Supak and Sons Manufacturing Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1228 (N.L.R.B. 1971)

1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supak and Sons Manufacturing Corporation and Local
26, National Council of Distributive Workers of
America, successor to Local 26, affiliated with Re-
tail, Wholesale and Department Store Union,
AFL-CIO. Case 11-CA-4119
August 27, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On February 11, 1971, Trial Examiner Harry H.
Kuskin issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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 attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in other unfair labor practices
alleged in the complaint and recommended that
those allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision with supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.' The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Supak and Sons Manufacturing
Corporation, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
CHAIRMAN MILLER, dissenting:
The record here establishes that after a short but
intensive series of bargaining meetings, Respondent
made a final offer on December 10, which was
t The Respondent has excepted to certain credibility findings made by
the Trial Examiner . It is the Board 's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the
192 NLRB No. 181
rejected by the Union and apparently was subse-
quently rejected by the membership. At this point the
contract had expired, and there was no reason for
either party to believe that future sessions would be
fruitful. In my view, an impasse had been reached.
When, therefore, on December 12, Respondent
implemented its last wage offer to the Union, no
violation of the Act occurred. Interestingly, the
Union apparently was, at the time, also of this view,
since no protest of any kind was lodged against
Respondent's actions during this period.
When the Union suggested that there might be an
as yet unexplored avenue for settling the dispute,
Respondent agreed to meet again on January 7. The
meeting proved a stormy one, concluding with a
union representative shouting to the management
representative to "get the hell out of here."
Once again, neither side could reasonably have
concluded that there was not a genuine impasse.
Hence Respondent did not violate the' Act when, 12
days later, it implemented its last offer to the Union
as to an insurance program.
Meanwhile, Respondent had been advised of
increasing defections from the union ranks, which
left only 83 employees out of a unit of over 250 who
had not indicated a desire to resign. The Respon-
dent's action in filing a representation petition on
January 14 was well supported by objective consider-
ations and surely did not violate the Act.
The alleged threat to move the plant was, in my
view of the record, no more thane a legitimate
expression of Respondent's determination to move if
the Union refused to recede from rather considerable
economic demands and in the further context of a
union threat that its intended economic action would
be more than "a normal strike."
The allegations of the complaint with respect to the
statements allegedly coercing employees into signing
up for the Blue Cross Plan should have been stricken
in view of the evidence as to General Counsel's
determination not to issue a complaint as to this
matter.
While the record is in confusion as to Respondent's
alleged threat to discharge strikers, the preponder-
ance of the evidence indicates that it advised
employees that if they went out on strike without
union authority, the Respondent would not have to
hire them back. While a doubtful statement of the
law, I am not convinced that, without more, such a
statement is an. 8(a)(1) violation.
Thus, without even commenting on the unusual
credibility findings of the Examiner, in which he
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB
544, enfd. 188 F.2d 362 (C.A. 3). We find no such basis for disturbing
the Trial Examiner's credibility findings in this case.
SUPAK AND SONS MFG . CORP. 1229
credits on a crucial issue witnesses whom he had
repeatedly discredited on,lesser issues , I would find
this record insufficient to establish any of the
violations found by the Examiner and a majority of
lily colleagues . Considered as a whole , it appears to
me that a rather militant faction of the Union,
recently split off from its former parent organization,
sought considerably more in, the bargaining than the
Employer .could be persuaded to give . Asa result, on
two occasions it flatly rejected the best that manage-
ment was willing to offer. When it found that it was
not able to command majority support for its
aggressive stand, it came to the Board complaining
that no impasse ever really existed , and the witnesses
it offered in support of its claim proved less than
truthful on a number of factual questions.
Our statutory command is not to give aid, comfort,
or bargaining leverage to`either employers or unions
when their negotiatingtacticstail . Our only task is to
see that parties . fulfill their obligation to, bargain in
good -faith.
While, therefore , I find no merit to the allegations
herein, I do so with , no reliance on the Respondent's
defense that the Union Also engaged in bad-faith
bargaining; In my view, both parties. proved to be;
hard bargainers , no more and -no less. The Union's
problem was that its hard bargaining did not have
sufficient employee backing 'to enable it successfully
to take strike action . In fact, by the end of the
bargaining it, had lost a very;`substantial portion of its
membership . Failing on those counts , it turned to us
for assistance . But those facts do not justify any
action on our part. -
I would dismiss the complaint - in its entirety.
Act. With specific reference to the 8(a)(5) allegations, it
denies that Local 26, National - Council of Distributive
Workers ofAmerica, herein called Local 26,-NCDWA, (1)
is a successor to Local 26, affiliated with Retail, =Wholesale
and Department Store Union, AFL-CIO, herein called
Local 26, RWDSU, which became the certified bargaining
agent of its production and maintenance employees on
September 22, -1966 , , and - with which it had a collective
bargaining agreement for a 3-year period ending on
December 5, 1969 ; or (2) is, in fact, currently the exclusive
bargaining agent of its production and maintenance
employees with which it is obligated to bargain . And as to
the acts alleged -herein to constitute the-refusal to bargain
in good faith, -it asserts that, if they occurred, they did not
constitute a violation of-the Act.
Upon the entire record,' including my observation of the
witnesses, including their demeanor while on.the witness
stand, and after due consideration of the briefs of the
General Counsel and Respondent , I make , the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The amended complaint alleges, and Respondent admits,
that it is a North Carolina corporation with a plant in
Elizabeth City, North , Carolina, where it is engaged in the
manufacture of children's clothing; that during the 12-
month period preceding the complaint herein, a represent
alive period, it shipped from this plant , directly outside
North Carolina goods valued in excess of $50 ,000; and
that, during a similar period, it purchased directly, from
points outside North Carolina for this plant goods valued
in excess of $50,000. I find,, upon the foregoing, - as
Respondent also admits , that Respondent is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H . KUSKIN, Trial Examiner : This case was heard
at Elizabeth City, North Carolina , on June 9 through 12.
and-October 19, through 21, 1970 ; it was the outgrowth of a
charge and -an, amended, charge filed on January 19 and
March 10, 1970, respectively , and a complaint, which was
thereafter amended at the hearing, and which issued on
April 20, 1970. The questions presented are (1)-, whether,
Supak and Sons Manufacturing Corporation, herein called
Respondent , violated Section 8(ax5) and (1) of the Act by
refusing to bargain collectively in good faith with Local 26,
National Council of Distributive Workers - of
,-
successor to Local 26, affiliated with Retail , Wholesale and
Department Store Union, AFL-CIO , herein called the
Union; and (2) whether -Respondent , in violation of
Section - 8(a)(1) of the Act , interfered with, restrained, and
coerced its employees in the exercise, of their Section 7
rights . Respondent 's answer denies that it has violated the
' Aso in accordance with the -motion of, the General Counsel
to correct the transcript herein, which motion was included m his brief
Respondent admits, and I find , that Local 26, National
Council of Distributive Workers of America, successor to
Local 26, affiliated with Retail, Wholesale and Department
Store Union , AFL-CIO, is a labor organization within the
meaning of the Act. -
III. THE ALLEGED UNFAIR LABOR PRACTICES -
A. Some Background Facts; the Sequence of
Events; ^ and the Issues Herein
As the result of an election conducted on or about
September 22, 1966 , under the supervision of the Regional
Director for Region 11 of the Board - in an admittedly
appropriate production rand maintenance unit of,Respon-
dent's employees, Local 26, RWDSU, was certified on
October 12, 1966, as the exclusive bargaining agent of the
employees in that unit. Thereafter , Respondent entered
into a collective-bargaining agreement covering these
employees with Local 26, RWDSU,, for a 3-year period
ending on December 5,1969.
During the third year of the contract , namely, on April 8,
and to which no objection has been filed.
1230 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
1969, Local 26, RWDSU, initiated action to, disaffiliate.:
from RWDSU. It thereupon sent a -letter by regular mail to-
RWDSU,` dated April, 9,,1969,- advising,RSDSU that its,
executive boardthad voted the day before-to discontinue,
payment,of,the,per capita tax and also to disaffiliate. from
RWDSU'2 - By. 'letter, dated May , l2, . 1X969, "RWDSU
acknowledged' receipt-of the local's letter; but pointed out
that, under the applicable provision of the constitution of=`
RWD$U, such^.notification had to be by registered mail
and the notification would have -to be resubmitted -in
conformity therewith; that the; constitution also provided
that' representatives of both the local seeking to,disaffiliate
and RWDSU,, attempt-to reach agreement as to,-procedures
to be followed in connection with the meeting or , meetings
at which a vote is taken on the disaffiliation question; and'
thattRWDSU expects and demands, until' the effective date
of disaffiliation, full compliance with' the provisions of the
constitution as to the subject local"s financial ' obligations` to
RWDSU. The local=has never resubmitted its April 9 letter
by registered mail. The next communication from it to
RWDSU was by a registered letter from Lock Parker, its
president, dated November 13, 1969, in which was
enclosed a copy of the notice being sent to its members of
the special meeting of ,the,membership to be. held on
November 25, 1969, in order to,decide whether or not to
disaffiliate, from, RWDSU. Parker-also invited RWDSU's`
participation-in'this-meeting,and offered,,to sit down'-with
RWDSU officials at anytime to discuss the question of`the
disaffiliation and thependirig meeting.?The next communi-
cation,between the ,local and RWDSU was by letter dated'
January, 12, 1970, from Lock Parker, aspresidentof Local,
26, NCDWA,'in which-he advised that the November-25,
1969, meeting was, held and that, of the-- 1,559 eligible
members , in the local,3, '1,029' members voted' in ' the
disaffiliation election held it that time and that, of `those
voting, 907 voted for disaffiliation, 113 voted against, and 9
cast spoiled and void ballots. ' The 'letter added=that no
representative of RWDSU was present at this disaffiliation
meeting, nor had ,, .WDSU contacted, the officers of the
local before the,meetntg,to exercise its right'of,participa-
tion and that, , asthe^local has "met all conditions provided,
for under [the` applicable article of the RWDSU constitu-,
tion respecting disaffiliation], it is no longer affiliated with
[RWDSU]. "
The record shows that the NCDWA is a relatively new
International, union, having been formed on May 24, 1969.
It was the outgrowth'of a decision on the part-of District 65
and various locals of RWDSU, led by their respective
presidents, to-- leave that International , because of their
serious' differences' with it regarding certain of its programs
and, policies, part of which were racial in character. The
local herein- identified itself with NCDWA at that time.
Indeed; by-letter dated' May- 27, 1969, to Respondent;
? Payment„ of per, capita tax, was, Fin fact, discontinued thereafter.
RWDSU later sued the, local for moneys claimed to be due, as a result, of
such k"nonpayment . The litigation was thereafter settled by agreement
between the litigants dated October 9, 1970 . One of the provisions of that
agreement was the recognition by RWDSU of the existence of NCDWA
andofcits,Local26: ',
3 Local 26, RWDSU, was an amalgamated local.
4 The covering letters in each instance were addressed by Respondent to
Local 26, NCDWA.
directed to, the attention of Frank Terranova, Respondent's
plant manager and an admitted supervisor, Lock Parkeras
president of Local 26,. NCDWA, 'wrote as` follows'i
This is to notify you that the name of our Union has
been changed' from Local-26, Retail; Wholesale -and
Department Store Union, AFL-CIO to `Local-26
National " Council of Distributive Workers of America.
This-change "took place on'Saturday, May 24, 1969%
This is for your records and information.'
Upon receiving this` letter, Terranova consulted with'
Respondent's labor ' relations iconsultant , Edgar-A. Tug-:
man, about ,its contents. Respondent made, no formal reply,
to this, letter but, acting on Tugman's advice, Respondent
continued,to check off dues, as required under the existing
contract, and then made payment to Local 26 . under' it's.
changed name until December 5, 1969, the contract's
expiration date.4 On the, latter date, Respondent stopped,
collecting dues for checkoff purposes.
The aforesaid contract was, as already indicated, fora 3-
year term; was also automatically renewable from year
to'year thereafter unless written`notice of termination or of
any proposed changes" was served by either party- upon the
other on or before October 6, ,1969, or October 6 of --any,
subsequent year. Such' a timely 4iitten ioticew*as sent'*
Local-16, NCDWA, sometime in September 1969,;,request
ing negotiations concerning a-new, contract. By, answering,
letter, Respondent agreed to ,sit down and negotiate; but,
expressed a,preference for,tvaiting!until after October 15. to,
do so because,it would be very busy, until,-,that time-on.its
fall garments., The irecord is it sharp conf lice as to whether
bargaining, sessions began on Novemberr 3 or on, December
2, 1969, and as to how many . such sessions there were.
Witnesses ` for' the General Counsel testified thattherewefe
three such sessions , namely, o,n December 2'and 4,i 1969,
and - on January 7,_ 1970, plus' -a special ' session on
December 10,5 while witnesses for Respondent, testified
concerning two additional meetings; i.e on November' 3
and 7, 1969. I shall deal with this matter in detail
hereinafter.
The complaint, as amended, alleges that, in the course of
the bargaining that-did' ensue '=until the last session on
January 7, 1970, Respondent did not bargain in good faith,
and that further refusals 'to bargain in $ood faith occurred
thereafter. The record shows `that the' parties have,not met
since January -7, 1970, despite the efforts ^of ' they local
through direct` contact and' through the'Feder~al Mediation
Service' to°`effect a "resumption" of bargaining. One such
attempt, was'' made by the local as late'h: April 21,^ 1970.
Tlie' record ' further shows that ' ori' January' ' 14`-1970,
Respondent', filed-a representation -petition as', to "its
production and maintenance employees"with'the'Region ,1°
Director for'Region 11;- that the initial charge herein bras
filed several '' dayslater on January 19; and` th at, althougha
5 This session was an outgrowlh,of the request, of.,liresident.Nathan'
Supak of Respondent at the December 4 session to talk alone 4with President
Parker of the local in the hope of smaking a deal in settlement „ ,of, the,
differences between both sides. However, it was unproductive. At Parker's
suggestion that Cleveland Robinson;, tliepresideut of NCDWA, would have
to,be present at this type of session ' ' agreement wasreaclied tomeet again
on December 10 in a session, which was also to be held apart from the
union negotiating committee composed of-plant employees.'
SUPAK AND SONS MFG . CORP. 1231
hearing on the petition was scheduled for January 29, the
hearing'was not held and the petition was dismissed by the
Regional Director. As already noted; the complaint herein
alleging violations- of Section 8(a)(1) and, (5) of the Act
issued on-April 20.'The independent allegations of 8(a)(1)
in the ,-complaint, as amended at the hearing, are that
Supak made various coercive threats to the Union during
the, last ^ bargaining -session on January 7; that admitted
Supervisor Frank Terranova also coercively, threatened
employees on January 27 and February l6 and 17, as did
Leonard- Museoplat, a cutting foreman,.fon February 16,
and Morris Shapiro, ,Respondent's vice president, on
February 6,_ 1970; . and= finally that, on May 27, 1970,
Respondent ' further violated this section of. the Act by the
conduct, of Terranova in directing employees, at a meeting
called by him; to initiate, for employee-signature, a petition
opposing any union inetheplant.
B. The "Successorship Issue
It is apparent from my findings heretofore that, although
the local herein had recently commenced its disaffiliation
action from :RWDSU, it not only regarded as done that
which it was yet- to do. respecting disaffiliation, but also
took the further, step of affiliating with NCDWA. At no
time, however, was there any- confusion as to the identity of
the they de factoW successor ^to `the- contracting unions And
so far as `appears, the continuity of 'the organizational
existence `of the local has been preserved, and it has
continued to function in its `day-to-day affairs with no
substantial change `in' its leadership.? k'urther, from the
time of the commencement=of'the disaffiliation action until
the bargaining-sessions ceased, Respondent has'dealt with
the local`'asthe successor to Local 26, RWDSIJ, thereby, in
effect, waiving for all'practical purposes any contention to
the; c' ;ntrary.:Tbus, (1) upon being apprised of the local's
cbange`'of z anie by lettier dated May 12, 1969, Respondent
went along with the change, checking off dues to Local 26,
NCDWA-for the balance bf-the existing, contract; under
which contract it had fo"rinerly checked „off dues to Local
26, R VD U;'`(2) subsea ently,''Respondent treated as
valid the notice sent by ' Local-26; NCDWA, requesting, as
required by =the existing contract of-, either ofthe parties
thereto,-negotiations for a new contract; (3) then;'as found
hereinafter, at the-very first bargaining session for a new
contract,`^Respondent' agreed; without hesitation, to have
the `recognition- clause' of that contract identify- the
C r As' already noted,. the employees of the local, did thereafter vote to
disaffiliate, from,RWDSU, andRWDSU has since recognized the affiliation
of the local„with,NVCDWA.
7 Thus, 'Parker continued as president, Lee R.Ray as vice president, and
F. R. Baileyas°seeretary-treasurer.'- ` ' 'k '
,s Indeed, - Respondent's ,counsel, in effect, so conceded dunng, his
opening statement herein. Thus, when asked -by the Trial Examiner, in
substance, whether I correctly'understood hini to , say '[Respondent, had]
been in bargaining sessions with the alleged successor to the old union," he
answered,'"There's no question -about 'that, Your Honor. We didnot raise
the`technical ' point that-I, have- raised a ntil'these charges were filed against
us. Wie,were ,at thatvpoint :mingto negotiate with the successor union.
Frankly, their affiliation did not mean anything to us, to change, that's their
privilege as employees , but now when they come in and allege what we do,
then I am-,.entitled to raise , that defense as part of the case ...."
9 ,See Canton Sign Co., 174 NLRB 906; Litho-Graphic ,Press, Inc.,,159
NLRB 1; N.L.R.B. v. Harris Woodson Co., 179 F.2d 720 (CA. 4);
bargaining agent as Local 26, NCDWA; and,(4), as also
found hereinafter, at- some of the ensuing negotiating
sessions, Respondent discussed contract terms With Presi-
dent Cleveland Robinson of NCDWA and with Ralph
Worrell, an organizer= for NCDWA. Accordingly, in all
these - circumstances, including -the- fact that Respondent
has extended recognition to Local 26, NCDWA, as the
bargaining agent of its production and maintenance
employees prior to and during the entire , period of
negotiations; I find that Respondent's contention that
Local 26, NCDWA, is not the successor to Local '26,
RWDSU, is an afterthoughts and is not entitled to any
mitigating force in assessing Respondent's bargaining
conduct herein. Furthermore, as no other organization has
claimed rights as the successor to Locai'26, RWDSU; as
Local- 26, NCDWA, is a continuation of=the'same Local 26
under a new affiliation; as the change of affiliation has
since been recognized by RWDSU; and as Local 26's bona
fide existence as an affiliate of 1CDWA can no longer be
doubted, I am satisfied, and find, that Local 26,-NCDWA,
is the successor to Local 26,,RWDSU, and may clawv=all
the rights which derive from the status of the latter as the
certified and contractual bargaining representative of
Respondent's production and maintenance employees 9
C. The Bargaining Sessions and the Accompanying
Events
As already noted, witnesses , for the General Counsel
testified, that the first - bargaining session occurred on
December 2, 1969, while witnesses for Respondent. testified
that there were two bargaining, sessions before the one on
December 2; namely, on November 3 and 7, 1969-There is
no dispute concerning the number of bargaining sessions
postdating December- 2, 1969. In-support of its position
that negotiation sessions were, in fact, held on November 3
and 7, Respondent relied, inter alia, on (1) attendance sheets
purporting to cover each of - these' mebtings;io with
signatures, thereon purporting- to be- those of employees
present in behalf of the Union "' (2) testimony by`Supak,
Terranova, -and Tugman that these meetings did take place
and that those appearing on 'the attendance`, sheets were
present; ` (3) records of =bills which were rendered to, and
paid by, Respondent for meeting rooms rented on those
days by it at the-local Holiday Inn; (4) payroll records and
timecards of employees Betty Upton, Elsie Morgan, Betty
T llett, -and-Marvin Twi€ord showing in each instance an
Continental Oil Co. v. N.L.R.B., 113 F.2d 473 (CA. 10).
io Also introduced into evidence were attendance, sheets for two of the
three regular bargaining sessions,: the occurrence of which, is not in dispute,
viz, December 4, 1969, andJanuary 7, 1970. Respondent asserted that it did
- -not have an attendance sheetfor the session of December 2.
11 The names of those present in behalf of Respondent were admittedly
placed on ,the. attendance sheets by Tugman, the labor relations consultant
of Respondent.
Employees Betty Upton, Elsie Morgan, Betty Tillett, and Marvin
Twiford were the only employees on the Union' s negotiating .comm_ ittee
who testified for the General Counsel . While acknowledging that their
signatures appeared on the purported attendance sheets forNovember 3
and 7 , they , either could not recall , or denied attending, negotiating sessions
on those dates and, except for Twiford who was noncommittal , denied that
any date , appeared, on , the attendance sheets which they did- sign for
meetings they did attend.
1232 DECISIONS OF NATIONAL ; LABOR RELATIONS BOARD
early and virtually simultaneous checkout time by each of
them on those , dates in sufficient time to--attend these
meetings;12 (5), payroll records and , timecards of other
employees on the Union's in-plant negotiating committee,
whose purported signatures appear on the same attendance
sheets, showing a similar checkout time; (6) payroll records
and, timecards for those meetings , the occurrence of which
is not disputed,'showing, as in the instances of November ',3
and 7; a, virtually simultaneous early checkout by witnesses
for the General Counsel and by other employees on the
negotiating committee who attended these meetings; (7)
payroll records and timecards of employees Jean Williams
and Viola Woods, who were on the same negotiating
committee,and whose names appear only - on the November
7 attendance sheet, showing that they checked out about
4:30-p .m., the regular closing time ,- on November 3, but
checked, out at,2:39 p.m. on November 7, thus paralleling
the checkout time for the others whose.names , appeared on
that attendance sheet; (8) testimony by employee Gussie
Lee Thompson , whose name appears on the purported
attendance sheets for November 3 and 7, and who was at
all times material a ,shop -steward for the Union , that she
remembers , Upton,, Tillett, and Morgan signing the
attendance sheets at the meetings which she attended in
November; and (9) testimony by employee Cathy Eubanks
that she was in, the plant in the first part of November at a
time when'Tillett'left early in'order to attend some union
meetings . Accordingly, in view of all the foregoing, and as
the countervailing testimony by the General Counsel's
witnesses in this regard is unconvincing ,l3 I conclude and
find' that' negotiating sessions did, in fact , take place on
November 3 and 7, 1969, and that the attendance sheets
accurately- reflect the names of those who were present at
those sessions.-
1. The session on November 3
A composite , of the testimony of Supak , Terranova, and
Tugman, who -attended this session in behalf of Respon-
dent, establishes that they met with Parker and members of
the ,Union's, in-plant negotiating committee on the after-
noon -, of November 3, 1967, and that, the following
occurred :. Shortly after the meeting convened , Supak made
a plea to the , negotiators for the, Union to make their
demands , reasonable. Thereupon, Parker presented to
Respondent the , Union's contract proposals. Except for
new, proposals for a health , and welfare , plan and for a
pension plan , these proposals were keyed to the provisions
of the existing contract. These proposals were set forth in
skeletal form and, in addition to' the new proposals,
covered ' recognition, subcontracting, seniority, hours,
vacations, holidays, wages, break periods, leaves of
absence, reporting` pay,, and checkoff. The - first item
discussed was the name change , the contract ,proposals
having asked for a . change to be made whenever the name
appeared in the old contract ; namely, in the preamble;. in
article I, the recognition:
'
clause ; and in article XVI, the
checkoff ' ' clause Tugman, speaking for', Respondent,
advised Parker and the committee that he "saw no
1s Negotiating ;sessions, except for the special session on December 10,
1969, were held ' in the afternoon . The working day ended at 4:30 p.m., but
the checkout time on - their timecards for November 3- and 7, 1969, was, in
stumbling block in changing - the name , [from Local 26,
RWDSU, to,, Local 26, NCDWA]." There was also some
exploratory discussion as to the -Union's demands ,respect-
ing subcontracting and seniority and as to its economic
demands. As,to_subcontracting, the Union wanted article
II (management prerogatives), of the existing contract
altered in respect to subcontracting to include a provision
prohibiting such action when employees are in , layoff
status . Respondent's answer thereto was that it had never
in the past subcontracted at the expense of its employees
and, that it felt that such a change would preclude it from
getting a cheaper line of goods ; produced so that it could
maintain some -degree of competitiveness in that particular
area. As to seniority (article III), the^Union's demand read
"Change the first paragraph in seniority." The negotiators
for the Union stated in , this connection that they wanted
deleted from the first section of article III which read, "For
the purpose of promotion to nonsupervisory jobs, lay-off
and rehiring, seniority is accepted , on principle where
fitness and ability are relatively equal," the words "where
fitness and ability are relatively equal." In this regard, the
Union, was thereby, in effect, stating Iits dissatisfaction with
an arbitrator's decision holding that; , tinder article III,
layoffs could be made on the basis of seniority within a
given classification, there being four' such classifications
among sewers, in,descending order of skills; namely, A, B,
C, and 0. Respondent's, negotiators took the position, in
substance, that this changewas not feasible because of the
marked difference in skills between ,the "A" operator and
the "0" operator and their respective ability to turn out
goods in quantity and quality. Finally, . the. parties had
some discussion _of the .Union's, economic -demands which
encompassed, proposed changes in existing contract provi-
sions relating to, , inter ^ alia, wages, vacations, holidays,
reporting pay, double time for Sunday work, and, in
addition, a new provision relating to health and welfare.
The wage, proposal was,`in substance, for a $2.50 miinimum
per hour as against the existing ,$1.62-1%2 for the "0"
classification, plus the- maintenance of the present wage
differentials -among the existing "classifications ; the ` vacs
tion proposal was for "improveaient"; the. holiday, propos-
al vas; for live more paid holidays, to be added to the two
existing paid holidays; _and-the new-health and welfare and
pension , proposals were for payment by Respondent into
the Union's security plan for health and welfare of 9 dents
per hours , for each . employee, and for 'payment by
Respondent , into the Union's pension plan of, 7 .cents per
hour for each employee until June 1, 1970, and thereafter
7-1/2 cents., With respect to,the above, -Respondent's
negotiators after' caucusing and pricing out what a 1-cent
increase in wages across-the-board woiild, co'st and" also
what the Union's health and welfare demands would cost,
advised the Union negotiators thereof,, stressing the
magnitude of, their demand. The other economic demands
were not priced out` at that: time . Thereupon, the meeting
adjourned with the 'understanding that Respondent would
draft and present-to the Union a counterproposal; and that
the ` next meeting would be- held on November 7.
each instance, around 2:30 p.m.
13. Lock Parker, the president of the Union , could not remember whether
bargaining sessions were held on , November 3 and/or November 7.
SUPAK AND SONS MFG. CORP. 1233
2. The session on November 7
Tugman, Ammons, his assistant,14 and Terranova were
present for Respondent at this session . Supak was away
from the plant at that time and authorized Tugman to
negotiate in his behalf. According to a composite of such
testimony- of Tugman and Terranova as I credit , they met
with Parker and members of the Union's in plant negotiat-
ing committee at the - appointed time and the following
occurred : Tugman handed to the negotiators for the Union
and counterproposal of Respondent 15 and followed this by
presenting Respondent 's figures as to the cost to it of the
Union's economic demands. Parker's -response to these
figures was that negotiations on economic issues had to
start some place, and Tugman , in turn , answered that he
did, not want to make an offer in a context in which his
offer would be regarded as ridiculous when measured
against the Union's economic demands . In the area of
wages and health and welfare , the discussion was limited to
the spelling out of costs of the Union's demands, with
Terranova - saying - in regard to the Union's health and
welfare demands that "the demands were exorbitant and
that, by putting these demands in, it would make that plant
100 percent Union , which many of the employees wanted
no part of." Finally, on the matter of vacations , Tugman
offered to consider reducing the number of hours of work
per year which was then required , namely, 1,680 hours, in
order to consider a given year toward determining
entitlement to a vacation . It is apparent from the foregoing,
and I find, that such discussion as did take place was not in
depth but rather exploratory in nature, and that some of
the Union's economic 'demands as related to holidays,
reporting pay, double time for Sunday work , and such
noneconomic demands as related to subcontracting and
seniority were not mentionedm
The counterproposal which 'Tugman and Terranova
testified was furnished to the Union , a copy of which is in
evidence,17 includes, inter alia, (1) a preamble and
recognition clause identifying Local 26, NCDWA, as the
Union, and recognizing it' as the bargaining agent of
Respondent's employees; (2) proposed modifications in the
seniority and grievance clauses of the existing contract; (3)
a proposed expansion of the leave of absence and the
management prerogative provisions of the existing con-
tract; and (4) an alternative provision as to vacations. As
for the rest, it is, in the main, a typewritten reproduction of
1+ The parties stipulated that Ammons would, if called as a witness, have
corroborated Tugman in regard to what transpired at all the negotiating
sessions as to, which Tugman gave testimony and which he attended.
15 Terranova also testified , at another point, that Respondent's counter-
proposal was first presented to the Union at the December 2, 1%9,
negotiating session.
is Although Terranova testified that seniority was discussed, I am
satisfied that he was confusing this negotiating session with the next one on
December 2, Thus, Tugman , who testified from notes that he kept in his
own handwriting on the various negotiating sessions, did not refer to any
such discussion at the November 7 session but, placed a discussion of
seniority similar to that testified to by Terranova at the December 2 session.
In contrast to this, Terranova testified from memory, having made no notes
on his own of these sessions, and sought to refresh his recollection by a
resort to Tugman's notes from time to time.
17 Resp. Exh. S . Analysis of the document is rendered difficult by the
changes and alterations therein, made apparently while the document was
the existing contract , with blank spaces appearing in lieu of
the provisions concerning wage rates,18 the checkoff, and
the term of the agreement.
3. The session on December 2
Supak, Tugman, Ammons, and Terranova were present
for Respondent at this session ; Parker and members of the
in-plant, negotiating committee were presentfor the Union.
Supak, Tugman, and Terranova testified for Respondent;
of the negotiating committee , -employees Betty Upton,
Elsie Morgan, Betty Tillett, and Marvin Twiford -were the
only ones who testified concerning this meeting. As they,
as well as Parker, testified that this,was the first negotiating
session between Respondent and the Union during which
they presented their contract proposals - and Respondent
agreed to the change of name of the bargaining representa-
tive, and as I have found, instead, that this occurred at the
session on November 3, which was, in fact, the first
negotiating session, I accord no probative weight to their
testimony as to what occurred at this third negotiating
session . I rely, instead, on the stipulation of the,parties
relating to this session and on such testimony of Respon-
dent's witnesses as I find credible .19 -According to the
stipulation, the representatives of both'sides went through
Respondent's counterproposal and made notations sepa-
rately as to where there was agreement and where -there
was disagreement "and negotiated at-least one-thing." In
this connection, the notations on -Respondent's copy of-its
counterproposal, in evidence, as supplemented , in part, by
credited testimony of Respondent 's witnesses, establishes, I
find, that agreement was reached on provisions relating to
recognition, grievances, union representatives and shop
stewards, a savings clause, leaves of absence, reporting pay,
union shop chairman, `bulletin board use, safety and
health, strikes and lockouts , and interim amendment; no
agreement was reached as to seniority (both insofar as it
related to promotions to nonsupervisory jobs, layoffs, and
rehiring, and as it related to conditions under which
seniority may be terminated), , management prerogatives,
daily overtime pay (agreement was, however, reached as to
payment of double time for Sunday work), break periods,
and vacations .20 In the area of wages, the discussion
revolved about the provision in the 1966-69 contract of
paying employees according to whether they were in
classifications A, B, C and 0, with the 'Union's negotiators
indicating that they were dissatisfied with, this-system-of
being used as a working paper by Respondent during negotiations.
is Supak, who was the principal negotiator for Respondent and
controlled and directed its negotiations, testified- that Respondent never
submitted any written counterproposal as to wages,
19 Here, as well as at subsequent negotiating sessions , I have, in view of
the variances in testimony from witness to-witness , Attached considerable
weight to the plausibility of a witness' testimony in assessing its credibility.
20 Instead of the existing practice of granting 1 week's vacation with pay
to employees with I to 5 years' tenure , and 2 weeks' vacation with pay to
employees with over 5 years ' tenure, providing in each instance that in order
to count any year toward such vacation the employee had to work 1,680
hours, Respondent proposed that the number of qualifying hours be
reduced to 1,500 and that employees having I to 5 years' tenure receive, in
lieu of vacations, vacation pay amounting to 2 percent of their earnings that
year, and that those employees with more than 5 years of tenure receive, in
lieu of vacations, 4 percent of their earnings that year.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,classification. However, there was no discussion of actual
wage, sates. -Nor, was there any discussion of the term of the
new agreement. At the conclusion ofAhe session, Respon-
dent undertook, in regard to the management provision of
its counterproposal,,to draft rules,as to,employee responsi-
bilities and as to penalties for infractions of such rules.
4. 'The session on December 4
Supak, Tugman,,-Ammons, and Terranova were again
present at-this session in behalf of Respondent, as were
those heretofore mentioned. as being present for the,Union
at the session on December 2, The Union's contingent of
,Parker, and the., in-plant_.,negotiating committee was
expanded, however, 'by the presence, of Ralph Worrell, an
organizer fon-the NCDWA., Also- identified for the first
time in:the record asbeing present for the Union were Lee
R. Ray, vice, president, and employees Vernon' White
and a Miss Ivey of the in-plant negotiating committee. 'A
composite of such testimony as ,I credit of, those who
testified, concerning the session21,.establishes,the following:
Supak, was% again the, chief, spokesman,for Respondent;
however,, Worrell - rather -,than Parker was the chief
spokesman for, the ,Union. ,Supak introduced for the, first
time Respondent's counterproposal on wages and on
holidays,; and, discussions covered, these issues as well as
the, Union's4proposals as,to health,and'welfare, vacations,
periodic reclassification, of, employees,, and seniority.
The, wage discussion began with the Union revising its
original, demand, (which was to raise the pay of those,inthe
"O" classification,' ,the „lowest ,paid employees among
Respondent's sewers, to $2.50an;hour and maintaining the
existing differentials. as tothe'other classifications) 22 to
demand, instead, 20-cents across-the-board for all classifi-
cations,annually dining the period of the contract,,together
with,,a -built-in cost-of-living increase of 5 percent each
year.', Respondent thereafter arrived at a counteroffer of (1)
no,increase to the classification until the third year of
eceive athe contract when employees, so classified would receive'
raise of 2-1/2 cents an hour; 23 (2) increases of 2-1/2 cents,
5 cents,' and 7-1/2^cents,per, hour each yearkto classifica-
tions C, B, and A, respectively; and (3) creation of a new
classification "AA" in the, sewing, room to be paid 5 cents
more per hour`than the "A" classification each year of the
contract., The Union's response to this counteroffer was
that it was totally inadequate.24
As, to ;holiday, issue, the union negotiators indicated that
they were wwilling , to -reduce their initial demands for five
additional paid holidays (the employees were then receiv-
ing two paid holidays) to four additional paid holidays.
Respondent's counteroffer was one additional paid holi-
day,' making"three in all. The Union, however, returned to
its initial position of demanding" five additional `paid
holidays. This change occurred after, the, negotiators for the
Union had caucused on Respondent's counteroffer as to
21 I:e., Supak , Tugman, Terranova, Parker, Worrell, Upton, Tillett, and
Morgan. In addition„I have taken into account the heretofore mentioned
stipulation as to Ammons were he to testify.
22 At the`time, the existing Pay scale was,$1.62-1/2 per hour for the "O','
classification, $1'.67-1/2 for the "C"' classification, $1.72-1/2 for the "B-
classification;"' and '$1.77-1/2 per hour for the "A" classification.
'23 Respondent, at first `proposed denying the `U' classlfieation'any raise
during'the' 3-year period. `
wages and on other matters, arising during the,, negotiations.
The Union's position on additional paid holidays when the
session ended, was that it wanted three additional, paid
holidays the first year and one more,paid, holiday, during
each succeeding year of a 3-year- contract . period.
With respect to health and - welfare and pension, the
Union negotiators also took. the position"after` the aforesaid
caucus that they wanted, aspart of the economic-'pa'ckage,
the `Union's"health and `welfare plan and its pension plan;
under the former, Respondent was to pay 9 'cents per hour
for each unit employee for" the first contract year and' 10
cents per hour for each such employee during the second
and third contract year; and, under the latter, -Respondent
was to' pay 7 cents per hour for each unit employee for the
first contract year and 7-1/2 cents per hour for'each-unit
employee for the remaining contract, year's: Respondent
'caucused and figured 'out' that this request, if granted,
would cost it $300,000.' Whereupon, Supakreferred to the
cost'andfsaid, according to Parker's`undenied-testimony,
which `I• credit,, `-'This-'-you won't get,'because it will make
,you strong:` You just won't get this anyway. -This-would
make you too strong. You just won't get it'"" Respondent
made no, counteroffer to these, demands ^of the, Union
during this session.
As to the vacation issue, `the discussion began with the
proposal made by Respondent at the session on December
2 of reducing the-number of'qualifying hours •oPwork'to
1,500 from ,1,680' and of paying a percentage of `earnings, in
lieu of, vacation periods with pay. The, negotiators for the
Union were agreeable, - to using 1,500 ,, hours as, the
qualifying base but opposed ,the ;payment,ofpercentage of
:earnings . Respondent's negotiators withdrew the percent-
age- feature of their proposal but wished,to return ;to the
vacation provision,, in the 1966 contract in all -other
respects. This was not acceptable to the-negotiators for the
Union. They proposed instead that employees_,with,to,3
years'- tenure be granted 1 week''s vacation;, that employees
with, 3 to, 10 years' tenure be granted 2, weeks' vacation;
and that-those with more than 10,years'' tenure get 3 weeks'
vacation 25 , As to this demand, . Respondent pointed out
that the cost to it of these additional vacations would be
$15,000 the first; year, $20,000 the second year, and $25,000
the third year of the contract.
With respect to existing classifications, the_Union sought
updating of the employees on the classification list,._but
there was no agreement. An understanding was, however,
reached to'establish a'n "AA" classification into which 20
to 30 of the present employees would be, placed by
Respondent, by, March,l, 1970; in addition, there was to be
a periodic review' for placement in this classification by
Respondent, and the Union, was to'have art automatic right
to grieve concerning any selections among employees
made by Respondent.
With respect to, the Union's demand that seniority
24`According to Supak ,` the wage increases demanded by the Union over
the 3-year period at $2 per hour average for- the "0" classification , "white
maintaining existing "differentials as to the other classifications , 'would
amount to -$930,000 ; and would = amount- to $`1,800,000 if computed on the
basis of a$2.50 minimum for the"O" classification.
25 Under the 1966-69 contract,` employees with `1 to 5:years' tenure
received 1 week of vacation, and those with more tenure received 2-weeks'
vacation.
SUPAK AND SONS MFG. CORP. 1235
should no longer be determined according to, an employ-
ee's classification but should bbased on length of service
with .Respondent, no progress was made. Respondent
insisted on maintaining the-status quo.-
5. The further discussion on December 4 between
Supak and Tugman for Respondent and Parker
and Worrell for the `Union
After the discussion detailed above,' Supak turned to
Parker and asked him to adjourn=with, him -to another room
in order to attempt to compromise the-differences between
Respondent and the Union. When Parker insisted on
having Worrell present as a witness, Supak agreed to meet
if he could bring Tugman. The four then repaired to
another room. The credible-evidence establishes that the
discussion that followed was unproductive. Thereupon, the
negotiators for the Union suggested that they would want
Cleveland Robinson, the president'of NCDWA, in on such
discussions as he was an expert in these matters and could
help resolve the differences between them' Su-pak agreed. A
telephone call was then made by Parker and Worrell `to
Robinson and arrangements were made for a meeting of
the same type to be held on December 10 at a club in
Norfolk, Virginia.
6. , The December 10 meeting
This meeting was attended for Respondent by Supak,
Tugman, H.-Lee Kanter (counsel for Respondent herein),
and one Haverson, his assistant. In attendance for the
Union were Parker, Robinson, and Worrell. Drinks were
served at the beginning of the session and it would appear
that, at least initially, a relaxed atmosphere prevailed.
Supak was again the chief spokesman for Respondent;
Robinson acted as chief spokesman for the Union. A
composite of such testimony as I have credited of those
who testified concerning this meeting26 establishes ' the
following: The discussion covered the issues of seniority,
holidays, wages, vacations, and the Union's health and
welfare plan. The first issue discussed was that of seniority.
Robinson proposed replacing the prevailing practice of
predicating seniority on the length of service in a given
employee classification with straightline.seniority among
Respondent's cutters as a group and among Respondent's
sewers and other production employees as a group. This
was opposed by Respondent's negotiators on the grounds
that some of the employees in the lower classifications
could not perform the work being done by other employees
junior to,}them in higher classifications, and-that such a
system, of seniority would interfere with the making of
quality- samples which were, used by its salesmen in selling
26 i.e ., Supak, Tugman, Robinson, Parker, and Worrell.
27 There ' is testimony by Respondent's witnesses that, when concernwas
expressed by Supak and Kanter over the quahty of workmanship of the
ultimate product in relation to the sample if the Union's seniority ,proposal
were accepted , Robinson answered, "I don't give a damn for Supak."
Robinson„ denied that he made this remark . As he impressed me as a
credible witness ` and as more -reliable than those who testified for
Respondent in this connection, I find that Robinson did not make the
remarks attributed-to him. However,„ I am satisfied, and find, that he did
brush aside the statements made of how it would adversely affect
Respondent and demanded, in heated fashion, the inclusion of the Umon's
seniority provision, except for some accomodation for sample making. No
agreement was reached on this issue.
their merchandise and would, even where quality samples
could be, made,-not assure comparable workmanship on its
regular production. Robinson's response,,thereto was that
the Union would accommodate 'Respondent so that it could
disregard, the' Union's proposed seniority provision during
the, -sample making period. -ft is apparent that- the
discussion became heated at times- on, this issue.27
As to the issue of holidays, Robinson enlarged upon,the
Union's initial proposal to add five more paid-holidays and
requested a sixth paid holiday,, predicating.-the changed
position on the fact that, a contract for a,3-year.period was
being sought by ,Respondent. Respondent came forthwith
figures as to -what each additional holiday would, cost
based on the-Union's minimum wage -demand. Before the
meeting was over, however, Respondent- offered to increase
from,onem to,two the number-of additional paid holidays
so that the employees would be getting four, paid holidays
instead of two under the recently expired contract.
On the issue of vacations, the discussion was unproduc-
tive. Apart, from, agreeing that 1,500,hours should be-the
number of -hours worked -in a given year in order to count
that year in determining entitlement to a vacation, neither
side was willing to change its previously asserted position;
i.e., Respondent would, adhere to the existing provisions of
the recently expired contract as to the years of tenure for
meriting, 1 or 2 weeks of vacation, while the Union
proposed vacations 1, 2, and 3 weeks, depending upon
length of service of 1 to 3 years, 3 to 10 years, and over 10
years, respectively. Robinson also indicated during the
discussion that employees of less than 1,500 hours and
more than 1,000 hours of qualifying experience in a given
year `should also be entitled to a prorated vacation.
With respect to wages, Robinson expressed the view that
the, wages of the "0" classification, Respondent's lowest
paid classification, 29 should be advanced to somewhere
over $2 an hour over a 3-year period, while maintaining
existing differentials as to other employee classifications.
This was, in substance, the Union's theretofore revised
demand of 20 cents across-the-board for each employee
annually during the contract period.30 Robinson also
labeled as,a key provision in the Union's demands on
wages, contributions by Respondent,-to the Union's health
and welfare .fund for each employee ,of 9 cents per hour
during the first year and 10 cents per hour during the
second and third years 31 Respondent caucused on
economic issues twice during the meeting. After the first
such caucus, Supak announced that he was willing to
increase his wage offer -to provide an,increase of 5, cents
annually to the "0" classification. And after the second
caucus, Supak announced that he was prepared to increase
his original wage offer as to the C, B, and A classifications
2,8 One additional paid holiday was offered by Respondent at the
December 4 negotiating session.
29 I.e ., $1'62-1/2 anhour.
30 This is referred to in the record in general terms as the Union's $2
minimum wage demand . Unlike Supak who testified that this was only
intimated by the Union, I find'that the, weight of the evidence supports a
finding that it was affirmatively stated.
31 Although the Union's original contract proposal included a demand
for payment by Respondent into the Union's pension fund for each
employee , Robinson made no mention of it. This demand was dropped
thereafter at the January 7, 1970, bargaining session.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by 2-1/2 cents, with the result that, these classifications
would receive each year increasesof 5 cents, 7-1/2 cents,
and, l0 cents, respectively.32 In addition, he offered to pay
$1.92-1/2 an hour to a newly created "AA" classification
during the first-contract year, and 5 cents-above the "A"
classification during the remaining years of the contract.
This offer made no reference to. the Union's health and
welfare demand,., Although Supak pointed out that the cost
to, Respondent of the Union's demands was 'prohibitive
and~ furnished tithe `cost figures,which it had, Robinson
pointed out that Respondent was pyramiding the cost by
adding the cost for the first year and second year to the
cost for the third year, and that, if cost is to be figured that
way, it would make ' undesirable' any negotiating by the
Union fora long-term agreement; he added that, if this was
going, to be Respondent's approach, then the alternatives
to a contract which provided wage increases large enough
to overcome anticipated rises in the cost of living was
either -a l=year contract, or a longer term contract which
provided for automatic cost-of-living increases. As to
Respondent's -revised wage counteroffer detailed above,
December 12,
Robinson replied that he would not recommend it to the
employees who had the ultimate say on whether to accept
or reject Respondent 's wageoffer. At this point , Tugman
stated that this offer of increased wages, of two or more
paid holidays, and of 1,500 hours of work in a givenyear in
order to'count that' year toward qualifying for a -vacation
was Respondent's final ,offer. At no. point had Robinson
indicated that the Union's proposals on'monetary issues
were final ones ., Whereupon, the union negotiators, got up
and left the meeting. Nothing was said , at the time about
when they were to meet again. -
7. Respondent's action on December 12, 1969, of
announcing improvements in wages, vacations, -
and the number of paid vacations,
effective immediately
On Friday,.December 12, Terranova , under directions
from Supak, prepared the following sheet in typewritten
form, listing benefits which Respondent decided to give
to its employees at that time:
1969
Effective immediately the rates of pay will be.,
Sewing Department : Hourly, Increase New Hourly Rate
AA 15 cents per hour $1.92-1/2 per hour,
A 10 cents 1.82-1/2' " " 33
B 7-1/2 cents per hour 1.80
C 5 cents per hour 1.72-1/2
0 5 cents " of
Cutting Room : Hourly ' Increase
11 15 cents ' per hour
2. 10 cents " it
3. 7-1/2 cents per hour
To qualify for vacations 1500 hours
New Tear's Day 1970 additional paid holiday
Christmas Day 1970 additional paid holiday
,A letter explaining in detail will be furnished each employee.
Terranova posted one- copy thereof at each of the five
timeclocks in, the plant, distributed other copies to shop
stewards of the Union, and gave one copy to employee
Twiford for delivery to- Parker, the Union's president.
8. Respondent's action on December 15 , 1969, of
posting a revised list of classifications which
included old classifications and a new "AA"
classification and the employees in each
classification
heretofore found, the Union sought a provision for the
updating of employees in the A , B, C, and 0 classifications
but there was no agreement. The parties did, however,
reach an understanding that an "AA " classification would
be established into which 20 to 30 of the present employees
would be ' placed by Respondent by Match 1 , 1970; and
that there was to be a periodic review for placement in this
classification by Respondent ; and that the Union, had an
automatic , right to grieve concerning any selections made
by Respondent.
The parties stipulated '' that a notice to the above effect
was posted on the plant bulletin board on ,December 15,
1969, with an effective date of December 8 , 1969. As
32 This would have meant $1.72-1/2, $1.80 and $1.87-1/2 for the C, B,
and A - classifications , respectively, during the first contract year.
9. The negotiating session on January 7,,1970'
Respondent agreed to return to the bargaining table after
33 This would appear to be a typographical error, in that $1.87-1/2
was intended.
SUPAK AND SONS MFG. CORP.
a visit by Parker to Supak,at the plant, and after Parker
had indicated that, if Respondent would attend one more
negotiating session, "he was sure something - could be
accomplished.." This negotiating session took place on
January,7; 1970, it a Holiday Inn in the area around the
plant., Present in , behalf , of Respondent were Supak;
Tugman, Ammons, and Terranova; present for the Union
were Parker, Robinson; `Worrell, Ray, and members of the
in-plant negotiating committee , including Upton, Twiford,
Tillett, and Morgan. All of the above testified as to this
negotiating session, except Ray and Ammons. As to the
latter, the parties stipulated, as indicated above, that he
would corroborate Tugman,if he were called as a witness.
A composite of so much, of their testimony as I find
credible establishes the following: Supak, and Robinson
acted as chef spokesmen during the negotiations which
ensued. The Union stated its demands as to wages , health
and welfare, holidays, vacations, seniority, and reclassifica-
tion of employees, and stated its willingness to drop its
demands for a pension plan. It adhered to its previous
demands =of December 10 as .to (1) wage increases of 20,
cents across-the-board, to all classifications, during each
year of, a 3-year contract period; 34 (2) health and welfare,
namely, payment into the Union's health and welfare plan
of 9 cents-per hour for covered employees,the first year and
10 cents thereafter; (3) holidays, namely, 6 additional
holidays; (4) reclassification, namely, joint review periodi.
cally of the classification of each covered employee; and
(5) seniority, namely, separate seniority for all sewing
department employees and other production employees,
and separate seniority for the cutting department employ.
ees. As to vacations, the Union renewed its demand for 1
week for"employees with 1 to 3 years' tenure, 2 weeks for
employees with from 3 to 10 years' tenure, and 3 weeks for
those with longer tenure, with 1,500 hours of work in order
to ' count any year towarcl qualifyng for a vacation; it also
sought prorated vacations for those who worked less than
1,500 qualifying hours and more than 1,000 hours during a
given year. Wages and health and welfare were the two
areas of , concentrated discussion. -As to wages, Supak
sought without' success to-persuade, the Union to accept the
wage increases already given to the employees on Decem-
ber 12, last. Robinson, in turn, pointed out-that the Union
had already lowered its sights by eliminating its earlier
demand for a -cost-of-living increase and wanted the 20
cents across-the-board-figure. He"also- made clear that
included in the wage package-was the Union's demand for
payment by Respondent into - the Union's health and
welfare fund. Supak's reaction to the latter demand was
that the Union would never get it as it would make the
Unionn, stronger.35 Such discussion as was had on seniority
indicated that, Respondent was adhering to its position of
84 This would mean that the "O" classification would receive $ 1.82-1/2,
$2.02-1/2 and $2.22-1/2, during the successive years of the contract, while
other classifications would get correspondingly more by maintaining,the
existing wage differentials . The "O" classification would average a little
more ,than $2 an hour over the 3 -year period.
35 T credit Parker 's undenied testimony in this respect that Supak'said
"You'll never -get it, it would only make you stronger .... Next time you
come around , you'll take my whole plant away from me.... You just
won't get 'that."
1237
continuing , the seniority setup of the old contract; i.e.,
according to work classifications.,
After Respondent and the Union had explored their
respective positions on the above issues , Respondent's
negotiators caucused in order ,to.'reappraise the situation.
Thereafter, the negotiating session resumed and Tugman,
speaking for Respondent , stated its then position to be as
follows: it would add a third paid holiday, to the two
already offered ; it would adhere to .,its position,- on
vacations, namely, that vacations were-to be granted, as set
forth in the recently expired contract , except, that the
number of hours worked per year to qualify would be 1,500
hours; it would not change its position on seniority but
would agree "to propose reclassification and revision and
review by Union and management every 3, months"; it
would not accept the .Union's wage proposal but would
adhere to the wages already put into effect , and it would
offer in lieu of contributions to the Union's health and
welfare plan to provide insurance -coverage 'under the Blue
Cross-Blue Shield - insurance- plan for each" employee,
paying one-sixth of the cost the' first year, one-third of the
cost the second year, and- one-half , of the cost - the third
year-36 Respondent pointed out that it had ' estimated the
cost of Blue Cross-Blue,Shield coverage to itfortheperiod_
of the contract to be $24,000.
There was no further negotiating beyond this point.
According to a composite of such' 'testimony as I find
credible,37 the following occurred : Tugman, after setting
forth the above, said that this-was the -Company's ``last and
final offer." Supak also added that this was as far as
Respondent could go with wages, that the , Union could
take it or leave it, and that if the Union pushed him he
would have to move the plant " as he bad -done before in
another State when the union:' 'involved
r
pushed , him- on
wages . Robinson thereupon accused Respondent of refus-
ing to bargain and warned Supak that were he` to move his
plant "[they] would have to fight him. and in that fight
[they] would seek the help ' of Civil Rights organizations,
because they would have to - attack his merchandise
wherever he sells it."38 Robinson then named the'Solithern
Christian Leadership as one of those organizations, - and
pointed out that the Union had a good relationship, inter
alia, with the Teamsters Union, with black church groups,
and with the black - college students at Norfolk State
College in the vicinity. And to the `com'ment from Supak or
Tugman that such conduct would constitute a, secondary
boycott, Robinson answered , in substance; that the speaker
did not know what secondary boycott means: -About this'
time, Parker interjected that he would file-charges with the
Board since Respondent was acting in an illegal manner.
At this, Supak got up and said, "That's that! There's
nothing else to discuss ."39 Thereupon,'he began to walk to
the door of , the meeting room followed - by the other
36 1 am satisfied that the weight of the evidence establishes 'that
Respondents proposed coverage was for ` employees ` only and not for their
families, whereas the Union's `health and `welfare plan provided ' for the
broader coverage and for payment 'into the plan only by the employer.
sr In 'view of the variances in testimony from -witness - to witness, as
heretoforeindicated, I have attached considerable-weiglit to the plausibility
of a witness testimony in assessing its credibility. --
sa The quoted testimony is that of Robinson.
36 Although Parker testified that' Supak also said that if the Union filed
(Continued)
1238 DECISIONS OF `NATIONAL LABOR RELATIONS BOARD
negotiators for'Respbndent. As they were moving to or
through the door, Ray shouted to them to "get the hell out
of here:" 411
40. 'The abortive efforts by, the Union to resume
bargaining`
The January 7 meeting was the last negotiating session
between Respondent and'the Union. Although the "Union
made: several attempts-,thereafter to effect a resumption of
bargaining, a they proved -unavailing. The first such -attempt
occurred ,6n "Januarys 8, ,They record shows-that employee
Marvin Twiford.requested, and obtained, an appointment
with Supak at 41:45 that morning in Supak's office., Present
with him was 'employee-Tillett,",also a member of ,the union
negotiating ; committee:. According to . the undisputed
testimony of Twiford„as -corroborated-,in -substantial part
by Tillett,,,which I credit, he told Supak that at the meeting
held by, the Union the night before, in the wake of the
bargaining sessioh of that day, the membership voted not
to, strike,and:nominated,him'to ask Supak to come back-to
the bargaining table and bargain; to this, Supak replied
that as long,as ,the Union insisted on its,health and welfare
plan and-seniority clause he would not,-resume-bargaining,
and further that they were in the "wrong union" and "two
militants were, ,running,,,it "41 Another, such abortive
attempt was -made within a week or so thereafter. Here,
too, I - credit Parker's uncontradicted ; testimony that he
requested Federal ° Mediator Robert Calloway of the
Federal -Mediation. Service,over the telephone "soon after",
January.. 7 to,-see if. he, Calloway, could prevail upon
Respondent to return to the bargaining table; and that
about a, week. later, still in the month of January, Calloway
telephoned him, to say that ;he had-tried to arrange such a
meeting-but was, told by management, that they ,could not
meet with the Union until the Umon's pending, unfair labor
practice charge, against Respondent was - "settled" by, the
Board.43 The ,last such attempt,;.I,yfind, occurred ,on April
2,1, 1970, the day ,, after the complaint issued herein. Parker
testified , in this connection, that he came to the plant on
that day, together,with;George Roundtree,,an organizer for
the local; and.;; ,.-, R, .,Bailey,, the secretary-treasurer of -the
local;,that he asked Terranova if he,would get in touch
with Supak, who was then out of"town, to see if they could
sit down, and, resolve their differences; that Terranova
agreed to do so;, and, that when he telephoned Terranova
the following: week„ Terranova told him that Supak^ would
not meet with him because he _,had,,filed, a ,charge with the
Board, , Asa Terranova, failed specifically to , deny this
charps'he would move the'plant, I note that none of'the other witnesses' for
the General Counsel so testified . As I fund these omissions significant, I ant
unable to creditParkerin this regard.
40 Employee Upton.so testified , as did Terranova. initially. Although
Terranova testified thereafter , ' m response to a leading question by
Respondents counsel, that Ray also told Respondent's negotiators to stay
out,, and 'althpugh SupakC and Tuglnan gave identical testimony' to that, I
find that Terranova's initial testimony in this regard, as corroborated by the
testimony of Upton, ,accurately . reflects what was said by Ray.
4r There is,also some ,uneontradicted and.credible testimony by Parker
which bears upon Respondent's position ,respecting , the Union's health and
welfare plan . According to Parker„ after the negotiating session on January
7, he sought permission , through Terranova, for Worrell-and him-to go
through the plant . Their stated ,, purpose was' to see the employees.
Permissjon,was granted by Supak, and Parker and Worrell went through the
attribution- to him^by Parker; and as Terranova , in effect,
admitted that Parker - had asked him about the resumption
of, bargaining and I that - this had 'met with a refusal,43" I
conclude, and find, that; Parker. 'testified credibly that he
made Tan abortive attempt , at resumption of bargaining on
April, 21. -,and that Terranova, in the course thereof,
indicated ,that Supak would'not resume bargaining because
of ,the pending unfair labor practice _chargewhichwas filed
by the Union.
11. ' Respondent 'files a petition for an election,
among its , production and maintenance" employees
Both Supak and Tugman testified that, after the January
7,197%, bargaining session, espondent having by ° that
time received` letters 44 ' roii employees saying they had
resigned from the Union,'it was decided to file a petition
for an election among the production and ' maintenance
employees`to ascertain whether the Union was the majority
representative : °Siipak fixed the period during which these
letters were received as early in January-:1970."As already
found, on January 14, 1970, Respondent-filed such- a
petition with the Regional , Director 'for -Region" 11;
however, on January, 19,' 10' days 'before the scheduled
hearing, date on the petition, the chargeherein was filed by
the Union,, with the consequence-that the hearing was not
held and the petition was dismissed by the Regional
Director.
12. Respondent unilaterally puts Blue Cross-Blue " -
Shield insurance into effect for, its employees
if is admitted, that Respondent put the Blue Cross; Blue
or , its ' employees into effect after theShield coverage' for,'
y 7. Counsel,. for Respondentnegotiating session of Januar
stated on the 'record that notice thereof to the employees
was posted in the plant on January 19: Supak's explanation
as'to'why Respondent took this step was, "They turned us
down " and 'again we said it was-a last and final offer ands we
put'np Blue -Cross,and Blue Shield."
13. _ The alleged threats--to employees "by
management
Employee., Elsie-,, Morgan gave the following uncontro-
verted testimony 'concerning a threat to- her , by
Terranova; 45 Plant , Manager. Terranova, convened a
meeting of Respondent's "employees` in the sewing-room-of
the plant on January27,1970. In addition to the employees
and Terranova,, there were present representatives of Blue
plant. On"their way out from the plant , Supak stopped them and called them
into ' his office. There, Supak offered to make a deal , by-offering "them, in
effect, better , increases in wages, provided toe' Union were "to forego `its
demands , for its health and welfare plan, saying , in this connection ,: "I'll-give,
you better increases in wages but the security plan you won't get."
42 As heretofore found, the charge was filed with the. Boardron January
19. In these circumstances,,, I conclude , and find, that Parker received this
message from Calloway during January but after January 19.u
'43 Terranova's testimony in this regard was asfollows:' "Yes, Mr. Bailey
and Parker came to the plant several times' afier that ... asking to" talk to
Nit.' Supak, and I kept "saying, `We have nothing to say to you people,' we
were just at an impasse with them."
44 Respondent did not introduce any of these letters into evidence.
45 No one else testified concerning this matter.
SUPAK AND SONS MFG. CORP. . 1239
Cross-Blue Shield from the various towns and counties in
the 'area . Terranova told the assemblage that he wanted
.employees to go up to the front of the room and , sign the
cards which the above representatives had for those who
accepted the Bluea Cross-Blue - Shield insurance coverage.
When her ,turn . arrived -to go forward , she-- met with the
representative from. Edenton, who asked her if she was
already covered by Blue Cross -Blue Shield . She replied
that she was completely covered and - asked that she be
excused and allowed to return to work . The representative,
who is unidentified in the record, then asked her to sign a
card.46 When she refused , he asked , why: she -was refusing.
Her reply, was that she was not interested in Blue Cross-
Blue Shield,. and, she. again asked to be excused but he
would not excuse her. She thereupon left him and returned
to her place of work: About 30 minutes later, Terranova
came to her machine , holding a card , and inquired whether
she had refused -to sign such, a card . When she replied in
the affirmative, Terranova said , "Well, you will have to
sign it." She protested Terranova's attempts to force her to
sign a card that she knew nothing about , but Terranova
again said that she would have to sign 'the card . At this,
she said that she "reserve[s] the right not to sign the card."
Whereupon, Terranova reiterated that- she would have to
sign the card' and added that "if [she ] did not sign the card
he would go to the office and pull [her ] union card and
destroy it . Terranova also said that "he had his right to
hire and fire , if he saw fit in his plant .". As the aforesaid
testimony by Morgan, including her attribution to Terra-
nova, stands undenied 'on the record, I credit it and find
that the entire incident occurred in' the manner testified to
by Morgan..
The complaint, as amended , also alleges that Morris
Shapiro, the vice president of Respondent and an admitted
supervisor, and Terranova, as well, did, on February 6 and
16, 1970, `respectively,' make threats to employees of
discharge if they went out on strike. There was testimony
as to the first incident by employee Chester Sutton, a
receiving clerk, and by Shapiro , his' supervisor. Both gave
substantially different versions of their' conversation on
that date, which occurred in a context of rumors that the
employees were going to strike the plant . According to the
testimony of Sutton, , as revised by him during cross-
examination to include the mention of a North Carolina
law by Shapiro , Shapiro approached him and said, "I want
you to tell the fellows [the boys ' in the cutting room] that
under -North Carolina law if the fellows walk out, they
won't come back." According to Shapiro , his statement
was, "Chester, do you realize that if there is a walkout
during
,
working hours , and if it is ruled illegal, according to
North 'Car`olina law , we could hire whoever we choose' to
rehire?" Shapiro denied asking Sutton to so inform the
boys in the cutting room, but admitted asking Sutton
whether the other boys knew' this, and that Sutton did
thereafter report back to him that he, Sutton, had conveyed
his message to the other boys in the cutting room . In this
latter connection, I am satisfied, and find , that Shapiro was
less than forthright and that he did ask Sutton, as Sutton
testified, -to convey the message to the'other boys . In view
of this, and as Sutton impressed me as a more reliable
witness than Shapiro,- I credit , Sutton and find that his
testimony,, on cross-examination, accurately reflects what
Shapiro told, him on that occasion . Accordingly, I find that
the essence of Shapiro's remarks was -that ,Sutton and the
boys in the cutting room would = be discharged if they
engaged in a strike, and I find further that,the reference to
the North Carolina law did not alter the import-of his
remarks, since this reference was so broad as , to, rule= out
any intimation ,that there was a distinction in that law
between a - lawful and an unlawful strike by employees.
The other incident occurred in the course of, a speech to
all the employees by Terranova - in the sewing room.
Terranova testified in this regard , as follows : He assembled
the employees on that occasion, which coincided with the
time when Respondent was getting ready- to make up the
spring samples, of, their clothing ,line and with, the time
when rumors were circulating - through ; the plant of an
impending strike, in order to enlighten the many employees
who had been asking about 'developmentsinnRespondent's
relationship-with the Union., He, told the assemblage that,
since the -contract with the Union had expired on
December 5 , 1969, -Respondent was no longer recognizing
the. Union as their bargaining agent and would no longer
recognize the- Union's'shop -stewards on grievance matters,
but that Respondent would abide-by all -the other terms of
that contract, including , seniority. In addition, he said, to
them, "in' case [they ] have an illegal strike or wildcat
walkout,-without the authority of the Union , that under the
laws of North Carolina, the Right to Work Law, that [he]
would not have to take them back as employees."
Employees Clifton and Eubanks , witnesses called by
Respondent , gave corroborating testimony as to the above,
except that, in the latter connection , Clifton had Terranova
saying that "if they went out on strike that according to the
State law that he would not have to hire them back," and
that Eubanks had him saying , "if -the Union called a, strike
which was a wildcat strike, if the Union walked out on a
wildcat strike, that according , to North Carolina Right, to
Work Law that he did,not have to hire the people backthat
walked out." I find suspect Terranova's testimony, as well
as that of Eubanks , as to what Terranova said in reference
to strike activity by employees . This is , so because if, as
they testified , Terranova had said to te employees, in
effect, that their jobs would be in jeopardyif they called a
wildcat strike without the authorityof the Union, he would
be implying that the Union was still the recognized
bargaining agent, in direct contradiction of , his prior
statement , as to which the testimony is not in dispute and
which I credit , that the Union was no longer in the picture
as ,Respondent was no longer recognizing the Union. More
probable under the circumstances and more consistent
with the logic of the situation , I find, is the testimony of
Clifton that Terranova then told the employees that, "if
they went out on strike that according to-the State law that
he would not have to take them back ." In view of this, and
as Clifton impressed me as a reliable witness, I credit her
and her attribution to Terranova, and find further , as I did,
in substance, in the aforementioned incident involving
Shapiro and Sutton , that the essence of the remarks made
was that the employees risked being discharged if they
46 The record fails to disclose the legend on the card.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went out ' on-strike, and that the reference to State law did
not alter the import ' of these remarks since it was so broad
as to rule out any intimation that there was any distinction
in that law between a lawful and an unlawful strike.
The complaint , as amended, alleges further that Leonard
Museoplat,"a cutting room supervisor, and Terranova, did,
on February 16 and 17, 1970,47 respectively, threaten
employees by informing them that the Company no-longer
recognized `the Union or the Union's stewards , and that it
would no- longer follow the seniority provisions of the
expired contract with the Union . I am satisfied, and find,
consistently with Terranova's admission set forth above,
that he did tell the employees during the aforesaid speech
that Respondent would no longer recognize the Union or
the Union's stewards. But I find no support in the record
for the allegation that Terranova also told them that
Respondent would no longer follow the seniority provi-
sions of , the expired contract . Indeed, Terranova''s, testimo-
ny to the, contrary was corroborated not only by Clifton
and Eubanks , but by White and Upton , the witnesses for
the General Counsel oin this issue . I note, however, that
White did .attribute to Museoplat,. during a conversation
which he .initiated just before , the above-mentioned
meeting, a, statement that Respondent would no longer
follow the sen iority provisions of the old contract now that
the Union w s out . However, Museoplat denied making
that statement, admitting only, in effect, that, when White
inquired as to what . would happen in view of developments
involving the Union , he'said that Respondent would not
change the existing seniority setup . In view of the fact that
Museoplat impressed me as amore reliable witness than
White, I credit Museoplat's denial andfind,that-he did not
threaten White with a change in the existing seniority
setup.
In addition to the foregoing , the complaint, as amended,
alleges, in substance , threats by Supak during the January
7 bargaining session to move the plant (1) if the Union
insisted on bargaining about wages beyond the figure set
by Respondent, and (2) if the Union filed unfair labor
practice charges against Respondent with the Board. As to
(1), I, have found heretofore that , during the above
bargaining session, after Respondent had made what it
called "its last and final offer," Supak added that this was
as far , as Respondent could go with wages, that the Union
could take it or leave it, and that if the Union pushed him
he would ' have to move the plant as he had done in another
State when the Union involved pushed him on wages. As
to (2), I have found also that the record falls short of
establishing that Supak did , in fact, threaten at that time to
move the plant if the Union filed unfair labor practice
charges against Respondent with the Board.
14. The alleged' interference with employees by
Respondent in,directing them at a meeting called
by it to initiate , for employee signatu 'r'e, a, petition
opposing any union in the plant
Employees Tillett, Upton, and Morgan, who testified for
the General Counsel in this connection , each ' gave
substantially , similar testimony, viz, Terranova , called a
meeting of all the employees in the 'plant on May 27, 1970.
At first, Terranova told them about a new , training
program which was to begin on June 15 , next, and
discussed the work situation at the plant: Thereafter, he
made reference to the fact that Respondentwas unsuccess-
ful in its efforts to get a, Board -election to determine ^ the
representative status of : the Union and said that the, best
way to get ' the Union out of the plant was for the
employees to prepare and sign a petition opposing any
union in- the plant, However, Clifton as wellas Eubanks
and Terranova differed in their version of what ; occurred
after production"matters and the status of the petition by
Respondent for a Board election were discussed. Accord-
ing to their mutually corroborative testimony, Clifton
inquired as to whether the employees could ,, .,,get up a
petition concerning getting the Union out of the plant, and
Terranova replied that he could not do anything ,^.that it
was up to her if she wanted to file a petition .-Since I have
heretofore discredited the testimony of Tillett, Upton, and
Morgan , in other respects, e.g., as to whether bargaining
sessions occurred on November 3 and 7, and' since I have
heretofore found Clifton to be a reliable witness, and as her
testimony finds corroboration in the'testimony of. Eubanks
and Terranova and appears more plausible in the circum-
stances, I credit her testimony andfind thatthe allegations
of the complaint , as amended , ,in this respect have not been
sustained by the record.
D. Conclusions as to the Aforesaid Allegations of
Threats in Violation of the Act
Terranova's remarks to Morgan on January ' 27, ,1970,
constituted, in the circumstances , a threat to discharge her
for failing to become a member of, and , thus participating
in, the Blue Cross-Blue Shield insurance program ,unilatei-
ally put into effect by Respondent at the , plant, after the
Union had opposed it during negotiations . In,addition, the
statements by Terranova and Shapiro to employees :that
they risked discharge if they engaged in a strike also
constituted threats of job loss for engaging in activity
protected by Section 7 of the Act. Accordingly, I find,that
Respondent thereby contravened Section 8(aXl) of the
Act. In addition, in view of my findings hereinafter, that the
Union's representative status has continued beyond the
expiration ,date of the 1966-69 contract, and since it is well
established that the matter of a grievance procedure is a
mandatory subject of bargaining ,48 it follows , and I find
further, that by Terranova's conduct of telling-Respon-
dent's , employees - during the above meeting on May 27,
1970, that , Respondent was no longer recognizing the
Union as their bargaining representative and would not
deal with the Union's -stewards on grievances,-as formerly,'
-Respondent impliedly threatened to disregard their Section
7 rights under the Act in violation of,Section 8(a)(1),of the
Act. Finally, I -find, that , by Supak's threat;at the , January,7
bargaining session , as, found, herein, that he would move
the plant if the Union pushd him on wages beyond the
point which he could go, Respondent further threatened
47 I am satisfied that the complaint misstated this date and find, in hght 98 See Industrial Union of Marine and Shipbuilding Workers of Amenca,
of the evidence , that the statements attributed to Terranova were those AFL-CIO [Bethlehem Steel Co.] v. N.L.R.B., 320 F.2d 615 (C.)L 3), cert.
occurring during the course of his speech on February 16, referred to above . demed 375 U.S. 984.
SUPAK AND SONS MFG. CORP. 1241
and coerced its employees in violation of Section 8(a)(1) of
the Act
NCDWA, has been the exclusive bargaining agent of the
employees in the aforesaid appropriate unit.
E. The Allegation of Refusal To Bargain and
Conclusions Thereon
1. The appropriate unit
The complaint, as amended , alleges , Respondent's
answer admits , and I find, that all production and
maintenance employees, including janitors , head fixer, and
truckdriver employed at, Respondent 's Elizabeth City,
North,Carolina , plant, excluding office clerical employees,
professional employees , watchmen, guards and supervisors
as defined in the Act , constitute an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
2. The majority status of the Union
Respondent's answer asserts that at all times since
October 12, 1966, when Local 26, RWDSU, was certified
as the exclusive bargaining agent of the employees in the
aforesaid appropriate unit, until the expiration of its 3-year
contract' with Local 26, RWDSU, the latter has been such
exclusive bargaining agent; however, it denies that Local
26, NCDWA, has been, or is now, the exclusive bargaining
agent of the employees in the appropriate unit. In view of
my' findings above that Local 26, NCDWA, is the
successor to Local 26, RWDSU, and may claim all the
rights which . derive from the status of the latter as the
certified and contractual bargaining representative of
Respondent's production and maintenance employees, it
follows, and I find, that there is no merit to Respondent's
contention that Local 26, NCDWA, was not, during the
period of that contract which is material herein, the
exclusive bargaining agent of these employees. Indeed,
Respondent dealt with Local 26, NCDWA, as such
exclusive bargaining representative at material times
during the contract period and during the negotiations
thereafter, up to`'and including the last negotiation session
on January 7, 1970. Accordingly, as the presumption of
continuing majority after the contract expired has not been
overcome by a" clear showing that Local 26, NCDWA, no
longer 'enjoyed majority support,5° and as it cannot be
found, in view of Respondent's dealing with Local 26,
NCDWA, as such majority representative during the
postcontract period, that Respondent entertained a good-
faith doubt concerning its continued majority,51 I con-
clude, and find further, that at all times material herein,
during the' contract and after its expiration, Local 26,
49 See Textile Workers Union of America v. Darlington Manufacturing
Company, et als380 U.S. 263 (fn. 20).
5o It is manifest that even granting, without deciding, as Respondent
impliedly contends, that less than a majority of the employees in the
bargaining unit were members of the Union or paid union dues, this would
not be the equivalent of showing lack of support, where, as here, the State of
North Carolina had a "right to work" law. See Terrell Machine Company v.
N.L R B., 427 F.2d 1088 (C.A. 'l.
51 See, in this connection, United Aircraft Corporation (Pratt & Whitney
3. Analysis and conclusions on the allegations of
refusal to bargain
As heretofore found, bargaining for a new contract
began on November 3, 1969. Thereafter, additional
bargaining sessions were held on November 7 and
December 2 and 4,52 and a special session of the top
officials of both sides followed on December 10, 1969. On
the latter date, the negotiators for the Union walked out of
the session apparently because of their dissatisfaction both
with the terms then being,proposed by Respondent as an
economic package and with the fact that the package was
being presented as Respondent's final offer. Thereafter,
Respondent unilaterally put - into effect wage increases,
additional paid holidays, and vacation improvements.
Bargaining resumed again on January 7, 1970, at the
instance of the Union. This time, Respondent's negotiators
walked out of the bargaining session, taking this action
when the Union rejected their revised economic package
which was presented as Respondent's last and final offer.
The General Counsel contends, as alleged in the
complaint, as amended, that the Union manifested its bad-
faith bargaining by conduct during negotiations and
thereafter. With respect to conduct during negotiations, he
contends that (1) it unilaterally discontinued on December
5, 1969, collecting dues for checkoff as required under the
1966-69 contract; (2) it unilaterally instituted on or about
December 8, 1969,53 various wage increases; (3) it
unilaterally and precipitately discontinued bargaining
sessions with the Union on January 7, 1970; (4) it
threatened union negotiators on the same date by
proffering a proposal to them relating to a health plan and
informing them that they could take it or leave it; and (5) it
also refused- on that date to engage in meaningful
bargaining relating to a health plan by asserting that the
Union's health plan would make the Union stronger. And
with respect to conduct after January 7, 1970, he contends
that on or about January 27, 1970, Respondent unilaterally
instituted a hospitalization plan for employees and also
unilaterally called meetings of its employees to encourage
them to accept that plan, which was opposed by the union
negotiators. Respondent, in turn, admits that "it put into
effect wage increases and announced same on December
12" and that, "on or about January 27, 1970," it put into
effect a Blue Cross-Blue Shield group insurance program.
However, it defends such action on the ground that in no
instance did the rate of wages or other benefits which were
put into effect unilaterally on December 12 exceed those
wages or benefits which had been offered to the Union by
Respondent at the December 10 session as its last and final
Division), 16$ NLRR480, where the Board held that , "so long as the
contract is in effect, the presumption of continuing majority is virtually
conclusive; thereafter it becomes rebuttable." See also N.L.R.B v. Gulfrnont
Hotel Co., 362 F.2d 588 (C.A. 5); and Terrell Machine Company v. N.L.RB.,
supra.
52 The record shows that meetings were scheduled twice between
November 7 and December 2 but were canceled because representatives of
the Union were unable to be present.
53 The correct date as reflected by the record is December 12, 1969.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer, and rejected; and, similarly, that the increased
benefits in the form of the insurance program did not
exceed Respondent's offer which was rejected by the
Union at the January 7, 1979, session. It contends more
generally that at no time during the bargaining did it
manifest an adamant or inflexible attitude.
As to ,(l), contrary to the General Counsel, I find no
warrant for concluding that Respondent -manifested bad
faith in its bargaining by unilaterally discontinuing on
December 5, 1969, to collect- dues for checkoff as required
under the 1966-69 contract. Since there was no contract in
existence when Respondent `discontinued collecting dues
for checkoff, and since the obligation to effect such
collections derived from the contract, Respondent was free
to discontinue these collections 54
As to (2), the controlling consideration is whether, at the
time of the unilateral changes in wages, the parties -had
bargained to an impasse . For, it is only after good-faith
negotiations have exhausted the prospects of concluding an
agreement that an employer does not violate the Act by
making unilateral changes in existing terms and conditions
of employment that are reasonably comprehended with his
preinripasse proposals.55
An examination of the state of bargaining at the point
when these unilateral changes were made; in the light of
my findings above, shows the following: Four regular
bargaining sessions were held, and then a special session.
The first two sessions were largely exploratory in nature,
the Union submitting written contract proposals at the first
session and Resporident'submitting written counterpropo-
sals at the second session . At the second session, Respon-
dent made no counterproposal, either written or oral, as to
the Union's wage demands . The third session was devoted,
in large part , to going through Respondent's written
counterproposals and determining the areas of agreement
and disagreement .' The parties were in agreement on
numerous provisions which were identical to the 1966-69
agreement , namely, provisions as to union representatives
and shop stewards, union shop chairman, bulletin board
use, reporting pay, safety and health, strikes and lockouts,
interim amendment, and savings clause; they also' agreed
to the altered provisions therein relating to recognition,
grievances, and leaves of absence. There was no agree-
ment, however, as to those provisions in the counterpropo-
sal 'relating to 'seniority, management prerogatives, daily
overtime ', pay, break periods, holidays, and vacations.
Wage rates were not explored at this session. There was as
yet no written or oral counterproposal from Respondent
on wages. The only discussion in this area related to
whether the existing employee classifications of A, B, C,
and 0, which determined an employee's rate of pay under
the 1966-69 contract, should be continued. The fourth
session produced an oral counterproposal from Respon-
dent on wage rates. Along with wage rates, the parties
discussed the issues of paid holidays, vacations, health and
welfare, pensions , periodic reclassification of employees,
and seniority. No progress was made on seniority, the
Union requesting a change in the method of determining
same and Respondent wanting to maintain the status quo.
An understanding was reached on adding a new classifica-
tion, "AA," by March 1, 1970, and leaving to Respondent
the selection of 20 to 30 of its employees for that
classification, subject to the Union' s right to grieve
concerning any selections made by Respondent. Respon-
dent rejected the Union's demands as to health and welfare
and as to pensions on the ground that they were too costly
and added that it would not grant these demands because
to do so would make the Union strong. The vacation issue
was not resolved either.' Although Respondent moved
away from its counterproposal to pay money to employees
in lieu of vacations with pay, there was still unsettled the
question of whether employees could` eain up to 3 -weeks'
vacation with pay and as to the number of years of service,
on the basis of 1,500 qualifying hours of work per year,
which were needed to qualify for such vacations . Nor was
there any resolution of the paid holiday issue, Respondent
offering one additional paid holiday, making three paid
holidays in all, and the Union demanding five additional
paid holidays, making seven paid holidays in all. On the
matter of wages, the Union revised its wage demands from
its, original demand ' for a minimum of $2.50 per hour to
approximately $2 per hour when computed over a'3-year
period, plus a 5-percent cost-of-living increase, and "then
rejected as totally inadequate Respondent' s oral offer of 2-
172 cents, 5 cents, and-7-1 /2 cents per hour annually for
classifications C, B, and A, respectively, and 2-1/2 cents in
the third year. for the "0" classification; thus leaving the
wage issue unresolved as well. The fifth session was the
result of Respondent's proposal, initiated at the fourth
session, to hold discussions between a top official on each
side, excluding therefrom the Union's in-plant negotiating
committee, in order to see whether agreement could be
expedited on those issues which ' separated them. At no
time did the Union,agree to abandon regular bargaining
sessions in the future were this attempt to fail. At this
session, discussion centered on the unsettled economic
issues between the parties and on the noneconomic issue of
seniority. At the, conclusion of the session, =there was no
agreement on any of these issues . The Union's seniority
demands were unacceptable to Respondent 's officials.
There was no movement by either side on vacations. As to
paid holidays, Respondent's officials offered to increase
the number of paid holidays to four; but the union officials
increased their demand from seven to eight paid holidays.
And as to wages, Respondent twice increased its original
offer on wages, but made no offer with respect to the
Union's demands on health and welfare, although the
union officials labeled the latter a key economic demand.
The session ended upon the following note : Robinson said
he would not recommend the revised wage 'counteroffer to
the employees who had, the ultimate say on whether' to
accept or reject it; Tugman then announced that Respon-
Sa See Industrial Union of Marine and Shipbuilding Workers of America,
AFL-CIO v. N.L.R.B., supra, in which the contract had both a union-shop
and checkoff provision and the court reached a similar conclusion. As the
contract in the instant case had no union-shop provision, North Carolina
being a "right to work" State, we are presented here with an a fortiori
situation.
s' See Taft Broadcasting Co., 163 NLRB 475.
SUPAK AND SONS MFG. CORP.
dent's counteroffer as to wages, paid holidays, and
vacations was its final offer; at this, the union officials got
up and left the meetingi56
It was in this context that Respondent proceeded on
December 12 to announce and put into effect its last and
final offer-of December 10 respecting wages, paid holidays,
and vacations , albeit there was also pending, apart from the
above, unresolved differences as to health and welfare,
seniority, management prerogatives, daily overtime pay,
break ' periods, and the duration of the agreement.
"Whether, a bargaining impasse exists is a matter of
judgment. The bargaining `history, the good faith of the
parties in negotiations , the length of the negotiations, the
importance of the issues to which there is disagreement,' the
contemporaneous understanding of the parties as to the
state of negotiations are all relevant factors to be
considered in deciding whether an impasse in bargaining
existed ."57 Here, as found immediately above, it was not
until the, fourth regular bargaining session that Respondent
made a counteroffer on wages and that bargaining
occurred on that issue . While it is true that wages, paid
holidays, vacations, and other economic issues were
discussed at the special session which followed and that
such discussion did not produce agreement on these issues,
this afforded Respondent no warrant for equating this
session to a last-ditch effort at reaching agreement,58 nor
was there any contemporaneous understanding by the
parties to that effect., Furthermore, at the close of the
special session , the issues as to which the parties were still
in disagreement were undeniably important ones. Accord-
ingly, applying these standards, I conclude, and find, that
the parties did not, reach an impasse in negotiations on
December 10, 1969. And I conclude, and find further, that
by unilaterally announcing and -instituting changes in
existing wage rates, paid holidays, and vacation benefits 2
days thereafter, Respondent violated its duty to bargain
under Section=8(a)(5) of the Act.59,
As to (3), (4),, and (5), it is apparent from my findings
above that when Respondent returned to the bargaining
table at the instance of the Union on January 7, 1970, the
session was marked by some progress toward agreement, in
that the Union dropped its demand for a pension
agreement and Respondent revised upward its counteroffer
on paid holidays and on employee reclassification. Howev-
er, no progress was made on the matter of wage rates, as
Respondent would not agree to alter the wage rates which
it had unilaterally put into effect on December 12, 1969.
Also, on the issue of health and welfare, Respondent
56 Although the union officials left without having set a date for the
resumption of regular bargaining sessions , nowhere does it appear that they
were, because of this abortive attempt at speeding up arrival at an
agreement, abandoning efforts at reaching an agreement through further
regular bargaining sessions.
sr Taft Broadcasting Co, supra.
58 I draw no inference adverse to the Union from the size of its economic
demands. For, "what may appear to be an unreasonable, obdurate demand
may, be no more than the skillful practice of the negotiator's art, designed to
wring concessions from the opposite side Congress has excluded the Board
from interfering in this process no matter how strongly it feels about the
merits of the proposals under discussion ." United Steelworkers of America,
AFL-CIO v. N.LRB, 441 F.2d 1005 (C.A.D.C.).
1243
rejected the Union's demand for its own health and welfare
program and gave as one of the reasons for doing so that
such 'a provision would make -the Union stronger.60 While
it is true that Respondent offered to its employees, instead,
a Blue Cross-Blue Shield insurance program with contrib-
utions by it to the cost thereof, this offer was -presented,
along with the above-mentioned revised counteroffers on
paid holidays and on employee reclassification, as the last
and final offer. This was-followed, in turn, by-a threat that
if the Union pushed Respondent, Respondent would move
the plant as it had done before iii another State when the
union involved pushed it on wages. And when tempers
flared, with the Union charging a refusal to bargain and
alluding to what might eventuate if it had to resort to
economic warfare, Respondent's negotiators got up and
left the meeting. It is evident that-the'Union made few
concessions during this bargaining meeting. `However,
taking into account the ` facts that only five bargaining
sessions and one special session had been held, and that
the first two -regular bargaining sessions were exploratory
in nature, and in view of the fact that the Union at no time
indicated that its bargaining positions were final ones, I
conclude, and find, that the Union's negotiators acted
more consistently with a strategy to wring concessions
from Respondent than with an' unwillingness to engage in
meaningful bargaining. Indeed, that the union wished to
bargain further is evident from my findings heretofore as
to its abortive efforts to get Respondent to resume
bargaining; i.e., the next day through the efforts of
Twining and Tillett, later the same month through the
efforts of a Federal mediator enlisted by Parker, and still
later on April 21, 1970, the day after the complaint issued
herein, through the efforts of Parker, Roundtree and Bailey
in contacting Terranova.
Under all these circumstances, I am persuaded, and find,
that by injecting as an operative factor'in its,bargaining
attitude respecting the Union's demand for its health and
welfare program that such a provision would make the
Union stronger, by counteroffering the Blue Cross-Blue
Shield insurance program on'a take-it-or-leave-it basis, and
by unilaterally and precipitately discontinuing bargaining
when it failed to get acceptance of its counteroffer,
Respondent clearly demonstrated that it was` not bargain-
ing with a serious intent to adjust differences and reach an
acceptable common ground. I therefore conclude, and find
further, that Respondent was not bargaining in good faith
and violated Section 8(a)(5) of the Act thereby.61
There still remains the allegations that Respondent
50 See NLRB. v. Benne Katz, d/b/a Williamsburg Steel Products Co.,
369 U.S. 736.
I note that the parties stipulated that, on December 15, 1969, R espondent
posted on its bulletin board a revised list of its employee classifications so as
to include a new "AA'-' classification, and to set forth therein the, employees
in each such classification. However, as no violation was alleged ,in the
complaint, as amended, with respect to this unilateral action, and as the
issue was not fully litigated, I do not pass upon whether such unilateral
conduct also violated the Act.
60 Another reason was the cost to Respondent.
6i See General Electric Company, 150 NLRB 192, and cases cited therein;
see also Basco Olympia, Inc, d/b/a Basco 5-14-25 Cent, 185 NLRB No.
110.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further violated this section of the Act by unilaterally
instituting on or about January 27, 1970, a hospitalization
plan for its employees . Respondent admits , in substance,
that, on January 19, 1970, it announced to its employees
and posted in the plant its Blue Cross -Blue Shield
insurance program but argues , as it did in the instance of
the unilateral grant of wage increases and other benefits on
December 12, 1969, that this grant of benefits did not
exceed what had been offered to the Union during
bargaining and was rejected . Since I have found heretofore
that Respondent did not bargain in good faith at the
bargaining session preceding this unilateral action, it
follows therefrom that no impasse was reached during such
bargaining.62 Accordingly, I conclude, and find, that, by
unilaterally putting into effect a Blue Cross-Blue Shield
insurance program for its employees in the course of
bargaining, Respondent, as it had by its prior unilateral
action on wages and other benefits, violated its duty to
bargain under Section 8(a)(5) of the Act 63
In sum, therefore, I conclude, and find, in light of
Respondent's illegal unilateral action on wage increases
and other economic benefits on December 12, 1969, its
refusal to bargain in good faith as to the hospitalization
issue on January 19, 1970, and its,-illegal unilateral action
on a hospitalization plan on January 19, 1970, Respondent
has, since December 12, 1969, refused to bargain with the
Union in good faith in violation of Section 8(a)(5) and (1)
of the Act.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The . Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, including
janitors, head fixer, and truckdriver employed at
Respondent's Elizabeth City, North Carolina, plant,
excluding office clerical employees, professional em-
ployees, watchmen, guards and supervisors as defined
in the Act.
4. At all times material herein, the Union has been the
exclusive representative of all employees within said
appropriate unit for purposes of collective bargaining,
within the meaning of Section 9(a) of the Act.
62 See Industrial Union of Marine and Shipbuilding Workers of America,
AFL-CIO v. N.LR.B., supra.
63 See N.LR.B. v. Benne Katz, d/b/a Williamsburg Steel Products Co.,
supra. I find it unnecessary to, and do not, pass upon whether, as alleged,
Respondent further violated the Act in this connection by unilaterally
calling meetings of employees in order to encourage them to accept its Blue
Cross-Blue Shield insurance program . I do so because this conduct is part
and parcel of the same transaction considered in the text above and because
the remedy herein as to the violation already found is adequate in the
premises.
5. By unilaterally granting wage increases and other
employee benefits to its employees on December 12, 1969,
during the course of bargaining, Respondent violated
Section 8(a)(5) and (1) of the Act.
6. By refusing to bargain in good faith concerning a
hospitalization plan for its employees on. January 7, 1970,
and by thereafter unilaterally putting into effect a
hospitalization plan opposed by the Union, Respondent
violated Section 8(a)(5) and (1) of the Act.
7. By failing and refusing to bargain in good faith since
December 12, 1969, in the foregoing respects, Respondent
has violated Section 8(a)(5) and (1) of the Act.
8. By the following conduct which interfered with,
restrained , and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act:
(a) Threatening to move its Elizabeth City, North
Carolina, plant if the Union insisted on bargaining about
wages beyond the figure set by it.
(b) Threatening to discharge an employee for failing to
become a member of, and thus participating in, the
hospitalization plan unilaterally put into effect by it at the
above plant after the Union had opposed the plan during
negotiations.
(c) Threatening employees with the risk of discharge if
they engaged in a strike.
(d) Impliedly threatening to disregard the Section 7
rights of its employees by telling them that it was no longer
recognizing the Union, which was their lawful exclusive
bargaining agent at the time, and would not deal with the
Union's stewards on employee grievances.
9. Respondent has not violated Section 8(a)(1) of the
Act in any respect not found herein.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
8(a)(5) of the Act, I shall recommend that Respondent
cease and desist therefrom and from interfering in any like
or related manner with the efforts of the Union to bargain
collectively with Respondent. I shall also recommend
affirmatively that Respondent, upon request, recognize,
and bargain in good faith with, the Union as the exclusive
representative of all its employees in the appropriate unit
with respect to rates of pay, hours, and other terms and
conditions of employment, embodying in a signed agree-
ment any understanding reached 64
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I hereby issue the following recommended: 65
84 Compliance with the terms of the recommended Order herein will
require Respondent to recognize, and bargain in good faith with, the Union
for a reasonable period of time, even if defections from the Union have
resulted in the Union's loss of majority. See Franks Bros . Company v.
N.L.R.B., 321 U.S. 702; N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575;
N.LR.B. v. Miami Coca-Cola Bottling Co., 382 F.2d 921 (C.A. 5).
65 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
SUPAK AND SONS MFG. CORP. 1245
ORDER
Respondent, Supak and Sons Manufacturing Corpora-
tion, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning rates of pay, wages, hours of employment, or
other conditions of employment with Local 26, National
Council of Distributive Workers of America, successor to
Local 26, affiliated with Retail, Wholesale and Department
Store Union, AFL-CIO , as the exclusive representative of
the employees in the following appropriate unit:
All production and maintenance employees, including
janitors, head fixer, and truckdriver employed at
Respondent's Elizabeth City, North Carolina, plant,
excluding office clerical employees, professional em-
ployees, watchmen, guards and supervisors as defined
in the Act.
(b) Granting unilaterally to the employees in the
aforesaid appropriate unit, while engaged in bargaining
with the aforesaid Union, wage increases or other
economic benefits.
(c) Interfering with, restraining, or coercing its employees
in the exercise of their rights guaranteed in Section 7 of the
Act by threatening to move its Elizabeth City, North
Carolina, plant if the aforesaid Union insisted on bargain-
ing about wages beyond the figure set by it; or by
threatening to discharge an employee for failing to become
a member of, and thus participating in, a hospitalization
plan unilaterally put into effect by it but opposed by the
aforesaid union during negotiations; or by threatening
employees that they risked discharge if they engage in a
strike; or by impliedly threatening employees to disregard
their rights under the Act by telling them that it was no
longer recognizing the aforesaid union and would no
longer deal with the stewards of the aforesaid union
concerning their grievances; or by granting them wage
increases or economic benefits; provided, however, that
nothing herein is to be construed as requiring Respondent
to rescind, abandon, or vary any term or condition of
employment heretofore establis.4ed, unless it be as a result
of collective bargaining.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to join or assist a union, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for mutual aid or
protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the aforesaid
Union as the exclusive representative of all employees in
the aforesaid appropriate unit, and embody in a signed
agreement any understanding reached.
(b) Post at its plant in Elizabeth City, North Carolina,
copies of the notice marked "Appendix." 66 Copies of said
notice, on forms provided by the Regional Director for
Region 11, after being signed by a representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof and be maintained for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the said Regional Director, in writing, within
20 days from the date of the receipt of this Trial
Examiner's Decision, what steps Respondent has taken to
comply herewith.67
IT IS FURTHER RECOMMENDED that the complaint, as
amended, be dismissed insofar as it alleges violations of
Section 8(a)(1) of the Act not found herein.
66 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
67 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify said Regional Director, for Region 11, in writing, 20 days from the
date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively in good
faith with Local 26, National Council of Distributive
Workers of America, successor to Local 26, affiliated
with Retail, Wholesale and Department Store Union,
AFL-CIO, as the exclusive representative of the
employees in the following appropriate unit:
All production and maintenance employees,
including janitors, head fixer, and truckdriver
employed at Respondent's Elizabeth City, North
Carolina, plant, excluding office clerical employ-
ees, watchmen, guards and supervisors as defined
in the Act.
WE WILL NOT grant unilaterally to the employees in
the aforesaid appropriate unit, while engaged in
bargaining with the aforesaid Union, wage increases or
other benefits.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed in
Section 7 of the Act:
By threatening to move our Elizabeth City, North
Carolina, plant if the aforesaid Union insisted on
bargaining about wages beyond the figure set by
us; or
By threatening to discharge an employee for
failing to become a member of, and thus
participating in, a hospitalization plan unilateral-
ly put into effect by us but opposed by the
aforesaid Union during negotiations; or
By threatening our employees that they risked
discharge if they engaged in a strike; or
By impliedly threatening our employees to
disregard their rights under the Act by telling
them that we no longer recognize the aforesaid
Union and would no longer deal with the
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stewards of the aforesaid Union concerning their
grievances; or
By granting them wage increases or economic
benefits, provided, however, that nothing herein
requires us to rescind, abandon, or vary any term
or condition of employment, unless it be as a
result of collective bargaining.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to join or assist a union, to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for
mutual aid or protection.
Dated By
(Representative) (Title)
SUPAK AND SONS
MANUFACTURING
CORPORATION
(Employer)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 919-723-2300.