J. P. Stevens & Co.,

National Labor Relations Board - Board Decisions

Oct 30, 1970

186 N.L.R.B. 180 (N.L.R.B. 1970)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. P. Stevens & Co., Inc. Gulistan Division and
Textile Workers Union of America , AFL-CIO.
Case 10-CA-8108
October 30, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On June 29, 1970, Trial Examiner John M. Dyer
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices in violation
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, the General Counsel, and the Charging
Party filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, and hereby orders
that the Respondent, J. P. Stevens & Co., Inc.,
Gulistan Division, Statesboro, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified below:
1. Add the following as paragraph 1(c) of the
Recommended Order:
"(c) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act."
2. Substitute the following as new paragraph 2(b)
of the Recommended Order and redesignate present
paragraph 2(b) and the following paragraphs accord-
ingly:
"(b) Reinstitute at its Statesboro, Georgia, plant the
wage structure of unit employees which existed
immediately prior to July 7, 1969."
3. Substitute the Notice to All Employees, atta-
ched hereto , as Appendix , for that recommended by
the Trial Examiner.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency 'of the United States Government
After a trial in which the Company, the Union, and
the General Counsel of the National Labor Relations
Board participated and offered evidence, the Nation-
al Labor Relations Board has found that we violated
the law and has ordered us to post this notice and we
intend to carry out the order of the Board and abide
by the following:
WE WILL NOT refuse to bargain collectively with
Textile Workers Union of America, AFL-CIO, as
the exclusive representative of all employees in the
bargaining unit described below with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment, in-
cluding any changes in the wage structure.
WE WILL NOT change the wage structure of unit
employees without first bargaining with the Union
about such changes.
WE WILL NOT in any other manner engage in
conduct which interferes with, restrains, or coerces
you in the exercise of your rights guaranteed by
Section 7 of the Act.
WE WILL bargain collectively with the Union
before modifying or changing wages, hours, or
other terms and conditions of employment in the
appropriate unit described below, particularly
including any changes in the wage structure, and,
if an understanding is reached, WE WILL sign a
contract containing such understanding.
The appropriate unit is:
All production and maintenance employ-
ees at Respondent's Statesboro, Georgia,
plant, including shipping clerk, shipper-re-
ceiver, stockroom employees, dyehouse em-
ployees, quality control department employ-
ees, production control department employ-
ees, and specifically including sample clerks
and clerk-typists or clerks in said depart-
ments, leadmen, and fixer-leadmen, but
excluding office clerical employees, industri-
al engineering department employees, per-
sonnel office employees, professional em-
ployees, watchmen-boilermen, guards, and
supervisors as defined in the Act.
186 NLRB No. 34
J. P. STEVENS & CO., INC. 181
WE WILL reinstitute the old wage structure
which was changed on July 7, 1969.
WE WILL make whole all employees whose
wages were reduced by the July 7, 1969, change in
the wage structure from that time until we
reinstitute the old wage structure.
All our employees are free to become or remain
union members.
J. P. STEVENS & CO.,
INC., GULISTAN DIVISION
(Employer)
Dated By
(Representative )! (Title)
THIS IS AN OFFICIAL NOTICE AND MUST
NOT BE DEFACED BY ANYONE
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.
Any questions concerning this Notice or compli-
ance with its provisions, may be directed to the
Board's Office, Room 701 Peachtree Building, 730
Peachtree Street, N.E., Atlanta, Georgia 30308,
Telephone 404-526-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Trial Examiner: On January 2, 1970, the
Textile Workers Union of America, AFL-CIO, herein
called the Union, filed the charge herein alleging that J. P.
Stevens & Co., Inc. Gulistan Division, herein called
Respondent, or the Company, violated Section 8(a)(3), (5),
and (1) of the Act by cutting employees' wages on July 7,
1969, and refusing to bargain with the Union concerning
the matter. On March 2, 1970, the Regional Director for
Region 10 issued the complaint, which besides the standard
allegations concerning service of the charge, the interstate
nature of Respondent's business and the Union's status,
alleges that the Union has been the majority representative
of an appropriate unit' at Respondent's Statesboro,
Georgia, plant since March 18, 1968. The complaint alleges
that on or about July 7, 1969. Respondent unilaterally and
without notice to, or consultation with, the Union changed
the wage structure of its employees in that unit, and that
such change reduced the pay of its unit employees in
violation of Section 8(a)(5), (3), and (1).
Respondent's answer admitted the union status, the
commerce facts, but not the conclusion, and that on or
about March 26, 1968, the Regional Director of Region 10
had issued a Decision and Direction of Election in which
the bargaining unit set forth in the complaint was found to
be appropriate. The answer admitted that the Company
1 The appropriate unit at Respondent's Statesboro, Georgia, plant
consists of all production and maintenance employees including shipping
clerk, shipper-receiver, stockroom employees, dyehouse employees, quality
control department employees, production control department employees,
and specifically including sample clerks and clerk-typists or clerks in said
made some changes with respect to the wage structure at
the Statesboro, Georgia, plant on or about July 7, 1969.
During the hearing, which was held April 21, 1970, at
Statesboro, Georgia, Respondent made several motions to
dismiss the complaint or parts of the complaint and to
postpone the proceeding, all of which were denied.
Respondent was permitted to amend its answer concerning
the effect of the wage structure changes and admitted that
the changes affected the pay of some of the employees
adversely and some favorably.
All parties were afforded full opportunity to appear,
although no witnesses were produced or examined, and the
record was made through stipulations and argument on the
various motions. General Counsel filed a brief which has
been considered. On the basis of the record in this case,
which must include the prior Board proceeding regarding
this Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent is a Delaware corporation with one of its
plants located in Statesboro, Georgia, where it is engaged in
the manufacture of textile products. During the past
calendar year, which period is representative, Respondent
sold and shipped goods valued in excess of $50,000 from its
Statesboro plant to customers located outside the State of
Georgia.
I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Respondent admits, and I find, that Textile Workers
Union of America, AFL-CIO, is a labor organization
within the meaning of the Act.
II. THE FACTUAL BASIS OF THE CASE
The Board in the preceding case involving Respondent's
Statesboro, Georgia, plant, 179 NLRB No. 47, affirmed
Trial Examiner Mullin's findings that Respondent had
violated Section 8(a)(1), (3), and (5) of the Act. In
particular, the Board stated that Respondent resorted to a
campaign of extensive and egregious unfair labor practices
to thwart the Union's organizational drive, and dissipated
the majority which the Union had acquired between
February 18 and March 18, 1968. The Board determined
under the Gissel doctrine that a bargaining order was
required to repair the effects of Respondent's unfair labor
practices, finding that Respondent had refused to bargain
since on or about March 18, 1968. Examiner Mullin's
decision was issued on June 6, 1969, and the Board's
decision issued on October 22, 1969. Respondent refused to
comply with either the Trial Examiner's decision or the
Board decision and the Board has moved for enforcement
of its order in the United States Court of Appeals for the
Fifth Circuit.
On the basis of the pleadings in this matter and the
departments, leadmen , fixer-leadmen , but excluding office clerical
employees, industrial engineering department employees, personnel office
employees, professional employees, watchmen-boilermen , and guards and
supervisors as defined in the Act.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stipulations, I conclude and find that Respondent, on or
about July 7, 1969, unilaterally and without notice to, or
consultation with, the Union, changed the wage structure
for unit employees, it was using prior to that time (an
incentive system) to another system (flat rate), and that as a
result of such change, some of the employees' take-home
pay was adversely affected while the take-home pay of
some other employees may have increased.
On the basis of these pleadings and facts, General
Counsel urges that the unilateral change of a mandatory
subject of bargaining while a duty to bargain with the
Union existed was a further violation of Section 8(a)(5) and
(1) of the Act. General Counsel also urges that an action
which results in the lessening of employees' wages is an act
which carries with it, its own antiunion discriminatory
motivation, and as such is an independent violation of
Section 8(a)(3) and (1) of the Act, citing Great Dane
Trailers, Inc., 388 U.S. 26, 65 LRRM 2465. General
Counsel additionally relies on the prior unfair labor
practice history of J. P. Stevens, both at this plant and at
others for the discriminatory motivation.
In essence then, General Counsel 's case is based on a
finding by the Board, which is now in the enforcement
stage, that Respondent since March 1968 has had a duty to
bargain with this Union, and that by unilaterally changing
wage rates in July 1969 Respondent has further committed
8(a)(5), (3), and (1) violations.
Respondent argues that it has no duty to bargain with the
Union until a final determination of such duty has been
made by a circuit court of appeals and that a Board order is
of no effect until a court so states and to proceed on a case
which is based on a case not yet passed on by a circuit court
of appeals denies Respondent due process of law.
In support of these positions Respondent moved to
postpone the case and to dismiss the complaint and various
parts of the complaint, which I denied. Respondent argued
that on July 7, 1969, when it made its unilateral change of
the wage structure, only the Trial Examiner's June 6, 1969,
decision had issued. Respondent contends that neither a
Trial Examiner's decision nor a Board decision and order
confers a bargaining right and duty.
In support of its position Respondent cited five cases. In
Porter v. Investors Syndicate, 286 U.S. 461 (1931), a State
commissioner of insurance determined to revoke a permit
to do business of an investment company. The company
went into a United States District Court for an injunction
against the commissioner's action, claiming that the statute
stated the commissioner's decision should remain in full
force and effect in the interim and that such would mean
irreparable injury and harm to it, claiming that the local
state court did not have power to issue a stay of execution.
The Supreme Court determined that the district court in
granting the injunction and the company in seeking it had
misread the applicable statute and stated that the State
court had authority to issue interlocutory relief to stay the
action of the commissioner if it felt it was necessary.
The second case of Myers v. Bethlehem Ship Building, 303
U.S. 41 (1937), involved an NLRB case in which an 8(a)(2)
complaint had issued. The question was whether a United
States District Court had jurisdiction to enjoin a Board
proceeding to prevent the hearing of the case. The circuit
court said it did and enjoined the action on the basis of
constitutionality. The Supreme Court reversed the action of
the circuit court and the district court. In its decision the
Supreme Court noted that the Board had been granted no
power to enforce its own orders and that "[t]o secure
enforcement, the Board must apply to a Circuit Court of
Appeals for its affirmance. And until the Board's order has
been affirmed by the appropriate Circuit Court of Appeals,
no penalty accrues for disobeying it. The independent right
to apply to a Circuit Court of Appeals to have an order set
aside is conferred upon any party aggrieved by the
proceeding before the Board." 2 The Court also stated "The
findings as to the facts are to be conclusive, but only if
supported by evidence. The order of the Board is subject to
review by the designated court, and only when sustained by
the court may the order be enforced. "3
In the third case of Inland Empire District Council v.
Millis. 325 U.S. 697 (1944), a labor union sought circuit
court review of a Board order of certification. The union
sought injunctive relief against the Board or in the
alternative an order declaring the Board order null and void
on the basis of lack of due process, affirming that it had
been deprived of an appropriate hearing prior to an election
under Section 9(c) of the Act. The case involved the
appropriateness of the hearing in the representation area
and the Supreme Court after discussing the language of
Section 9(c) stated that nothing required a preelection
hearing since it is all part of an investigation and that the
requirements are met if there is an adequate hearing with
due notice at some point before the investigation is
completed and the certification issued. The Court said:
"We think no substantial question of due process is
presented. The requirements imposed by that guaranty are
not technical, nor is any particular form of procedure
necessary."
In Whitney National Bank v. Bank of New Orleans, 379
U.S. 411 (1964), a New Orleans bank wished to expand into
another parish and formed a holding company which
organized a new national bank to operate in the other
parish. The Federal Reserve Board after favorable advice
from the Comptroller held hearings and approved the plan.
The new bank needed a certificate of authority from the
Comptroller to begin business. Three state banks went into
Federal court to enjoin the Comptroller's issuing the
certificate and two of the banks filed a motion for
reconsideration with the Federal Reserve Board which was
denied. At that point the United States Court of Appeals
for the Fifth Circuit was asked to review the Federal
Reserve Board's action under the Bank Holding Company
Act. At the time the case came before the Supreme Court
that suit was still pending. Following the original Federal
Reserve Board's approval, the State of Louisiana passed a
law making it unlawful for a bank controlled by a holding
company to open whether it had a charter or not. The
district court decided that, since the Bank Holding
Company Act had reserved some authority to the States to
bar subsidiaries of holding companies from operating
2 Myers at 48-49. (Emphasis supplied.)
3 Myers at 49. (Emphasis supplied.)
J. P. STEVENS & CO., INC.
banks that the Louisiana law should prevail and issued an
injunction prohibiting the Comptroller from issuing the
certificate. The Court of Appeals for the Fifth Circuit held
that the new bank would be but a branch of the old original
bank and such was prohibited by the Banl, Holding
Company Act and decided the case on this different basis,
sustaining the injunction against the Comptroller.
The Supreme Court decided that the district court did not
have jurisdiction and that the controversy should be before
the Federal Reserve Board which should consider the
Louisiana law and since a suit for review of the Federal
Reserve Board's action was pending in the Fifth Circuit, the
Fifth Circuit could appropriately remand the case to the
Federal Reserve Board to consider the impact of the
Louisiana law which had not existed at the time of the
Federal Reserve Board's action. The Supreme Court stated
it would stay its decision for 60 days and that the U.S.
Court of Appeals for the Fifth Circuit could issue
appropriate orders to preserve the status of the proceeding
and its jurisdiction pending final determination. The
Supreme Court particularly noted that the issues should be
resolved by the Federal Reserve Board and not by a district
court since the views of the Federal Reserve Board as an
expert body were desired, and that a collateral attack in a
district court to the Federal Reserve Board rulings would
not be permitted. The Court said that any positions should
be made before the Federal Reserve Board itself, subject
only to review by the court of appeals. Considering what
could be done if the Comptroller issued a certificate in the
interim, the Supreme Court noting the wide discretion of
the court of appeals said the court could stay the order of the
Federal Reserve Board and that any issuance by the
Comptroller would not be lawful.
The fifth case cited by Respondent was Harris- Woodson
Co., Inc., 77 NLRB 819. In that case a prior Board case
involving a refusal to bargain was unremedied at the time
that a new refusal-to-bargain charge was processed based
on a new majority. The Board's order in the first case was
enforced in a circuit court of appeals between the date of
the hearing and the date of the decision in the second case.
The Board's decision states that as a matter of law the
union continued to be the representative of the employees
from the date of its original decision and order.
None of the cases cited by Respondent appear to support
Respondent's contention. In fact most of the cases mention
that a decision remains in force and effect and where
necessary an appropriate motion may be made for the court
to issue a stay.
Respondent has misconceived the nature of the decision
and order of the Board and mistaken an enforcement
proceeding for the original decision. Where a Respondent
will not abide either the Trial Examiner's decision or the
Board decision, it becomes necessary for the Board to
secure enforcement of its decision and order through action
of an appropriate circuit court of appeals and such
enforcement is granted by the court on a showing of
substantial evidence. The operable matter is the facts as
found by the Trial Examiner and the Board and the facts
determine under the law whether a violation has occurred.
In a refusal-to-bargain case, the facts determine when the
duty to bargain was present and when the refusal occurred.
183
The violation takes place at that time, not later when a Trial
Examiner spells out the facts and the violation or when the
Board affirms or makes such a finding. The Board decision
is an affirmance that the duty existed at the prior instant
and that Respondent violated the Act by negating its duty.
Where the duty exists whether or not such has been
articulated by a Trial Examiner, the Board, or a court,
Respondent acts at its peril if it does not meet that duty. On
occasion the Section 10(b) limitation might pass canceling
that peril, but otherwise Respondent must act in accord-
ance with the duty imposed by the Act.
In N.L.R B. v. Winn-Dixie Stores Inc., 361 F.2d 512, 62
LRRM 2218, (C.A. 5, 1966), cert. denied 385 U.S. 935, the
court enforced the Board order after modifying it. The
Board found that a union represented a majority of
employees in an appropriate unit and that the company had
violated Section 8(a)(5) of the Act by refusing to bargain. A
second charge of refusal to bargain was processed by the
Board, and the Court in enforcing the second case
specifically noted that the failure to bargain upon which the
second case rested "occurred during the period the
proceedings for enforcement of the earlier order were
pending in this Court." The Court took note of the
company's contention that it was under no duty to bargain
with the union during the pendency of such proceedings,
but the Court cited Section 10(g) of the Act which states
"The commencement of proceedings under subsection (e)
or (f) of this section shall not, unless specifically ordered by
the court, operate as a stay of the Board's order." The Court
then said: "We hold Winn-Dixie was not relieved of its duty
to obey the order to bargain during pendency of the
proceedings to enforce the earlier order."
The present proceeding is in the same judicial circuit and
appears to me to fall squarely within the ambit of the Board
and the Court's rulings in Winn -Dixie.
The Board in Quaker Tool and Die, Inc., 169 NLRB No.
166, held that an employer's contest of the validity of a
Board bargaining order in a court of appeals does not serve
to relieve the employer of its duty to bargain in the interim.
"The fact that an employer is contesting in a court of
appeals the validity of a Board determination that it has the
duty to recognize and bargain with a labor organization
should not be viewed as a bar to the latter's invoking the
Board's remedial processes where the employer, as here,
has allegedly engaged in subsequent acts derogating from
its duty to bargain in good faith which are different in
nature from those covered by the existing Board order. As
the unilateral action which is the subject of the instant
complaints has a tendency to undermine and disparage the
Union in the eyes of employees in the bargaining unit, it is
our opinion that issuance of an order to offset the effects of
any unlawful action by Respondent will effectuate the
purposes of the Act."
In the instant case Respondent has been under a duty to
bargain with the Union since March 1968. The Board
affirmed the Trial Examiner's June 1969 decision in
October of that year. In July 1969, following the issuance of
Trial Examiner Mullin's decision, and more than a year
after its duty to bargain was established by the facts of the
situation, Respondent violated that duty again by unilater-
ally changing wage structures to the detriment of some of
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unit employees without any notice to , or consultation
with , the Union . Clearly this is an independent violation of
Section 8(a)(5) and ( 1) and could only serve to further
derogate the Union in the eyes of the employees and is once
again an arrogation to itself by this Respondent of duties
and responsibilities which under these circumstances are
meant to be shared with the Union.
It is possible that the Employer here acted as the Union
alleges , that is to drive down wages in this particular plant
in order to have something to bargain back up to when it
has to begin bargaining . Whether this was Respondent's
intention or whether Respondent is merely continuing to
assert rights which it refuses to share with the Union in
violation of the Board 's order , Respondent is, in any event,
guilty of a further refusal to bargain with this Union.
I therefore conclude and find that Respondent by
engaging in the unilateral act of changing the wage
structure of its unit employees at this plant without notice
to, or consultation with, the Union , the duly certified
bargaining agent of the unit of employees , violated Section
8(a)(5) and ( 1) of the Act.
The General Counsel as noted above also urges that the
action taken by Respondent violated Section 8(a)(3) of the
Act. In his brief the General Counsel states "It is further
contended that where an employer discriminatorily reduces
the wages of its employees immediately following an
adverse Trial Examiner 's decision , so that it may be in a
better position at the bargaining table, such reduction in
wages violates Section 8 (a)(3) of the Act . Such contention
should not fall for lack of independent evidence of anti-
union motivation when one considers the continuous
nature of Respondent's past unfair labor practices together
with the language of Great Dane Trailers Inc. "4
The General Counsel states as facts conclusions which he
has drawn , but not from testimony . It is true that the
change was made following an adverse Trial Examiner's
decision , but this falls short of proof that it was done so that
Respondent could be in a better position at the bargaining
table , this being an assumption apparently made by both
the Union and the General Counsel.
There are statements in the record that the change of
wage structure at this plant was made at the same time that
a wage increase was given at other J . P. Stevens plants and
it was stipulated that some of the wage earners were
adversely affected by the change whereas some may have
benefited from the change.
It appears that in answering the question of whether
Respondent 's conduct is inherently disruptive of a
collective-bargaining relationship, or of employees' reliance
on their bargaining agent , and in considering whether
Respondent 's conduct would have such unavoidable
consequences which Respondent could have foreseen or
intended , the context in which that decision was made must
be considered.
The prior proceeding held in Statesboro , Georgia, which
forms the cornerstone of the instant case , took a large
number of trial days running through a 6-month period
involving three different cases with numerous allegations of
8(a)(1),(3), and (5) conduct by Respondent. Such a
proceeding in Statesboro , Georgia, would have been a
major topic of conversation among Respondent's employ-
ees. When coupled with the number of unfair labor practice
cases in which J . P. Stevens & Co., Inc . has been a
Respondent over the last 5 or 6 years , together with the
known efforts by the Union to organize and represent
Respondent 's employees, the issuance of the Trial Examin-
er's decision in June 1969 would have been noticed by
employees and residents of Statesboro , Georgia, and
engendered some commentary in the plant and the
community . When within a month of such decision, and
despite the fact that Respondent was ordered to bargain
with the Union , Respondent unilaterally changed the
employees ' pay structure without offering any explanation
for its action to its employees or the Union , and the pay of
employees was adversely affected , this action must have
been a further topic of discussion by the employees. Where
those two actions were coupled , as it would be reasonable
to assume employees would do , there would be unavoidable
conclusions that Respondent was again demonstrating its
resistance to sharing any control over the employees' rights
and welfare with their selected bargaining agent and was in
effect demonstrating its contempt for the Board 's order to it
to bargain with the Union . The damage to some employees'
pay is direct and obvious.
I conclude and find that Respondent 's unilateral act in
the circumstances prevailing was discriminatory and could
not be otherwise viewed by those involved . There is no
doubt that Respondent 's act at the very least had the
potential for adverse effect upon employees ' rights of which
Great Dane speaks. I conclude that Respondent 's act here is
inherently discriminatory and with no explanation of any
sort by Respondent as to the reasons for its action, I
conclude and find that Respondent 's action also violated
Section 8(a)(3) and ( 1) of the Act.
If Respondent 's action was not considered a separate
violation of Section 8(a)(3), it would still call for an 8(a)(3)
type remedy to make Respondent's employees whole for
Respondent 's violative conduct and I will recommend such
a remedy.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, and therein found to constitute unfair labor
practices in violation of Section 8(a)(5), (3 ), and (1) of the
Act, occurring in connection with Respondent 's business
operations set forth in section I, above , 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.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices as set forth above , I recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
Having found that Respondent refused to bargain with
the Union in good faith as the representative of its
4 N.L.R.B . v. Great Dane Trailers Inc., 388 U.S. 26, 65 LRRM 2465.
J. P. STEVENS & CO., INC. 185
employees in an appropriate unit by unilaterally and
without notice to or consultation with the Union changing
the pay structure of its unit employees on or about July 7,
1969, at a time when it was obligated to bargain with the
Union.5 I recommend that Respondent reinstitute the pay
structure and procedures which it followed at the
Statesboro, Georgia, plant prior to July 7, 1969. If
Respondent or the Union desires changes in such pay
structure, the proper procedure of collective bargaining
about such matters is to be followed. I further recommend
that Respondent make whole those employees whose pay
was decreased by Respondent's change of the pay structure
on and after July 7, 1969, until the date Respondent
reinstates the former pay structure. Such reimbursement is
to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, with interest at the rate of 6 percent per annum
to be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. I further recommend that
Respondent make available to the Board, upon request,
payroll and other records in order to facilitate checking the
amounts of backpay due the employees.
Having found that Respondent refused to bargain with
the Union in regard to the employees' pay structure and
further that Respondent's unilateral action in changing the
pay structure violated Section 8(a)(3) of the Act as well, and
considering Respondent's prior history of Act violations, I
am concerned Respondent may further violate its employ-
ees' rights. I therefore recommend that Respondent be
placed under a broad enjoiner to cease and desist from in
this or any other manner infringing upon the rights
guaranteed its employees by the Act. On the basis of the
foregoing findings and the entire record, I make the
following:
CONCLUSIONS OF LAW
1. J. P. Stevens & Co., Inc., Gulistan Division, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Textile Workers Union of America , AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the
Act.
3. All production and maintenance employees at
Respondent's Statesboro , Georgia , plant , including ship-
ping clerk, shipper-receiver, stockroom employees, dye-
house employees , quality control department employees,
production control department employees , and specifically
including sample clerks and clerk-typists or clerks in said
departments , leadmen , and fixer-leadmen , but excluding
office clerical employees, industrial engineering department
employees , personnel office employees , professional em-
ployees , watchmen-boilermen , guards , and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times since March 18, 1968, and particularly on
and since July 7, 1969, the Union has been, and is now, the
exclusive representative of the employees in the said unit
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. Respondent by refusing to bargain in good faith with
the Union, which is the exclusive representative of its
employees in the appropriate unit stated above, in regard to
changing the pay structure of said employees unilaterally
and without notification to, or consultation with, the
Union, has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(5), (3), and (1) and 2(6) and (7) of the Act.
RECOMMENDED ORDERS
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case
considered as a whole , it is recommended that J. P. Stevens
& Co., Inc ., Gulistan Division , of Statesboro , Georgia, its
officers , agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning the pay structure, working conditions , rates of
pay, hours of employment , and other terms and conditions
of employment with Textile Workers Union of America,
AFL-CIO, as the exclusive representative of the employees
in an appropriate unit described in the section above
entitled "Conclusions of Law."
(b) Unilaterally and without notice to , or consultation
with , the Union changing the pay structure or other terms
and conditions of employees' work.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively in good faith with
the above-named Union as the exclusive representative of
all the employees in the appropriate unit concerning the
pay structure , employees' working conditions, or any
changes Respondent or the Union wish to make in such
working conditions.
(b) Make its unit employees whole for any loss of pay
they may have suffered by reason of Respondent's
unilateral change of their pay structure in accordance with
the recommendations set forth in the section of this
Decision entitled "The Remedy."
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records, timecards,
personnel records and reports and all of the records
necessary to analyze the amount of backpay due said
employees as set forth in the section of this Decision
entitled "The Remedy."
5 The remedy for the unfair labor practices found in this case is not in
derogation of the findings , conclusions , and remedies found appropriate by
the Board in the prior case, 179 NLRB No. 47 , but rather is in addition
thereto to remedy a new and distinct unfair labor practice committed by
Respondent.
6 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its Statesboro, Georgia, plant copies of the
attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
7 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith .8
ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
8 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."