Tower Hosiery Mills, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1949

81 N.L.R.B. 658 (N.L.R.B. 1949)

In the Matter of TOWER HOSIERY MILLS, INC. and AMERICAN FEDERA-
TION OF HOSIERY WORKERS'
Case No. 5-C-1847.-Decided February 16, 1949
DECISION
AND
ORDER
On March 16, 1948, Trial Examiner Earl S. Bellman issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices,2 aijd recommending that it cease and desist therefrom and
take certain affirmative 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.
The Board S has reviewed the Trial Examiner 's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the Respondent's exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only insofar as they are con-
sistent with the findings and conclusions set forth below.
We agree with the Trial Examiner's general conclusion that the
Respondent refused to bargain with the Union in violation of Section
8 (1) and (5) of the Act. We do not, however, agree with the Trial
Examiner 's finding that the Respondent's treatment of the bonus
issue during its negotiations with the Union amounted to a refusal
to bargain in violation of the Act. The Respondent began, in about
1939, to pay its employees a Christmas bonus amounting to 2 percent
of each employee's earnings for the preceding year, and it has con-
tinued to make such bonus payments each year since then. During
' At the time of the hearing , the Union was affiliated with the Congress of Industrial
Organizations. As it has since then severed this affiliation , we have amended the caption
accordingly.
2 The provisions of Section 8 (1) and ( 5) of the National Labor Relations Act, which the
Trial Examiner herein found were violated , are continued in Section 8 (a) (1) and 8 (a)
( 5) of the Act , as amended by the Labor Management Relations Act, 1947.
2 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National Labor
Relations Board has delegated its powers in connection with this proceeding to a three-man
panel consisting of the undersigned Board Members [ Chairman Herzog and Members
Houston and Murdock].
81 N. L. R. B., No. 120.
658
TOWER HOSIERY MILLS, INC. 659
the war, the Respondent obtained War Labor Board approval for
these bonus payments upon the basis of the Respondent's representa-
tion that it made these bonus payments voluntarily, not as a part of
wages, and that it remained within the Respondent's discretion whether
or not the bonus would be paid.
Early in the negotiations, the Union proposed inclusion in the
contract of the following bonus provision :
It is hereby agreed between the parties that the Company shall
pay a bonus of two (2%) percent of total earning for the twelve
(12) months immediately preceding November 1st of any year.
This bonus shall be paid to all employees the week prior to
Christmas of any year.
The Respondent took the position with respect to this proposal, as its
bonus payments in the past had not been a part of wages, but had been
conditional each year upon the amount of its earnings, the Respondent
was unwilling to commit itself in a contract to the payment of a
bonus.
On May 10, 1946, the Union presented to the Respondent the follow-
ing modified bonus .proposal :
It is hereby agreed that the Company shall not discontinue
the payment of the yearly Christmas bonus of two (2%) percent
of the total earnings during the life of this contract, without
negotiations and consent of the Union.
The Respondent stood firm in its position that the question of
whether or not a bonus would be paid was dependent upon its deter-
mination at the close of each year that its earnings warranted a
bonus payment, and that it would not commit itself in writing to
pay a bonus.
Although the Respondent was under an obligation to bargain with
the Union on the subject of a bonus,-' we do not agree with the
Trial Examiner that the Respondent has failed to meet this obligation
in the instant case. Rather, the Respondent has refused only to enter
into a binding obligation to pay a Christmas bonus in a specified
amount, when its practice had been to determine at the end of each year
whether or not its earnings justified the payment of a bonus. The
refusal to enter into such an obligation does not constitute a violation
of its duty to bargain with the Union, within the meaning of the Act b
4 Matter of Singer Manufacturing Company, 24 N. L . R. B. 444, enf 'd as mod., 119 F. (2d)
131 (C A 7). cert den, 313 U S. 595
6 Board Member Houston dissents on the ground that , in his opinion , the record supports
a finding that the Respondent refused to include any bonus provision in a written agreement,
in violation of Section 8 (5) of the Act Matter of Sanger Manufacturing Company, supra;
H J. Heinz Co. v N. L R B , 311 U S. 514.
829595-50-vol 81-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree with the Trial Examiner's finding that the Respondent's
insistence upon the inclusion in the contract of an unreasonably
drastic union liability clause constituted a refusal to bargain in good
faith with the Union. We do not, however, confine to this phase of
the negotiations our finding of a refusal to bargain within the mean-
ing of the Act. On the contrary, we find that the entire course of
conduct followed by the Respondent during the 7 months of prolonged
negotiations with the Union evidences a lack of good faith and a
determination not to conclude an agreement with the Union.
The Respondent's intention to avoid genuine bargaining with the
Union was first indicated when, immediately following the election
won by the Union, but before certification by the Board, the Respond-
ent, without consulting the Union, posted working rules. These rules,
although technically in existence at that time, had never before been
reduced to writing, and had not been enforced since the beginning of
World War II. While the Union did not object to the posting of those
rules, and actually processed grievances thereunder, the fact remains
that the Respondent, knowing that its employees had designated the
Union to bargain for them nevertheless unilaterally revived and posted
those working rules, which were a proper subject for collective
bargaining
Prior to the advent of the Union, the Respondent's practice had
been to pay the same wages and to make the same wage adjustments
as did other similar plants in the area. During its entire course of
negotiations with the Union, the Respondent insisted upon the con-
tinuation of this method of determining wages. This method, as
illustrated by the February and July 1946 wage increases, discussed
in the Intermediate Report, resulted in changing the Respondent's
wage scales almost overnight when word was received that other plants
in the area were doing so. With respect to the February 1946 increase,
the Respondent consulted with the Union and announced the increase
after the Union had agreed to it. With respect to the July 1946 in-
crease, however, the Respondent sent the Union a notice thereof, which
the Union received only 2 days before the effective date of the increase,
those 2 days being Saturday and Sunday. Clearly this did not give
the Union sufficient time to consider the matter or to be heard,' and
in effect served merely to notify the Union of a fait accompli.
The Respondent did not consult with the Union even in the limited
sphere left for effective bargaining under its system of adhering to
area practice on wage rates. Thus, concurrent with the February
1946 wage increase, the Respondent, without consulting the Union,
6 Matter of Timken Roller Bearing Company, 70 N. L. R. B. 500, rev'd on other grounds,
161 F. (2d) 949.
7 Mattel of Tomlinson of High Point, Inc, 74 N. L. R. B. 681.
TOWER HOSIERY MILLS, INC. 661
made certain adjustments in piece rates and practices pertaining to
the seaming of heels. These adjustments caused such widespread
discontent among the seamers that a short spontaneous strike occurred.
The Respondent and the Union treated this situation as a grievance,
which was settled by the Respondent's promise to consider the matter
fully at the time of the next wage increase. When it granted the
July 1946 wage increase the Respondent restored its previous rates
and practices for the seamers, again without consulting the Union.
From the outset of the negotiations in January 1946, the Respondent
insisted upon, and the Union objected to, a contract clause which made
the Union subject to suit if it broke its no-strike pledge, and which
required the Union to place in escrow a sum of money as security for
that pledge. This latter provision was subsequently modified by the
Respondent to a requirement that the Union post a bond. Because
of the Union's objection to the clause, the amount of the bond was
never set. On August 14, 1946, the Respondent offered a substitute
for these proposals designated as "Article IX, Union Activity and
Strikes, and Lockouts," which, if the no-strike pledge was violated,
would have made the Union subject to suit and liable for liquidated
damages of $500 a day, and would have made each individual striking
employee liable for liquidated damages of $3 a day. We do not agree
with the Respondent's contention that this substitute was a bona fide
attempt to meet the Union's objections to the original proposal. A
comparison of the two proposals shows that the second one would have
imposed far greater burdens upon the Union than did the first, and
would have included liability for the conduct of non-members. The
Respondent made these new demands without receding in any way
from its demand for a completely open shop, or from its refusal to
accept the Union's proposal for compulsory arbitration of grievances.8
The Respondent thereafter consistently refused to modify its posi-
tion on union liability, and, in a letter dated November 8, 1946, refused
the Union's request for elimination of certain subsections of Article
IX, and stated that the proposed agreement embodying Article IX
in toto "constitutes the final answer of the Company with respect to
the provisions of Article IX." The letter stated further that the
Respondent was nevertheless willing to meet again with the Union if
the Union so desired. There were no further negotiations.
The Respondent contends that the negotiations were broken off by
the Union. We do not agree. The Respondent's willingness to meet
again, expressed in its letter of November 8, 1946, was meaningless, as
8 The Respondent also omitted from its proposal a prohibition of lock-outs. Inasmuch,
however, as this omission was not mentioned during the negotiations, or at the hearing,
we credit the Respondent's statement in its brief that this omission was an oversight, and
affirm the Trial Examiner's finding to that effect.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent, by its conduct up to that time, had amply demon-
strated that it was not bargaining in good faith and that further
negotiations would be futile.9
The Respondent, it is true, went through many of the motions of
collective bargaining. It met on numerous occasions with the Union,
conferred at length regarding contract proposals, made concessions
on minor issues, and discussed and adjusted several grievances. These
surface indicia of bargaining, however, were nullified by the Re-
spondent's manifest determination to deprive the Union of any voice
in determining such major issues as wage rates and working condi-
tions. Such conduct on the part of the Respondent demonstrates that
its participation in discussions with the Union was not intended to
lead to the consummation of an agreement with the Union, but merely
to preserve the appearance of bargaining.1° The Respondent's lack of
a sincere purpose to reach an agreement is confirmed by its introduc-
tion of new and stringent demands after 7 months of negotiations n
Accordingly, we find that the Respondent has, during the entire period
since the Union's certification in January 1946, failed and refused to
bargain in good faith with the Union as the exclusive representative
of its employees, within the meaning of Section 8 (5) and (1) of the
Act.
In addition, we find that the Respondent's grant of a unilateral wage
increase on July 29, 1946, per se constitutes a violation of Section 8 (5)
of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, Tower Hosiery Mills,
Inc., Burlington, North Carolina, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with American Federation of
Hosiery Workers as the exclusive representative of all its production
and maintenance employees, including watchmen-firemen, the shipping
clerk, the utility map, and the utility woman, but excluding fixers, fore-
men-fixers,, the forelady, and all other supervisors, with respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment ;
9 Matter of Tomlinson of High Point, Inc., supra.
10 Matter of Union Manufacturing Company, 76 N. L. R. B. 822 ; Matter of Tomilneo,i
of High Point, Inc., 74 N. L. R. B. 681.
11 Matter of Burgie Vinegar Company, 71 N. L. R. B. 829.
TOWER HOSIERY MILLS, INC . 663
(b) In any other manner interfering with the efforts, of American
Federation of Hosiery Workers to negotiate for or to represent the
employees in the aforesaid bargaining unit, as their exclusive bargain-
ing agent.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with American Federation
of Hosiery Workers as the exclusive representative of all its employees
in the above described appropriate unit, with respect to labor disputes,
grievances, wages, rates of pay, hours of employment, and other con-
ditions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement;
(b) Post in conspicuous places throughout its plant at Burlington
North Carolina, copies of the notice attached hereto marked "Appendix
A." 12 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 Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the Fifth Region, in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
APPENDIX A
NOTICE To ALL EMPLoYEEs
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with AMERICAN
FEDERATION OF HOSIERY WORKERS as the exclusive representative
of all employees in the appropriate unit described below.
WE WILL NOT in any other manner interfere with the efforts of
AMERICAN FEDERATION OF HOSIERY WORKERS to negotiate for or to
represent the employees in the said bargaining unit, as their ex-
clusive bargaining agent,.
12 In the event that this order is enforced by decree of a United States Court of Appeals,
there shall be inserted , before the words, "A DECISION AND ORDER ," the words, "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL BARGAIN collectively, upon request, with AMERICAN
FEDERATION of HosIERY WORKERS as the exclusive representative
of all employees in the appropriate unit described herein in respect
to labor disputes, grievances, wages, rates of pay, hours of em-
ployment, and other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed
agreement. The bargaining unit is :
All production and maintenance employees including watch-
men-firemen, the shipping clerk, the utility man and the utility
woman, but excluding fixers, foremen-fixers, the forelady and all
other supervisors.
All our employees are free to become or remain members of the
above-named union or any other labor organization.
TOWER HOSIERY MILLS, INC.,
Employer.
Dated -------------------- By ------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Harold M. Weston, for the Board.
Brooks, McLendon, Brim & Holderness, by Mr. L. P. McLendon, of Greens-
boro, N. C., and Cooper, Sanders & Holt, by Messrs. Thomas D. Cooper and Emer-
son T. Sanders, of Burlington , N. C., for the Respondent.
Mr. H. G. B. King, of Chattanooga, Tenn, Mr. John J. McCoy, of Greensboro,
N. C., Mr. Raymond L. Adams, of Reading, Pa., and Mr. Fred G. Held, of Phila-
delphia, Pa., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge filed on March 17, 1947, by American Federation
of Hoisery Workers, C. I. 0., 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 March 21, 1947,
against Tower Hosiery Mills, Inc, Burlington, North Carolina, herein called
the Respondent, alleging 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 and notice of hear-
ing thereon were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance:
(1) that the Respondent, in violation of Section 8 (5) of the Act, refused, from
on or about December 31, 1945, to bargain collectively with the Union, which had
1 The provisions of Section 8 (1) and (5) of the Act are continued in Section 8 (a) 1 and
8 (a) 5 of the Act, as amended, Labor Management Relations Act, 1947. The undersigned
takes official notice that the Union is in compliance with Section 9 (f), (g) and ( h) of the
Act, as amended. Cf. Matter of Marshall and Bruce Company, 75 N. L. R. B. 90.
TOWER HOSIERY MILLS, INC . 665
been duly designated in a Board election as the exclusive representative of the
Respondent's employees in an appropriate unit; (2) that the Respondent, from
on or about January 1, 1944, by specified types of conduct on the part of its
officers and agents, interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act; 2 and (3) that, both by its
refusal to bargain and its interference with its employees' rights, the Respondent
violated Section 8 (1) of the Act.
On March 31, 1947, the Respondent filed with the Regional Director four
motions: (1) to dismiss the charge and the complaint; (2) for a bill of par-
ticulars; (3) for extension of time to file answer; and (4) for extension of date
of hearing. On April 2, 1947, the Regional Director issued an order denying
the Respondent's motion to dismiss, extending the time for filing answer and the
date of hearing; 2 and referring the Motion for Bill of Particulars to the Chief
Trial Examiner. Thereafter, by order dated April 7, 1947, William E. Spencer,
Trial Examiner, duly designated by the Chief Trial Examiner, granted in part
the motion for particulars. Counsel for the Board submitted a Bill of Partic-
ulars dated April 15, 1947, which the Regional Director duly served upon the
Respondent and the Union.
On April 14, 1947, the Respondent filed its answer, admitting some of the
allegations of fact contained in the complaint, but denying that it had engaged
in any unfair labor practices. The answer specifically denied that the Respond-
ent had interfered with employee rights as alleged in the complaint and that it
had refused to bargain, and further alleged, in essence, that extensive negotia-
tions between the Respondent and the Union had not resulted in a signed contract
solely because, in several respects, the Union had failed to bargain in good
faith.
Pursuant to notice, a hearing was held from June 2 through June 11, 1947, at
Burlington and Graham , North Carolina,' before Earl S. Bellman , the under-
signed Trial Examiner, duly designated by the Chief Trial Examiner to act
herein in place of William E. Spencer . The Board and the Respondent were
represented by counsel and the Union by counsel and officials.' All participated
2 The following 8 types of conduct were specified in Paragraph XI of the complaint :
(a) Questioning employees concerning union affiliations and activities;
(b) Urging and warning employees against membership in or assistance to the
Union or engaging in concerted activities;
(c) Disparaging the Union and other labor organizations , and their leaders and
purposes;
(d) Warning employees that no benefits would be derived from the Union and that
employment conditions at the plant would deteriorate if organizational efforts
persisted ;
(e) Instigating an anti-union campaign, both directly and through an anti-union
group of employees called "The Loyalty Committee" ;
(f) Threatening employees with discharge or other reprisals ;
(g) Threatening to close its plant if organization succeeded ;
(h) Dealing directly with its employees individually concerning conditions of
employment.
By amendment at the hearing, a ninth allegation was added :
(i) Promulgating and enforcing more stringent and rigid plant rules after and for
the reason that the Union won an election on December 20, 1945.
' The record shows that the above order and three additional orders postponing the
hearing were duly served upon the Respondent and the Union. No question is raised by
any of the parties as to filing and service of any of the formal papers involved herein
4 The hearing opened on June 2 at Burlington ; thereafter it alternated between Burling-
ton and Graham, closing on June 11 at Graham
b Although counsel for the Union was present only on the opening day, the Union was
represented at all sessions by officials.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the hearing, and full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence was afforded all parties. At the opening
of the hearing, the Respondent renewed its written motion to dismiss the charge
and the complaint, and the Union moved to amend its charge. Both motions were
denied . The Respondent also renewed its written Motion for Bill of Particulars
in those respects as to which said motion had not been granted. This motion
was denied . During the course of the hearing, motions to amend the complaint
and the Bill of Particulars were granted." At the close of the Board' s case and
thereafter, the undersigned denied several motions by the Respondent to dismiss
various subdivisions of Paragraph XI of the complaint and certain portions of
the Bill of Particulars pertaining thereto.
At the conclusion of the evidence, the Respondent moved that the entire com-
plaint be dismissed . Ruling was reserved on said motion, which is hereby
denied .7 A motion by counsel for the Board to conform the pleadings to the
proof as to formal matters was granted. The parties were afforded opportunity
to argue orally before the undersigned and to file briefs and/or proposed findings
of fact and conclusions of law. Counsel for the Board and for the Respondent
argued orally on the record. Pursuant to extension by the Chief Trial Examiner
of time for filing to July 31, 1947, the Union has filed a brief and the Respondent
has filed proposed findings and conclusions!
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Tower Hosiery Mills, Inc., a North Carolina corporation
having its principal office and only place of business in Burlington, North Caro-
lina, is engaged in the manufacture and sale of full-fashioned hosiery. It em-
ploys approximately 190 production and maintenance employees at its Burling-
ton plant. During the year 1946, the Respondent purchased raw materials, con-
sisting of rayon and cotton valued in excess of $500,000, of which approximately
80 percent was shipped to its plant from points outside the State of North Caro-
lina. During 1946, the Respondent manufactured and sold full-fashioned hosiery
valued in excess of $900,000, of which approximately 99 percent was shipped to
points outside the State of North Carolina. The Respondent admits and the
undersigned finds that it is engaged in commerce within the meaning of the
Act.
II. THE ORGANIZATION INVOLVED
American Federation of Hosiery Workers, C. I. 0., herein called the Union, is
a labor organization affiliated with the Congress of Industrial Organizations, and
admits to membership employees of the Respondent.
O Except for the amendment set out as (1) in footnote 2 above, these amendments
pertained mostly to dates in the Bill of Particulars ; none of the amended dates was as early
as January 1, 1944, which date appeared in the complaint.
° However, it is recommended below that some of the allegations of the complaint be
dismissed. It is the undersigned's opinion that in Board proceedings , dismissal of allega-
tions of a complaint have the effect of liquidating all portions of any bill of particulars
pertaining thereto, whatever may be the practice prevailing in the Courts of the State of
North Carolina. Accordingly, the undersigned makes no recommendations herein as to
the dismissal of any parts of the Bill of Particulars.
8 Rulings thereon are set out hereinbelow.
TOWER HOSIERY MILLS, INC.
M. THE LTNFAIR LABOR PRACTICES e
667
A. Introductory statement
Prior to 1940, the Respondent's employees were unorganized. Since the Union
has entered the picture, however, the Board has conducted three elections among
the Respondent's production and maintenance employees. These elections, in
which the Union was the only labor organization on the ballot, were held in
1940, 1944, and 1945. The 1940 election, conducted on October 15, 1940, in Case
No. 5-R-569, was a consent election. The results thereof were : 178 votes for
the Union ; 85 votes against the Union ; 2 blank ballots ; 1 void ballot ; and no
challenged ballots. There were no objections filed to the conduct of this election
and none of the allegations of the complaint pertains to this early period. While
it is apparent that the relations between the Union and the Respondent during
1940 were brief, the evidence as to what transpired was not fully developed, and
no inference therefrom adverse to either the Union or the Respondent is drawn.1°
The second election was conducted on November 9, 1944, in a unit composed
of all production and maintenance employees, including fixers, watchmen and
firemen, but excluding all office and clerical employees, the forelady, and all
other supervisory employees. This election was conducted pursuant to the
Board 's Decision and Direction of Election, issued October 16, 1944, in Case
No. 5-R-1655." This second election resulted in a vote of 68 for the Union and
82 against it; there were no challenged, void or blank ballots. No protests or
objections were filed to this 1944 election, and on November 18, 1944, the Board
ordered the Petition in that case dismissed. On November 30, 1944, the Union
filed its original charge in the instant matter, alleging that the Respondent,
through actions of its superintendent, had violated Section 8 (1) of the Act.
It should be noted that most of the alleged violations of Section 8 (1) discussed
hereinafter fall within a period of approximately seven months preceding this
second election which the Union lost.
The third election involving the Union among the Respondent's employees was
conducted on December 20, 1945, pursuant to the Board's Decision and Direction
of Election, issued December 7, 1945, in Case No. 5-R-2008." The unit consisted
of all production and maintenance employees, including watchmen-firemen, the
shipping clerk, the utility man and the utility woman, but excluding fixers, fore-
men-fixers, the forelady, and all other supervisory employees.13 The Union
received 98 votes ; 70 votes were cast against it. There were no void or chal-
0 Except where such matters as conflicts in the evidence and credibility of witnesses are
discussed hereinbelow, the findings in this division of the Intermediate Report are made
upon evidence which is either undisputed or which is at variance only as to immaterial de-
tails, or are made upon the preponderance of the reliable, probative, and substantial evi-
dence in the record considered as a whole.
10 It appears that at their third meeting, the Respondent presented contract proposals not
disclosed by the record; that the Union's representatives read those proposals and an-
nounced that there was nothing to do but to take strike action; that such action did not
take place because the local committee did not feel "strong enough" ; and that the Union
thereafter did not request further meetings with the Respondent.
Il Matter of Tower Hosiery Mills, Inc., 58 N. L. R B. 1053. The Union's Petition in that
case was filed July 2, 1944, and the hearing was held September 8, 1944.
13 Matter of Tower Hosiery Mills, Inc., 64 N. L. R. B. 1245. The Union's Petition in said
case was filed July 28, 1945, and the hearing was held on September 17, 1945.
13 The supervisory employees excluded in both the 1944 and 1945 elections were those with
authority to take or effectively to recommend action respecting the status of employees
under their supervision
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lenged ballots ; no objections to the election were filed" On January 4, 1946,
the Board certified the Union as the bargaining agent in the above unit. It was
during a period of approximately 11 months after this third election that the
events transpired which give rise to the refusal to bargain issue in the instant
matter and to several contentions as to violations of Section 8 (1), as appears
more fully below 16
B. The alleged violations of Section 8 (1) during 1944
1. The situation in general
During the spring of 1944, evidently about the middle of March," the Union
started organizational activities which culminated on November 9, 1944, in the
above discussed election which the Union lost. During July 1944, a group
known as The Loyalty Committee," headed by three non-supervisory employees
of the Respondent, M. V. Lamb, Wade .Montgomery, and Robert Clements, was
formed and thereafter engaged in activities directed toward defeating the Union.
These activities consisted, among other things, of a chicken dinner at Lamb's
home, a barbecue, broadcasts over Radio Station WBBB, the studio of which
was used for some of the Committee's meetings, and the distribution of anti-
union literature put out, in part at least, shortly after and in answer to litera-
ture distributed by the Union. The Loyalty Committee's literature was widely
distributed in the plant, as was also literature issued by the Union. It is ap-
parent from all of the evidence that no distinction was made by the Respondent
in its treatment of the Committee and the Union in permitting employees on
their own time to engage in such activities as the distribution of literature in
the plant.18 However, certain statements of an anti-union nature, allegedly made
by supervisors of the Respondent during this campaign between the Union and
the Committee, are in issue as violative of the Act.
Generally speaking, the evidence as to the 1944 period falls into two broad
divisions : that pertaining to the statements allegedly made by admitted super-
visors of the Respondent, and that pertaining to the Respondent's responsibility
directly and indirectly for causing and instigating the anti-union campaign of
The Loyalty Committee. As to the first division, the Board's Bill of Particulars,
as amended at the hearing, puts in issued statements allegedly made on various
occasions from April through December 1944, in the plant and at the homes of
employees, by Superintendent E. E. Chapman and Foreman Kenton Mincey and
14 However, on December 4, 1945, shortly before the election had been conducted, the
Union had filed its amended charge in the instant matter, alleging violation of Section 8 (1)
and (3) of the Act. The second amended charge was filed on January 16, 1946, and supple-
mental charges on March 18 and on May 2, 1946, respectively, the supplemental charge
of March 18 alleging refusal to bargain.
14 With the exception of plant rules posted on December 31, 1945, shortly after the Union
won the election, the 8 (1) issues during the period following the election of December 20,
1945, are essentially phases of the bargaining picture, in contrast to the types of violations
in issue during the period prior to the 1944 election. None of the activity litigated as
violative of Section 8 (1) occurred during the period of over a year which elapsed between
the 1944 and the 1945 elections.
18 This date is based on undisputed testimony of employee Wade Montgomery that the
week after he returned to work at the Respondent' s mill on March 6, 1944, after a period of
employment elsewhere, employee Percy James gave him some union cards and asked him
to help organize for the Union.
11 There is no contention that it is a labor organization.
18 For instance, a leader in organizing the Union, James, testified that he knew of "no
difference in the treatment" received. Similarly, a leader of the Committee, Clements, testi-
fied that he could see "no difference between the privileges accorded "
TOWER HOSIERY MILLS, INC. 669
Walter White as being violative of Section 8 (1) of the Act, in the respects set
out in subparagraphs (a), (b), (c), (d), (f) and (g) of Paragraph XI of the
complaint "
An examination of all of the evidence shows, however, that only certain
alleged conversations, occurring during the period from September to November
1944, and involving only Superintendent Chapman and Foreman White, can be
considered as falling in the category above indicated $0 Since the contention of
Board's counsel that the activities of the Committee were "echoing" the Re-
spondent's direct anti-union campaign cannot be evaluated without first deter-
mining the extent to which the Respondent was engaging in such a direct cam-
paign through its acknowledged supervisors, the evidence pertaining to state-
ments of the Respondent's supervisors will be considered before that pertaining
to the general allegation that the Respondent caused and instigated an anti-union
campaign by means of an anti-union group of employees called "The Loyalty
Committee."
2. Statements of the Respondent's supervisors
One Sunday afternoon during September 1944, Superintendent Chapman went
to the home of Percy James where they engaged in a conversation while seated
in Chapman 's parked car.21 In several material respects the testimony of James
and Chapman is in sharp conflict as to what was said during this conversation,
which consumed considerable time, and during which no one else was present
except James ' year-and-a-half-old daughter , who was crying part of the time .R2
On direct examination, James, indicating that he could not "recall all of the
conversation," gave substantially the following version of what transpired.
Chapman told James that he understood that he "was interested in unions" and
Janes said that he was 28 Chapman then told James that he wanted to talk
with him about it "just from his view point" ; that unions were made up of
Northerners who were not interested in what happened to them but just wanted
their money ; that he hated to see them get into anything like that as they would
not "ever get anything out of it." Chapman indicated that he did not like unions
and, at one point in the conversation, asked James , "Well, if you were Mr.
Maynard and had that building over there, had the money Mr. Maynard got
and somebody from the outside, a union or someone come in and tried to run
your business for you or tell you how you could run it, what would you do?
'9 For the gist of said paragraphs, see footnote 2 above.
20 The evidence shows, as appears more fully below, that neither Superintendent Chapman,
during a dinner in April at the Burlington Country Club, nor Foreman Mincey, at a barbecue
given in August by the Committee, made statements of the kind now to be considered.
21 James placed this conversation as about the last of August or the first of September.
Chapman placed it as the last of September. Clearly the conversation took place after the
activities of the Committee got under way and before the election.
22 The child had mashed her fingers in a door and was crying when Chapman , who had
arranged by telephone to call at James' home, arrived. Chapman suggested sitting in his
car ; the car radio was played for some time in order to quiet the child's crying. Under
such conditions, it is difficult to tell what part of the hour or hour and a half, which James
estimated as the length of the conversation, was actually devoted to discussion between
James and Chapman.
28 On cross-examination, James testified that Chapman asked him if he was interested in
the Union and that while he had never previously told Chapman that he was a member
of the Union, he knew in his "own mind" that Chapman knew that he was. How-
ever James' interest in the Union may have come into the discussion, the undersigned
is satisfied that Chapman knew before he went to James' home that Sunday that James,
who was then a knitter and had been working at the plant for about 11 years, was active
on behalf of the Union.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Would you continue to try to operate or shut down?" u As an illustration of the
way unions worked, Chapman described a situation which he had seen during
a strike "in the North" where girls were being called scabs. James stated that
he thought the Union was worth trying and that if they did not like it they would
not have to keep it. When Chapman said that he was afraid that it would not
be easy to get rid of it, James told him that if they did not have a check-off they
could quit paying dues. Chapman said that he did not think they would "ever
get a check-off."
On cross-examination, James admitted that Chapman had spoken to him on
two occasions about being absent from work too often, but denied, none too
persuasively, that that subject had been mentioned that Sunday at his home.
James admitted that the hosiery mills around Burlington had been short of help
during 1944; that the Respondent was then doing everything within reason to
keep employees on the job ; that the Respondent was more strict about absences
then than in normal times ; and that he had heard that Chapman had frequently
talked with different employees about being absent.26 James testified that the
conversation was friendly ; that Chapman did not get mad or say anything which
he felt threatened him because of his union sympathy ; 26 and that while the
Union was the principal subject of their conversation, one of the points discussed
was the difficulty which Chapman was having getting employees to keep up their
machines and do their work properly .2' While James testified that , as he recalled
it, Chapman was the one who brought up the subject of the Union, James
admitted that he "could have asked" Chapman what he thought of the Union,
and also that Chapman said, in effect, that what the employees did about the
Union was their own business and that under the law they had a right to join
or not to join as they saw fit.
When called by the Respondent, Chapman gave essentially the following
explanation of his visit to James' home. P,-for to that Sunday afternoon, Mrs.
James had come to the mill and had asked him to talk with her husband about his
staying away from work and spending so much of his money drinking, as it
was working a hardship on her and their two children. Chapman said that he
would speak to James upon his first opportunity. Without telling James of his
wife's visit, Chapman arranged to see James the Sunday afternoon following a
week in late September during which James had been absent from work all of
Monday and about half of Friday. During their discussion in the car, Chapman
explained that he was having difficulty maintaining production and keeping up
the machinery and the quality of the work ; that if he could not depend on the
older knitters to set an example during that period of high labor turn-over, he
14 James testified that he did not know "just where" this part of the conversation
"fitted in." Later in his examination , when questioned by the undersigned , James gave an
account of this part of the conversation consistent with the above quoted material and
testified that he did not recall whether he had answered Chapman's question. The Maynard
referred to above is R. A. Maynard, the Respondent's secretary and treasurer, who has been
the Respondent' s managing officer since its organization in 1929.
"Later James also testified that on two occasions considerably earlier , Chapman had
visited his home when he had peen absent due to illness , and that he thought that Chapman
had done so to ascertain when he would be able to be back to work.
21 On redirect examination by counsel for the Union, however , James testified that he
construed certain of Chapman's remarks to mean that they might shut down the plant if
the Union got in and that they would not give anything to the Union.
27 For instance, while insisting that he could not recall that the question of "working regu-
larly" had come into the conversation, James admitted that Chapman did say "something
about having some sorry knitters."
TOWER HOSIERY MILLS, INC. 671
could not expect much cooperation from the new help; and that he thought that
the older knitters should be on their jobs and should be in condition to look after
their jobs when they were there. James said that he would cooperate and that
he thought that the Union would help because it would require the knitters to
do better work. Chapman said that that was a matter for James to decide for
himself. James also said that he felt that the Union would help maintain higher
wages after the war. Chapman replied that the mill had always paid wages
prevailing in that area and that he could see no reason why their policy would
change. There was also considerable discussion of knitters' responsibility for
the care and operation of their machines. Chapman asked James if he would
come to work the following day, Monday, and James said that he would. Chap-
man explained during his testimony that he had discussed the Union with James
because James had asked him about it. Chapman also specifically denied making
all material statements adverse to the Union which James testified that he had
made.
Mrs. James, when called as a rebuttal witness by the Board, emphatically
denied that she had ever asked Chapman to talk with her husband. However,
she admitted on cross-examination that at one time she had gone to one of the
banks in Burlington about a note to which her husband had "forged" her name
in order to borrow money and that on a second occasion she had gone to an
industrial loan company and had asked that they not lend her husband money.
Mrs. James did not admit that drinking on her husband's part had been a factor
in the above two visits ; she testified that he had been absent from work not more
than "a couple of times because of drinking."
From his observation of them as they testified , and from his study of the
record as a whole, the undersigned is not satisfied that complete reliance can be
placed on the version of any of the foregoing three witnesses. Nevertheless,
whatever role Mrs. James may have played in Chapman's decision to talk with
her husband, the undersigned is convinced, James' denial notwithstanding, that
a substantial part of the discussion on the Sunday afternoon in question related
to the importance of James' avoiding unnecessary absences from work. Admit-
tedly James had talked with Chapman about that matter on two occasions. The
testimony of James and Chapman as to what took place on the second occasioni,
now to be reviewed, is not in substantial conflict.
On Monday, October 23, following a week during which James had worked
only 11/2 hours and during which Chapman had overheard a conversation in the
dressing room to the effect that "James was drinking that week," Chapman talked
the situation over with James in his office. On that occasion James told Chapman
that he had "done wrong" and that he had a "perfect right" to "fire" him28
Chapman said that he did not want to discharge James if he would work as he
should. James was not discharged but was given another chance.
Clearly the above conversation in Chapman's office was one of the "two occa-
sions" upon which James admittedly told Chapman that he had done things
which he would not "do anymore." It is apparent from James' testimony as
to what occurred in Chapman's office that James had previously been warned
"in a way on one other instance" about his absences. Yet no satisfactory explana-
tion of that other occasion appears in James' testimony 2D Everything considered,
Re James so testified.
"An occasion in the plant (which James placed as the Monday following the conversa-
tion at his home and which Chapman, correctly in the undersigned 's opinion , placed as prior
to that Sunday ), when Chapman spoke to James about leaving his knitting machines
running while he went to solicit union memberships in the plant during working hours,
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the undersigned believes that the prior occasion upon which Chapman talked with
James about his absences was the Sunday afternoon at James' home, less than
a month, according to the Respondent's pay-roll records, before the second con-
versation in Chapman's office.
From the foregoing, it is evident that James' version of the Sunday afternoon
conversation at his home was less than candid. Further, while recognizing the
possibility that Chapman's version of the incident may also have lacked complete
candor, there is no warrant in the evidence for crediting James' testimony as
to remarks about the Union which Chapman denied that he had made, especially
since Chapman's credibility, considered in the light of the record as a whole,
impressed the undersigned as less impaired than James'. Accordingly, the under-
signed finds that the evidence does not warrant holding that Chapman opened
up the subject of the Union ; that Chapman questioned James concerning his
union affiliation or activities ; or that Chapman's conversation with James was
violative of the Act in any of the several ways alleged in Paragraph XI of the
complaint, as contended by counsel for the Board a°
Sometime prior to the election on November 9, Superintendent Chapman, while
making his rounds of the plant during operations, engaged briefly in a conversa-
tion with employee E. C. Jordan, Jr., who was at his cabinet at the end of his
machine. According to Jordan, who could not remember whether he had stopped
Chapman or Chapman had walked up to him to start the conversation, they
discussed how the election might go ; he told Chapman that he thought the Union
would win if the election were conducted before the expiration of the waiting
period provided in the posted election notices ; and that Chapman replied that
he did not know about that but that there were "six or eight different persons
responsible for the union being brought there and that they would be taken care
of after it was over with."
According to Chapman, it was Jordan who stopped him and asked what he
thought would be the outcome of the election and who the leader was in organ-
izing the Union. Chapman testified that he told Jordan that there were "prob-
ably six or eight" leaders, but denied saying that they "would be taken care
of" after the election.
From the testimony of Jordan, who was under subpena and no longer in the
Respondent's employ, it appears that Jordan had attached no particular sig-
nificance to Chapman's remarks at the time of their conversation and that Jordan
had very little independent recollection of the conversation when he testified.
On cross-examination, when asked if the conversation with reference to the Union
had not resulted from his asking Chapman how he thought the election would
come out, Jordan replied, "That part I couldn't say, because I couldn't even
remember what the conversation was about until they read it out to me." It
thereafter developed that Jordan was relying during his testimony, in substantial
part, on what was contained in a typewritten affidavit which he had signed
did not involve any discussion of James' absenteeism. Further, the undersigned is satisfied
from his study of James' and Chapman's testimony, that no violation of the Act was involved
in what Chapman said to James on that occasion , and that no discrimination in the
Respondent's treatment of the Union was involved. Clements, one of the three leaders of
The Loyalty Committee, testified credibly that on one occasion early in their activities,
when he was away from his machine distributing literature, he was instructed to attend
to his machine during working hours. James also testified that, prior to the 1944 election,
he had not seen employees hostile to the Union circulating literature in the plant during
working hours.
30 In general, reference is not made herein specifically to contentions of the Union, since,
for the most part, they are similar to those of Board's counsel.
TOWER HOSIERY MILLS, INC. 673
at the union hall, sometime after the November 1944 election but before he had
left the Respondent's employ in February 1945, and which he had not seen again
until the week before he testified on June 10, 1947.' It further appears from
Jordan's testimony that the above affidavit contained a summary by others of
statements made by Jordan at the union hall and not Jordan's exact words.
In any event, it cannot be said from Jordan's testimony that the affidavit upon
which he was evidently relying set out exactly what Jordan had attributed to
Chapman at the time the affidavit was made.
While the undersigned believes that Jordan was trying to be truthful dur-
ing his testimony, he is also satisfied that Jordan did not have, at the time he
was testifying, a clear and independent recollection of the conversation which
he had had some 30 months earlier with Chapman. Further, it appears un-
likely that if Chapman's remarks had contained what Jordan interpreted at
the time as a threat of reprisal against leaders of the Union, Jordan would
have attached so little significance to the conversation. Everything considered,
the undersigned finds that the evidence does not establish that the Respondent,
by Chapman's conversation with Jordan, violated Section 8 (1) of the Act, in
any respect specified in Paragraph XI of the complaint.
There remains to be considered flatly contradictory evidence as to two con-
versations which employee Java Small testified that he had had with Foreman
Walter L. White. According to Small, those conversations were initiated by
White, who came to his machine during working hours when he was employed
on the second shift under White's surpervision ." Small testified that the first
conversation took place about a week before the election between 5 and 6 p. in.,
in the presence of a night watchman, whom he identified as Campbell, and that
the second conversation occurred about 9 or 10 p. in., about a day before the
election On the first occasion, according to Small, White inquired how he
thought the election was going; he told White that he did not know; and White
said that if they get the Union, the Union would get their money and they would
"get nothing out of it." On the second occasion, White remarked as to the
Union that no one but "just a low class of people belong."
Foreman White testified that he had not worked on the second shift, but had
been the foreman on the third shift, since August 1943; that Small had not
worked under his supervision or on the same shift with him ; and that while
he had "probably" spoken to Small at the plant while Small was working,
it would have been shortly before 11 when he had come in at the time the shifts
are changed. White denied having had any conversation with Small at any
time or place about the Union and specifically denied each of the remarks at-
tributed to him by Small. E. C. Campbell, the night watchman identified by
Small as being present at the first conversation, testified that he had been as-
signed to the second shift since 1940; had never heard White or Small say
ai While this affidavit was available for examination by the parties at the hearing, it was
not offered in evidence.
32 At one point, Jordan testified that as he "spoke it out, why they kind of worded it";
and at another, that as he "talked it out, they fixed it around and typed it out as it should
read " At a third point in his testimony, when asked if he had known of his own independent
knowledge, at the time that he had signed and sworn to the affidavit, that everything in it
was the truth, Jordan answered, "Yes, because everything in that affidavit was what I said,
but it is not worded exactly as I said it "
as The second shift works from 3 to 11 p. in. Small insisted that he was then working on
the second shift and that White, whom he identified as the head fixer and his foreman, was
his supervisor on the second shift at that time.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a word about the Union; and had not been present at any conversation between
them shortly before the 1944 election.
While Small did not give the impression of a witness engaging in fabrication,
the preponderance of the evidence, including testimony of Chapman, Montgomery,
and Lamb, as to the shifts upon which Small and White worked, establishes
that at the time of the alleged conversations, White was the foreman on the
third shift and Small was working on the second shift. It thus appears that if
Small had conversations with any supervisor of the Respondent's concerning
the Union prior to the 1944 election, he was highly confused as to the circum-
stances surrounding any such conversations. Accordingly Small's testimony,
in the light of the record as a whole, affords no substantial basis for finding that
Foreman White made such remarks as Small attributed to him.
From all of the foregoing, the undersigned concludes and finds that the evidence
does not establish that the Respondent, by statements of Superintendent Chap-
man or Foreman White, engaged during 1944 in conduct violative of Section
8 (1) of the Act, as alleged in sub-paragraph (a), (b), (c), (d), (f), and (g) of
Paragraph XI of the complaint.
3. The issue of the Respondent 's responsibility for the activities of The
Loyalty Committee
From the foregoing section of this report, it is apparent that the activities
of The Loyalty Committee cannot be said to have been echoing any anti-union
campaign conducted by the Respondent through its supervisors. Before con-
sidering the broad problem of whether the "totality" of all of the acts shown
by the evidence "constituted a conspiracy" among the Respondent, the Com-
mittee, the "Radio Station Operator, and all others who worked in conjunction"
to destroy the Union," consideration will first be given to the evidence which it
is contended establishes a direct connection between the Committee and the
Respondent.95
Sometime in April 1944, Superintendent Chapman invited a number of em-
ployees to a chicken supper at the Burlington Country Club. According to one
of the employees who attended at Chapman's invitation, Homer Jenkins, a wit-
ness for the Board who testified under a subpena," the employees made a few
talks during which some of them said, in Chapman's presence, that "they had
a pretty good place to work down there, they didn't think we needed any union
down there."" Jenkins could give no indication as to who made such remarks
nor could he indicate the nature of the other topics discussed. He testified
that it was "more a friendly get together." The undersigned is not satisfied
that Jenkins intended to convey the impression that any substantial part of
the occasion was devoted to formal talks.
az The Union so contended specifically in its brief
as In oral argument, counsel for the Board stressed evidence of direct connection but also
relied upon the "totality of conduct" theory.
ac Jenkins, a former employee who was engaged in farming at the time of the hearing
and who had been against the Union during 1944, impressed the undersigned as a distinter-
ested and truthful witness whose memory was vague on several matters. Jenkins thought
the supper was "along toward the fall," but was uncertain as to the date and place. It is
evident, from the testimony of several witnesses called by the Respondent, that a chicken
supper at the above place and time was attended by Jenkins.
ar Jenkins could not remember "who it was said it, but it was said " Jenkins named all 3
of the leaders of the Committee as among the approximately 12 employees present. How-
ever, the undersigned is satisfied, from the testimony of the 3 members of the Committee,
that Montgomery and Lamb attended, but that Clements did not
TOWER HOSIERY MILLS, INC. 675
The purpose and program of the supper given by Chapman, after the Union
had starting organizing but prior to the formation of the Committee was depicted
as follows by five witnesses for the Respondent.'" In April, Brodie Hood, who
operates a sporting goods store in Burlington and who was then interested in
reviving an industrial baseball league which had flourished in the community
prior to the war, asked Chapman to see if it could be arranged to have the
Respondent, which had had a very successful team in the league in former
years, put a team into the league. Hood, who had seen Jenkins pitch for a
team elsewhere. also recommended Jenkins to Chapman as a good left-handed
pitcher who might be intersted in playing on its team, if the Respondent de-
cided to enter one. While Chapman expressed doubt as to whether there would
be enough players available during the war to make such a team feasible, he
consulated Maynard who suggested that he "check with his boys" to see how
much interest there was before deciding whether the Respondent would furnish
uniforms as it previously had done.
As a result of the foregoing , Chapman invited Jenkins,40 along with employees
who had formerly played upon or had been associated with its team, to supper
at the Country Club. The subject considered that evening was whether it was
feasible to put a team into the league. It was eventually decided not to try
to do so because of conditions prevailing during the war. The subject of the
Union was not discussed. Jenkins was quite late in arriving at the supper 41
Chapman, who was chairman of the club' s tournament committee , left the room
when lie finished supper in order to consult on arrangements for the spring golf
tournament.
The April 1944 supper was given by Chapman at a time when the organization
of a baseball team would logically be considered ; all who attended were inter-
ested in baseball . On all of the evidence, the undersigned believes that the
supper was given for the purpose stated by the Respondent 's witnesses ; that
the feasibility of putting a baseball team in the industrial league was the central
topic of discussion ; and that no remarks discouraging unionization were made
by employees in Chapman 's presence . 92 Under such circumstances , even if Jen-
kins did hear remarks such as he attributed to unnamed employees , such remarks,
made during informal discussion among employees , cannot serve to link the
Respondent with the Committee, formed several months later, and do not war-
rant the inference that the chicken supper given by Chapman served as the
stimulus to the formation of The Loyalty Committee.
The evidence shows that beginning in July, the studio of Radio Station WBBB,
then Burlington 's only radio station, was used for the initial meeting and for
subsequent meetings of the Committee.42 The privilege of using its conveniently
located studio rent free was also accorded other groups and organizations in
the community . During the Committee's 1944 campaign against the Union, at
88 Chapman , who was a member of the club , testified that he paid for the supper.
e9 The witnesses were Chapman , Lamb , Montgomery , Maynard, and Brodie Hood. Their
testimony was essentially consistent , supplementary , and mutually corroborative.
40 Chapman admitted that he gave Jenkins no explanation of why he was being invited to
the supper.
41 Jenkins was not called as a rebuttal witness, hence did not deny this. It appears
that the decision not to enter a team had been reached during the course of the meal,
and it is possible that much, if not all , of the discussion about baseball had been finished
prior to Jenkins ' arrival.
42 Chapman specifically denied that such remarks were made in his presence.
43 Meetings of the Committee were also held at the home of Lamb , the initiator and
the head of the Committee , a group which had no formal organization, and no initiation
fees , dues , constitution or bylaws.
829595-50-vol. 81-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least two spot announcements were made over WBBB on behalf of the Com-
mittee. The announcements were paid for by the Committee at the regular
commercial rate of $2.50 each." The station's manager, E. Z. Jones, who testified
that he did not like the Union because of some of the methods which it employed,
gave some suggestions on at least one occasion concerning the wording of liter-
ature opposed to the Union 46 Such literature was drawn up, in part at least, at
the studio and was published and distributed by the Committee 96 Jones sat in
on some parts of some of the Committee's meetings held in the station's studio.
He also attended a chicken supper given about the last of July at Lamb's home 47
Board's counsel seeks through corporate connections to establish a direct
link as of 1944 between the Respondent and the owner of WBBB, the Alamance
Broadcasting Company, Incorporated, a North Carolina corporation herein
called Alamance. Jones was the station manager, the secretary of Alamance,
and its second largest stockholder, owning 12.68 percent of the stock. There is
no evidence that Jones had any financial interest in or any connection with the
Respondent, or that any officer or supervisor of the Respondent intervened in
any way with WBBB on behalf of the Committee.
On the other hand, R. A. Maynard, the Respondent's secretary and treasurer
and its managing officer, owned 1.9 percent of the stock in Alamance but was
neither an officer nor a director thereof, while T. D. Cooper, who has been the
Respondent's attorney since it was organized, owned 1.7 percent of Alamance's
stock and was one of its directors. There were 22 stockholders of Alamance ;
their holdings ranged from 19.4 percent of the stock down to .6 percent. While
the record reveals the business connections in the community of some of these
stockholders, except for Maynard and Cooper no connection was established
between any of Alamance's stockholders and the Respondent 46
It thus appears that Alamance and the Respondent had no officers, directors,
or managing officials in common and there is no evidence that their policies stem
from a common source.49 Under these circumstances, the undersigned is con-
vinced and finds that Maynard's and Cooper's respective interests in Alamance
and the Respondent afford an insufficient basis for holding that any action of
Jones or Radio Station WBBB is chargeable to the Respondent on any theory
of corporate connection. The undersigned further finds, on the record as a whole,
"At least one such spot announcement was made over WBBB for the Union.
46 Montgomery's testimony on this point is credited.
46 The three samples of the Committee's literature which were introduced in evidence
cannot be said to contain threats or coercive statements. Nor can it be said, in view of
all of the evidence, that such literature contained any statements, facts, or arguments
which necessarily originated with the Respondent.
47 In view of findings made elsewhere herein, it is not necessary to set out what transpired
at this supper or to determine, from the contradictory evidence thereon, what statements,
if any, in derogation of union organizers, may have been made by Jones at this supper,
which was attended largely by employees but at which were also present a local minister
and a local lawyer, who were not shown to be connected with the Respondent. It should
be noted that there is no evidence that any supervisors of the Respondent were present
on that occasion or that Jones made any threat or purported to speak for the Respondent.
At most, there is testimony, which is denied, to the effect that Jones characterized union
organizers as the scum of Russia.
48 The undersigned believes that it is immaterial , under the circumstances of this case,
that certain of Alamance 's stockholders were connected with another hosiery manufactur-
ing company in Burlington , since there was no showing of corporate connection between
said hosiery company and the Respondent.
49 It should be noted that no other corporation, association, chamber , or organization
was joined as a party respondent herein.
TOWER HOSIERY MILLS, INC. 677
that no inference is warranted that any action of Jones or of Radio Station WBBB
in relation to the Committee was instigated by the Respondent.
During August 1944, the Union gave a barbecue to which all employees were
invited. A few weeks later, the Committee held a barbecue during September
to which all employees also were invited. Both barbecues were held at appropri-
ate places away from the plant. Kenton Mincey, the day foreman of the
knitting department, who brought his "small boy" with him, attended the bar-
becue given by the Committee, as did several members of the Union. Mincey was
present during the preliminaries when Lamb, after introductory remarks by
Montgomery,°° got up on a table and read off a series of prepared questions and
answers, summarizing the Committee' s reasons for opposing the Union and the
Committee's contention that the Union was making false statements and
extravagant promises which could not be fulfilled 63 Thereafter Mincey, a deacon
in his church and also active in his Sunday school, was called upon by Montgomery
to return thanks. Mincey then asked the blessing, ate supper, and left with
his son.62
When called by the Respondent, Mincey, who admitted asking the blessing,
testified that lie had attended the barbecue upon invitation from Clements to
"an employees' picnic" to which "everybody was invited" ; that he had been
advised of no other purpose for the barbecue; that he had not been questioned
about the Union by anyone while there and had left immediately after eating ;
that he had been instructed by his superiors not to become involved in activities
relative to the Union ; 32 that he had not attended or been consulted about any
meeting of The Loyalty Committee and had made no contributions to the Com-
mittee ; and that he had also been invited to attend the Union's barbecue, but
had been unable to do so."'
While it is difficult to believe that Mincey went to the barbecue unaware of
its purpose, he certainly remained after Lamb's remarks had clearly informed
him of the anti-union nature thereof. However, it appears from Montgom-
ery's testimony that his request that Mincey ask the blessing was a sponta-
neous one, made when Lamb had finished speaking. In view of Mincey's reli-
gious background, such a spontaneous request on Montgomery's part was nat-
ural. So also was Mincey's compliance therewith. Chapman and Maynard
both testified convincingly that they had had no knowledge of Mincey' s presence
at the Committee's barbecue until they had questioned Mincey upon receiving
the Bill of Particulars mentioning his name shortly before the hearing, and that
Mincey had then explained that he had attended without knowing that the
barbecue's purpose was anti-union in nature. Everything considered, the under-
signed is not convinced that Mincey's limited participation in the Committee's
barbecue links the Respondent with the Committee.
Similarly, the undersigned does not believe that the fact that a stack of the
Committee's cards was seen in Chapman's office links the Respondent and the
00 Montgomery stated that the purpose of the barbecue was to afford the Committee an
opportunity to present its side of the story in opposition to the Union.
63 Lamb admitted that his presentation was "all hostile" to the Union.
62 The findings in the above paragraph are based upon all of the testimony pertaining to
the barbecue ; said testimony was essentially supplementary in nature.
u Several other witnesses for the Respondent testified that such instructions had been
given to the Respondent 's supervisors.
an From the testimony of William Cross, a Board witness who was active on behalf of the
Union, it appears that "everybody was welcome" at the barbecue given by the Union and
that if supervisors had "wanted to come they could have come."
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Committee, under all of the circumstances. Employee Dwight Shaffner testified
credibly that "a couple of days" after the election, he and another employee
stepped into Chapman's office through a door from the knitting room which is
always open ; and that when they entered the office to smoke, they saw on the
shelf-like top of one of the cabinets, just inside the knitting room door, ap-
proximately 100 cards such as the Committee had distributed, all neatly stacked
on what looked like wrapping paper.' He also testified that he did not know
who had put the cards there ; that Chapman's desk was in the far corner of
the approximately 10 by 18 foot room near another door opening into the general
office ; and that the room was generally "pretty well cluttered up with supplies
and miscellaneous items. "
Chapman, who spends perhaps 2 hours a day at his desk, testified credibly that
he had not given anyone permission to put such cards in his office, that he had
not seen them there, and that he had first learned at the hearing of their being
there. The undersigned is satisfied from Chapman's and Maynard's testimony
that Chapman's office was also used for receiving, packing, shipping, and stor-
ing various types of goods and suppplies ; that the room was generally fairly
well cluttered ; and that the room was customarily used by knitters as a place to
smoke. Everything considered, no inference is warranted that the Respond-
ent had any knowledge of or anything to do with the presence in Chapman's
office of the stack of cards which Shaffner saw there.
One further incident which it is contended bears directly on the Respond-
ent's responsibility for the Committee remains to be considered. On Novem-
ber 9, 1944, the day of the election , after the ballots had been counted establish-
ing that the Union had been defeated, the three leaders of the Committee,
Lamb, Montgomery, and Clements, all of whom had served that day during
the election as the Respondent 's observers 68 went to Maynard's private office at
the plant, where drinks were served from a bottle of whiskey which Maynard
placed on his desk. Maynard and Chapman were also present, as was employee
Homer Jenkins ," who, according to his testimony given as a Board witness, had
seen "some of the boys" going into Maynard's office and had gone in also 68
According to Jenkins, he had a drink upon Clements' invitation ; he noticed that
those present seemed "very pleased" ; 68 he was in the office about 15 minutes ;
and he heard Maynard say over the telephone to someone who had called, "We
won."
Maynard's version of the incident was that after the ballots had been counted
and the election forms had been signed , the Respondent's observers who had
been working on the election all day, without prearrangement , followed him to
his office ; 80 he asked them if they wanted a drink ; and he put a bottle on his
55 Shaffner identified as similar a 2- by 4-inch card signed "The Loyalty Committee" which
reads, "IF YOU FAIL TO VOTE you cast a vote FOR the union . VOTE AND VOTE NO."
se Clements testified that Lamb had appointed him as an observer and that he did not
have the "faintest idea" who had appointed Lamb. Lamb testified credibly that Chapman
had asked him to serve as an observer in all three of the elections and that he had so served.
Montgomery also served as an observer for the Respondent in 1945 as well as in 1944
57 This is the same employee referred to above in findings concerning the chicken supper
at the Burlington Country Club in April 1944.
"Jenkins testified that the employees he had seen going in were Lamb, Montgomery, and
Hester . While Jenkins testified that Clements also was in the office, he did not name him
as one of those he had seen going into the office.
59 Jenkins testified that strangers were also present. However, Maynard remembered
only the six named in the body hereinabove. The undersigned deems it unnecessary to
determine whether or not additional individuals were present in Maynard's office
eo Although none of the Union's observers joined the group in Mavnard's office, a repre-
sentative of the Board came to the office door to thank Maynard for his cooperation
TOWER HOSIERY MILLS, INC. 679
desk and told them to help themselves. Maynard testified that he knew that he
had not used the expression "We won" over the telephone because he had known
"better than that a long time ago." He also testified that he had given the
results of the election over the phone to the local newspaper and to the radio
station by giving them "the tally of votes, so many for and so many against,"
and that he could not recall what had been discussed although there was "a lot
of palavering" during the 10 to 20 minutes they were in his office.
The testimony of others present tends to corroborate Maynard's, although
such testimony, like Jenkins', was either silent or vague as to what discussion
may have taken place among those in the office. Chapman testified that he was
present part of the time and that Maynard did not in his presence say over the
telephone, "We won." Clements testified that the meeting was not prearranged ;
that he went to Maynard's office because he was expecting some telephone calls ;
that he received two calls while he was there ; that during one of them he told
his wife, who wanted to know if he would be home for supper, that he would be
home soon and that "we had won." Clements also testified that he had gone
from the ante-room where the ballots had been counted into Maynard's office
which was "off from the main office" to await his wife's telephone call because
there was no one in the main office from which he had made calls on other
occasions; that he believed that there was no one in Maynard's office except
Maynard when he went in and asked if he could await a telephone call which
he was expecting ; and that he did not think that the election was discussed
because they were "all too worn out to discuss much." Montgomery testified
that he had not known that there was going to be any meeting in Maynard's office ;
that he had seen Lamb going in and had followed him ; that he had not heard
Maynard say over the telephone, "We won" ; and that while he had heard
Clements talking over the telephone, he could not remember what Clements
had said. Lamb testified that, as he was leaving the mill after the election,
he had stopped in Maynard's office without prearrangement ; that he had a
drink with the boys there ; that he had been tired and could not remember what
had been said; and that he had not heard Maynard say over the telephone,
"We won."
Whle the matter is not without doubt, the undersigned is not convinced
that the evidence as to what transpired in Maynard's office establishes a link
between the Respondent and the Committee. Thus, while it is clear that the
three known leaders of the Committee served as the Respondent's observers
at the 1944 election, and while the Respondent might have avoided suspicion
if it had selected other observers, there is no evidence that any protest was made
at the time or that any irregularity was involved. No objections or protests
to the election were filed thereafter. It cannot be said on the evidence in the
record that the brief meeting in Maynard' s office was anything more than a
spontaneous occurrence, initiated when Clements went into Maynard's office to
await a phone call from his wife as to when he would be home for supper,
augmented as other employees followed one another into the office," and con-
tinued briefly around a bottle which Maynard produced as a friendly gesture.
While this occurrence as a whole was admittedly unusual, there is no evidence
establishing that the Union's defeat in the election was discussed, except as
election results were mentioned over the telephone. Finally, from his study
of all of the evidence, the undersigned is not convinced that Maynard used the
phrase, "We won," in reporting the results of the election over the telephone.
61 Jenkins ' testimony shows that the meeting was spontaneous as far as he was concerned.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all of the circumstances, what occurred in Maynard's office cannot be
held to constitute either ratification by the Respondent of the activities of the
Committee, so as to make the Respondent chargeable with said Committee's
anti-union compaign, or a celebration of the Union's defeat sponsored by the
Respondent in violation of the Act. At most, the incident raises the suspicion
that the Respondent's sympathies lay with the Committee rather than with the
Union.
We now return to the above-mentioned "conspiracy" and "totality of conduct"
contentions as to the Respondent's responsibility for the Committee. To set
out all of the undiscussed evidence concerning the Committee which the under-
signed has carefully considered in this connection would substantially lengthen
this report. Such procedure, in the undersigned's opinion, would neither estab-
lish anything which could reasonably be ascribed to the Respondent, nor pro-
vide a web of circumstances which would warrant the inference that the Re-
spondent was necessarily playing a motivating role therein. In short, while some
of the evidence on such matters as what motivated the leaders of the Commit-
tee in their activities, how the Committee's various activities were financed,
who phrased some of its literature, why its organization was so amorphus, and
why most of its adherents preferred to keep their identities secret, fell consid-
erably short of being convincing, the record as a whole does not warrant finding
that the Respondent entered into a conspiracy with the Committee, Radio Sta-
tion WBBB, or other organizations or individuals in the community to destroy
the Union," particularly since the evidence fails to establish a direct link between
the Respondent and the Committee or that the Respondent was itself engaging
in an anti-union campaign. Accordingly, the undersigned concludes and finds
that the Respondent did not cause and instigate an anti-union campaign, either
directly or by means of an anti-union group of employees called "The Loyalty
Committee," in violation of Section 8 (1) of the Act, as alleged in subparagraph
(e) of Paragraph XI of the complaint.
C. The alleged violations after the 1945 election ea
1. The appropriate unit and the Union's majority therein
The complaint alleges and the Board found in its Decision and Direction of
Election issued on December 7, 1945,4 that all production and maintenance em-
ployees of the Respondent, including watchmen-firemen, the shipping clerk, the
utility man and the utility woman, but excluding fixers, foremen-fixers, the fore-
lady and all other supervisory employees with authority to hire, promote, dis-
charge, discipline or otherwise effect changes in the status of employees or
effectively recommend such action, constituted a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of the Act.
On December 20, 1945, pursuant to the aforesaid direction of the Board, an elec-
tion was conducted among the employees in the above unit, in which the approx-
imately 176 eligible voters cast 168 valid votes, of which 98 were cast for the
62 It should be noted that no link was established between the Respondent and certain
individuals not named herein but mentioned in the record as participating in activities
of the Committee or encouraging the Committee, and that the Respondent's mill is only
one of several enterprises in the community.
63It is contended that several of the acts now to be considered constitute not only
refusal to bargain but also independent violations of Section 8 (1), specifically covered
by sub-paragraphs (h) and (i) of Paragraph XI of the amended complaint See footnote
2. All of such matters are considered below without segregation of 8 (1) from 8 (5)
aspects.
64 Matter of Tower Hosiery Mills, Inc . 64 N. L. R. B 1245
TOWER HOSIERY MILLS, INC. 681
Union and 70 against it. On the basis of said election, the Board issued its Cer-
tification of Representatives on January 4, 1946, certifying the Union as the
representative of the Respondent's employees in the above unit. 15
In view of the foregoing, the undersigned finds that all of the employees of
the Respondent in the above-described unit, at all times material herein, consti-
tuted and now constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act. The undersigned fur-
ther finds that on December 20, 1945, and at all times thereafter, the Union was,
and now is, the duly designated representative of a majority of the employees in
the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of the Act,
the Union at all such times was, and now is, the representative of all of the
Respondent's employees in such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or other conditions of
employment.
2. The plant rules of December 31, 1945, and conclusions relative thereto
After the Union had won the election but before the Board's certification had
been issued, the Respondent, under the date of December 31, 1945, and over the
signature of Superintendent Chapman, posted a notice which stated :
THE FOLLOWING RULES ARE EFFECTIVE AS OF THIS DATE :
AT NO TIME WILL ANYONE BE ALLOWED TO LEAVE THE MILL
FOR ANY REASON EXCEPT HE HAVE PERMISSION FROM THE FORE-
MAN.
ALL KNITTERS MUST KEEP AT LEAST 25 STRAIGHT NEEDLES TO
BE INSPECTED AT ANY TIME BY FOREMAN OR FIXERS. NEEDLES
AND POINTS MUST BE STRAIGHTENED BEFORE THEY ARE PUT IN
MACHINE.
THERE WILL BE NO SMOKING DURING WORKING HOURS EXCEPT
AS FOLLOWS: FIRST SHIFT FROM 9 TO 9: 30 a. in . AND FROM 12 TO
12:30 p. in.; SECOND SHIFT FROM 6 TO 6:30 p. m. AND FROM 8:30 TO
9 p. m.; THIRD SHIFT FROM 1 TO 1: 30 a. in . AND 4 TO 4:30 a. in. THE
ONLY PLACE SMOKING WILL BE ALLOWED IS IN THE DRESSING
ROOMS.
AT NO TIME SHOULD BOTH KNITTERS LEAVE THE ALLEY AT
THE SAME TIME. THIS APPLIES TO BOTHI. MEN AND WOMEN.
THE FIRST TIME ANYONE IS CAUGHT, HE WILL BE LAID OFF FOR
A WEEK : THE SECOND TIME, HE WILL BE DISCHARGED.
With respect to the situation existing prior to the posting of the above rules,
while there had previously been no specific posted rule as to employees' leaving
the plant without permission, it had been generally understood that they could
not do so. However, during 1945, employees had been leaving the plant at various
times during working hours to go across the street to a stand where drinks were
sold ; this condition had grown worse during the fall. As to knitters' keeping
25 straight needles, it had been the Respondent's rule since 1929 ° that knitters
should keep 50 straight needles at all times. During the war, that rule had not
65 While the Respondent's answer denied that the unit found by the Board was "in fact
or in law the appropriate unit," it admitted that the Union had been certified by the
Board for and was the representative of the employees in said unit. Apparently its
answer adverts to the position taken in the representation case that fixers should be
included in the unit. The Board considered said position in its decision of December 7,
1945, and excluded fixers
16 No such rule had been posted, at least not since 1940.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been stressed because of the high labor turn-over. Thus the rule posted stressed
the customary requirement of keeping straight needles but reduced the number
required.
As to smoking, for approximately a year and a half during 1938 and 1939, the
Respondent had a posted rule prohibiting smoking at any time during working
hours. Thereafter there had been no posted restrictions on smoking until the
December 1945 notice, and for some years it had been the practice for employees
to smoke at any time and wherever they wished, except in the knitting, looping,
and seaming rooms.01 Thus the rule as to smoking constituted definite re-
strictions both as to time and place. As to both knitters not leaving the alley at
the same time, while there had been no rule, it had been generally understood
that one of the knitters would stay in the alley while their machines were run-
ning.08 However, during some 6 months prior to December 1945, there had been
a number of occasions when Superintendent Chapman had shut down machines
because both knitters had left their alley while their machines were running.
While the matter is not free from doubt, the undersigned believes, from all of
the evidence, including the explanations given by Maynard and Chapman of the
circumstances pertaining thereto, that the rules posted on December 31, 1945,
were reasonable ones pertaining to the efficient operation of the plant; that
while no written rules had previously been posted tor many years, the rules in
question did not involve substantial variations, except as they pertained to
smoking, from usual and expected practices under normal conditions ; that dur-
ing the war the Respondent, largely because of difficulty in securing and retain-
ing employees, had been very lax as to matters such as those covered by the rules ;
that after V-J Day there was a further let down in plant discipline which for
reasons of business the Respondent desired to correct; that it was decideI to
wait until the election was over to avoid any suspicion that rules were being
promulgated because of the Union or to influence the outcome of the election ;
and that the end of the year (when changes customarily were announced)
the Respondent posted the rules, not to punish its employees for voting for
the Union, but because it believed that said rules were reasonably calculated
to accomplish ends which it deemed proper.
In addition, the evidence shows that during the subsequent negotiations dis-
cussed below,09 the union negotiating committee made no claim that the Re-
spondent, by posting sqid rules, had taken unilateral action on subject matter
about which it should have bargained; made no objection to any of the rules,
as such ; Y° and made no attempt to bargain about or offer any contract proposal
upon any of the matters covered by the rules in question."'
67 Customary smoking places, in addition to the dressing rooms, were Chapman' s office
and on the back platform.
ce It is the general practice in full-fashioned hosiery mills in the area in which the
Respondent' s mill is located to require the presence of at least one of the knitters while
machines are in operation, to avoid damage which might require costly repairs to expensive
machines
69 The first conference was held on January 24, 1946.
70 However , the Respondent and the Union both treated the enforcement of said rules as
subject to consideration as grievances. For instance, upon the Union's contention that
leniency should be shown and that the two plant clocks had been at variance as to the
time, a penalty which the Respondent had imposed for violation of the smoking rule was
revoked and two new clocks were installed.
Ti Testimony of John J. McCoy, second vice president of the Union, confirms testimony
of Maynard in this respect Under the circumstances, the undersigned finds it unnecessary
to determine whether matters covered by the rules might become appropriate subject
matter for collective bargaining under other conditions. Cf. Matter of National Grinding
Wheel Company, Inc, 75 N. L. R. B. 905.
TOWER HOSIERY MILLS, INC. 683
Everything considered, the undersigned finds that, under the conditions of this
case, the Respondent, by posting its plant rules on December 31, 1945, without
prior consultation with the Union, did not refuse to bargain with the Union in
violation of Section 8 (5) of the Act. The undersigned further finds that, by
posting said rules, the Respondent did not violate Section 8 (1) of the Act by
dealing directly and individually with its employees or by promulgating and
enforcing more stringent and rigid rules because the Union had won the election
of December 20, 1945, as alleged in subparagraphs (h) and (i) of Paragraph XI
of the complaint.
3. The major developments during negotiations
(a) The actuation in general
Following the Board's certification of January 4, 1946, the Union wrote the
Respondent on January 10, enclosing two copies of an agreement as a basis
for negotiations, and requesting a conference. Thereafter, during a period of
more than 9 months, beginning on January 24 and ending November 4, 1946,
19 conferences were held between representatives of the Respondent and the
Union q3 Correspondence was also exchanged from time to time.
On the whole, the undersigned is satisfied from his detailed study of the
numerous contract proposals (which served largely as the basis for the pro-
tracted negotiations) and of all of the evidence pertaining to said negotiations,
that the parties were far apart at the inception of negotiations ; 73 that
there were reasonable explanations for the major delays between conferences;
that meetings were in many cases protracted ; that early in the negotiations
it was agreed that such accord as was reached on various provisions would
be considered tentative, contingent upon the negotiation of a complete agree-
ment ; that there was full discussion of the proposals and viewpoints ad-
vanced ; that a substantial amount of time was consumed in arriving at
mutuality acceptable wording, even when there was no essential disagreement
as to substantive provisions; that the wording eventually accepted was largely
that proposed by the Respondent ; that, for the most part, both the Union and
the Respondent, during the earlier conferences, held to their positions, although
the Union gradually receded on most of its demands ; that, in the long run,
the Respondent gave relatively little to the Union, although it made a few
minor concessions ; and that tension which handicapped negotiations developed
between reps esentatives of the parties. Thus while the Respondent was vigor-
ous in bargaining and persistent in refusing to make concessions, the details
pertaining thereto, other than those set out below, are, in the undersigned's
opinion, not material.44 Accordingly, what follows does not purport to be a
72 The parties stipulated that, in addition to a telephone conference on February 4,
conferences were held on the following dates during 1946: January 24 and 25, February
6, 7 and 28, March 1, 8 and 14, April 10 and 11, May 9, 10, 14, 16 and 23, July 11, August
16 and 27, and November 4. In some instances, especially where conferences on 2 or more
days constituted essentially one continued conference, the evidence does not establish
clearly just what occurred on specific dates. Hence findings hereinafter are made on
the basis of approximate dates
73 In essence , the Union was seeking certain provisions in its National Labor Agreement.
including its scale then in effect in about 36 shops from Maine to California, none of which
was in North Carolina This would have amounted to approximately a 30 percent wage
increase at the Respondent's plant. On the other hand, the Respondent was contending
that contract provisions should conform to area practice.
74 Such omitted details afford scant support for finding that the Respondent's general
attitude toward the Union's demands throughout the course of negotiations showed bad
faith in bargaining , especially in the absence of any background of unfair labor practices
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
definitive picture of bargaining negotiations, but rather covers matters material
to determination of specific contentions as to alleged violations."
The various conferences now to be considered were held at the Alamance
Hotel in Burlington, except the final one on November 4, which was held in
Greensboro, North Carolina. During these conferences, the Respondent was
represented by R. A. Maynard and the three attorneys appearing at the hearing
herein , L. P. McLendon, Thomas D . Cooper, and Emerson T. Sanders . McLendon,
an attorney from Greensboro experienced in labor matters, was not present,
however, on January 24 and 25, but was present on February 6, and thereafter.
The Union was represented by several officials and representatives, including
the three who appeared at the hearing herein, Second Vice-President John J.
McCoy, and International Representatives Raymond L. Adams and Fred G.
Held,78 and by a committe of four from the plant. In addition, Conciliator
Seth Brewer, United States Conciliation Service, attended the conferences
from March 8 through August 16.
(b) The conferences from January 24 through February 7
At the conferences on January 24 and 25, the Union's proposed agreement,
previously mailed, was explained and discussed clause by clause ; the Respond-
ent's practices on some matters were also discussed. The meetings on those
2 days were largely exploratory in nature, but sharp differences of position
developed. For instance, the Union's proposal provided for a closed shop in
the unit of recognition ." The Respondent took the position that closed shops
built unions, and that it was not its business to build unions The Respondent
likewise opposed the Union's proposal for a check-off of dues and initiation
fees, stating that it did not make any other deductions from employees' pay.
While there was no difference in principle as to preliminary grievance pro-
cedures," the Respondent opposed the provision requiring the ultimate sub-
mission of all unresolved disputes to an "Impartial Chairman," taking the
position that either party should be free to refuse to arbitrate any question.
The Respondent objected to several proposals which would have increased its
costs, such as paid holidays, paid voting time, and time-and-a-half after 8 hours
in any one day, contending that it did not want to include provisions which were
not in accord with practice in that area.'°
and in view of the fact that the record does not negate the possibility that the Respondent,
a relatively small concern in competition with larger mills, was motivated by economic
considerations in resisting changes not in line with area practice which would have increased
its costs.
76 Such general contentions as are indicated in the preceding footnote are not mentioned
hereafter, nor are certain more specific ones which the undersigned deems too minor to
justify mentioning
7e Adams, who testified as to the course of negotiations, was present from the inception
thereof, while McCoy, who also testified as to bargaining relations, and who, as director
of organization for the Union in the area including the Respondent's plant, had direct
supervision for the Union throughout the negotiations, started participating in the meetings
with the eighth conference on March 14, and thereafter attended all conferences Like
McLendon, McCoy had his office in Greensboro.
77 The unit of recognition in the proposal differed somewhat from that in the Board's
certification, but such differences were rectified in agreements subsequently submitted
There is no issue as to the Respondent's recognition of the Union
78 In fact, the Respondent initiated and carried on concurrently with contract negotiations
such grievance procedures It met whenever requested to do so with the Union's giievance
committee Some 8 or 10 such conferences were held involving some 30 grievances.
79 No attempt is made to set out all such items or to trace negotiations thereon. In
general, the Respondent's position that it would not grant provisions out of line with area
practice did not change, and, beginning early in the negotiations, the Union from time to
TOWER HOSIERY MILLS, INC. 685
Among matters considered at these first meetings , two others became recurring
subjects of disagreement during negotiations , the Christmas bonus and a no-
strike or lock-out provision. As to the Union's proposal that the Respondent
agree to pay its Christmas bonus of 2 percent , as It had been doing for many
years,BO the Respondent took the position that said bonus was not a part of wages
and that it would not include it in any agreement n The Respondent also ob-
jected to the Union's customary clause banning strikes and lock-outs except
upon the refusal of either party to carry out an arbitrator's decision, on the
ground that it did not go far enough.
Conferences on February 6 and 7 were devoted largely to consideration of a
second proposed agreement which the Union in the meantime had redrafted,
and to several typewritten proposals which the Respondent submitted and which
it was understood were not to be considered as inclusive proposals. However,
before considering contract negotiations further, it should be noted that on
February 6, the Union agreed that the Respondent should , without prejudice to
the Union's position on wages during future bargaining , put into effect in its
plant as of February 4, a general wage increase, in line with one being put into
effect in the full-fashioned hosiery industry in that area B2 In instituting this
area increase, the Respondent made certain adjustments in rates and practices
pertaining to the seaming of two types of heels. These adjustments led to sub-
stantial discontent among a number of women seamers ; the practices were even-
tually modified at the time of a second area wage increase in July 1946. Board's
counsel contends that the Respondent's action in February as to seamers was
violative of Section 8 (1) and (5) of the Act. While it is possible that the
matter might have been handled more aptly from the standpoint of fostering good
labor relations, the problem involved was not a simple one, when considered in
its entire setting. In the undersigned's opinion , the evidence does not support
the contentions that, by instituting changes in February as to seamers, the
Respondent refused to bargain ; dealt with its employees individually ; or uni-
laterally changed conditions of employment, in violation of the Act 83
Returning to the contract negotiations on February 6 and 7, in which McLendon
first appeared as a representative of the Respondent, the Respondent was op-
posed to any form of union security, although the Union had modified its closed-
time abandoned one after another of such demands. While the Union's proposal on wages
was approximately 30 percent above the scale then being paid, the "Schedule of Rates B,"
referred to in the pioposed agreement, was not furnished until some time later, and there
was no discussion of wages at the first two meetings.
80 Maynard testified that prior to the time of these negotiations the Respondent had for a
period of from 7 to 9 years, paid a Christmas bonus each year of 2 percent of his earnings
to each employee regardless of his length of service.
81 The Respondent first also took a similar position against including in any agreement
the insurance plan then in effect covering employees . However , in contrast with its con-
tinued refusal to incorporate the Christmas bonus in any agreement , the Respondent later
receded as to its insurance plan and agreed that its "present insurance plan " would "remain
in effect" for the term of the agreement.
s, Pursuant to a telephone conference on February 4, the institution of said increase had
been deferred, pending the February 6 conference.
81 It is clear from Adams' and Maynard's testimony that after the dissension arose among
the seamers, the Respondent and the Union discussed the matter fully as a grievance, and
that the Respondent promised the Union that it would give serious consideration to making
changes at the time of the next wage adjustment if a trial period proved unsatisfactory.
Further, the undersigned is satisfied from Maynard's testimony that he refused to deal
directly with the seamers involved, although some of them urged him to do so ; that he
insisted that he would deal on the matter only with the Union ; and that the Respondent
made the changes pertaining to seamers , not to discredit the Union, but to solve a pro-
duction problem and to adjust what it believed were inequities.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop provision somewhat to provide, in essence, for a union shop with preferen-
tial hiring through the Union. In fact, one of the Respondent's written proposals,
to which the union representatives very strongly objected, was entitled "THE
COMPANY WILL OPERATE AN OPEN SHOP." This provision, hereinafter
called the open-shop provision, which appeared in all of the Respondent's four
subsequently proposed agreements and to which the Union finally agreed con-
ditionally, read as follows : 84
The Company, for the term of this contract, will operate its plant or plants
covered by this contract as an open shop The Company will not discrimi-
nate against any employee because he does or does not belong to the Union
or any other organization. The Union recognizes the right of employees, in
the exercise of their individual judgment, to join or not join the Union or any
other organization, and agrees that it will not coerce any employee or en-
gage in any activity for the purpose of coercing any employee into joining
the Union. The Union further agrees that it will not engage in union
activities, such as solicitation of members, solicitation and collection of dues,
electioneering for the Union or for or against any other organization on
company time.
The Union's proposed agreement, as formerly, provided that the parties bind
themselves to submit unresolved disputes to arbitration. There was a long
discussion on arbitration. The Respondent objected to any provision by which
it would be required to arbitrate, calling such a provision "compulsory arbitra-
tion," and insisting that the use of arbitration should be optional. The Union
insisted that what is termed "binding arbitration" was necessary to the successful
administration of a contract es While the parties in later conferences agreed
upon phraseology covering various stages of grievance procedure and also arbi-
tration procedure before a three-man panel, the question of whether arbitration
should be required or optional remained a major point of contention until finally,
as appears more fully below, the Union acquiesced in the Respondent's insistence
that arbitration be optional.
While the Respondent agreed with some parts of the Union's seniority pro-
visions, it disagreed with others. For instance, it desired to exclude from
seniority coverage what it characterized as "exceptional" employees, a term
thereafter defined in its first contract, discussed on February 28. The Union
contended that excluding exceptional employees would result in favoritism,
making the seniority clause unworkable. This matter eventually developed into
a major point of difference which was not compromised until the final stages of
negotiations. While during the meetings here being considered, the parties
reached agreement on some matters, in general, the Respondent continued to op-
pose provisions out of line with area practice." Thus Maynard characterized the
Union's continued demand for a 30 percent wage increase as "outrageous" for
"his little shop," stating that his wages should be comparable to wages in that
area. In persisting in its refusal to include the Christmas bonus in any contract,
as the Union was again proposing, the Respondent contended that the payment
84 This proposal contained the same wording in all four subsequently proposed agreements,
except that, in the last three , the title was "Open Shop-No Discrimination."
85 Sometime during the course of negotiations , the Union pointed out that with the set-up
under its National Agreement, combining its no-strike and no-lockout provision with binding
arbitration, there had not been a strike in shops covered thereby since 1931.
80 In the proposed agreement being discussed on February 6 and 7, the Union had aban-
doned its earlier demand for paid holidays.
TOWER HOSIERY MILLS, INC. 687
of said bonus had always been optional and that it reserved the right to pay it
or not as it saw fit, a position from which it never receded."
(c) The conferences from February 28 through March 14
On February 28 and March 1, the parties considered the Respondent's first
proposed agreement, which contained no provision for the Christmas bonus and
specifically excluded bonuses in determining vacation pay, along with the Union's
second contract previously considered. Among the Respondent's proposals which
the Union strongly opposed were that wages should be comparable to those of
competitive plants in North Carolina ; w that the Respondent should operate an
open shop; that the arbitration clause should provide that each party should
"remain free to exercise its own judgment in each case" as to whether it would
agree to arbitrate ; and that exceptional employees, not to exceed 10 percent of
the seniority list, could be retained or rehired, irrespective of seniority "
The Union also very strenuously objected to the Respondent's proposal of an
indemnity clause and to provisions pertaining to strikes. The indemnity clause
provided, in the following language , for an unspecified amount to be deposited
in escrow : 90
The Union further agrees to deposit, in escrow, with the National Bank of
Burlington, Burlington, North Carolina, the sum of $______ as an indemnity
fund to protect and save the employer harmless from loss of profits occasioned
by strikes. walk-out or stoppage of work by the employees subject to this
agreement, and in violation of this agreement ; that in any action by the
Employer to recover from the escrow fund herein provided such action may
be brought against the Union in the Superior Court of Alamance County by
naming the officers of the Local Union as parties defendant and that service
of process upon the President of the Local Union shall be deemed a sufficient
service against the Union herein named. The Union agrees to keep the Em-
ployer advised at all times with respect to the names of the officers of the
Local Union . The escrow fund herein provided shall be maintained or re-
plenished during the life of this agreement in a sum equal to the amount of
the original deposit set forth.
81 At some conference where this recurring issue was discussed , the Respondent pointed
out that it had represented to the war Labor Board that its bonus was voluntary and not a
part of wages, and contended further that if the bonus were included in a contract, the
question would arise with the wage and Hour people" as to whether the bonus would have
to be included in figuring overtime. It should be noted that in connection with the bonus,
the Union took the position, also opposed by the Respondent, that said bonus should be
included in calculating each employee's total earnings in determining his vacation pay,
which was based on total earnings.
88 The Union was still seeking a 30 percent increase . It was apparently not until about
this stage of the negotiations that it first furnished a copy of its extensive schedule of
rates, which Maynard said it would take an engineer to apply.
89 Exceptional employees were defined as those who, in the Respondent 's judgment, were
potential executives or supervisors , employees undergoing regular training or study, those
qualified for special duties such as taking inventory , those entitled to consideration because
of some meritorious contribution to efficiency or cost control , and those whose training or
ability made them essential to efficient operation.
e° Language, in no material respects different from that quoted , appears in the Respon-
dent's second proposed agreement , discussed below. This indemnity clause was the first of
the Respondent's proposed clauses which the Union referred to during negotiations as
"Cooper's Case Bill ," a term combining the name of one of the Respondent 's attorneys
with that of pending national legislation . No finding is made herein that the proposal of
this indemnity clause, later withdrawn after the Union made a counterproposal , was viola-
tive of the Act. Matter of Union Manufacturing Company, 76 N. L . R. B. 322.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The section prohibiting strikes and lock-outs stated general provisions and
definitions and specified, as exceptions thereto, situations wherein the other party
refused to submit a dispute to arbitration upon exhausting the grievance pro-
cedure. It further exempted the Union's right to strike upon the institution of a
general wage reduction, as defined therein. This section closed with the follow-
ing two paragraphs : 91
In the event of a strike or walkout and/or picketing by the employees, for
either one of the reasons above stated, there shall be no mass picketing of
employees but such picketing activities will be limited to peaceful persuasion,
without threat or threats of any kind and by a group of persons not ex-
ceeding 10 in number, 10 feet apart, at any entrance to the plant of the
Employer, and no effort will be made to interfere with the right of any
person to enter or leave the premises of the Employer. [Italics supplied.]
Any employee, or number of employees, who shall violate the terms of the
above provisions, shall be conclusively deemed to have voluntarily terminated
their employment with the Employer and such employee, or number of em-
ployees, shall be subject to immediate discharge and shall thereby forfeit
any right to demand or require that the Employer shall re-employ him or
them, and he or they shall not be entitled to reinstatement, and the Em-
ployer may, in its sole discretion, replace with new or different employees
the job or jobs of such employee or employees.
In rejecting the foregoing proposals, the Union stated that it was amazed and
had never heard of such proposals in its previous bargaining experience.
The conference on March 8, which was the first of eleven attended by Concili-
ator Brewer, was devoted partly to informing Brewer of the status of negotia-
tions and the points upon which the parties were still in disagreement. Several
of the more important of such matters are evident from what has been set out
above. Some of the additional matters, not discussed above, about which there
was still disagreement included compensation for style changes, hours and over-
time, reporting pay, and compensation for oiling and cleaning machines. A
long day was spent in discussion and it was agreed to meet again on March 14.
It was at the March 14 conference that Vice President McCoy entered the
negotiations as one of the representatives for the Union. It was also at this
meeting that the Respondent agreed, contrary to its previous position, to in-
corporate its insurance plan into the agreement. However, the Respondent
continued to refuse to incorporate its bonus in any agreement. Nor did it
make concessions on other matters which the Union considered vital. Hence,
following this meeting, the Union filed its charge that the Respondent was
refusing to bargain "
91 The paragraphs here quoted are found on a page in the agreement which is out of
sequence , but it is evident from Adams' testimony that the Respondent's no-strike proposals
to which the Union seriously objected on February 28 were substantially the same as those
in the second contract of April 11. The two paragraphs quoted, couched in the same
language, appear in the Respondent's second contract of April 11. The first of these para-
graphs concerning picketing also reoccurs , except for the elimination of the underlined
phrase, in identical language in Article IX of the Respondent's third and fourth contracts,
discussed below, which article also incorporates the second paragraph, in general intent, but
in modified phraseology.
02 The charge was sworn to on March 16 and filed on March 18. McCoy testified that the
charge was filed because the negotiations had made no progress on matters such as union
security, wage increases, binding arbitration, and the check-off, and because the Respondent
would not agree to incorporate the Christmas bonus in an agreement
TOWER HOSIERY MILLS, INC. 689
(d) Negotiations from April through July
On April 10, the Union submitted its third proposed agreement and the meeting
was adjourned by mutual consent so the Respondent could study it and submit
counterproposals the next day. On April 11, the Respondent presented its second
proposed agreement, and the parties, with Conciliator Brewer, went over the
provisions of both proposed agreements. A study of the two proposals and the
testimony pertaining thereto shows that by the end of the meeting the parties
had reached either full or at least substantial agreement on numerous provisions.
However, among other things, the parties continued at loggerheads as to whether
arbitration should be binding or optional ; as to the e,.clusion of exceptional
employees from provisions both as to seniority and as to military service ; as to
the inclusion of the two percent Christmas bonus in the contract and in calculat-
ing gross earnings for vacation pay; as to the inclusion of the Respondent's
above quoted open-shop clause; as to the Respondent's provisions on strikes,
quoted above ; 98 and as to the Respondent's indemnity clause, couched in essen-
tially the language quoted above.
As for wages, for the first time, the Union's contract of April 10 included a
proposed schedule of rates attached to the agreement . This schedule called for
increases averaging considerably less than those previously sought` The
Respondent, however, would agree to no increases . Its contract provided, among
other things, that its wage scale would not be publicized ; that it would maintain
a wage scale comparable with plants in that area ; that in the event a general
wage increase or decrease was made in that area, the contract as to wages could
be reopened immediately ; and that it would make any "general wage increase or
general wage decrease effective on the same date it became effective in the
industry in said area." 95
At the April 11 conference , the Union repeatedly receded in its demands as
to provisions for union security, without gaining any concession from the Re-
spondent . The contract which it had submitted on April 10 provided for mainte-
nance of membership and a check-off, a retreat from its former demand for a
union shop with check-off. When the Respondent refused this, several lesser
proposals , verbal and written, including maintenance of membership with
a 15-day escape clause, an irrevocable check-off for the life of the agreement,
and union preference in hiring and laying off, were made and in succession re-
jected by the Respondent. Eventually the Respondent said that it would con-
sider a check-off pursuant to authorizations which employees could cancel on 30
days' written notice.
Meetings held from May 9 through July 11 saw relatively little progress in
resolving the major points at issue. At one or more meetings during the first
half of May,99 a fourth proposed agreement submitted by the Union formed the
w It should be noted that, contrary to Article IX later submitted, the Respondent's April
11 proposed agreement provided that the Respondent would not engage in a "lock-out of
any kind."
w In numerous cases, however, the rates actually specified therein constituted increases
substantially in excess of the 10 percent increase referred to in the testimony as being the
point to which the Union had receded in making said proposal.
m From the following language in the Union's contract of April 10, it appears that at
that time the Union was in agreement with the Respondent as to its giving any general
area wage increa8e.
In the event there shall be any increase in wages to full -fashioned hosiery workers
in the Burlington area, the Company agrees that such wage increase shall be effective
on the same date.
16 Apparently on the 14th, and possibly also on either the 10th or the 16th, or both.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis of negotiations. The rewritten agreement was in many respects a re-
capitulation of clauses already agreed upon. However, among other things, the
Union's proposals as to management prerogatives, arbitration, strikes and lock-
outs, seniority and military service (which failed to exempt exceptional em-
ployees), and the Christmas bonus were still unacceptable to the Respondent.
The Respondent also rejected the only provision therein for union security, a
30-day revocable check-off, which the Respondent had indicated at the meeting
of April 11 it would consider. The Union offered , without avail, to accept the
Respondent's position that arbitration be optional in exchange for some general
form of union security. However, the Respondent did agree, for purposes of
lay-off and recall only, to top seniority for union officials and shop stewards.
Although at this time the Union reduced its wage demands to what amounted
to approximately a 71/2 percent increase, the Respondent still would not agree
to any increase. However, the Union and the Respondent did compromise on 2
hours' reporting pay, with an optional minimum 4-hour assignment period, in
lieu of the 4 hours' reporting pay which the Union previously had been seeking.
The Respondent also agreed for the first time to a proposal which the Union had
repeatedly advanced, payment for time spent twice each year in cleaning and
oiling machines, the details to be drafted, with appropriate modifications, along
lines provided for in a contract which the Union had at another plant. In addi-
tion, the parties agreed on certain changes in vacation-plan provisions, thus
producing accord on that subject, except that the Respondent never acceded to the
Union's position that the Christmas bonus should be included in computing total
wages for the purpose of calculating vacation pay."
On May 23, although there was "a lot of rehashing" no agreement on any
additional matter was reached. The Respondent made it clear that it would
not agree to any wage increase. It submitted a new written proposal, "Future
Relations," providing in essence that negotiations on future contracts would not
be prejudiced by omissions from the contract being negotiated. The Union
asked for time to study the proposal 98 The Union also submitted the following
written counterproposal to the Respondent's indemnity clause :
It is agreed that the Company and the Union shall have the right to have
the Agreement specifically enforced and to prevent the violation thereof by
injunction or other proper decree of the Superior Court of Alamance County.98
" Without going further into the details thereof, the undersigned does not believe that
the record supports the contention that the Respondent violated Section 8 (I)-and 8 (5) of
the Act by thereafter putting the agreed upon vacation plan into effect during July 1946,
although it appears that the plan involved reducing the minimum service requirement for
a week's vacation with pay from a year' s service , prior to the end of May, to 6 months'
service. A similar reduction in the minimum requirement for a week 's vacation evidently
took place concurrently at least one other plant in the area. In any event, the 1946
vacation pay (for employees with less than 5 years' service) appears to have been calculated
at the customary rate of 2 percent of the total earnings, excluding bonus, of each employee
during the preceding 12 months. There is no evidence that the Union asked for any delay
in instituting the single change involved, reducing the minimum service requirement,
which went into effect at the time vacations customarily were taken. The Union did not
seek the posting of any notice giving it credit for the change
98 Said proposal was incorporated into later contracts submitted by the Union ; the tardi-
ness of its submission appears to have created no particular delay.
98 Clearly this clause was submitted because of the Respondent's insistence on some
assurance that the Union could be held legally responsible. McCoy admitted during his
testimony that under decisions of the Supreme Court of North Carolina, "a union as such
could not be held financially responsible or be sued." Although the Respondent did not
agree at that meeting to substitute the Union's counterproposal for its indemnity clause, it
did so in both of the contracts, discussed below, «luch it subsequently submitted.
TOWER HOSIERY MILLS, INC. 691
On July 11, the Union submitted, through Conciliator Brewer,' redrafts of
several sections of the agreement. The parties also agreed on July 11, through
Brewer, that the Respondent would redraft the entire agreement , submit it in a
few days, and propose a date for the next meeting.
One of the redrafted sections , submitted by the Union on July 11, set forth
the amounts to be paid for semiannual cleaning and oiling of machinery and the
way in which such sums were to be divided among the knitters and toppers working
on the machines 101 Said provision, based in part on another contract, had been
verbally agreed upon in principle in May. The provision, which it had been left
entirely up to the Union to draft, and about which the Union had conferred with
the employees involved, was acceptable to both the Union and the Respondent.
The Respondent put the provision into effect at once; the first such payment was
made for the cleaning and oiling which was done, as was customary, when the
plant was shut down in July at vacation time Board's counsel contends that by
putting this provision into effect the Respondent violated Section 8 (1) and (5)
of the Act. In the undersigned's opinion, this contention is without merit. There
is no evidence that the Union asked or intended that the plan not go into effect
at that time, or that the Respondent sought to disadvantage the Union in any way
by putting the plan into effect when it did 103 The Respondent has since been
paying the amounts agreed upon for cleaning and oiling and the Union has not
objected to that practice. The Union did not ask that any notice be posted giving
it credit for this concession ; it is apparent that the employees were aware that
the Union had secured it for them.
On July 15, McLendon wrote McCoy that lie had tried to reach him by tele-
phone to inform him that he had been unable to find time before going on his
vacation to get together with Cooper to redraft the Respondent's proposals, but
that upon his return, they would get in touch with McCoy to arrange a meeting.
(e) The general wage increase of July 29, 1946
On July 25, the day upon which Maynard verified that mills in that area were
announcing a general wage increase, to be effective as of July 29, the Respondent,
over Maynard's signature, and pursuant to Cooper's advice, wrote the Union as
follows : 1OB
A general wage increase is being announced by the textile and knitting
industries in this area. In line with our Company policy to maintain com-
parable rates and to meet such general wage increases, we are announcing
today that increases will be effective Monday, July 29, 1946.
We assume that the Union will have no objection, as the Union readily
agreed to a general wage increase earlier this year when bargaining was
being conducted.
On July 29, the effective date of the general wage increase in that area, McCoy,
on behalt of the Union, wrote the Respondent a letter which said only, "This will
acknowledge receipt of your letter of July 25, 1946." However, on August 2,
McCoy, on behalf of the Union, wrote the Respondent further with reference to
10D Apparently the parties conferred only through Brewer on July 11.
101 The amounts thus to be divided among several employees ranged from $15 to $17,
depending on the number of sections per machine.
102 In fact , to have refused such agreed-upon pay for current work, or to have delayed it
as a means of gaining further concessions from the Union, would appear more consistent
with any such design on the Respondent's part
103 The letter was addressed to Adams at the Union's office in Burlington ; a copy was sent
to McCoy at the Union's office in Greensboro
829595-50-vol. 81-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its above quoted letter of July 25, stating, among other things, that the Union had
not agreed to any wage increase ; that the Union was still bargaining over wages;
that the Respondent 's assumption that the Union would have "no objection to
such unilateral action" was erroneous ; that the Union had been waiting since
July 12 for the Respondent 's redrafted proposals ; that in the bargaining confer-
ences for months previously the Respondent had been doing "nothing but stalling" ;
and that the Respondent 's action , after refusing wage increases to the Union, was
evidence of bad faith and "a violation of the Wagner Act."
The foregoing developments undoubtedly contributed to tension between the
parties and complicated the relations which followed. It is also evident that
the Respondent's procedure in instituting the July increase fell short of that
which had been followed the preceding February and of that followed later, in
February 1947, on both of which occasions the Respondent secured the Union's
approval before instituting similar general area increases 10{ However, there is
nothing in the evidence which persuades the undersigned that the Respondent
followed the procedure which it (lid (luring July 1946 with the purpose of handi-
capping the Union in negotiations or of circumventing the Union as bargaining
agent. On the contrary, it appears from Maynard's testimony that he did assume
in good faith that, because the Union had agreed to the earlier increase in
February, it would have no objections , and that he wanted to avoid delay in
announcing the increase, which other mills were announcing , because delay in
February had caused substantial discontent among employees, accompanied by
loss of production.
The Union's letter of July 29, which raised no objection on the day the increase
was to become effective, did nothing to put the Respondent on notice that the
Union, several days later, would vigorously protest the Respondent's action.
Further, it should be noted that the Union, in the language of its third contract
on April 10, quoted above, had asked that the Respondent agree to do exactly what
it did do on July 29, make an area wage increase effective on the same date it
became effective in the Burlington area It should also be noted that the Union
did not ask the Respondent to rescind the wage increase, pending further negotia-
tions, but rather, in proposals presented on August 16, demanded "an additional
increase" equal to that which had already been put into effect on July 29. Under
the particular circumstances of this case, the undersigned finds that the con-
tention that the Respondent violated Section 8 (1) and (5) of the Act, by putting
into effect the general wage increase of July 29, 1946, has not been sustained.30'
(f) Further developments during August
On August 9, McLendon wrote McCoy that he had just returned from his vaca-
tion and would get in touch with him the following week to arrange a conference.
104 According to McCoy, the Union "readily agreed " to the third general increase , indicating
Its approval thereof on February 17, 1947, by McCoy countersigning , under McLendon's
name , a letter from the Respondent , the last paragraph of which read as follows .
I am authorized to say that Tower Hosiery Mills is willing to make the announcement
of the wage increase effective as of today with the understanding that such increase is
without prejudice to the position of the Company or the union in any past or future
negotiations between your union and the Company conceining wages I hope this will
be agreeable to you, particularly since I think it would be unfortunate if all the other
mills were to announce a wage increase and leave Tower standing alone without an
increase Such a result would ieflect on your union as well as on the Company If this
suggestion is agreeable please indicate your consent by signing the copy of this letter
and returning It to me
105 The undersigned believes that the numerous cases cited on this issue are all distinguish-
able on their facts
TOWER HOSIERY MILLS, INC. 693
On August 12, McCoy wrote McLendon that the Union was ready at any time to
meet for negotiation. On August 13, Cooper wrote McCoy, enclosing a copy of
the Respondent's third proposed contract and asking McCoy to call McLendon to
arrange for a conference.
Said proposed contract of August 13, for the most part, recapitulated provi-
sions and phraseology to which the parties had already agreed. It did not include
any provision for the Christmas bonus. It included the open-shop provision, and
provisions for optional arbitration, the then existing wage rates, exemptions in
the seniority and military service clauses for exceptional employees, and the
exclusion of bonuses in calculating vacation pay. This agreement dropped the
indemnity provision under "General Provisions" and incorporated the Union's
counterproposal of May 23 so that the revised subdivision thereunder read as
follows :
It is agreed that the Union and the Company shall have the right to have-
this Agreement specifically enforced and to prevent violation thereof by
injunction or other proper decree in the Superior Courts of North Carolina.
In any suit or proceeding by the Company, the same may be brought against
the Union by naming the officers of the Local Union as parties defendant, and
that service of process upon the President of the Local Union shall be deemed
a sufficient service against the Union. The Union agrees to keep the Com-
pany advised at all times with respect to the names of the officers of the
Local Union.
The most striking development in the Respondent's third contract was the
extensive elaboration of Article IX to include several new provisions, and the
omission therefrom, for the first time in the Respondent' s proposals , of any pro-
vision that the Respondent would not engage in lock-outs.'" Said substantially
expanded Article IX, new provisions of which specified fines, penalty assess-
ments, and strike vote procedure, among other things, read as follows :
IX-Union Activity and Strikes, and Lockouts :
(a) The Union and the employees of the Company shall not engage, either
directly or indirectly, in union activities on company time except as may be
required in the handling of a grievance under step (a), Article VII. A
violation of this section shall constitute adequate cause for the Company to
discharge the violator, or it may invoke a penalty assessment against the
Union's funds in an amount to be agreed upon between the Company and the
Shop Committee which shall be not less than $10.00 or more than $50.00 for
each, violation.
(b) The Union, for itself and the employees of the Company, agrees that
it will at all times cooperate fully with the Company in maintaining efficient
production without interruption and that there shall be no interference by
the employees with the operation of the Company . The Union further agrees
106 It may be that such omission was inddvertent, as the caption of Article IX continued
to contain said term. Such an omission was inadvertently made and later corrected as to
top seniority for union officers and stewards. From the testimony, it would appear that
the omission of a provision prohibiting lock-outs was not mentioned during the negotiations
which followed ; said omission was not mentioned during the hearing. Assuming that the
Respondent did not deliberately omit the lock-out provision previously included, it appears
that it may have become so absorbed in framing restrictions for the Union that it com-
pletely overlooked the inclusion of even a minimum provision as to itself. It also appears
that the Union may have been so completely surprised by the several novel and drastic
provisions restricting it, that it failed to notice that obvious omission as to the Respondent.
In any event, the undeisigned rests the findings made herembelow not so much on what is
omitted from Article IX, as on what is contained therein.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it will not call, encourage, or support any strike, and that there shall be
no strikes, work stoppages, spontaneous vacations and slowing down of work,
or agitation to do the same, during the life of this Agreement, until the
remedies under this Agreement have been completely exhausted.
(c) In no event will the Union call a general or partial strike or institute
a slowing down or stoppage of work until it has complied with the following
provisions:
(1) Conducted a vote by secret ballot under the supervision of a United
States Commissioner of Conciliation of all employees to whom the Agreement
applies and received a majority vote authorizing the calling of a slowdown or
strike within 30 days from the balloting.
(2) Notified the Company in writing 10 days prior to the commencement
of any slowdown or strike which may have been authorized to be taken
under (1).
(3) In the event of a strike or walkout and/or picketing by the employees,
there shall be no mass picketing of employees, but such picketing activities
will be limited to peaceful persuasion , without threat or threats of any kind,
and by a group of persons not exceeding 10 in number , 10 feet apart, at any
entrance to the plant of the Employer, and no effort will be made to interfere
with the right of any person to enter or leave the premises of the Employer.
(d) Participation in a strike, or any work stoppage or slowing down of
work, or agitation to do the same, before the remedies under this contract
have been exhausted by the parties hereto, or before Sub-section (c) has been
complied with, shall be cause for the dismissal of such employee or employees
who participate therein, and the Company shall not be obligated to reinstate
or re-employ such employee or employees.
(e) The Union by one of its international officers and by its local President,
shall repudiate any strike or other concerted cessation of work whatsoever
by any group or number of employees that has not been called by the Union
after being so authorized ; and shall declare that any picket line set up in
connection therewith is illegal and not binding on members of the Union. The
repudiation and declaration shall be communicated to the Company in writing
within 72 hours after the cessation of work by the employees, or the forming
of the picket line respectively.
(f) In addition to any other action which the Company may hereunder or
otherwise lawfully take, any employee participating in an unauthorized strike
or other concerted cessation of work not called by the Union shall be liable
to a fine of $3.00 a day for every day's absence from work and to loss of one
year's seniority for every continuous absence for a calendar week or part
thereof.
(g) If the Union violates this article, it shall be liable to a minimum
penalty of $500.00 cash per day per plant, payable to the Company within
30 days. Such amount shall constitute liquidated damages suffered by the
Company as a result of the unauthorized stoppage of work, and if payment is
not made within the specified period, same may be reduced to judgment in any
competent court of record. [Emphasis supplied, except in caption.]'"
ios The supplied emphasis indicates those provisions to which the Union at no time there-
after was villmg to agree Said emphasis is based on the testimony of McCoy, which was
detailed and consistent on direct and on crois -examination Tuo typographical errors have
been conformed so that what appears above is identical with Article IN in the Respondent's
fourth contract of November 8, the parties having stipulated that -aid articles in the two
contracts were identical.
TOWER HOSIERY MILLS, INC. 695
The Union, highly incensed at the drastic new provisions contained in Article
IX and at the procedure which had been employed in July in increasing
wages, prepared a memorandum of counterproposals, which was submitted
through Conciliator Brewer on August 16, at which time the parties met sepa-
rately with Brewer, and also met jointly with him. While the Union, in its
counterproposals, accepted the revised clause under "General Provisions," quoted
above, from which the indemnity provisions had been eliminated, it objected to
the above enumerated provision in the proposed agreement of August 13 to which
it had not previously agreed The Union's counterproposals specifically pointed
out that a provision for the Christmas bonus should be included, and that said
bonus should apply in calculating vacation pay. The Union declined to accept
either Article IX or the open-shop clause , stating as to each that it was willing
to consider the matter further, but that such provisions were contrary to union
policy and that the Union had never signed agreements containing such clauses.
The Union requested an additional wage increase equal to that put into effect
on July 29. It also requested maintenance of membership and an irrevocable
check-off 10'
It appears from the testimony that during such joint negotiations as took place
on August 16, the last meeting in which Brewer participated, no substantial
progress was made in resolving the differences in positions between the parties
which appear from a comparision of the conflicting proposals set out above.10'
While confi.cting positions appear to have been discussed, the meeting, to use
Adams' phraseology, "blew up because of disagreement in general," ending with-
out any arrangement for another meeting.
On August 21, McCoy wrote McLendon, asking when a conference could be held
for "the purpose of negotiating a contract." On August 22, McLendon wrote
McCoy, confirming a telephone conversation on that same date, in which August
27 had tentatively been agreed upon for further negotiations . This letter stated
that the Respondent's "representatives were perfectly willing to continue negoti-
ations but we were unwilling to start all over and negotiate again on issues which
have heretofore been settled or disposed of in the previous negotiations." It also
suggested that at the "next conference both sides should be prepared to recognize
what we have already accomplished in the previous negotiations and begin from
that point."
On August 23, McCoy wrote the Respondent, attention Maynard, with copies to
Cooper and McLendon, as follows :
Enclosed you will find three copies of an Agreement covering those bar-
gaining points that have been agreed upon between the parties during our
conferences. In line with the decisions of the National Labor Relations
Board and the Courts, the Union, therefore, has affixed its signature to this
Agreement.
Will you please sign these three copies, keeping one and returning the other
two.
The contract enclosed with the above letter actually included no clause which
had not been agreed upon as to content and language and appears to have in-
ma While this request exceeded vaiious proposals as to union security made by the Union
on April 11 , the Respondent in the meantime had submitted substantially stiffened provi-
sions, which the Union was willing to discuss and which clearly required greatly augmented
responsibility on the Union ' s part. In any event , the Union , after August 16, abandoned
this and other demands in its counterproposals.
109 The Respondent may have indicated willingness to consider the elimination of the
provision as to exceptional employees from the military service clause
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluded all clauses which had been agreed upon. The contract omitted clauses
as to general union security and as to payment of the Christmas bonus. It also
specifically excluded said bonus from gross earnings in calculating vacation pay.
It included the provision for specific enforcement "by injunction or other proper
decree" and also the Respondent's above quoted language, proposed early in the
negotiations, making arbitration optional. While the contract thus submitted
covered a wide range of subjects in its 19 articles, many of which had several
subdivisions, said contract did not include any general clause on rates and wages,
a subject of controversy from the beginning.110 Nor were there any provisions
as to exceptional employees, the open shop, or strikes and lock-outs, all matters
upon which the Respondent had been insisting from early in the negotiations.
On August 26, McLendon wrote McCoy, asknowledging receipt of his copy of
the letter of August 23 and of the "Articles of Agreement." McLendon's letter re-
ferred to the understanding, reached in the first conference which he had at-
tended, that provisions agreed upon would be considered tentative, "subject to
the negotiation of an entire contract," and contained the following paragraph :
If, therefore, you mean by your letter of August 23 that the Company is
bound to execute a contract containing only such provisions as it has tenta-
tively approved, I want to make it clear that the Company will not do so.
If you mean that these provisions tentatively approved by both parties should
be "nailed down" and not gone over and over in the negotiations, we will
agree with you.
Clearly the Respondent refused to sign the agreement submitted by the Union
on August 23. The facts, however, show that said agreement was not a com-
plete contract. Board's counsel contends that by so refusing the Respondent re-
fused to bargain in violation of Section 8 (5). In view of all of the circum-
stances, the undersigned finds that the refusal to sign said partial agreement of
August 23, 1946, did not constitute refusal to bargain.
At a conference between the Respondent and the Union on August 27, held
pursuant to earlier arrangements, the Union's signed contract formed the prin-
cipal basis of discussion at the outset. The Respondent refused to sign, insist-
ing that it was not a complete contract. The Respondent at first insisted that
its demands as to exceptional employees, rates and wages, the open-shop clause,
and Article IX would all have to be included. Eventually, however, after the
Respondent's representatives had conferred among themselves, the Respondent
proposed, as a complete settlement of issues in dispute, that if the Union would
accept the other provisions to which it had been objecting, the Respondent would
agree to eliminate the provision as to exceptional employees from the military
service clause and to reduce the percentage of exceptional employees to be ex-
cluded under the general seniority clause from 10 percent to 5 percent."' While
there is some confusion and contradiction in the testimony as to just how far the
Union was willing to go on August 27, the undersigned is satisfied, from all of
the evidence, that it did agree to the proposal as to exceptional employees, and
that it also agreed, in relation to Article IX, that a national officer of the Union
110 The clause on piece rates was not such a general wage clause, but rather applied to
rates for new operations.
111 The Respondent, in proposing a liquidation of the entire matter, also wanted the Union
to drop its charges filed with the Board. However, the undersigned does not believe that
the Respondent then or thereafter made the withdrawal of charges a condition precedent to
the signing of a contract, and accordingly does not believe that the Respondent's position on
this point, on August 27 or thereafter, constituted refusal to bargain, as contended. Cf.
Matter of The Toledo Desk & Fixture Co., 75 N. L. R. B. 744.
TOWER HOSIERY MILLS, INC. 697
would repudiate any strike called in violation of the agreement, a consession
going beyond the Union's customary no-strike clause." In any event, while the
Respondent's proposition was discussed, and in part accepted by the Union,
the Union did not agree to the proposal as a whole, and the meeting terminated
without reaching final agreement on a contract.
On August 28, McCoy wrote the Respondent that, in view of its position during
negotiations on August 27, his signature on the agreement of August 23 was
"null and void." Said letter contained no reference to any further conference.
(g) The deadlock reached in November 1946
On November 4, the Respondent and the Union met in Greensboro with Field
Examiner Samuel Merrick, who called the meeting because of the Union's pend-
ing charges. During this meeting, the Union receded still further, accepting in
major part the Respondent's proposal of August 27 for liquidation of differences.
Thus the Union was willing to accept the Respondent's position on wages, as
specified in the Respondent's agreement of August 13."a In addition, the Union
made substantial further concessions as to Article IX, agreeing to the inclusion
of about half of the provisions thereof, namely, all of the provisions which are
not underlined in the text of Article IX set out hereinabove. However, the
Respondent insisted that the Union accept all of the provisions in said Article IX;
the Union refused to agree to the provisions underlined. The Union further
agreed to incorporate the Respondent's open-shop clause, set out in full herein-
above, if agreement could be reached on Article IX by so doing.
The foregoing contingent compromise, leaving in issue only the underlined
provisions of Article IX, was reached during the November 4 meeting with Mer-
rick. It was predicated on the further understanding that if the Respondent
would recede from its insistence on those parts of Article IX to which the Union
maintained it could not agree '114 the Union would sign the agreement and would
also withdraw its charges. The meeting thus terminated with the understanding
that the Respondent would consider making concessions as to Article IX, reach
its final decision, and advise the Union thereof in writing."
On November 8, 1946, Cooper, on behalf of the Respondent, wrote the Union
as follows : "a
111 It is possible that, on August 27, the Union also expressed willingness to consider the
Respondent 's position on wages, which is set out below , but the undersigned does not believe
that it was accepted.
113 In essence, this provided for the then current rates ; that area wage increases and
decreases would be made effective as of the effective dates thereof in said area ; and that 6
months after execution of the agreement, or upon any area wage increase or decrease, either
party would be free to reopen wage negotiations.
114 Maynard testified that the Union's representatives contended that the provisions would
"raid the treasury," were against union policy, and that they had never before heard of such
demands. In addition to testifying that the Union made objections such as the foregoing
McCoy also testified credibly that the Union expressed objections to the demands as being
unreasonable and beyond anything that the Union had ever previously agreed to. McCoy
also testified credibly that the Union additionally stated, as objections to c (1) which
required secret strike ballots, that it interfered with the independence, autonomy, and opera-
tion of their organization and "implied that all the employees of the Company would have
the right to vote " Further, the Union explained, according to credited testimony of McCoy,
that it could not agree to "a penalty assessment against the Union's funds" because that
would "leave us wide open to bleed our funds under any circumstances that sometimes we
wouldn't be responsible for" and because the Union could not have "any proper control or
any responsibility" without a strong provision for union security.
lii Maynard testified that the Respondent was to "write the final form of that proposal
and submit it."
113 The letter was addressed to McCoy with copies to McLendon , Merrick, and Adams.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since our conference on Monday, November 4th, we have reviewed the
proposed Agreement and particularly Article IX, Union Activity and Strikes,
and Lockouts. Mr. Maynard has given serious consideration to the request
of the Union for the elimination of certain sub-sections of this Article but
has concluded that he cannot consent to the eliminations proposed. He
feels that these provisions are reasonable in order to have a workable con-
tract with the Union.
At the request of this client, therefore, and in accordance with the
understanding had at our conference, we have rewritten the Agreement
and enclose the original and a copy for your signature if the entire contract
is now acceptable. You will note that we have provided for super-seniority,
as agreed upon under General Provisions, and we have eliminated from
Military Service the provisions relating to exceptional employees.
Upon acceptance by the Union of this form of Agreement, it is understood
that any charges of unfair labor practices or grievances arising prior to the
date of its execution, are waived and fully settled. If you will execute both
copies and return to us we will secure the execution by Mr. R. A. Maynard
and return the original for your files.
While this Agreement constitutes the final answer of the Company with
respect to the provisions of Article IX, we will, of course, meet with you
in another conference if you so desire, and ask that you contact Major
McLendon there in Greensboro about a date.
The agreement submitted with the above letter provided for all of the con-
cessions which the Union and the Respondent had made, including optional
arbitration and the right of specific enforcement by injunction or other decree
in place of the indemnity clause.117 It included the open-shop clause and also
all of Article IX, as said Article had originally appeared in the agreement of
August 13.
On November 11, McCoy, on behalf of the Union, acknowledged Cooper's let-
ter 118 and receipt of the agreement, stating relative thereto :
Article IX is not acceptable to the Union, because it is unreasonable. We
have never included such a clause in any of our agreements. In fact, I have
never had to bargain upon such a suggestion in many years of this type of
work. I have never seen or beard of even a request by any management
to include in the terms of a labor agreement such a ridiculous, unreasonable,
impractical, unworkable clause Therefore Article IV 11p is also excluded
from those clauses we had tentatively reached an agreement upon. You
will remember we stated we would agree upon Article IV provided we could
reach an agreement on Article IX, satisfactory to the Union.
We are not requesting another conference, because I am convinced the
Company has no desire to reach an agreement in good faith.
We are notifying the National Labor Relations Board to process our cases
filed against the Tower Hosiery Mills, Inc.
We also wish to bring to the Company's attention that due to their position,
we reserve the right to bring up for collective bargaining purposes any and
all questions we deem necessary to conclude a proper agreement.
117 It should be noted that there was no clause providing for the Christmas bonus, and
bonuses v% ere excluded from vacation pay.
18 Copies of McCoy's letter went to Merrick, Maynard, McLendon, and Adams
sse The Respondent's open-shop clause, quoted hereinabove.
TOWER HOSIERY MILLS, INC. 699
On November 16, Cooper wrote McCoy,"° in essence, that the Respondent had
repeatedly demonstrated its good faith in bargaining and resented statements
in McCoy's letter to the contrary ; that the Respondent would not permit any
sort of contract to be dictated to it; and that if the Union's letter meant that it
wanted to press the matter before the Board, that course was acceptable to the
Respondent. There was nothing in the letter of November 16 which stated or
implied that the Respondent might be willing to consider any modification of
its "final answer" in its letter of November 8, as to the provisions of Article IX.
No further bargaining conference has been held, nor has such a conference been
requested by either the Union or the Respondent "'
4. Conclusions as to the refusal to bargain
Except for two matters now to be considered, the Christmas bonus and Article
IX, all matters occurring after the 1945 election contended to be violative of
Section 8 (1) and (5), which have been deemed sufficiently significant to warrant
mentioning, have been heretofore considered. While such matters have not all
been free from doubt, the undersigned has found hereinabove that they have not
constituted unfair labor practices within the meaning of Section 8 (1) and (5)
of the Act. The undersigned hereby reaffirms such findings and conclusions.
However, for reasons now to be considered, the undersigned believes that the
Christmas bonus and Article IX issues are of a different order.
The above findings pertaining to negotiations show that, by the conferences of
February 6 and 7, the Respondent had taken the position, from which It never
receded, that it would not agree to include a provision as to its Christmas bonus
in a contract"2 Thus by February 7, the Respondent had taken the position,
in essence, that the inclusion of its Christmas bonus in a contract was not a
bargainable issue because the bonus was not a part of wages, was optional, and
could be withheld whenever the Respondent saw fit. However, the facts show
that said bonus was a well established part of the Respondent's practices, hav-
ing been paid for 7 years or more, on the basis of 2 percent of each employee's
annual earnings. Hence, on the authority of the Singer case,12' the under-
signed concludes and finds that the Respondent, by its fixed position on the
bonus issue , erroneously insisted upon reserving to Itself the right to act
unilaterally on a matter legitimately within the scope of collective bargaining
and refused even to recognize the right of collective bargaining with respect
thereto, and thereby, on or about February 7, 1946, and thereafter, refused to
bargain collectively within the meaning of the Act.'244
220 Copies to Merrick , McLendon and Adams.
121 It should be noted, however , that on February 17, 1947, some 3 months after the above
correspondence had been exchanged , representatives of the parties met very briefly , at which
time the Respondent secured the Union's concurrence before granting a third area wage
increase ; no other matter was considered on that occasion.
tae While the evidence shows that the Respondent also stated such a position at the
January 24 and 25 conferences , concededly those conferences were exploratory in nature.
There is no doubt, however , that by the end of the February 6 and 7 conferences, the
Respondent 's position on the bonus question had been taken unequivocally and after due
opportunity for consideration . Hence, the date of the second of those two meetings,
February 7, is used hereinafter as the date upon which the Respondent took said position
on the bonus.
1za Matter of Sanger ManufaeturiAg Company , 24 N. L. R. B. 444, enf ' d as mod., 119
F. (2d) 131 (C. C. A. 7), cert . denied, 313 U S 595
124 No separate finding is made on the question of the Respondent ' s position on the
Inclusion of the bonus in the calculation of vacation pay. That issue persisted during nego-
tiations , along with the Union ' s contention concerning the bonus . The undersigned does
not believe it necessary to treat that phase of the negotiations as a separate issue. It
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The bearing of the Union's willingness to abandon the bonus issue on whether
the foregoing violation has become moot remains to be considered. The Union's
charge of refusal to bargain had been filed several months before the Union first
indicated its willingness, during August, to give up its position on the bonus
and the Respondent's position on the bonus had been one of the Union' s reasons
for filing said charge in March. Thereafter the bonus had continued to be a
recurring matter in dispute. It was not until after the Union had been con-
fronted with the substantially increased demands in the revised Article IX (first
submitted by the Respondent on August 13) from which the Respondent refused
to recede at the meeting of August 16, that the Union first failed to press its
bonus demand by omitting same from its contract of August 23. Said contract
had included only provisions on which agreement had already been reached.
Finally, when the negotiations deadlocked upon the Respondent's insistence that
all of Article IX be accepted, in spite of the Union's willingnes to make ex-
tensive concessions, the Union notified the Respondent that, because it doubted
the Respondent's good faith, it was relying upon its charges before the Board
and was preserving the right to bring up for collective bargaining all questions
deemed necessary "to conclude a proper agreement." In view of the foregoing,
and of findings made hereinbelow as to the Respondent's conduct on August 19
and thereafter, the undersigned concludes and finds that the Respondent's re-
fusal to bargain with respect to the bonus issue has not become moot because
of the Union's willingness, prior to the deadlock, to drop said issue in its un-
successful attempt to reach an agreement 12"
On all of the evidence, the undersigned finds that by incorporating several
new provisions in Article IX of its proposed agreement of August 13, 1946, the
Respondent injected substantially increased demands into the picture, after
negotiations had been under way for more than 6 months. It is true that said
proposed agreement also omitted, for the first time, the indemnity clause which
the Union had opposed and to which it had offered its counterproposal of May 23.
However, that counterproposal of the Union, providing for specific enforcement
by injunction or other proper decree, was also incorporated in a clause under
"General Provisions," in the Respondent's August 13 contract, in place of said
indemnity clause.126 The provisions of that reconstituted clause gave the Re-
spondent reasonable assurance, in the undersigned's opinion, that the Union could
be held responsible for performance under the contract. In view of the fore-
going protection afforded the Respondent by the incorporation of the Union's
counterproposal, and from his study of the course of the negotiations, the under-
signed is convinced that withdrawal of the indemnity clause could not open the
door so late in negotiations for injection permanently into the picture of such
significant new demands as were incorporated in Article IX of the contract of
August 13.12'
should be noted that , unlike the payment of the bonus itself , it had not been the Respond-
ent's practice to include the bonus in calculating vacation pay. Nevertheless , the question
of whether or not the bonus should be included in calculating vacation pay was a bargain-
able issue and, to the extent that the Respondent' s position on that matter was bottomed
on its erroneous position as to the bonus itself, the Respondent was also in error on the
vacation pay issue
' As the Respondent 's letter of August 26 pointed out, negotiations had proceeded on
the basis that agreements were "tentative" and were "subject to the negotiation of an
entire contract."
326 The clause thus reconstituted has been set out above. It included provisions as to
sufficiency of service against the Union in legal proceedings.
327 It should be noted that had the Respondent insisted on incorporation in a contract
of such an indemnity clause, that position itself, under long standing Board precedent,
TOWER HOSIERY MILLS, INC. 701
The Respondent's failure to bargain in good faith, as required by the Act
and the Act, as amended, is demonstrated by the unreasonableness of the Re-
spondent's final position that the Union would have to accept, in toto, the
expanded version of Article IX, In spite of the other provisions of the agreement
and the extensive concessions which the Union already had made."" Article IX,
on its face, requires a high degree of union responsibility of unusual types. It
requires that the Union be responsible for actions of the employees of the Re-
spondent, whether or not they are members of the Union. In cases of violation,
even though occasioned by acts of non-union employees, it provides for monetary
penalties against the Union 329 and for fines on individual employees.
To illustrate, clause (a) of Article IX binds "the Union and the employees"
not to engage directly or indirectly in union activities on company time and gives
the Respondent the option, in its sole discretion, of discharging individual
violators or invoking a "penalty assessment against the Union's funds" of from
$10 to $50 for each violation."'w Again, under clause (b), the Union would be
agreeing not only that it "will not call, encourage, or support any strike" but also
that "there shall be no strikes, work stoppages, spontaneous vacations and slow-
ing down of work, or agitation to do the same," until the remedies under the
agreement were completely exhausted. In this same clause, the Union would be
agreeing "for itself and the employees" that there should be "no interference
by the employees with the operation" of the Respondent. Yet, if the Union
violated Article IX, clause (g) thereof provides for "a minimum penalty" against
the Union of $500 cash per day as "liquidated damages" from any "unauthorized
stoppage of work." Whatever may have been intended, such provisions justify
the Union's contention, expressed during negotiations when it objected to the
penalty assessment provisions, that under said provisions its funds would be
jeopardized by circumstances for which it could not be responsible and over
which it could not exercise proper control.
Article IX also imposes unusual limitations upon the Union's autonomy, to
which the Union objected during negotiations. For instance, it removes from
the Union's membership the right to decide on strike action, vesting that right
in "all employees to whom the Agreement applies," said widened franchise to be
exercised in an election not under the Union's auspices 191
might well have opened the Respondent to refusal to bargain charges. Matter of
Jasper Blackburn Products Corporation, 21 N. L. R. B. 1240 , 1254; Matter of Scripto
Manufacturing Company, 36 N. L. R. B 411, 42,7; and Matter of Interstate Steam8hsp
Company, at al., 36 N. L. R. B. 1307, 1318.
'29 While the undersigned does not purport to determine what terms the agreement should
contain, the circumstances of this case require that the Respondent's good faith in insisting
on all Article IX be assessed . Further , under the circumstances , the undersigned is satisfied
that the Union correctly interpreted the Respondent's letter of November 8 and the agree-
ment accompanying it as constituting the Respondent 's final position on Article IX. Not
only does the letter itself clearly so state (and there was no subsequent indication of any
kind to the contrary), but the meeting on November 4 with Field Examiner Merrick had
terminated with the understanding that the Respondent would submit its final position by
mail . Since it is evident that the Respondent was unwilling to change its mind , the willing-
ness expressed in its letter of November 8 to meet again is immaterial.
329 Under another clause of the agreement, the monetary penalties against the Union
would be subject to court enforcement.
180 Under the agreement as a whole, it would appear that if the Respondent and the
Union's shop committee failed to agree on the amount of each assessment which the Respond-
ent chose to invoke, and either one of them refused to arbitrate the matter, the determina-
tion of the matter would be thrown into the courts
12' In the event of "picketing by the employees," even the number of feet apart which
pickets were to walk was specified.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In return for accepting unusually exacting responsibilities and limitations,
under a contract enforceable in the courts, and in relation to employees regard-
less of whether they wore members of the Union or not, the Union was afforded
no commensurate security or protection. The final step in the grievance pro-
cedure, optional arbitration, left no recourse, except possibly litigation, on
matters where disagreement persisted. The agreement's open-shop clause with-
held from the Union effective authority in relation to employees for whose conduct
Article IX made it responsible and financially liable.' The Respondent had
made no significant concession as to wages, hours, or conditions of employment,
which the Union could hold up to the employees in general, in an effort to secure
their voluntary cooperation in carrying out the agreement, or to its members,
as evidence that the Respondent was giving something comparable in value in
exchange for the highly unusual concessions exacted from the Union"a
It is thus evident that the provisions of Article IX, when viewed in the
aggregate and in the light of the other provisions in the agreement, exacted of
the Union, without compensating benefits or protection, one-sided and imprac-
ticable responsibilities and restrictions so clearly unreasonable that no reasonable
employer, seeking in good faith to reach an agreement, would have required
them, in toto.134 Accordingly, under all of the circumstances, the undersigned
finds that the Respondent was not acting in good faith, particularly on November
8, 1946, when it insisted that the Union would have to accept all of the provisions
of Article IX.1'
Viewed in the perspective of the record as a whole, the Respondent's flat
position in its "final answer" of November 8, was correctly viewed by the Union
as an unreasonable one from which the Respondent would not recede. Accord-
ingly, the Union was under no obligation to seek another conference before
turning to the Board, since it reasonably believed that further attempts to bar-
gain with the Respondent would prove futile.'
In view of the foregoing, the undersigned further concludes and finds that the
Respondent refused to bargain on August 13, 1946, when through its expanded
Article IX it tardily injected into the negotiations substantial new demands,''
and that the Respondent additionally refused to bargain by virtue of the un-
reasonableness of its position thereafter and particularly on November 8, 1946,
that tie Union would have to accept all of the provisions of Article IX.
"'' Clearly the Respondent knew that some of its employees were opposed to the Union.
gas Even the protection of the seniority clause was materially weakened by exempting
exceptional employees therefrom.
' It Is not deemed necessary to determine whether, as contended , any of the provisions
In Article IX are in themselves repulsive to the purposes of the Act.
185 On the whole, Maynard 's testimony as to why the provisions of Article IX were
proposed and Insisted upon was not persuasive on the question of the Respondent's good
faith in bargaining At one point in his examination , Maynard testified that it had been
his position that he would not sign any agreement which did not include Article IX and
that his position did not change . The undersigned does not credit testimony , which he gave
thereafter , that he made it clear to the Union that he would consider any counterproposal
to all or any part of Article IX. The latter testimony is not consistent with the docu-
mentary evidence.
236 Matter of The Toledo Desk & Fixture Co., 75 N. L. R B. 744 ; and N. L . R B. V. High-
land Shoe, Inc, 119 F . ( 2d) 218 (C. C A. 1). In view of the Union ' s repeated and extensive
concessions in attempting to reach an agreement , the record as a whole does not support
the Respondent ' s allegation In its answer that the extensive negotiations failed to result
in a signed contract solely because the Union failed to bargain in good faith . Cf. Matter
of Times Publishing Company , 72 N L. R B 676.
in Matter of Burgie Vinegar Company , 71 N. L . R. B. 829.
TOWER HOSIERY MILLS, INC. 703
In summation, the undersigned finds that from on or about February 7, 1946,
and at all times thereafter, the Respondent has refused to bargain collectively
in good faith with the Union as the exclusive representative of the employees in
an appropriate unit, as required by the Act and the Act, as amended, and has
thereby interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act."'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the Respondent set forth in
Section III, above, occuring 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 such of them as
have been found to be unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom, and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has refused, from on or about February 7,
1946, and thereafter, to bargain collectively with the Union as the exclusive
representative of its employees in an appropriate unit, the undersigned will
recommend that the Respondent, upon request, bargain collectively with the
Union as the representative of the employees in the unit.
Upon the basis of the foregoing findings of fact and the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. American Federation of Hosiery Workers, affiliated with the Congress of
Industrial Organizations, is a labor organization within the meaning of Section
2 (5) of the Act.
2. All production and maintenance employees of the Respondent, including
watchmen-firemen, the shipping clerk, the utility man and the utility woman, but
excluding fixers, foremen-fixers, the forelady 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.
78 As to the Respondent 's proposed findings and conclusions , which are in the form of
two separately numbered series, pertaining , respectively , to the Section 8 (1) and to the
Section 8 ( 5) allegations , the undersigned rules as follows :
As to the proposed 8 (1) findings , the undersigned accepts findings 1, 3, and 5 and
rejects findings 2, 4, and 6. As to the proposed 8 (1) conclusions , the undersigned
accepts conclusions 1 (paragraph 1), 2 (paragraph 1), 3, 4, 5 and 6 and rejects
conclusions 1 (paragraphs 2 and 3 ) and 2 ( paragraph 2). As to the proposed 8 (5)
findings , the undersigned accepts finding 5, interpreting the last sentence thereof as
applying to the Union's refusal to accede on November 4 and 5 thereafter to the under,
lined provisions of Article IX, as set out in the body of this report, and rejects
findings 1 , 2, 3, and 4. As to the proposed 8 (5) conclusions , the undersigned accepts
conclusion 5 as applying to the partial agreement submitted by the Union on August
23, 1946, and rejects conclusions 1, 2, 3 and 4.
It should be noted that several of the rejected findings and conclusions are extensive
and complex , and that certain of them commingle findings, conclusions , and argument.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. American Federation of Hosiery Workers, affiliated with the Uongress of
Industrial Organizations, was on December 20, 1945, at all tines thereafter has
been, and now is the exclusive representative of all of the Respondent's employees
in the aforesaid unit appropriate for the purposes of collective bargaining, with-
in the meaning of Section 9 (a) of the Act.
4. By refusing on or about February 7, 1946, and at all times thereafter to
bargain collectively with American Federation of Hosiery Workers, affiliated
with the Congress of Industrial Organizations, as the exclusive representative
of all of its employees in the aforesaid appropriate unit, the respondent has en-
gaged in and is engaging in unfair labor practices, within the meaning of Section
8 (5) of the Act.
5. By its aforesaid refusal to bargain, the Respondent has interfered with,
restrained, and coerced it employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has thereby 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.
7. The Respondent has not engaged in the unfair labor practices alleged in
Paragraph XI of the complaint, as amended, including all of the subdivisions
thereof from (a) through (i).
RECOMMENDATIONS
Upon the basis of the aforegoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent, Tower Hosiery Mills, Inc., Bur-
lington, North Carolina, its officers, agents, successors and assigns shall:
1 Cease and desist from :
(a) Refusing to bargain collectively with American Federation of Hosiery
Workers, affiliated with the Congress of Industrial Organizations, as the exclu-
sive representative of all of its production and maintenance employees, includ-
ing watchmen-firemen, the shipping clerk, the utility man and the utility woman,
but excluding fixers, foremen-fixers, the forelady and all other supervisory em-
ployees with authority to hire, promote, discharge, discipline or otherwise effect
changes in the status of employees or effectively recommend such action, with
respect to rates of pay, wages, bonuses,"' hours of employment, or other condi-
tions of employment ;
(b) In any other manner interfering with the efforts of American Federation
of Hosiery Workers, affiliated with the Congress of Industrial Organizations, to
negotiate for or to represent the employees in the aforesaid bargaining unit, as
their exclusive bargaining agent.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with American Federation of Hosiery
Workers, affiliated with the Congress of Industrial Organizations, as the exclu-
sive representative of all of its employees in the above-described appropriate unit
with respect to labor disputes, grievances, rates of pay, wages, bonuses, hours
of employment or other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement ;
(b) Post in conspicuous places throughout its plant at Burlington, North
Carolina, copies of the notice attached hereto marked "Appendix A." Copies
of said notice, to be furnished by the Regional Director for the Fifth Region,
129 This term specifically includes Christmas bonuses.
TOWER HOSIERY MILLS, INC. 705
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 material;
(c) Notify the Regional Director for the Fifth Region, in writing, within
twenty (20) days from the date of the receipt of this Intermediate Report, what
steps the Respondent has taken to comply herewith.
It is further recommended that unless on or before twenty (20) days from
the date of the receipt of this Intermediate Report, the Respondent satisfies the
aforesaid Regional Director, as agent for the Board, that it has complied with
or will comply with the foregoing recommendations, the National Labor Relations
Board issue an order requiring the Respondent to take the action aforesaid.
It is also recommended that the complaint be dismissed as to the alleged unfair
labor practices set out in Paragraph XI thereof, as amended , including all of
sub-paragraphs (a) through (i).
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may, within
twenty (20) days from the date of service of the order transferring the case to
the Board, pursuant to Section 203.45 of said Rules and Regulations, file with
the Board, Rochambeau Building, Washington 25, D. C., an original and six
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 and objections) as he relies upon, together with the original and
six copies of a brief in support thereof ; any party may, within the same period,
file an original and six copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such Statement of Exceptions and/or briefs, the
parties filing the same shall serve a copy thereof upon each of the other parties.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203 85. As further provided in said
Section 203.46, 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 service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings , conclusions
and order , and all objections and exceptions thereto shall be deemed waived for
all purposes.
EARL S. BELLMAN,
Trial Examiner.
Dated March 16, 1948.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 refuse to bargain collectively with AMERICAN FEDERATION Of
HOSIERY WORKERS, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZA-
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TIONS, as the exclusive representative of all employees in the appropriate
unit described below.
WE WILL NOT in any other manner interfere with the efforts of AMERICAN
FEDERATION OF HOSIERY WORKERS , affiliated with the CONGRESS OF INDUSTRIAL
ORGANIZATIONS , to negotiate for or to represent the employees in the said
bargaining unit, as their exclusive bargaining agent.
WE WILL BARGAIN collectively , upon request , with AMERICAN FEDERATION
OF HOSIERY WORKERS , affiliated with the CONGRESS OF INDUSTRIAL ORGANIZA-
TION s , as the exclusive representative of all employees in the appropriate
unit described herein in respect to labor disputes , grievances , wages , bonuses,
rates of payt hours of employment , and other conditions of employment,
including Christmas bonuses, and , if an understanding is reached, em-
body such understanding in a signed agreement . The bargaining unit is:
All production and maintenance employees including watchmen -firemen,
the shipping clerk , the utility man and the utility woman, but excluding
fixers, foremen -fixers, the forelady 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.
All our employees are free to become or remain members of the above-named
union or any other labor organization.
TOWER HOSIERY MILLS, INC.,
Employer.
Dated-------------------- By ------------ ------------------
(RepiesentatiVe ) ( Title)
This notice must remain posted for GO days from the date hereof , and must
not be altered, defaced, or covered by any other m ferial.