normal contractual relationships , and that, as is shown
by the record, the signed collective bargaining agreement is the prevailing practice. From
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We see no persuasive reason, nor has the respondent advanced any,
for its unwillingness to enter into any signed agreement with the
Union.19
Lastly, as we have found, the respondent had no sincere desire to
explore the possibility of reaching even an understanding upon those
requests of the Union which involved material changes in existing
conditions.20 It first undertook consideration of the provisions of the
proposed contract after the union representatives threatened resort to
the Board. The provision for increased compensation for overtime
work on workdays and holidays was rejected on the bare assertion
that its employees would not be required to work overtime. As a
matter of fact, subsequent to August 4 the employees were required to
work overtime for which they were compensated at the regular rate.
Throughout, the action of the respondent's representatives on issues
was dominated by its intent to make no contract.
We find that the respondent by refusing on August 4, 1937, and at
all times thereafter, to enter into any agreement with the Union irre-
spective of what terms might be proposed by or understanding had
with the Union'21 to reduce to or merge in a signed written agreement
any oral understanding or agreement that might be had with the
Union, and/or to consider sincerely the requests presented by the
Union, as afore-mentioned, did on said August 4, 1937, and at all
times thereafter refuse to bargain collectively with the Union as the
representative of its employees in the appropriate unit in respect to
rates of pay, wages, hours of employment, and other conditions of
the viewpoint of harmonious and cooperative labor relations, as well as of sensible
business practice, the importance of embodying understandings in signed agreements is
obvious."
1B In Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local Union No. 159, 2 N. L. R. B. 39, 53-54, the
Board said :
"The respondent presses upon us its willingness at all times to receive and discuss
the collective demands presented to it and to state its decision on those demands. But
it asserts that it is enough that any acquiescence in those demands be made tangible
by their adoption as part of its business policy and argues that it is not required to
enter into an agreement embodying the understanding reached. . . . The respondent's
statement simply means that its policy is not to enter into agreements with labor organiza-
tions representing its employees . . Such an attitude grows out of an antipathy toward
organization of workers and a refusal to concede that the policy of the United States shall
be the policy of the respondent . It is designed to thwart and slowly stifle the Union
by denying to it the fruits of achievement. ... the frequency with which the old Board
was compelled to denounce such a policy on the part of employers indicates its potency
as a device subtly calculated to lead to disintegration of an employee organization."
10 In Globe Cotton Mills v. National Labor Relations Board, 103 F (2d) 91 (C. C. A. 5),
the court stated :
. . there is a duty . . . to enter into discussion with an open and fair mind, and a
sincere purpose to find a basis of agreement touching wages and hours and conditions of
labor, and if found to embody it in a contract as specific as possible, which shall stand
as a mutual guaranty of conduct, and as a guide for the adjustment of grievances."
Y1 As stated above the strike settlement which the respondent entered Into,was limited
in objective to the termination of the strike, and left unlouched the matter of the
respondent's bargaining collectively with the Union in regard to the various requests of
the Union presented prior to the strike. The record shows that the respondent even
refused to sign a written statement of the strike settlement.
HIGHLAND PARK MANUFACTURING COMPANY 1251
employment. We also find that by such refusal the respondent has
interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed by Section 7 of the Act.22
B. The allegedly discriminatory discharges
B. Wilson was discharged by the respondent during the week of
June 12, 1937, and after reemployment again was discharged about
July 30, 1937. He had been employed as a weaver in Mill No. 3 since
May 1, 1936. The record establishes that Wilson was an active union
member and that his affiliation and activities were known to the re-
spondent. At the time of the first discharge, the respondent gave
Wilson a written statement of reference saying that "his production
has been good and his seconds have been low." He was reemployed
upon intervention of the Union after threat was made that a charge
would be filed with the Board alleging a discriminatory dismissal of
Wilson.
The respondent contends that it discharged Wilson on both occa-
sions because of the high number of "seconds," that is, defective work,
which he produced. The record shows that Wilson's work compared
unfavorably with the work of other weavers generally and of the
operator employed at Wilson's loom on the succeeding shift. During
the period in which the discharges took place, the respondent was con-
ducting a campaign to reduce the amount of "seconds" occurring at
the mills, and weavers other than Wilson, who did not have as poor
a work record as he did, were then discharged for incompetency.
While the evidence yields a suspicion that Wilson was discharged for
discriminatory causes, we find the proof insufficient to establish that
fact. The statement of reference given him, we are convinced, was
simply a matter of courtesy, and his reinstatement thereafter at-
tributable to the threat made and the recommendation outstanding.
Charles West was discharged by the respondent on August 10, 1937.
His union membership and activities likewise were known to the
respondent. The respondent states that it discharged West because
he absented himself from work without excuse. The Trial Examiner
found that the respondent did not discharge West because of his mem-
'a we are aware that a variance exists between the findings we have made and the
complaint. In the brief submitted by the respondent to the Board, the respondent adverted
to a similar "inconsistency" between the Trial Examiner 's findings and the complaint.
However, the respondent in its brief , claimed no surprise or prejudice because of the
variance between the pleading and proof , nor that it was deprived of an opportunity to
present what evidence it wished at the hearing on the matters shown and issues raised
by the proof adduced against it. It is plain from the respondent 's answer , the case it
submitted , and the briefs to the Trial Examiner and the Board, that the respondent was
apprised by the complaint of the transactions or occurrences involved upon which the
unfair labor practices have been found . It is equally evident that the respondent made
what proof it ' wished and otherwise fully , litigated the -issues herein determined. see, -
National Labor Relations Board v. Mackay Radio & Telegraph Company, 304 U. S. 333,
349-50.
169134-39-vol 12-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership and activities in the Union. We agree with the Trial Exam-
iner's finding.
R. Ferrell was discharged on August 9, 1937, by the respondent.-
We are satisfied that his union membership and activities also were
known to his superiors. At the time of his discharge, Ferrell was
informed that the reason therefor was the poor condition in which
he had left his frames at the end of his preceding shift. At the hear-
ing the respondent sought to show that other reasons as well motivated
the discharge. - We do not find that the evidence establishes these
other alleged reasons. However, it is shown that Ferrell did leave his
frames in such a poor condition that the work of two men and a
boy in addition to the man regularly assigned to the frames was
required to get the frames in order, that a delay of over an hour and
one-half occurred before production could be resumed. Upon this
record we agree with the Trial Examiner that Ferrell was not dis-
charged by reason of his union affiliation and activity.
We find that the respondent has not engaged in any unfair labor
practice with respect to B. Wilson, Charles West, and R. Ferrell, or
any of them, as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III A above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.23
V. THE REMEDY
It is essential in order to effectuate the purposes and policies of
the Act that the respondent be ordered to cease and desist from cer-
tain activities and practices in which we have found it to have en-
gaged, and in aid of such order and as a means of removing and
avoiding the consequences of such activities and practices, that the
respondent be directed to take certain affirmative action, more par-
ticularly described below.
We have found that on August 4, 1937, and at all times thereafter
the respondent refused to bargain collectively with the Union as the
representative of certain of its employees. Accordingly, we shall
order the respondent to cease and desist from this unfair labor prac-
tice, and upon request, to bargain collectively with the Union as
the exclusive representative of all hourly and piece-rate production
and maintenance employees of the respondent at its above-mentioned
21 National Labor Relations Board V. Fa :nbtatt et at., 59 S. Ct . 669, and cases there cited.
HIGHLAND PARK MANUFACTURING COMPANY 1253
mills, exclusive of clerical and supervisory employees and watchmen,
in respect to wages and other working conditions, and if an under-
standing is reached on any of such matters, to embody such under-
standing in a signed agreement, if requested to do so by the Union.
We also shall order the respondent to take certain other action more
particularly set forth in the Order.
VI. THE PETITION
In view of the findings in Section III above as to the appropriate
unit and the designation of the Union by a majority of the respond-
ent's employees in the appropriate unit as their representative for
the purposes of collective bargaining, it is not necessary to consider
the petition of the Union for investigation and certification of repre-
sentatives. Consequently, the petition will be dismissed.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Organizing Committee is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. The hourly and piece-rate production and maintenance em-
ployees of the respondent at the respondent's above-mentioned mills,
exclusive of clerical and supervisory employees and watchmen, con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. Textile Workers Organizing Committee was on May 15, 1937,
and at all times since has been, the exclusive representative of all em-
ployees in such unit for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
4. By refusing on August 4, 1937, and at all times thereafter,
to bargain collectively with Textile Workers Organizing Committee,
as the exclusive representative of all its employees in such unit,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
7. By discharging R. Ferrell, B. Wilson, and Charles West, the
respondent did not engage in any unfair labor practice, within the
meaning of Section 8 (1) or (3) of the Act, as alleged in the
complaint.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that High-
land Park Manufacturing Company, Charlotte, North Carolina, and
its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Textile Workers Or-
ganizing Committee as the exclusive representative of all its hourly
and piece-rate production and maintenance employees employed at
the respondent's above-mentioned mills, exclusive of supervisory and
clerical employees and watchmen ;
(b) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities, for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Textile Workers Or-
ganizing Committee, as the exclusive representative of all its hourly
and piece-rate production and maintenance employees employed at
the respondent's above-mentioned mills, exclusive of clerical and
supervisory employees and watchmen, in respect to rates of pay,
wages, hours of employment, and other conditions of employment,
and, if an understanding is reached on such matters, embody said un-
derstanding in•a signed agreement, if requested to do so by Textile
Workers Organizing Committee;
(b) Post immediately and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, throughout its
mills, copies of this Order, together with a statement that it will
abide and comply therewith;
(c) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it
alleges that the respondent, by discharging R. Ferrell, B. Wilson,
and Charles West, engaged in unfair labor practices, within the
meaning of Section 8 (1) and (3) of the Act, be, and the same hereby
is, dismissed.
AND IT IS FURTHER ORDERED that the petition for certification of
representatives filed by Textile Workers Organizing Committee be,
and the same hereby is;; dismissed.