Sharon Hats, Inc.

National Labor Relations Board - Board Decisions

May 31, 1960

127 N.L.R.B. 947 (N.L.R.B. 1960)

SHARON HATS, INCORPORATED 947
named employees immediate and full reinstatement to his former position as a guard
without prejudice to his seniority or other rights and privileges and make each of
them whole for any loss of pay suffered as a result of the discrimination against
him, by payment to each of them of a sum of money equal to the amount he
would have earned from the date of the discrimination to the date of the offer of
reinstatement less net earnings to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings
in any one particular quarter shall have no effect upon the backpay liability for
any other such period. It will also be recommended that the Respondent preserve
and, upon request, make available to the Board payroll and other records to
facilitate the computation of the backpay due.
In view of Dykhuizen's decease, it is recommended that the Respondent be
ordered to make whole Dykhuizen's estate or any other person or persons as their
interests may appear for any loss of earnings or benefits to which Dykhuizen
would have been entitled had he not been discriminated against from October 13,
1958, until the date of his death It will also be recommended that the backpay
liability be computed upon a quarterly basis as described above, and that the
Respondent make available to the Board, upon request, payroll and other records
to facilitate the checking of the amounts due.
As the Respondent's infractions of Section 8(a)(1), (3), and (5) of the Act,
herein found, discloses a fixed purpose to defeat self-organization and its objectives
and are of a character striking at the root of employee rights safeguarded by the
Act, it will be recommended that the Respondent cease and desist from infringing
in any manner upon employee rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following-
CONCLUSIONS OF LAW
1. United Plant Guard Workers of America and its Local No. 236 are labor
organizations within the meaning of the Act.
2 By discriminating in regard to the hire and tenure of employment of the
employees named above in the section entitled "The Remedy," thereby discouraging
membership in the Union, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (3) of the Act.
3 By engaging in the conduct set forth in the section entitled "C. The conclu-
sions," the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representa-
tive of its employees in the appropriate unit set forth in the section entitled "C. The
conclusions," beginning October 7, 1958, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Sharon Hats , Incorporated and United Hatters, Cap and Milli-
nery Workers International Union, AFL-CIO. Case No. 16-
CA-1103. May 31, 1960
DECISION AND ORDER
On March 16,1960, Trial Examiner Alba B. Martin issued a Supple-
mental Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Supplemental Intermediate Report attached hereto. There-
127 NLRB No. 119.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after, the Respondent filed a motion to dismiss and exceptions to the
Supplemental Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
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 Supple-
mental Intermediate Report, the exceptions thereto, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the modifications noted
below.'
Inasmuch as the Union, which was certified as bargaining repre-
sentative of Respondent's employees on December 5, 1957, did not
make a request for bargaining which was denied by Respondent until
about January 6,1958, we find that the Respondent's unlawful refusal
to bargain with the Union must be dated from January 6,1958, rather
than December 5,1957, as found by the Trial Examiner.
As Texas has a right-to-work law, we shall delete from paragraph
numbered 1(c) of the Trial Examiner's recommended order herein the
proviso "except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act." 2
ORDER
Upon the entire record, and pursuant to Section 10(c) of the Na-
tional Labor Relations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Sharon Hats, Incorporated,
Dallas, Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment, with United Hatters, Cap and Millinery Workers Inter-
national Union, AFL-CIO, as the exclusive representative of all its
employees in the following appropriate unit :
All production and maintenance employees of the Respondent at
its Dallas, Texas, plant, exclusive of all office clerical em-
ployees, designers, salesmen, guards, watchmen, and supervisory
employees.
I Contrary to Respondent , we find that the charge and complaint herein are adequate to
support the unfair labor practice findings of the Trial Examiner. See N.L .R B. v. Fant
Milling Company , 360 U.S. 301.
2 Nebraska Bag Company, et al., d/b/a Nebraska Bag Processing Company, 122 NLRB
654, 656.
SHARON HATS, INCORPORATED 949
(b) Making unilateral changes in the wages, hours, vacations, or
other terms and conditions of employment of its employees in the
above-described appropriate unit, without notification to or consulta-
tion with the above-named Union in violation of the Act.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self -organiza-
tion, to form, join, or assist United Hatters, Cap and Millinery Work-
ers International Union, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing
and to engage in concerted activities for the purpose of collective
bargaining and other mutual aid or protection or to refrain from any
and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Hatters, Cap
and Millinery Workers International Union, AFL-CIO, as the ex-
clusive representative of the employees in the above-described ap-
propriate unit with respect to rates of pay, wages, hours of work,
and other terms and conditions of employment, and embody in a
signed agreement any understanding reached.
(b) Post at its plant in Dallas, Texas, copies of the notice attached
marked "Appendix." 9 Copies of the notice, to be furnished by the
Regional Director for the Sixteenth Region, shall, after being duly
signed by the Respondent's representative, be posted by the Respond-
ent immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith.
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of a United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT make unilateral changes in the wages, hours, or
other terms and conditions of employment of employees in the
appropriate unit, without consulting and bargaining with United
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hatters, Cap and Millinery Workers International Union,
AFL-CIO, in violation of the Act.
WE WILL NoT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
and all such activities.
WE WILL, upon request, bargain collectively with United
Hatters, Cap and Millinery Workers International Union,
AFL-CIO, as the exclusive representative of all employees in
the bargaining unit described below with respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment, and embody in a signed agreement any understand-
ing reached. The bargaining [alit is :
Al] production and maintenance employees at our Dallas,
Texas, plant, exclusive of all office clerical employees, de-
signers, salesmen, guards, watchmen, and supervisory
employees.
SHARON HATS, INCORPORATED,
Employer.
Dated------ ---------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Alba B. Martin,
the duly designated Trial Examiner, in Dallas, Texas, on February 4 and September
16 and 17, 1959, on complaint of the General Counsel and answer of Sharon Hats,
Incorporated, herein called the Respondent. The issue litigated was whether
Respondent refused to bargain collectively with the Union as the representative
of its employees in violation of Section 8(a)(5) and (1) of the Act. The General
Counsel filed a brief, which has been carefully considered.
Upon the entire record, and from my observation of the witnesses, I hereby
make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Sharon Hats, Incorporated, a Texas corporation having its principal office and
place of business in Dallas, Texas, is engaged in the manufacture of ladies' millinery.
During the 12-month period prior to the issuance of the complaint Respondent sold
goods consisting principally of ladies' millinery valued at more than $100,000, of
which more than $50,000 worth was shipped in interstate commerce from its Dallas,
Texas, plant to points outside the State of Texas. Respondent's answer admitted
and it is found that Respondent is engaged in commerce within the meaning of
the Act.
SHARON HATS, INCORPORATED
II. THE LABOR ORGANIZATION INVOLVED
951
United Hatters, Cap and Millinery Workers International Union, AFL-CIO, is
a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropiiate unit; the Union's majority status
On December 5, 1957, following appropriate representation proceeding, the Union
was duly certified as the exclusive representative of the Respondent's employees in
the following appropriate bargaining unit.
All production and maintenance employees of the Respondent at its Dallas,
Texas, plant, exclusive of all office clerical employees, designers, salesmen,
guards, watchmen, and supervisory employees.
At the Board-conducted secret election held on November 27, 1957, there were
18 voters, 11 voting for the Union and 7 against. There was one challenged ballot.'
No objections were filed to this election.
Accordingly, I find that the aforesaid unit constitutes a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act. I
further find that on December 5, 1957, and at all times thereafter, the Union was
the duly designated representative of a majority of the employees in the appropriate
unit and pursuant to Section 9(a) of the Act, was the exclusive representative of
all the employees in such unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions of employment.
Respondent was obliged to honor the certification based upon the election for a
"reasonable" period, ordinarily "1 year" in the absence of "unusual circumstances."
Ray Brooks v. N.L.R.B., 348 U.S. 96.
B. The request; and the refusal to honor the certification for over a year
The complaint alleges and the answer admits that the Union requested Respondent
to bargain collectively with it on or about January 6, 1958. On or about January
14, 1958, the Union wrote the Company as follows:
I tried to reach you by telephone today but was advised by your office that
you were out of the city and not expected back until Saturday. I am therefore
writing you in reply to your letter of January 10.
As you very well know this union was certified as the bargaining representa-
tive of your employees because a majority of your employees by secret ballot
selected this union as their representative in an election conducted by the
NLRB. Both your company and the union are obligated to honor that
certification
We therefore renew our request for an early bargaining conference and
specifically request that you meet with the union bargaining committee at your
office at 10:00 in the morning, Tuesday, January 21.
I would appreciate your prompt confirmation of this meeting. If the date
is not agreeable to you, please advise of your earliest available alternative date.
The record reveals that although the request to bargain was made in January 1958
Respondent never met and conferred with the Union at all until February 16, 1959.
The Union's negotiator, Carmen Lucia, testified that the first bargaining session
occurred "shortly after the hearing on February 4, I believe it was around the 11th
or the 13th. of this year." Respondent's negotiator, Vice President Gerald Callaway,
testified that he wrote out two certain sheets of paper after the first meeting on
February 16, 1959 Respondent never agreed to meet and confer with the Union
until the hearing herein on February 4, 1959, at which time a date was set for the
first bargaining meeting.
Between the Union's request to bargain in January 1958 and Respondent's ex-
pressed willingness on February 4, 1959, to begin negotiations, Respondent stood
upon an erroneous proposition of law, expressed in its answer, filed July 24, 1958,
as follows:
Respondent would show that at the times mentioned in paragraphs 7 and 8
of said Complaint [which alleged that on or about January 6, 1958, the Union
requested and on or about January 10, 1958, Respondent refused to bargain],
the Union did not represent a majority of the employees of Respondent.
Respondent advised the Union on January 10, 1958, that a majority of its
1 Case No 16-RC-2196 (unpublished ), of which I take official notice.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees did not want the Union to represent them. Respondent again noti-
fied the Union on January 17, 1958, and Respondent, on January 22, 1958,
requested the National Labor Relations Board to check the petition signed by
a majority of its employees as to the signatures thereon and the circumstances
involved herein, but the Board refused to do so; that at all times since December
19, 1957, a majority of its employees do not wish the Union to represent them
and the Union is not their bargaining representative; that under the facts and
circumstances Respondent could not have been required to bargain with the
Union until the Board has determined the issues in this case.
Respondent's position was found erroneous by the Supreme Court in the Ray
Brooks decision. In Brooks, the immediate issue before the Supreme Court, as put
by the Court, was "the duty of an employer towards a duly certified bargaining
agent if, shortly after the election which resulted in the certification, the Union has
lost, without the employer's fault, a majority of the employees from its membership."
Among other things, the Court observed that, before the 1947 amendments to the
Act, "the Board uniformly found an unfair labor practice where during the so-called
`certification year,' an employer refused to bargain on the ground that the certified
union no longer possessed a majority"; and that the "Board continued to apply its
`1-year certification' rule after the Taft-Hartley Act came into force, except that [in
view of Section 9(c) (3) of the Act] even `unusual circumstances' no longer left the
Board free to order an election where one had taken place within the preceding 12
months." In the Brooks case, the Supreme Court upheld the Board's position that an
openly signed letter "in which those voting for and against unionism are disclosed
to management" cannot reverse the verdict of an election which assures "the privacy
and independence of the voting booth." Respondent neither alleged nor proved nor
did the record establish the existence of any "unusual circumstances" such as to
justify its position. It follows that by refusing to meet and confer with the Union
as the representative of its employees in the appropriate unit during the period
between the certification and February 4, 1959, Respondent violated Section 8 (a) (5)
and (1) of the Act. Cf. Clark and Lewis Co., 122 NLRB 865; 2 N.L.R.B. v. Henry
Heide, Inc., 219 F. 2d 46 (C.A. 2), cert. denied, 349 U.S. 952.
During the year that Respondent was refusing to bargain with the Union it
adopted and put into effect-in May 1958-a vacation plan without notifying the
Union that it proposed to do so or was doing so. By this unilateral action Respondent
violated Section 8(a) (1) and (5) of the Act.
The charge was filed June 4, 1958. The complaint issued July 17, 1958. The
answer was filed July 24, 1958. On July 30, 1958, the General Counsel filed a motion
for summary judgment. On August 22, 1958, a Board Trial Examiner in substance
granted the motion and found that Respondent had refused to bargain with the
Union under the Ray Brooks decision. Exceptions to the Intermediate Report were
filed on September 10, 1958. On January 2, 1959, in an order the Board found
that "litigable issues may be presented which should be resolved after a hearing
before a Trial Examiner," and remanded the proceeding for hearing. At the hearing
before me on February 4, 1959, Respondent stated its willingness to recognize and
begin bargaining with the Union, and in order to provide time for the bargaining
by agreement of the parties the hearing was postponed indefinitely. The Union
agreed to withdraw an 8(a) (3) charge in another case, Case No. 16--CA-1201.
On May 18, 1959, the General Counsel filed a motion to dismiss the complaint.
On May 28, 1959, the Union filed a motion to reopen the hearing. By letter dated
June 17, 1959, addressed to the General Counsel and counsel for Respondent I
requested their respective positions concerning the allegations in the Union's motion.
Both responded. The General Counsel concluded his response as follows:
At this time, it is my opinion that it would be prejudicial to the rights of the
Charging Party for me to state whether or not the Company refused to bargain
in violation of Section 8(a)(5) of the Act either before or subsequent to May
11, 1959. It is my opinion that these questions should be of record and, there-
fore, at this time I do not oppose the reopening of this hearing for the purpose
of taking further testimony relevant to these matters.
By order dated July 16, 1959, I reopened the hearing. The supplemental hearing
was held on September 16 and 17, 1959, at which the parties presented their evidence
concerning the bargaining negotiations. The General Counsel sought to prove,
and contended at the hearing and in its brief, that Respondent had bargained in
bad faith.
2Enfd. 274 F. 2d 817 (C.A. 5).
SHARON HATS, INCORPORATED 953
C. The negotiations
The parties met and discussed the substantive provisions of an agreement on
February 16, 23, and 24, March 11 and 23, and April 13, 1959. The Union was
represented at each meeting by its vice president, Carmen Lucia and, from meeting
to meeting , one or two others. At each meeting Respondent was represented by
its vice president and chief negotiator, Gerald Callaway, and also its president, Carl
Clark. With respect to what transpired at these meetings, Carmen Lucia was the
only witness for the General Counsel, and Gerald Callaway was the only witness
for Respondent who testified in any detail as to what happened. At the conclusion
of Callaway's testimony Respondent's president, Carl Clark, who was present at all
of the bargaining sessions except the first, testified that he had listened to Callaway's
testimony and that Callaway's testimony was substantially the same as Clark
would give.
At the first meeting the Union presented and explained its written proposal for a
contract, consisting of 51/2 pages and containing 20 articles with numerous sections
and subsections. At the February 23 meeting Callaway presented the Company's
position on each of the Union's proposals and some discussion was had The union
proposals were further discussed at the February 24 meeting. At the March 11 and
23 and April 13 meetings the parties discussed, article by article, Respondent's pro-
posed agreement consisting of 9 pages and 18 articles. On March 27, 1959,
Respondent sent the Union written changes in four articles of the Company's pro-
posed contract, which were discussed at either the March 23 or the April 13 meeting.
The Union's proposed contract presented at the first meeting proposed company
recognition of the Union in accordance with the Board's certification, checkoff, a
30-day trial period for new employees, equal distribution of work and seniority in
layoff and recall, overtime pay for over 8 hours per day and for Saturday work, a
15-percent wage increase and a starting rate of $1.15 per hour, 5 paid holidays (New
Year's Day, July 4, Labor Day, Thanksgiving, Christmas), vacations for those
employed less than 1 year, access to the plant of a union representative to police
the contract, no discharge without sufficient reason and the right to arbitrate the
reason , no discrimination against any employee because of his union activities,
company contribution to a health and welfare fund of a sum equal to 2 percent of
the Company's gross weekly wages to be administered pursuant to a trust agreement
for the benefit of the employees, no work to be sent out to be made up in nonunion
shops, no assistance by the Company to struck employers, company contribution to
the extent of 1 percent of its total weekly payroll to the National Millinery Promo-
tion Fund, Inc., to increase consumer demand and promote the sale and use of hats,
a grievance procedure ending in arbitration, a no-strike, no-lockout clause, a clause
making the agreement binding not only upon the employer but upon its successors,
transferees , and assignees , a separability clause, and a term- of-agreement clause
which included an automatic renewal clause.
The record does not clearly reflect what took place at each bargaining meeting,
nor is it vital to a resolution of the case. The status of the negotiations at the con-
clusion of the April 13 meeting was as follows- The parties had reached tentative
meeting of the minds concerning a number of the articles, had made substantial
progress towards tentative resolution of many of the other problems being discussed,
and were in disagreement concerning a number of subjects including four money
items. Whether the tentative agreements were to become final depended upon
whether a meeting of the minds on all subjects was ever achieved. The record does
not establish that the parties ever agreed that discussion of the tentatively agreed-
upon issues was ever concluded or exhausted.
Concerning items which would cost it money Respondent's position from the
February 23 meeting onward to the end of the negotiations was, in general, that
it would not agree to any provision which would cost it money. It refused to pay
overtime for after 8 hours in any 1 day or for Saturday work It refused any wage
increase , although the Union lowered its original request once and talked of lowering
it further in return for concessions from the Company. It refused any pay for five
national holidays It iefused to make any contribution to the health and welfare
fund or to the National Millinery Promotion Fund.
Checkoff was agreed upon in principle but details were never worked out. The
Union wanted a 30-day trial period for new employees. Respondent wanted 60
days. In its written changes to its proposed contract submitted March 27 Respond-
ent changed its 60-day period to 45 days. Callaway's testimony on cross-examina-
tion that the issue was not resolved is credited. With changes Respondent accepted
the Union's proposal to follow seniority in layoff and recall. The Union accepted
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company's proposal concerning access of union representative, which was more
restrictive than the Union's proposal. Respondent's counterproposal of a discharge
clause was accepted with amendments suggested by the Union. Respondent's dis-
crimination clause by either the employer or the Union was accepted by the Union.
Respondent had rejected the Union's proposals that no work should be sent out to
be made up in nonunion shops and that the Company would not sell to nor purchase
from, nor do work for a struck employer. The record does not reveal that the
Union ever acquiesced in these rejections. Respondent had expressed willingness to
have a grievance procedure, had submitted a first proposal which the Union had
found too long, and had on March 27 submitted a somewhat shorter version, both
of which included arbitration. Apparently the shorter version was acceptable to the
Union The parties had never come completely together on the Company's counter-
proposal concerning no strikes, no lockouts, and no boycotts-Respondent taking
the position that the Union must be responsible for wildcat strikes, and the Union
taking the position that it could not be responsible for wildcat strikes in an open
shop in a right-to-work State. The record does not reveal that this issue was dis-
cussed to the point that discussion was exhausted or that Callaway, having said on
March 11 that he would check the law on the subject, ever indicated he had done
so or ever changed his position The parties had agreed upon Respondent's pro-
posed management rights clause. The Union had accepted Respondent's position
that the agreement should be binding only upon the employer and its successors but
not upon its transferees and assigns. The separability clause was agreed upon.
Callaway's testimony is credited that whether the contract should be for 1 year's
duration, as proposed by the Union, or for 5 years as suggested by the Company,
was not resolved. The Company's proposal eliminated the automatic renewal clause
in the Union's proposal, and this appears not to have been discussed at all.
As to vacations, Carmen Lucia testified that after a long discussion at the March
11 meeting the union representatives felt that the parties could ultimately get together
on this subject. Callaway testified that at some meeting the Union was satisfied that
the 'Company was handling its vacations properly. Later Callaway testified con-
tradictorily that the Union did not agree to the Company's vacation plan which per-
mitted no probation for employees of less than 1 year's tenure-and. to the contrary,
that both parties agreed to the Company's proposal. On the entire record I find,
though with some doubt, that the subject of vacations had not been completely
agreed upon Of course all agreements and acceptances had been tentative.
Throughout the bargaining meetings Respondent admitted that it was making
money, but said that it was not going to pass any of its profits on to its employees.
In substance its reasons were twofold: That its wages were on a par with the wages
of other millinery shops in the area; and that involved in the question was the
welfare of the wife and three children of Respondent's vice president. As to the
former, the Union disputed Respondent's conclusion, and quoted facts and figures
as to what was being paid by each of the millinery shops in Dallas-and requested
Respondent to check for itself concerning these figures. Respondent's principal
negotiator, Vice President Callaway, neither accepted the Union's figures nor made
any attempt to refute them by producing contrary figures Rather he contented
himself by saying that he was familiar with the prevailing wages in the industry in
the area and that he was meeting the requirements and need not pay more. He
made no effort to try to convince the Union that its position on the facts as to the
prevailing wages in the industry in the area was incorrect. The record does not
establish that in fact Callaway was informed on this subject.
In like manner beginning with the second conference and onward Respondent
always took the consistent position with respect to holidays that it would not pay
employees for holidays for the same reasons that it would not give wage increases
Respondent refused to make contributions to the Union's health and welfare fund
on the ground that as the Dallas industry was not organized and as the Union had
only one other Dallas plant under contract, the Union was seeking to make a
guinea pig out of Respondent, and on the further ground that Respondent already
had a group insurance plan to protect its employees, which it deemed sufficient.
Respondent refused to agree to make contributions to the promotion fund on the
ground that such contributions should be made voluntarily and not tinder contract.
At the short April 13 meeting, after Respondent had again stated that it would
make no concessions on these four main money-costing points, the Union pointed
out that it had made concessions on every clause in its proposed agreement, that
it would be very difficult for the Union to settle with Respondent for less than it
settled for with another firm in Dallas, Bierner's, that, in substance, according to
SHARON HATS, INCORPORATED 955
the uncontradioted and credited testimony of the union negotiator, Carmen Lucia,
if the Union could strengthen some of its other clauses on which it had made great
concessions it would then be willing to discuss further its strong demand for some
economic benefits for the employees. During the meeting Respondent said that it
would sign an agreement leaving wages as they were, providing for no pay for
holidays, and no contributions to the health and welfare fund or the promotion fund.
The Union refused to sign such a contract. The meeting ended on the note that
they had reached a temporary stalemate, the Union wanting some economic benefits
and the Company being unwilling to give any. The concluding expressions were
that the parties would think over their positions and if either side were willing to
make further concessions it would so inform the other.
Although it is not entirely free from doubt in view of Respondent's closed minded,
stand-pat attitude concerning money matters-wages, holidays, and contributions
to the health and welfare fund and the promotion fund-on the record as a whole
I conclude that during the February 16 to April 13 bargaining meetings Respondent
bargained in good faith with the Union.
On the entire record 1 conclude also that when the parties reached a good-faith
temporary impasse over the four principal money items on April 13, there were a
number of additional subjects, as set forth above, on which the parties had failed
to reach complete agreement but which they had set aside for the nonce with the
expectation that if they could reach agreement on the more difficult issues they could
get together on these subjects. These included vacations, the duration of the con-
tract, the length of the trial period for new employees, the checkoff, the question of
no strikes, no lockouts, no boycotts, and the questions of not sending out work
and not doing business with struck employers.
On the entire record I conclude further that although the Union had tentatively
agreed to the language of Respondent's counterproposal on a number of subjects,
it did so reluctantly with the hope of getting concessions from Respondent on other
subjects, including economic matters, and it did not foreclose itself from fuither bar-
gaining on these subjects if it considered it to its advantage in the bargaining to do so.
D Respondent's refusal on April 24 and May 11, 1959, to meet further with
the Union
On April 22, 1959, the Union wrote the Company that it was ready to meet again,
suggesting a time and place, and saying that "we have an offer to make to you
regarding a question under discussion. ." In letters dated April 24 and May 11,
1959, Respondent refused to meet further with the Union. Respondent's April 24
letter read as follows:
I am in receipt of your letter of April 22, in which you request a meeting
on April 27, and state: "Please be advised that we are ready to meet with you
again on negotiations for a Union contract. We have an offer to make to you
regarding a question under discussion which will, we believe, indicate to you
our desire to negotiate in good faith."
As you know, I have never had any experience in negotiating with the Union
before, but I cannot understand your letter
For three months we have been negotiating with you for a contract We have
bargained in the utmost good faith, and we have agreed on many portions of
such contract. On March 6, 1959, we sent you our proposed contract, and
since that time in the various negotiations many of the articles were agreed
upon as written and to other articles we both agreed to make amendments.
After much bargaining four issues remained without agreement, namely, holi-
days, wage increases, Health and Welfare contributions, and National Millinery
Promotion Fund contributions At our last meeting on April 13 we advised you
that we could not agree upon these items, and you advised us you could not
agree. We told you we would have no change of heart about them, and you
said you would have no change of heart about them.
Now, if you have changed your position with reference to these four items
and are willing to agree to eliminate them and execute the contract we proposed
with the amendments that have been agreed upon, we will be glad to meet with
you again. All that will be necessary then is to rewrite the contract to include
the amendments we have agreed upon and for the Union and us to execute the
same. To meet again, after the thorough bargaining and negotiations that
have gone on between us, without an indication from you that your position is
changed upon all of these items would, in our opinion, be a waste of time.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In answer to the above letter the Union wrote Respondent on May 8, 1959, as follows:
We have given considerable thought to your letter of April 24. I do not under-
stand your reluctance to meet with us again. As I stated in my letter of April
22 the union has another offer to make. I thought that the offer could better
be discussed at the bargaining table rather than through correspondence. I shall
be specific, however. The union is offering to withdraw its request for con-
tributions to the National Millinery Promotion Fund.
As to the other items you name, to wit, holidays, wage increases and health
and welfare contributions, the union is not taking an adamant position. We
wish to bargain about each of those items, and we trust that there will be further
give and take between the parties.
Please notify me by telephone so that we might discuss a suitable time and
place for a meeting. Our office is available for a meeting, or we might meet at
the factory.
On May 11, 1959, Respondent replied to the Union's letter as follows-
I am in receipt of your letter of May 8, 1959, in which you state that you are
withdrawing your request for contributions to the National Millinery Promotion
Fund, and as to holidays, wage increases, and health and welfare contributions,
"We wish to bargain about each of those items, and we trust that there will be
further give and take between the parties."
I have re-read my .letter to you of April 24, and it appears to me to be very
clear. Although you are withdrawing your request for contribution to the
National Millinery Promotion Fund, this does not seem to be of any importance,
since I am advised you could not insist upon it any way. With reference to the
other matters, our position has not changed, and there is no need to bargain
further about these matters, unless you have changed your position to conform
to ours. In such instance, as I told you in my letter of April 24, all that would
be necessary would be to rewrite portions of the contract in accordance with
amendments we have agreed upon and to execute the same.
Following this correspondence no further negotiation meetings were had between
the parties. As set forth above, on May 28 the Union moved to reopen the hearing.
Conclusions
Under all the circumstances of this case I find and hold that when on April 24
and May 11, 1959, Respondent refused to meet and discuss further with the Union
concerning the terms of an agreement, it refused to bargain collectively in violation
of Section 8(a)(5) and (1) of the Act. Not having done so during the certification
year, Respondent was obliged to bargain with the Union during a reasonable period
thereafter, which under all the circumstances of this case, included April and May
1959. Although an impasse had been reached on April 13, the impasse was broken
by the Union's written offers in its two letters to change its bargaining position.
Respondent refused to meet after receiving the first letter even though at that time
it had no assurance as to what the Union's new offer consisted of except that it
pertained to "a question under discussion " Respondent stood pat on the erroneous
conception of the law that it could require the Union to abandon certain of its
bargaining requests as a condition to Respondent's meeting with it again when, as
found above, a number of subjects other than the four principal money items,
remained to be bargained to their conclusion-including vacations, the duration of
the contract, the trial period for new employees, details of the checkoff, the questions
of no strikes, no lockouts, no boycotts, and whether there should be clauses barring
the sending out of work to be made up in nonunion shops and the selling to or
purchasing from or doing work for a struck employer. Respondent refused to meet
further even though the important question to the Union of its liability for wildcat
strikes had not been bargained out to its ultimate conclusion.
As to the money items, the Union's withdrawal of one item and its expressed
willingness in its second letter to bargain about the three remaining subjects and
not to be adamant about it showed the Union's good faith and implied a willingness
to make further concessions on other clauses tentatively agreed upon in return for
company concessions on wages, holidays, and the health and welfare fund or any
of them-or conversely implied a willingness by the Union to make further conces-
sions in its economic demands or any of them in return for company concessions
on other issues on which the Union had tentatively agreed to accept the language of
SHARON HATS, INCORPORATED 957
the Company's counterproposal. Under the Act, which required Respondent to meet
and confer with the Union, it was not for Respondent to cut off bargaining when the
Union wished to bargain further, broke the impasse, and expressed a good-faith
willingness to make further concessions if necessary in order to achieve a contract.3
Nor was it for Respondent to conclude that a resumption of discussion of the issues
might not lead to eventual settlement of the entire disagreement between them.
There was always the possibility that either Respondent or the Union might retreat
from its strong position concerning the other money issues because of concessions
given or taken on the noneconomic or other items. Where this possibility existed
Respondent was obliged to meet and confer with the Union. It is elementary
that collective bargaining is most effectively carried out by personal meetings and
conferences of the parties at the bargaining table." 4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UNON COMMERCE
The activities of Respondent set forth in section ,III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent refused to bargain with the Union by refusing to
meet and confer with the Union during the certification year, by unilaterally
instituting its vacation plan in May 1958 without consulting or notifying the certified
bargaining agent, and by refusing on April 24 and May 11, 1959, to meet and discuss
further with the Union concerning the terms of an agreement in violation of Section
8(a) (5) and (1) of the Act, I will recommend that Respondent be ordered to bargain
with the Union, upon request, as the exclusive representative of its employees in the
appropriate unit concerning rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees of the Respondent at its Dallas,
Texas, plant, exclusive of all office clerical employees, designers, salesmen, guards,
watchmen, and supervisory employees, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
2. United Hatters, Cap and Millinery Workers International Union, AFL-CIO,
has been at all times since December 5, 1957, and is, the exclusive representative
of all the employees in the aforestated appropriate unit for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
3. By refusing to meet and confer with the Union from December 5, 1957, until
February 4, 1959, and by unilaterally instituting a vacation plan for its employees
in May 1958, without notifying or consulting with the Union, and by refusing on
April 24 and May 11, 1959, and at all times since then to meet and confer with the
Union as the exclusive representative of the employees in the aforestated appro-
priate unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
4. By the conduct set forth in paragraph numbered 3, above, the Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights guar-
anteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
8 Cf. Chambers Manufacturing Corporation, 124 NLRB 721 ; Pool Manufacturing Com-
pany, 70 NLRB 540, 549.
A United States Cold Storage Corporation, 96 NLRB 1108, enfd. 203 F. 2d 924 (C.A. 5),
cert. denied 346 U.S. 818.