Kellwood Co.

National Labor Relations Board - Board Decisions

Aug 13, 1969

178 N.L.R.B. 20 (N.L.R.B. 1969)

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kellwood Company, Ottenheimer Division and
International Ladies ' Garment Workers' Union,
AFL-CIO. Cases 26-CA-2313, 26-CA-2641,
26-CA-2721, and 26-CA-2952
August 13, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On January 28, 1969, Trial Examiner Alba B.
Martin issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
and the Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs. The
General Counsel filed cross-exceptions and a brief in
support thereof.
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 these cases 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, the briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions,' and recommendations of
the Trial Examiner' as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, Kellwood Company, Ottenheimer
Division, Little Rock, Arkansas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
1. Delete subparagraphs (j) and (m) of paragraph
1 of the Trial Examiner's Recommended Order, and
reletter subparagraphs (k), (1), (n), and (o) of
paragraph 1 to read (j), (k), (1), and (m)
'We agree with the Trial Examiner that the Respondent violated Sec
8(a)(1) during its preelection campaign but, considering the other conduct
involved and the broad Order herein, we find it unnecessary to pass upon
the legality of its conduct in "denigrating" the Union or in sanctioning the
circulation of antiunion literature during working time . Nor do we need to
consider the Trial Examiner' s views on backpay where unfair labor
practices are the sole cause of a strike
'The Respondent 's motion to reopen record is denied as lackmg in merit
respectively.
2. Add the following as a new subparagraph (e) of
paragraph 2, and reletter the existing subparagraphs
(e), (f), and (g), accordingly:
"(e) Notify all unfair labor practice strikers,
including those named in General Counsel ' s Exhibit
171 and its two pages of attachments , if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces."
3. Delete the eighth and eleventh indented
paragraphs in the Appendix attached to the Trial
Examiner ' s Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN, Trial Examiner: With all parties
represented by counsel, this consolidated proceeding was
heard before Trial Examiner Alba B. Martin, in Little
Rock, Arkansas, between February 5 and February 23,
1968, on complaints of the General Counsel of the
National Labor Relations Board and answer of Kellwood
Company, Ottenheimer Division,' herein called
Respondent and the Company At my urgent request prior
to the opening of the hearing, the parties were completely
cooperative with each other and with me during the
hearing. This greatly shortened a potentially long hearing
and yielded a compact, evidence-full record.'
The General Counsel and the Union contended that
Respondent bargained in bad faith with the Union with no
intention of entering into a final or binding
collective-bargaining agreement with the Union; that
Respondent unilaterally put wage increases into effect on
October 25, 1966, and February 1, 1967; that Respondent
refused to furnish the Union with certain information
requested by the Union; that Respondent bargained
directly and individually with employees in the appropriate
unit-all in violation of Section 8(a)(5) and (1) of the Act;'
that Respondent further violated Section 8(a)(5) by
refusing to recognize the Union after December 5, 1967;
and that Respondent independently violated Section
8(a)(1) by interrogations, threats, denegrating the Union
and advising employees of its futility, by enforcement of a
no-solicitation rule against the Union while permitting the
circulation of antiunion literature and petitions on
company time, and by exhibiting the movie "And Woman
Must Weep" to employees.
Respondent denied committing any unfair labor
practices and contended that it was the Union, not
Respondent, who bargained in bad faith.
The General Counsel and the Union contended, and
Respondent denied, that the strike from October 25, 1966,
'Respondent ' s name appears as amended at the hearing.
'The Union filed all the charges, the original charges being filed as
follows- In Case 2313, on January 28, 1966, in Case 2641 , on December
29, 1966, in Case 2721, on March 27, 1967; in Case 2952, on December 6,
1967 The Union filed the first amended charge in Case 2952 on December
11, 1967. The Regional Director issued his second order consolidating
cases, amended consolidated complaint , and notice of hearing, on
December 22, 1967
'The Act refers to the National Labor Relations Act, as amended, 29
U.S.C Sec. 151, et seq.
178 NLRB No. 8
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kellwood Company , Ottenheimer Division and
International Ladies ' Garment Workers' Union,
AFL-CIO Cases 26-CA-2313, 26-CA-2641,
26-CA-2721, and 26-CA-2952
August 13, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On January 28, 1969, Trial Examiner Alba B
Martin issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision Thereafter, the Respondent
and the Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs The
General Counsel filed cross-exceptions and a brief in
support thereof
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 these cases 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, the briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions,' and recommendations of
the Trial Examiner' as modified herein
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, Kellwood Company, Ottenheimer
Division, Little Rock, Arkansas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified
1 Delete subparagraphs (1) and (m) of paragraph
I of the Trial Examiner's Recommended Order, and
reletter subparagraphs (k), (1), (n), and (o) of
paragraph 1 to read 0), (k), (1), and (m)
We agree with the Trial Examiner that the Respondent violated Sec
8(a)(1) during its preelection campaign but considering the other conduct
involved and the broad Order herein, we find it unnecessary to pass upon
the legality of its conduct in denigrating the Union or in sanctioning the
circulation of antiunion literature during working time Nor do we need to
consider the Trial Examiner ' s views on backpay where unfair labor
practices are the sole cause of a strike
'The Respondent s motion to reopen record is denied as lacking in merit
respectively
2 Add the following as a new subparagraph (e) of
paragraph 2, and reletter the existing subparagraphs
(e), (f), and (g), accordingly
"(e) Notify all unfair labor practice strikers,
including those named in General Counsel's Exhibit
171 and its two pages of attachments, if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces "
3 Delete the eighth and eleventh indented
paragraphs in the Appendix attached to the Trial
Examiner's Recommended Order
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B MARTIN, Trial Examiner With all parties
represented by counsel, this consolidated proceeding was
heard before Trial Examiner Alba B Martin, in Little
Rock, Arkansas, between February 5 and February 23,
1968, on complaints of the General Counsel of the
National Labor Relations Board and answer of Kellwood
Company, Ottenheimer Division,' herein called
Respondent and the Company At my urgent request prior
to the opening of the hearing, the parties were completely
cooperative with each other and with me during the
hearing This greatly shortened a potentially long hearing
and yielded a compact, evidence-full record '
The General Counsel and the Union contended that
Respondent bargained in bad faith with the Union with no
intention of entering into a final or binding
collective-bargaining agreement with the Union, that
Respondent unilaterally put wage increases into effect on
October 25, 1966, and February 1, 1967, that Respondent
refused to furnish the Union with certain information
requested by the Union, that Respondent bargained
directly and individually with employees in the appropriate
unit-all in violation of Section 8(a)(5) and (1) of the Act,'
that Respondent further violated Section 8(a)(5) by
refusing to recognize the Union after December 5, 1967,
and that Respondent independently violated Section
8(a)(1) by interrogations, threats, denegrating the Union
and advising employees of its futility, by enforcement of a
no-solicitation rule against the Union while permitting the
circulation of antiunion literature and petitions or
company time, and by exhibiting the movie "And Womar
Must Weep" to employees
Respondent denied committing any unfair labo
practices and contended that it was the Union, no
Respondent, who bargained in bad faith
The General Counsel and the Union contended, an(
Respondent denied, that the strike from October 25, 196E
'Respondent s name appears as amended at the hearing
'The Union filed all the charges the original charges being filed
follows In Case 2313 on January 28, 1966 in Case 2641 on Decemb,
29, 1966 in Case 2721, on March 27 1967 in Case 2952, on December
1967 The Union filed the first amended charge in Case 2952 on Decemb
11 1967 The Regional Director issued his second order consolidati
cases amended consolidated complaint , and notice of hearing, i
December 22, 1967
'The Act refers to the National Labor Relations Act as amended
U S C Sec 151 et seq
178 NLRBNo 8
KELLWOOD COMPANY, OTTENHEIMER 21
to November 22, 1967, was an unfair labor practice strike,
that the strikers rather than the replacements are entitled
to the jobs, and that Respondent violated Section 8(a)(3)
by not reinstating the strikers and Section 8(a)(5) by
dealing directly with the strikers concerning their return to
work. The General Counsel, the Union, and Respondent
filed in late April 1968 excellent briefs which have been
duly considered. Copies of letters the opposing attorneys
wrote each other shortly after the briefs were in are in the
exhibit file as Trial Examiner's Exhibits 1 and 2.
On August 7, 1968, the General Counsel filed a motion
to amend the amended consolidated complaint to allege
that if the strike is found to be an economic strike the
strikers were improperly reinstated under the Board's
recent decision in The Laidlaw Corporation, 171 NLRB
No. 175. As I find below that the strike was an unfair
labor practice strike, the General Counsel's motion is
denied. The General Counsel's motion, the Union's letter
with reference thereto, and Respondent's memorandum in
opposition have been placed in the exhibit file as G.C. 1
ggg, 1 hhh, and I iii, respectively.
Upon the entire record and my observation of the
witnesses, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Kellwood Company (herein called Kellwood), a
Delaware corporation with its principal office in St. Louis,
Missouri, was formed in December 1961 out of
approximately 15 independent corporations having
approximately 36 plants. It sells the "major portion" of
its products to Sears Roebuck & Co.; in 1966 this portion
was 80 percent of its output.' In the corporate
organization each of the independent corporations became
a division of Kellwood Company, and each former
corporation president became a division president.
Kellwood Company's Ottenheimer Division, principally
involved herein, manufactures women's apparel and
consists of three plants' and a distribution center in Little
Rock, Arkansas, employing approximately 1,250
employees; and a plant at Lonoke, Arkansas, about 25
miles from Little Rock, which employs approximately 325
employees. Stanley M. Guthunz is president of the
Ottenheimer Division. He is also a vice president of
Kellwood Company, a member of its board of directors,
and a member of the executive committee of its board of
directors. He has held all of these positions since the
inception of Kellwood Company. Prior to that, he had
been president of Ottenheimer Brothers Manufacturing
Company, Inc. for a number of years.
Kellwood Company, Ottenheimer Division, referred to
herein as Respondent, the Company, the Ottenheimer
Division, and Ottenheimer, during the year prior to
December 22, 1967, purchased and received at its Little
Rock plants, directly from points outside of Arkansas,
products and materials valued in excess of $50,000; and
during the same period manufactured, sold, and shipped
goods and products valued in excess of $50,000 from its
Little Rock plants directly to points outside of Arkansas.
Respondent admitted, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union,
AFL-CIO, herein called the Union and I.L.G.W.U., is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Setting: Kellwood and Ottenheimer Policies
Towards Unions and for the Negotiations.
The Union undertook to organize plants in at least
three divisions of Kellwood in 1965 and early 1966. It
began organizing the Ottenheimer Division's three plants
in Little Rock, the plants principally involved herein, in
about August 1965. It started organizing at the Lonoke
plant of the Ottenheimer Division in February 1966,6 and
in the Hawthorn Division in Missouri in late 1965.' It
started organizing at the Alamo plant of the Southern
Division in April 1966.8
Respondent' s wages are low. Prior to February 1, 1967,
the Federal minimum wage was $1.25. On that date it
became $1.40. On February 1, 1968, it became $1.60. At
the beginning of the negotiations involved herein,
Respondent' s minimum wage was the Federal minimum
wage of $1.25. The Union's policy was to try to get at
least 25 cents above the Federal minimum for
inexperienced help, and at least 20 percent above contract
minimum for operators, pressers, cutters, and others in
the category of experienced help, many of whom were on
piecework. At a crucial point in the hearings herein the
Union' s president , Louis Stulberg offered 10 cents above
the Federal minimum for a first raise. Stulberg credibly
testified that that was the "lowest point ... we have ever
tried to negotiate with any firm. We were that anxious to
get an agreement."
On January 26, 1966, 2 weeks after the Union won the
election at Ottenheimer, President Wenzel of Kellwood
reported on Kellwood's policy "regarding future
negotiations and labor relations." At a meeting of the
executive committee of Kellwood's board of directors,
according to the minutes of the meeting, Mr. Wenzel
reported that "the Company will endeavor to establish
minimum benefits standards which are to apply to all
Divisions."
Long antedating and concurrent with this policy to
endeavor to grant only minimum benefits to employees,
Kellwood had another companywide policy, which
included Respondent Ottenheimer Division, to "use every
legal means available to us to combat organization" of its
employees. These were the words of President Guthunz
before me. Guthunz said this had been Kellwood's policy
since its inception in 1961, and was the policy of
Respondent Ottenheimer. Kellwood President Wenzel
confirmed this policy in Case 170 NLRB No. 183, when
he testified that it is Kellwood's policy to do whatever it
can to prevent a union from coming into any of its plants,
but that the policy does not include violating the law.'
this finding is based upon testimony of Kellwood Company's employee
relations director , William S. Keeline, in Case 26-CA-2560 (170 NLRB
No. 184) of which I took official notice.
'The three plants are in one large building . They are referred to herein
as the plant and the plants.
'See 170 NLRB No. 183.
'See 166 NLRB No. 20.
'See 170 NLRB No. 184.
'This testimony was included in testimony from Case 170 NLRB No.
183, of which I took official notice at the hearing.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to the Union's victory in the Little Rock election
described below, Respondent had successfully warded off
all unions and kept all plants unorganized, despite the
efforts of several unions to organize a number of them
over a period of years
Thus far, Kellwood' s antiunion policy has carried it
over the brink from lawfulness to unlawfulness in three of
its divisions, including the Lonoke plant of the
Ottenheimer Division 166 NLRB No 20, 170 NLRB No
183, 170 NLRB No 184
Neither the minutes of the executive committee of
Kellwood's board of directors nor any direct testimony by
Respondent herein undertook to explain why Kellwood
and Respondent decided to give employees only minimum
benefits standards, including minimum wages During the
negotiations, Respondent assured the Union that it was
not claiming inability to grant more economically than it
was offering in its proposals It follows that Respondent's
policy to grant only minimum benefits and wages to
employees was based upon something other than inability
to pay The question arises on this record as to whether,
in offering little more than the minimum in the
negotiations, Respondent was just bargaining hard, or
whether it was carrying out its policy of trying to keep the
Union out of its Ottenheimer plants even though the
Union had won an election, and whether, as contended by
the General Counsel and the Union, it was trying to
provoke a strike so that it could defeat the Union by
replacing its union employees with nonunion replacements
After careful consideration I agree with the latter view
1 Guthunz' speeches
During the Union's organizational campaign, which
started on or about August 19, 1965, and continued until
the election on January 12, 1966, President Guthunz
spoke to his assembled employees on eight occasions On
August 27, September 2, November 29, December 15, 17,
21, and 23, and January 11 Some were short
announcements Others were talks that lasted as long as
15 minutes or more
In his first announcement on August 27, Guthunz
announced a wage increase of 7-1/2 cents per hour and an
additional paid holiday
In his first speech, on September 2, about 2 weeks after
the beginning of the union campaign, Guthunz said, in
pertinent part
As all of you know, a union is trying to get into the
plant I want you to know that we are taking a
strong stand against the union I am convinced that the
union would be harmful to you and to our business
The union has tried to get in here at least five different
times in past years, and the union has failed every time
- just like it is going to fail this time During
the past, there have been no strikes-no picket lines
- no union trouble at Ottenheimer's because there
has been no union in the plant Our employees have
never lost an hour's work or a minute's sleep due to a
union strike - all that could change over night if you,
let the union in' the plant
*
B The Union Becomes the Bargaining Agent
Pursuant to a petition filed by the Union on October
28, 1965 (26-RC-2533), the Board conducted an election
on January 12, 1966, which the Union won 666 to 564
The minutes of a meeting of the Union's general executive
board held in March 1966 referred to this as "a surprise
victory" against "a ruthlessly anti-union firm " The
appropriate unit consists of all production, maintenance
and shipping employees at Respondent's Little Rock,
Arkansas, operations, excluding office clerical employees,
professional employees, engineering department
employees, outlet stores employees, guards and
supervisors as defined in the Act On March 3, 1966, the
Union was certified as the exclusive representative of the
employees in this unit This became the first unit of
Kellwood Company's plants ever to be organized and
represented by a Union
C Respondents Antiunion Campaign Its State of
Mind Just Before It Entered Negotiations
The Union's victory in the election was achieved despite
a vigorous, hostile, many-faceted, massive, antiunion
campaign by Respondent 10 This campaign utilized, inter
alia speeches and letters by President Guthunz, talks by
supervisors, leaflets, posters, interrogations, threats,
solicitations, messages as to the futility of selecting the
Union as bargaining agent, and the showing of the movie,
"And Women Must Weep "
"This subject matter was the subject of a settlement in Case
26 CA 2313 which the Regional Director set aside on the ground that it
had been breached and that unfair labor practices continued This
testimony is considered a^ background evidence for whatever light it casts
upon Respondents motive or object during the negotiations and other
postsettlement activities Cf Local Lodge No 1424 IA M (Bryan Mfg
Co ) v N L R B 362 US 411, Northern California Dist Council of
even if the union won an election here-the
Company still would not have to sign the union's
contract and fulfill the promises the union made to you
There is nothing automatic about the signing of a union
contract The Company has the right to say NO to the
union's contract proposals
Union pressure on this Company could lead to a
strike and all the trouble that goes along with a strike
* * * * *
You would be the loser in a strike You would not
get your pay during a strike And most important
of all-you could lose your job in a strike If the union
calls you out on a strike over the things it has been
promising, the Company is perfectly free under the law
to hire permanent replacements for you Once this
happens, the Company is under no obligation to give
you your job back-even after the strike is over I want
to repeat that, because it is so important If the union
calls you out on an economic strike, the Company is
free to hire permanent replacements for you If you are
replaced during a strike, your job is lost
* * * * *
When I became President of this Company 11 years
ago, we had about 600 employees and Tuf-Nut had
about 600 employees During the past 11 years,
Tuf-Nut has operated with a union We have operated
without a union During that 11 year period, the
Hodcarriers & Common Laborers of America AFL CIO (Josephs
Landscaping Service) 154 NLRB 1384 enfd 389 F 2d 721 (C A 9 1968)
Shurienda Steaks Inc 161 NLRB 957 959 Cloverleaf Cold Storage Co
160 NLRB 1484 1486 Steve Sash & Door Company v N L R B 401
F 2d 676 (C A 5) The use of this testimony does not violate Sec 10(b) of
the Act N L R B v Ritchie Manufacturing Company 354 F 2d 90 (C A
8 December 1965) Local Lodge No 1424 I A M AFL-CIO v
N L R B supra at 416 417 45 LRRM 3212 This testimony is set forth
at this point so that readers will know the prologue before they read the
play
KELLWOOD COMPANY, OTTENHEIMER
number of jobs at Tuf-Nut has gone down, not up. Now
they have only about 450 employees. During the same
11 year period, we have grown and expanded, and we
now have over one thousand seven hundred and fifty
employees, here and at Lonoke.
But please remember this- there will be no continued
job security without the continued success of our
business. That success depends entirely upon whether or
not Sears continues to buy our products. We have been
in business many years without any serious labor
problem. Sears knows that-and they,like todo business
with a Company that has no labor trouble. . . . If our
production were disrupted by a strike, Sears could lose
confidence in us. If that ever happens, none of us will
enjoy the job security we have enjoyed in the past.
[Emphasis omitted.]
On November 29 President Guthunz talked to his
employees for some 18 minutes. He said, in pertinent part:
The union could cause plenty of trouble for everyone at
Ottenheimer's if it got in here. I am convinced that the
union would be harmful to our employees and harmful
to the Company. Let me give you the reasons why I feel
this and why we are taking a strong stand against the
union.
First of all unions and strikes go together. Where
you find one, you find the other. If we have a strike at
this plant, both our employees and the Company, will
be hurt. Everybody loses in a strike except the union...
[Emphasis supplied.]
r • • n r
If the union should win an election here we would be
required to meet with the union. . . to bargain with
the union. . . . to negotiate. But please listen to this
carefully even if the union should win an election, we
still would not have to agree to their demands and we
still would not have to sign the contract the union
submitted to us. Even though we bargained with them,
we still would have the right to say "No" to their
demands. HOW could the union force us to agree to its
demands? HOW could the union force us to sign its
contract? The only thing they could do is call you out
on strike and a strike would hurt you and
Ottenheimer's. During a strike . . . you would run the
risk of losing your job by being replaced with other
workers.
N N M M M
Let me remind you that Ottenheimer's is a Division
of Kellwood Company. Kellwood has 30 plants located
all over the United States and there is not a union in
any of those plants. Kellwood has 12,000 employees
and no union. I want to repeat that because it -is so
important. There is no union in any Kellwood plant
anywhere. . . . Unions have tried time after time to get
in the plants of Kellwood, but the union has always
failed. When Kellwood says they don't want the union
in any plant, they mean it, and I sincerely hope that
none of you will take Kellwood's position on unions
lightly.
Please remember that Kellwood can say "NO" to
the union's demands even if the union should be voted
in. Kellwood is not going to agree to sign any contract
which is not to the best interests of our employees and
the Company. A union victory in the election and union
pressure on this plant could lead to a strike and all the
trouble for both you and the Company that would go
23
along with the strike.
Guthunz then restated and expanded his position that
Respondent could lose Sears as a customer because of
union trouble, and that, if Respondent lost Sears as a
customer, it would be "in deep trouble." He then quoted
figures as to the alleged number of plants in the garment
industry which had closed in the past 3 years and the
alleged number of garment employees who had lost their
jobs. Guthunz then related a story about another company
and its alleged plant closings because of labor trouble.
Guthunz then made the point that the employees did not
have to pay union dues and fees in order to work at the
plant. He said "[t]he union is nothing but a parasite. They
know we have a good plant here with a good group of
employees. Like a leach, they want to hang on and take
part of your earnings with their dues, fees, and
assessments. I am against that."
In an announcement to employees on December 15,
Guthunz again referred to the large number of unionized
plants being closed down, and that "that is something you
should think about in connection with the union issue."
Guthunz again stated that Respondent did not have to
agree to any union demand. He ended his announcement
as follows:
One other thing-ask the union what happens to
employees when they vote for the union in an election
and then the company and the union never reach an
agreement and never sign a contract.
On December 17 and 21, Guthunz made
announcements as to the date for the election and urged
employees to vote NO. On December 17, he concluded:
We are sure that the union will be badly beaten in an
election and we hope that after this is accomplished
they will leave you alone and we can continue building
for the future.
He concluded his December 21 announcement as
follows:
You have only 3 more weeks of this union mess and
on January 12th you can put an end to all the
dissension in the plants by voting NO.
On December 23, 1965, Guthunz reviewed briefly the
recent progress of the Company and stated that the future
would be bright except for the fact that the employees
might choose the Union; in which event, "our future could
be changed by events over which I would have no
control."
In his final talk to employees on January 11, 1966, the
day before the election, Guthunz summed up his "feeling
on the union issue." He said, "[y]ou know exactly where
we stand. You know that we don't want the union in here
and you know the reasons why we feel so strongly about
the union. I speak to you from my heart when I tell you I;
am firmly convinced that the union would be bad for vou-
bad for thecompany-bad for all of us." He told of a
plant in another town in Arkansas which had a contract
with the Union and under which contract the employees
had fewer benefits than Respondent's employees had
without the Union. He again referred to Tuf-Nut which he
said has been going downhill with a union while
Respondent has been making progress and improving
wages and benefits without a union. He concluded, "by
your landslide vote against the union they will know that
they are not wanted or needed here at Ottenheimer's. I
know you are with me. I know I have your loyal support,
and from the bottom of your heart I thank you. GOD
BLESS YOU ALL."
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 Wenzel's speech
Nine days before the election, on January 3, 1966, the
president of Kellwood Company, Fred W Wenzel, talked
to the Ottenheimer employees He referred to union
trouble hanging over the plant He said,
I have been a witness to serious union trouble at other
companies I have watched union strikes destroy jobs I
have watched union strikes cause orders to be cancelled
I have watched union strikes cause business to be lost
forever As a result of union strikes, both companies
and their employees are hurt Everybody loses in a
strike except the union The union loses nothing because
the union has nothing at stake
He said that Kellwood does not want the Union at any of
its 30 plants He said, "there' s no union in any of the
Kellwood plants Union, have tried time after time to get
in the plants of Kellwood, but the union has always
failed " He observed that Kellwood had never had a union
strike, that the employee, have never had to worry about
the "dangers and risks and uncertainties of union
trouble," and that this could change overnight if the union
got in here He said,
I cannot say how long a strike at Ottenheimer's might
last-for a week, a month, a year, or longer But I can
guarantee this-if the union gets in and there is a strike,
Kellwood Company, all of Kellwood's facilities, and all
of Kellwood's plants will stand behind Mr Guthunz and
will fully support him and Ottenheimer's during the
strike
Later Wenzel added "there is no need for you to run the
risk of union strikes There is no reason for you to expose
yourself to the dangers of union trouble "
3 Talks by Plant Manager Short
Upon instructions from President Guthunz, the plant
manager of lT espondent' s loungewear plant in Little Rock,
who had some 230 employees under him, talked to about
200 of them m his office in groups of 4 to 6 at a time He
gave the same talks, based upon notes, about 30 or 40
times , beginning about November 3, 1966 Short credibly
testified that he adhered closely to his notes because he
knew that to deviate would be an unfair labor practice
His notes showed that he elaborated on the theme that
ran through Respondent's propaganda He told the
employees that the Company did not have to sign the
Union's contract or any contract that was not to the best
interest of the employees or the Company, that it is one
thing for the Union to make promises and another for the
Union to make good on them If the Union was voted in,
he asked, and the Company did not agree to sign the
Union's contract, how could the Union make the
Company keep the promises the union organizers had
made9 He said there would be only one thing the Union
could do-strike He said the union organizers would not
be on strike, but only the employees, that the organizers
had nothing to lose He said that employees could not
collect unemployment money while on strike, that they
could lose their jobs while on strike, that the Union was
investing $40,000 in this campaign and that if the
Company did not agree to sign the Union's contract the
Union would call a strike to try to make the Company
sign up He said that if the Company should lose its Sears
business , he, did not know if it would ever get back
These carefully contrived expressions carried over to
employees as they were obviously intended to carry Thus
two employees credibly testified that Short said the
Company would not sign a contract and would close the
plant first This is what they understood Short to say and
what on the whole record I find Respondent wished them
to understand
4 Activities of lower supervisors
During the campaign, according to uncontradicted
credible testimony, minor supervisors interrogated
employees concerning their union sympathy, tried to
persuade an employee to remove a "vote yes" sign and
wear a "vote no" sign, said that if you get the Union in,
you might be fired In addition, several employees testified
concerning the passing of antiunion petitions down the
work lines during working hours while supervisors were on
the line One supervisor wrote on a petition "I would if I
could" sign the antiunion petition Another, Hendrickson,
handed out antiunion leaflets to operators at work on the
line One petition passing down a line said the employees
should vote against the Union because it would be
impossible for 1,300 employees to find employment
elsewhere One witness testified that 25 to 30 employees
signed an antiunion petition while a supervisor was on the
line A witness credibly testified that Supervisor Turner
had said President Guthunz had said he would not sign a
contract and he meant it Another witness testified
Supervisor Bridges said the company lawyer said that to
get the Union in the employees would have to strike
Prior to the union campaign there was a no-solicitation
rule posted on the company premises in one place When
during the campaign Personnel Manager McClain learned
there was an antiunion petition on the bulletin board, he
removed it immediately
5 Letters, sample ballots, posters, film
During the preelection period Respondent was also
distributing letters to its employees carrying the same
general message that strikes and unions went together as
has been seen in the talks of Guthunz and Wenzel For
example, in a letter to employees dated November 27,
1965, Guthunz said
There is no need for you to run the risk and dangers of
strikes and trouble You should not let the union
talk you into gambling with your job by turning it over
to the union You have too much at stake
On December 4, 1965, after correcting a misstatement of
the law in a union leaflet a few days before, Guthunz
wrote the employees
Ask the union HOW they could make the Company
agree to their demands and sign their contract
There is only one true answer to that question-the
union would call YOU out on STRIKE to TRY to get
the things they promised to get for you If the law
made the Company sign a union contract, why do you
think there are thousands of union strikes every year?
If the union pulls you out on strike
(3) YOU COULD LOSE YOUR JOB' Under the
law the Company can permanently replace economic
strikers with new workers Once a striker has been
replaced, herjob is gone'
On December 11, 1965, Guthunz wrote the employees a
letter about job security Among other things he asked
"How much security would you have if the union won an
election and then called you out on strike? How much
security would you have if the union closed this plant
KELLWOOD COMPANY, OTTENHEIMER
down with a strike?"
On December 24, 1965, Guthunz wrote the employees a
letter talking about union fees , dues , assessments,
contributions , fines , and penalties and said that the reason
the Union is trying so hard to get into Ottenheimer's is
because the Union is after your money.
On January 3, 1966 , Guthunz wrote the employees:
"You already know you could lose your job in a union
strike by being replaced with another worker . Can you
afford to run the risks and dangers of a union strike?" He
then asked employees to consider who was going to pay
the rent , the groceries , pay the other bills, and where an
employee could find another job, if he loses his job in a
strike.
On January 7, 5 days before the election , under a
sample ballot marked "NO" Guthunz wrote the
employees , "You can say NO to union strikes , picket
lines , loss of work , dues , fees , and union trouble by voting
NO in the election."
During the campaign , Respondent also mailed to
employees a leaflet contrasting what the Company had
done and the Union had not done for the employees in the
past , and as to the future wrote this:
Ottenheimer Bros . will guarantee this: I, S.M. Guthunz,
president of Ottenheimer Bros., Mfg., Co ., do hereby
guarantee that if you do not have a union in our plant,
you will not lose your job on account of a strike. [This
was followed by the purported signature of Guthunz.]
Opposite the above was the following:
Will the Union guarantee this:? Mr . Guthunz has signed
a guarantee that you will not lose your job on account
of a strike if there is no union here . Now ask the
organizers if they will sign the statement below:
I hereby guarantee that if the Union wins the election
no employee in the plant will lose her job because of a
strike.
Following this is a line for a signature and under that the
statement:
If any union representative , or anyone for the Union,
signs this guarantee-ask him HOW the Union is going
to make the Company do anything if it doesn't intend
to pull a strike.
During the campaign Respondent also issued to
employees and posted in the plant multicolor posters,
some as large as 4 feet by 3 feet , carrying out the theme
that unions and strikes go together , and telling of other
companies who said "NO" to the demands of other
unions , strikes ensued , the plants closed down , and the
employees were out of jobs . One poster purported to list
the strikes called by the Union.
During the campaign , Respondent showed the film
"And Women Must Weep " to the employees on company
time . This was the same film , the showing of which the
day before an election the Board has found to be "in the
nature of misrepresentation which exceeded the bounds of
permissible campaign propaganda and an interference with
the election the following day." In Plochman and
Harrison-Cherry Lane Foods , Inc., 140 NLRB 130, the
Board set the election aside . Here , as there, Respondent
introduced the film with the statement , contrary to the
Board ' s finding , that it was a "true " portrayal of what
happened to people in an actual strike situation. In its
introduction Respondent continued its theme that unions
and strikes go together . The Board has held the showing
of this film to be a violation of Section 8(a)(l) of the Act.
.Southwire Company , 164 NLRB No. 135 ; 159 NLRB
394.
6. Conclusion
25
The conclusion is inescapable from the above that
Respondent , in all of this, was seeking to show the
employees the utter futility of their joining , supporting,
and voting for the Union ; was seeking to convince the
employees that Respondent did not want the Union and
had no intent to sign a contract with the Union ; that the
Respondent would not agree to the Union 's demands and
that a strike was inevitable ; and that an inevitable result
of such strike would be the loss of their jobs by the
employees . Throughout this propaganda runs the theme
that the Company does not have to reach agreement with
the Union , that it has the right to say "NO" to union
demands , that the only thing the Union could do would be
to call a strike . I conclude that this was the state of mind,
and the intention , with which Respondent entered the
bargaining negotiations.
Of particular note is that during the preelection
campaign , insofar as the record showed , there was no
serious talk among employees or union organizers of
striking the plant . In fact , referring to this period of time
President Guthunz told employees on November 29, 1967;
"the Union told our employees there would be no strike,
no trouble , and that there was nothing for them to worry
about ." Thus Respondent 's propaganda was not in answer
to any real threat of a strike , but was designed to frighten
the employees away from the Union and to defeat the
Union at the election . The Board , with court approval,
has held such company activity to be in violation of
Section 8 (a)(1) of the Act . Hoffman-Taff, Inc., 135
NLRB 1319, 1321 ; Orkin Exterminating Company of
Florida , Inc., 152 NLRB 83, enfd . 379 F. 2d 972 (C.A. 5).
D. Respondent 's State of Mind After the
Negotiations
After some 30 bargaining sessions , a 13-month strike,
and the replacement of all, or most , of the strikers,
President Guthunz again spoke to the Little Rock
employees . On November 29, 1967 , Guthunz gave the
following talk to the Little Rock employees . The following
day Plant Manager McKibben read the same talk to the
Lonoke employees , stating that Guthunz had given the
talk the day before to the Little Rock employees:
The purpose of this meeting is to bring you
up-to-date on the status of the union activity and the
union strike here at Ottenheimer 's. Most of you were
not here when the union activity first began , so I will
start at the beginning and trace the events that have
occurred.
The union organizers first showed up around here
back in 1965 . They began to contact our employees,
call on them at their homes , and pass out union
propaganda at the plant. They made all kinds of big
promises . They promised to get the employees big
raises , more benefits , and better working conditions.
They went on and on about what they could do for the
employees . The sky was the limit and there was no end
to the union 's salestalk.
Unfortunately , a number of our employees listened
to the union ' s promises and became involved with the
union. A number of them signed union cards. The
union told our employees there would be no strike, no
trouble , and that there was nothing for them to worry
about.
On January 12, 1966 , the National Labor Relations
Board conducted an election here at the plant and the
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union won a close election among our employees After
the election the company and the union began to meet
and bargain on the terms of a contract There was
meeting after meeting between the company and the
union but no agreement was ever reached on the terms
of a contract The union for reasons of its own
apparently didn't want to agree On October 25th,
1966, it called the employees out on strike The union
continued to make big promises The union told the
strikers not to worry, that the union would win the
strike, and that the strike would not last long
The strike began and the company continued to
operate the plant during the strike by hiring new
employees to replace the strikers Many of you came to
work during that time
I don't have to tell you that the strike lasted over a
year and that it was finally called off by the union On
November 21, 1967, the union called off the strike and
gave up There was violence and plenty of trouble
during the strike, as you know, and no contract has
ever been signed
You are aware that the union has asked us to
reinstate strikers Several of you have asked us how this
will effect you- and, if we have to rehire them You are
entitled to an explanation Those of you who are doing
your jobs have nothing to worry about, you won't be
replaced by anyone Our company lawyers will require
us to rehire some of the strikers The company could
expose itself to large financial losses if it refused to
rehire the strikers We simply could not afford to take
that risk
I want you to understand that the strikers who will
be rehired will not enjoy any special privileges or
benefits They will be required to do their jobs and
follow the rules just like everyone else
We ask that you give us your cooperation and that
there be no trouble in the plant I know that some of us
don't like this but there is nothing we could do about it
Let us hope this union issue has come to an end
Let's continue to work together to make this a good
plant with a good future Thank you
On December 5, 1967, Respondent wrote the Union
that it no longer recognized the Union On December 22,
1967, just before making awards to employees for 20
years' continuous service with the Company, President
Guthunz told the employees
This is the time of year when one looks back on the
past year also, likes to anticipate what the year ahead
looks like
When I talked to you last Christmas there were 876
total employees I would like to read you two
paragraphs from that talk and I quote,
"I think you know we are not going to knuckle down
to such tactics We are absolutely determined Over the
past 14 years, with the help of many people, I built this
operation from 500 to 1,350 employees
"I plan to build it back to where it was before the
strike, but it is not going to take 14 years We are
going to do it in 4 or 5 months "
In looking over the number of people here today, I
can only say we did what we set out to do-we did what
we promised to do-which is more that I can say for
another group
Some of you have asked in the past few days what
the status of the union situation is7 All I can tell you is
that the union has given up the strike and it is over
The union has filed a number of charges against the
company We don't know when these charges are going
to be tried and our lawyers tell us that it will be
probably two or three years before we get any final
court decision We don't feel any of the charges can
stand up and they represent the union's last gasp I am
sorry I cannot tell you any more than that but it looks
as though it will be a long time before we get this union
mess finally and completely behind us
I do know, however, we have gained an awful lot in
the long year just past-thanks to so many of you
Now the strike is over and we have written the union
that they no longer represent the majority of our
employees From here on our progress can only
continue to go forward
The year ahead looks like a bright one for us-we
feel business will be good and that we can all look
forward to plenty of work We expect to complete our
engineering program in all plants in Little Rock during
the year and feel that this will benefit everyone
[Emphasis supplied ]
E Applicable Principles
What is meant by good faith bargaining has been the
subject of a considerable body of decisional law "
"[G]oodfaith bargaining means more than `going through
the motions of negotiating ' ' the essential thing is
rather the serious intent to adjust differences and to reach
an acceptable common ground ""' As the Act explicitly
states, fulfillment of the obligation to bargain does not
compel an employer to agree to a proposal or to a
concession "On the other hand while the employer is
assured these valuable rights , he may not use them as a
cloak In approaching it from this vantage, one must
recognize that bad faith is prohibited though done
with sophistication and finesse Consequently , to sit at a
bargaining table, or to sit almost forever, or to make
concessions here and there, could be the very means by
which to conceal a purposeful strategy to make bargaining
futile or fail Hence, we have said in more colorful
language it takes more than ` surface bargaining' or
`shadow boxing to a draw ' or `giving the Union a
run-a-round while purporting to meet with the Union for
purposes of collective bargaining ... " Whether or not an
employer's bargaining conduct reveals such a strategy is a
question to be determined from an assessment of the
totality of his conduct 14
"The duty of management to bargain in good faith is
essentially a corollary of its duty to recognize the union
Performance of that duty therefore also contemplates full
acceptance by management of the representative status of
the union , not as a bare adviser, but as a joint participant
in the establishment of wages, hours , and working
conditions " General Electric Company 150 NLRB 192,
268
"See e g N L R B v American National Insurance Co 343 U S 395
N L R B v Truitt Mfg Co 351 U S 149 N L R B v Wooster Division
of Borg Warner Corp 356 U S 342 N L R B v Insurance Agents
International Union AFL-CIO 361 U S 477 N L R B v Benne Katz
etc d/b/a Williamsburg Steel Products Co 369 U S 736
"General Electric Company 150 NLRB 192 194 quoting N L R B v
Truitt Mfg Co 351 U 5 149 155 (Frankfurter J) and First Annual
Report of the National Labor Relations Board p 85 See also Call
Burnup and Sims Inc 159 NLRB 1661
"N L R B v Herman Sausage Company Inc 275 F 2d 229 232 (C A
5)
"N L R B v Herman Sausage Co Inc supra N L R B v Texas
Coca-Cola Bottling Co 365 F 2d 321 (C A 5)
KELLWOOD COMPANY, OTTENHEIMER
The purpose of imposing legal duties upon employers to
meet and bargain with the representatives of employees is
to create a structure of industrial self-government for a
particular plant arrived at by consensual agreement
between management and employees within the
framework of the statute. By guaranteeing employee
participation in decisions relating to wages, hours, terms
and conditions of employment, Congress made a
determination that this would create an environment
conducive to industrial harmony and eliminate costly
industrial strife which interrupts commerce. Fibreboard
Paper Products Corporation v. N.L.R.B., 322 F.2d 411
(D.C. Cir. 1963).
The issue here is whether Respondent discharged its
obligation in the manner and spirit commanded by the
law, or whether it did so in the manner and spirit
condemned in such cases as N.L.R.B. v. Whittier Mills
Company, et al., 111 F .2d 474, 478 (C.A. 5); Stonewall
Cotton Mills, Inc. v. N.L.R.B., 129 F.2d 629, 631 (C.A.
5), cert. denied 317 U.S. 667; N.L.R.B. v. Athens
Manufacturing Company, 161 F.2d 8 (C.A. 5); N.L.R.B.
v. Herman Sausage Company, Inc., 275 F.2d 229 (C.A.
5).
F. The Negotiations
1. The early meetings
Some 30 meetings took place between representatives of
Respondent and representatives of the Union, from March
23, 1966, to July 21, 1967. The parties met at reasonable
times and places and negotiated. Each side made many
proposals and counterproposals, orally and in writing.
Respondent's principal negotiators were President
Guthunz, its negotiating attorney Frederick A. Kullman,
and Kellwood Company's employee relations director
William S . Keeline . The Union' s principal negotiators
were its vice president and regional director for its St.
Louis region, Frederick E. Siems, and its negotiating
attorney, James E. Youngdahl. They, with others, were
accompanied at "formal" bargaining sessions by an
employees' negotiating committee" of up to about 20
employees from the Little Rock plant. All the sessions
were held in Little Rock, Arkansas, except for two in St.
Louis (Clayton), Missouri and one in New York City,
New York. The St. Louis meeting on September 22, 1966,
and the New York meeting on September 29, 1966, were
arranged in order to bring the top officers of the
contending forces together, Kellwood Company's
president, Fred W. Wenzel, and the Union's president,
Louis Stulberg.
The "formal " bargaining sessions occurred in 1966, on
March 23; April 4, 5, 12, 13, 21, 22; May 3, 4, 16, 17, 31;
June 1, 6, 7, 20, 21, 29; July 19; and October 24. A
mediator was present on October 24. The strike began
October 25. During the strike meetings were held with
mediators on January 24, 1967, and July 21, 1967. On
December 5, 1967, Respondent notified the Union by
telegram that it no longer recognized the Union as the
collective -bargaining agent of the employees.
In addition to the formal negotiating sessions, there
were several "informal" meetings of company and union
representatives in the absence of the employees'
committee. These occurred on June 25 and 28, July 18,
August 29, September 22 and 29, and October 6 and 10.
"This committee is sometimes referred to herein as the employees
committee . It is the only employees ' committee involved herein.
27
On September 22 in St. Louis and on September 29 in
New York, the Union had brought along from Little
Rock some members of the employees' committee to be
available to sit in at the negotiations, if at any time it
appeared there was possibility of consummating an
agreement. The employees' committee was never called in.
At the early meetings in March, April, May, and June
1966, proposals were exchanged, explained, and discussed
by both sides." It was brought out that the plant
minimum wage was $1.25 an hour (the then Federal
minimum ), and that the base rate for piece rate workers
was 27-1/2 cents an hour higher. At two meetings in
April, the Union made a wage proposal which included a
minimum wage of 25 cents above the legal minimum. At
about this time the parties expressed their expectation that
Congress would increase the minimum wage and that the
new amount would be $1.40 per hour.
At the suggestion of Respondent's skilled negotiator,
Mr. Kullman, at Kullman's first appearance at the
sessions on April 12, the parties discussed noneconomic
subjects; they did so almost to the point of exhaustion
prior to getting into the economic issues which both sides
knew were the crucial ones. Kullman said Respondent
wanted to get the noneconomic issues out of the way first
and that Respondent would not bargain piecemeal. There
were many proposals and counterproposals on many
points, some of them small points but not necessarily
unimportant to the proponents. This was the period that
laid the ground work for a judgment that Union President
Stulberg announced later to the Union's general executive
board. Stulberg referred to "protracted, futile talks with a
firm that seemed intent on negotiating the Union to
death." There was evidence that the Company, also,
thought the negotiations were dragging. Siems was trying
to break through the Kullman "lawyer's talk" and
thinking and get to the operating men, such as Guthunz,
with whom Siems thought he could conclude a contract.
Kullman rubbed Siems the wrong way with his emphasis
on wordy specificity and his constant efforts to anticipate
every question that could possibly arise under the
proposed clauses and to answer them in advance. Siems
was trying to get across the idea that in order for the
Union and the Company to be able to work together a
degree of trust would have to develop , some solutions
would have to be left for later solution by their joint good
sense , and every little possibility could not be anticipated
and solved in advance in written words. Although Siems
never in words asked that Kullman be removed from
Respondent' s bargaining team, Keeline volunteered that
Respondent was going to keep Kullman.
At the meetings from March through June, the parties
adjusted many positions. Many of the adjustments
"Concerning what happened during the negotiation sessions, I have
relied in large part upon Youngdahl's testimony . Youngdahl appeared to
me to be a truthful witness doing his best to relate the events of a long
series of bargaining meetings. He was assisted by his contemporaneous
notes. To a lesser extent I have relied on Keeline 's testimony and notes.
Sometimes the detail in his testimony suggested that Keeline ' s memory or
alleged memory was almost too good to be real and true. As is seen below,
Keeline's testimony concerning the July 19 , 1966, meeting cast a I shadow
upon his credibility. To a limited extent I have relied on Guthunz'
testimony . Guthunz was strongly biased against the Union and this clearly
colored his memory and his testimony . He had no contemporaneous notes
to assist him. He was at times self-contradictory. On some matters I have
relied upon Personnel Manager McClain 's writeup of the sessions based
upon his contemporaneous notes. In general, I have resolved conflicts in
the testimony on the basis of my observation of the demeanor and
credibility of the witnesses and what upon the record as a whole appeared
to me to be the inherent probabilities in the situation.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred on June 28 and 29 They reached tentative
meeting of the minds concerning the wording of a number
of articles, including the preamble and articles concerning
mutual obligations, recognition, discharges and discipline,
assignments and distribution of work, chairman-shop
committee, jury duty, reporting, waiting and machine
downtime pay, layoff and rehire, access to shop, fire
prevention, termination of rights, management functions
and rights, additional provisions, conformity to law-
savings clause These related mainly to noneconomic
matters Whether the tentative agreements were to become
final depended on whether a meeting of the minds on all
subjects was ever achieved
At the conclusion of this first 4 months of bargaining,
there remained on the bargaining table a number of
subjects on which the parties had not reached tentative
meeting of the minds There had been discussion on all or
most of these subjects These included a no-discrimination
clause, trial (probationary) period, checkoff, hours and
overtime, wages, assignment to other work, holidays,
benefit funds, escalator or cost of living adjustments,
change in legal minimums, vacations, no strike-no
lockout, grievance procedure including arbitration,
waivers
The evidence is in dispute as to whether by the end of
June a number of subjects had been disposed of by
tentative agreement or withdrawal by the Union
Respondent contended, the General Counsel and Union
disagreeing, that proposed clauses on the following
subjects had been withdrawn subcontracting, layoff and
rehire, related firms, crossing picket line union labor,
employer entity, subsidiary or affiliated firms, struck
work, agency, nonpayments Of these, only the picket line
clause needs further consideration
At the conclusion of the June 29 bargaining meeting,
the parties adjourned until July 18
As to the Union's picket line clause, it was one of a
number of clauses that Youngdahl told Kullman in New
Orleans on June 25 that the Union would probably
withdraw, although he told Kullman that the Union would
withdraw a number of other clauses The picket line
clause was one of many clauses discussed and adjusted on
June 28 and 29, and the Union certainly indicated that it
would probably withdraw it if a contract was reached
Youngdahl did not include the picket line clause in a list
of 17 "issues remaining" after the June 29 meeting At the
September 22 and 29 meetings, Union President Stulberg
placed importance upon this clause, as is seen below, and
the testimony of Youngdahl proves that Stulberg was
surprised when Kullman told him the Union had
withdrawn it Stulberg turned to Stems and asked if that
was so, Siems relayed the question to Youngdahl and
Youngdahl's remembrance was that it had not been
withdrawn In summarizing the negotiations to a mediator
on November 16, Guthunz related that Siems had said the
picket line clause was not important, not that Stems had
withdrawn it according to Keeline's notes Although
Guthunz was not present on June 29, he kept close tab on
the negotiations and would have known whether
Respondent considered the picket line clause withdrawn
Keeline testified that on June 29 Stems withdrew the
picket line clause, that he so recorded on his notes of that
meeting (which notes reflect such an entry) and that he
saw Kullman make a note to that effect on a list of
clauses Neither Kullman nor Siems were called to testify
by their respective parties, although Kullman was in the
hearing room during the entire hearing and Siems was in
and out of the hearing room during the hearing
Keeline's credibility is under serious question because of
his testimony about the July 19 meeting, which other
testimony showed he did not attend Youngdahl named
those at this meeting and did not include Keeline
Youngdahl's contemporaneous notes of the meeting do
not list Keeline as present The notes of Respondent's
personnel manager, McClain, were written up 3 days after
the meeting from notes made at the meeting, and do not
show Keeline present Keelme kept notes at the meetings
he attended, which are in the record, and the record has
no notes of Keeline's for this meeting Under all the
circumstances, I find that Keelme did not attend the July
19 meeting and that his testimony about this meeting was
based upon something other than his recollection Under
these circumstances, Keeline was less than a fully credible
witness and I do not credit his testimony that Stems
withdrew the picket line clause on June 29
Upon the preponderance of the evidence, I conclude
that the most in Respondent's favor that can be concluded
is that prior to President Stulberg's entrance into the
negotiations, the Union did not give the importance or
emphasis to the picket line clause that Stulberg gave to it,
and that when Stulberg raised it on September 22, he was
unaware that Stems had downplayed it
2 Respondent's first economic offer followed by
unfair labor practices
Respondent presented its first economic package of
proposals to the Union at informal meetings on June 25
and 28 This package included Respondent's first wage
proposal, consisting of a 5-cent raise above the minimum
wage to $1 30 on the effective date of the proposed
contract, a 10-cent raise to $1 40 on July 1, 1967, a 5-cent
raise to $1 45 on July 1, 1968, and a 15-cent raise to $1 65
on February 1, 1969 Respondent's proposal was, further,
that if the Federal minimum wage was changed by
Congress, Respondent's proposals were in addition to, or
on top of, the new minimum wage The base rate for
pieceworkers was to be increased by the same amounts
and the differential between hourly rates and piece rates
held at the current 27-1/2 cents
On July 18 began a change in the Union's attitude
towards Respondent's bargaining practices, which was
occasioned by Respondent's actions away from and at the
bargaining table The record sustains the conclusion that
before and after this date the Union wished to believe that
Respondent was bargaining in good faith, but that
beginning on this date the Union strongly suspected that it
was not
On July 18 Respondent announced to its Lonoke
employees that it was giving them a 10-cent wage increase
effective August 1, and minutes later, but not before,
Respondent offered the same increase to the Union in the
negotiations at Little Rock In making the offer to the
Union, Respondent told the Union that Kellwood was
putting the 10-cent increase into effect at all its other
plants (more than 30) on August 1 This was an informal
meeting with Kullman and Guthunz representing
Respondent and Youngdahl and Siems representing the
Union
As has been seen above, the Lonoke plant is a part of
the Ottenheimer Division under Guthunz and is about 25
miles from Little Rock In announcing this wage increase
to the Lonoke employees on July 18, Plant Manager
McKibben of the Lonoke plant read a speech written by
Guthunz on July 18 After writing it, Guthunz cleared it
with a lawyer in Kullman's law office The speech read as
KELLWOOD COMPANY, OTTENHEIMER 29
follows
Mr Guthunz has just returned from a Division
Presidents Conference of all Kellwood plants and as a
result of action taken at that meeting, I am pleased to
announce that effective August 1, 1966, wages will be
increased 10 cents per hour to all time workers and all
incentive rates will be increased by 10 cents per hour
In addition, the guaranteed minimum rate of pay will
be increased 10 cents to $1 35 per hour for all
employees with 90 days service with the company
The increases are in line with Kellwood policy to
continue a progressive program of providing wages and
benefits to the best of its ability This increase was
made possible by you and your company working
together to make this plant a success
You did not have to pay one cent in union dues to
get this increase It was not necessary for you to call on
any union outsiders to speak in your behalf in order to
get this raise
Our company has always followed the policy of
improving wages and working conditions whenever it
was able to do so and it will continue to follow that
policy in the future No union can force us to do more
than that This increase should be proof that a union is
not needed by a company like ours that treats its
employees fairly and rewards them for their good work
In closing, let me say this, and I hope you will
always remember-you will always receive the same
rates of pay, the same benefits and the same fair
treatment as the Ottenheimer employees in Little Rock,
and you will receive the same rates of pay, the same
benefits and the same fair treatment as those employees
without having to pay union dues or union fees
Again, let me say that it is with a great deal of
pleasure that I announce today, this wage increase
Although Guthunz had written this speech and was
present with Kullman at the July 18 meeting with union
representatives in Little Rock, which began at 4 p in ,
neither of them initially mentioned the Lonoke wage
increase or its impending announcement Kullman made
Respondent's 10-cent wage offer some 20 minutes after
the session was under way w'th other topics, and stated
that Kellwood was going to put a 10-cent raise into effect
m all other plants effective August 1 Kullman stated that
this decision had been made at a meeting of Kellwoou
officials in California Within minutes thereafter and
before the union representatives had expressed any or
much reaction to the offer, the union representatives,
Youngdahl and Siems, received a phone call from a union
official telling them about McKibben's speech and
Respondent's announcement of the raise to go into effect
at Lonoke on August 1, 1966 Upon these facts, I
conclude that Respondent announced the raise at Lonoke,
minutes before offering it to the Union at Little Rock
Siems returned from the telephone call and told
Guthunz and Kullman in strong language that he thought
Respondent was bargaining in extremely bad faith to give
a wage increase to other plants and then offer it to the
Union in negotiations Kullman replied that Respondent
was not giving the fringe benefits at the other plants which
it was offering in the negotiations and so it was not the
same offer Siems challenged this Siems said that
Respondent's wage offer was unsatisfactory to the Union
because of the way it was announced in other Kellwood
plants first, and also because Respondent was not offering
any more than would be required by the impending
change in the Federal minimum wage law Siems, showing
anger , expressed himself strongly and repeatedly to the
effect that in the handling of this wage increase and offer,
Respondent was bargaining in bad faith with the Union
For the first time, a bargaining session ended on this very
unfriendly note
The company decision to grant a companywide"
10-cent increase on August 1 and announce it July 18 had
been made at a Los Angeles meeting of the division
presidents and President Wenzel on about July 11, 1966
The Board has recently held that the granting of this wage
increase was motivated in part by antiunion
considerations," and that the promising, announcing, and
granting of it at Lonoke and the granting of it at the
Alamo plant of Kellwood's Southern Division, were in
violation of Section 8(a)(1) of the Act "
The division presidents and President Wenzel in
California were fully aware of the pending Little Rock
negotiations and were briefed concerning them by
Kellwood Company's employee relations director, Keelme
In Case 170 NLRB No 184, Keelme testified that the
division presidents discussed the prevailing organizational
efforts of the Union In Case 170 NLRB No 183,
President Wenzel testified" that some time during the
several-day period of the meetings in Los Angeles,` he
had a discussion with Guthunz and Keeline, during which
they decided to make the 10-cent offer to the Union in the
Little Rock negotiations on July 18 At that time they
were aware that the next Little Rock negotiations between
the Company and the Union had been scheduled for July
18 Wenzel testified that July 18 was chosen because that
was the first date all the division presidents would be back
in their respective localities and Respondent wanted to
make the announcement countrywide at the same time
He and Guthunz stated that one of the reasons for
granting the raise was to demonstrate to the employees
that they could get a raise or benefits without a union In
that case, Wenzel testified that the primary reason for the
increase was to attract better help, that they were having
trouble attracting qualified help, Guthunz testified before
me that this was one of the reasons Neither said anything
about the raise being pursuant to "a progressive program
of providing wages and benefits to the best of its ability"
which Guthunz wrote for McKibben to read to the
Lonoke employees Guthunz testified that, "I would think
that if you grant wage increases to your employees, it is
evidence that the employees do not need a union in
my opinion " Significantly, the Guthunz-McKibben
announcement did not tell the employees that
Respondent's policy was to endeavor to establish
"minimum employee benefit standards "
Guthunz testified before me that he did not consider
giving the Union notice prior to July 18 of the
companywide wage increase Respondent was going to
announce that day, effective August 1
No reason appears why Respondent could not have
offered the raise to the Union on July 18 and thereafter,
"Two plants were excluded because they were being reengineered
"Of significance is the italicized phra,e used in the minutes of a
Kellwood board of directors meetings of July 26 1966 The pertinent
sentences read as follow,
Mr Wenzel reported on the Division Presidents Conference held in Los
Angeles on July 11 12 and 13 1966 Mr Wenzel reported on the
granting of a wage increase of 10 cents per hour to hourly paid
employees exclusive of those represented by the I L G W U effective
August 1 , 1966 [Emphasis supplied 1
"170 NLRB No 183 and 170 NLRB No 184
"See fn 9 supra
"Guthunz testified before me that this discu,sion occurred after the
division presidents meetings had been concluded
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
say on July 19, announced it to employees companywide,
thereby giving the Union an opportunity to bargain
concerning it for the Little Rock employees before
announcing it companywide Under all the circumstances,
it must be concluded that one of the reasons Respondent
timed the announcement for July 18 instead of, say July
19, was to maximize its adverse effect upon the Union's
bargaining power and bargaining position in the Little
Rock negotiations
Respondent's alleged primary reason for making the
raise was to attract better help Assuming the truth of that
statement, it would appear that the sooner the raise
became effective, the sooner it would attract better help
No reason was offered for the 2-week delay between the
announcement on July 18 and the effective date August 1
Under all the circumstances in this record, it must be
concluded that at least one of the reasons for the delay
was to maximize the adverse effect upon the Union's
bargaining power and bargaining position in the Little
Rock negotiations Thus, the delay allowed a 2-week
period of time for Little Rock employees to contemplate
the futility of their situation, to withdraw from the Union,
and to pressure the Union to accept Respondent's offer,
even though the Company and the Union were far from
consummation of a contract That the Little Rock
employees would promptly hear of the announcement to
the Lonoke employees, and that Respondent intended they
should, is not open to question, since the same Union and
the same union leadership was concurrently bargaining for
the Little Rock employees and trying to organize the
Lonoke employees and since both groups of employees
were in the same corporate division under Guthunz In the
representation case, Respondent had tried to get the
Lonoke employees included in the same unit as the Little
Rock employees Indeed, at a negotiation session on July
19, if not before, the Little Rock employee negotiating
committee learned about Respondent's fait accompli at
Lonoke and heard Stems complain in anger to
Respondent's representatives about their bad faith and
their effort to undercut the Union's bargaining status by
offering the Union the wage increase it had already
announced at Lonoke and other plants zz
Respondent could have simply told the Lonoke
employees it was giving them the raise, without any
reference to the Union or the Little Rock employees
Instead, Guthunz went out of his way to tell the Lonoke
employees, contrary to the admitted fact, that the Union
had nothing to do with their getting this raise And
instead, Guthunz emphasized that the employees did not
need a union, did not need to pay union dues and fees,
and would get the same rates of pay and benefits the
Little Rock employees would get, a message Guthunz
surely intended for the Little Rock employees as well as
the Lonoke employees If the Little Rock employees could
be brought to realize, as Guthunz must have intended,
that their union bargaining representative was ineffectual
in getting them a raise and that it was futile for them to
support the Union further, he would have undercut the
Union's strength and bargaining power and would have
accomplished his purpose
Respondent's timing and language in announcing this
increase to the Lonoke employees clearly tended to
obstruct and inhibit the actual process of discussion of
wages thereafter in the Little Rock negotiations
Respondent's timing and language was clearly aimed at
"The findings in this sentence are based upon the credited testimony of
Youngdahl
undercutting the authority and prestige of the bargaining
representative at Little Rock and of creating the image of
the employer as the protector of the employees rather
than the Union Cf Waycross Sportswear, 170 NLRB
No 139 The timing and manner of this act changed the
course of the Union's bargaining thereafter and was one
of the important factors that ultimately led to the strike
The timing of this increase and this McKibben speech
written by President Guthunz, viewed in the light of
Respondent's massive antiunion preelection campaign,
revealed Respondent's true attitude towards the Union
and its rejection of the principle of collective bargaining,
although it had gone through the motions of bargaining
for some 4 months at some 20 meetings Upon the
preponderance of the evidence, I conclude that
Respondent's wage offer made to union representatives
and employees on July 18 and 19 was made in bad faith
and indicated that Respondent was bargaining in bad
faith The July 19 session between the parties ended with
Kullman urging the Union to come up with a
counterproposal and Stems urging Kullman to increase the
Company's offer up to what the Company's competitors
were paying McClain's notes quote Kullman as uttering
this limited concept of collective bargaining "Collective
bargaining is the proposition of each side presenting
proposals and counter-proposals " Stems said he did not
think the Union had to present a counterproposal to such
a low proposal as Respondent's and that Respondent
should pay what its competitors pay Kullman said that
`we are not going to discuss what Kellwood can or cannot
pay " Earlier Kullman had said he was not saying whether
Kellwood could or could not afford an increase At the
end, Stems said "anytime you are ready to make another
proposal we are available We are willing to meet
anytime you want to " Kullman replied `That's fine, we
are willing to meet anytime you feel we can accomplish
anything I think it should be up to you to present us
with a counter proposal at our next meeting "
For the first time a negotiation session ended without
the time for the next one being set It ended, as the record
showed, with Stems angry over Respondent's Lonoke
announcement and its effect upon his bargaining position,
and also over Respondent's low economic offer which,
after a discussion with the employees' committee, Stems
announced was unsatisfactory to the committee It ended
with both sides trying to put the responsibility for calling
the next meeting upon the other
The companywide wage increase went into effect on
August 1 on schedule, in all plants including Lonoke,
except the two being reengineered where the increase
would be reflected in the reengmeered rates Respondent's
effectuation of this increase at Lonoke in the face of the
Union's protest of Respondent's bad faith at the July 18
and 19 sessions, Respondent knowing and intending it to
undermine the Union's strength and bargaining power in
the Little Rock negotiations, was a further mdicia of
bad-faith bargaining at Little Rock
3 Negotiations continue
While each side was waiting for the other to make the
next move, the Union in its leaflets was taking note of the
strike talk in the plant and counseling patience Although
the bulletins, with one exception, did not mention
Respondent's Lonoke maneuver, they could scarcely do so
without admitting the Union's embarrassment at finding
itself in the position of bargaining for a first raise at Little
Rock when the employees at the related Lonoke plant
KELLWOOD COMPANY, OTTENHEIMER 31
already had a raise; and in the position, therefore, of
being vulnerable to the accusation that the Union was
holding up a raise to the Little Rock employees. Further,
as the record showed, at this point the Union wished to
continue trying to get an acceptable contract in Little
Rock, not to strike or process a refusal-to-bargain charge
before the Board; although it also, through its leaflets,
tried to keep its "troops" in line for a strike if one
became necessary; and although it delayed the
negotiations somewhat until Stulberg could get from the
Union's general executive board authority to strike the
plant if that became necessary, which permission was
granted in early September.
Although during several negotiation sessions in June
Siems had tried to get Respondent to agree to discuss the
decisive issues, primarily wages, in the absence of the
employees ' committee , so as to minimize the political
impact of the negotiations in the plant , Respondent's
Lonoke ploy made it quite evident that he did not
succeed , and confirmed Respondent 's testimony that there
was no such agreement . In any case , if there was any such
short-lived agreement , the Union ' s leaflets showed that the
Union abandoned it after Lonoke. On the entire record I
do not credit Youngdahl's testimony that the "agreement"
lasted into October.
During the period after July 19 when there were no
sessions , the Union made several requests of Respondent
for information, which Respondent supplied.
On August 18, 1966, Siems made a new wage proposal
to Keeline over the telephone and demanded higher
benefits in Respondent ' s hospitalization, accident and
sickness , and pension proposals . Siems ' wage proposal
included a first increase of 20 cents an hour.
On August 29, 1966, Keeline telephoned Siems and
persuaded him to meet with Kullman and Keeline at the
St. Louis airport . Siems ' assistant accompanied him. This
initiative followed immediately upon a high-level meeting
in St. Louis that day of Kellwood Company President
Wenzel, Ottenheimer Division President Guthunz,
Kullman , and Keeline . Pursuant to instructions received at
the earlier meeting from Wenzel and Guthunz,
Respondent's Kullman told Siems the negotiations were
"holding up" the wage increase to the Ottenheimer
employees, which had been received by all other Kellwood
employees, that they thought they were close to an
agreement, that Respondent wanted to put the 10-cent
increase into effect September 30, retroactive to August 1.
Siems asked why they were telling him this and answered
his own question with the observation that it was to avoid
an unfair labor practice charge. Respondent's expert
negotiator, Kullman, "just kind of grinned and shrugged
his shoulders," but did not reply. Siems counterproposed
no retroactivity but a 15 -cent raise , effective October 1.
Siems added, as though an afterthought, words to the
effect that if the Respondent did that, it would probably
raise the rest of the plants the additional 5 cents. Siems
asked what Respondent was going to do February 1.
Kullman replied that a raise for February l was " open
for discussion [that is, negotiable]," but that Respondent
was not going above a dime for the first raise. The parties
then discussed Siems' earlier suggestion that they have a
negotiating session in New York where they could meet
with Louis Stulberg, the Union's new president. At the
conclusion of the meeting, Siems told Respondent not to
put the 10-cent increase into effect, that the Union did not
agree with it.
Pursuant to arrangements made on August 29 after the
conclusion of the above session, the parties next met on
September 22 in President Wenzel's office in St. Louis,
with President Stulberg coming for the meeting. A week
later on September 29, Respondent's negotiating team,
including Wenzel and Guthunz, went to New York and
met the union team including Stulberg at the Union's
headquarters. The union representatives took part of the
Little Rock employees' negotiating committee to St. Louis
and to New York and held them in standby. Respondent
was told the employees' committee was there and that the
Union was prepared to call the committee in, if the
negotiations reached a basis for agreement. Both sides
knew that with the top men present these were the crucial
meetings of the entire negotiations. The parties seemed to
make bargaining progress at these meetings but the
employees' committee was not called in at either meeting.
4. The crucial St. Louis and New York sessions
The September 22 session in St. Louis, and "informal"
meeting , began with 17 issues remaining to be resolved
and ended on a note that some of them were disposed of
or able to be resolved if a contract eventuated. This was
achieved through give and take by both parties. The issues
disposed of or agreed as resolvable related to the
following subjects: no discrimination , trial period,
checkoff, hours and overtime, assignment to other work,
contracting out, and possibly others. The parties agreed
that cost of living adjustments, changes in legal minimum
wages, and new products were economic issues and would
be discussed with other economic issues.
The parties continued their existing disagreement on
holidays, vacations, and the timing of when a pension
program and a health and welfare program should go into
effect. The Union continued its objection to Respondent's
holiday proposal of six holidays on the ground that that
was Respondent's current practice and the Union wanted
more. The parties continued their long-existing
disagreement on timing, the Union wanting the health and
welfare program to start with the consummation of a
contract and the pension program to start the following
year, and Respondent wanting the timing just reversed.
The testimony is in conflict as to whether Respondent,
through Kullman, made a new wage proposal at this
meeting , the General Counsel and the Union contending
that it did and Respondent contending that it did not. Of
significance is that if Respondent did make a new offer,
this offer retained Respondent's position of being willing
to grant only a 10-cent wage increase the first year.
It is certain, on the record, that the Union's president,
Stulberg, made a new wage proposal at this meeting.
Stulberg suggested "10, 10, 10" but did not spell out just
when these three 10-cent increases would go into effect.
This failure is not to be condoned. Stulberg testified that
he meant 10 cents above the Federal minimum . At that
time both parties knew that the new Federal minimum
wage bill was to be signed by the President the following
day and that it raised the minimum wage from $1.25 to
$1.40 per hour on February 1, 1967, and to $1.60 on
February 1, 1968. The General Counsel and the Union
contended that Stulberg's proposal intended the first 10
cents to go into effect on the effective date of the contract,
the second on February 1, 1967 (which. on top of the new
minimum wage would bring Respondent's minimum wage
to $1.50), the third on February 1, 1968 (which on top of
the $1.60 Federal minimum wage would bring
Respondent' s minimum wage to $1.70).
Respondent contended that it understood Stulberg's
"10, 10, 10" to mean that the first 10 cents would go into
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect on the effective date, the second on the first
anniversary date of the contract, and the third on the
second anniversary date At the meeting Respondent did
not, although it had ample opportunity to, ask Stulberg
what he meant by his "10, 10, 10" proposal It seems to
me that it would have done so if it had been seriously
bargaining with an open mind towards a contract
Further, as it seems to me Kullman would have known, it
was highly improbable that the Union would make a wage
proposal which would permit any employee to receive only
the Federal minimum during two 6-month periods of the
contract In addition, Guthunz understood, as he testified,
that when Stulberg proposed a 2-year contract at the New
York meeting the following week, Stulberg was proposing
the same wages in a 2-year contract as he had earlier
proposed in a 3-year contract This would mean that
under Respondent's alleged understanding, the last
increase would fall at or only shortly before the expiration
of the contract The improbability of a union leader's
making such a proposal, or being so understood by
sophisticated company negotiators, suggests to me the bad
faith of Respondent's alleged understanding of Stulberg's
"10, 10, 10" proposal Respondent's bad faith was further
suggested by Keeline's testimony that he understood that
in a 2-year contract, Stulberg's second two raises would
come on February I each year, although in a 3-year
contract they would fall on the anniversary date of the
contract, which would be in the late summer or fall Since
Respondent's negotiating team disagreed within itself as to
the meaning of the `10, 10, 10" proposal, good-faith
bargaining required that it resolve its doubts by
ascertaining the facts, before accepting the proposal-
which it did not do Upon the preponderance of the
evidence, I hold that Respondent's alleged
misunderstanding of Stulberg's proposal was a bad-faith
misunderstanding contrived and thereafter used as a
device to foul up and obstruct the bargaining process
This was the Union's first expressed willingness to settle
for a first raise of 10 cents As has been seen above, the
Union started the negotiations with a demand for a
minimum wage of 25 cents above the legal minimum On
August 18, Siems asked for 20 cents On August 29, when
Siems suggested 15 cents for the first raise , Kullman
announced firmly that Respondent was not going above a
dime for the first raise
Throughout the negotiations, Respondent had sought a
longer term contract, such as 3 years, so as to stabhze its
employee relations Its original proposal talked of a
5-year contract The Union had sought a shorter contract,
such as 1 year or 2 years, hoping no doubt to negotiate a
stronger second contract when it became more entrenched
in the Company On September 22, the parties understood
that Stulberg's "10, 10, 10" proposal related to a 3-year
contract
During the St Louis meeting, President Stulberg placed
considerable emphasis upon the Union's need for a picket
line clause Respondent contended Stulberg said he would
not sign a contract without a picket line clause According
to the General Counsel's evidence, Stulberg stated it less
strongly Stulberg explained that the Union needed a
picket line clause so that if it had a dispute at some other
plant of Kellwood, it could picket the Ottenheimer plant
and the Ottenheimer employees would remain away from
work, thereby giving the Union this economic strength in
settling the dispute at the other plants Stulberg made it
clear that the Union intended to organize allof Kellwood"
At the September 22 meeting, there was a long
discussion about arbitration Respondent gave the
argument it had given throughout the negotiations against
arbitration, that it did not believe in giving authority to a
third party who had no responsibility At the end of this
discussion, Respondent offered to Siems a "gentlemen's
agreement" that Guthunz would agree to arbitrate any
issue except piece rates that Siems requested if Siems
would agree to arbitrate any issue Guthunz requested
Respondent testified that Guthunz and Siems shook hands
on this proposition Guthunz refused to put it in writing
This unwillingress to put into writing an agreement upon
a given issue was further proof of bad-faith bargaining
The September 29 meeting at the Union's headquarters
in New York City opened with Respondent's negotiating
attorney, Kullman, stating that there remained four major
issues wages, an escalator or cost-of-living clause,
arbitration of piece rates, and the picket line clause He
said that Respondent was willing to accept Stulberg's
proposal of "10, 10, 10," but not the other three As has
been noted, Stulberg's "10, 10, 10" offer of September 22
related to a 3-year contract After a break to give the
union representatives time to caucus, Stulberg returned
and said the Union would capitulate on the picket line
clause if Respondent would agree to a 2-year contract
instead of a 3-year contract Stulberg added that he would
accept a "bare-bones" contract for a short time-1 or 2
years, without a picket line clause, in order to get a
foothold with Kellwood in recognition of the Union's
position as bargaining agent
After another break to give the Company an
opportunity to caucus, Kullman said "you have a
contract," that the Company would take a 2-year contract
without a picket line clause Up to this point, there had
been no discussion as to what the money increases would
be under a 2-year agreement There then followed a very
confusing half hour or so when Stulberg explained what
he had meant by his "10, 10, 10" proposal in St Louis
and stated that he would expect the same raises in a
2-year contract as in a 3-year contract, namely 10 cents
to $1 35 upon the effective date of the contract, 10 cents
on top of the Federal minimum February 1, 1967, to
$1 50, 10 cents on top of the Federal minimum February
1, 1968, to $1 70 Respondent's representatives told
Stulberg what they allegedly understood his proposal in
St Louis to be, as has been set forth above, and accused
him of changing it in New York There and at the hearing
herein, Stulberg credibly denied making different wage
proposals in St Louis and New York
Of a certainty, there was no meeting of the minds in
New York, even for a split second In fact, Respondent
was bargaining in bad faith on wages and a meeting of the
minds requires good faith on both sides But assuming
Respondent was bargaining in good faith, Kullman's
acceptance of a 2-year contract without a picket line
"Stulberg s use of the picket line clause was for bargaining purposes at
Little Rock The record does not show as contended by Respondent that
the Union s objective in the Little Rock negotiations was firstly to get a
picket line clause to help it organize the rest of Kellwood Stulberg s first
objective in using the picket line clause as he did was to get the best
contract he could for the Little Rock employees The way for him to
convince employees of other Kellwood plants that they should join the
Union was to be able to show them the good wage increases and benefits
the Union achieved for the Little Rock employees To be able to do this it
was an absolute necessity that the Union achieve a contract at Little Rock
and this I find is what Stulberg was trying to do To this effect, Stulberg
credibly testified that We wanted to get an agreement with this firm We
wanted to protect these people
KELLWOOD COMPANY, OTTENHEIMER 33
clause did not include the wage increases intended by
Stulberg Assuming good faith, the parties had two
different conceptions of Stulberg's "10, 10, 10" offer and
two different conceptions as to what raises would go into
a 2-year contract as distinguished from a 3-year contract
These different ideas never got together in a meeting of
the minds
Respondent contended that Stulberg changed his `10,
10, 10" offer in New York from his offer in St Louis
Guthunz and Keeline quoted Stulberg as saying in
substance they should forget what he said in St Louis
that he was in New York now Youngdahl remembered no
such testimony On credibility grounds and on the entire
record, I do not credit it I do not believe Stulberg would
have been ^,o indiscreet or was so lacking in good
judgment as to have said that Further, I can conceive of
no good to his cause that Stulberg could have hoped to
gain from any such maneuver Stulberg wanted a contract
covering the Ottenheimer employees, which would give
hint a foothold in the Company He wanted a contract
with enough economic gain for the employees to be
acceptable to them But playing games about the amount
of raises would not be apt to lead to a contract, as a
president of an International Union would have known
If there was any trickery, the entire record, including
Respondent's antiunion preelection campaign, suggests
that it was more apt to have come from the Company
than the Union, in an effort to contrive seeming
agreement on wages it knew the Union did not intend and
which foreseeably would be repudiated by the Union, thus
casting a shadow upon the Union's bargaining and putting
itself in the clear of a bad-faith bargaining allegation
The New York meeting adjourned with the
understanding that Wenzel would take the situation as it
then stood, including the picket line issue and Stulberg's
"10, 10, 10" as he had explained it at that meeting, back
to Kellwood's executive committee and that Respondent
would be in touch with the Union in the near future 24
As the New York meeting was breaking up, Kullman
told the Union that Respondent reserved the right to put
the first 10-cent raise into effect A union attorney replied
that the Union heard him, did not agree that Respondent
should do it, asked Respondent not to do it, and Stulberg
said, "if you do we will start from there "
At their hotel, immediately after leaving this meeting at
the Union's headquarters, Wenzel told Respondent's
negotiating team that he was not going back to the
executive committee, that he already had his instructions
from them It thus appears that Wenzel indulged in a
deceit with the Union on this matter Kullman suggested
that if the Company went half way between what it
allegedly understood as the meaning of Stulberg's "10, 10,
10" offer in St Louis and its present understanding of its
meaning, this would bring Respondent's wage offer to its
outside wage offer as decided by it in May 1966 The
company team decided there and then to make that wage
offer to the Union, but did not decide when to do it No
member of the company negotiating team suggested that
they get in touch with the Union and put the new proposal
to it while they were still in New York, although it was
then only noontime Keeline's only explanation for this
failure was that Respondent preferred to make the
''Phis finding is based upon the testimony of Youngdahl although
Keehn testified Wenzel said he was going back to the executive committee
only concerning the picket line clause Youngdahl credibly testified that
repeatedly during the St Louis meeting Wenzel pleaded lack of authority
on open issues
proposal face-to-face with the Union At that time, a few
moments after the company team had left it, the union
team, including the top man, Stulberg, was presumably
available for a face-to-face confrontation with
Respondent's team, as it had been all morning The fact
that no one on Respondent's team even suggested to the
team that they try to contact the union team they had just
left and then and there try to wind up the negotiations and
reach a contract, is strong evidence to me that
Respondent was trying to avoid rather than achieve an
agreement with the Union Also, as Respondent knew,
some members of the Union's employees' committee were
in New York and available on that Friday in September
This failure was of added significance because, as the
record suggests, at the meeting Just ended the situation
was such that the parties appeared nearer to an agreement
than they had ever been Although the question of
holidays was not mentioned and the question of the timing
of the benefit and welfare funds were not mentioned and
some other issues were glossed over, Youngdahl believed
that if the parties could get together on the issues they
were discussing in New York, that they would somehow
be able to reach agreement on the other issues not then
being discussed
5 Union rejects Company's "final offer"
On October 6 in his office, President Guthunz presented
what he called the Company's "final offer" to the Union's
representatives, Siems and Youngdahl President Guthunz
testified that he read almost verbatim from a typed
document prepared in advance which is in evidence as
Respondent's Exhibit 7 I credit this testimony and accept
the exhibit as a correct statement of the presentation by
Guthunz on this occasion As stated in the exhibit,
Guthunz opened the meeting by rejecting Stulberg's
proffered 10-10-10 wage rate and a 2-year contract
Guthunz then announced he was about to make
Respondent's final offer He requested the Union to let
him know its answer to the offer by Tuesday, October 11
Guthunz continued "If it is acceptable, you may want it
placed before your committee as a group, and I shall be
glad to do so If it is not acceptable, then we are going to
ask for a prompt meeting of the negotiating committee
and will make public to this committee our proposal "
Guthunz' offer was for a 3-year contract without a
picket line clause 25 Impliedly recognizing the large
number of loose ends left dangling during the St Louis
and New York meetings, Guthunz' offer went down the
"17 points" which had been considered at the St Louis
meeting and provided for some kind of disposition of each
of them The Union was to withdraw at least 10 of its
proposals, and would agree with the Company's latest
proposal on the rest of them Respondent's new wage
proposal, decided upon in New York immediately after
the September 29 meeting and presented to Stems and
Youngdahl on October 6, was for a 10-cent raise to $1 35
effective August 1, 1966, 5 cents higher than the new
Federal minimum, to $1 45, on February 1, 1967, 5 cents
to $1 50 on the first anniversary of the contract, 5 cents
higher than the new Federal, to $165 on February 1
"Respondent contended in it, brief that on September 22 and 29 the
Union bargained to an impasse on the picket line clause That at the very
next meeting President Guthunz omitted this clause from his final offer is
proof either that there was no impasse or that Guthunz wished to assure
himself there would be no contract by omitting a clause the Union had
demanded to the point of impasse
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1968, 5 cents to $1 70 on the second anniversary date of
the contract Respondent would grant one more holiday
during the third year of the contract Guthunz said
Respondent would accept 60 days for the trial or
probationary period Guthunz adhered to Respondent s
unswerving position that the pension would go into effect
the first year of the contract and the welfare plan on the
second year
After Guthunz had finished his proposal, Siems asked a
number of questions in order to test the flexibility of the
"last offer " To Siems' question as to whether this was his
final offer, Guthunz replied that not legalistically, but
realistically, it was the Company's final offer Guthunz
added that of course the Company was willing to continue
to bargain Siems asked if Guthunz would consider a
30-month contract Guthunz replied that the Company
would consider it Siems asked if the 13 or 14
"red-circled" people could get the raises too, so that all
the employees would get the raises and none be left out
Guthunz replied in effect that that could be worked out
Guthunz' offer was for the second and third increases to
be effective on the anniversary date of the contract Siems
asked if they could be on August I each year instead of
the anniversary date Siems asked other questions At the
end, Siems told Guthunz that he would have to get in
touch with Stulberg and the full committee, but that he
did not think there would be any problem as long as
Guthunz and Siems knew where they were going to end
up
A few days later, Youngdahl overheard the Siems end
of a Siems' telephone conversation with President
Stulberg during which Guthunz' offer was discussed
Youngdahl testified that Siems indicated something about
whether or not he thought there was any additional money
available and that there were other areas of possible
flexibility Siems also said it was a large unit of employee„
and that a strike would be a very expensive proposition
At the end, Siems said he would continue bargaining and
see what more could be gotten
At a very short meeting in Guthunz' office on October
10, 1966, Siems and Youngdahl, speaking for the Union,
gave the Union's answer to Guthunz' offer of October 6
The Union rejected the offer on the ground that it was not
enough, and asked Respondent to reconsider and come up
with some more Guthunz asked for specifics as to why
the offer was unacceptable as Siems did not give any
When Guthunz asked where they went from here, Siems
replied "back to the bargaining table " At the end,
Guthunz and Siems were talking about having another
collective-bargaining meeting with the employees'
committee present
By exchange of telegrams shortly thereafter the parties
set up the next negotiating session which, after a
postponement, took place on October 24, 1966 The
Union then scheduled a meeting of employees for the
night of October 18 Respondent learned of this meeting
from union leaflets in the meantime, the Union mailed to
employees or handed out to them some four leaflets in
which, for the first time, Siems was quoted as taking the
position that the time had come to get ready for action
rather than dust words, to try to induce the Company to
sign a "proper contract" with the Union Prior to this,
union leaflets had counseled patience and restraint
6 Respondent undertakes again to undermine Union
and collective bargaining
During working hours on October 18, several hours
prior to the Union's meeting with the employees that
night, Respondent passed out to employees at their
machines a letter over the signature of President Guthunz,
addressed "to our Ottenheimer employees regarding
company proposal for a contract " A Sears Roebuck man
who reported to the "Sears Vice President in charge of
factories" helped draft it Respondent did not send a copy
of this letter to the Union, who learned about it from
employees The introductory paragraphs read as follows
Smc,e the election last January, I haven't written to
you-I haven't attempted to communicate my feelings
to you Nine months have passed Over twenty
meetings have been held Now I feel I owe it to you to
make certain that you have the facts
In a sincere and earnest effort to settle our
differences and protect you from any possibility of a
strike, I made a proposal made your top Union
officials on October 6 for a three-year contract which I
feel is generous and fair in every respect
Many of you have told me that you have never been
provided with the details of this proposal To help you
understand it, I ask you to read carefully my proposal's
highlights which are outlined below
Then followed the highlights of Guthunz' October 6 "last
offer," though his letter to employees said nothing about
its being a last offer Guthunz' set forth his wage
proposals, pension, hospital and surgical insurance offers,
sickness and accident benefits, life insurance proposal,
seventh paid holiday, a statement that a 3-year contract
would be in the best interest of the employees, and a
statement of his plans to reengineer the plant to provide
employees with "additional opportunities to earn more
during this 3-year period "
Guthunz' letter to the employees made no reference to
Respondent's position on a grievance procedure which did
not end with assured arbitration, to Respondent's position
on the nonarbitrability of piece rates, or to Respondent's
position that it would not agree in writing not to
discriminate against employees because of age Nor did he
say anything about Respondent's proposals on vacations
The last paragraph of this letter read as follows
I urge you not to permit a minority of employees to
determine your future ATTEND ALL UNION
MEETINGS-EXERT YOURSELF-SPEAK UP-
SPEAK OUT-INSIST ON YOUR DEMOCRATIC
RIGHT TO VOTE I hope you vote to accept this
offer and end all this confusion and uncertainty'
After the signature of Guthunz, the letter contained a
postscript of two paragraphs reading as follows
At a meeting already scheduled with your Union
representatives for next Monday [October 24] this
proposal will be made again Should you have any
questions about it, they can be clarified at the meeting
If this offer is accepted by Friday, October 28, your
Company will pay you substantial back wages by
making the effective date of your wage increase
retroactive to August 1, 1966
Respondent attempted to justify its issuance of this
letter on the ground that the Union had not given the
employees the details of Respondent's "final offer" and
was building up for a strike The entire bargaining history
in this situation showed that the Union was pressing for
more for the employees at Little Rock, and it was for the
Union, not the Company, to decide how best to
accomplish this It was for the Union to decide when to
tell the employees about Respondent's offer There was no
evidence that the employees' committee or any employee
KELLWOOD COMPANY, OTTENHEIMER 35
member in any way distrusted the Union or thought it
was not working in the employees' best interest, or that
the Union was not, in its view, working in the employees'
beat interest Although the Union was conducting itself
properly towards the employees and doing its best against
great odds to get them a good first contract, this letter by
Guthunz was an attempt to suggest otherwise to the
employees and an attempt to undercut the Union and the
collective-bargaining process in the minds of the
employees It suggested again that Respondent was the
protector of the employees, that the Union was controlled
by a minority, and that employees were being deprived of
the right to vote In the postscript it sought to give the
impression that the retroactivity would be the gift of the
Company rather than the fruit of collective bargaining
Respondent could have presented its offer to the
employees without attempting to undermine the Union in
the process Nothing the Union did or did not do justified
this attempt by Respondent to undermine the Union This
effort to undermine the Union and the
collective-bargaining process was further evidence that
Respondent was bargaining in bad faith with the Union
Further, by setting an implied deadline of October 28 for
the Union to accept Respondent's wage offer, Respondent
was clearly trying to establish in advance for its own
bad-faith purposes when an impasse would be reached
7 Union takes strike vote
At the Union's meeting for employees on the night of
October 18, there were about 600 to 900 present The
Union's vice president and regional director, Siems, spoke
at length about the negotiations to date and about
Respondent's unfair labor practices He protested strongly
the distribution of the above letter that afternoon and he
went down the letter and made numerous comments
concerning its contents Siems related what bargaining
there had been about the subjects mentioned in the letter
He told what the Company had granted in other plants on
the various subjects He told how the Company's wage
proposal related to the new Federal minimum wage He
said the company proposals were a mixture of the
Company's present practices plus "things which
[Respondent] had told the non-union employees they were
going to get or had already gotten in other plants " He
asked the employees if they were in favor of the
Company', proposal and they rejected it unanimously He
reviewed the increase at Lonoke particularly and referred
to the original unfair labor practice charge the Union had
filed against Respondent concerning that raise This
original charge had been filed September 1, 1966 170
NLRB No 183 Siems stated that the Company was not
bargaining in good faith with the Union He reviewed the
bargaining, and told about the negotiation sessions in St
Louis and New York when the Union had the employees'
committee present and the Union was hoping an
agreement could be reached
After Siems spoke, Attorney Youngdahl also spoke
about the negotiations and about the company letter, and
read a resolution he drafted An employee moved that it
be adopted Many people seconded it, and it was adopted
unanimously The resolution read as follows
Resolved -
That because of the unfair labor practices of
Ottenheimer Brothers, beginning in Little Rock and
continuing to this day both here and in Lonoke, we give
our committee power to call a strike against the
company until Ottenheimer lives up to its legal and
moral duties to treat us like human beings
8 Last session before the strike
The scheduled October 24 negotiation session started at
11 am and lasted no more than an hour It's
commencement was delayed somewhat while Siems talked
with the employees' committee A Federal mediator was
present but the record does not show which side, if either,
invited him
The session opened with a dispute as to which side
called the meeting
Early in the meeting, according to the credited
testimony of Youngdahl, Kullman said the Union has
indicated it wanted the Company's last proposal submitted
on the committee Siems disputed this The record fails to
show when, by whom and to whom, any such request was
made, and the record gives every evidence that the Union
was able to take care of its own relations with the
employees and the employees' committee Keelme's
testimony is credited to the effect that Kullman said the
Company's presence at the meeting was to explain its
proposal to the committee
Siems bitterly protested the Company's distribution of
its October 18 letter to employees quoted above He
accused Respondent of bad-faith bargaining in presenting
its proposal directly to the employees in this letter He
objected to Respondent's failure to send a copy of this
letter to the Union He objected to Respondent's urging
the employee, to insist on democratic procedures in the
Union, which Siems stated were completely democratic
Siems told Kullman he could say what he wanted to the
committee but that it might be a waste of time because
the Company's last proposal had been voted on twice, that
the committee knew the Company's offer and had rejected
it, and that the people had taken a strike vote He
repeated several times that the people will decide, the
people will decide
Both Youngdahl for the General Counsel and Keeline
for Respondent testified that Kullman called Siems a liar
first and that Siems answered that Kullman was a liar
They differed on the subject that produced this exchange
Youngdahl credibly testified that Kullman had incorrectly
stated Stulberg's money offer in New York, that Kullman
had said the "10, 10, 10" offer meant something different
than all understood it meant at the conclusion of the New
York meeting Presumably Kullman stated what had been
Respondent's alleged understanding of the "10, 10, 10" at
the beginning of the New York meeting, although
Kullman knew this was an erroneous understanding by the
end of the New York meeting and certainly at the
October 24 meeting when he repeated the error Siems
corrected him On the entire record, I find that it was at
this point that Kullman called Siems a liar During the
discussion, Siems asked Kullman if he was now offering
` 10, 10, 10," and Kullman replied in the negative
Kullman reviewed Respondent's offer as contained in
Guthunz' October 18 letter Kullman also accused the
Union of deceiving the employees as to what transpired at
the New York meeting, he said the Company had made a
proposal which the Union had accepted, but that the
Union had deceived the employees about it Kullman said
the Union had not told the employees that the Union
accepted all the Company's proposals except the money
proposals, that the only disagreement was over the "10,
10, 10 " Kullman said the Union is about to strike over 5
cents for two 6-month periods This statement indicated
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Kullman understood the difference between Stulberg's
"10, 10 10" as explained at the New York meeting and
Respondent's current offer Siems told Kullman there
would be no more meetings in the absence of the
employees' committee, and that they were back to their
original procedure of meeting with the committee Keeline
incredibly testified that Siems said there isn't any offer
and in the same breath, inconsistently, we are back to the
original proposal In modern parlance, the record did not
show Siems to be that inconsistent a negotiator To the
contrary, it showed him consistently pressing towards his
goal Further, neither Keeline's note, nor McClain's,
recorded Siems as saying there was no offer on the table
It was a turbulent meeting and it ended when the
company negotiating team got up and walked out As they
did so, Kullman asked "what separate[s] us9" Siems
replied, "the people and a decent offer from the
Company " Kullman replied "I only hope the 1400 people
know what separates us A nickel for two 6-month
periods
Keeline testified that just before they walked out
Kullman said that the Company's offer was on the table
and the Company was waiting for the Union to come
back with a counterproposal The meeting ended without
either party stating that the negotiations were at an
impasse and without Respondent saying anything about
putting a wage increase into effect
At this meeting, Respondent's spokesman conducted
himself more as though he was intentionally trying to
aggravate the situation and force the employees to strike
than as though he was trying to move forward to an
accord with the Union Thus, instead of moving forward
Kullman went backwards, and, using figures he knew were
erroneous, talked about the ` agreement" in New York
and called the Union's negotiator a liar Kullman also
accused the Union of deceiving employees as to what
happened in New York These abrasive tactics tended to
goad the Union into a strike
At this meeting Respondent said nothing about putting
the 10-cent raise into effect
negotiations, Mr Stulberg, International President of
the I L G W U , made the following proposal
A two year contract, effective upon signature,
with an immediate $ 10 an hour increase retroactive
to August 1 as offered by the Company,
$ 10 an hour increase on February 1, 1967 and
$ 10 an hour increase on February 1, 1968
All other terms and conditions of the bargaining
agreement to be as theretofore agreed by the parties
or proposed in writing by the Company, including the
Company's pension plan and revised health and
welfare plan
Mr Stulberg further stated that a three (3) year
contract could be had if the Company would agree to
put into it a clause giving the Union the right to put up
a picket line here at Little Rock anytime it had a
dispute with another Kellwood plant, say in West
Virginia or in Arizona This Union wanted the right to
take you away from your jobs and away from your
paychecks to put pressure upon the Company to settle a
dispute in which you had no concern
Now Mr Siems will deny to you that such a proposal
was made He denied it in the meeting this morning,
but I assure you it was made
At that time, the Company's proposal was $ 10 now
with retroactivity, $ 05 one year from the contract date
and $ 05 two years from the contract date on top of any
change in the minimum wage law We had originally
understood the Union wanted $ 10 now and $ 10 on
each anniversary date for a three (3) year contract In
New York, we said we would agree to this, however,
Mr Stulberg explained his proposal was as I have
stated above We agreed to take the Union's proposal
home and consider it Our offer, then, of October 6 was
a counter proposal to the Union's offer Side by side
then, here is where we stood at 10 00 A M this
morning
9 Unilateral wage increase of October 25
After this October 24 negotiation session, which ran
from 11 am until noon , Guthunz decided to grant the
employees a 10-cent increase immediately, and
Respondent ' s team drafted another letter to employees,
dated that day, which letter was distributed to employees
at work later that afternoon The same Sears Roebuck
man, Kullman , Guthunz , and Keeline collaborated in
drafting this letter It read as follows
October 24, 1966
TO OUR OTTENHEIMER EMPLOYEES
REGARDING COMPANY PROPOSAL FOR A
CONTRACT
This morning we met again with the Union Negotiating
Committee We met to see what proposal the Union
had to make as a counter to our offer of October 6
which it had rejected -a proposal which would have
brought your minimum rates to $170 an hour in
October, 1968 with an immediate increase of $ 10 an
hour retroactive to August 1, 1966
I think you should know before you get led out on
strike just where the Company and the Union stand In
New York City where we met in open contract
Company Union
$ 10 now retroactive to $ 10 now retroactive to
August 1 August I
$1 45 an hour minimum on $1 50 an hour on
February 1, 1967 February 1, 1967
$1 50 an hour minimum in
October, 1967
$1 65 an hour minimum on $1 70 an hour on
February 1, 1968 February 1, 1968
$1 TO an hour minimum in --
AT 11 00 AM THIS MORNING, THE UNION
SAID IT HAD NO OFFER ON THE TABLE
The Union says the Company can expect a strike We
don't doubt its ability to force one We want to let you
know that if a strike doe, take place, we are going to
operate these plants There will be jobs here for any
who want to work, and we will seek replacements to fill
vacancies Because the Union has forced this impass, we
are going to immediately put into effect the $ 10 an
KELLWOOD COMPANY, OTTENHEIMER 37
hour increase which we offered.
I hope each of you will seriously consider what you may
be about to do-bearing in mind what I have said in this
letter. I hope you will not continue to be misled by a
union, which as I see it, is using you to further its
interests throughout all of Kellwood rather than to
protect your interests here at Little Rock.
Sincerely yours,
/s/
Respondent did not send a copy of this letter to the Union
or notify it that it was going to put the 10-cent wage
increase into effect. The Union learned of the letter late
that afternoon when employees delivered it copies of the
letter. Respondent put the raise into effect on October 25.
To be noted is that there was no credible testimony,
oral or written, to the effect that at the October 24 session
the Union said it had no offer on the table. Youngdahl
credibly testified that. at no time during that meeting did
the Union say it had no offer or proposal on the table;
and Youngdahl pointed out that during the meeting Siems
asked Respondent if it would accept the Union's "10, 10,
10" proposal.
10. Decision to strike
That evening, October 24, an employees' meeting was
held, attended by some 200 to 300 employees. it had been
scheduled as a meeting for the 20 member employee
negotiating committee , but was opened up to others after
distribution of the Guthunz letter that afternoon. I find
the large attendance resulted from that letter . Siems and
Youngdahl told the employees their version of the
negotiating session that morning and spoke of Guthunz'
letter just distributed announcing the wage increase. Siems
and Youngdahl told the employees the Company was not
bargaining in good faith, particularly concerning the wage
increase . Siems and Youngdahl told the employees that if
they decided to strike, the Union was behind them. Siems
showed the employees a check from the Union for
$100,000 and told them it would be deposited the
following day to start a strike fund. There was a clear
consensus to strike beginning the following morning. The
meeting ended with a discussion about the mechanics of
the strike, who would be picket captains, etc.
The strike began October 25, 1966, and lasted until
November 22, 1967. A report on organizational drives
dated January 13, 1967, to a meeting of the Union's
general executive board , January 30-February 3, 1967,
read in part as follows:
Since October 26 we have been chiefly concerned with
the strike at the Kellwood plant in Little Rock,
Arkansas . The ranks of the strikers has remained solid
with only 10 having returned to work since the
beginning in spite of injunctions , arrests and every kind
of harassment brought against the strikers by the
Company. This is the kind of determination that we
rarely see.
The minutes of this meeting recorded that Vice President
Siems stated that the morale of the strikers is excellent. A
report on organizational drives to a meeting of the
Union ' s general executive board , July 10- 13, 1967,
recorded that:
The Kellwood strike in Little Rock , Arkansas, goes into
its ninth month with over 600 active strikers, whose
morale is as high as the day the strike was called. Their
ranks are firm with only 12 of the original strikers
having returned to work during this entire period.
At the close of the October 24 negotiating session
between the Union and Respondent, no arrangements
were made for a future meeting. At 8:08 p.m. that
evening, Youngdahl gave Western Union a night letter
addressed to the Company, reading as follows:
As attorney for International Ladies Garment Workers
Union, hereby protest unilateral wage increase
announced by letter of October 24 without notice to
Union. Because of this and continuing violations by
Ottenheimer of legal obligation to bargain, Union calls
strike beginning October 25. The negotiations are not at
an impasse, and we are ready to meet and bargain at
any time.
At about 1 p.m. October 25, Western Union reported to
the Union that the night letter was "delivered 12:17 P. in. by
phone because picket line and wouldn't answer phones."
There was no proof that Respondent ever actually
received this night letter and in any case Respondent never
answered it.
G. Conclusions Concerning Respondent 's Bad-Faith
Bargaining up to the Strike
1. Respondent ' s overall design was to defeat all unions
throughout Kellwood . Respondent ' s bargaining at
Ottenheimer was not such as proved that Respondent had
abandoned . or was making an exception to its overall
design and had undertaken , with an open mind and a
sincere desire to reach an agreement , to bargain in good
faith with the Union.
2. There was a "telling coincidence" between
Respondent ' s prenegotiation policies, utterances,
predictions , and statements of intentions, and
Respondent's subsequent actions, as revealed in this
record . Thus Respondent ' s policy was to grant only
minimum benefits and to keep the Union out; in the
negotiations it granted only minimum benefits and it
eliminated the Union by replacing the strikers and then
refusing to recognize the Union further . Thus, Respondent
earlier indicated to the employees that it had no intent to
sign a contract with the Union, and it never did . It earlier
told the employees that Respondent did not have to and
would not agree to the Union ' s demands and impliedly
told them it would not reach an agreement with the Union
and that a strike was inevitable; Respondent did not reach
an agreement with the Union and a strike occurred.
Respondent earlier sought to convince employees that the
inevitable result of a strike would be a loss of their jobs
by the employees; during the strike Respondent replaced
most of the strikers . Cf. N.L.R.B. v. May Aluminum,
Inc., 398 F .2d 47 (C.A. 5, 1968 ), enfg . 160 NLRB 575.
3. In its preelection campaign in late 1965 and early
1966, Respondent asked the employees how the Union
was going to make the Company "do anything if it
doesn ' t intend to pull a strike ." After it was all over, so to
speak , on December 22, 1967, Guthunz gloated to
employees that although he had kept a promise made a
year before , this was "more than I can say for another
group" - an obvious reference to the Union ' s failure to
obtain a satisfactory contact . These Company 's statements
disclosed Respondent ' s closed mind towards the Union
and the practice and procedure of collective bargaining.
Thus , Respondent 's state of mind from the beginning was
that it would yield through negotiations not enough to
satisfy the Union and employees and would push them to
use their ultimate weapon . Later, the Union having
achieved no contract (through Respondent's
intransigence ), Guthunz gloated over the Union's
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ineffectiveness and impotency
4 On the preponderance of the evidence in this entire
record, I find it impossible to reconcile Respondent',
vicious antiunion campaign with a simultaneous or later
sincere desire to reach an accord with the Union I find it
impossible to believe on this record that the Company did
not bargain with the intent of bringing about the result
that occurred
5 The Company's proposals and counterproposals on
noneconomic subjects could have been made just as they
were, and the negotiations gone just as they did, with the
Company having no intent to explore in good faith the
possibility of getting together with the Union on money
matters and no intent to let the situation get to the point
of a complete meeting of the minds on the major subject
of money Respondent's bargaining concerning wages and
rates, viewed against and in the light of Respondent's
preelection massive antiunion campaign and its corporate
policies concerning unions and the negotiations, was the
touchstone in this situation and proved that Respondent
was bargaining in bad faith and had no intent to reach a
final agreement with the Union
6 As has been found above, the timing and manner of
announcement of Respondent's wage increase to the
Lonoke employees on July 18, 1966, was aimed in part at
undercutting the authority and prestige of the Union in its
representation of the Little Rock employees in the Little
Rock negotiations, and revealed Respondent's rejection of
the principle of collective bargaining and proved that
Respondent was bargaining in bad faith at Little Rock
7 Once the 1966 increase of 10 cents had been set by
the division presidents and Guthunz in early July 1966 for
all of Kellwood, Respondent was never willing to change
this amount It had a fixed purpose to carry out the
corporate decision and not to bargain concerning it Its
mind became hermetically sealed on this amount when it
was set for all of Kellwood and thereafter it never
bargained with the Union for the Little Rock employees
with an open mind concerning the initial increase
Bargaining in good faith requires bargaining on every
issue, especially with a newly certified union on a first
wage increase Respondent offered this increase to the
Union on July 18 and 19 On August 18 Siems told
Keeline he needed a first raise of 20 cents, and on August
29, Siems asked for a first raise of 15 cents On the latter
date, Kullman announced that Respondent would not go
above a dime for the first raise (although the amount of
the second raise was negotiable) Respondent never did
President Guthunz admitted that even if the Union had
demonstrated that Respondent could have increased the
amount of the first raise, he would not have raised it
Respondent never offered the Union any reasons or any
reasoned argument for this and its earlier lower wage
offer When on July 19 the question arose, Kullman told
Siems that Respondent was not claiming inability to pay
more, that "we are not going to discuss what Kellwood
can or cannot pay " Keelme quoted Kullman as saying at
one session, "I am just telling you that this is all we're
going to offer " At the St Louis meeting, President
Wenzel told the Union, according to the credited
testimony of Youngdahl, that he would have to check with
the executive committee of Kellwood before considering
higher wages Negotiating with an hermetically sealed
mind on this initial wage increase, and being willing to
bargain only on its own terms, was further evidence that
Respondent was bargaining in bad faith
8 Once the 10-cent increase had been put into effect
Keliwoodwide without credit to any union, Respondent's
prime motivation thereafter was to put the same 10-cent
raise into effect at Little Rock without credit to the
Union, rather than to negotiate a first raise with the
Union Thus, upon the high-up decision of Wenzel and
Guthunz, on August 29 Kullman told Siems the
negotiations were "holding up" the raise to the
Ottenheimer employees which had been received by all
other Kellwood employees and that Respondent wanted to
put it into effect September 30 retroactive to August 1 A
month later in New York, instead of trying to present its
new wage offer to the Union (the one it presented October
6), Respondent through Kullman told the Union it
reserved the right to put the first 10 cents into effect On
the same occasion, Respondent used its alleged
misunderstanding of Stulberg's wage proposal to foul up
and obstruct the bargaining process On October 18,
Guthunz wrote the employees that Respondent would put
the 10-cent raise into effect retroactive to August 1, if the
Union accepted Respondent's entire October 6 offer by
October 28 In this letter, Respondent undertook to
undermine the Union and to establish for its own
bad-faith purposes when an impasse would occur Having
in this letter impliedly given the Union until October 28 to
accept its offer before an impasse would possibly arise,
Respondent then reneged on its implied offer and put the
raise into effect October 25 Finally, after negotiating
abrasively that day, on October 24 Respondent wrote the
employees that the Company was going to put the
10-cent-an-hour increase into effect immediately, and it
did so without notifying the Union of its intent or its
action This had the foreseeable and intended result of
undermining the Union in its efforts to get an acceptable
contract for the employees without a strike
9 This unilateral wage increase was announced in late
afternoon prior to the evening meeting of employees on
October 24 when the final decision to strike was made
The employees' committee had had authority from the
employees since October 18 to call a strike but had not
called it The committee's evening meeting, October 24,
expanded into an employees' meeting of several hundred
after the Company's unilateral act It must be concluded
on this record that Respondent's unilateral act contributed
to the swelling of this meeting and to the final decision to
strike reached at this meeting
10 As is seen below in this Decision, the Union had
been building up to a strike for some weeks prior to
October 24, which Guthunz knew from reading the
Union's leaflets which reached his desk The record
proved that Guthunz kept himself closely informed
concerning the negotiations and the Union's activities
Guthunz knew, and his skilled labor practitioner,
Kullman, knew, that committing this unilateral act rather
than continuing to bargain with the Union would be the
final act that would force the employees and the Union to
undertake the strike They also knew Siems would react
strongly against this announcement by letter, for he had
so reacted only that morning against Guthunz' October 18
letter It cannot be known for sure whether the employees
would have decided to strike on the evening of October 24
but for Respondent's unilateral act and its October 24
letter, because the unilateral act and the letter mtervened
prior to the meeting It follows, and I conclude, that by
announcing as it did the 10-cent wage increase on October
24 and putting it into effect immediately, unilaterally
without informing the Union, Respondent intentionally
forced the Union and employees to strike, intentionally
"place[d] the odium of rupture" upon the Union See
N L R B v Remington Rand Inc 94 F 2d 862, 872
KELLWOOD COMPANY, OTTENHEIMER 39
(c A 2) cert denied 304 U S 576 NLRB v Reed &
Prince Manufacturing Company 118 F 2d 874, 883 (C A
1)
11 Respondent offered no credible reason or
explanation for its unilateral action or its October 24
letter Guthunz' testimony was simply that he felt the
negotiations were at an impasse "and that we should put
in the increase"-even though as his testimony revealed he
knew it would "aggravate" the Union The preponderance
of the evidence, viewed in the light of Respondent's
preelection antiunion campaign, and the hostility shown
therein leads to the conclusion, which I reach, that
Respondent's purpose was to force the strike, to weaken
the Union's position as bargaining agent by showing
employees they didn't need the Union to get a raise, to
induce employees not to join the strike, to increase
Respondent's capacity to attract strike replacements, and
ultimately to replace strikers with nonunion replacements
12 My final conclusions are that after the 1966 wage
increase was set at 10 cents for all of Kellwood at the
division president's meeting in early July, Respondent
went beyond the bounds of hard bargaining and never
thereafter bargained in good faith with the Union, as
shown by its July 18 announcement at Lonoke, its
negotiating thereafter with an hermetically sealed mind
and only on its own terms as to a first raise, its
motivation and effort thereafter to put the raise into effect
rather than negotiate it with the Union, its final unilateral
act of granting the raise to force the strike, to weaken the
Union as bargaining agent, to induce employees not to
join the strike, to increase Respondent's capacity to
attract strike replacements, and to replace strikers with
nonunion replacements Upon these facts and conclusions,
and upon the preponderance of the evidence in the entire
record, I conclude that Respondent never intended to
reach a contract with the Union, that Respondent has
refused to bargain in good faith with the Union, that no
good-faith impasse 26 was ever reached, that Respondent
has violated Section 8(a)(5) of the Act, and that all of this
was an important cause of the beginning and continuation
of the strike
13 In addition to the above, Respondent's proposal
limiting the right to strike while it refused to grant the
Union arbitration was additional proof that Respondent's
conduct fell short of meeting its statutory obligation The
Supreme Court has said, "plainly the agreement to
arbitrate grievance disputes is the quid pro quo for an
agreement not to strike " Textile Workers Union of
America AFL-CIO v Lincoln Mills of Alabama 353
U S 448, 455 See also M System, Inc Mobile Home
Division Mid-States Corporation 129 NLRB 527, 550,
United Steelworkers of America v Warrior & Gulf
Navigation Co 363 U S 574, 578, Winston-Salem
Printing Pressmen and Assistants Union No 318 v
Piedmont Publishing Co 393 F 2d 221 (C A 4) 27 Here
throughout the negotiations Respondent argued against
and refused to include arbitration of grievances as a final
step in the grievance procedure Guthunz was willing to
enter into an oral agreement with Siems, man to man, to
arbitrate any grievance but wage rate grievances providing
Siems would agree to arbitrate any item requested by
Guthunz This was not, of course, a written arbitration
clause, but an oral arrangement between two men subject
to their feelings of good faith in one another It was
referred to in the evidence as arbitration by "mutual
consent " The fact that Guthunz was unwilling to put even
this "limited arbitration" into writing showed that
Respondent was unwilling to meet his statutory obligation
Cf H J Heinz Company v N L R B 311 U S 514,
affg 110 F 2d 843 (C A 6) Particularly was
Respondent's unwillingness to put it in writing a violation
of Section 8(a)(5) because on July 28, 1966, Kullman had
written the Union (with reference to another issue) that
"the Company's contention is that the contract should
cover all matters subject to bargaining" While unwilling
to enter into a binding written arbitration clause
Respondent sought throughout the negotiations to limit
the Union's statutory right to strike to such an extent that
its effectiveness as an economic weapon was lost Thus
Respondent's final proposal on Strikes and Lockouts
presented in St Louis on September 22, 1966, provided in
its final section
In the event a grievance should be filed by either party
which the other party asserts is not subject to
consideration under the grievance procedure, the refusal
to arbitrate such grievance shall not be considered as
permitting action in accordance with the provisions of
this Section 10 [as permitting a strike] unless and until
a court of competent jurisdiction has determined that
the particular grievance is a grievance within the
meaning of Article XXVIII hereof, and following such
determination there has been a refusal to arbitrate
At that time, and for most of the negotiations, in the
several proposals upon grievance procedure, "grievance"
was defined to mean "any dispute, complaint, or
controversy, as to the interpretation or compliance with
this Agreement," or "any dispute, complaint, controversy,
or claim over the discipline or discharge of employees and
as to the interpretation or compliance with the specific
provisions of this Agreement " Thus, despite these simple
definitions, not difficult of interpretation, Respondent
could forestall a threatened strike over a grievance by
merely asserting that the grievance was "not subject to
consideration under the grievance procedure " This mere
assertion would hold up the strike pending a court
adjudication with all of its attendant loss of time and
consequent impotency of the Union in the eyes of its
members Further, although this last company proposal
allowed the Union to strike over unsettled grievances, it
provided that during such a strike the contract would be
suspended
Thus, Respondent would give the Union neither binding
written arbitration nor an effective right to strike Under
all the circumstances of this case, this was further proof
that Respondent was not bargaining in good faith with the
Union See Reel, The Duty to Bargain and the Right to
Strike 29 Geo Wash L Rev, No 2, Dec 1962,
National Labor Relations Board Symposium Issue
H Respondents Preelection Campaign Was in
Violation of the Act
The settlement agreement in Case 26-CA-2313 was
executed by Respondent and the Union on June 14, 1966,
"Cf N L R B v Herman Sausage Co Inc 275 F 2d 229 (C A 5)
N L R B v Andrew Jergens Co 175 F 2d 130 136 (C A 9) cert denied
338 U S 827 NLRB v Reed & Prince Mfg Co 205 F 2d 131 136
(C A 1) cert denied 346 U S 887 Armstrong Cork Co v N L R B 211
F 2d 843 847 (C A 5)
"It is clear that the policy is generally accepted by the parties to
collective bargaining relationships As of August 1965 Ninety six percent
of contracts provide for arbitration of grievances not settled by the parties
themselves Bureau of National Affairs Collective Bargaining
Negotiations and Contracts 51 6
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was approved by the Regional Director on behalf of
the Board's General Counsel, on June 16, 1966 The
settlement agreement provided, inter alia by reference to
a notice Respondent was to comply with, that Respondent
would not
In any other manner interfere with or restrain our
employees in the exercise of their rights to
self-organization to bargain collectively through
representatives of their own choosing
Respondent violated this agreement by bargaining in bad
faith, by unilateral activity, and in the other ways found
above to have indicated bad faith Respondent having
violated the settlement agreement and committed unfair
labor practices thereafter, as found above, I find and hold
that the Regional Director properly vacated and set aside
the settlement agreement insofar as it related to Section
8(a)(1) conduct It therefore becomes incumbent upon me
to pass upon whether that conduct violated Section 8(a)(1)
of the Act Upon consideration I find that it did
I Respondent's repeated efforts to frighten employees
away from the Union and to defeat the Union at the
election, by talk of a strike when there was no serious
consideration among employees or union organizers of
striking the plant, was a violation of Section 8(a)(1) of the
Act Hoffman-Taff Inc 135 NLRB 1319, 1321, Orkin
Exterminating Company of Florida Inc 152 NLRB 83,
enfd 379 F 2d 972 (C A 5)
2 Respondent's efforts to convince employees of the
futility of their joining, supporting, and voting for the
Union were violations of Section 8(a)(1)
3 Respondent's repeated threats that Union and strikes
go together, that a strike was inevitable if the Union won
the election, and that in a strike the employees might lobe
their jobs were implied threats of economic loss to
employees in further violation of Section 8(a)(1)
4 By denigrating the Union with such statements as
"the union is nothing but a parasite " and, "like a leach,
they want to hang on and take part of your earnings with
their dues, fees, and assessments," and, "this union mess,"
and "everybody loses in a strike except the union The
union loses nothing because the union has nothing at
stake," and that the Union was trying so hard to get into
Ottenheimer's "because the union is after your money,"
Respondent farther violated the employees' Section 7
rights and Section 8(a)(1)
5 By repeatedly telling employees that Respondent did
not have to reach an agreement with the Union, that it
could say no to union demands, that Respondent is not
going to sign a contract which is not in the best interest of
the employees and the Company (it being implied that
Respondent, not Respondent and the Union, would decide
what was in the best interest), that the only thing the
Union could do would to be call a strike, with dire
consequences to the employees, Respondent impliedly
threatened employees that it would not negotiate and sign
a contract with the Union, thus repudiating the practice
and procedure of collective bargaining in further violation
of Section 8(a)(1)
6 The interrogations concerning and interference with
employees' Section 7 rights by minor supervisors, the
permitting of antiunion petitions on the work line during
worktime, and the passing of antiunion leaflets on the
work line during working time by one supervisor were
further violations of Section 8(a)(1) by Respondent
7 Under all the circumstances of this proceeding, I
hold that by the showing of the film "And Women Must
Weep" following the introduction by which Respondent
presented it, Respondent further violated Section 8(a)(1)
of Act
I Strike Was an Unfair Labor Practice Strike
Although an important cause of the strike was the
Union's desire on behalf of the employees to try to wrest
greater economic concessions from Respondent, the record
proves overwhelmingly that Respondent's unfair labor
practices were also an important contributory cause of the
beginning of and the prolongation of the strike
As has been found above, during the preelection
campaign there was no serious talk among employees or
union organizers of striking the plant, despite
Respondent's massive antiunion campaign Guthunz later
told the employees, mostly replacements, that "the Union
told our employees there would be no strike, no trouble,
and that there was nothing for them to worry about"
This was the Union's position despite Respondent's hostile
campaign against it, because the Union desired a contract,
not a strike Nevertheless, the Union never forgot, as
Unions do not, Respondent's viciou, campaign, which
unquestionably was a contributory cause of the strike
Particularly in this situation, where the Union's principal
organizer and principal negotiator, Siems, was also vice
president of the International Union, would the Union not
forget all that had gone before
During the negotiations prior to July 18, the Union's
bargaining and its leaflet, to employees show that it was
concentrating upon trying to get a collective agreement
with Respondent that would improve the wages and
working conditions of the employees, and was not
promoting a strike
As has been found above, Respondent's July 18 effort
at Lonoke to undercut the Union in Little Rock and to
obstruct the process of bargaining in Little Rock was an
important cause of the strike This act by Respondent had
a profound effect upon Siems' assessment of what
Respondent was up to and Siem,' assessment had an
important effect upon the employees' committee and the
employees Siems' immediate reaction was "foul play"
and he never thereafter forgot it or let the employees
forget it, although the Union tried to bargain with
Respondent for 3 more months before permitting strike
talk to gain the upper hand among employees Siems
referred to this Lonoke episode in his talk to the
employees prior to the strike vote on October 18, and it
was referred to in the strike resolution Of note in this
connection is an alleged quotation from an "old timer"
which appeared in a union newsletter dated July 27, 1966
Well, at least they've offered us something I've been
working there (Ottenheimer's) almost 18 years, and this
is the first time I've ever known them to say they'll
guarantee to pay us operators one penny more than the
law made them pay 10 cents an hour isn't enough, but
at least its more than they've ever done before
To this was added the following
(NOTE YES, 10 CENTS AN HOUR IS MORE THAN THEY'VE
EVER OFFERED BEFORE' BUT, AS YOU KNOW, IT'S NO MORE
THAN THEY VE ANNOUNCED THEY'RE GOING TO GIVE THE
WORKERS AT THE LO',OKE SHOP- WHERE THEY'RE TRYING
TO KEEP THEM FROM JOINING WITH YOU IN THE UNION )
Respondent's unfair bargaining concerning wages,
generally and specifically as found above, was an
important cause of the strike, as was its general lack of
good-faith bargaining As a result of Respondent's
hostility shown in its preelection campaign, Siems and
Youngdahl were ever alert to the possibility that
KELLWOOD COMPANY, OTTENHEIMER 41
Respondent would not bargain in good faith, and Stems'
spontaneous reaction to Respondent's July 18
announcement at Lonoke showed what a deep impression
it made on him
Respondent's recurrent efforts to undermine the
Union's bargaining position, shown throughout this
Decision, were important causes of the strike, including
not only the Gunthuz-McKibben speech of July 18, but
also Guthunz' letters of October 18 and 24 to employees,
the unilateral wage increase of October 25, and
Respondent's bargaining tactics at the September 29 and
October 24 meetings Of note in this connection was
President Stulberg's remark at the end of the New York
session on September 29 that if Respondent put the first
10-cent raise into effect, "we will start from there"
Unilateral activity had been outlawed for many years, as
both sides well knew
Union leaflets prior to the strike show that
Respondent's unfair labor practices were an important
cause of the strike
A leaflet of September 2 said
No Strike Today just a demonstration Today there
is only a before work demonstration by members of
your Union Organizing and Negotiating Committee
Today-you see us demonstrating
To protect the Unfair Labor Practices the Company
continues to engage in
A union action bulletin of October 19, 1966, referring
to the strike vote meeting the night before, stated
A great throng of Ottenheimer employees overflowed a
big meeting hall and adjoining rooms last night to
register a resounding protest against the unfair labor
practices of the Kellwood (Ottenheimer) Company and
demand that the Company agree to better Union
Contract terms or face a strike by its employees
A union action bulletin of October 21 referred to
crowds of union committee members again overflowing
meeting rooms volunteering for strike service as plans
moved rapidly ahead for a strike at any time The bulletin
said it is clear that the Ottenheimer employees are saying
We've had enough'-of Unfair Labor Practices of the
Ottenheimer Company which violate U S Law
A union strike report of October 28 referred to the
Union's campaign underway to let the country know "the
sad facts of the Company's unfair labor practices, low
wages, bad treatment and the shocking affronts to human
dignity which brought about the strike here "
Another union strike report, dated November 4, 1966,
stated that "it is only a matter of time until the Company
must decide to quit committing unfair labor practices and
come to proper terms with you and your Union " It also
referred to handbills being issued, to tell the country "the
facts about the unfair labor practices, low wages and bad
treatment that made it necessary for Kellwood workers to
come out on strike in Little Rock "
A strike report of November 10 stated that regular
strike victory meetings would be held twice a week "until
the Company comes to its senses, quits committing unfair
labor practices and settles the strike "
The picket signs carried by the pickets from the
beginning of the strike also referred to the Company's
unfair labor practices Until March or April 1967 the
picket signs read, "Ottenheimer employees on strike
against unfair labor practices," followed by the initials of
the Union, some additional signs had other legends,
referring to being on strike against "years of bad
treatment" and for "human dignity " The only legend on
the picket signs carried from April 1, 1967, to the end of
the strike was, "Kellwood employees on strike against
unfair labor practices" followed by the initials of the
Union
Although Stems and Youngdahl were unable to spell
out to employees precisely what all the unfair labor
practices consisted of, they sensed that unfair labor
practices were being committed by Respondent and
conveyed this conviction to the employees prior to the
strike vote of October 18 and the consensus to strike on
October 24
Although the preelection unfair labor practices may at
first blush seem remote as a cause for the strike, the
Board's experience shows that unions and employees do
not treat lightly or easily forget or readily forgive such a
hostile massive antiunion campaign as the employees were
subjected to in this instance The strike resolution passed
on October 18 specifically referred to the preelection
unfair labor practices in the words
unfair labor practices beginning in Little Rock
Since one of the reasons for the strike was to protest
Respondent's unfair labor practices at Little Rock before
the election and during the negotiations, and at Lonoke,
the strike was an unfair labor practice strike from its
inception even though other reasons were also present
NLRB v West Coast Casket Company Inc 205 F 2d
902, 907 (C A 9) See also Fitzgerald Mills Corp v
NLRB 313 F 2d 260, 269 (C A 2), and cases cited,
NLRB v Southland Cork Co , 342 F 2d 702, 707-708
(C A 4), N L R B v Stilley Plywood Company Inc 199
F 2d 319, 320-321 (C A 4), cert denied 344 U S 933,
The Little Rock Downtowner Inc 145 NLRB 1286,
1312, enfd 341 F 2d 1020 (C A 8) It is well established
that Respondent is under a legal duty to reinstate unfair
labor practice strikers upon their unconditional request,
even if to do so requires the discharge of striker
replacements, Mastro Plastics Corp v N L R B 350
US 270, 278
J Striker Replacement Issue Unilateral Wage
Increase of February 1 1967 and Vote of Strikers to
Continue Strike
On November 30, 1966, Kullman sent Youngdahl a
telegram reading as follows
On behalf of Kellwood Corporation this is to inform
you as attorrey and bargaining representative for the
ILGWU that in any future bargaining negotiations
Kellwood will have to give consideration to the changed
conditions resulting from the strike called by the
ILGWU Kellwood's contract proposals were made in
anticipation of reaching a settlement with the Union
without having to undergo the expense and disruption of
its business resulting from a strike In view of the fact
that a strike has occurred Kellwood will want to give
reconsideration to certain of its proposals and in
particular will have to reconsider the seniority
provisions of any bargaining agreement to be reached in
the future so as to provide adequate protection for the
replacements which have been hired for striking
employees Kellwood reserves the right in any future
bargaining negotiations to submit such new or changed
proposals as it deems advisable
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the first time in the negotiations this telegram raised
the striker replacement issue On December 2, Guthunz
had copies of this telegram posted on the company
bulletin boards He testified he did so so that the
replacements would know the Company would protect
them
By letter dated December 13, 1966, the Union made the
following requests
This is to request a current list of your employees, their
job classifications and rates of pay, including
particularly any pay increases or benefit alterations
since the last information of this kind which you
supplied to us, and with particular reference to the
"replacement," to which Mr Kullman referred in his
telegram of November 30, 1966
In answer Kullman wrote Youngdahl on December 21,
1966
The only changes in wage rates which have been made
involved those arising out of putting into effect the 10
cents an hour increase which was announced on October
24, 1966 We cannot see where your request for a list of
current employees has any relevancy to any bargaining
issue and hence decline to furnish the same On the
contrary, it would appear, obviously, that such a list is
only sought for the purpose of furthering the strike
activities of the ILGW Union
On January 20, 1967, Kullman wrote Youngdahl as
follows
If you will recall, Ottenheimer has heretofore
proposed a minimum guaranteed rate of $1 45 an hour
effective as of February 1, 1967, and has also proposed
increases in the rate ranges of various hourly employees
with the exception of certain employees whose
individual rates were already in excess of the maximum
of the rate range of the ,r classification
I am told that at the last meeting which Mr
Guthunz and Mr Keeline had with you and Mr Stems,
the latter wanted to know whether or not the February
increase could not be effective on an across the board
basis to all hourly paid employees and Mr Guthunz
said that this would present no problem
At the bargaining meeting presently scheduled for
next Tuesday, the Company will propose that these rate
increases be put into effect as of February 1, 1967 in
accordance with its prior offer to the Union
I am writing you this letter so that the Union may
be giving consideration to the matter prior to the
meeting
The next negotiation session, the one referred to in
Kullman's above letter, took place on January 24, 1967
Youngdahl credibly testified that he had been in regular
touch with the Federal mediator in Little Rock, and also
had talked with the Federal mediator in St Louis He
also talked with the head of the Mediation Service of
Arkansas
The January 24, 1967, session was held in the
conference room of the Federal Mediation and
Conciliation Service in Little Rock, with two mediators
present, one from Little Rock and one from St Louis
The meeting opened with a mediator asking the Company
to state its position about the current issues in the
negotiations Kullman said any such statement would be
premature because the parties disagreed on what had
previously been agreed upon Kullman said there were two
additional problems Firstly, Kullman said that there were
1,250 in the bargaining unit at the beginning of the strike,
and that 900 had been replaced He said that a procedure
would have to be worked out for filling the300-350
vacancies Secondly, according to the testimony of both
Youngdahl and Keeline, Kullman said that in earlier
negotiations the Company had proposed a raise on
February 1, 1967, to $1 45 an hour and that on that date
the Company was going to give every employee a
guaranteed 10-cent-an-hour raise The Union said 5 cents
above the Federal minimum for two 6-month periods was
not enough
During the meeting the Union asked Respondent not to
put this wage increase into effect until there was an
agreement with the Union covering it Youngdahl
repeated that he wanted it specifically understood that the
Union was asking Kullman not to put the increase into
effect "until we had an agreement "
A mediator and Kullman went down the list of 17
issues remaining as of the beginning of the St Loui,,
meeting on September 22, 1966 This discussion brought
out the lack of agreement on numerous issues that had
been passed over or glossed over at the New York
meeting on September 29, and that Respondent wished to
make changes in some of the clauses previously tentatively
agreed upon Still in dispute was whether Respondent
would agree not to discriminate against employees because
of "age " Respondent had long taken the position that it
did not intend to discriminate but would not put it in
writing Although after discussions for months the parties
had in St Louis finally agreed on 60 clays for the
probationary period for new employees, Kullman said the
Company now wished to go back from 60 to 90 days
Kullman offered no credible substantive reason for this
backwards move, and I find it was to obstruct the
negotiations The questior as to whether the Union could
challenge present piece rates or only future ones was still
in dispute Kullman said the agreed-upon language was
insufficient to cover the Company's engineering program
which was about to start and he wanted to add
appropriate language Kullman wanted also to make some
language changes in the clause relating to "assignment to
other work" and in several other clauses, including
arbitration Respondent had always refused arbitration as
a final step in the grievance procedure but had verbally
agreed to arbitrate by mutual agreement Kullman now
said that Respondent wanted a method for the selection of
the arbitrator and wanted to spell out limitations on the
arbitrator's authority Kullman said the gentlemen's
agreement between Guthunz and Siem5 to arbitrate items
other than wage rates was at an end, that it had been
"reached on certain assumptions which, so far as the
company is concerned, no longer have any validity," and
that any agreement on arbitration would have to be
entirely in writing
Youngdahl then stated the Union's position concerning
the 17 issues Youngdahl rejected the changes suggested
by Kullman in a number of them, on the ground that the
changes were more restrictive then the prior tentative
agreements on those item,
On wages Youngdahl told Kullman the Union would
settle for the cheapest wages in Arkansas in any ILGWU
shop performing comparable work The Union identified
"Bobbie Brooks" and "Jonathan Logan" as being such
shops, and, after discussion, agreed to supply the
Company with copies of the wage structures at these two
companies
Several times during the meeting, the Union requested
of Respondent the information first requested in
Youngdahl's letter to Kullman on December 13, 1966, and
particularly the names of the replacements The Union
KELLWOOD COMPANY, OTTENHEIMER
said it needed the information in order to evaluate its
positions on the replacements and that the Union needed
to know the number and classifications of employees who
had been replaced. Both Keeline and Respondent's
personnel manager , McClain, testified that Kullman
replied that Respondent refused the names and addresses
because they were not relevant to any bargaining purpose
or need. Kullman said nothing about refusing the
information because of any violence on the picket line or
violence connected with the strike.
The day after this meeting, on January 25, 1967,
Youngdahl wrote Kullman his resume of the meeting. In
this letter, Youngdahl said concerning Respondent's
proposed February 1 wage increase:
. we categorically refuse to agree to such unilateral
action, and ask you to withhold any wage increases in
excess of the legal minimums until we have come to
agreement.
In this letter, Youngdahl told Kullman that "we are
available for negotiations at your convenience."
By letter dated January 25, 1967, from Guthunz to all
nonstriking and striking Ottenheimer employees,
Respondent announced it was placing into effect a 10-cent
wage increase on February 1, 1967. Guthunz said:
. . . at the present time, we have in excess of 900
employees at work in the plant exclusive of office,
clerical and supervisory employees. On the day of the
strike, we had approximately 1250 employees in similar
job classifications. We are continuing with our
replacement efforts so as to bring our work force up to
its full quota within a relatively short period of time.
There are accordingly approximately 350 vacancies
available as of today for strikers or new hires. At the
same time, we advised the Union that if the strike were
settled, some agreement would have to be reached with
respect to the taking back of striking employees,
inasmuch as the Company would not, of course, let its
present employees go simply to make places available
for strikers.
By letter dated January 26, 1967, answering
Youngdahl's letter of January 25, Kullman stated, among
other things:
It is the company's position that the contract should
contain the entire agreement between the parties and
nothing should be left to any unsigned side letters which
for all the company knows may never have been
communicated by Mr. Siems or you to your bargaining
group.
On February 1, 1967, Respondent placed into effect the
10-cent wage increase for all but a handful of employees,
and on or about the same date placed a 10-cent wage
increase into effect Kellwoodwide at all other Kellwood
plants. Five cents of this raise was required to bring
Respondent's minimum up to the new Federal minimum.
The additional 5 cents was voluntarily granted by the
Company.
On February 3, 1967, Kullman supplied the Union with
a list of the rate ranges of various job classifications.
Before sending this letter, Kullman informed Guthunz that
the General Counsel of the Board was going to issue a
complaint against Respondent for refusing the information
earlier requested by Youngdahl. The General Counsel
issued the complaint in Case 26-CA-2641 on February 3.
By letter dated February 6, 1967, the Union supplied
Respondent with appropriate excerpts from the Union's
contracts in Arkansas with Bobbie Brooks and Jonathan
Logan, which had been promised on January 24.
43
Youngdahl concluded this letter:
If there is a serious possibility of your agreeing to our
proposal in this regard, we would be glad to supply you"
additional details. I look forward to your response.
On February 11, 1967, Kullman replied to the above
letter as follows:
As I read the excerpts from the schedules attached to
your letter of February 6, the minimum piece workers
rate at Bobbie Brooks is presently $1.75 per hour, and,
after 2 months, the minimum piece workers rate in the
sewing department at Jonathan Logan is now $1.80 per
hour. As you point out in your letter and as Mr. Siems
has heretofore informed us, the ILGWU would only be
willing to negotiate a contract with the Ottenheimer
Division of the Kellwood Company at rates equivalent
to the minimum rates which might be found in either
the Bobbie Brooks or the Jonathan Logan contracts.
There exists, in my opinion, no serious possibility of my
client agreeing to a present minimum for piece workers
of $1.75 per hour.
On February 15, 1967, Respondent filed its original
answer in Case 26-CA-2641. This was a general denial,
but it did not plead an affirmative defense, such as that it
refused any of the requested information because of picket
line violence. On the same day, Respondent sent the
Union a copy of a weekly payroll report with the names
of the employees removed. Respondent never sent the
Union the names of the replacements.
At a strikers' meeting on February 22, 1967, attended
by "no less than 500," a resolution was passed reading as
follows:
WHEREAS, the Ottenheimer Division of Kellwood
Company has continued to violate the National Labor
Relations Act in Little Rock and Lonoke, Arkansas
and
WHEREAS, the Kellwood Company throughout the
country has continued to fight the rights of its workers
to organize collectively in many illegal ways," and
WHEREAS, the refusal of the employer to tell the
union about the details of its demand that non-strikers
be kept as permanent replacements of the strikers has
made it impossible for us to know what might happen
when the strike is ended or to appeal to the non-strikers
to join our important effort, and
WHEREAS, the wage and benefit increases to
non-strikers have under-cut our bargaining and
amounted in many cases to more than what the
employer offered the union during bargaining, and
WHEREAS, the entire course of conduct of the
employer during negotiations has violated the good
faith required by the law,
NOW THEREFORE BE IT RESOLVED, that the
strike against the company continue until these
violations of the law are remedied and the employer
bargains in good faith for a decent contract.
Prior to its passage, Youngdahl read this resolution to the
strikers and explained its language. He talked about the
wage increase at Lonoke, some of the things that
happened at Kellwood's Alamo plant (see 170 NLRB No.
184). He said that the Union had asked for information
from the Company which the Union considered vital and
which the Company had refused, such as the names of
replacements; he said the Union would need to know who
"The Board has found violations in three divisions of Kellwood
Company , based upon events occurring prior to February 22, 1967, when
this resolution was passed . 166 NLRB No. 20, 170 NLRB No. 183, 170
NLRB No. 184.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the replacements were in order to be able to contact them
and to try to give them the Union's side of the story.
1. Conclusions concerning refusal of names
The law is well settled that an employer is under a
statutory obligation to furnish its employees' bargaining
representative with information which is reasonably
necessary or essential to intelligent bargaining. See
N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149; J. I. Case
Company v. N.L.R.B., 253 F.2d 149, 152-153 (C.A. 7),
and cases cited.
Here, after Respondent itself had raised the
"replacement issue" and had indicated it would seek to
protect the replacements, the Union reasonably needed to
know whether Respondent was protecting the
replacements by giving them increases or benefits which
were detrimental to the strikers. The Union reasonably
needed this information in order to be able to proceed
with intelligent bargaining and in good faith it requested
it. The Union's request for a "current list of employees,
their job classifications and rates of pay, including
particularly any pay increases or benefit alterations since
the last information of this kind which you supplied to us
[which was the previous summer] and with particular
reference to the `replacements"' was certainly a request
for information relevant to the bargaining issue of whether
Respondent was giving special or favored treatment to the
replacements to the detriment of the strikers. (See
N.L.R.B. v. Erie Resistor Corp., et al., 373 U.S. 221.)
Although Respondent gave the Union, piecemeal, some of
the information requested, the Union's representative,
Lambert, who analyzed the material, credibly testified
that in the absence of the names of the current employees
(which Respondent never gave the Union) he could not
determine whether a wage increase had been given which
the Union had not been informed of. At this stage in the
bargaining, in view of all that had gone before, the Union
was entitled to actual payroll information, including
names, with which it could satisfy itself for future
intelligent bargaining purposes, as to the accuracy of
Kullman's statement in his December 21 letter that "the
only changes in wage rates which have been made involve
those arising out of putting into effect the 10 cents an
hour increase which was announced on October 24, 1966."
Of note in this regard is that the testimony of
Respondent's witness, Shaddox, showed that no accurate
determination could be made as to what an employee's
pay included from the records furnished the Union, that
wage increases could be hidden in the payroll data, and
that one way of checking the accuracy of the information
would be to question particular employees about the
information furnished. To do this, the Union would have
to have the names of the replacements.29
Respondent defended on the ground that it withheld the
names of the replacements in order to protect them from
intimidation, bodily harm, property damage, and "night
riding" which accompanied the strike. On the record this
might well have been an adequate defense if this had
really been the reason for the withholding. No such reason
was even given the Union, however. Guthunz testified that
between October 25 and December 20, 1966, there was
"night riding," which he understood to mean "terrorizing
people in their homes." He admitted that he did not know
"Although the Union also wanted the names for other reasons for which
the record may not sustain its entitlement to them, this fact does not
negate the Union's right to them for the purposes found above.
whether any of the strikers had done the "night riding."
In a Little Rock newspaper within a week after October
25, Respondent offered a $2,500 reward, which it later
increased to $7,500, presumably for information leading to
identification of "night riders." No one ever claimed the
reward. No representative of the Union, no picket or
striker, was ever arrested according to Guthunz'
knowledge, for "night riding." On December 20, 1966, a
county court enjoined the Union, Siems, two other
organizers, and several employees from intimidating,
molesting, mass picketing, "night riding," et cetera.
The Company never gave the Union any reason
connected with violence, intimidation, property damage,
or "night riding," et cetera as the cause for its refusal to
furnish the names of the replacements to the Union. The
nearest Respondent ever came to alluding to any such
reason was Kullman's statement in his December 21 letter
to Youngdahl that "such a list is only sought for the
purpose of furthering the strike activities of the ILGW
Union." Later, on January 24, Kullman asserted as the
reason for refusal that the names and addresses were not
relevant to any bargaining purpose or need. If violence, et
cetera, was really the reason for withholding the names of
the strikers, or if Respondent really feared retaliation
against the replacements if their names were disclosed, no
reason appears why Respondent did not so state clearly to
the Union as the reason for the withholding. To be noted
in this connection is that the names of many replacements
were disclosed at the injunction proceeding on December
20, 1966, and even then Respondent did not give the
Union the names of those replacements. Further, there
was no showing of any retaliation against those whose
names were disclosed, by strikers or the Union, between
December 20 when the names were revealed, and January
24 when they were withheld, or ever.
Under all the circumstances of this proceeding, I hold
that on December 21, 1966, Respondent withheld the
names of the strike replacements, which were reasonably
necessary to the Union for bargaining purposes, and then
and thereafter gave the information it released to the
Union in piecemeal fashion, in order further to impede the
bargaining process and prolong the strike so as further to
weaken the Union as the bargaining agent, its conduct
being a further violation of Section 8(a)(5) and (1) of the
Act, and further evidence of its overall bad-faith
bargaining with the Union.
2. Conclusions concerning unilateral wage increase of
February 1, 1967
When the February 1, 1967, 5-cent increase above the
Federal minimum was announced on January 25, 1967, no
good-faith impasse existed in the negotiations because, as
I have found above, Respondent was never bargaining in
good faith with the Union.
Assuming, however, contrary to the fact, that a
good-faith empasse occurred just before the beginning of
the strike, this impasse was broken by the strike and by
Respondent's change of bargaining positions at the
January 24 meeting. In his telegram of November 30,
Kullman stated that in view of the strike Respondent
wished to give "reconsideration to certain of its
proposals." At the January 24 meeting, as has been seen,
Respondent changed its position on probationary period,
assignment to other work, and arbitration, among others.
Also, there was discussion about the Union supplying
Respondent with copies of the Bobbie Brooks and
Jonathan Logan contract so that Respondent could
KELLWOOD COMPANY, OTTENHEIMER
understand the Union's proposal. Thus, there was
indication of possible movement on a new approach to
money matters. Further evidence that wages were still an
open subject in the negotiations was the fact that on
February 3 and 15, Respondent sent the Union some
information concerning rate ranges and straight time pay
for use in the negotiations. Also, on January 26, Kullman
wrote Youngdahl, "should you have specific language
which you want to submit in connection with the issues
which you have left open, I will be happy to receive the
same and comment thereon. . . . You have not yet then
made your specific proposal with respect to holidays,
benefits funds or vacations." This language indicated that
Respondent considered the negotiations to be fluid, not in
a state of impasse, and that no impasse existed.
Simultaneously with this fluidity in the negotiations on
other matters, Respondent employed its customary
rigidity on pay raises. On October 24, Kullman stated
Respondent's intent to put the 10-cent raise (5 cents above
the required Federal minimum) into effect February 1.
There was almost no discussion of the matter. The Union
said 5 cents above the Federal minimum for two 6-month
periods was not enough, and adjured Respondent not to
put the increases into effect until the Union and the
Company achieved an overall contract on all subjects. The
Union repeated this request in writing the following day.
Respondent ignored the request.
Respondent put the 10-cent increase into effect on
February 1, prior to receiving the requested information
from the Union and while negotiations on wages and
other subjects were still open. At the same time, or about
the same time, the same raise was given to all Kellwood
plants, nationwide, including Lonoke, all 30 of them In
the light of the monolithic way Kellwood planned and
executed its August 1, 1966, nationwide raise, it is a fair
inference, which I reach, that this time, also, Kellwood
planned a nationwide raise sometime in advance and that
Respondent offered it to the Union for the Little Rock
plant with no open-minded intent to bargain about it but
simply an intent to apprise the Union what it was going to
do.
Upon the above facts and considerations, and upon the
preponderance of the evidence in the entire record, I hold
that Respondent's February 1, 1967, wage increase of 5
cents above the Federal minimum was instituted
unilaterally in violation of Section 8(a)(5) and (1) of the
Act, and that by this act Respondent further showed its
bad-faith bargaining with the Union.
3 Conclusions concerning continuation of the strike
The resolution passed by a large meeting of strikers on
February 22, 1967, after Youngdahl read it to them and
explained its contents, specifically referred to
Respondent's refusal of information and referred to "wage
increases to non-strikers" and to Respondent's
bad-faith bargaining. On this evidence and the entire
record, I conclude that Respondent's refusal of the names
of the replacements, its unilateral wage raise on February
1, 1967, and its continuing bad-faith bargaining with the
Union, all unfair labor practices, prolonged the strike
from February 22, 1967, onward, and that the strike
continued thereafter until its end as an unfair labor
practice strike.
K. Direct, Coercive Pressure Upon Strikers to Return
to Work
By letter dated March 27, 1967, from Guthunz to the
striketg' and nonstrikers, Respondent notified them that it
45
was going to rebuild its work force to full capacity and
giving strikers until April 5 to return to their jobs.
,Immediately thereafter , the Union sent a telegram to
Guthunz protesting his unilateral dealing with the strikers
and the coercive nature of his letter. Putting pressure on
unfair labor practice strikers to return to work by a
certain date was a further coercion upon employees in the
exercise of their Section 7 rights and a further violation of
the Act. Dealing directly with unfair labor practice
strikers concerning their return to work was a further
violation of Section 8(a)(1). N.L . R.B. v. Bradley
Washfountain Co., 192 F.2d 144 (C.A. 7); N. L.R.B v.
Montgomery Ward & Co., 133 F.2d 676, 681-682 (C.A.
9); N.L R. B. v. DuBois Chemicals , Inc., 327 F.2d 494
(C.A. 1), enfg. 140 NLRB 103, 116.
L. Respondent's Bargaining on May 15 and July 21,
1967
Thereafter, the Company and the Union had two more
meetings, one on May 15 and one on July 21, 1967, the
latter under the auspices of the new officials of the
Arkansas Department of Labor. Respondent's dealing
with the Union at these two sessions and Kullman's
correspondence with Youngdahl between May 15 and
August 21, 1967, showed that Respondent was making no
genuine effort to reconcile its differences with the Union,
to work towards an accord. Rather, it dealt in a manner
designed to frustrate, rather than promote, an agreement.
Thus, Respondent refused to allow a union engineer in the
plant with Respondent's engineer to study each operation,
in connection with Respondent's reengineering program,
which on May 15 it announced it was starting soon, and
which it actively commenced July 17. The information
Respondent sent the Union concerning this program was
unsatisfactory to the Union and Respondent refused to
allow the union engineer to visit the plant to verify it.
Respondent would permit its engineer to meet with the
union engineer, but not in the presence of the employee
committee. Later, it offered to permit its engineer to meet
with Siems and Youngdahl, with the understanding it was
not to be a bargaining session . Thus, on July 21 when the
Union abjectly offered to "start from the bottom,"
offering Respondent all clauses of the lowest contract
terms in a comparable industry in Arkansas, Kullman said
the Union's other contracts were no basis for negotiations
because past sessions had developed changes applicable to
Ottenheimer's plant in Little Rock. In almost the same
breath, however, Kullman said that Respondent had
completely replaced the strikers and that all proposals
previously discussed would have to be viewed by the
Company in the light of that situation; and that he saw no
value in going back to the proposals of October 1966
prior to the strike. He even objected to the Union's
supplying the director of the Arkansas Mediation and
Conciliation Service with proposed contract language
developed during the prior negotiations. At this July 21
meeting, the Union pointed out that it was Respondent,
not the Union, who was adding issues as the strike went
on. Thereafter, by correspondence Kullman said "there
will have to be a clear provision in the contract
recognizing the Company's right to re-engineer plants or
departments or craft operations within the plant without
negotiating with the Union;" and also proposed a new
section reading "each employee's seniority shall date from
his most recent hire date." (Emphasis supplied.)
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent knew that those clauses would not possibly be
acceptable to the Union Also, on July 21, Kullman
agreed to give the Union in writing a list of issues added
by Respondent during the strike and then to propose a
further negotiation session He supplied the list, and ended
"I am sure that you and the other union representatives
will appreciate the fact that the Company's proposals are
not available for any period of indefinite duration " To
this Youngdahl replied,
I am not sure exactly what you mean to do about this
document Is it, for example, the proposal to put on the
bargaining table that was discussed during our most
recent negotiating session9 We presume that by your
letter you are asking for another collective bargaining
negotiating session
I would appreciate your response to these questions
On August 21, Kullman replied,
Your letter of August 18th has me as much confused as
my letter of August 12th apparently has you The
Company is definitely not asking for any bargaining
meeting
Upon the preponderance of the evidence in the entire
record, I find and hold that by negotiating on May 15 and
July 21, 1967, with no genuine effort to reconcile its
differences with the Union and in a manner and with new
proposals designed to frustrate rather than promote an
agreement, Respondent further negotiated in bad faith and
in violation of Section 8(a)(5) and (1) of the Act
M Termination of Strike Refusal to Reinstate
Strikers and Respondent s Refusal to Recognize
Union
On November 22, 1967, Youngdahl, on behalf of the
Union, notified Respondent that the strike was terminated
the night before, November 21, and that "we hereby apply
for reinstatement of all strikers to their old jobs, or, if
their old jobs are unavailable, for any job This is a
continuing application for employment Please inform me
if you have any question about this application " In
addition hundreds of strikers individually wrote
Respondent as follows and Respondent received all the
letters
Gentlemen I hereby apply unconditionally for
reinstatement to my old job, or if my old job is
unavailable, for any job Please consider this a
continuing application for employment
On November 29, 1967, Respondent's personnel
director, McClain, replied to Youngdahl
In response to your telegram of November 22nd
advising us of the termination of the ILGWU strike at
our Little Rock plants and applying for reinstatement
of all strikers, we ask that you furnish us immediately
with a list of the names and addresses of all strikers
who were drawing strike benefits from the ILGWU for
the strike benefit period immediately preceding
November 21, 1967 We also ask that you furnish us as
quickly as possible with a list of the names and
addresses of all others classified by you as strikers and
on whose behalf you are allegedly making an
application for reinstatement We also ask that you and
other Union representatives inform any persons on
whose behalf you have allegedly bought reinstatement
by virtue of your telegram to promptly apply in person
at the Personnel Office of our plants here in Little
Rock
On November 28, 1967, Respondent wrote ex-strikers
(but did not send a copy to the Union) a letter saying
The International Ladies Garment Workers Union has
called off its strike at our plants here in Little Rock
and on behalf of all strikers has made an application
for reinstatement on any available jobs If you are one
of those for whom the Union was acting, you should
apply in person at our Personnel Office no later than
If you should fail to appear by such date, we shall
assume that the Union's application was not made with
your authorization and that you do not desire to work
at our plants here in Little Rock
On November 30, a union attorney wired President
Guthunz as follows
I am telegraphing as attorney for the International
Ladies Garment Workers Union, AFL-CIO Officials
of the this Union have been notified your firm has been
directly contacting ex-strikers On behalf of the Union,
I protest this unilateral action, which flagrantly violates
the National Labor Relations Act and undercuts the
Unions bargaining status To facilitate the
reinstatement of the ex-strikers please be advised the
Union will present to you applications for reinstatement
on December 1, 1967, which will contain their names
and addresses To further accomplish this objective, the
Union requests you transmit to it a list of all the names
and addresses of the individuals whom your firm
considered to be strikers when the strike commenced on
October 25, 1966 On behalf of the Union, I request
your firm transmit to me , as soon as possible a list
containing all the names of the individual ex-strikers to
whom it has been sending letters asking them, in
substance, to report to your personnel office by a
certain date , and copies of all these letters sent to them
since the Union terminated its strike on November 21,
1967 Finally, the Union requests your firm consult with
it pertaining to re-instating the ex-strikers and the
mechanics necessary to accomplish this objective
On December 4, Youngdahl wrote the Company as
follows
I am writing as attorney for International Ladies'
Garment Workers' Union, AFL-CIO By this letter I
wish to make clear the position of the union as to
post-strike applications of the employees we represent in
Little Rock
On November 22, 1967, I informed you that as of
November 21 the strike conducted by our organization
had been terminated At that time I stated that all
strikers were thereby applying for reinstatement to their
old jobs, or, if their old jobs were unavailable, for any
jobs I asked that my application on behalf of all
strikers be considered a continuing application for
employment
By telegram from Mr McClain dated November 27,
1967, a kind of reply was sent to me You asked
thereby for lists of names and addresses of all those
receiving strike benefits during the period immediately
preceding November 21, and "a list of the names and
addresses of all others classified by you as strikers and
on whose behalf you are allegedly making an
application for reinstatement" You also asked the
union to inform the employees for whom we speak to
apply in person at your office
Then by letter dated November 28, 1967, you wrote a
large number of individual strikers saying, inter alia
that "if you are one of those for whom the Union was
KELLWOOD COMPANY, OTTENHEIMER
acting , you should apply in person " at the plant no later
than a specified deadline.
As soon as this letter came to our attention, and in
response to your telegram of November 27, on
December 1, 1967, Mr . Lavey of this office protested
your individual contacts with the employees we
represent , but stated that in order to facilitate the
return of the strikers , we would furnish you with further
material on December 1. That material , individual
notices of names and addresses of some of the strikers
ji our possession at that time , was delivered to your
office on that date . We also asked for information
which might assist us to assist you in the reinstatement
process , such as a list of names and addresses of those
sent the November 28 letter , and copies of each letter
because of possible variance among them.
We have received , to date , no response to this last
communication.
It seems to us that you are in possession of the most
accurate information about who the strikers are. You
were able to identify them for purposes of insurance
cancellation early in the strike , and for the mailing of
November 28 and other mailings you have made to
them since the strike started . In addition , we have from
time to time informed you of individuals who came to
our attention as possibly having been on leave when the
strike began , but who later joined the strike.
It is our belief that a list of those receiving strike
benefits at any time would be irrelevant now to any
obligation of any party to this proceeding , or at least
not necessary for us to furnish for reinstatement
purposes . There are many strikers who have found
temporary employment other places , thus not paid
strike benefits , who have applied for reinstatement
through my telegram of November 22, for example.
We do not believe that we are required to furnish you
with information about whom we "purportedly" speak.
We are the certified bargaining representative for all
production and maintenance employees, and this
includes all strikers . We believe , in fact, that your
suggestions otherwise to individual strikers constitute
improper undermining and interrogation in further
violation of the National Labor Relations Act.
If you could advise us of specific ways in which the
records you used for your various mailings to
individuals after the strike began are deficient, in an
effort to cooperate we will do our best to assist you in
finding , for example , correct addresses . We have gone
farther, in my opinion , than our legal obligation by
delivering the material we brought to your office on
December 1.
Please let me know if the union can do anything further
within the confines of the principles I have set forth
here.
On December 5, the Union sent Guthunz two
telegrams , the first reading as follows:
I am telegraphing as attorney for the International
Ladies Garment Workers Union , AFL-CIO. Again,
officials of this Union have been notified your firm has
been directly contacting ex-strikers and instructing them
to report to your personnel office by a certain date. On
behalf of the Union , I again protest this unilateral
action , which is flagrantly illegal and violative of the
National Labor Relations Act and undercuts the
Unions bargaining and representative status . The Union
would be most willing to cooperate with your firm in
47
facilitating the reinstatement of the ex-strikers. Again,
the Union requests your firm consult with it pertaining
to reinstating the ex-strikers and the mechanics
necessary to accomplish this objective. Please be advised
the Union stands ready, willing and able to cooperate
with you in obtaining total reinstatement of all the
ex-strikers. Additionally, this Union stands ready and
willing to cooperate with you to insure the reinstated
ex-strikers report to your firm on dates specified by you
and given to the Union.
The Union's second telegram of December 5 read as
follows:
I am telegraphing as attorney for the International
Ladies Garment Workers Union, AFL-CIO. Please be
advised the Union is filing an unfair labor practice
charge today alleging your firm has violated Section
8(a)(1) and (5) of the NLRA. The Union protests your
piece meal reinstatement of the ex-strikers and demands
that you reinstate them as a group. Without prejudice
to our unfair labor practice charge, and over the
Union's vigorous protest, the Union is forced to advise
the ex-strikers to reply to your personnel office if they
are contacted by your firm directly for re-employment
as they are today.
On December 5, Kullman wired Youngdahl as follows:
On behalf of Kellwood Co. Ottenheimer Division this
will notify you as attorney for International Ladies
Garment Workers Union that this Company does not
recognize that Union as the collective bargaining
representative of the employees in the Companys plants
at Little Rock, Arkansas. The Unions refusal to
bargain in good faith toward a collective bargaining
agreement during the extensive negotiations prior to the
strike the Unions complete failure to seek bargaining on
a contract or settlement of the strike for more than a
year, and the obvious fact that this Union is no longer
the collective bargaining representative of a majority of
the employees in the plants, require this action. Any
further recognition of the International Ladies Garment
Workers Union as the collective bargaining
representative of these employees is inconsistent with
the spirit and purposes of the National Labor Relations
Act as amended.
On December 6, 1967, Kullman wrote Youngdahl as
follows:
I am writing as attorney for Ottenheimer in response to
your letter of December 4, 1967. 1 received a copy of
your letter today. Please refer to my telegram of
December 5, 1967. This telegram furnishes a reply to all
of the issues raised in your letter of December 4, 1967.
On December 7, a union attorney again wired Guthunz
protesting the Company's reemployment of some of the
ex-strikers as new employees and its piecemeal
reemployment of the ex-strikers.
On December 12, 1967, Respondent's personnel
director sent letters to ex-strikers (but did not send a copy
to the Union) reading as follows:
On November 28, 1967, we wrote to you asking that
you contact us by - if you desired employment. On
December 1, 1967, the Union gave to us an application
with your signature, dated
In order to avoid any misunderstanding as to whether
you intended your application of _ to be in answer to
our letter of November 28, 1967, we again ask that you
come to the plant by _ so that the application may be
processed.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing the parties stipulated that beginning at a
date in July 1967, Respondent has hired new hires as new
employees, including those returning from the strike, that
the Company has required each employee hired
subsequent to that date to qualify as a new employee for
its insurance, holiday and vacation benefits, or any other
benefits requiring length of service for qualification; this is
the Company practice up to the present time.
Conclusions
On November 22, 1967, the Union informed
Respondent the strike was terminated and made an
unconditional application on behalf of all strikers for
reinstatement. Respondent's failure to offer the strikers
immediate and full reinstatement to their former jobs was
a violation of Section 8(a)(3) and (1) of the Act. Mastro
Plastics Corp. v. N.L.R.B., supra; N.L.R.B. v. Southland
Cork Company, supra; N.L.R.B. v. Stilley Plywood Co.,
Inc., supra; Solo Cup Company v. N.L.R.B., 332 F.2d
447, 449 (C.A. 4); Great Southern Trucking Co., v.
N.L.R.B., 127 F.2d 180, 186 (C.A. 4). In addition, by
bargaining directly with the strikers concerning their
return to work, over the Union's protest, Respondent
deprived the striking employees of their right to
representation by the Union on this phase of their
employment and tenure , and also refused to recognize the
Union as the strikers ' statutory representative for this
purpose, Respondent thereby further violating Section
8(a)(5) and (1) of the Act. See Alba-Waldensian, Inc.,
167 NLRB No. 101.
Respondent canceled its recognition of the Union on
December 5, 1967, on the theory that it was an economic
strike, the strikers had been replaced, and the Union no
longer represented a majority. In fact, they were unfair
labor practice strikers who were still employees and still
represented by the Union. Respondent's denial of further
recognition of the Union was further violation of Section
8(a)(5) and (1) of the Act. Cf. Franks Bros. Company v.
N.L.R.B., 321 U.S. 702, 64 S. Ct. 817; N.L.R.B. v.
Commerce Company d/b/a Lamar Hotel, 328 F.2d 600,
cert. denied 379 U.S. 817; Mar-Jac Poultry Company,
Inc., 136 NLRB 785; Satilla Rural Electric Membership
Corporation, 155 NLRB 747.
N. Identification of the Individual Strikers
There remains the question of the identification of the
individual strikers who are entitled to reinstatement with
full rights under this Decision.
General Counsel's Exhibit 171 shows what employees
were on the last payroll before the strike (October 22,
1966) and not on the first payroll following the beginning
of the strike (November 5, 1966). This information was
presumably obtained from the Company payrolls supplied
by the Company and not challenged. General Counsel's
Exhibit 171 shows also which of these employees had their
insurance canceled early in the strike," which registered
with the Union for strike benefits and which were paid
strike benefits, which of these employees individually
wrote Respondent asking for reinstatement , which were
sent Respondent ' s November 28 and December 12, 1967,
letters concerning coming to the plant . The information
on which General Counsel's Exhibit 171 is based, except
for the payroll names and those who registered for strike
benefits , is contained in the record in General Counsel's
Exhibits 173, 174, 175, and 176.
Based upon documents in evidence, the General
Counsel also submitted lists , attached to General
Counsel's Exhibit 171, of employees not on the October
22 and November 5 payrolls but who registered for strike
benefits; but who wrote letters seeking reinstatement; but
who were sent Respondent's November 28 letter; but who
were sent Respondent's December 12 letter; but who were
paid strike benefits.
The General Counsel contends that each employee on
these lists was a striker. None of the names on any of
these lists was challenged as a striker by Respondent at or
since the hearing . Upon due consideration I agree that the
evidence in the record proved that each employee listed on
General Counsel's Exhibit 171 and its attachments was a
striker.
The General Counsel and Union contend that they
should not be foreclosed until the end of the backpay
proceeding from adding the names of any additional
employees concerning whom there is proof by that time
that they were strikers. I agree and so hold.
0. Respondent's Principal Defense
Respondent contended that it bargained in good faith,
that it was the Union who bargained in bad faith, and
that the Union' s actions justified Respondent's. The
Union' s actions Respondent principally complained of, its
conduct which may have to some extent obstructed or
delayed the bargaining process, has been considered in all
the above. Although the Union did not conduct itself
impeccably, its actions were not in violation of the Act
when measured against Respondent's hostile, provocative,
unlawful acts , including its unlawful bargaining.
Respondent must not have thought the Union was acting
unlawfully or bargaining in bad faith prior to the hearing,
for it never filed an 8(b)(3) or 8(b)(1)(A) charge against
the Union. Further, I think it is clear from the record that
even if the Union's conduct had been above reproach, this
would not have affected Respondent's fixed determination
to avoid a collective- bargaining agreement with the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lend to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
I recommend the customary broad cease-and-desist
order and the affirmative relief conventionally ordered in
cases of this nature, where Respondent's unfair labor
practices were of a character which struck at the roots of
employee rights safeguarded by the Act.
The Supreme Court has said a bargaining
relationship once rightfully established must be permitted
to exist and function for a reasonable period in which it
can be given a fair chance to succeed." Franks Bros. Co.
"On November 4, 1966, Respondent wrote all strikers that it would not
continue "the payment of premiums" on the Company's existing
hospitalization insurance policy , inasmuch as the policy defines an
"employee" as a person actually performing services for the Company.
KELLWOOD COMPANY, OTTENHEIMER 49
v N L R B supra Mar-Jac Poultry Co Inc supra
Satilla Rural Electric Membership Corporation supra
Here, as has been seen, during the certification year
Respondent refused and failed to bargain in good faith
with the Union, granted unilateral wage increases to unit
employees, and extended itself to undermine the power
and prestige of the Union Here, where Respondent has
never bargained in good faith with the Union, the
certification has never been honored and the bargaining
relationship has never been given a fair chance to succeed
Respondent's bad faith bargaining continued during the
strike and even on the question of reinstating the strikers
Under all the circumstances of this case, and in order to
give the bargaining relationship a reasonable period in
which it can have a fair chance to succeed, I recommend
that Respondent immediately recognize the Union as the
bargaining representative of the employees in the
appropriate unit, bargain in good faith with the Union for
at least 1 year beginning with the first bargaining session
after recognizing the Union, and embody in a signed
agreement any understanding reached
The Union urges that backpay for the strikers should
start from the beginning of the strike That would be
appropriate, in my judgment, if Respondent's unfair labor
practices were the sole cause of the strike Here, where the
unfair labor practices were only one of the causes, I
recommend as an appropriate remedy the customary
remedy in cases such as this I recommend that
Respondent be ordered to offer to all strikers, including
those named on General Counsel's Exhibit 171 and its two
pages of attachments, immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
discharging, if necessary, any replacements in order to
provide work for the strikers, and to make whole all
strikers, including those named on General Counsel's
Exhibit 171 and its two pages of attachments, for any loss
of earnings they may have suffered by reason of the
discrimination against them, by payment to each of a sum
of money equal to that which each normally would have
earned as wages from 5 days after the strikers'
unconditional requests for reinstatement on November 22,
1967, to the date of his full reinstatement less the net
earnings of each during such period The backpay
provided herein shall be computed in accordance with the
formula stated in F W Woolworth Company 90 NLRB
289 Interest shall be added at the rate of 6 percent per
annum Isis Plumbing & Heating Co 138 NLRB 716
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following
CONCLUSIONS OF LAW
1 Kellwood Corporation, Ottenheimer Division, of
Little Rock, Arkansas, is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 International Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act
3 At all times since March 23, 1966, Respondent has
violated Section 8(a)(5) and (1) of the Act by refusing and
failing to bargain in good faith with the Union as the
exclusive bargaining representative of the employees in the
following appropriate unit
All production, maintenance and shipping employees at
Respondent's Little Rock, Arkansas, operations,
excluding office clerical employees, professional
employees, engineering department employees, outlet
stores' employees , guards and supervisors as defined in
the Act
4 Respondent violated Section 8 (a)(5) and ( 1) of the
Act by unilaterally increasing wages on October 25, 1966,
and February 1, 1967
5 Respondent violated Section 8(a)(5) and (1) on
December 21, 1966, by refusing to give the Union
information relevant and reasonably necessary to the
Union ' s intelligent bargaining concerning a bargaining
issue Respondent had raised
6 The strike which began October 25 , 1966, was caused
and prolonged by Respondent ' s unfair labor practices
7 Respondent violated Section 8(a)(3) and (1) of the
Act by failing and refusing to reinstate the strikers,
including those named on General Counsel ' s Exhibit 171
and its two pages of attachments , upon the termination of
the strike and the Union ' s unconditional application for
reinstatement on behalf of all the strikers on November
22, 1967
8 Respondent violated Section 8(a)(5) and ( 1) of the
Act by bargaining directly with strikers concerning their
return to work during the strike and after the strike
9 Respondent violated Section 8(a)(5) and ( 1) of the
Act by refusing to recognize the Union as the exclusive
bargaining representative of the employees in the
appropriate unit on and after December 5, 1967
10 Respondent violated Section 8(a)(1) of the Act by
its repeated efforts to frighten its employees away from
the Union and to defeat the Union at the election , by talk
of a strike when there was no serious consideration among
employees or union organizers of striking the plant
11 Respondent violated Section 8(a)(1) of the Act by
its efforts to convince employees of the futility of their
joining, supporting , and voting for the Union
12 Respondent violated Section 8(a)(1) of the Act by
its repeated threats that unions and strikes go together,
that a strike was inevitable if the Union won the election,
and that in a strike the employees might lose their jobs,
Respondent thereby impliedly threatening economic loss
to employees
13 By denigrating the Union , Respondent further
violated Section 8(a)(1) of the Act
14 By impliedly informing employees that it would not
negotiate and sign a contract with the Union , Respondent
further violated Section 8 (a)(1) of the Act
15 Respondent violated Section 8(a)(1) by interrogating
employees and interfering with them concerning the
exercise of their Section 7 rights and by passing antiunion
leaflets and permitting antiunion petitions to be passed on
the work line during working time
16 Respondent violated Section 8(a)(1) of the Act by
introducing as true and showing to employees the film
"And Women Must Weep "
17 The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, I
recommend that Respondent, Kellwood Company,
Ottenheimer Division, of Little Rock, Arkansas, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to recognize the Union as the exclusive
representative of the employees in the appropriate unit
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing and failing to bargain in good faith with
the Union as the exclusive bargaining representative of the
employees in the following appropriate unit:
All production, maintenance and shipping employees at
Respondent's Little Rock, Arkansas, operations,
excluding office clerical employees, professional
employees, engineering department employees, outlet
stores' employees, guards and supervisors as defined in
the Act.
(c) Unilaterally granting wage increases to employees in
the appropriate unit.
(d) Refusing to give the Union requested information
that is relevant and reasonably necessary to the Union's
intelligent bargaining concerning a bargaining issue raised
by Respondent or any other bargaining issue.
(e) Refusing to reinstate unfair labor practice strikers
upon the termination of the strike and their unconditional
application for reinstatement.
(f) Bargaining directly with unfair labor practice
strikers concerning their return to work during the strike
and after the strike.
(g) Frightening employees by talk of a strike when
there is no serious consideration of a strike among
employees and union organizers.
(h) Threatening employees that it is futile for them to
join, support, and vote for a union.
(i) Threatening that unions and strikes go together, that
a strike is inevitable if a union wins an election, and that
in a strike employees might lose their jobs.
(j) Denigrating the Union by referring to it as a
parasite and a leach, etc.
(k) Threatening employees that it will not negotiate and
sign a contract with Union, with dire consequences to the
employees.
(1) Interrogating employees and interfering with them
concerning the exercise of their Section 7 rights.
(m) Passing antiunion leaflets and permitting antiunion
petitions on the work line during working time.
(n) Introducing as true and showing to employees the
film "And Women Must Weep."
(o) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
and in good faith with the Union as the exclusive
representative of all its employees in the appropriate unit,
and embody in a signed agreement any understanding
reached.
(b) Bargain in good faith with the Union concerning
any wage increase or any other change of any term or
condition of employment, before putting it into effect.
(c) Upon request give the Union requested information
that is relevant and reasonably necessary to the Union's
intelligent bargaining concerning any issue raised by
Respondent or any other bargaining issue.
(d) Offer to all strikers, including those named on
General Counsel's Exhibit 171 and its two pages of
attachments, immediate and full reinstatement to their
former or substantially equivalent positions, discharging if
necessary employees hired since the commencement of the
strike, and make each striker whole for any loss of pay he
may have suffered because of the discrimination against
him, in the manner set forth above in the section of this
Decision entitled "The Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(f) Post at its three plants in Little Rock, Arkansas,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 26, 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, including all places where notices to
all 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.
(g) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words"a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended 'Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to, recognize and bargain
collectively in good faith with International Ladies'
Garment Workers' Union, AFL-CIO, as the exclusive
representative of all of our employees in the
appropriate unit at our Little Rock plants.
WE WILL NOT grant pay raises or make any other
changes in terms or conditions of work of employees in
the appropriate unit without first bargaining in good
faith with the Union concerning them.
WE WILL NOT refuse to give the Union information
which is relevant to bargaining issues and which is
reasonably necessary to the Union's intelligent
bargaining concerning those issues.
WE WILL NOT during a strike caused by our unfair
labor practices bargain directly with the strikers rather
than the Union concerning their return to work.
WE WILL NOT frighten employees by'talk of a, strike
when there is no serious consideration of a strike
among employees and union organizers.
WE WILL NOT try to convince employees that their
joining and assisting the Union will do them no good.
WE WILL NOT threaten employees that unions, and
strikes go together, that a strike is inevitable if the
Union wins an election, and that in a strike employees
might lose their jobs.
WE WILL NOT refer to the Union as a "parasite," a
"leach ," or a "mess."
WE WILL NOT threaten that we will not sign a
contract with the Union and that as a result employees
KELLWOOD COMPANY, OTTENHEIMER 51
will suffer.
WE WILL NOT interrogate employees and interfere
with them concerning their union sympathy and
activity.
WE WILL NOT pass out antiunion leaflets or permit
antiunion petitions to be passed on the work lines
during working time.
WE WILL NOT exhibit the motion picture "And
Women Must Weep" to any employees.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
right to self-organization , to form labor organizations,
to join or assist International Ladies ' Garment
Workers ' Union , AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or any other mutual aid or protection or to
refrain from any and all such activities.
WE WILL , upon its request , recognize International
Ladies' Garment Workers ' Union , AFL-CIO, as the
exclusive bargaining representative of all the employees
in the appropriate unit in the Little Rock plants,
bargain in good faith with said Union , and put into
writing and sign any agreement reached as a result of
the good- faith bargaining . The appropriate unit consists
of:
All production , maintenance and shipping employees
at our Little Rock , Arkansas , operations, but
excluding office clerical employees , professional
employees , engineering department employees , outlet
stores' employees , guards and supervisors as defined
in the Act.
WE WILL bargain in good faith with the Union
concerning any wage increase or any other change of
any term or condition of employment which we wish to
make , before putting it into effect.
WE WILL, upon request, give the Union , information
which is relevant to bargaining issues and reasonably
necessary to the Union ' s intelligent bargaining
concerning those issues.
WE WILL offer to all unfair labor ' practice strikers,
including those named on General Counsel ' s Exhibit
171 and its two pages of attachments , immediate and
full reinstatement to their former or substantially
equivalent positions (dismissing , if necessary, any
replacements hired since the strike started October 25,
1966), and make them whole for any loss of pay each
may have suffered as a result of the discrimination
against them , as provided in the Trial Examiner's
Decision.
All our employees are free to become or refrain from
becoming members of International Ladies' Garment
Workers' Union , AFL-CIO.
KELLWOOD COMPANY,
OTTENHEIMER DIVISION
(Employer)
Dated By
(Representative) (Title)
Note. We will notify all unfair labor practice strikers,
including those named in General Counsel's Exhibit 171
and its two pages of attachments, if presently serving in
the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
This notice must, remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced
or covered by any other material.
If employees have any questioniconcerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.