J. P. Stevens & Co.

National Labor Relations Board - Board Decisions

Oct 20, 1983

268 N.L.R.B. 89 (N.L.R.B. 1983)

. P. STEVENS & CO.
J. P. Stevens and Co., Inc. and Amalgamated Cloth-
ing and Textile Workers Union, AFL-CIO,
CLC. Cases 1 i-CA-8067 and 11-CA-8465
20 October 1983
DECISION AND ORDER
On 5 March 1982 Administrative Law Judge
James M. Fitzpatrick of the National Labor Rela-
tions Board issued his Decision in the above-enti-
tled proceeding and, on the same date, the pro-
ceeding was transferred to and continued before
the Board in Washington, D.C. Thereafter, all par-
ties filed exceptions and/or cross-exceptions to all
or part of the Administrative Law Judge's Deci-
sion.
On 13 October 1983 J. P. Stevens and Company,
Inc., herein called the Respondent; Amalgamated
Clothing and Textile Workers Union, AFL-CIO,
CLC, herein called the Union; and the General
Counsel of the National Labor Relations Board en-
tered into a Settlement Stipulation, subject to the
Board's approval, providing for the entry of a con-
sent order based upon the Order set forth in the
Administrative Law Judge's Decision. The parties
withdrew all exceptions and cross-exceptions to the
Administrative Law Judge's Decision filed with
the Board.
Having considered the matter, the Board ap-
proves the Settlement Stipulation and the excep-
tions and cross-exceptions filed by the parties are
withdrawn.
As no exceptions to the Administrative Law
Judge's Decision remain,
The National Labor Relations Board adopts the
recommended Order of the Administrative Law
Judge as modified in the Settlement Stipulation,
and orders that the Respondent, J. P. Stevens and
Co., Inc., Wallace, North Carolina, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Amal-
gamated Clothing and Textile Workers Union,
AFL-CIO, CLC, as the exclusive collective-bar-
gaining representatives of employees in the unit
found appropriate below for purposes of collective
bargaining. The bargaining unit is
All production and maintenance employees
employed at the Employer's Carter plant,
Holly plant, and warehouses at Wallace, North
Carolina, including plant clerical employees,
watchmen, computer programmer in the dye
house, electrical technician, and plant driver;
excluding office clerical employees, profession-
al employees, cloth store clerk, managerial em-
268 NLRB No. 25
ployees, guards and supervisors as defined in
the Act.
(b) Refusing to bargain in good faith by unilater-
ally, and without prior notification and bargaining
with the Union, changing terms and conditions of
employment of employees within said unit, includ-
ing, but not limited to, unilateral publication or im-
plementation of personnel policies and procedures,
or unilateral granting of general wage increases.
However, nothing herein shall be construed as re-
quiring Respondent to vary or abandon any eco-
nomic benefit or term and condition of employ-
ment which its employees at its Wallace facilities,
or any other facilities, would otherwise be entitled
to receive.
(c) Disciplining or discharging employees pursu-
ant to personnel policies and procedures unilateral-
ly publicized or implemented as aforesaid.
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their right to self-organization, to form, join, or
assist the aforesaid Union, or any other labor orga-
nization, to bargain collectively through represent-
atives of their own choosing, and to engage in
other concerted activities for the purpose of collec-
tive bargaining or mutual aid or protection, and to
refrain from any or all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act.
(a) Upon request, bargain with the aforesaid
Union, as the exclusive representative of all em-
ployees in the appropriate unit described above,
with respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment, and
with respect to the personnel policies and proce-
dures publicized at Wallace, North Carolina, I Oc-
tober 1978, 1 December 1978, and I February
1979, and the general wage increase at Wallace,
North Carolina, of 9 July 1979, and, if an under-
standing is reached, embody such understanding in
a signed agreement.
(b) Offer to Gloria Jacobs immediate and full re-
instatement to her former position, or, if that posi-
tion is not available, to a substantially equivalent
position, without prejudice to her seniority or
other rights and privileges, and make her whole for
any loss of earnings in the manner set forth in the
section entitled "The Remedy."
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing all personnel records and memoranda regarding
Gloria Jacobs and all records necessary to analyze
the amount of backpay due under the terms hereof.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Expunge from the personnel files of Gloria
Jacobs and all other employees of Respondent at
Wallace, North Carolina, all adverse entries made
pursuant to personnel policies and procedures not
negotiated with the Union.
(e) Post in conspicuous places, including all
places where notices to employees customarily are
posted at Respondent's Wallace, North Carolina
plants copies of the attached notice marked "Ap-
pendix."' Copies of the notice will be furnished by
the Regional Director for Region 11 and, after
being signed by Respondent's representative, shall
be posted immediately upon receipt thereof and
maintained by Respondent for 60 consecutive days
thereafter. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply here-
with.
I If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through a represent-
ative of your choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
Accordingly, we give you these assurances
The Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC, is the recognized collec-
tive-bargaining representative of our hourly em-
ployees at Wallace, North Carolina.
WE WILL NOT take action affecting wages,
hours, and working conditions of such employees,
including publicizing personnel policies and proce-
dures and general wage increases, without negotiat-
ing first with the Union. However, nothing herein
shall be construed as requiring us to vary or aban-
don any economic benefit or term and condition of
employment which our employees would other-
wise be entitled to receive.
WE WILL NOT discipline or discharge employees
pursuant to personnel policies and procedures
which have not been negotiated with the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights under the National Labor Rela-
tions Act.
WE WILL offer Gloria Jacobs her old job at Wal-
lace and pay her for loss of earnings with interest;
WE WILL remove from her personnel file and the
personnel files of all Wallace employees any ad-
verse notations made pursuant to personnel policies
and procedures which we should have negotiated
with the Union.
J. P. STEVENS & CO., INC.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge:
This Employer refuses to recognize or bargain with the
Union, although the Union made continuing demands for
such recognition, and persists in this refusal pending ap-
pellate review of a Board decision and order that its duty
to bargain arose at an earlier date (February 19, 1975). In
the meantime, between the time the duty to bargain
arose and the Board's decision and order, the Employer
publicized employee work rules, discharged an employee
for violating a work rule, and gave employees a general
pay increase. I find herein that the publicized rules and
the pay raise were additional aspects of a continuing un-
lawful refusal to bargain and that the discharge also was
an unfair labor practice.
These cases involve J. P. Stevens & Co., Inc. (the Re-
spondent, the Employer, or Company) and Amalgamated
Clothing and Textile Workers Union, AFL-CIO, CLC
(the Union). In the earlier case (J. P. Stevens & Co., 244
NLRB 407 (1979), enfd. 668 F.2d 767 (5th Cir. 1982), the
National Labor Relations Board (the Board) found that,
even though the Union had obtained valid authorization
cards from a majority of employees in an appropriate
bargaining unit at the Employer's facilities in Wallace,
North Carolina, it lost out in a subsequent Board-con-
ducted election because of the Employer's unfair labor
practices prohibited by the National Labor Relations
Act, as amended (the Act). The Board set aside the elec-
tion for those reasons and, pursuant to the standards set
forth in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
found the Union to be the majority representative of the
employees as of February 19, 1975, and ordered the
Company to bargain with the Union upon request effec-
tive that date. The Company sought review by the
United States Court of Appeals for the Fourth Circuit,
the Board filed a cross-application with the same court
for enforcement of its order, and the Union intervened
seeking additional remedies. The court granted enforce-
90
J. P. STEVENS & CO.
ment of the Board order and remanded the case to the
Board for implementation of the remedies it had ordered.
The present proceedings were initiated on December
29, 1978, when the Union filed additional unfair labor
practice charges against the Respondent in Case I -CA-
8067. These charges were amended June 7, 1979. On
July 10, 1979, the Union filed separate charges against
the Respondent in Case 1-CA-8465. Then on Septem-
ber 10, 1979, the charges in Case I l-CA-8067 were
again amended. On January 11, 1980, a Board complaint
issued in Case 11-CA-8465. This complaint was amend-
ed on January 15, 1980, and on January 31, 1980, the
two cases (Cases 11-CA-8067 and 11-CA-8465) were
consolidated and a consolidated complaint issued. On
May 2, 1980, an amended consolidated complaint issued
in the two cases. The Respondent duly answered each
complaint including the final one which it answered on
May 12, 1980.
The issues presented by the pleadings are whether the
Respondent committed unfair labor practices prohibited
by Section 8(a)(1) and (5) of the Act by various unilater-
al changes in terms and conditions of employment, in-
cluding a general wage increase, for employees at its
Wallace, North Carolina, facilities without bargaining
with the Union respecting them. An additional issue is
whether the discharge of employee Gloria Jacobs for
violating a work rule violated Section 8(a)(1) of the Act
because, as is alleged, institution of the rule was among
the unilateral changes which the Company should have,
but admittedly did not, bargain about with the Union.
These issues were heard before me at Clinton, North
Carolina, on May 19 and 20, 1980, and at Wilimington,
North Carolina, on July 8 and 9, 1980.
Based on the entire record, including my observation
of the witnesses, and consideration of the briefs of the
parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is undisputed that the Respondent, a Delaware cor-
poration, operates approximately 74 textile plants in vari-
ous States, including plants (the Carter plant, the Holly
plant, and warehouses) at Wallace, North Carolina, the
only facilities directly involved in these proceedings,
where it is engaged in the manufacture and sale of textile
products. During the calendar year preceding issuance of
the complaint, a period representative of its operations,
the Respondent received at its Wallace plants directly
from points outside North Carolina goods and raw mate-
rials valued over $50,000 and shipped from those plants
directly to points outside North Carolina products
valued over $50,000. The Respondent is an employer en-
gaged in commerce within the meaning of the Act. It is
also undisputed that the Union is a labor organization
within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Established Facts
The complaint alleges, inter alia, and the answer
denies, that the production and maintenance employees
at the Respondent's Wallace, North Carolina facilities
constitute an appropriate unit for purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.' Similarly, it is alleged and denied that a majority
of the employees in that unit designated the Union as
their collective-bargaining representative about February
19, 1975, and since then the Union has been the exclusive
collective-bargaining representative of employees in that
unit with respect to wages, hours, and working condi-
tions and other terms and conditions of employment by
virtue of Section 9(a) of the Act. It is similarly alleged
and denied that the Union has had a continuing request
to the Company to bargain collectively. None of these
issues are litigable in the present proceeding, the Board,
with Court approval, already having determined them in
the earlier proceeding referred to above. Thus, the
Board found the bargaining unit to be appropriate, found
the Union enjoyed majority representative status therein
as of February 19, 1975, and found the Union made con-
tinuing demands for recognition and bargaining. These
demands in effect have been reiterated through the
charges in the present matter as well as by the Union's
continuing participation in this litigation in support of its
right to bargain. In addition, with respect to the 1979
annual general wage increase, which is at issue here as
an alleged unilateral change, the Union on June 19, 1979,
made a specific written request to the Company to bar-
gain.
B. Issues for Litigation
The General Counsel and the Union contend that the
Respondent engaged in the additional unlawful refusals
to bargain by unilaterally instituting three groups of
changes in working conditions and by the general wage
increase, and further violated Section 8(a)(1) by dis-
charging Gloria Jacobs for violating a rule which was
one of the unilateral changes. The alleged changes in
working conditions occurred on three dates, October 1,
1978, December 1, 1978, and February 1, 1979. Jacobs
was discharged March 12, 1979. The general wage in-
crease was given July 9, 1979.
In its answer the Respondent asserts generally that the
complaint fails to state a claim on which relief can be
granted. With respect to all alleged unilateral changes
and the general wage increase, the Respondent admits it
has not bargained with the Union and asserts it had no
duty to do so and that it has a good-faith doubt that the
Union represents an uncoerced majority of employees in
the unit.2 The Respondent admittedly discharged Jacobs
for violating a work rule alleged in the complaint as a
unilateral change, but the Respondent contends this was
sufficient cause for discharge and that the work rule in-
' The complaint describes the bargaining unit as follows:
All production and maintenance employees employed at the Em-
ployer's Carter plant, Holly plant, and warehouses at Wallace. North
Carolina, including plant clerical employees, watchmen, computer
programmer in the dye house, electrical technician, and plant driver;
excluding office clerical employees, professional employees, cloth
store clerk, managerial employees, guards and supervisors as defined
in the Act ....
2 As to the good-faith doubt issue there is no evidence to support such
defense other than the results of the election which was set aside.
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volved did not constitute a change in working condi-
tions.
C. The Duty to Bargain
Since 1974 the Respondent has followed a practice of
announcing new benefits for employees simultaneously in
all nonunion plants. Between 1974 and 1979 this method
was used on 10 occasions. It was also used to publicize
the working conditions which the General Counsel al-
leges here to be unilateral changes. The Respondent
refers to these matters as personnel policies and proce-
dures. These were arranged into three groups to be pub-
licized on three different dates by means of employee
meetings at which tape slide presentations were shown
followed by question and answer periods. Summaries of
each group were then posted on bulletin boards subse-
quent to each meeting. In this manner personnel policies
and procedures in Group 1, which included those deal-
ing with probationary period, attendance policy, perfect
attendance awards, leaves of absence, employee sugges-
tions and complaints, and disciplinary procedure and
rules of conduct, were publicized on October 1, 1978.
Group 2, which included those dealing with bulletin
boards, seniority, jury duty, personnel files, employment
and induction, and Christmas gifts, were publicized on
December 1, 1978. And Group 3, which included those
dealing with call-in pay, reporting pay, funeral pay, exit
interviews, nondiscrimination, and educational courses,
were publicized on February 1, 1979. For purposes of
these publicizings the Respondent considered the Wal-
lace plants as nonunion. Without at this point particular-
izing these various rules, it may be noted that the Re-
spondent contends that none of them was entirely new,
although some were modifications of existing policies,
and it contends that some involved no change whatso-
ever.
In granting the general wage increase on July 9, 1979,
the Respondent again applied it in all nonunion plants,
considering the Wallace plants as nonunion, but exclud-
ing the Roanoke Rapids plants where it recognized the
Union. The Respondent contends that in giving the in-
crease it acted in accordance with its past practice of fol-
lowing the industry trend in which the large textile mills
of various companies generally announce wage increases
at about the same time.
The Respondent's defense with respect to the person-
nel policies and procedures as well as the general wage
increase is that they involved no real change from the
status quo ante and therefore required no bargaining
with the Union. The difficulty with this defense is that
with respect to the Wallace employees the Board has al-
ready ordered the Company to bargain with the Union
effective February 19, 1975, and its duty to bargain
about all mandatory subjects of bargaining carries for-
ward from that date. There is no contention here that
the subjects included in the personnel policies and proce-
dures and the matter of wages were not mandatory sub-
jects of bargaining, and I find that they were. Although
the Union has a continuing request to bargain, the Com-
pany has still not recognized it or bargained on any mat-
ters respecting Wallace employees. Each day that passes
is a further failure to fulfill this duty. The fact that the
Board's decision announcing this obligation was until re-
cently pending appeal did not relieve the Respondent
from that obligation. J. P. Stevens & Co., 186 NLRB 180
(1970), enfd. 78 LRRM 3116 (5th Cir. 1971); Quaker Tool
& Die, Inc., 169 NLRB 1148 (1968). It is true that the
Board decision issued on August 20, 1979, after the
events which are the basis for the complaint in this case.
But the Respondent had long been on notice of the possi-
bility of a Board finding which might impose a duty to
bargain as of an earlier date. The original charges of vio-
lations of Section 8(a)(1) and (5) of the Act were filed
April 14, 1975, the complaint alleging a failure by the
Respondent to meet its bargaining obligations issued Jan-
uary 20, 1977, and after a hearing Administrative Law
Judge Joel Harmatz issued his decision on the matter on
March 22, 1978. Thus, the Company was litigating its
duty to bargain, which ultimately was found by the
Board, at the very time it was publicizing the personnel
policies and procedures and granting the general wage
increases involved here. In J. P. Stevens & Co., supra, 186
NLRB at 183, the Board said:
Respondent has misconceived the nature of the
decision and order of the Board and mistaken an en-
forcement proceeding for the original decision.
Where a Respondent will not abide either the Trial
Examiner's decision or the Board decision, it be-
comes necessary for the Board to secure enforce-
ment of its decision and order through action of an
appropriate circuit court of appeals and such en-
forcement 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 refutaltdccurred. The viola-
tion 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 vio-
lated 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) limi-
tation might pass canceling that peril, but otherwise
Respondent must act in accordance with the duty
imposed by the Act.
Inasmuch as the Company's duty to bargain dates from
February 19, 1975, it should have bargained all along
about mandatory subjects of bargaining. This is not a
case where the parties are already negotiating and some
event or action occurs which arguably should have been
negotiated, or arguably formed part of the status quo
ante. Here the Respondent refuses to bargain about all
bargainable topics. It is immaterial whether change oc-
curred. The Respondent is bound to bargain about them
whether or not there is change. In this sense the present
proceeding is in some measure redundant to the previous
92
J. P. STEVENS & CO.
one. Nevertheless, the General Counsel and the Charg-
ing Party are entitled to whatever redress is available
where, as here, unfair labor practices are continuing. The
Respondent's defense erroneously assumes that absent a
change in the status quo with respect to the personnel
policies and procedures or as to wages, it does not vio-
late the Act. See Master Slack, 230 NLRB 1054 (1977),
enfd. 618 F.2d 6 (6th Cir. 1980).
D. The Specific Personnel Policies and Procedures
Involved
Although it may not be strictly necessary to analyze
the extent to which changes were made in working con-
ditions and wages, such analysis does assist in determin-
ing the extent to which employee collective rights have
been impeded and in determining an appropriate remedy.
The General Counsel and the Union urge that all of the
alleged unilateral changes set forth in the complaint in-
volve some measure of change which has significance
under the Act. The Respondent's overall defense is that
virtually no significant changes occurred. However, in
the taped presentation which prefaced publication of the
personnel policies and procedures, the Respondent de-
scribed them as being "updated," thus suggesting some
change, and then described them as for the most part not
new to the employees and only reworded for clarity.
The evidence shows that some matters were substantially
changed while others were not.
I. Changed policies and procedures
a. Perfect attendance awards
Prior to October 1, 1978, the Respondent maintained a
policy of encouraging perfect attendance of employees at
the Wallace plants with a program called "Wally Wal-
lace" by which weekly, monthly, quarterly, and yearly
awards were given to employees for perfect attendance.
Although not explicated in the record, it is implicit in
the position of the parties that these awards were a form
of recognition which did not involve material benefit for
the employee other than a soft drink or an item of food.
As of October 1, 1978, the Respondent modified the ex-
isting perfect attendance policy by granting employees
with 1-year perfect attendance a gift or a day off, and for
additional years of perfect attendance granting additional
gifts and days off. The explanatory presentation which
preceded implementation of the rules posted October 1,
1978, explained this new policy to the employees in the
following language:
After I full year of Continuous Perfect Attend-
ance, you can select an appropriate valuable gift or
receive I day off with pay. For 2 thru 4 years of
Perfect Attendance, a more valuable gift or 2 days
off may be selected each year. For 5 thru 9 years an
even more valuable gift or 3 days off will be offered
each year. And for 10 years or more Perfect At-
tendance, you can choose an expensive gift or 5
days off.
I find the new policy on perfect attendance was a signifi-
cant change from the old one.
b. Discharge for failure to report
Prior to October 1, 1978, the company policy as to at-
tendance provided in part as follows, "Employees who
are absent without sending word for 7 consecutive calen-
dar days will be automatically dropped from the payroll
and will be considered as having resigned." The parties
stipulate that under the new rule, "Employees who are
absent for any reason without sending word for 3 con-
secutive days . . . will be discharged." Assuming that
this stipulation means 3 consecutive working days and
considering that the plant operates on a schedule of 5 or
6 workdays in a week, it is obvious that the Respondent
altered the rule applicable to employees who are absent
and do not report in and that this was a significant
change in the employees' terms and conditions of em-
ployment.
Finally, the new attendance policy, in contrast to the
old, provides that employees who are "excessively
absent, even for excused reasons" may suffer disciplinary
action including discharge. This is plainly a stricter
policy than the earlier one.
c. Excused and unexcused absences
The Respondent's previous absentee policy was set
forth in its supervisors' manual in general terms without
specifying which absences were excused or which unex-
cused and without specifying the penalty for either type.
Broad discretion was allowed supervisors in administer-
ing the policy and no firm limit was set on the number of
absences an employee could accumulate. In practice the
most important requirement was that the employee give
advance notice to the supervisor of an expected absence
together with the reason for the absence. Almost any
excuse was acceptable. The new rule publicized October
1, 1978, was more explicit in that it defined excused and
unexcused absences and indicated penalties for unexcused
absences accrued within a 6-month period. It also re-
duced the number of consecutive days of allowable ab-
sences from seven to three. Excessive absences, whether
excused or not, subjected the employee to discipline, in-
cluding discharge. Supervisors no longer could exercise
broad discretion in excusing absences. The new rule per-
mitted excused absences in only four categories, personal
illness, death in the family, serious illness in the immedi-
ate family, and transportation problems. All other ab-
sences were unexcused unless they were on designated
holidays, during scheduled vacations, for jury duty, for
approved leaves of absence, or for funeral leave. In sum,
the new policy was more rigid and less flexible than the
one it replaced.
d. Progressive disciplinary procedure
Although in the past the Respondent used a discipli-
nary procedure, the policies and procedures publicized
October 1, 1978, included a disciplinary procedure which
differed from the old in a number of ways. Under the
new procedures supervisors exercised considerably less
discretion than under the old system. Although both
listed reasons for which employees could be disciplined,
the old identified 14 reasons for which an employee
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could be disciplined and 10 for which the employee
would be discharged. Under the new procedures an em-
ployee could incur discipline for 24 reasons and dis-
charge for 15 reasons. One of these new reasons which
could result in discipline or discharge was the use of pro-
fane, abusive, indecent, or threatening language. The
new procedure provided supervisors with guidelines for
the imposition of discipline or discharge. Thus, for cer-
tain specific types of infractions such as drinking on the
job, fighting, or stealing, discharge following investiga-
tion was mandatory. For certain lesser infractions a writ-
ten warning was imposed. And for even more minor in-
fractions a verbal warning was imposed and if the infrac-
tion was repeated a written warning, and if repeated a
third time within 6 months discharge resulted. The sever-
ity of the penalty and in some cases the progression of
heavier penalties for repeated infractions depended on
the type of the infraction. For purposes of this progres-
sive discipline, warnings became unusable after 6 months.
Prior to October 1, 1978, the supervisors' manual listed
certain specific grounds for immediate discharge. The
newly publicized procedures also listed the identical or
similarly worded grounds and in addition listed the fol-
lowing grounds which had not previously been listed:
Failure to report to work for 3 consecutive
working days without notifying the Company of the
circumstances.
Failure to report to work on the first working
day following the expiration date of a leave of ab-
sence.
Immoral or indecent conduct on company prop-
erty.
Unauthorized leaving of company premises
during working time.
Gross negligence resulting in serious injury to an-
other employee or damage to company property.
Working for another employer while on a leave
of absence will normally result in immediate dis-
charge. There may, however, be circumstances in
which exceptions are justified, such as an employee
doing limited work temporarily in a family owned
business, while recuperating from a personal illness.
Therefore, an employee who works for another em-
ployer while on a leave of absence is subject to im-
mediate discharge, depending upon the circum-
stances.
Similarly, although the newly publicized list of infrac-
tions which could lead to discipline less than immediate
discharge in some respects tracks the old list in the su-
pervisors' manual, certain of this type of infraction are
newly listed, as follows:
Unauthorized operation of machines, tools or
equipment.
Unauthorized posting of material or defacing ma-
terials on company bulletin boards.
Excessive time on breaks or taking unauthorized
breaks.
Trading shifts without permission.
Violation of no-solicitation-distribution rule.
Poor housekeeping, creating or contributing to
unsanitary conditions.
Excessive waste of materials or supplies.
Unauthorized starting or stopping work early.
Failure to wear required or protection equip-
ment.
Insubordination to company supervisors.
Sleeping on the job.
Use of profane, abusive, indecent or threatening
language.
In certain other ways also the new procedures publi-
cized disciplinary policies not previously announced.
These include a prohibition of an employee having an-
other employee present or participating in a warning
meeting on the ground that such an event is confidential.
This particular item, however, is not specifically covered
in the complaint.
Although even prior to October 1, 1978, employees
were required to report to their supervisors all accidents
however slight, there was no announced policy imposing
discipline for excessive accidents. By contrast, under the
newly publicized procedures, employees with excessive
accident records could be subjected to discipline and
even discharge.
e. Suggestions and complaints
The complaint alleges that on October 1, 1978, the
Company implemented a formal grievance procedure.
The policies and procedures publicized at that time in-
cluded a category designated employee suggestions and
complaints which, according to Personnel Director
Cottle, was merely a statement of what already existed.
But, as shown by the evidence, what was new about the
publicized procedures was the formalization of set chan-
nels for complaints as well as suggestions which now
were coupled in the same system. Employee testimony
indicates lack of uniformity if not confusion respecting
the earlier channels available for employee complaints.
Thus, B. J. Jenkins and Royce Williams testified credibly
that previously complaints could not be pressed beyond
the complaining employee's immediate supervisor. Gloria
Jacobs, on the other hand, recalled that at one time de-
partment heads held gripe sessions with groups of em-
ployees and, although that practice had fallen into disuse,
she felt free to discuss job problems with anyone in man-
agement up to and including the plant manager. The new
procedure set the channels for pursuing complaints and
suggestions with the caveat, however, that if an employ-
ee felt a matter could not be discussed in the normal pro-
gression of management, the employee was free to take it
up with a higher level of management. Thus, while the
newly publicized procedure does not appear to confer
greater rights or impose greater obligations than previ-
ously, an institutionalization resulted which amounted to
a change.
f. Employee access to personnel file
Previously company practice was to allow employees
access to their own personnel files on a limited basis, al-
though there apparently was no general announcement
94
J. P. STEVENS & CO.
or general knowledge among employees that such a right
existed. Under that practice an employee could request
from the personnel office and would be allowed to see
such specific items in the personnel file as the employee
requested. The policies and procedures publicized on De-
cember 1, 1978, conferred on employees the right to re-
quest and see their entire personnel file. This was a
change which enlarged employee rights.
g. Seniority
In the policies and procedures publicized on December
1, 1978, the Company altered its seniority system by
adding restrictions to the established procedures for fill-
ing job vacancies. Under this system vacancies were
filled by a bidding procedure under which the job went
to the bidding employee with the most seniority with the
single limitation that an employee could not bid for a va-
cancy in the employee's current classification on the
same shift. To this limitation the procedures publicized
on December 1, 1978, added the limitation that a bidding
employee had to have served at least 90 days in the bid-
ding employee's current job classification and an employ-
ee who had transferred from one classification to an
equal or lower job classification could not bid on a va-
cancy in the employee's old classification until a year
after the transfer from that job. In these specific ways
the existing seniority system was changed.
h. Funeral pay
The policies and procedures publicized on February 1,
1979, included a modification of the existing funeral pay
policy. The existing policy limited employee's right to
paid leave for attending funerals to funerals of certain
listed members of the employee's family. The new policy
enlarged this list of relatives to include the funerals of
grandparents and grandchildren.
i. Reporting pay
The new procedures publicized February 1, 1979, also
increased the employee benefit known as reporting pay
by guaranteeing employees at least 4 hours' pay on occa-
sions that they reported for work and were assigned to a
job other than their own. This was a change in that the
guarantee of such pay was enlarged from 2 hours to 4
hours' pay.
2. Unchanged policies and procedures
Although the complaint alleges that all the policies
and procedures mentioned therein were changes from
the status quo ante, the General Counsel's brief concedes
that the wording of certain ones was not substantially
changed. These include the rule against working for an-
other employer while on leave of absence, the employee
suggestions and complaints procedures, the verbal warn-
ing policy, the ban against obtaining and conveying con-
fidential information (all publicized October 1, 1978), the
policy disqualifying employees laid off before September
25 from receiving company Christmas gifts that year
(publicized December 1, 1978), and the rules on call-in
pay and on reimbursement for educational courses (both
publicized on February I, 1979). Prior to October 1,
1978, these rules appeared in the supervisors' handbook.
Even though they remained substantially unchanged, the
General Counsel contends that this publicizing was in
legal effect a change and in derogation of the Respond-
ent's obligation to bargain with the Union. Counsel relies
on Hedstrom Co., 235 NLRB 1193, 1208 (1978); Wilkin-
son Mfg. Co., 187 NLRB 791, 796 (1971); and Southland
Paint Co., 157 NLRB 795, 796 (1966), modified 394 F.2d
717 (5th Cir. 1968).3
With regard to the rule against working on another
job while on leave, the General Counsel and the Union
contend that prior to October 1, 1978, the rule was gen-
erally unknown among the employees. In support of this
contention they rely on the testimony of one time em-
ployee Gloria Jacobs that in 1976 Plant Manager James
Wellons gave her a leave of absence so she could go to
the hospital for an operation. Counsel for the General
Counsel then asked her this question, "Did he [Wellons]
inform you of any restrictions concerning the leave of
absence?" She replied as follows, "Well, he just told me,
you know, however much time that I be sick, as long as
I was under doctor's care, to let him know that I had
come back." Counsel then asked her, "Did you ever
learn that there were restrictions on employees when
there were restrictions on taking leaves of absence?" to
which she replied, "No, I didn't, he didn't tell me about
it, you know; he just told me." It is not at all certain that
Jacobs' testimony relates to the prohibition on working
another job during a leave of absence. On the other
hand, Personnel Manager Jack Cottle, who was a rank-
and-file employee at Wallace before becoming personnel
manager, testified credibly that prior to October 1, 1978,
a general announcement of the rule had not been made,
so far as he knew, and that he did not know whether or
not it had been posted. But he said the employees knew
of the rule, that he knew of it when he was an hourly
employee, and that as personnel director he discussed it
probably a dozen times when employees asked for leaves
of absences. Considering the totality of the evidence on
this rule I find that the General Counsel has failed to
carry the burden of his contention that prior to October
1, 1978, the rule was not generally known among the
employees. The testimony of Jacobs does not so establish
and, even though there is an annual turnover rate of 25
to 30 percent in the approximately 900 employees at
Wallace, that evidence alone does not warrant the infer-
ence that employees generally were ignorant of the rule.
In so finding, I do not hold that no violation of Section
8(a)(5) was involved because, as already noted, the Re-
spondent was already obligated to bargain with the
Union. Master Slack, supra.
The authorities cited by the General Counsel are per-
suasive for finding that mere publication without change
of preexisting rules circumvents and undermines the
Union. I so find even though certain special circum-
stances relied on by the Board in those cases do not
appear here. In the Hedstrom case there were "obvious
and substantial differences" between the old and new
rules and the timing of the promulgation of the new rules
3 Enforcement granted as to the 8(aXI) and (3) violations found, but
denied on other grounds as to the 8(aX5) violation found.
95
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated they were designed to circumvent and under-
mine the union as bargaining agent. A similarly persua-
sive element of timing is not present in the fact situation
of the present case. In Wilkinson there was a real differ-
ence between the old and the new rule. And in South-
land the Board keyed its finding to the circumstances
therein, specifically the timing of the publication of the
rules soon after the union demanded recognition. In
Southland the Board stated (157 NLRB at 796):
With respect to the alleged failure to bargain con-
cerning plant work rules, the Respondent admitted
that, on January 27, 1965, it published among its
employees such rules without giving prior notice to,
or bargaining with, the Union. Respondent contend-
ed, however, inter alia, that it merely reduced to
writing and, to avoid misunderstanding, published
existing rules. Although the record does not estab-
lish the prior existence of each of the rules, we find
it unnecessary, in the circumstances herein, to seg-
regate the old from the new or revised rules and to
determine whether the latter, or any of them, con-
stituted mandatory subjects for collective bargain-
ing. Suffice it to say that the timing of Respondent's
writing and publication of the rules, which admit-
tedly had not theretofore been reduced to writing,
soon after the Union demanded recognition and bar-
gaining, coincided with, and became a part of, Re-
spondent's overall and continuing conduct aimed at
undermining the Union's strength and of retaliating
against its employees for selecting the Union. In
these circumstances, and in view of its admitted re-
fusal to recognize and bargain with the Union since
March 24, 1964, we find that Respondent's unilater-
al promulgation and publication of plant work rules
was in derogation of its obligation to bargain and,
therefore, violated Section 8(a)(5) and (1) of the
Act.
Although the court of appeals denied enforcement of the
Board's 8(a)(5) finding for other reasons, the Board's lan-
guage is persuasive for the instant case. As in Southland,
there is no question here but that mere publication of the
policies and procedures was part of "Respondent's over-
all and continuing conduct" of not bargaining with the
Union. In this sense, and in spite of some factual differ-
ences between the present matter and Southland, publi-
cation here was a specific manifestation of that refusal to
bargain and a further derogation of the Union's repre-
sentative status.
E. The Discharge of Gloria Jacobs
As noted above, one of the work rules included in the
policies and procedures publicized October 1, 1978, pro-
vided for the discharge of employees accumulating four
or more unexcused absences within a 6-month period. It
is undisputed that on March 12, 1979, employee Gloria
Jacobs was discharged for violating that rule and that
she has not since been reinstated. As found elsewhere
herein, the publicizing and subsequent implementation of
the rule violated Section 8(a)(1) and (5) of the Act. That
being so, the discharge of Jacobs and the subsequent fail-
ure to reinstate her also violate Section 8(a)(1) and (5) of
the Act because they constitute a further extension of the
unlawful refusal to bargain and thereby threaten, coerce,
and restrain employees in the exercise of their rights
under Section 7 of the Act. Wellman Industries, 248
NLRB 325, 340 (1980); Boland Marine & Mfg. Co., 225
NLRB 824 (1976); Master Slack, supra.
F. Company Defense of the Personnel Policies and
Procedures
The Respondent defends its publication of the person-
nel policies and procedures on grounds of fairness and
legal necessity. It points out that in an industrial concern
such as Stevens, employing in excess of 40,000 employ-
ees, a publicized system of rules and regulations affecting
the employees is important to assure evenhanded treat-
ment of employees throughout the enterprise system.
Under the preexisting system in which no generally pub-
licized personnel policies and procedures existed, super-
visors enjoyed broad discretion in dealing with employ-
ees. Supervisory exercise of this authority precipitated
the filing of numerous unfair labor practice charges. The
Respondent's corporate director of employee relations,
H. E. Greene, testified, ". . . for a long time prior to
October 1, 1978 this Company had been inundated with
unfair labor practice charges having their genesis in su-
pervisory discretion." Some of the Board proceedings
which followed these charges led to court decisions criti-
cal of the Company's lack of written rules governing em-
ployee conduct. In NLRB v. J. P Stevens & Co., 563
F.2d 8, 15-17, 19, 21, and 23-24 (2d Cir. 1977), cert.
denied 434 U.S. 1064 (1978), the court, in holding the
Respondent in civil contempt, was pointedly critical of
the Respondent's lack of such rules, including the situa-
tion at the Wallace plants presently involved, and direct-
ed the Company to formulate appropriate written rules
for its employees. According to the Respondent's brief in
the present matter, the court's order called for a $100,000
fine to the Respondent and up to $5,000 fine to an indi-
vidual supervisor, and this precipitated a corporate deci-
sion by the Respondent to adopt new policies and proce-
dures for its entire system which would eliminate much
of the broad discretion of supervisors. The personnel
policies and procedures at issue here resulted.
Although the record does not indicate precisely when
this corporate decision was made, it apparently was be-
tween February 21, 1978, when the Supreme Court
denied certiorari in the Second Circuit case and October
1, 1978, when the publicizing of the personnel policies
and procedures began. In its brief the Respondent notes
that at the time the corporate decision was made to in-
stall these new policies, the Board had not yet issued its
decision in the underlying case which is the predicate to
the present proceedings (244 NLRB 407) and which
issued August 20, 1979. Of course the Respondent was
on notice of the possible result in that case because the
Administrative Law Judge's decision had issued March
22, 1978, as a result of a complaint issued January 20,
1977, initiated by unfair labor practice charges filed
April 14, 1975. According to the Respondent's counsel,
the Respondent was faced with a dilemma whether to
96
J. P. STEVENS & CO.
treat its Wallace facilities as a union or a nonunion plant.
According to the Respondent's brief, "Respondent con-
cluded that it had no alternative but to implement the
policies at Wallace the same as it did at its other plants."
Counsel claims this was a good-faith response to the di-
rectives of the Second Circuit and was in line with the
Company's longstanding past practice of making benefit
changes at all plants at the same time.
Counsel for the Union points out in his brief that this
is a disingenuous position because the policies and proce-
dures were not implemented at the Roanoke Rapids
plant where the Respondent recognizes the Union. In
fact the Respondent by ignoring the Union at Wallace
and implementing the policies and procedures there,
treated those plants as nonunion plants which was a con-
tinuation of its historical opposition to the Union.
It is true the Respondent was faced with a dilemma,
but the Respondent's brief misstates it. The real dilemma
was not whether it should or should not implement per-
sonnel policies and procedures in any particular plant.
The dilemma was whether it should or should not recog-
nize the Union. Nothing in the Second Circuit's decision
referred to above required the Respondent to continue
its refusal to recognize the Union at Wallace. The grava-
men of the present complaint is not that the Respondent
publicized its personnel policies and procedures but
rather that it did so unilaterally thereby undercutting fur-
ther the Union's position as bargaining representative.
The Respondent took the risk that ultimately it would
not prevail in the prior proceeding and that the Union
would ultimately be held entitled to recognition as repre-
sentative of the employees. Now the Respondent has lost
this gamble and, as found by the Board, it should have
been recognizing the Union at Wallace since February
19, 1975. With respect to the personnel policies and pro-
cedures publicized in October and December 1978 and in
February 1979, it should also have recognized the Union,
notified it respecting the policies and procedures, and
bargained with it on request. J. P. Stevens & Co., 186
NLRB 180, supra; Quaker Tool & Die, Inc.. supra.
G. The Wage Increase
As already noted, the Respondent's duty to recognize
and bargain with the Union antedates the events of this
case, including the wage increase of July 9, 1979. Section
8(d) of the Act contemplates that bargaining shall in-
clude "wages." The Respondent's contention that in
effect it fulfilled its bargaining obligations respecting the
wage increase is dealt with hereinafter. Apart from that
contention, it is undisputed that the Respondent did not
bargain with the Union about the wage increase. The
main issue here is whether the July 9, 1979 increase was
an additional manifestation of the Respondent's ongoing
refusal to bargain. I find that it was and that it tended to
further undercut the Union's representative status.
In this regard the Respondent argues firstly that the
wage increase was not a change in the status quo ante
which could trigger a duty to bargain. It offered evi-
dence that in granting the increase it adhered to its past
practice of following the textile industry trend regarding
annual wage increases and its own practice of announc-
ing such increases system wide. The difficulty with this
defense is that the conclusion to be drawn from these
facts already has been decided adversely to the Respond-
ent with respect to similar increases in 1975 and 1976 in
a case involving its Roanoke Rapids plant. J. P. Stevens
& Co., 239 NLRB 738, 754-757, 770 (1978), enfd. in per-
tinent part 623 F.2d 322 (4th Cir. 1980). There, on facts
similar to those in the present case, the Board found the
granting of general wage increases violative of Section
8(a)(1) and (5) of the Act. Relying on that precedent I
find here that the general wage increase of July 9, 1979,
at Wallace violated Section 8(a)(1) and (5) of the Act.
Additional circumstances support this finding. As shown
by the testimony of the Respondent's witness Greene, its
corporate policy does not require that it follow the in-
dustry lead in wage increases, it being free to follow the
industry or not as it sees fit. Nor, when other employers
in the industry grant a raise, is the Respondent bound by
the amounts of its competitors' increases. According to
Greene, although it is of importance to follow the indus-
try trend in wages, the Respondent's decisions in this
regard are also affected by what "the economy of our
particular company will permit." It is also clear from the
record that there is no certainty that an increase by the
Respondent in any particular year will match what it
gave in prior years. And, as shown by the fact that in
the past the Respondent has granted increases at differ-
ent times of the year, there is no certainty that increases
will be given at the same time each year. Thus, in spite
of the industry wage pattern, the Respondent's increases
are not "purely automatic and pursuant to definite guide-
lines" as indicated by the court's rationale in NLRB v.
Allis-Chalmers Corp., 601 F.2d 870, 875 (5th Cir. 1979).
The present situation is similar to that in Mosher Steel
Co., 220 NLRB 336 (1975), enfd. 532 F.2d 1374 (5th Cir.
1976), where the Board found that a pay increase violat-
ed Section 8(a)(l) and (5) of the Act. In Mosher, the
Board (at 338) found that the "yearly general increase
was neither 'guaranteed' nor fixed either in terms of
amount or in timing but rather depended on a vote of
the board of directors and of the Company's overall eco-
nomic posture. Consistent with a finding that the grant
of a general wage increase involved the exercise of a
large measure of business judgment and discretion is the
record evidence that over the past several years general
increases have been granted in months other than June
or July, having been granted twice in a single year, and
having varied in amount."
In its brief the Respondent contends that it is not obli-
gated to bargain respecting the wage increase at Wallace
because through laches and waiver the Union has lost
the right to bargain on that subject. The Respondent
bases its argument on the undisputed facts that in its on
going negotiations with the Union for employees at its
Roanoke Rapids plants it kept the Union advised of what
it was doing in its nonunion plants (which included the
Wallace facilities) respecting a general wage increase
pursuant to the industry trend in the spring and summer
of 1979. In keeping the Union informed the Respondent
was following the order of the Board on December 12,
1978 (239 NLRB 738, 739), respecting the bargaining at
Roanoke Rapids to
97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Give prompt notice to the Union of Respond-
ent's decision to announce or institute system wide
changes in employee benefits; produce upon request
all information relevant thereto for purposes of col-
lective bargaining, prior to announcement or imple-
mentation of such changes in benefits on a company
wide basis; and afford the Union an opportunity ef-
fectively to negotiate regarding similar or identical
contemplated changes in such employee benefits for
the bargaining unit at the Roanoke Rapids plant.
Evidence in the present record indicates the Company
provided the Union with such information at negotiating
sessions in Roanoke Rapids on March 16, April 18, and
May 8, 1979, in letters to the Union on May 30 and 31,
1979, and at negotiating sessions on June 5, 6, and 7,
1979. It is apparent from these communications, as it is
from the Board's order quoted in part above, that the
furnishing of this information was for use in the negotia-
tions at Roanoke Rapids with respect to the terms and
conditions of those employees only. There is no basis for
inferring, nor does the Respondent contend, that at any
time it recognized and bargained with the Union respect-
ing employees at the Wallace facilities. On the contrary,
the Respondent has consistently refused to bargain with
the Union respecting those employees even though the
Union has had an outstanding and continuing demand to
bargain on their behalf. There was nothing in the cir-
cumstances under which the information was supplied to
the Roanoke Rapids negotiations to suggest that the
Company was retreating from this position or in any
way recognizing the Union beyond Roanoke Rapids.
The standoff between the Union and the Company in
which the one maintained a continuing demand for bar-
gaining and the other maintained its adamant refusal to
bargain remained unimpaired. Nothing had occurred
which required the Union to reiterate its demand.
On June 15, the Respondent announced the general
systemwide increase in wages would take place on July
9. On July 14 the Union requested the Respondent to
bargain about the increase at Wallace in a telegram read-
ing as follows:
Re: Wallace Plant, Wallace, N.C.
As the majority representative of your employees in
the above named plant we request that you meet
and bargain with us regarding the 1979 Annual
General Wage Increase.
The Respondent contends this demand was untimely be-
cause it came after the Company's decision to grant the
general wage increase and because the Union had been
kept informed by the Company as the decision devel-
oped. According to the Respondent, the Union had a
duty to "timely request bargaining on the subject" and,
according to the Respondent, did not do so. The Re-
spondent relies on the Board's decision in Citizens Na-
tional Bank of Willmar, 245 NLRB 389, 389-390 (1979),
where the Board said,
It is well established that it is incumbent upon a
union which has notice of an employer's proposed
change in terms and conditions of employment to
timely request bargaining in order to preserve its
right to bargain on that subject. The union cannot
be content with merely protesting the action or
filing an unfair labor practice over the matter.
.... We therefore conclude that, having failed to
exercise its right to demand bargaining over the
issue, the Union may not now effectively claim that
Respondent unlawfully refused to bargain...
[Footnote omitted.]
Willmar, however, is not persuasive precedent for the
proposition for which the Respondent cites the case be-
cause there the employer and the union were engaged in
bargaining at the time the employer took unilateral
action about which the union was fully informed and the
union made no real effort to bring the matter into the
bargaining. The Board found that the uaion there "did
not have any discussion with Respondent concerning
such change, did not request that Respondent rescind the
change, and did not request that Respondent bargain
with the Charging Party (the Union) concerning this
matter." The circumstances in the present case are alto-
gether different because the Respondent consistently re-
jected any bargaining relationship with the Union re-
specting Wallace employees and nothing in its conduct
could reasonably be construed as alerting the Union to a
change whereby the Respondent would participate in
such bargaining. I find that the Union's June 19 request
to bargain about the wage increase at Wallace was a
timely request, albeit unnecessary in view of its existing
continuing request to bargain. By making such additional
request, the Union did not waive or wipe out the validity
of its prior request.
The Respondent also argues in effect that the Union
waived its right to bargain over the wage increase at
Wallace because knowing of the intended increase in the
nonunion plants of the Respondent, "it used that knowl-
edge for propaganda purposes," and in a union publica-
tion claimed credit for the increase in the nonunion
plants. This contention is without merit because the evi-
dence does not establish a waiver. The July 1979 issue of
The Stevens Worker, a union publication, contained a
news story to the effect that in the bargaining at Roa-
noke Rapids the Company's offer of a 7-1/2-percent
wage increase was not accepted by the union negotiating
committee, with the result that the Company increased
its offer to 8-1/2 percent. The story went on to say that,
"The Company announced that Stevens workers in other
mills would also benefit from the increased offer made to
the ACTWU committee in Roanoke Rapids." The Re-
spondent contends that by this story the Union claimed
credit for the increase in the nonunion plants and there-
fore the Union is not entitled to bargain about that
matter. But for the Union to claim that its bargaining in
Roanoke Rapids had some impact in other plants is nei-
ther a waiver of its right to bargain at other locations
and in other bargaining units nor an assertion that it in
fact has bargained for those other units on the matter.
The evidence here shows beyond doubt that there in fact
was no bargaining respecting the Wallace plants, neither
the Company nor the Union understood it was bargain-
ing with respect to Wallace, and neither the Company
9B
J. P. STEVENS & CO.
nor the Union understood that the other was waiving its
historical position respecting representation and bargain-
ing at Wallace.
Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth
in section II, above, occurring in connection with the op-
erations described in section I, above, have a close and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
i. The Respondent is an employer within the meaning
of Section 2(2) and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed at Respondent's Carter Plant, Holly Plant
and warehouses at Wallace, North Carolina, includ-
ing plant clerical employees, watchmen, computer
programmer in the dye house, electrical technician,
and plant driver; excluding office clerical employ-
ees, professional employees, cloth store clerk, mana-
gerial employees, guards and supervisors as defined
in the Act.
4. On or about February 19, 1975, a majority of the
employees of the Respondent in the unit described above
designated and selected the Union as their representative
for the purposes of collective bargaining with the Re-
spondent.
5. At all times since February 19, 1975, and continuing
to date, the Union has been the representative for the
purposes of collective bargaining of the employees in the
unit described above, and by virtue of Section 9(a) of the
Act, has been, and is now, the exclusive representative of
the employees in said unit for the purposes of collective
bargaining with respect to wages, hours and working
conditions, and other terms and conditions of employ-
ment.
6. Commencing on or about February 19, 1975, and
continuing to date, the Union has requested, and is re-
questing, the Respondent to bargain collectively with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment as the exclu-
sive bargaining representative of all employees of the Re-
spondent in the unit described above.
7. The Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally implementing personnel policies
and procedures for employees in the above unit on Octo-
ber 1 and December 1, 1978, and February 1, 1979, with-
out prior notification to or consultation with the Union.
8. The Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally granting a general wage increase
to employees in the above unit on July 9, 1979, without
consultation with the Union about the increase and while
continuing its general refusal to recognize or bargain
with the Union as the representative of employees in that
unit.
9. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of
the Act, I recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act. Inasmuch as the unfair
labor practices found herein are a continuation of the Re-
spondent's established policy respecting employee rights
protected by the Act, a broad cease-and-desist order pre-
cluding the Respondent from "in any other manner"
interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization is warrant-
ed.
As to affirmative action, the Respondent should, on re-
quest, bargain with the Union about terms and conditions
of employment at Wallace and specifically about the per-
sonnel policies and procedures and the wage increase in-
volved in this case. The General Counsel urges addition-
ally that the personnel policies and procedures be re-
scinded, but makes no similar request respecting the
wage increase. The Union asks that those personnel poli-
cies and procedures which benefit employees be left in
place and only those which do not benefit employees be
rescinded, and further asks that the wage increase be left
untouched. The Board traditionally orders that unlawful
unilateral actions by an employer be rescinded, except
for those which benefit employees, and further orders
bargaining with the Union. In the present matter, bar-
gaining appears to be the best available vehicle for
achieving the remedial goal. The main thrust of the com-
plaint is aimed at the unilateral manner in which the Re-
spondent acted rather than at the substance of the actions
taken. None of the parties wants the wage increase upset
because all agree it is an employee benefit. Many of the
personnel policies and procedures also are arguably bene-
ficial in some way to employees. This record, however,
does not adequately demonstrate the beneficial or non-
beneficial attributes of these numerous rules and to leave
such determination to the compliance stage of this pro-
ceeding might delay resolution of a subject uniquely suit-
able for bargaining. In the particular circumstances of
this case, including the impact of the Second Circuit's
contempt decision on the publication of personnel poli-
cies and procedures, it seems preferable to use that vehi-
cle. For these reasons I do not recommend that the Re-
spondent be ordered to rescind the personnel policies
and procedures or the wage increase. Even though, as
the Respondent argues, it may have in part implemented
and publicized them in response to the directions of the
Second Circuit, it is clear the court did not intend that
the Respondent do so in violation of its bargaining obli-
gations. Therefore, bargaining respecting those policies
99
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and procedures should not be barred by the court's man-
date.
As to Gloria Jacobs, I recommend that she be offered
immediate and full reinstatement to her former position
or, if that position no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
other benefits and privileges, and that she be made whole
for any loss of earnings incurred as a result of being dis-
charged on March 12, 1979, with backpay to be comput-
ed as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), and with interest as set forth in Isis Plumbing Co.,
138 NLRB 716 (1962), and Florida Steel Corp., 231
NLRB 651 (1977). I further recommend that the Re-
spondent be required to preserve and make available to
Board agents, on request, all pertinent records and data
necessary in analyzing and determining whatever back-
pay may be due. I also recommend that the Respondent
be ordered to expunge from the personnel files of all
Wallace employees, including Jacobs, all adverse entries
made pursuant to the personnel policies and procedures
involved herein. The Union asks that all disciplinary ac-
tions taken in enforcement of the personnel policies and
procedures involved be ordered revoked and the em-
ployees involved be made whole. This relief is not rec-
ommended. It seems substantially beyond the scope of
the complaint. Other than Jacobs, no employee so ad-
versely affected was named in the complaint. The Gener-
al Counsel does not seek such relief. Moreover, such
questions are susceptible to resolution in bargaining.
Further, since this case is in significant measure a con-
tinuation of the prior proceeding, J. P. Stevens & Co., 244
NLRB 407 (1979), enfd. 668 F.2d 767 (5th Cir. 1982), the
Respondent should, for the reasons set forth by the
Board and the court in that matter and also because the
Respondent's policy toward the Union is systemwide,
take in the present matter the additional affirmative ac-
tions found appropriate there. These include reimburse-
ment to the Union for reasonable and necessary organi-
zational expenses, 4 reimbursement to the Board and the
Union for reasonable costs and expenses in the present
litigation, the posting of an appropriate notice with a
copy mailed to each employee in all plants and given to
each supervisor at Wallace, the reading of the notice at
all plants, union access to bulletin boards at all plants,
equal time for union representatives to address employ-
ees, access to plants where Board elections are scheduled
for union representatives to address employees, periodi-
cally furnishing the Union with current lists of employee
names, addresses and classifications at each plant, union
access to plant nonwork areas, and notice to the Board's
Regional Director respecting compliance.
The Union seeks other additional remedies, including
the ordered extension of bargaining at Wallace for 2
years and the establishment of interim grievance and ar-
bitration procedures there during bargaining. The Union
argues that its past bargaining experience with the Re-
spondent at Roanoke Rapids and Statesboro, where the
Respondent engaged in unlawful bargaining, demon-
strates that bargaining at Wallace will consume more
than a year and additional time should be ordered. I con-
clude, however, that, as a matter of policy, it would be
imprudent to announce in advance a time measure for
bargaining or at this juncture to anticipate that the Wal-
lace bargaining necessarily will be attenuated. As to the
requested order for grievance and arbitration procedures,
the mechanism suggested would require an order codify-
ing the sum of the Union's collective-bargaining rights, a
technique which risks inadvertent and troublesome omis-
sions. Further, the remedy sought would necessarily in-
volve the Board in an unwarranted intervention in the
bargaining process and is rejected on that ground as
well. H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970). For
these reasons I do not recommend these additional reme-
dies sought by the Union.
[Recommended Order omitted from publication.]
4 With interest as prescribed in Florida Steel Corporation, supra.
100