Tomlinson of High Point, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1947

74 N.L.R.B. 681 (N.L.R.B. 1947)

In the Matter of T01VILINSON OF HIGH POINT, INC. and UNITED
BROTHERHOOD OF CARPENTERS cC JOINERS OF AMERICA, #3023, AFL
In the Matter of TODILINSON OF HIGH POINT, INC. and UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF Al1ERICA, LOCAL UNION
No. 3023, A. F. or L.
Cases Nos. 5-C-1861 and 5-R-1117. respectively.-Decided July
30, 1947
Mr. George L. Weasler , for the Board.
Mr. W. S. Blakeney , of Charlotte , N. C., for the respondent.
111r. Lewis J. Hutton, of High Point, N. C., for the Union.
Miss Grace MeEldowney , of counsel to the Board.
DECISION
AND
ORDER
Pursuant to a Decision and Direction of Election of the National
Labor Relations Board, herein called the Board, in Case Na. 5-R-
2127,1 an election was held on May 9, 1946, among employees of Tom-
linson of High Point, Inc., High Point, North Carolina, herein called
the respondent, at its plant No. 10, to determine whether or not they
desired to be represented by United Brotherhood of Carpenters and
Joiners of America, Local Union No. 3023, A. F. of L., herein called
the Union, for the purposes of collective bargaining. At the elec-
tion, a majority of the employees voted against the Union.2 On May
10, 1946, the Union filed with the Regional Director objections to the
election, alleging, in effect, that the respondent had deprived the enn-
ployees of the rights guaranteed in Section 7 of the Act by conducting
a vigorous, expensive, anti-union campaign of interference, restraint,
and coercion.
On May 13, 1946, upon a second amended charge previously filed by
the Union, the Board issued a complaint against the respondent in
166N L. R B. 1347
2 The Tally of Ballots furnished by the Regional Director to the parties indicated that
there were approximately 330 eligible voters in the unit, and that , of 310 valid votes
counted, 125 votes had been cast for, and 185 against, the Union.
74 N. L. R. B., No. 127.
681
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case No. 5-C-1862; and a hearing thereon was held from May 21 to
24, 1946, at High Point, North Carolina, before Trial Examiner Wil-
iam F. Scharnikow. On September 9, 1946, the Trial Examiner
issued his Intermediate Report in said proceeding, finding that the
respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain afh,rmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the respondent filed
exceptions to the Intermediate Report and a supporting brief, and
requested oral argument before the Board.
On December 17, 1946, the Regional Director issued his Report on
Objections in the representation proceeding (Case No. 5-R-2127),
in which he stated that the evidence in connection with the Union's
objections to the election had been introduced at the hearing in the
complaint case (Case No. 5-C-1862), and that he adopted as his find-
ings and recommendations the findings and conclusions of the Trial
Examiner in that case, insofar as they dealt with the events affecting
the election. He therefore recommended that the Board find that
the objections raised substantial and material issues, and that the elec-
tion be set aside and a new one held at such time as there could be a
free expression of the employees' preference. Thereafter, the re-
spondent filed exceptions to the Report on Objections, in which it ob-
jected to the adoption by the Regional Director of findings and con-
clusions of the Trial Examiner, and requested that its exceptions to
the Intermediate Report be accepted as exceptions to the Report on
(3bjections.3
On January 10, 1947, the Board issued an order consolidating the
above proceedings, and on February 4, 1947, pursuant to notice, held
a hearing for the purpose of oral argument at Washington, D. C. The
respondent was represented by counsel and participated in the argu-
ment; the Union did not appear.
Thereafter, on May 16, 1947, the Board issued and served upoil the
parties an order to show cause why a letter of April 10, 1947, from
the Chairman of the Board to the Secretary of Labor, and the Sec-
retary's reply thereto, copies of which are attached hereto as "Appen-
3 In view of the fact that the issues raised by the Union 's objections to the election were
coveted by the allegations of the complaint in Case No 5-C -1862 and more fully litigated
at the hearing before the Trial Examiner, and the further facts that , as indicated below,
the complaint and representation proceedings have now been consolidated and the parties
have had all opportunity to argue all questions involved before the Board , we find no merit
to the respondent ' s objections to the procedure followed by the Regional Director in adopt-
ing the findings and conclusions of the Trial Examiner . On the substantive issues involved,
we have considered the respondent 's exceptions to the Intermediate Report as exceptions
also to the Report on Objections , as requested by the respondent, and have disposed of
them as hereinafter indicated.
TOMLINSON OF HIGH POINT, INC. 683
dix A" and "Appendix B," with respect to certain subpenas for which
the respondent had made application in Case No. 5-C-1862, as set
forth below, should not be made a part of the record. No cause to the
contrary having been shown, the letters are hereby made a part of the
record.
The Board has considered the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief filed by the respondent,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, with the addi-
tions and modifications noted below.
1. At the hearing before the Trial Examiner in the complaint pro-
ceeding, the respondent renewed a request, previously made to the
Regional Director and referred by him to the Trial Examiner, for
the issuance of subpenas daces tecum directed to Conciliation Com-
missioner Fred S. Beck of the United States Department of Labor
and the Secretary of Labor Lewis Schwellenbach or a representative
of the Department of Labor designated by him, requiring them to be
present for the purpose of testifying at the hearing and to have with
them all documents, records, data, and memoranda in their possession
pertaining to any and all bargaining negotiations and dealings be-
tween the respondent and the Union.4 The Trial Examiner denied
the request, after having been advised by the Board's Chief Trial
Examiner that the Department of Labor had a definite rule prohibit-
ing its conciliators from testifying or making disclosures concern-
ing matters occurring in their work. To this ruling of the Trial
Examiner the respondent has excepted.'
The purpose of the subpenas, as stated in the respondent's applica-
tion, was to establish the fact that the respondent had engaged in bona
fide collective bargaining with the Union; and the evidence sought
appears to have been Mr. Beck's testimony with respect to certain con-
4 In the application for subpenas , and again at the hearing , counsel for the respondent
stated that , if arrangements could be made for the written material to be on band at the
hearing in such form as to be admissible in evidence , the respondent would not insist
upon the presence of either Mr. Beck or a representative of the Department of Labor.
Whether such written memoranda actually existed does not appear.
G The Trial Examiner nevertheless suggested to counsel for the respondent that he com-
municate with the conciliator and the Chief of the Conciliation Service in an effort to have
the evidence voluntarily furnished Subsequently , counsel for the respondent advised the
Trial Examiner that the conciliator had said he "couldn't do anything without orders
from his headquarters" ; and that a "Mr. O'Donnell or Mr. O ' Connell," to whom he had
talked at the Department of Labor in Washington , had said "it might be possible to get
access to those records in some manner by conference or something " The record further
shows that , when the Trial Examiner later inquired of counsel for the respondent as to the
status of the matter , the latter replied that he had made no further attempt to get in
touch with the Deparment of Labor.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferences between the respondent and the Union, at which he had been
present in his official capacity at the request of the Union, and, more
particularly, any memoranda or records made by him regarding those
conferences 6 The request for the subpenas did not state the specific
facts to which the conciliator would testify, nor was there an offer of
proof made of such facts. In our opinion, however, his testimony
would apppear to be generally relevant to the issue of good faith bar-
gaining; and, except for the rule of the Department of Labor, dis-
cussed more fully below, we would be disposed to reopen the hearing
and issues the subpenas requested.
The Secretary of Labor, by virtue of the authority vested in him
by statute,' has promulgated a regulation specifically prohibiting
ollicers and employees of the Conciliation Service from testifying in
any case with respect to information coming to their knowledge in their
official capacity, and further stating that no exceptions will be made
without the written consent of the Secretary." Mr. Beck's informa-
tion was clearly acquired in his official capacity. Since the issuance
of the Intermediate Report, the Board has, by the letter reproduced
in "Appendix A" hereto, asked the Secretary of Labor whether he
would be willing to make the necessary written exception to permit
Mr. Beck. to testify in this case, and has been informed by the Secre-
tary (see "Appendix B" hereto) that he would not make such excep-
tion because it would be prejudicial to the interests of the United
States Conciliation Service.
6 Thus, counsel for the respondent stated during the hearing that "if there are records,
memoranda, and such, made at the time of the bargaining conferences between the parties,
and if those records and memoranda throw a light upon the issue here involved , then this
Company can see no good or sufficient reason why those records and those memoranda
should not be made available for such tiuth as they may disclose, and the Company wants
to insist upon that evidence being here and wants to make further effoit to get it bete"
9 "The head of each department is authoiized to prescribe regulations, not inconsistent
with law, tor the government of his depaitnient, the conduct of its officers and clerks, the
distribution and performance of its business , and the custody , use, and preservation of
the records papers, and property appertaining to it" (Revised Statutes, Sec 161 , 5
U S C , Sec 22).
$ This regulation is as follows (Code of Federal Regulations, 1945 Supplement, p. 2817,
Title 29, Subtitle A, Part 2, Sec 2 5) :
Conciliation Seivioe No Commissioner of Conciliation, conciliator, or other officer
or employee of the United States Conciliation Service, shall testify on behalf of any
party to any cause pending in any court or before any board, commission, or other
adm nistiative agency of the United States or of any State, territory, or the District
of Columbia, with respect to any information, facts or other matter coming to his
knowledge in his official capacity, whether in answer to a subpena or otherwise
whenever any subpena shall have been served upon any such Commissioner of
Conciliation, conciliator, or other officer of employee of the United States Conciliation
Service, he will, unless otherwise expi essly directed, appear in answer thereto and
respectfully decline to give the testimony called for, on the ground of being prohibited
therefi om by the regulations of the Labor Department.
No exceptions will be made without the written consent of the Secretary
Note also the general regulation of the Department of Labor prohibiting the furnishing
of copies of records for court proceedings except on order of court, and then only if the
Secretai3 determines that their production is not prejudicial to the public interest (Reg-
ulations of the Department of Labor, G 1' 0 1915, p 83 )
TOMLINSON OF HIGH POINT, INC. 685
However useful the testimony of a conciliator might be to the Board
in any given case, we can appreciate the strong considerations of
public policy underlying the regulation and the refusal to make ex-
ceptions to it, because of the unique position which-the conciliators
occupy. To execute successfully their function of assisting in the
settlement of labor disputes, the conciliators must maintain a reputa-
tion for impartiality, and the parties to conciliation conferences must
feel free to talk without any fear that the conciliator may subse-
quently make disclosures as a witness in some other proceeding, to
the possible disadvantage of a party to the conference. If conciliators
were permitted or required to testify about their activities, or if the
,production of notes or reports of their activities could be required, not
even the strictest adherence to purely factual matters would prevent
the evidence from favoring or seeming.to favor one side or the other.
The inevitable result would be that the usefulness of the Conciliation
Service in the settlement of future disputes would be seriously im-
paired, if not destroyed. The resultant injury to the public interest
would clearly outweigh the benefit to be derived from making their
testimony available in particular cases.
The respondent nevertheless urges that, before any finding of unfair
labor practices is made against'it, the Board must issue the subpenas
requested and apply to a Federal District Court under Section 11 (2)
of the Act for an order compelling the appearance of the witnesses
and the production of the records. We have been reminded before
that the Board "has not been commissioned to effectuate the policies
of the Labor Relations Act so single-mindedly that it may wholly
ignore other and equally important Congressional objectives'"; and
that "it is not too much to demand of an administrative body that it
undertake" the necessary accoininodation of one statutory scheme to
another, "without excessive emphasis upon its immediate tasks." D It
therefore seems inappropriate for the Board, as a branch of the execu-
tive department, to undertake to compel the production of official
information by an agent of another branch of the executive depart-
ment, contrary to the regulation of the head of that department, when
the result of the disclosure of such information would be seriously to
impair, if not to destroy, the effectiveness of 'that department in effectu-
ating the purpose' which it has been commissicnecl to accomplish.
Moreover, even if we were disposed so to proceed, it may seriously be
doubted whether production of the evidence in question could legally
be compelled. Similar departmental regulations, adopted by virtue of
the same statutory authority, have been upheld by the Supreme Court 10
Southern Steamship Company v. N . L. R. B., 316 U. S 31, 47.
10 Boske v. Couaingore , 177 U. S. 459.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other Federal courts a against attempts in. court proceedings to
compel the disclosure of official records or of information acquired in
an official capacity.
If the conciliator's testimony cannot be compelled, must the Board
then refrain from making findings with respect to matters on which
he could have testified? It is not our understanding of the law that a
court or administrative body is barred from making findings and de-
cisions as to particular transactions or conduct where supported by
proper evidence, merely because other testimony or evidence cannot be
adduced because of the existence of some privilege. Moreover, as
subsequently appears, even if we were to disregard the matters as to
which the conciliator could have testified, we would still find that by,
its conduct in other respects the respondent refused to bargain in good
faith, in violation of Section 8 (5) of the Act. Under these circum-
stances, the absence of the conciliator's testimony does not prejudice
the respondent.12
For all the foregoing reasons, we find no error in the refusal to issue
the subpenas requested.
2. We agree with the Trial Exaininer's conclusion that the respond-
ent, on and since August 23, 1944, has refused to bargain collectively
with the Union, within the meaning of the Act. In support of this
conclusion, we rely particularly, as did the Trial Examiner, on the re-
spondent's bad faith in its dealings with the Union, as shown by the
following circumstances: (1) Vice-President Tomlinson's statement
to the union negotiators on August 17, 1944, at the first bargaining con-
ference at which he was present, that he "didn't see that there was any
use of having any signed agreement at this time" (2) the respond-
"Ex Porte Sackett, 74 F (2d) 922 (C C. A 9) ; Steagall v. Thurman, 175 F 813;
In ie Lainberton, 124 F 446; Walling v Comet Carriers, Inc., 3 F R D 442, Fedemal
Life Ins. Co. v Holed, 30 F. Stipp 713
12 It may also be noted that there are only two instances in which the Trial Examiner
made findings adverse to the respondent which were used to arrive at the ultimate conclu-
sion that there was a refusal to bargain, in connection With which the conciliatoi's testi-
mony would have had a specific pertinence and might conceivably have affected the find-
ing One instance was the September conference, as to which the Trial Examiner made
a finding that the respondent's representative there repudiated all points previously agreed
upon by the parties As noted in footnote 14, below, we do not adopt that finding because
of the unsatisfactory state of the record. The other instance was the August 23 confer-
ence, as to which the Trial Examiner made the same finding As we point out in footnote
14, the testimony of the union representative, that the respondent there repudiated the
points previously agreed upon at the July 27 meeting, has documentary corroboration in
the character of the written proposals submitted by the respondent on August 23 In the
face of that circumstance, the conciliator's testimony plainly could have added little.
13 This finding is based on the testimony of Lewis Hutton, the Union's representative.
As indicated in the Intermediate Report, both Tomlinson and A. W. Dunbar, the respond-
ent's superintendent, denied that Tomlinson had made the remark attributed to him, but
the Trial Examiner credited Hutton, and on the record as a whole, we adopt his finding.
The Trial Examiner did not find, however, that the respondent, at the time of Tomlinson's
statement, was refusing to bargain in good faith. We have accordingly considered the
remark merely as part of the background against which the respondent's subsequent con-
duct must be appraised.
TOMLINSON OF HIGH POINT, INC. 687
ent's conduct, during its subsequent bargaining conferences with the
Union and during the proceedings before the National War Labor
Board, in withholding froin the Union the full recognition to which it
was entitled by reason of the Board's certification. This was shown by
its insistence, in the contract proposals submitted by it to the Union
at the meeting of August 23, 1944, on a clause limiting the coverage of
the contract to production employees, although maintenance em-
ployees were also in the certified unit; by its statement, at the same
meeting, that in its opinion the single-plant unit found by the Board
was inappropriate, but that it would negotiate with the Union and, if
an agreement satisfactory to the respondent could be reached, would
not contest the Union's certification; by its contention, during the
War Labor Board proceedings, that the certified unit was inappro-
priate and that, in any event, the Union no longer represented a ma-
jority of the employees therein; and by its assertion, in the summer of
1945, of its doubt of the Union's representative status as a possible
objection to the Union's handling grievances for employees in the unit;
(3) its presentation to the Union, on August 23, 1944, of contract pro-
posals which omitted, rejected, or substantially changed provisions to
which it had agreed on July 27, 1944; (4) its insistence, at the August
23 meeting, that no agreements had been reached on July 27 and that
all matters should be reopened, and its withdrawal of Superintendent
Dunbar from the August 23 meetuig to prevent his confirming the
Union's contentions as to the previous agreements; 14 and (5) its uni-
lateral action in December 1945 and January 1946 with respect to a
vacation plan and wage increases 15
14 Although Tomlinson denied that the respondent, on August 23, 1epudiated the agree-
ments already reached, Hutton's testimony to the eontiaiy is supported by documentary
evidence of the respondent ' s proposals submitted on that date , which contained provisions
at variance Arith those on which the parties had agreed we therefore credit Hutton's
testimony with iespect to the respondent 's conduct on August 23, as did the Trial Exam-
iner. The Trial Examiner has also found that at the next meeting , on September 1, 1944,
the respondent again repudiated all points that had been agreed on . We note, however,
that Hutton ' s testimony on this point , on which the Trial Examiner relied, is not only
contradicted by that of Tomlinson but is not entirely clear. Commissioner Beck, who
was also present at the meeting, was not available as a witness at the hearing Under
the particular circumstances , we shall make no finding that the respondent repudiated
the agreements reached on August 23 and September 1, as it had those made on July 27.
>a The respondent argues that its unilateral action was not improper because in each
case it put the change into effect only after notitying the Union of its proposed action,
thus giving it an opportunity to discuss the matter if it so desired . We note, however,
that the respondent , after notifying the Union , waited only 9 days before announcing the
vacation plan to the employees , although the plan was not to go into effect until nearly 6
months later , and that , in the case of the wage increases , it waited only 2 days before
making the announcement . We agree with the Trial Examiner that the scant notice was
clearly inadequate to allow a reasonable time for the Union to be heard. The respondent
sought to get the benefit of a token compliance with its obligations under ,the Act by
giving the notice , while proceeding in consciously designated haste to grant and claim
sole credit for wage increases and vacations which the Union had sought but the respond-
ent had been unwilling to grant in the prior negotiations , so as to undermine the Union's
position as a collective bargaining"representative and to defeat further collective bargaining.
755420-48-vol. 74-45
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contends, however, that it not only has met and bar-
gained in good faith with the Union, but that it has repeatedly asserted
its willingness to continue to do so. In support of this contention, it
must be conceded that the respondent has, on various occasions, met
with the Union to discuss contract proposals ; that it protested the cer-
tification of the case to the War Labor Board on the ground that the
possibilities of reaching a voluntary agreement had not been ex-
hausted; that, after the War Labor Board went out of existence, it
continued to meet and communicate with the Union; and that on
March 19, 1946, after the final meeting between the parties had broken
up because of the Union's insistence that the respondent sign an agree-
ment embracing the terms and conditions of the War Labor Board's
directives and recommendations, it wrote the Union a letter in which
it stated, in effect, that it was willing and ready to resume negotiations
on any proposals the Union wished to make, and that the concessions
which it had previously made were not necessarily the only ones to
which it would agree. But the Act requii:es more than just meeting
with the collective bargaining representative, going through the mo-
tions of discussing an agreement, and making last minute protestations
of a willingness to bargain, after a lengthy course of conduct which
indicates that the employer is not actually making a good faith effort
to arrive at a collective agreement. On the record as a whole, and par-
ticularly in view of the respondent's bad faith, evidenced by its conduct
as set forth above, we are convinced that the respondent's participation
in meetings with the Union and its protestations of willingness to bar-
gain were merely studied and meticulous efforts on its part to give the
appearance of bargaining in compliance with the Act, while it was in
fact making use of every possible device and excuse to delay and avoid
reaching final agreement's We therefore find, as did the Trial Exam-
iner, that the respondent has at a]1 times since August 23, 1944, refused
to bargain in good faith with the Union, in violation of Section 8 (5)
of the Act.
In addition, we are of the opinion and we find that the respondent's
conduct in withholding from the Union the full recognition to which
it was entitled, and its unilateral action with respect to terms and con-
ditions of employment, considered separately, constituted, per se, vio-
lations of Section 8 (5) of the Act.
3. We also agree with the Trial Examiner's conclusion that the
respondent's republication in April 1946 of the rule first imposed by
it in January 1942, strictly forbidding the solicitation of funds for,
16 Additional support for the conclusion that the respondent's conduct was characterized
by bad faith appears from its attitude of hospitality to the Union and to the principle of
collective bargaining shown by its letters , speeches , and articles , and by its unlawful
attempt to restrict the employees ' union activities during their non-working time.
TOMLINSON OF HIGH POINT, INC. 689
,or membership in, any organization on company time or property un-
less the respondent's permission was first obtained in writing, was
violative of Section 8 (1) of the Act. In Case No. 5-C-1545, decided
October 14, 1944,17 we found that this rule was originally promulgated
and applied by the respondent to impede self-organization; that the
extension to the employees' own time of the prohibition against union
solicitation constituted an unreasonable impediment to self-organi-
zation; and that, in its scope, purpose, and application, the rule inter-
fered with, restrained, and coerced the respondent's employees in the
exercise of the rights guaranteed in Section 7 of the Act. We accord-
ingly ordered that the rule be rescinded insofar as it prohibited union
solicitation on the employees' own time. The respondent has not only
failed to comply with our order, but on April 26, 1946, republished the
rule in the "Tomlinson News" without limiting its scope. In this, as
in the prior proceeding, there is no evidence that the rule, insofar
as it applied to the employees' own time, was either necessary or rea-
sonably calculated to insure plant discipline or efficiency. Further-
more, its publication in the same issue of the "Tomlinson News" in
which the respondent announced that the Board election in plant No.
10 had been postponed from April 24 to May 9 suggests, and we find,
as did the Trial Examiner, that it was intended to hamper the organiz-
ing efforts of the employees in connection with the impending election.
The respondent contends, however, that its action was not unlawful
because the evidence fails to show that the rule was ever enforced.
We do not agree. An employer's statement that certain conduct by
his employees is "strictly forbidden" clearly carries with it an implied
threat that failure to comply with his rule will entail punishment, and
is therefore coercive. It naturally operates to discourage the pro-
scribed conduct. We accordingly find that the respondent's no-solic-
itation rule was unlawful in both scope and purpose, and that its
publication, regardless of whether or not it has ever been enforced,
constituted interference, restraint, and coercion, within the meaning
of Section 8 (1) of the Act.
4. We do not agree with the Trial Examiner's finding that Vice-
President Tomlinson's speeches to the employees in plant No. 2 and
plant No. 10, on May 10, 1944, and April 15, 1946, respectively, his
letters of April 19, 1946, to employees in plant No. 10, and the articles
published in the "Tomlinson News" during April and May 1946,
contained an "indefinite but none the less real threat of reprisal."
On the contrary, although they clearly indicated the respondent's op-
position to the Union and to the principle of collective bargaining,
17 Mattel of Tomlinson of High Pont, The, 58 N. L. R. B 982.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its preference for individual bargaining, they appear to have con-
tained only such expressions of opinion as are protected by the con-
stitutional guarantee of free speech. Furthermore, we note that in
his speech of April 15, 1946, Tomlinson specifically stated that "how-
ever you decide [to vote in the impending Board election], you may
i est assured that no ill-consequences will be visited on you by Tomlin-
son." Under these circumstances, we do not regard the respondent's
speeches, letters, and articles as coercive.
5. Having found that the respondent engaged in unfair labor prac-
tices before the election held on May 9, 1946, in plant No. 10, we
further find that the election was not an expression of the employees'
free choice and did not represent their free and untrammeled wishes
as to collective bargaining representation. We therefore sustain the
Union's objections to the election and overrule the respondent's ex-
ceptions to the Regional Director's Report on Objections, and we shall
set the election aside. However, in view of the length of time that has
elapsed since the election, we shall dismiss the petition for investiga-
tion and certification of representatives in Case No. 5-R-2127, with-
out prejudice to the right of Union to file a new petition if it so desires.
ORDER °
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Tomlinson of High Point,
Inc., High Point, North Carolina, and its officers, agents, successor`s,
and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively in respect to rates of pay,
wages, hours of employment, and other conditions of employment,
with United Brotherhood of Carpenters & Joiners of America.
#3023, AFL, as the exclusive representative of all production and
maintenance employees at the respondent's plant No. 2, including
inspectors, night watchmen, and firemen, but excluding clerical em-
ployees, Bedaux supervisors (industrial engineers), foremen, assistant
foremen, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively to recommend such action;
(b) Prohibiting union solicitation on company property during
the employees' non-working time, or in any other manner interfering
with, restraining, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations, to join or
TOMLINSON OF HIGH POINT, INC. 691
assist United Brotherhood of Carpenters & Joiners of America, Local
Union No. 3023, AFL, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively in respect to rates of pay,
wages, hours of employment, °and other conditions of employment,
with United Brotherhood of Carpenters & Joiners of America, #3023,
AFL, as the exclusive representative of all production and mainte-
nance employees at the respondent's' plant No. 2, including inspec-
tors, night watchmen, and firemen, but excluding clerical employees,
Bedaux supervisors (industrial engineers), foremen, assistant fore-
men, and all other supervisory enployees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively to recommend such action;
(b) Rescind immediately its rule forbidding solicitation on com-
pany property, insofar as it prohibits union solicitation on the em-
ployees' non-working time;
(c) Post at each of its four plants in High Point, North Carolina,
and also publish in the "Tomlinson News," copies of the notice at-
tached hereto, marked "Appendix C." Copies of said notice, to be
furnished by the Regional Director for the Fifth Region, shall, after
being duly signed by the respondent's representative, be posted by
the respondent immediately upon receipt thereof, and maintained by
it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the election held on May 9, 1946.
among employees of Tomlinson of High Point, Inc., at its plant No.
10 at High Point, North Carolina, be, and it hereby is, set aside, and
that the petition for investigation and certification of representa-
tives be, and it hereby is, dismissed without prejudice.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
APRIL 10, 1947
Hon. LEwIs B. SCHWELLENBACIT
Secretary of Labor
Department of Labor
Washington, D. C.
My DEAR MR. SECRETARY : In the course of a hearing before a Trial
Examiner of the National Labor Relations Board upon a complaint
issued pursuant to Section 10 (b) of the National Labor Relations Act,
alleging, inter atia, that the respondent,. Tomlinson of High Point,
Inc., has refused to bargain collectively with United Brotherhood of
Carpenters & Joiners of America, #3023, AFL, counsel for the re-
spondent requested the issuance of subpoenas daces tecion to be di-
rected to C-onunissioner of Conciliation Fred S. Beck of the United
States Department of Labor and to Secretary of Labor Lewis Schwel-
lenbach or a representative of the Department of )Labor designated by
ihim, requiring them to be present for the purpose of testifying at the
hearing and to have with them all documents, records, data, and
memoranda in their possession pertaining to any and all bargaining
-negotiations and dealings between the respondent and the afore-
mentioned union. It appears that Mr. Beck, in his official capacity,
had attended certain bargaining conferences between the respondent
and the Union. In making the request, counsel for the respondent
indicated that if Mr. Beck had reduced the facts to which he could
testify to writing, and if arrangements could be made for the produc-
tion of the written material at the hearing and its admission in evi-
dence, the respondent would not insist upon the presence of either Mr.
Beck or a representative of the Department. The Trial Examiner
denied the application for the subpoenas.
Counsel for the respondent alleged that the evidence sought would
show that the respondent had bargained in good faith. Upon review
of the record, the National Labor Relations Board is of the opinion
that the testimony of the Conciliator or equivalent records would be
generally relevant to the issue of whether the respondent bargained in
good faith with the union at the conferences at which the Conciliator
was present. The Board is therefore disposed to reopen the record
and to direct the issuance of the requested subpoenas in the event that
the Secretary of Labor is willing to make the necessary written excep-
tion allowed in the regulation of the Department of Labor prohibiting
officers or employees of the United States Conciliation Service from
testifying with respect to information, facts, or other matter coming
TOMLINSON OF HIGH POINT, INC. 693
to their knowledge in their official capacity (Article III, Sec. 3, of the
Regulations of the Department of Labor; Title 29, Subtitle A, Part 2,
Sec. 2.5, of the Code of Federal Regulations), and in the further regu-
lation prohibiting the furnishing of copies of records of the Depart-
ment of Labor except under specified conditions (Article III, Sec.
2, of the Regulations of the Department of Labor).
On the other- hand, if you are not inclined to snake the necessary
exception to these regulations, no purpose would be served by issuing
i he subpoenas.
So that the Board may be guided in determining whether or not to
reopen the record and to direct the issuance of these subpoenas, will
you be good enough to indicate to the Board your position in the
matter?
It is the intention of the Board to make this letter and your reply a
part of the record in the present proceeding. We trust that this will
be agreeable to you. .
Very sincerely yours,
PAUL M. HERZOG,
Chairman.
APPENDIX B
DEPARTMENT OF LABOR,
OFFICE OF THE SECRETARY,
Washington.
ArRu.22, 1947.
HONORABLE PAUL M. HERZOG, Chairman
National Labor Relations Board,
Washington 25, D. C.
DEAR MR. HERZOG : This will acknowledge receipt of your letter of
April 10, 1947, inquiring whether an exception to the regulations of
this Department will be made to permit Commissioner of Conciliation
Fred S. Beck to testify in response to a subpoena in a proceeding"before
the National Labor Relations Board. It appears that respondent in
the Matter of Tomlinson of High Point, Inc., an unfair labor practice
proceeding, has requested that a subpoena be directed to Mr. Beck, or,
in the alternative, that the Department of Labor produce any written
records of the participation of Mr. Beck in the negotiations which are
the subject of the proceeding.
I am advised by the Associate Director of the United States Concilia-
tion Service that he considers that it would be detrimental to the inter-
ests of the Service if Mr. Beck were to be permitted to testify in this
case. Under these circumstances, I am unable to grant your request.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have no objection to the inclusion of this letter in the record of the
proceeding in question.
Yours very truly,
[s] L. B. SCHWELLENBACH,
Secretary of Labor.
APPENDIX C
NorICE To ALL EMPL OYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations , to joint or assist United
Brotherhood of Carpenters &-, Joiners of America, #3023, AFL, or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection . All our employees are free to become or remain
members of this union, or any other labor organization.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
hours of employment or other conditions of employment, and if an
understanding is reached, embody such understanding in a signed
agreement . The bargaining unit is : All production and mainte-
nance employees at our plant No. 2, including inspectors, night
watchmen, and firemen, but excluding clerical employees, Bedeaux
supervisors (industrial engineers ), foremen, assistant foremen,
and all other supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action.
We hereby rescind our rule forbidding solicitation on company
property, insofar as it prohibits union solicitation on the em-
ployees' non -working time.
TOMLINSON OF HIGH POINT, INC.,
Emplo yer.
Dated------------ By --------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
TOMLINSON O1 HIGH POINT, INC.
INTERMEDIATE REPORT
1£r George L. TVeaslcr, for the Board.
Mr. W. S Blakeney, of Charlotte, N. C, for the respondent
Mr. Lewis J Hatton, of High Point, N. C, for the Union.
STAT1.:nrNT OF TITE CASE
695
Upon a second arneiidecl charge filed on January 26, 1946, by United Brother-
hood of Carpenters ^& Joiners of America, #3023, AFL, herein called the Union,
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Fifth Region (Baltimore, Maryland), issued its complaint dated
May'13, 1946, against Tomlinson of High Point, Inc., High Point, North Carolina,
herein called the respondent. The complaint alleged that the respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint,
the second amended charge, and a notice of hearing were served upon the
respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
(1) that, on and since May 26, 1944, the respondent violated Section S (1) and
(5) of the Act, by refusing to bargain collectively with the Union as the exclusive
bargaining representative of an appropriate bargaining unit of the respondent's
employees, a majority of whom had selected the Union as their bargaining repre-
sentative in an election' conducted by the Board on May 10, 1944, and (2) that
the respondent has violated Section S (l) of the Act in that, on and since
October 14, 1944, (a) the respondent has generally urged, persuaded, and warned
its employees to retrain from assisting, becoming members of, or remaining
members of the Union: (b) the respondent, for this purpose, has prepared and
distiibuted propaganda and publications among its employees and has compelled
them to listen to speeches of its othcei s and agents during working hours; (c) the
respondent has urged and induced its employees to deal directly with the respond-
ent and to repudiate the Union and to renounce their membership in the Union,
granting wage increases for that pun pose saui informing and warning the employees
that collective bargaining through labor organizations is unnecessary and that
they would i eceive no benefits ti oni the Union or "outside" labor orgganizations ;
(d) the respondent has refused to comply with directiNe orders of the National
War Labor Board requiring the respondent to recognize the Union as the exclusive
bargaining repieseitative of certain employees. (e) the respondent has refused
to deal with the Union conceimurg grievances of employees in the unit for which
it was certified by the Board as exclusive bargaining representative; (f) the
representative has permitted the distribution of anti-union propaganda on com-
pany time and property but has prohibited the employees from engaging in the
solicitation of union memberships and other activities on behalf of the Union
on company property during the employees' own time; and (g) the respondent
has urged, persuaded and warned the employees, generally and in the speeches
already mentioned, not to vote for the Union in elections conducted by the Board,
and has also granted wage increases in order to defeat the Union in these
elections.
In its answer to the complaint , the respondent denied generally its commis-
sion of the unfair labor practices alleged in the complaint, and also (1) the
appropriateness of the bargaining unit which the Union sought to represent
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (2 ) the continuance of the Union' s status as exclusive bargaining representa-
tive of the employees in that unit.
Pursuant to notice, a hearing was held from May 21 to May 24, 1946' in-
clusive, at High Point, North Carolina, before the undersigned, the Trial Ex-
aminer duly designated by the Chief Trial Examiner The Board and the
respondent, appearing by counsel,' and the Union, appearing by representative,
participated in the hearing and were affoided full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on
the issues.
At the beginning of the hearing, the respondent moved to dismiss the allega-
tions of the complaint concerning violations of the Act other than the respond-
ent's refusal to bargain with the Union, on the ground that the second amended
charge, although generally alleging unfair labor practices within the meaning
of Section 8 (1) and (5) of the Act, specifically set forth only the refusal to
bargain as an unfair labor practice. This motion was denied: At the begin-
ning of the hearing, a motion by the respondent to have the allegations of the
complaint made more specific, was granted in part and denied in part' Counsel
for the Board thereupon furnished the respondent with a bill of particulars
in compliance with this ruling betore any testimony was taken At the begin-
ning and at the close of the hearing, the respondent applied for the issuance
of subpoenas directing Fred Beck, a Conciliation Commissioner of the United
States Department of Labor, and any repi esentative of the United States
Department of Labor, designated by it, to appear and testify, and to produce
their records and memoranda concerning bargaining negotiations and dealings
between the respondent and the Union. These applications were denied. At
the conclusion of the hearing, the undersigned granted an unopposed motion
by counsel for the Board to amend the pleadings to conform to the proof with
respect to minor matteis such as dates and the spelling of navies At the same
time, the undersigned reserved decision upon a motion by the respondent to
dismiss the complaint. This motion is now denied in conformity with the con-
siderations hereinafter set forth. At the end of the hearing, the parties waived
oral argument. Thereafter, pursuant to leave granted to all parties at the
hearing, the respondent and counsel for the Board filed briefs with the Trial
Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
T. THE BUSINESS OF THE RESPONDENT
The respondent, Tomlinson of High Point. Inc, is a North Carolina corporation
having its prinicpal office and place of business in High Point, North Carolina,
where it is engaged in the manufacture, sale and shipment of household furniture.
i The respondent waived the 10-days notice of hearing piovided by Article it Section 5
of the Board's Riles and Regulations, Series 3, as amended
2 HI114 Biothers Co , 67 N L R. B. 1249. See also Consolidated Edison Co V N. L R. B ,
305 U S 197, 225 Consumers Poicer Co v N. L R. B, 135 F. (2d) 38, 41-43 (C. C. A. 6).
3 The motion was granted insofar as it requested information concerning the approximate
dates of various acts of interference, restraint, and coercion alleged in the complaint and
also the names of the respondent ' s representatives who were involved ; the motion was
denied insofar as it requested the names of the employees involved in these incidents and
the manner and means of, and the occasions for, the respondent 's commission of these acts.
TOMLINSON OF HIGH POINT, INC. 697
During each of the years 1944 and 1945 the respondent purchased for use at its
plant at High Point, North Carolina, lumber, textiles, and other raw materials
of a value in excess of $1,000,000, of which approximately 50 percent was obtained
from points outside the State of North Carolina. During each of these years,
1he respondent manufactured at its plants at High Point, North Carolina, finished
products of a value in excess of $2,000,000, of which more than 50 percent was sold
and shipped to points outside the State of North Carolina.
II THE ORGANIZATION INVOLVED
United Brotheihood of Carpenters & Joiners of America, #3023, AFL, is a labor
organization admitting to membership employees of the respondent.
III TIIE UNFAIR LAI30R PRACTICES
A. The facts
I The Board 's certification of the Union as the representative of employees in
plant No. 2 ; the pre-election speech of Vice-President Tomlinson
The respondent operates four plants in High Point, North Carolina, respec-
tively, designated as plants Nos. 1, 2, 4, and 10. On April 13, 1944, upon the
Union's petition and a hearing in case No. 5-R-1497, the Board issued its De-
cision and Direction of Election,` in which it rejected the respondent's contention
that the employees in all four of its plants comprised a single appropriate bar-
gaining unit, and found, in general accordance with the Union's petition, that
all production and maintenance employees at plant No. 2, including inspectors,
night watchmen, and firemen, but excluding clerical employees, Bedaux super-
visors (industrial engineer's), foremen, assistant foremen, and all other super-
visory employees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees or effectively recommend such
action, constituted a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act. At the same time, the Board
directed that an election by secret ballot be held under the supervision of its
Regional Director, among the employees in this unit to determine whether or not
they wished to be represented by the Union
The election was scheduled for the afternoon of May 10, 1944. On the morning
of that day, the respondent's foremen informed the employees in plant No 2 that
at 11: 30 a. in, they were to quit working to hear a speech to be given by William
A. Tomlinson, vice-president of the respondent, on the second floor of the plant
Accordingly, at 11 • 30 a in , the machinery of the plant was shut down, the em-
ployees gathered on the second floor of the plant, and Vice-President William A.
Tomlinson, then an officer in the United States Navy on leave from his duties with
the respondent, delivered a prepared address At the close of his speech, at about
11: 55 a. in. and just before the regular noon lunch period, a copy of this speech
was delivered to each of the employees.
In his speech, 'Fonihpson, asserting that lie spoke "entirely in a private capac-
ity" notwithstanding his appearance in a Navy uniform, thanked the employees
on behalf of their fellow employees in the Armed Services, for their "cooperation
and loyalty to the management " Scores of 'i'omlinson's servicemen, lie said, had
written letters expressing their hopes that the company be kept "strong, alert,
4 Tomlinson of High Point, Inc, 55 N L. R. B. 1287.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and progressive, so that we may have our work here when we return " Tomlin-
son then stated, "you are not letting them down, and I know you will not let
them down." After briefly remarking upon the prosperity of the company, the
superiority of its merchandise, the teamwork in its organization, and its practice
of using its profits for new factories, equipment, research and sales promotion "so
that there might be more jobs and a greater service to this community," Tomlin-
son addressed himself. specifically to the election to be held that afternoon Men-
tioning the respondent's unsuccesstul opposition before the Board to the separation
of the employees in plant No 2 from those in the respondent's other plants,
Tomlinson asserted that if the Union won the election, "the employees in Mill
No 2 will be required to make all of their arrangements with the company in
respect to wages, hours, and working conditions through a committee of the
Union. The employees in the other plants and departments of your Company will
still have the privilege of dealing individually with the management at any time
concerning all such matters I suggest you give serious consideration to the
situation and ask yourselves which condition 'a ould be in your best ante est and
in the best interest of your tellow-workers in the other mills of this Company"
In dealing with the issues involved in the election as lie saw them, Tomlinson
first referred to the respondent's intention to continue its policy of operating "an
open shop in the true sense of the word" by not discriminating against employees
because of membership or non-memheiship in any labor organization; he then
summed up the ultimate issue in the elect ion as being "Can a union get more for
you than you can get in any other way?" Suggesting a highly favorable compari-
son of the respondent's existing policy and practices with what tine employees
might expect if they were to choose the Union as their representative, Tomlinson
reminded his audience that under the i espondent's statement of "Employment
Policy," the respondent dealt with any individual or a group of employees "whose
real motive is the well being of TOMLINSON people, whose leadership stands the
fundamental test of honesty, and who recognizes the right of e ervone to know
the disposal and the use of money they pay into the treasury " He then asserted
that the result of the respondent's practices in accordance with this policy, were
increases in average hourly earnings from 471/ cents in 1941 to 69 cents in 1944,
an incentive or bonus system, employment when plants of other companies were
idle, and an increase of the company's annual payroll from approximately $1,000,-
000 in 1941 to approximately $1300.000 in 1943-all this in spite of frozen selling
prices under OPA, the scarcity and costliness of materials, and high tax rates.
Turning to the postwar prospects, Tomlinson predicted a prosperous and expanded
market but warned "if we lull ourselves into a false sense of security and allow
our work to deteriorate because of mistaken notions that someone else is going
to look after us, then all the representatin es that ypu may choose can never save
for us our share of the postwar market. There is not and probably never will
be any substitute for diligence, work, and straight thinking "
During the speech, Tomlinson referred to the secrecy of the ballot in the
election, stressing the fact that any commitments previously made by the voter
were not binding. He also stated that, according to the respondent's "Employ-
ment Policy," the respondent would not discriminate Against any employee
"because he is or because he is not a member of union or any other labor organi-
zation." He promised a continuation of "that policy of employing members
and non-members of labor unions without any discrimination whatsoever," and
TOMLINSON OF HIGH POINT, INC. 699
added, "if you do belong to a union it will not effect your relationship with the
Company in the least." Toward the end of the speech, Tomlinson said, "The
management of the Company would not lift a hand to dissuade you from selecting
anyone, black or white, as a representative if you would benefit in the long run.
So the issue is entirely up to you " And at the end of the speech, Tomlinson
asserted "I am not telling you how to vote," but urged all employees to cast their
votes.
At the election, which was held in the afternoon right after Tomlinson's
speech, 31 out of a total 57 valid votes were cast by the employees in the unit for
representation by the Union. Accordingly, on May 26, 1944, the Board certified
the Union as the exclusive collective bargaining representative of the employees
in the unit found appropriate by the Board.
2. The Union's bargaining request and the conferences prior to the War Labor
Board proceeding
On June 1, 1944, Lewis J Hutton, the Union's representative, sent a letter to
S. H Tomlinson, the respondents president, requesting a bargaining conference
and enclosing a copy of a proposed agreement between the respondent and the
Union, covering employees in the bargaining unit at plant No. 2. The respond-
ent's two vice -presidents , one of whom was W. A. Tomlinson, were then in the
Nay y, as was Ralph Rochelle, its pet sonnet director. Its treasurer, the brother
of President Tomlinson, had died in 1943. President Tomlinson, who had been
directing the business and its policy almost entirely by himself , had just suffered
a stroke in the latter part of May and had a second stroke on June 14, 1944,
which, as events have shown, has made it impossible for him to return to his
work although it was at first thought that he might be able to do so. Receiving,
no answer to his first letter, Hutton on June 22, 1944 , again wrote the respondent
a letter requesting a conference. In reply, he received a letter from President
Tomlinson's secretary, dated June 26. stating that Mr. Tomlinson was ill and that
the Union's letter of June 22 would be brought to his attention upon his return
to the office.
Through Conciliator Fred Beck of the United States Department; of Labor,
Hutton succeeded in arranging a conference with the respondent' s representa-
tive for July 27, 1944. On that day, Hutton, W. B. Sprinkle (another repre-
seiitative of the Union), and a committee of union employees met with Attorney
L P. McLendon of Greensboro, North Carolina, and Superintendent A W
Dunbar, both of whom appeared for the respondent. Upon Attorney McLendon s
acceptance of certain of the Union's previously submitted contract proposals
or upon mutually agreeable modifications thereof, the parties agreed upon pro-
visions concerning (1) the respondent's recognition of the Union as the exclu-
sive bargaining representative of the employees in the unit found appropriate
by the Board in the representation proceeding; (2) voluntary checkoff of union
dues; (3) arbitration; (4) holidals; (5) a rule prohibiting the solicitation of
union membership, collection of dues, or transaction of union business on com-
pany time; (6) a general seniority principle to be applied to transfers and
promotions; (7) the right of an employee to reject promotion without penalty;
(8) the reemployment of service men in accordance with the Selective Service
Act; and (9) an annual term for the contract, with automatic renewal in the
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence of thirty days written notice of termination by either party to the other.'
The parties , however, were unable to agree at this conference upon the other
contract proposals of the Union or upon any compromises or substitutes there-
for. Among the more important union proposals thus rejected were provisions
for (1 ) a closed shop ; ( 2) overtime on work in excess of S hours per day rather
than on work in excess of 40 hours per week ; ( 3) time and a half pay for
Saturday work and double time pay for Sunday work; ( 4) the preparation by
the respondent of a seniority list of its employees to be kept available for inspec-
tion; ( 5) paid vacations of 1 week and 2 weeks respectively , for employees of
more than 1 and 3 years service with the respondent ;' (6) formulation by the
respondent and the Union of "a job classification system for all employees not
on a piece work basis ,"' ( 7) the establishment of a minimum hourly rate of
50 cents; and (S ) an increase of 5 cents per hour for all employees then making
50 cents or more per hour . While McLeruion thus rejected the Union's requests
with respect to wages and a revision of job classifications , the respondent sub-
mitted to the union committee at this meeting a summary of its existing job
classifications and hourly rates which the respondent desired to continue.
On August 17, 1944, at the next conference between the parties during which
discussions of the union proposals were resumed ,' Vice-President W. A. Tomlinson,
Dunbar testified that at the beginning of this conference on July 27, McLendon and he
notified the union committee that they were appearing merely to secure information for the
respondent concerning the demands of the Union and that any agreements expressed by
them were tentative and subject to the respondent's approval If this were true, the
admitted failure of the respondent to provide representatives authorized to negotiate with
the Union and to commit the respondent to a contract, would in itself have constituted a
refusal to bargain within the meaning of the Act (Great Southern Trucking Co. v
N. L. R B , 127 F. (2d) 180, 185-186 (C. C. A. 4), cert den. 317 U. S. 652; N. L. R. B. v.
Martin Brothers Box Co. 130 F. (2d) 202, 207-208 (C. C. A. 7), cert. den. 317 U. S. 660)
Hutton, however , testified that McLendon did not qualify his agreement to any of the
terms discussed Furthermore P. J. Neal, the respondent's secretary, testified that, in
instructing McLendon and Dunbar before this conference, he informed them that they
were to negotiate for the company in an attempt to reach it contract with the Union In
view of Neal's testimony as to the actual authority of McLendon and Dunbar as the re-
spondent's agents and the established impropriety of an employer's failure to provide a
fully authorized representative for bargaining with its employees' representatives, the
undersigned believes it unlikely that McLendon and Dunbar informed the union committee,
as Dunbar testified, that they did not have the requisite authority to commit the respondent.
The ubdersigned therefore credits Hutton's testimony that McLendon s agreement on various
points discussed at the conference on July 27, 1944 and above set forth, was not qualified
in any manner
"McLendon suggested, without making an offer, that the war Labor Board principle of
2 percent of annual earnings for a week vacation was fairer.
7 Whether the Union 's original proposal in this respect was intended to apply only to
the maintenance employees or contemplated the elimination of the piece work rate system
for production employees, is not clear from the record According to Vice-President
Tomlinson's testimony, every production employee was guaranteed a basic or minimum
hourly wage but might earn more if his weekly production entitled him thereto on the
basis of piece work rates For this purpose, each of the respondent' s numerous operations
was given an established "time value" and the weekly production of the employee was
converted into the sum total of these "time values " If this total exceeded the time
actually worked by the employees that week, he was paid on the basis of the time values
rathci than the actual time spent at work This was appaiently the "bonus system" to
winch Tomlinson had referred in his speech to the employees on May 10, 1944 . The opposing
positions taken by the parties concerning the operation of this piece work system during
a later stage of the history of this case beginning in October 1944, are discussed below.
8 At the end of the conference on July 27, it was agreed to meet again on August 3 but
on the latter date, neither Hutton nor McLendon was able to attend and, although Dunbar,
Sprinkle and the union committee did meet, apparently nothing was accomplished On
TOMLINSON OF HIGH POINT, INC. 701
-,i ho had recently been released by the Navy, accompanied McLendon and Super-
intendent Dunbar. Hutton , Sprinkle , and the union committee were also present.
In discussing the Union 's request for a closed shop, McLendon suggested that the
respondent might agree to the maintenance of membership clause with a 15-day
escape period, which the National War Labor Board frequently directed. Tom-
linson refused. According to Hutton's testimony, which the undersigned credits,
Tomlinson then gave "a lecture" on the respondent's fairness to its employees
over a period of 40 years, during which there had been no trouble, and stated that
lie "didn't see that there was any use of having any signed agreement at this
time."' After Tomlinson's "lecture," the conferees discussed other articles in the
Union's proposals without reaching any agreement. Before the meeting broke up,
however, it was decided that Hutton should telephone McLendon to arrange an-
other meeting. As a result, another conference was set by McLendon and Hutton
for August 23, 1944.
On August 23, 1944, W. S. Blakeney, an attorney from Charlotte, North Carolina,
attended the meeting for the respondent in the place of McLendon.'0 Vice-Presi-
dent Tomlinson and Superintendent Dunbar again appeared for the respondent
as did Hutton, Sprinkle, and the union committee, for the employees. Also present
was Conciliator Fred Beck of the United States Department of Labor who came at
the request of Hutton. During the course of this meeting, Blakeney handed
Hutton a typewritten copy of the respondent's contract proposals which either
omitted, rejected, or substantially changed the provisions previously agreed upon
by McLendon, except those concerning holidays, seniority, and the reinstatement
of service inen" Thus the form of contract proposed by the respondent (1) ex-
cluded maintenance employees from the coverage of the contract, although Mc-
Lendon had agreed to their inclusion and the appropriate unit for which the
August 14, the next scheduled meeting date, McLendon was unable to attend at the last
minute, and although there may have been some general discussion between Dunbar and the
union representatives , Dunbar said he was unprepared to make any decisions without
the attorney.
° Tomlinson and Dunbar 'in their testimony denied that Tomlinson had made this state-
ment . Hutton , however, appeared to the undersigned to be a credible witness and the
statement attributed by him to Tomlinson is consistent with the hostile attitude displayed
by the respondent and Vice -President Tomlinson in particular , toward the self -organization
of the employees not only in Tomlinson ' s speech of May 10 , 1944, which has already been
summarized , but also in a subsequent speech made by Tomlinson in April 1946 and in
various articles printed in the "Tomlinson News ," the respondent's house organ, which
will be hereinafter discussed The undersigned therefore ciedits the testimony of Hutton
and finds specifically that at the conference of August 17, 1944, Vice-President Tomlinson
lectured the union representatives on the beneficence of the respondent to its employees
and also said that he saw no need for a signed contract with the Union at that time.
10 McLendon 's withdrawal from the matter is not explained in the record.
11 Superintendent Dunbar and Secretary Neal testified that they and McLendon had
begun preparing the respondent 's proposals sometime in July, with the Union 's original
proposals before them , and had consulted Vice-President Tomlinson by telephone and
during his various leaves from the Navy as to the provisions acceptable to the respondent
To evidence its diligence-and its intention to bargain with the Union in good faith, the
respondent offered, and the undersigned received in evidence , 10 intermediate drafts of
its proposals . While the undersigned , from an examination of these drafts and the extent
of the changes made from draft to draft, is not convinced that their preparation required
the time which the respondent 's witnesses claimed to have spent upon them , lie is of the
opinion that the question of whether the respondent bargained in good faith with the
Union is properly to be decided not merely upon the dispatch or lack of dispatch with which
the conferences got under wa, and continued after the Union made its bargaining icquest,
but rather upon the substance of the conferences between the parties, the substance of the
company ' s ultimate proposal , and the conduct of the respondent 'in and since these early
conferences.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board had certified the Union as exclusive representative specifically embraced
maintenance employees, including watchmen and firemen ; (2) eliminated the pro-
visions for voluntary check off of union dues, to which McLendon had agreed;
(3) provided that the fifth member of the Board of Arbitration be appointed, in
case of disagreement, by the American Arbitration Association rather than by
the United States Conciliation Service, as McLendon had agreed ; (4) extended
the prohibition of solicitation of union memberships, the collection of union dues,
and the transaction of union business to company property generally, although
McLendon had agreed that the prohibition was to apply only to company time
and not to the employees' nonworking time on the company's premises; and (5)
eliminated the provision permitting employees to reject promotion without pen-
alty, to which McLendon had also agreed.
Before handing the company's proposals to the Union's representatives at
this meeting on August 23, 1944, however, Blakeney entered into a preliminary
discussion of the prior conference and his own general position with respect
thereto According to Hutton's test unony, Blakeney said that since it was his
first appearance in the matter, lie knew nothing of what had already happened,
and that, so far as he was concerned, nothing had been agreed upon and the
parties would have to start from scratch. Tomlinson in his testimony denied
that Blakeney had made such a statement, but admitted that Blakeney did say
that he wanted to go back to the beginning and review the discussion of the
parties for his own information. As a matter of fact, as has already been noted,
the respondent's proposals which Blakeney submitted to the Union's representa-
tives later in the meeting, did wipe out the agreements which the union com-
mittee had previously reached with McLendon. The undersigned credits Mutton's
testimony, rather than Tomlinson's denial, that Blakeney told the union com-
mittee on August 23, 1944 that, in spite of the prior conferences, the parties
would start their negotiations anew.
In any event, according to Hutton's uncontradicted testimony, which the
undersigned credits, Blakeney stressed to the union representatives the respond-
ent's dissatisfaction with the Board's limitation of the bargaining unit to plant
\o. 2; suggested that, on this point, the Union might stipulate to a review by
the Courts of the Board's certification of the Union; and, upon Hutton's refusal,
stated that the respondent would negotiate with the Union and that if an agree-
ment satisfactory to the respondent could be reached, the respondent would
not contest the Union's certification. To this, Hutton replied that the Union was
going to drive the hardest possible bargain for the benefit of the employees, no
matter what the respondent might do.
According to Hutton's further testimony, when Rlakeney produced the re-
spondent's draft of contract proposal on August 23, 1944, as the basis for further
negotiations, Hutton protested against bargaining upon any of points upon
which the union committee had already reached an agreement with McLendon,
and asked Dunbar to confirm the previous settlement of some of these matters
Hutton testified that, before Dunbar could answer, Dunbar left the room at
Tomlinson's request and did not return. Tomlinson gave no testimony on this
point. Dunbar testified merely that he could not remember being asked by Hutton
whether there had been any agreements reached in prior conferences but that,
contrary to Mutton's testimony, he had remained in the conference of August 23,
until it ended. He admitted, however, without giving any explanation, that this
was the last conference he attended although he had previously attended all the
conferences. It was undisputed that another conference was held on Septem-
TOIILINSON OF HIGH POINT, INC. 703
her 1, 1944, and that several more were held in 1945 The undersigned credits
the testimony of Hutton and finds that Tomlinson withdrew Dunbar from the
bargaining conference to prevent his confirmation of Ilutton's statement that
agreement had already been reached on some of the points which the respondent
sought to reopen with the Union '
Hutton finally acceded to Blakeney's insistence that negotiations proceed upon
the respondent's contract proposals The i arious articles thereof were then
individually discussed both during the meeting on August 23, and at a subse-
quent meeting on September 1 which was attended by the same persons with
the exception of Dunbar As a result, the parties agreed in these two meetings
upon the provisions of the respondent's proposals, or modifications thereof, con-
cerning (1) a general prohibition of discrimination by the Union and the re-
spondent against employees because of membership ou non-membership in any
labor organization; (2) holidays; (3) the reemployment of servicemen in ac-
cordance with the terms of the Selective Service Act; (4) the principle of seniority
on the basis of length of service with the company rather than in plant No. 2,
as applied to lay-offs, recalls, transfers, promotions, and the filling of vacancies ;
(5) the payment of the higher of the two wage rates on the temporary assign-
mnent of an employee to other work, and (6) certain rules with respect to ab-
sences, notices to the respondent thereof, tardiness, leaves of absence at the dis-
cretion of the respondent, and the return of employees after lay-offs within two
days after notice from the respondent. The Union, however, rejected the re-
spondent's proposals (1) that the unit of employees covered by the contract
and represented by the Union should not include maintenance employees; (2)
that the rule against union solicitation, clues collection, and the transaction of
union business should extend to company property generally and not merely to
company time, (3) that the Union should recognize the "open shop" policy
of the respondent; and (4) that the Union should recognize among the broad
management prerogatives of the company the unrestricted right to set produc-
tion standards and to make and enforce all necessary rules and regulations'-
These matters (upon which the respondent remained adamant) and the other
points in the Union's proposals which the respondent had rejected, including
questions of job classifications, wage rates, and piece-work rates, remained un-
settled as the meeting of September 1, 1944 drew to a close.
During the course of this meeting on September 1, winch lasted from 2 p. in.
until approximately 9: 30 p in, Blakeney said a number of times that lie had
to catch a train that night. As the end of the meeting approached, the parties
turned to a discussion of wages and job classifications, with Conciliator Beck
attempting to resolve their differences by referring to the extent of the settle-
ments already made. According to Hutton's testimony, Blakeney thereupon
withdrew his agreement to every one of the points which had been agreed upon,
and without suggesting that the parties meet again, abruptly left the meeting
with Tomlinson. Although not specifically denying Blakeney's repudiation of the
earlier agreements of the parties, Tomlinson testified generally that the meet=
ing on September 1 had progressed satisfactorily, with agreements being reached
on a number of hitherto disputed points ; and, furthermore, that, although the
Union's committee repeatedly urged Conciliator Beck to certify the case to the
National War Labor Board, Blakeney and Tomlinson, supported by Beck, sug-
gested another meeting on September 28, and left the meeting only to enable
'Z The Union contended that these matters were properly the subject matter of collective
bargaining.
755420-48-vol 74 46
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blakeney to catch the last train at about 9: 30 p in. At one point in his testi-
mony, Tomlinson stated it was his impression at the September 1 meeting that
the Union's representatives were agreeable to a further meeting on September
28. At another point, however, Tomlinson testified that it was a few days after
the September 1 meeting that Beck informed him that the Union had agreed to
another meeting on September 28 The undersigned credits the testimony of
Hutton and finds that at the conference on September 1, 1944, Blakeney repu-
diated all points that had been previously agreed upon by the parties and that
neither Blakeney nor Tomlinson at that time suggested another 1meeting on
September 28
In any event, after Blakeney and Tomlinson had left the meeting of September
1, Hutton requested Conciliator Beck to certify the dispute to the National War
Labor Board. A few days later, however, as Hutton admitted, Beck informed
him by telephone of the respondent's willingness to meet again on September-28.
But Hutton still insisted upon the case going to the National Labor Board.
The case was accordingly certified to that Board on September 14, 1944.
3. The first War Labor Board proceeding
At a hearing before a regional panel in this War Labor Board proceeding on
October 24 and 25, 1944, the Union and the respondent submitted their signed
stipulation, that the issues between them as to vacations, piece-work rates, job
classifications, and wages should be withdrawn from consideration in the War
Labor Board proceeding; that the parties would bargain collectively upon these
issues in the month of January 1945 in an attempt to reach an agreement by
February 1, 1945; and that, on or before February 1, 1945.,they would execute
a written agreement embodying all matters on which they were then in accord.
The stipulation further provided that with respect to possible changes in job
classifications, base rates of pay, time values, and "the general system of operating
[the respondent's] wage system," the contemplated negotiations should be based
upon written suggestions of the Union, delivered to the respondent on or before
November 15, 1944, and upon the respondent's reply thereto before January 1.
1945, as to all matters except such time values for which the respondent might
then not have been able to complete tests. Concerning these untested time values,
the respondent was to complete its tests as rapidly as possible and to supplement
its reply to the Union In the case of every time value test, each employee whose
work was studied was to be informed of the result and a second test made upon
his objection thereto. -
In accordance with this stipulation, the first War Labor Board proceeding
continued only with reference to the matters not expressly withdrawn. During
the course of the proceeding, the respondent objected to the jurisdiction of the
War Labor Board on the ground that, contrary to the desires of the respondent,
the possibilities of collective bargaining had not been exhausted. It also asserted
(1) that, contrary to this Board's finding in case No. 5-R-1497, the bargaining
unit which the Union was seeking to represent was inappropriate since it inn-
properly included watchmen and firemen and (2) that, in any event, the Union
by its own showing in the War Labor Board proceeding then represented less
than a majority of the employees in the unit found appropriate by this Board.
In spite of the respondent's arguments, the War Labor Board took jurisdiction
of the controversy. On November 28, 1944, the panel for the Fourth Regional War
Labor Board issued its recommendations ; on January 9, 1945, the Fourth Regional
War Labor Board issued its Directive Order; and on April 4, 1945. the National
TOMLINSON OF HIGH POINT, INC. 705
War Labor Board issued its Directh e Order , affirming the Regional Board's Order
in all respects and directing the parties to sign an agreement incorporating the
terms and conditions of employment set forth in the Directive Order. In their
Directive Orders, both the National War Labor Board and the Fourth Regional
War Labor Board rejected a recommendation of *the panel that firemen be excluded
from the bargaining unit represented by the Union under this Board's certification
Over the respondent 's reiterated objections. the Directive Orders of the National
and Regional War Labor Board also provided, among other things, for (1) the
solicitation of union membership and the discussion of union business on company
property but not on company time , so long as it did not interfere with production ,
maintenance of union membership as a condition of employment after February 1.
1945; ( 3) a compulsory check-off of the dues and initiation fees of union members;
(4) the posting by the respondent of a seniority list and the correction thereof as
necessary , after conferences with the Union ; 14 (5) the appointment of the fifth
member of the Board of Arbitration by the Fourth Regional War Labor Board
The National and Regional War Labor Board Directive Orders also rejected the
elaborate clause on management prerogatives sought by the respondent and pro-
vided merely for the recognition by the parties , that, "except as limited" by the
agreement between the parties contemplated by the Directive, "`the management
of the company and the direction of its working forces is vested in the company."
4. Failure of the parties to agree on matters withdrawn from the first War Labor
Board proceeding ; the second War Labor Board proceeding
In the meantime, on November 11, 1944, pursuant to the stipulation of the parties
withdrawing certain matters from the consideration of the War Labor Board in
the first proceeding, the Union mailed the respondent a memorandum ( 1) listing
specifically the changes it suggested " in regard to job classifications and base rates
of pay" ; ( 2) suggesting that time studies be made on all jobs which "cause the
operator to go in the `Red'," referring apparently to job operations whose "time
values" consistently' exceeded' the actual time required for their performance ; "
and (3) suggesting the daily computation, rather than the weekly computation, of
piece-work earnings." On December 30, 1944, Superintendent Dunbar mailed to
the Union the respondent's reply to this memorandum. In his letter, Dunbar
stated that the proposed changes in job classificdtions and base rates of pay were
"not reasonable" because the respondent's selling prices were frozen ; that in-
equities would result from the Union's proposals, that the respondent's existing
base rates were in line with the "tested and going rates set by the Fourth Regional
\Var Labor Board for this area," and that, although listed in the Union's memo-
randum, there were no firemen, watchmen, or saw filers in plant No. 2. Dunbar
further asserted in his letter that the stipulation of the parties did not require the
is Although the War Labor Board's panel recommended a company -wide seniority prin-
ciple, as sought by the respondent and distinguished from the plant seniority requested
by the Union , neither the National War Labor Board nor the Regional War Labor Board
passed upon this particular question.
14 See footnote 7, supra.
11 Upon the respondent 's receipt of this memorandum, Attorney Blakeney first wrote
Hutton on November 25, 1944 , that, since the Union made no mention of vacations, the
respondent would assume, unless advised to the contrary , that the Union was abandoning
its demands as to vacations . Hutton, in a letter to Blakeney dated November 27, 1944,
pointed out that the stipulation in the War Labor Board proceeding provided for negotia-
tions between the parties in January 1945 concerning vacations, without requiring the
Union to re-state its demand on that subject.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent to make a general restudy of its time values and requested the Union
to specify the exact jobs to be restudied. Finally, Dunbar's letter stated that the
respondent would consider the Union's request for a daily rather than a weekly
computation of piece-work earnings, if the Union would consent to an elimination
of the respondent's guarantee of the hourly minimum basic rate.
In three subsequent conferences on January 20, March 1, and March 30, 1945,
the last two of which were attended by Conciliator Beck, the parties maintained
the, respective positions taken by them in these memoranda, with the respondent
also flatly rejecting the Union's request for paid vacations on the ground that
price ceilings made them impossible. In addition, Hutton requested Vice-Presi-
dent Tomlinson to sign an agreement embodying the terms of the Fourth Regional
War Labor Board's Directive Older which had been issued as already noted on
January 9, 1945 Tomlinson and Blakeney,16 however, refused to sign any agree-
ment until the questions of wages, vacations, and Job classifications were settled.
At the conferences on March 1 and March 30, Hutton asked Beck to have the
dispute concerning these matters certified to the National War Labor Board.
At the March 1 meeting, Tomlinson, although refusing to be bound by any order
of the National War Labor Board as to wages, agreed that any wage rates settled
by the parties should be retroactive to March 1, 1945 With the parties main-
taining these positions, their dispute as to the matters withdrawn from the first
War Labor Board proceeding were certified to that Board at the insistence of
Hutton.
A panel for the Fourth Regional War Labor Board held a hearing on these
matters on August 6, 7, and S. 1945, and issued its recommendations on August
27, 1945. Thereafter, on November 9. 1945, the Regional War Labor Board is-
sued its Recommendations, approving those of the panel (1) that the respondent
grant vacations of 1 week and 2 weeks, respectively, to employees of more than
1 and more than 5 years service, at compensation equivalent to 2 percent of an-
nual earnings for each week of vacation ; (2) that the Union and the respondent
negotiate a job classification plan in the light of the practice prevailing in the
industry and area and report to the Board within 30 days; (3) that the request
of the Union for a daily rather than a weekly computation of piece-work.earnings
be denied; (4) that more information be given by the respondent to the em-
ployees concerning their piece-work earnings; and (5) that there be no increase
in base rates. The Fourth Regional War Labor Board recommended, however,
the establishment of a minimum 55 cents guaranteed hourly rate.
Neither the panel nor the Fourth Regional War Labor Board discussed the
respondent's reiterated argument that the Union, according to its own admis-
sion and also as shown by a petition of employees filed with the War Labor
Board, no longer represented a majority of the employees" In passing, how-
ever, it should be noted, that, on July 27, 1945, this argument which the re-
spondent expressly disclaimed in the present proceeding, was raised by the re-
16 Blakeney may not have been at the conference on January 20, 1945, but was present
at the other conferences. -
17 This petition, which was not produced at the healing in the present case , purported
to be a withdrawal from membership in the Union, signed by a number of the employees
Although it was undisputed that on one occasion during working hours, Foreman Efird
introduced one of his men to a woman employee who was soliciting signatures to this
petition , Efird testified without contradiction that he made the introduction at the request
of the canvasser, without knowledge of her purpose, and left the two employees without
hearing any of their conversation The undersigned , therefore , finds no reason to believe
that the respondent instigated or assisted the procurement of signatures to the withdiawal
petition.
TOMLINSON OF HIGH POINT, INC. 707
spondent, in it letter to the Union as a possible objection to the Union's processing
a grievance for in employee in the barge iniug unit
5 Events since the second War Labor Board proceeding
On Decembei 10, 1945. Hatton asked Vice-President Tomlinson by letter "when
we can meet and put all the Orders [and j Recommendations of the [War Labor]
Board in writing " The respondent did not icceive this letter," but admittedly
iecened a follouu-np letter of identical content which Hutton mailed on Decent-
ber 29, 1945
In the meantime, by letter written on December 12, 1945, Superintendent Dun-
bar informed the Union on behalf of the respondent that:
We have decided to put into effect a vacation plan, under which all hourly
paid employees qualifying under the plan who have been with us as much
as 1 year shall receive a vacation of 1 week with pay.
We propose to do this right away, and are informing you so that you may
make known anything you wish to say in the matter
And on December 21, 194.5, the respondent announced to its employees in an issue
of the "Tomlinson News." a newspaper which it published for its employees each
Friday, that every employee who had worked without unexcused absences for
the pei iod of 1 year by June 1, 1946, would receive a 1-week vacation with pay
amounting to 2 percent of his total gioss eat nings (including over-tune) for the
preceding year.
On January 7, 1946, Hutton wrote to Tomlinson, rejecting the respondent's
vacation plan "as-outlined" in the respondent's letter to the Union dated Decem-
ber 12, 1945, reminding the respondent of the existence of the "order" of the War
Labor Board concerning vacations, and demanding that the orders and recom-
mendations of the All L B. be put into effect as ordered." On January 1946,
Superintendent Dunbar wrote to Hutton that Hutton's letters of December 29,
1945 and January 7, 1946. would be brought to Vice-President Tomlinson's atten-
tion when lie retui tied from a business trip. Then, in a letter dated January 26,
1946, and written pursuant to Tomlinson's direi:tion, Personnel Director Rochelle
advised the Union that `*we question any further eftectiveness to the orders of
the War Labor Board since it has now gone out of existence," but that the re-
spondent was willing to bargain with the Union on the subject of vacations and
was so advising the Union's local committee.
On January 30, 1946, the respondent informed the Union by letter :
We have decided to put into effect an increase of 10 percent in all job
base rates
We propose to do this right away, and are informing you so that you may
make known anything you wish to say in the matter.
Two days later, on February 1, 1946, the respondent announced to its employees
in the "'Tomlinson News" issued on that day, that a 10 percent general wage in-
crease would become effective on February 4, that time studies of the various
jobs would be made, and that the new "time values" resulting would not reduce
'8 This finding is based upon the respondent ' s denial of receipt and the fact that Hutton
testified merely that he had mailed the letter by leaving it at the desk in his hotel. There
«.is no dispute howcier, that the othei letters between the parties, which aie mentioned
in the text. were receii ed in clue couise
708 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
the employees' earnings. In the "Tomlinson News" issued on February 8, 1946.
the respondent repeated its announcement of the new time studies with assur-
ance that they would not reduce earnings and added a detailed explanation of
its incentive system.
On and shortly after February 5, 1946, Personnel Director Rochelle spoke a
number of times over the telephone with Representative Sprinkle and Hutton of
the Union, and corresponded with them to arrange a conference In these con-
versations over the telephone and in his letters, Rochelle again expressed the
respondent's willingness to bargain with the Union concerning vacations and
vacation pay, and suggested February 22 as the meeting date Sprinkle, in it
letter written to Rochelle on February 16), stated that unless the respondent de-
clared its acceptance of the terms of the War Labor Board's Directive and Rec-
ommendations, a meeting on February 22 would serve no purpose. Thereupon
Rochelle, in a letter dated February 20, asked Sprinkle to advise him by tele-
phone, and then to confirm by letter, whether it was the position of the Union that
it did "not desire to meet with company representatives unless the company states
that is is willing and ready to put all the War Labor Board Directives into effect''"
Apparently Sprinkle and Rochelle had it conversation over the telephone on Feb-
ruary 22 and, as a result, no meeting was held on that day t0 In confirming his
version of that conversation, Rochelle wrote to Sprinkle the same day that be
understood that the Union had no desire to meet with the respondent until and
unless the respondent declared its willingness to put into effect all the directives
of the War Labor Board and that the Union was "cancelling all plans for a
meeting this afternoon without arrangements for any future meeting " But
Sprinkle, in confirming the conversation, wrote to Rochelle on the same day that
lie had informed Rochelle of the Union's readiness "to meet with your company
any time that they would agree to bargain on the directive order that was issued
by the War Labor Board." After several further exchanges of letters between
Rochelle for the respondent and Dutton and Sprinkle for the Union, a conference
was arranged for March 19, 1946
The meeting on March 19, 1946, lasted only 15 oI_ 20 minutes Hutton insisted
that the respondent sign an agreement embracing the terms and conditions of
the War Labor Board's directives and recommendations Blakeney refused and
again suggested that negotiations be resumed, whereupon the meeting broke up.
Later that day, Personnel Director Rochelle summarized his version of the sub-
stance of this meeting in a letter which lie wrote to Hutton, and to which Hutton
made no reply In the course of this letter, Rochelle stated.
At today's meeting, however, we stated again. and we now repeat, that the
Company is willing and ready to engage in collective bargaining with your
Union either upon the provisions embodied in the War Labor Board's direc-
tives or upon other and additional proposals which you may wish to make.
The Company is willing and ready to negotiate with you either upon the
proposals you originally made to the Company, or upon any set of new pi o-
posals you may wish to make. We are willing to start anew in such nego-
tiations, or are willing to resume negotiations at the point where they were
broken off at the time you asked the War Labor Board to take jurisdiction
between us. We also tried to make it clear today. and now repeat, that the
concessions which the Company has made in the course of bargaining tip to
a Rochelle, though called as a witness, gave no testimony as to this conversation
Sprinkle did not testify . The undersigned is therefore unable to make any finding as to
the actual substance of this conveisation.
TOMLINSON OF HIGH POINT, INC. 709
this point are not necessai ily the only concessions which the Company is now
willing to make. Irrespective of the foregoing, our meeting today concluded
with the understanding that you insisted upon one course of action, and one
course of action only. That is, that the directives of the War Labor Board,
as they were issued by that Board, shall be written up as a contract and
signed by the Company and the Union. This as stated above, the Company is
not willing to do.
The meeting of March 19 was the last meeting between the parties. On
March 29, 1946, however, Rochelle wrote to the Union that the respondent pro-
posed to put into effect "in the immediate future," increases in the base rates of
8 different classifications of its employees in Plant No. 2, "as a result of our job
evaluation studies today." Rochelle's letter concluded with the statement, "if
you wish to discuss this with us, please let us know as soon as possible" The
Union did not reply to this let ter.
6. The representation proceeding involving employees in plant No 10, and the
respondent's conduct with respect thereto.
As the second War Labor Board proceeds n: involving the employees in Plant
No. 2 came to an end in the fall of 1045, the Union began soliciting memberships
among the respondent's employees in plant No. 10 and filed a petition with this
Board in Case No 5-R-2127 for an investigation and certification of the represent-
atives of this latter group of employees. The Board held a hearing in this
representation case on November 13, 1945: issued a Decision and Direction of
Election on March 29, 1946; 20 postponed the election from April 24, 1946 to May
9, 1946, at the request of the Union, the only labor organization which was to
appear on the ballot, and on the last mentioned date held the election in which
185 votes were cast against, and 125 were cast for, representation by the Union.
On April 15, 1946, just helore the originally scheduled date for the election in
this proceeding, the respondent's foremen instructed the employees in plant No.
10 to gather on the first floor at 11 . 25 a in At that time, the plant's machinery
was shut oft, about 300 of the employees gathered at the appointed place, and
Vice-President Tomlinson read them a prepared speech A copy of the full
speech was also mailed to each of the employees and substantial portions thereof
were later printed in the "Tomlinson News" on April 19
Tomlinson prefaced this speech with the remark: "I would like to say first
that you are not required to stay and listen to my remarks unless you want to."
He then proceeded to deliver a speech in the same vein as the speech which
lie had made to the employees of plant No. 2 on May 10, 1944. He again stressed
the duty of all employees to vote in the impending election, reminded them of the
secrecy of the ballot, disclaimed any right to tell them how to vote, and assured
them that, whatever the result of the election, "no ill-consequence of any sort
whatever will be visited upon you by Tomlinson." He asserted it to be the "duty"
of the respondent, however, "to help [the employees] in making [their] decision."
Contrasting "the Tomlinson way" based upon "consta nt teaniwoi k of Employees
and Management" with "a constant state of conflict . Employees versus
Management'", Tomlinson attributed to "the Tomlinson Way" the -high standard
of working conditions and wages which lie said prevailed in the respondent's
plants In this connection, lie specifically referred to the wage increase of Febru-
ary 8, 1946; and Match 29, 1946, already mentioned Herein, as being "voluntarily"
20 Matter of Tomlinson of High Point, Inc, 66 N. L H B 1347
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted by the respondent In dealing with what the employees might expect
if the Union represented them, Tomlinson referred to the Union's clues and assess-
ments, forecast a demand by the Union for the deduction of these "charges"
from the employees' pay checks without regard for their wishes in the matter,
spoke generally of strikes by union employees, and intimated that, contrary to
the respondent's desire, if the Union was successful in the election, the employees
would lose their existing right "to conte to us about any matter whatever
. wages, working conditions, personal problems "
The respondent's obvious attempt to impress upon the employees its distaste
for their representation by the Union and thus to influence the employees to
vote against the Union was not limited to Tomlinson's speech on April 15, 1946.
Four days later, Vice-President Tomlinson sent letters to each of the employees
in plant No. 10 who had worked for the respondent more than 10 years and less
than 20 years and who are generally spoken of by the respondent as the Rising
Tide to distinguish them from the Old Guard (employees of more than 20 years
service) and from the Powerhouses (employees of more than 5 years service).
In these letters, Tomlinson again emphasized to the employees the importance of
voting in the election, no matter which way their votes might be cast Express-
ing the same theme which he had voiced in his speech, Tomlinson's letter to the
Rising Tide also stated that:
Tomlinson is a friendly organization Friendliness means mutual con-
sideration and mutual respect Fiienolliness cannot exist wheie there is
antagonism and rancor. The Tomlinson way, then, can carry only by team-
work between Employees and Management.
In the election of Wednesday, April 24, you ai e being asked to make It
decision that concerns this friendly relationship This election will indicate
whether Tomlinson people want to handle then wages, wokniq conditions,
and personal mattei s with the Conn pang thi ougln, the nien who head the
Carpenters' Union. [ am clad that you will have the opportunity to express
yourselves
In letters written to employees who had worked for the respondent "a rela-
tively short time", and to veterans who had returned to their jobs fiom the armed
forces, Tomlinson also urged them to vote in the election In the letters to the
former group, Tomlinson stated:
Tomlinson believes in a teamwork, open ation . Employees and Manage-
ment Bright shops, clean restrooms, friendly associates are a product
of mutual consideration and respect. They cannot exist in an atmosphei e of
antagonism and discord.
* *
The decision to be made in this election will aftect your job relationships
and personal relationships with the Company for a long time. This election
will determine whether such matters will continue to be handled between
you and us personally as has been the case up to now, of whether they will
be handled only through this Carpenters' Union. I would like to ask your
cooperation in getting out a 100% vote. Only in that way can the real issues
of all Tomlinson people be known.
In the letters to the veterans, the principal note of appeal la% in a statement:
The Tomlinson veterans' policy is to entitle you to rapid training and
development Regardless of the outcome of the election, we will fight to
TOMLINSON OF HIGH POINT, INC. 711
prevent these privileges from being interfered with by, what seems to us,
'out-of-date restrictions.
As already noted, the election was postponed by the Boaid at the request of
the Union from April 24, 1946 to May 9, 1946. In announcing this fact in the
"Tomlinson News" on April 26, 1946, under the caption, 'Time Extension Needed
by Carpenters' union," the respondent commented, "It is not known here why the
local Carpenters' Union needed more time within which to hold the election or
why the Board was advised by the Regional Director that a longer time in which
to hold the election was necessary. The only matter that was left for the Car-
penters' union or the Regional Director to handle was their appearance at the
polls." In the same issue, although not in the same article, the respondent then
printed the following company rule which the Board has found to be violative of
the Act in a previous decision involving the respondent: "
Soliciting funds for, or membership in, any organization on Company time
or property is strictly forbidden unless permission is first obtained in
writing from management
Then, on Wednesday, May S, the day preceding the election, the respondent
issued a special edition of the "Tomlinson News" thereby departing from its
regular Friday publication date. Time entire issue was devoted to Vice-President
Tomlinson's answers to questions which he asserted had been asked of him by
various employees. For the most part, Tomlinson's answers were substantially
the same as the statements he had previously made in his speeches and in his
letters to the employees The following published question and answer, however,
aeserves reproduction :
QUESTION: Why not go ahead and try the Union? What are we to lose'i
ANSWER: That is a good question. Fist, Tomlinson is a friendly organiza-
tion. Friendliness exists only where there is mutual considera-
tion and respect.
Today we have friendliness. Your foreman cheerfully helps
you correct errors in work Nobody SHOUTS or yells at you.
When something goes wrong and you feel that you haven't been
treated just right, you get a friendly and sympathetic ear. You
don't have to go through a lot of "chip-on-the-shoulder" red
tape and a third party to get the straight dope.
"Bargaining" is a tough game. It is cold, hard, buying and sell-
ing BOTH sides . . not just Union . . try to get
the best terms. Each side tries to outdo the other in attempting
to insure fulfillment of the contract to the letter.
Another thing that you night lose is a lot of money. As I said
before, I do not know what this Union would cost in the way
of clues and assessment, but it will be something. Anytime you
spend money to purchase something, you should know what you
are buying, what it is worth, and how it will benefit you It just
isn't good business to buy a pig in a poke' just to see what
happens.
If I were you and thought I could get something for nothing,
you can bet your boots I would vote for the Carpenters'. But
my experience has been that the "something-for-nothing" idea
11 Matter of Toniliiison of High Point, Inc, 58 N. L. R. B. 982.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gives us mostly promises , headaches, and heartaches . We found
that out long ago in the purchasing of supplies and materials.
Now I do not know that this Union would cause strikes and
disturbances , bitterness and antagonism But, as I pointed out
to you before , strikes, loss of work, loss of -pay, mainly occur
where the unions are.
This Company has pledged all it's got to make Tomlinson's jobs
the best jobs To pay the highest wages it can and still stay
reasonably in line with competito rs. To pay more might well
commit job suicide for all of us.
So to he fair, perhaps the question should be turned
around . . . "Why vote for the Union'? What have we got
to gain,"
As already noted, the Union lost the election on May 9 This fact was promptly
announced the next day in the "Tomlinson News" which also printed a message
to the employees from the respondent ' s officers under the caption, "It's 'Eun-
ployees and Management ' " Asking the employees to "forget the irritations, the
personal differences , the strained feelings that may have been experienced" dur-
ing the election period, the message also stated :
The Management of our Company appreciates sincei ely the vote of confi-
dence so overwhelmingly registered in yesterday 's election This evidence
of your support and backing is a real inspiration to us. Now that the election
is over and our different opinions have been resolved , let's all get our mind
back on the important job we have . . making fine furniture
B Conclu sions
1. The appropriate unit and representation by the Union of a majority of the
employees therein
As has already been noted, the Board after a hearing and the conduct of an
election in Case No 5-R-1497, duly certified the Union on May 26, 1944, as the
exclusive bargaining representative of an appropriate bargaining unit consisting
of the respondent's production and maintenance employees at plant No. 2, with
certain specific inclusions and exclusions
At the hearing in the present proceeding, the respondent, although not aban-
doning its original objection to the appropriateness of the bargaining unit thus
found by the Board, offered no additional evidence or argument on that point.
Contrary to one possible interpretation of the language of its answer' and to
the express position taken by it in the intervening National War Labor Board pro-
ceeding, the respondent also asserted at the hearing in the present proceeding
that it does not dispute the continuance of the Union's majority among the em-
ployees of the unit found appropriate by the Board
Upon the entire record, the undersigned finds: (1) that all production and
maintenance employees at plant No 2, including inspectors, night watchmen, and
firemen, but excluding clerical employees, Bedaux supervisors (industrial engi-
Z' In its answer, the respondent genes ally denied the allegations of the complaint that
the Union at all times since May 10, 1944; has been the collective bargaining representative
of a majority of the employees in the unit found appropriate by the Board in the represen-
tation proceeding, and that the Union has been, and is, the exclusive baiganiiig representa-
tive of all the employees in the unit
TOMLINSON OF HIGH POINT, INC. 713
neers), foremen, assistant foremen, and all other supervisory employees with
authority to hire, promote, discharge, discipline or otherwise effect changes in
the status of employees or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act, and (2) that on and since May 26, 1944 (the date of
the certification), the Union has been, and is, the duly designated bargaining
representative of a majority of the employees in the aforesaid appropriate unit
and that, pursuant to the provision of Section 9 (a) of the Act, the Union has
been. and now is, the exclusive representative of all the employees in the aforesaid
unit, for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment
2. The refusal to bargain
From the evidence, it is apparent that, although the respondent conferred
with the Union on possible contract provisions, it did not bargain in good faith
and had no intention of doing so. Throughout the history of the case, the
respondent's bitter and open hostility to the organization of its employees for
bargaining purposes was evidenced b^ Vice-President Tonhllnson's speech on
May 10, 1944, the dad the Union won the Board-conducted election at plant No.
2: by the actions of the respondent during the period in which the Union
at tempted to bargain ; and finally, during the representation proceeding in which
the Union sought to establish its right to represent the employees in plant
No 10, by the speech of Tomlinson on April 15, 1946, by his letters to employees
on April 19, 1946. and by the viii ions articles in the issues of the "Tomlinson
News" for April and May, 1946 -`
During the conteience with the Union, the respondent's general attitude
toward bargaining was ievealed in Vice-President Tomlinson's statement to the
Union's negoriatois on August 17. 1944 that he did not see "any use in having
a signed agreement at this tune" Thereafter, notwithstanding the Board's
determination of the appropriateness of the production and maintenance unit
at plant No 2 and the Uoaid's certitcation of the Union as the exclusive bar-
caining representative of the employees therein, the respondent consistently
withheld from the Union the full recognition of bargaining status, which is
easential to collective barganning Thus, on August 23, 1944, in the only con-
tract proposal., which it ever submitted to the Union, the respondent insisted
upon a clause limiting the coverage of the contract to production employees
At the same time, it informed the Union that, in its opinion, the single-plant
unit found by the Board was inappropriate hut that the respondent would
negotiate with the Union and if an agreement satisfactory to the respondent
could be reached, the Union's certification would not be contested Again., at
several points in the War Labor Board proceedings, the respondent contended
in petitions served upon the Union that the certified unit which the Union
sought to represent was inappropriate and that, in any event, the Union no
longer represented a majority of the employees therein. Then, in the summer
of 1945, the respondent again asserted its doubt concerning the Union's rep-
-That Tonilinson's speeches , the letters to the employees , and the articles in the "Tom-
linson News" were declarations of the respondent 's hostility to the Union and collective
bargaining , is clear from a mere perusal of the summaries and excerpts set forth in the
preceding portions of this Report . Whether they also , in themselves or in context , consti-
tuted interference with, restraint , and coercion of the employees in the exercise of their
self -organizational rights will be discussed in the next section of this Report
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative status as a possible objection to the Union's handling grievances
for employees in the bargaining unit. In view of the Board's existing findings
that the unit of production and maintenance employees at plant No. 2 was
appropriate and that the Union was the statutory representative. the respond-
ent's persistent intimations to the contrary cannot be said either to have con
stituted an excuse for a refusal to bargain or to have been advanced in good
faiith.2'
The respondent's conduct in thus withholding recognition from the Union
did more than demonstrate the respondent's unwillingness to bargain with the
Union; it made collective bargaining, as envisaged by the Act, impossible, by
conditioning the respondent's recognition of the Union upon the completion of a
contract favorable to the respondent. Full recognition by an employer of the
authoritative bargaining status of his employees' representatives is a matter of
right and not the subject of bargaining between them 25 Moreover, until such
recognition is accorded, there can be no genuine collective bargaining.2e For
collective bargaining consists of an attempt made in good faith by an employer
and his employees' representatives to reach an agreement concerning wages,
hours, and other conditions of employment which will be binding and effective
Jr requires a basic understanding between them throughout the entire course
of their negotiations, that the mind of each shall be open to persuasion by the
other and that any agreements so reached shall be regarded as binding. An
employer obviously is not bargaining with his employees' representatives when,
like the respondent in the present case, he merely confers with them and at
the same time, by denying their full right to negotiate, impresses them with the
futility of attempiug to secure any worthwhile concessions of employee-benefits.
As a matter of fact, the respondent pressed to the limit for the benefit of this
unfair advantage, completely ignoring its incompatibility with the process of col-
lective bargaining. Not only did it seek to preserve an excuse for withdrawing
from negotiations whenever it saw fit, but it also affirmatively made an un-
mistakable offer of ultimate recognition of the Union should the Union accede
to a contract to the respondent' s liking 2R
Additional reasons for concluding that the respondent failed to bargain with
the Union in good faith are furnished (1) by the respondent's presentation to the
Union on August 23, 1944, of contract proposals which omitted. rejected, or sub-
stantially changed provisions upon which the respondent's representatives had
previously agreed; (2) by the respondent's insistence on the same day and again
on September 1, 1944, that, contrary to fact, there had been no agreements pre-
viously reached and that all matters be reopened ; and (3) by the respondent's
withdrawal of Superintendent Dunbar from the bargaining conferences on
August 23, 1944, to prevent his confirming the Union's contentions as to the area
of agreement already achieved by the parties. By thus repudiating agreements
already reached by its representatives and by insisting upon a rediscussion of
24 See May Depaitment ,Stoics Co v N L R B, 326 U S 376 affg 146 F (2d) 66,
70-71 (C. C. A 8) ; Valley Mould and lion Corp v. N. L R. B , 116 F (2d) 760, 764-765
(C. C A 7) , N. L. R. B. V. Appalachian Electric Power Company, 140 F. (2d) 217, 221-
222 (C C A 4).
26McQnayt-Norris Mfg. Co v N. L R B, 116 F. (2d) 748, 751 (C C A 7). See also
National Licoi ice Co v N L R B, 309 U S 350, 358.
27 The McQuait-Norris case, supra, 116 F (2d) at 751
25 See Matter of Palm Beach Bi oadcastmg Co) poration, 63 N L R B 597 618, Matter
of .11 McLachlan d Company, Incoiporated, 45 N. L. R. B. 1113, 1131
TOMLINSON OF HIGH POINT, INC. 715
all such points, the respondent certainly failed in its obligation to bargain with
the Union in good faith 21
Even after the War Labor Board proceedings had terminated in November
1945, the respondent persisted in conduct, the natural and apparently intended
effect of which was to thwart collective bargaining with the Union. From the
very first conference on the union contract proposals on July 27, 1944, the re-
spondent had consistently rejected the Union's demand for wage increases and
paid vacations The Regional War Labor Board ultimately sustained the re-
spondent's position as to the wage'increases but recommended that paid vaca-
tions of 1 and 2 weeks be granted to employees of more than 1 and 5 years of
service, respectively. On December 21, 1945, the respondent announced to its
employees a plan for a 1 week vacation to all employees of more than 1 year of
service, effective on ],Line 1, 1946. Then on February 1 and March 29, 1946, the
respondent granted and announced, on the first date, a 10 percent wage increase,
for the employees in all plants and on the second date, increases in the rates
of eight specific classifications of employees in the bargaining unit at plant
No. 2. Before making each of these announcements to the employees, the re-
spondent advised the Union by letter what it intended to do In the case of
the vacation plan and the general wage increase it told the Union, "We propose
to (1o this right away, and are informing you so that you may make known any-
thing you wish to say in the matter'* In its advance notice to the Union of
the specific increases in rates in the bargaining unit at plant No. 2, the respond-
ent said, "it you wish to discuss this with us, please let us know as soon as
possible." With respect to the vacation plan which was not to become effective
until 6 months later, the respondent waited only 9 days after advising the Union
before making the announcement to the employees. In the case of the general
wage increase, its announcement to the employees followed its advice to the
Union by only 2 days. Thereafter, the respondent, through Vice-President Tom-
linson's speech to the employees at plant No. 10 on April 15, 1946, and also
through the quotations from this speech printed in the issue of the "Tomlinson
News".of April 19, referred to these grants as having been "voluntarily" made
by the respondent. Thus, in brief, the respondent suddenly reversed its oppo-
sition to wage increases and paid vacations which the Union had been demanding
for a year and a half; gave the Union clearly inadequate time to bargain on
the extent of the proposed wage and vacation benefits, although there was no
apparent reason for such haste; and then, just prior to the Board's election in
plant No. 10, informed its employees, that these grants were "voluntarily" made
by the respondent The record suggests no satisfactory explanation for the
respondent's conduct other than that, by its unilateral action in granting and
claiming sole credit for the wage increases and vacations while they were still
the subject matter of bargaining with the Union, the respondent sought to
alienate the employees' support of the Union as their bargaining representative,
to undermine the Union's position as such representative, and thus to defeat
any further attempt at collective bargaining.'°
2sInland Lime and Stone Company v. N L. R. B, 119 F. (2d) 20, 21-22 (C. C A 7) ;
N. L. R B. v George P Piling & Son Co, 119 F. (2d) 32, 37-38 (C C. A. 3) ; N. L. R. B. V.
Reed & Piece lffg Co, 118 F (2d) 874, 880 (C. C A 1).
:>t May Department Stores Co . v. N. L. R. B., 326 U. S. 376; Great Southern Trucking
Co v N L R B , 127 F (2d) 180, 182, 186 (C. C. A 4) ; Inland Lance & Stone Co V.
N. L. R. B, 119 1' (2d) 20, 22 (C C. A. 7) , Singer Mfg Co v N L R B, 119 F (2d)
131, 136-137 (C. C. A 7.) , N. L. R. B. v. Barrett Co., 135 F. (2d) 959, 961 (C C A. 7).
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is true that on March 19, 1946. the respondent informed the Union that it
was still willing to bargain upon the original proposals made by the Union, upon
any other proposals which the Union saw fit to make, and upon the substance of
the War Labor board's directives and recommendations. But long before this
the respondent had demonstrated that its professions of willingness to bargain
were unreliable. There was no reason for the Union to believe that this last
offer of the respondent to bargain was any more reliable than the previous ones.
While the undersigned thus feels that the respondent's retusal to bargain was
already well established before 1llarch 19, 1946, he cannot subscribe to the con-
tention made by counsel for the Board that the respondent's refusal on that
date to execute a contract embodying the War Labor Board directives and recom-
mendations also constituted a refusal to bargain within the meaning of Sec-
tion 8 (5) of the Act. For the substance of the liar Labor Board directives and
recommendations was not the result of collective bargaining between the parties
and, although the respondent's compliance may have been desirable on grounds
of policy not embodied in the Act, its refusal to comply was clearly not a viola-
tion of the Act.
Upon the foregoing considerations, the undersigned concludes that the respond-
ent on and since August 23, 1944, when it first clearly indicated its intention to
withhold full recognition of the Union as the representative of the employees
in the appropriate unit in plant No 2 and repudiated all agreements previously
made, has refused to bargain collectively with the Union in good faith. The
undersigned, therefore, finds that on and at all times since August 23, 1944, the
respondent has refused to bargain collectively with the Union as the exclueive
representative of its employees in the apps opriate unit and has thereby inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
3. Interference, restraint, and coercion
Counsel for the Board contends in his brief that (1) the respondent's republi-
cation in the "Tomlinson News" on April 26, 1946, of its rule against solicitation
on company time and property, and (2) Tomlinson's speeches on May 10, 1944
and April 15, 1946, his letters to the employees on April 19, 1946, and the various
articles and communications printed in the "Tomlinson News" during April and
May 1946, interfered with, restrained, and coerced the respondent's employees
in the exercise of the rights to self-organization and collective bargaining
guaranteed in Section 7 of the Act.
As the Board found in the previous complaint case involving the respondent,30
the no-solicitation rule so far as it prohibits solicitation of union membership
on the respondent's property during the employees' own time is an unreasonable
restraint upon the exercise of these rights, and its publication and enforcement
were violative of Section 8 (1) of the Act It is to be noted that in the present
case, the respondent's publication and threat of enforcement were contained in
the same issue of the "Tomlinson News" in which the respondent announced
the postponement of the election at plant No. 10, with the clear insinuation
that the Union requested the postponement because it needed more time to
secure members. Under the circumstances the undersigned finds not only that
the respondent's republication and threat of enforcement of the no-solicitation
rule constituted interference with, restraint upon, and coercion of its employees
30 Matter of Tomlinson of High Point, Inc., 58 N . L. R, B. 982. '
TO1\ILINSON OF B 1GH POINT, INC. 717
in the exeicise of the rights guaranteed by the Act," but also in view oL the
respondent's repeatedly expressed opposition to the Union, that it was directed
specifically against the Union's success in the impending election.
Indeed, throughout the history of the case, the respondent acted as an ad-
versary of the Union and a participant in the process of what should have been
solely the decision of its employees, i. e., whether they were to be represented
by the Union in the collective bargaining prescribed by the Act 32 The respond-
ent's position , as revealed to the employees both by its acts and its statements,
was clear. It strenuously opposed the employees' choice of the Union as their
representative and, when the Union won in plant No 2, the respondent avoided
bargaining. As to plant No. 10, there was no necessity for the respondent to
resort to its secondary line of defense, for the Union lost the election. But the
employees in plant No. 10 had already seen what had happened -to the Union's
efforts to bargain for their fellow employees in plant No. 2 and were confronted.
in Tomlinson's speech of April 19, 1940, his letters to the employees, and the
articles in the "Tomlinson News" during April and May, with even a more
vigorous and intense anti-union campaign by the respondent. They could not
have failed to be impressed with the idea that the respondent was merely pursu-
ing the same course of action it had followed with respect to plant No. 2 and,
that as in that case, even should they select the Union as their representative,
the Union's efforts to bargain would be foredoomed to failure.
The speeches of Tomlinson, his letters to the employees, and the articles in the
"Tomlinson News" clearly indicated the respondent's hostility to the Union and
the principle of collective bargaining If uttered or written by an employer
innocent of any violation or evasion of his employees' right to self-organization
and collective bargaining, the respondent's repeated, general assurances that it
would under take no reprisals against employees should they select the Union as
their representative, might perhaps have been persuasive and have warranted the
protection of its statements by the free speech guaranty of the First Amend-
ment.n But, since the speeches, letters, and articles were elements in an
obvious general plan of the respondent to defeat the organization and representa-
tion of its employees by the Union and were adjuncts to other clear violations
of the Act in the course of the respondent's execution of this general plan, the
respondent's assurance against reprisals could not reasonably be expected to elicit
the employees' confidence. When taken together, and in this context, the speeches,
letters, and articles, expressed an indefinite but none the less real threat of
reprisal. All, except Tomlinson's speech of May 10, 1944, were devoted to the
development of the theme that the atmosphere of friendliness which the re-
spondent claimed to prevail between itself and its employees, would vanish if the
Union became the representative of the employees. Thus, Tomlinson in his
21 Republic Aviation Co d. N L. R. B, 324 U S 794, aff'g 142 F (2d) 193 (C C. A 2),
ent'g 51 N L It B 1186, Matter of Peyton Packing Company, 49 N L R B. 828, 50
N L R B. 355
'2N L. R. B. v Reliance Mfg. Company, et at, 143 F. (2d) 761 (C C A 7). Several
statements of the respondent in the pi esent case actually eypressed this idea Thus, Vice-
President Tomlinson in his speech on May 10, 1946, said that it i as "the duty" of the
respondent "to help [the employees] in making [their] decision " Again, on May 10, 1946
the day after the Union lost the election at plant No 10, the respondent told the employees
in the "Tomlinson News" that "the Management of our Company appreciates sincerely the
vote of confidence so overwhelmingly registered in yesterday's election "
2`' See e. g., N. L. R. B. v. Virginia Electric cC Power Company, 314 U S. 469 ; N. L. R B
v American Tube Bending Co., 134 F (2d) 993 (C C A. 2), cert denied, 320 U. S 768,
N L R B v. Citizen-News Company, 134 F (2d) 970 (C C A 9)
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speech of April 15, 1946 and in the "Tomlinson News" articles printing quotations
therefrom, contrasted "the Tomlinson way" based upon "constant teamwork of
Employees and Management" with "a constant state of conflict . . . Employees
versus Management". Again, in the letters to the Rising Tide, Tomlinson stated :
Tomlinson is a friendly organization. Friendliness means mutual consider-
ation and mutual respect. Friendliness cannot exist where there is antago-
nism and rancor. The Tomlinson way, then, can carry only by teamwork
between Employees and Management. In the election Wednesday, April 24,
you are being asked to make a decision that concerns this friendly rela-
tionship.
In the letters to employees with less service, Tomlinson worded the same thought
slightly differently :
Tomlinson believes in a teamwork operation . . . Employees and
Management. Bright shops, clean restrooms, fi,i.endly associates are a
product of mutual consideration and respect. They cannot exist in an
atmosphere of antagonism and discord. . . .
The decision to be made in this election will affect your job ielationships
and personal relationships with the Company for a long time . . .
Finally, in the "Tomlinson News" of May 8, 1946, Tomlinson put it more bluntly
... First, Tomlinson is a friendly organization. Friendliness exists
only where there is mutual consideration and respect.
Today we have friendliness. Your foreman cheerfully helps you correct
errors in work. Nobody SHOUTS or yells at you. When something goes
wrong and you feel that you haven't been treated just right, you get a friendly
and sympathetic ear. You don't have to go through a lot of "chip-on-the-
shoulder" red tape and a third party to get the straight dope.
"Bargaining" is a tough game. It is cold, hard, buying and selling. BOTH
sides . . . not just the Union . . . try to get the best terms. Each side
tries to outdo the other in attempting to insure fulfillment of the contract
to the other.
In the next sentence, Tomlinson began speaking about "another thing that you
might lose . . ." [Italics supplied].
In the context of the respondent's other violations of the Act, this language
and the respondent's general expressions- of hostility in the speeches, letters,
and news articles, were reasonably calculated to have the effect of making the
employees uneasy as to what the respondent would do if they chose the Union
as their representative, and were therefore coercive The undersigned there-
fore finds that the speeches, the letters, and the "Tomlinson News" articles inter-
fered with, restrained, and coerced the employees in the exercise of the rights
guaranteed in Section 7 of the Act, and that the respondent thereby committed
unfair labor practices within the meaning of Section 8 (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
TOMLINSON OF HIGH POINT, INC. 719
V THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, the undersigned will recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of
the Act.
The undersigned has found that the respondent refused to bargain collec-
tively with the Union although the Union was the exclusive representative of
the employees of the respondent in a unit appropriate for the purpose of collec-
tive bargaining Accordingly the undersigned will recommend that the re-
spondent, upon request, bargain collectively with the Union as the representa-
tive of its employees in the appropriate unit.
The undersigned has also found the respondent's published rule against solici-
tation of union memberships is unduly restrictive of the rights of the employees
under the Act so far as it provides that there shall be no solicitation on company
property during non-working time. The undersigned will, therefore, recom-
mend that the respondent rescind its rule against solicitation of union member-
ship on company property so far as it prohibits solicitation on non-working time.
The unfair labor practices found by the undersigned represent an integrated
attempt of the respondent to defeat self-organization among its employees and
collective bargaining on their behalf by their chosen representatives. When
the employees in plant No 2 distegarded the speech of Vice-President Tomlinson
on May 10, 1944, the respondent, by a series of acts considered in detail in the
earlier parts of this report, blocked the Union's attempt to bargain on behalf
of these employees In the case of plant No. 10, the respondent engaged in a
mote vigorous campaign to defeat the Union in the election, including the
resuscitation of the no-solicitation rule which the Board had found to be vio-
lative of the Act in the previous complaint case against the respondent. In view
of these facts, and the findings of unfair labor practices and the outstanding
order of the Board against the respondent in the previous case, which the re-
spondent willfully disregarded, the undersigned is of the opinion that the
respondent's conduct demonstrated (1) a basic "attitude of opposition to the
purposes of the Act to protect the rights of employees generally," 84 and (2) a
consequent likelihood of its iesorting to other acts of interference, restraint, and
coercion with these rights as guaranteed by Section 7 and protected by Section
8 (1) of the Act 35 The preventive purposes of the Act will be thwarted unless
the Board's order is coextensive with the threat. In order, therefore, to make
effective the interdependent guarantees in Section 7, to prevent industrial strife
which burdens and obstructs commerce, and thus to effectuate the policies of the
Act, the undersigned will recommend that the respondent cease and desist from
in any manner infringing upon the rights of its employees guaranteed in Section
7 of the Act.
Counsel for the Board contends that effectuation of the policies of the Act
demands that the respondent not only post notices of its intention to comply
with any order the Board may issue herein but also that the respondent mail
a copy of such notice to each of its employees. The contention is based upon
the argument that the letters and copies of Tomlinson's speeches, which were
violative of the Act, were sent to employees of plant No. 10 before the Board con-
ducted the election therein and that therefore the respondent should in like
31 May Department Stores Company v N L R. B , 326 U. S 376
35 See N L R. B. v Express Publishing Company, 312 U. S. 426, 437.
755420-48-vol. 74-47
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner advise its employees that it will not violate the Act in the future and
will undertake to remedy its past violations The undersigned, however, is
of the opinion that the policies of the Act will be effectuated so far as the notices
are concerned, (1) by posting such notice in prominent places at all four plants
of the respondent in High Point, North Carolina, and (2) by publishing such
notice in the "Tomlinson News" in the usual type employed in the regular news
articles.
Upon the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1 United Brotherhood of Carpenters & Joiners of America, #3023, A. F Lt
is a labor organization within the meaning of Section 2 (5) of the Act
2. At all timee material herein, all production and maintenance employees
of the respondent at plant No 2, including inspectors, night watchmen, and
firemen, but excluding clerical employees, Bedaux supervisors (industrial engi-
neers), foremen, assistant foremen, and all other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise elfect changes in
the status of employees, or effectively recommend such action, have constituted
and now constitute, an appropriate unit for the purpose of Collective bargaining
within the meaning of Section 9 (b) of the Act.
3 On or about May 26, 1944, and at all times thereafter, United Brotherhood
of Carpenters & Joiners of America, #3023, A. F L, has been the exclusive
representative of the employees in the above unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act
4. By refusing on or about August 23, 1944, and at all times thereafter to
bargaining collectively with United Brotherhood of Carpenters & Joiners of
America, #3023, A. F. L., as the exclusive representative of the employees in
such unit, the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (5) of the Act.
5 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
On the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the respondent, Tomlinson of High Point, Inc,,
a North Carolina corporation, High Point, North Carolina, its officers, agents
successors, and assigns shall:
1. Cease and desist from.
(a) Refusing to bargain collectively with United Brotherhood of Carpenters &
.Joiners of America, #3023, A. F. L, as the exclusive representative of all its
production and maintenance employees at plant No 2, including inspectors, night
watchmen, and firemen, but excluding clerical employees, Bedaux supervisors
(industrial engineers), foremen, assistant foremen, and all other supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
TOMLINSON OF HIGH POINT, INC. 721
effect changes in the status of employees, or effectively recommend such action,
in respect to rates of pay, wages, hours, and other conditions of employment ;
(b) Prohibiting the solicitation of union membeiships on company property
daring non-working tone or in any other manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist United Brotherhood of Carpenters &
Joiners of America, #3023, A F L , or any other labor organization , to bargain
collectively through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act.
(a) Upon request bargain collectively with United Brotherhood of Carpenters
& Joiners of America, #3023, A F. L , as the exclusive representative of all its
production and maintenance employees at plant No 2, including inspectors,
,night watchmen, and firemen, but excluding den ical employees, Bedaux super-
visors (industrial engineers), foremen. assistant foremen, and all other super-
visory emplo3 ees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, of effectively recommend such
action, in respect to rates of pay, wages, hours, and other conditions of employ-
ineut,
(b) Rescind immediately the rule prohibiting solicitation of union member-
ships on the respondent's property, insofar as it applies to the employees' non-
working time;
(c) Post at each of its four plants in High Point, North Carolina, and also
publish in the "Tomlinson News," copies of the notice attached hereto, marked
"Appendix A." Copied of said notice, to be furnished by the Regional Director
for the Fifth Region , shall, after being duly signed by the respondent, be posted
by it immediately upon the receipt thereof, and maintained by it for sixty, (60)
consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced, or covered
by any other material;
(d) Notify the Regional Director for the Fifth Region in writing , within
ten (10) clays from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply with the foregoing recommendations.
It is further recommended that unless on on before ten (10) days from the
(late of the receipt of this Intermediate Report, the iespondent has notified said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an o der requiring the respondent
to take the action aforesaid
As provided in Section 33 of Article 11 of the Rules and Regulations of the
National Labor Relations Boand. Series 3. .is amended, effective November 27,
1945. any panty or counsel for the Board may. vn ithi n fifteen (15) clays from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article 11 of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D C., an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon. together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such statement
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of exceptions and/or brief, the party or counsel for the Board filing the same
shall serve a copy thereof upon each of the other parties and shall file a copy
with the Regional Director. As further provided in said Section 33, should any
party desire permission to argue orally before the Board, request therefor must
be made in writing to the Board within ten (10) days from the date of the order
transferring the case to the Board. Any party desiring to submit a brief in
support of the Intermediate Report shall do so within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, by filing with
the Board an original and four copies thereof, and by immediately serving a
copy thereof upon each of the other parties and the Regional Director.
WILLIAM F. SCHA$NIKOW,
Trial Examinerr.
Dated September 9, 1946.
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