Hy-lan Furniture, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 308 (N.L.R.B. 1969)

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hy-Lan Furniture, Inc.
International Union of North
Case I1-CA-3838
and Upholsterers ' 1968. On March 21 the Union filed its charge in
America, AFL-CIO. Case I I-CA-3579, and on July 16, 1968, the General
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On June 30, 1969, Trial Examiner George Turitz
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision,
with 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 this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner consistent with the modifications set
forth below.
The Trial Examiner found that the Respondent
violated Section 8(a)(5) and (1) of the Act by
refusing to continue to meet and bargain with the
Union and by failing and refusing in accordance
with the Union's several requests to furnish
information necessary and relevant to the bargaining
process. The Trial Examiner recommended that the
Respondent be ordered to resume bargaining with
the Union for a reasonable period of time without
regard to fluctuations in the majority status of the
Union. For the reasons related below the Board
agrees.
The record reveals that the Union was certified on
January 2, 1968, and on the following day served on
the Respondent a written request for the names of
the employees in the bargaining unit, their dates of
hire, rates of hourly pay, and job classifications, and
data concerning any existing insurance or retirement
programs, including information as to costs and
contributions. The Respondent failed to reply to this
request, and it similarly ignored subsequent requests
made by the Union on January 27 and February 23,
'We hereby correct the Trial Examiner ' s inadvertent error that the
Union wrote to the Respondent noting its certification and requesting
bargaining on January 3, 1969 , rather than on January 3, 1968
Counsel issued a Complaint alleging that the
Respondent had refused to bargain.
In the interim, on May 3, 1968, the Respondent
furnished the Union with a list of the names of the
employees in the unit, but the list contained no job
classifications and recited hiring dates for only
about half the employees. The Union protested that
the list was "practically useless" without job
classifications, and although the Respondent
furnished the Union with an updated list on May 8,
1968, this latter list also failed to recite the
employees' job classifications or titles. After a
further period of time the Respondent advised the
Union, incorrectly as it turned out, that it did not
classify jobs or assign job titles.
At the opening of the hearing in Case 11-CA-3579
on October 23, 1968, the Respondent indicated its
willingness to enter into an informal settlement
agreement, post a notice, and resume bargaining.
The Union objected to settlement upon an informal
basis, but upon the Respondent's assertion of
willingness to bargain in good faith, including
compliance with its obligation to furnish the Union
with data relevant and necessary to the bargaining
process, the Trial Examiner in that case granted an
adjournment of the hearing to December 17, 1968;
this adjournment was later extended to January 20,
1969.
The parties resumed bargaining on October 31,
1968, but the Respondent made no pretense of
complying with the Union's request for employee
job classifications or insurance data until November
25. At a bargaining session on the latter date the
Respondent orally advised the Union of pertinent
insurance data and also gave the Union a written
list of names of 382 employees in the bargaining
unit, together with their classifications and assigned
departments. However, the list furnished to the
Union on this occasion contained neither dates of
hire nor wage rates, and inasmuch as the list
contained the names of 127 employees who were not
included in the list furnished the Union on May 8,
1968, the Union was still without pertinent data for
nearly a third of the employees in the bargaining
unit . The Respondent made no further attempts to
supply the Union with wage rates or hiring dates for
the 127 employees. On January 6, 1969, at a
bargaining session , Respondent asked the Union to
withdraw the charges in Case 11-CA-3579,
contending that the withdrawal would promote a
spirit of cooperation favorable to reaching
agreement. The Union did so, and on January 14,
1969, the complaint was withdrawn. Thereafter, on
February 20, 1969, the Respondent discontinued
bargaining on the assertion that a majority of its
employees had signed a petition to the effect they no
longer wished to be represented by the Union.
The Board may not find substantive violations of
the Act based on events which occurred more than 6
180 NLRB No. 57
HY-LAN FURNITURE, INC.
months prior to the filing and service of the charge.
We may, however, consider events outside the
limitations period to shed light on the true character
of matters occurring within the limitations period,
and we may also consider such events for the
purpose of enabling us to frame remedial measures
necessary to expunge the effect of unfair labor
practices found to have occurred within the
limitations period. Lundy Manufacturing
Corporation. 136 NLRB 1230, enfd. 316 F.2d 921
(C.A. 2), cert. denied 375 U.S. 895. In the instant
case, in spite of numerous requests by the Union,
the Respondent failed and refused to supply data
necessary for meaningful and intelligent bargaining.
As the Trial Examiner found, the parties did meet
and bargain on four occasions following October 23,
1968, and they made some progress toward a
bargaining agreement. However, issues with respect
to wages and other economic benefits were not
settled prior to the date the Respondent broke off
negotiations, and the Union was in no position to
engage in meaningful negotiations on these issues
without the benefit of the data it had requested. The
information in question was fundamental to the
bargaining process and Respondent's refusal to
supply it derogated not only from the Union's
status, but also its ability to function as the
bargaining agent. In these circumstances, having
refused in an important respect to bargain in good
faith, Respondent cannot be heard to question the
Union's continued majority status.'
True it is that the Respondent's initial refusals
occurred outside the period of limitations, but they
nevertheless continued within the 6-month period
preceding the filing of the instant charge, and also
within the period when Respondent was precluded
from questioning the Union's majority status
because the Union was in its initial year of
certification. We also note that the continuing
refusals occurred after the Respondent had induced
the Union to withdraw the prior charge by agreeing
to comply with its statutory duty to bargain. In
order to place the parties in the position they would
have been but for the Respondent's unfair labor
practices, we shall adopt the Recommended Order
of the Trial Examiner that, upon request,
Respondent resume bargaining with the Union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Hy-Lan Furniture, Inc.,
Hickory, North Carolina, its officers , agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
'C d C Plywood Corporation and Veneers, Inc., 163 NLRB 1022
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
309
GEORGE TURITZ, Trial Examiner: Upon a charge filed
on February 27, 1969, by Upholsterers' International
Union of North America, AFL-CIO ("the Union"), and
served on February 27, 1969, upon Hy-Lan Furniture, Inc.
("Respondent," and, at times, "the Company"), the
General Counsel of the National Labor Relations Board
("the Board"), through the Regional Director for Region
11, on April 23, 1969, issued and served a complaint and
notice of hearing against Respondent. Respondent filed its
answer in which it denied all allegations of unfair labor
practices and alleged, as further defenses, that certain
allegations of the complaint were barred by Section 10(b)
of the Act and that they had been finally disposed of and
terminated by withdrawal of the complaint and charge in
Case 11-CA-3579, which involved the same parties. A
hearing was held at Hickory, North Carolina, on May 27,
1969, before the Trial Examiner named above. The
General Counsel and Respondent were represented by
their respective counsel at the hearing; the Charging Party
was represented by its district director. At the close of the
hearing the General Counsel argued orally; Respondent
has filed a brief with the Trial Examiner.
Upon the entire record and from his observation of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, Hy-Lan Furniture, Inc., is a North
Carolina corporation having a plant located in Hickory,
North Carolina, where it is engaged in the manufacture,
sale, and distribution of furniture. It is a subsidiary of
Unagusta Manufacturing Corporation Respondent
annually purchases and causes to be delivered to its
Hickory plant directly from points located outside the
State of North Carolina raw materials valued at in excess
of $50,000; and Respondent annually sells and ships from
its Hickory plant directly to customers located outside the
State of North Carolina finished products valued at in
excess of $50,000. It is found that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the National Labor Relations
Act ("the Act").
II. THE LABOR ORGANIZATION INVOLVED
Upholsterers' International Union of North America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The principal issues litigated at the hearing were
whether Respondent had an adequate basis upon which to
withdraw recognition from the Union, which had been
certified approximately 13 1/2 months before, and
whether Respondent failed reasonably to comply with the
Union's requests for information about the employees and
their wages.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Sequence of Events
1. Background; bargaining before August 28, 1968'
On January 2, 1968, the Union was certified as
representative of the following appropriate unit of
Respondents' employees at the Hickory plant:
All production and maintenance employees employed at
the factory of Hy-Lan Furniture, Inc., at Hickory,
North Carolina, excluding office clerical employees,
guards, professional employees and supervisors as
defined in the Act.
Shortly thereafter the Union presented a list of demands,
including demands relating to general and merit wage
increases, and wage adjustments and to job classifications
and job evaluations. On January 3, 1969, the Union wrote
to the Respondent noting its certification and requesting a
bargaining conference. The letter requested the names of
all employees in the appropriate unit, their hiring dates,
job classifications, and hourly rates of pay, and
information about any retirement and insurance programs,
including information as to cost and contributions. The
letter stated that the information was needed "In order for
the union representatives to enter into these negotiations
and discuss issues intelligently." In a letter dated January
27 the Union noted that Respondent, in a letter dated
January 12, had failed to mention the information
previously requested which, the Union stated, was ". . .
necessary, in order for the union representatives to enter
into negotiations and discuss issues intelligently . . . "
The Union's letter repeated in full the items of
information previously requested.
On February 23, 1968, the first negotiating meeting was
held. Respondent's chief spokesmen were its attorney, one
David Abrams, and Gene Minotto, its executive vice
president. The Union again requested the same items of
information, this time orally; and it stated that it could
not negotiate wages intelligently without knowledge of
Respondent's wage structure. Respondent replied that the
matter was being worked on, but that it took time. On
May 3, 1968, the Union received from Respondent a list
of the unit employees with their respective rates of pay.
No job classifications or descriptions were listed and the
dates of hire were stated for only about half the
employees. Respondent promised to send another updated
list. On May 6 the Union again wrote to Respondent,
calling attention to its prior request for information and
stating that the names and hourly rates were "practically
useless" without the job classifications. On May 8
Respondent sent the promised "updated" list to the
Union, this one complete as to rates of pay and hiring
dates, but still omitting job classifications. On May 30
Respondent, in reply to the Union's May 6 letter, stated
that it was "unable to furnish each employees' job
classification or job title . . . . We have never classified
jobs nor assigned job titles to the various operating
positions or stations in the Hy-Lan plant."
Further meetings with Abrams acting for Respondent
were held on April 17, May 30, July 19, and September
1.0, 1968.
'The complaint alleges unfair labor practices on and after August 28,
1968, which was approximately 6 months before the filing and service of
the charge in the present case
2. Adjournment of hearing in Case 11-CA-3579
Meanwhile, on March 21, 1968, the Union filed a
charge against Respondent in Case 11-CA-3579, and on
July 16, 1968, a complaint was issued alleging, inter alia,
a refusal to bargain in violation of Section 8(a)(5) of the
Act based in part on allegedly bad faith in negotiating and
on a refusal by Respondent to furnish necessary
information. On October 23 the hearing in that case
opened before Trial Examiner Sidney J. Barban.
Respondent was represented by new counsel, Ellison
Smith and William Smith. Before the hearing was opened
Respondent proposed to enter into an informal settlement
agreement under which it would correct an allegedly
invalid no-solicitation rule, post a notice, and resume
bargaining . The General Counsel and the Union were
agreeable to those terms of settlement except that the
Union insisted that it be formal and provide for a court
decree, but this was not acceptable to Respondent. Trial
Examiner Barban thereupon suggested that the hearing be
adjourned for a time during which the parties could
engage in further negotiations. He stated:
Now, it is my understanding that the Respondent is
willing to do this, and has agreed that it would hold an
initial bargaining session before November 4 of this
year, and would thereafter engage in expeditious
bargaining at reasonable times and places ....
Counsel for Respondent stated:
As far as the Company is concerned, we are in
agreement with the Trial Examiner and as I indicated in
an off-the-record discussion, we will be prepared to
meet and will go forward in negotiations within the
framework of our obligation and we will do that which
is required of us in connection with collective
bargaining , and we think that your proposal is practical
and sound, and we will do everything within our power
to abide by it, and within the frame of the intention
which you have in mind.
The union representative stated:
. Now, we think that we should go ahead with this;
however, we agree with what you have stated in the
record. We will bargain and bargain in good faith and
do our best to accomplish what you have apparently
intended for us to do in your recommendation.
Trial Examiner Barban further stated: "The only thing I
intend , gentlemen , is that the purposes of the law be met,
and I make no inferences that it hasn't been, or that it
won't be, or anything of that sort, but only to give you an
opportunity which may carry out the purposes of the
Act."
The hearing was adjourned to December 17; later it was
further postponed to January 20, 1969.
3. Bargaining subsequent to August 28, 1968
The September 10 session was the last attended by
Abram. As of that time Respondent had not furnished the
job classifications requested, nor any insurance
information.
Following the adjournment of the hearing in Case
11-CA-3579, further bargaining sessions were held on
October 31, November 25, and December 13, 1968, and
January 6, 1969.2 Respondent's chief spokesman was its
attorney, William Smith. Also participating for
Respondent were Jack Sherrill, a vice president, Helen B.
'Meetings were scheduled for several other dates but were postponed
HY-LAN FURNITURE, INC.
Short , an assistant vice president , and Bill White,
production manager. Woodall and an employee committee
represented the Union. Woodall testified without
contradiction: "Substantial progress was made. Mr. Smith
began giving us counter - proposals , and we began to
bargain, after Mr. Smith came in on the scene on October
31, 1968." He stated that agreement was reached "on a
good many of the proposals that the union had made, or
some counter-proposal of a like nature."
At the meeting on October 31, during discussion of the
question of how many shop stewards were to be provided
for, the negotiators went out into the plant to ascertain
approximately how many employees were in each
department. When they returned, Woodall remarked that
all that trouble would have been avoided if Respondent
had furnished the information the Union had been
requesting. Smith asked what information was desired.
Woodall told him he needed insurance facts, and the
employees' wages, job classifications and hiring dates.
Sherrill stated, ". . we really don't have classifications,
we have more of the job description, rather than
classifications." However Smith promised to get the
requested information to the Union with respect to both
insurance and wages "right away." The parties met again
on November 25. The Union acknowledged receipt of a
complete copy of the insurance plan but not the cost
information. Information as to insurance costs was
immediately furnished orally to the Union's satisfaction.
Respondent handed the Union a list of all 382
employees in the unit as of that time. Unlike the May list,
it showed the employees' respective departments and
classifications, but dates of hire and rates of pay, which
were shown on the May list, were omitted. One hundred
and twenty-seven of the names did not appear on the May
8 list. The evidence as to the Union's reaction upon
receipt of the list is discussed below.
4. Withdrawal of the complaint and charge in Case
11-CA-3579
At the January 6 meeting , when the parties began to
discuss a date for their next meeting , Smith pointed out
that the hearing in Case II -CA-3579 was scheduled to
resume on January 20 . Woodall replied , " Yes, I know
that , but we are right down to the top issues , such as the
wages , checkoff, and the cost items , really ." Smith
suggested that the Union ' s charge be withdrawn , saying
that to come to the table as friends would be helpful in
working out these "top issues."
After consulting the Union 's legal department Woodall,
on January 8, 1969 , sent the following telegram to the
Regional Director:
RE: CASE NO. I1-CA-3579 HY-LAN FURNITURE, INC. . . .
CHARGING PARTY RESPECTFULLY REQUESTS WITHDRAW
OF CHARGES IN THE ABOVE CASE . PLEASE TAKE
APPROPRIATE AND NECESSARY ACTION ACCORDINGLY.
On January 10 counsel for the General Counsel served
and filed the following motion to Trial Examiner Barban,
attaching the Union 's telegraphed withdrawal request as
"Exhibit 1":
because of weather or illness, one at the request of the Union, and four at
the request of Respondent.
MOTION
311
After being informed by the parties that substantial
progress has been made towards reaching a contract
since the opening of the hearing in above matter, and
upon receipt of Exhibit 1, attached hereto, Counsel for
the General Counsel respectfully moves to withdraw the
Complaint issued herein and recommends that an Order
issue approving said motion.
On January 11 Respondent notified Trial Examiner
Barban by telegram thiit it had no objection to the
General Counsel ' s motion to withdraw the complaint. On
January 14 Trial Examiner Barban issued the following
order in Case I I-CA-3579:
ORDER APPROVING WITHDRAWAL OF COMPLAINT
The hearing in the above matter opened on October
23, 1968, and adjourned on said date to allow the
parties time to continue negotiations. It appearing that
the parties have made substantial progress toward
reaching an agreement; and the charging party having
filed its request to withdraw the charges herein; and
Counsel for the General Counsel having filed a motion
to withdraw the Complaint; and having duly considered
the matter, and good cause shown therefor, it is,
HEREBY ORDERED , pursuant to Section 102.25 of the
Board's Rules and Regulations, Series 8, as amended,
that the foregoing Motion be, and hereby is, granted.'
5. The withdrawal of recognition
On February 13, 1969, 215 of the 382 employees then
in the appropriate unit signed an informal petition which
was used to support a petition to decertify the Union.4
The parties met on February 20. When the Union took
up the negotiations where they had left off on January 6,
Smith stated that Respondent had information that a
majority of the employees no longer wished to be
represented by the Union. Asked whether he had checked
the authenticity of his information, Smith said that he had
not done so himself but that he was sure it was right.
Employee-members of the negotiating committee said that
several employees had been induced to sign the petition by
promises of wage increases or threats of discharge, to
which Smith replied that if any such threats had been
made they had been unauthorized. He said, "We cannot
bargain with you. I suggest you file a new petition."
Woodall replied that the Union was still the certified
bargaining agent and expected Respondent to continue to
bargain until it was decertified. Respondent left the
meeting and on February 27 Woodall filed the present
charge.
'It is not clear whether Trial Examiner Barban's Order ruled upon the
Charging Party 's request to withdraw the Charge , as well as General
Counsel ' s Motion to Withdraw the Complaint. However, in the present
case the General Counsel treated the Order as an approval of the
withdrawal request , and it is so considered for purposes of the present
Decision . See National Labor Relations Board Rules and Regulations and
Statements of Procedures, Series 8, as amended , Section 102.9.
'The formal petition and the informal supporting petition were filed on
February 24, 1969, in Case I I -RD-150, which is still pending.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Concluding Findings
1. Withdrawal of recognition
A striking feature of this case is that the Union
withdrew the old Charge in response to Respondent's
urging that this would enable the parties to bargain at
their next meeting "as friends," but when they next met,
Respondent, on the basis of supervening circumstances,
withdrew recognition and refused to bargain.
On October 23, 1968, Respondent undertook to engage
in negotiations with the Union and "do that which is
required of us in connection with collective bargaining ...."
That undertaking of Respondent's was made in lieu of
an informal settlement agreement which Respondent was
willing to enter into requiring it to bargain with the
Union. Implicit in the undertaking was the understanding
that such bargaining would be continued for a reasonable
time. Effective bargaining is necessarily impeded if a
union is required to bargain under a constant threat of
loss of its representative status. The Board stated in Poole
Foundry and Machine Company, 95 NLRB 34, 36, enfd.
192 F.2d 740 (C.A. 4), cert. denied 342 U.S. 954:
It is well settled that after the Board finds that an
employer has failed in his statutory duty to bargain
with a union, and orders the employer to bargain, such
an order must be carried out for a reasonable time
thereafter without regard to whether or not there are
fluctuations in the majority status of the Union during
that period . . Similarly, a settlement agreement
containing a bargaining provision, if it is to achieve its
purpose, must be treated as giving the parties thereto a
reasonable time in which to conclude a contract ... .
See, also, I.M. Jaffe and Sons, d/b/a Lahey's of
Muskegon, 176 NLRB No. 66. The same policy has been
applied with respect to recognition agreements. See
N.L.R.B. v. Universal Gear Service Corporation, 394
F.2d 396 (C.A. 6), enfg. 157 NLRB 1169, where the
Court quoted with approval the Board's statement that
"only if the parties can rely on the continuing
representative status of the lawfully recognized union, at
least for a reasonable period of time, can bargaining
negotiations succeed and the policies of the Act be
effectuated." See also Keller Plastics Eastern, Inc., 157
NLRB 583, where the Board stated at page 587:
With respect to the present dispute which involves a
bargaining status established as the result of voluntary
recognition of a majority representative, we conclude
that , like situations involving certifications, Board
orders, and settlement agreements, the parties must be
afforded a reasonable time to bargain and to execute
the contracts resulting from such bargaining. Such
negotiations can succeed , however , and the policies of
the Act can thereby be effectuated, only if the parties
can normally rely on the continuing representative
status of the lawfully recognized union for a reasonable
period of time.
Whether Respondent's solemn undertaking before Trial
Examiner Barban, followed by the Union's withdrawal of
the Charge at Respondent's suggestion that it would be in
aid of bargaining, be deemed tantamount to a settlement
agreement , cf. Gebhard-Vogel Tanning Company, 154
NLRB 913, 915, or tantamount to a recognition
agreement , Respondent was required to bargain with the
Union for a reasonable time.
As stated by the Board in N. J. MacDonald & Sons,
Inc., 155 NLRB 67, at page 71: "The determination of
what tonstitutes `a reasonable time' depends upon the
particular circumstances involved. What is reasonable in
one case may not be so in another . . . But, where the
parties had not reached an impasse in negotiations, 6
months was held not to be 'a reasonable time.' " After the
October 23 hearing the parties met and negotiated on
October 31, November 25, December 13, and January 6,
and they made considerable progress towards reaching
agreement. It is found that the bargaining was not carried
on for a reasonable period and that Respondent's
withdrawal of recognition on February 20 was therefore
violative of Section 8(a)(5) of the Act.
2. The Refusal to furnish information
(a) From August 28, 1968, until at least October 23,
1968, Respondent continued to refuse to furnish
information as to the employees' classifications which the
Union had repeatedly requested. Respondent's position in
this respect had been set forth in its letter dated May 30,
1968, and at no time prior to October 23' was that
position modified. The letter claimed that Respondent
could not furnish the classifications for the following
reason: "We have never classified jobs or assigned job
titles." Short, Respondent's assistant vice president,
testified that one or more times each year, in connection
with wage surveys, Respondent did classify the employees
by job and that when Smith caused Respondent finally to
comply with the Union's request, the employee assigned to
prepare the list knew from her prior experience just how
to go about it and required no instructions. It is found
that from August 28, 1968, to at least October 23, 1968,
Respondent in bad faith and for the purpose of impeding
bargaining refused to furnish to the Union necessary
information as to the job classifications of the employees
in the unit, and that Respondent thereby violated Section
8(a)(5) of the Act. The withdrawal of the Charge and
Complaint in Case 11-CA-3579, which included
allegations of failure to furnish information, was not
based on lack of merit and in no sense represented an
adjudication or a disposition of the merits of those
allegations As the Regional Director could have
reinstated that Charge, see N.L.R.B. v. Lasko Metal
Products, Inc., 363 F.2d 529, enfg. 148 NLRB 976, he
could entertain the new charge notwithstanding the fact
that it covered matter included in the withdrawn case.6
(b) Woodall testified that when the employee list was
handed to him on November 25, he protested
Respondent's failure to give the then current wage rates
and hiring dates, that Sherrill said that this information
already had been furnished in the May list, that Woodall
replied that the wage information previously furnished was
stale, and that two employees on the bargaining
committee said that they themselves had received wage
increases since May. Short testified that she recalled no
such discussion or any indication by Woodall that he was
"very unhappy" with the information furnished on
November 25. Respondent did not produce Sherrill and
General Counsel did not produce either of the two
employee members of the committee referred to by
Woodall.
'On October 23 Respondent promised to bargain in good faith It did
not specifically agree to furnish the information until October 31, and the
information was not actually furnished until November 25.
'Such reinstatement or new charge could not operate to permit the
finding of unfair labor practices based on activities occurring more than 6
months prior to such reinstatement or new charge See Koppers
Company, Inc, Forest Products Division , 163 NLRB No. 64
HY-LAN FURNITURE, INC.
It is unnecessary for purposes of this case to resolve the
question of credibility as between Short and Woodall. It is
undisputed that Respondent failed at all times to furnish
to the Union the hiring dates or rates of pay of 127 of the
382 employees in the unit on November 25, information
embraced in the Union's October 31 request. It is true
that Woodall made no further demand for the information
at the bargaining sessions on December 13 and January 6;
nor did the Union repeat its request in writing , as it had
done before Smith had come into the picture. While these
facts may indicate that Woodall did not feel at the time
that the lack of fresh wage data impeded the Union at
that stage of the bargaining, they do not warrant the
inference that he intended to waive the Union's right to
the information when the subject of wages would be
attacked. Such a waiver, to be found, must be expressed
in clear and unequivocal language. See California
Portland Cement Company, 101 NLRB 1436, 1439. As
Respondent's withdrawal of recognition made its failure to
furnish the wage rates and dates of hire of the 127
employees final, it is found that such failure was violative
of Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of Respondent set forth
above in section III , occurring in connection with its
operations described in section 1, have a close , intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
As it has been found that Respondent has engaged in
certain unfair labor practices , it recommended that the
Board issue the recommended order set forth below
requiring Respondent to cease and desist from said unfair
labor practices and to take certain affirmative action
which will effectuate the policies of the Act.
Counsel for the General Counsel has requested that the
remedy ordered in this case provide that the certification
year be extended to a period of 1 year from such date as
Respondent furnishes a list of employees in the unit with
their dates of hire, wage rates and classifications. See
Amax Aluminum Extrusion Products, Inc, 174 NLRB
No. 63; Huttig Sash and Door Company, et al, 173
NLRB No. 118. Basically , the only remedial action which
the Board may take is to remedy unfair labor practices
which took place during the period of limitation
prescribed by Section 10(b) of the Act. While the Board
may look to earlier events to determine the appropriate
remedy to be prescribed for such unfair labor practices,
see N.L.R.B. v. Lundy Manufacturing Corporation, 316
F.2d 921, enforcing 136 NLRB 1230, cert. denied 375
U.S. 895, the Board has specifically held that a
certification year cannot be extended on the basis of a
failure to bargain occurring before the 10(b) period. Dean
Sellers , Inc., 174 NLRB No. 56 . In the present case
almost 8 months elapsed from the date of certification to
the date of limitation fixed by Section 10(b). In addition,
Respondent admittedly bargained in good faith from
October 31 on, and did not withdraw recognition until
February 20, a period of 3 1/2 months. While Respondent
during that period was in default with respect to the
furnishing of information , such default did not prevent the
313
parties from making considerable progress in their
negotiations. It is unnecessary to decide in this case to
what extent it would be appropriate to extend a
certification year because of failure to furnish information
where bargaining was otherwise in good faith and
progressed substantially notwithstanding the absence of
the information. The bargaining order recommended
below requires Respondent to bargain for a reasonable
period of time without regard to whether or not there are
fluctuations in the majority status of the Union. See
International Association of Machinists v. N.L R.B., 311
U.S. 72, 82-83; N.L.R.B. v. Tower Hosiery Mills, 180
F.2d 701, 706 (C.A. 4), cert. denied 340 U.S. 811.
Upon the basis of the foregoing findings of fact and of
the entire record in this case the Trial Examiner makes
the following.
CONCLUSIONS OF LAW
1. Respondent, Hy-Lan Furniture, Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
3. Upholsterers' International Union of North America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
4. All production and maintenance employees employed
at Respondent's factory at Hickory, North Carolina,
excluding office clerical employees, guards, professional
employees and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
5. At all times material the Union has been, and it still
is, the exclusive representative of all the employees in the
appropriate unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment
and other conditions of employment, within the meaning
of Section 9(a) of the Act.
6. By refusing to bargain collectively in good faith with
the Union, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
7. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, Respondent, Hy-Lan
Furniture , Inc., its officers, agents, successors and assigns,
shall:
1. Cease and desist from:
(a) Refusing to meet and confer with Upholsterers'
International Union of North America, AFL-CIO, with
respect to wages, hours, and other terms and conditions of
employment of Respondent's employees in the appropriate
unit, and with respect to the negotiation of an agreement
and of any question arising thereunder. The appropriate
unit is:
All production and maintenance employees employed at
Respondent 's factory at Hickory, North Carolina,
excluding office clerical employees, guards, professional
employees and supervisors as defined in the Act.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Failing to furnish information requested by the
Union with respect to the job classifications, dates of hire,
and rates of pay of each employee in the appropriate unit.
(c) In any other manner refusing to bargain with the
Union as required by Section 8(a)(5) and (d) of the Act.
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which,' it is
found, will effectuate the policies of the Act:
(a) Upon request, meet with, and bargain collectively
with, the Union as the collective- bargaining representative
of the employees in the appropriate unit, and, if an
understanding is reached , embody such understanding in a
signed agreement.
(b) Furnish the Union, on request, within a reasonable
time, information with respect to job classifications, rates
of pay and dates of hire of all employees in the
appropriate unit.
(c) Post at its office and place of business located in
Hickory, North Carolina, copies of the attached notice
marked "Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 11, after
being duly signed by its representative, shall be posted
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 to
ensure that said notices are not altered, defaced or
covered by any other material.
(d) Notify said Regional Director for Region 11, in
writing, within 20 days from the receipt of this
Recommended Order, what steps Respondent has taken to
comply herewith.'
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request, meet with and bargain
collectively with Upholsterers' International Union of
North America, AFL-CIO, with respect to the wages,
hours and other terms and conditions of employment of
our employees in the appropriate unit and, if an
understanding is reached, embody such understanding
in a signed agreement . The appropriate unit is:
All production and maintenance employees employed
at our factory at Hickory, North Carolina, excluding
office clerical employees, guards , professional
employees and supervisors as defined in the Act.
WE WILL furnish to the Union on request
information with respect to job classifications, rates of
pay, and dates of hire of all employees in the
appropriate unit.
HY-LAN FURNITURE, INC.
(Employer)
Dated By
'In 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 be substituted for the words "a
Decision and Order."
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 "
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 1624 Wachovia
Building , 301 North Main Street, Winston-Salem, North
Carolina 27101, Telephone 723-9211.