Vanette Hosiery Mills

National Labor Relations Board - Board Decisions

Nov 16, 1955

114 N.L.R.B. 1107 (N.L.R.B. 1955)

VANETTE HOSIERY MILLS 1107
them.
All my employees are free to become or remain members of the above-named Union
or any other labor organization. I will not discriminate in regard to hire or tenure
,of employment or any term or condition of employment against any, employee be-
cause of membership in or activity on behalf of any such organization.
JACK C. ROBINSON, DOING BUSINESS AS
RoBINsoN FREIGHT LINES,
-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. - -
Vanette Hosiery Mills and American Federation of Hosiery
Workers, AFL. Case No. 16-CA-476. November 16,,1955
DECISION AND ORDER
On June 13, 1955, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain ^ unfair
labor practices and recommending that the Respondent cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent filed exceptions to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Upon the basis of the entire record in the case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
Nanette Hosiery Mills, Dallas, Texas, its officers, agents, successors,
.and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with American Federation
of Hosiery Workers, AFL; as the exclusive representative of all of
the Respondent's production and maintenance employees with re-
spect to rates of pay, wages, hours .of employment, and other terms
and conditions of employment.
114 NLRB No. 164.
387644-56--vol. 114---71
I WILL make whole said employees, and also Sam Smith and Tom Carpenter,
for any loss of pay they may have suffered by reason of discrimination'against
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Instituting changes in the terms and conditions of employment
of employees in the appropriate unit described above, without first
consulting with and bargaining with American Federation of Hosiery
Workers, AFL, concerning these matters.
(c) In any like or related manner interfering with the efforts of
American Federation of Hosiery 1, Torkers, AFL, to bargain collec-
tively with it as the representative of its employees in the above-
described appropriate unit.
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, AFL, as the exclusive representative of the em-
ployees in the above-described appropriate unit, with respect to rates
of pay, wages, hours of employment, and other terms and conditions
of employment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its plant in Dallas, Texas, copies of the notice attached
to the Intermediate Report marked "Appendix." i Copies of such
notice, to be furnished by the regional Director for the Sixteenth
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon
receipt thereof and maintained by it for a period of sixty (60) consec-
utive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
'This notice shall be amended by substituting for the NNoids "The Recommendations of
a Trial Examiner" in the caption thereof, the words "A Decision and Order" In the
event that this Order is enforced by a decree of a United States Court of Appeals, there
shall be substituted for the w ords "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals , Enfm cing an Order "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges filed by the American Federation of Hosiery
Workers, AFL, herein called the Union, the General Counsel of the National Labor
Relations Board , herein called the Board, by the Regional Director for the Sixteenth
Region ( Fort Worth , Texas ), issued his complaint dated October 21, 1954, against
Vanette Hosiery Mills, 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 (a) (1) and ( 5) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 61 Stat 136, herein called the Act . Copies of the complaint,
the charges , and a notice of hearing were duly served upon the parties.
_ VANET 1B^ H69IER'Y MILLS 1109
With respect to the unfair labor practices, the complaint alleged that the Respond-
ent on or about February 14, 1952, and at all times thereafter, refused and continued
to refuse to bargain with the Union in violation of the Act. The Respondent's
answer denies the averments of statutory violations in the complaint.-
Pursuant to notice, a hearing was held at Dallas, Texas, on'February 23, 24, and
25, -1955, before. Thomas N. Kessel, the Trial Examiner duly designated by the
Chief Trial Examiner. The General Counsel ' and the Respondent were represented
by counsel and the Union by its officials. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence was afforded all parties.
Ruling was reserved on motions made by the Respondent during the hearing for
dismissal of the complaint. These motions are disposed of in accordance with the
findings. and conclusions herein made.-' After the close, of the-hearing ythe' Respond-
ent filed a brief which-has been carefully-considered.
Upon the entire record-, in the case,, and: from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The` complaint _alleges and, the- answer -admits that the Respondent is a Texas
corporation with its principal office and place of, business in Dallas, Texas, where it is
engaged in the manufacture, sale, and distribution of ladies''hosiery and-related
products; that the Respondent annually has shipped too it across State lines raw
materials valued in excess of $500,000 and- in turn ships finished products valued
in excess of, $500,000 from its plant- across State lines. - From' these' facts I find
that the Respondent is engaged in commerce withinrthe meaning of the Act- and that
exercise of the Board's jurisdiction over-the Respondent's operations will effectuate
the purposes of the Act.
II.' THE LABOR ORGANIZATION INVOLVED
American Federation of Hosiery Workers, AFL, is a - labor organization admit
ting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Contentions of the parties, generally
The Respondent's complained-of conduct consists of (a) its -admitted refusal -to
recognize and bargain with the Union during,the period between February 1952
and July 1953; (b) its alleged failure to bargain in good faith during contract negoti-
ations with the Union in the period from, July to September 1953, (c) its refusal
thereafter to recognize and bargain with the Union, and (d) the Respondent's uni-
lateral institution of changes in the terms and conditions of employment of its em-
ployees during all the foregoing periods. -
The Respondent defends its refusal to recognize and bargain with the Union
during the period from February 1952 to July 1953 covered by (a), above, on the
ground that it doubted in good faith the Union's majority, and further asserts that
the General Counsel has failed to prove the Union's majority during any period
relevant herein. As to the fact that it did engage in contract negotiations with the
Union during the period from July to September 1953 covered-by (b), above, the
Respondent explains that it did so only as a matter of expedience and that it did not
thereby cease to doubt the Union's. majority claim. The Respondent further asserts
that it conducted these negotiations in good faith, that its failure to reach an agree-
ment was the result of its lawful refusal to submit to the Union's demands, and be-
cause the Union by its tactics deliberately prevented accord or a continuation of
negotiations. These circumstances, the Respondent contends, provided legal justi-
fication for the unilateral action taken by it concerning terms and conditions if
employment of its employees.
B. The history of labor relations between the parties
Following a Board-conducted election the Union was certified on September 2,6,
1946, as the collective-bargaining representative for the Respondent's employees -in
a plantwide production and maintenance- unit. In a decision 1 dated Decemberecember 8,
1948, the Board found that the Respondent'had violated Section 8 (5) of the
1 Reported at 80 NLRB 1116
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act (Wagner Act) and Section 8 (a) (5) of the amended
Act (Taft-Hartley Act) by failing and refusing to bargain collectively with the
Union, and ordered it to bargain in compliance with its statutory duty. A decree
to enforce this order, dated March 10, 1950, was thereafter obtained from the United
States Fifth Circuit Court of Appeals? A subsequent 19-week strike was waged
by the Union against the Respondent. Upon termination of the strike on February
.18, 1951, the Respondent signed a 1-year bargaining contract with the Union with
an expiration date of February 18, 1952.
C. The course of events between December 14, 1951, and July 22, 1953
By letter dated December 14, 1951, Adolph Benet, the Union's district manager,
requested the Respondent to meet with representatives of the Union to negotiate a
new contract. Arrangements were thereupon made for a January 23, 1952, meeting
in Dallas. Representatives for both sides accordingly met on that date and began
negotiations . During a day-long conference the Union submitted its proposals for
changes in the existing contract. The negotiators discussed these proposals as well
as certain proposals presented by the Respondent's representatives. Most of the
Union's requests were rejected, but there was agreement as to some. As to others,
the negotiators mutually agreed that they be held in abeyance for further discussion.
At the end of the session Benet sought a date for the next meeting. Burnett, the
Respondent's vice president, replied that he could not agree to a specific date be-
cause of other commitments, but indicated the suitability of a January 31 or Feb-
ruary 1 date provided he did not go to a New York manufacturers conference.
Otherwise, a February 4 meeting could be arranged. He agreed to notify Benet as
to these developments. Not having heard from Burnett by January 30, Benet
called him to inquire as to a meeting date. Burnett replied that unsettled business
conditions prevented a meeting at that time and that a telegram was on its way carry-
ing such advice and proposing a February 20 meeting. Benet's request for an ex-
tension of the subsisting contract beyond its February 18 termination date was re-
jected.
The foregoing telegram from Burnett was received by Benet on January 30. As
indicated by Burnett in his telephone conversation with Benet, it referred to the
impracticability of discussing contract terms because of unsettled industry condi-
tions and suggested a February 20 meeting. The message also stated "management
is giving additional study for discussion following expiration of present contract."
On the same day Benet sent a letter to Burnett agreeing to the proposal for a Feb-
ruary 20 meeting in Dallas. He proposed again an extension of the subsisting con-
tract for 30 days or less after its termination during negotiations, and in the alterna-
tive proposed an exchange of letters between the Union and the Respondent for
maintenance of the status quo during negotiations. He made it clear that he ac-
cepted the proposal for the February 20 meeting regardless of the Respondent's
position on his proposals for extending the contract or maintaining the status quo.
By letter dated February 5 Burnett expressed Respondent's unwillingness to accept
these union proposals, but gave assurance of the Respondent's lack of intent to alter
working conditions in its plant upon expiration of the contract on February 18.
By letter to Benet dated February 14, J. O. Davis, the Respondent's president, ad-
vised that the Respondent did not believe that the Union represented a majority
of its employees and that it would not, after expiration of the contract on February
18, recognize the Union as representative of its employees. A February 18 telegram
from Burnett to Benet indicated that the Respondent had called off the scheduled
February 20 meeting. On February 19 Benet wired back his insistance that the
meeting be held as agreed, and on the same day sent a letter to Davis expressing his
surprise that the Respondent had at this late date for the first time raised a question
concerning the Union's majority. He further advised that he was coming to Dallas
for the meeting as planned. On February 20 Benet and the union negotiating com-
mittee went to the Respondent's office where they sought out Burnett and told him
they were prepared to hold a bargaining conference. He, however, reiterated the
Respondent's unwillingness to recognize and bargain with the Union on the ground
that it was not representative of a majority and no meeting was held.
On the day of his audience with Burnett, or the next day, Benet prepared a peti-
tion for signature by the Respondent's employees certifying their desire to be rep-
resented by the Union in collective bargaining with the Respondent. At a union
meeting held between February 23 and 26, 106 of the Respondent's employees
signed the petition. According to statistics furnished the Board by the Respondent,
0 Reported at 179 F. 2d 43.
VANETTE HOSIERY MILLS
199 employees on February 23 and 198 employees on Febru 26 were employed
by it who were included in the' appropriate bargaining unit I'he signers of the
petition thus constituted a majority of those employed in the appropriate unit during
this period.
On February 26 a union committee presented the petition to Burnett. Raymond
Adams, a national representative for the Union, in handing the petition to Burnett
stated to him that it was proof of the Union's majority and expressed a desire that
he cross check the signatures against the company payroll. Burnett replied that
he would do so, whereupon Adams requested a conference for continuation of con-
tract negotiations. Burnett answered, "Well, I will let you know." Adams inquired,
"Does that mean that you will not meet with us?" and Burnett responded, "No, I
didn't say that." 3
Following presentation of the petition to Burnett, Benet sent a letter, dated February
27, to President Davis explaining that the petition had been procured and sub-
mitted to support the Union's majority claun, and that the Respondent having
had time to cross check the signatures had no reasonable basis for doubting the
Union's majority. He thereupon proposed a bargaining conference in Dallas on
March 5. Davis replied by letter dated February 29 stating the Respondent's un-
willingness to accept the petition as proof of majority and conditioning recognition
of the Union upon proof of majority in a Board election. He accordingly proposed
that the Union and the Respondent jointly request the Board to hold such election.
Benet's answering letter of March 3 rejected Davis' proposal for an election with the
assertion that the Union had overcome any reasonable doubt as to it& majority
through acceptance of the petition by Burnett with opportunity for a cross check
of signatures. He again requested a bargaining conference. Davis' March 12
letter to Benet, previously noted, denied the Respondent's acceptance of the peti-
tion as proof of the Union's majority or that it had agreed to a cross check. Davis
predicated his insistence upon an election on the ground that the last election was
held in 1946, that "some" of the employees had indicated their desire for an election,
and that the Respondent is "constantly told by people in [its] employment that
they do not wish the Union to represent them." Benet answered Davis in a
March 14 letter pointing out that Davis was mistaken in his version of what had
occurred concerning the petition, and requested a conference to reconcile the con-
flict as to this matter. He reiterated the Union's claim of majority, emphasized the
needlessness of an election to prove a majority already convincingly established, chal-
lenged the Respondent's bona fides, and once more asked for a bargaining con-
ference.
S This account is contained in the credited testimony of Elden Bowling. who was a
member of the union committee that presented the petition to Burnett. At that time
Bowling was also vice president of the Union's local in-the Respondent's plant and a
member of the negotiating committee. At the time of the hearing he was president of the
local. The only evidence in the record contradicting Bowling's testimony is a letter from
President Davis to Benet dated March 12, 1952, in which Davis denied that the Respondent
had accepted the petition as proof of the Union's majority or had agreed to a cross check
of the signatures on the petition. Davis was not present when the petition was presented
to Burnett. His account of a circumstance as to which he had only hearsay knowledge
at best, does not effectively contradict the sworn testimony of a credible witness who had
direct knowledge of the circumstances in question.
The following observations are appropriate at this point. The evidence in this case con-
sists substantially of written communications and other documentary matter. Many of
the documents were received in evidence with a stipulation that if the persons who had
written them had been called as witnesses they would have testified consistently with
their writings. As I understand the parties to have intended by their stipulation, the
things said in the documents covered by it are to have the effect of testimony ad-
mitted without objection. As no exception was made regarding statements in the docu-
ments which appear to be hearsay, I assume that these statements, too, are included as
evidence in accordance with the stipulation of the parties. In according this stipulated
evidence the weight to which I believe it entitled, I have considered the fact that much
of it has been authored by witnesses whom I have not seen, who were not sworn, and
who were not subject to cross-examination. The only witnesses who testified in this
proceeding were called by the General Counsel. From my observation of them and a review
of their testimony, I have concluded that they are -reliable witnesses whose credible
account of the critical events and circumstances of this case merits greater weight than
the stipulated documentary evidence. Accordingly, conflicts between assertions in these
documents and the sworn testimony of the witnesses have been resolved in favor of
the latter.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Benet received no reply from the Respondent to his March 14 letter, and there
were no communications between the Union and the Respondent from that date
until July 14, 1952. On this latter date Benet again sent Davis a letter requesting
a conference. There was no reply.
The initial charge in this proceeding, asserting only the Respondent's unlawful
refusal to bargain, had been filed on February 20, 1952. In the course of the
Regional Director's investigation of the charge, data regarding employment statistics
was requested of the Respondent on June 18, Respondent 's attorney , John M.
Scott, wrote to the Regional Director on June 24, pointing to previous unsuccessful
efforts by the Respondent to obtain the Union's consent to a representation elec-
tion to determine the question of its majority. Scott indicated that the Respondent
had failed to file a decertification petition up to that time because of its belief that
it could not statutorily do so, but, that he had advised the Respondent of its "right
in that respect " Scott was apparently stating that he had advised the Respondent
that it was permitted by the Act to file such a petition, and that by doing so the
Board's investigation of the Union's charge and the request for data could be
obviated. He was apprised by answering letter from the Regional Director that
employers may, under the Act, file only RM petitions and forms for such filing
were enclosed. On July 31, Scott sent a letter to the Regional Director outlining
the Respondent's reasons for doubting the Union's majority claim. To the reasons
already given by the Respondent in the correspondence detailed above, he added
the assertion that at the conclusion of the 19-week strike, which preceded the sign-
ing of the February 18, 1951, contract, "the great majority of the employees were
overwhelmingly against the Union," and that because of criminal proceedings
brought by nonstrikers against strikers factionalism had developed in the Respond-
ent's plant. Enclosed with the letter was the Respondent's RM petition for an
election-among its employees to determine whether they desire to be represented
by the Union. This petition was docketed by the Regional Director August 4, 1952,
as Case No. 16-RM-56.
Upon filing of the RM petition the Union through counsel requested its dismissal
by the Regional Director By letter dated August 11, 1952, the Regional Director
advised the Respondent that the petition had been dismissed because of the pendency
of the Union's unfair labor practice charge against the Respondent as to which a
determination had been made by the Regional Office that a complaint should issue.
On August 20 Benet sent a letter to Burnett stating that he had received notice of
the dismissal of the RM petition and, in view of this development, requested that a
bargaining conference be held on September 2 or some other date suitable-'to the
Respondent. Benet received a reply letter from Attorney Scott dated August 25
informing him that the request for a conference was "premature" as the Regional
Director's dismissal of the petition expectedly would be appealed to the Board.
Scott closed his letter with the following advice,
In the event the National Board confirms the action of the Regional Director,
the Company will, no doubt, arrange an early meeting at a mutually convenient
time.
By letter from the Board dated December 1, 1952, Scott was informed that the
Regional Director's dismissal of the RM petition had been sustained. Benet having
also received the same notice thereupon sent a letter to Burnett dated December 3,
reminding him of what Scott had written in his August 25 letter and suggesting a
December 19 meeting in Dallas or at some other convenient time. On December 24
Scott wrote to Benet and stated that the Respondent still did not feel that the Union
represented a majority of its employees and did not intend to accord recognition
unless legally required to do so. He indicated that he had been asked for an opinion
by the Respondent as to the sustainability in court of the Board's ruling on the RM
petition, and that he expected to give the Respondent a definite answer shortly after
January 1, 1953. He further stated,
If I conclude that the Company is bound to recognize the Union, an early date
for negotiation will be set.
Benet wrote to Scott on January 6, 1953, and urged him to advise the Respondent
of its legal obligation so that negotiations could be resumed as early as possible. By
March 11 Benet had not received any communication from the Respondent or Scott.
He therefore , on that date, wrote to Burnett emphasizing the elapsed time since Scott's
December 24, 1952, letter in which he had indicated that he would advise the
Respondent as to its legal position shortly after January 1, 1953, and requested a
bargaining conference on March 25 or some other convenient date. Burnett replied
by letter dated March 20 stating that the Respondent was still convinced that the
VANETTE HOSIERY MILLS 1113
Union did not represent a majority and asked for the Union's consent to an election.
Benet's March 24 reply letter reiterated all the arguments previously expressed by
him in opposing an election and for the same reasons rejected Burnett's request. At
the same time Benet accused the Respondent of engaging in dilatory tactics to avoid
bargaining and advised that the Union would press the Regional Director to process
the charges it had filed against the Respondent.4-
In October 1952 counsel for the Union had written to the Regional Director urging
institution of contempt proceedings by the Board in the United States Court of Appeals
for the Fifth Circuit on the ground that the Respondent was engaged in a course of
conduct to undermine the Union in violation of the court's 1950 decree. By letter
dated June 5, 1953, the General Counsel in Washington, D. C., notified counsel for
the Respondent that pursuant to 'the recommendation of the Regional Director the
Board had authorized him to institute contempt proceedings because of the Respond-
ent's failure and refusal to bargain in good faith with the Union as required by the
Fifth Circuit decree. By letter dated July 2, 1953, counsel for the Respondent noti-
fied the Regional Office that while the Respondent still doubted the Union's majority
and has consistently maintained this doubt since expiration of the contract with the
Union on February 18, 1952, it desired to avoid the expense of defending a contempt
case. Accordingly, Respondent agreed to meet with the Union and to negotiate a
contract in good faith. On July 17 the Respondent prepared a notice to its em-
ployees which it posted about that time explaining its reasons for endeavoring to
secure a representation election for them and its failure to accomplish this objective.
It also notified the employees that the Respondent's attorney had advised that the
Respondent was obligated by law to bargain with the Union and would follow this
advice. The statement further indicated that the Respondent had notified the Union
of its willingness to meet for bargaining purposes. Upon the Union's request for a
bargaining conference in Dallas, the Respondent agreed to meet with it on July 22.
Pursuant to such agreement the parties did meet in Dallas on the scheduled date.
D. Relations between the parties in July and September 1953, and subsequently
On July 22, 1953, negotiators for the Union and the Respondent met at Dallas
with Benet and Burnett as the chief spokesmen for their respective groups. Discus-
sions continued for 3 successive days without agreement on a contract. On the
third day, July 24, Benet proposed that a date be set for continuation of negotiations.
Burnett replied that he would not agree to meet until the Respondent first received
by mail a written counterproposal from the Union. Benet then proposed that a date
be set with the understanding that each side would bring in its proposals, but Burnett
insisted that he would not meet until the Union complied with his request for a
written counterproposal submitted by mail.
On July 28, 1953, Burnett sent Benet a lengthy letter reviewing the discussions at
the July 22 to 24 conference. This review referred to the specific bargaining sub-
jects which had been raised by both sides and included the positions taken by the
parties on them. On August 6 Benet replied to Burnett with an even lengthier letter
in which he detailed the positions of the parties at the July meetings pointing to dif-
ferences between his version of what had occurred and that presented in Burnett's
letter. Benet stated his preference for face-to-face bargaining and his reluctance to
exchange proposals and counterproposals by mail, but indicated that he had stated
the Union's position in his letter in answer to Burnett's statement of the Respondent's
position. He also included a request for an August 24, 1953, meeting with the
Respondent. Burnett answered Benet with a September 3 letter stating his belief
that specific proposals from the Union "embodied-in a proposed agreement" received
by the Respondent in advance of a meeting would expedite negotiations. As he had
been unable, because of his intervening vacation, to meet with Benet on August 20
in accordance with the latter's request, he stated he would not insist on a proposed
contract from the Union as a condition for meeting with it. Benet's reply letter
requested a September 21 meeting at Dallas and arrangements for continuation of
negotiations were accordingly made for that date.
The September 21 meeting failed to produce agreement on a contract. Toward the
end of this session Benet asked for another meeting date, and was informed by
Burnett that this request would not be granted until the Union first submitted its
proposals in writing. Benet countered that the Union would gladly state its position
s In addition to the charge filed on February 20, 1952, the Union had filed a first
amended charge on October 24, 1952, and a second amended charge on March 12, 1953.
The amended charges alleged 8 (a) (3) violations in addition to the 8 (a) (5) violation
initially set out.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in writing in reply to a written statement of position from the Respondent. He testified
that at no time during the entire course of negotiations had the Respondent submitted
written proposals to the Union. On the other hand, Benet testified, the Union had
presented its demands in writing -in January 1952, these demands in substance were
unchanged when negotiations were resumed in July 1953,5 and, furthermore, his
exchange of letters with Burnett after the July 1953 meetings had amply stated the
positions of the parties on all matters under consideration. He had thought, he fur-
ther testified, that the Respondent's demand for a written statement of position had
been satisfied by these letters, but now he was faced with a repetition of this demand.
There was, in Benet 's view, no need for further writings from the Union to demon-
strate its bargaining position. In the circumstances, Benet felt that the Respondent's
insistence for written proposals was merely a stalling tactic, and although it would
admittedly have been an easy matter to restate the Union's position in writing to test
the Respondent's willingness to continue negotiations he refused to submit to Burnett's
requirement.
The parties have not since the September 1953 meeting conferred to negotiate a
contract. On April 2, 1954, the Respondent sent a letter to the Regional Director
informing him that it had not been contacted by the Union after the September 1953
meeting and that it does not know whether the Union represents a majority of its em-
ployees or asserts its right to represent them. Nevertheless, the letter stated, the
Respondent had sent notice to the Union of a rate revision for employees which it
had recently instituted. The Regional Director advised the Respondent that there
was pending before the General Counsel in Washington his recommendation for re-
institution of contempt proceedings against the Respondent and that its April 2
letter was being forwarded to Washington for the General Counsel's consideration.
On April 7 Benet replied to the Respondent's April 2 notice of rate revision and
charged it with unlawful action by instituting these unilateral wage changes. He
further asserted the Union's claim as representative of a majority of the Respondent's
employees and requested a bargaining conference at a convenient date. Benet also
explained that he had been awaiting a counterproposal from the Respondent in ac-
cordance with the indication from Burnett at the September 1953 meeting that such
counterproposal might be sent to him and, further that he had been advised by the
Regional Office that Respondent's counsel, Scott, had promised to have the Respondent
mail the Union a counterproposal and, in fact, Scott had expressed his belief that
this had already been done. However, no counterproposal had been received. Benet
emphasized that the Union desired a bargaining meeting whether or not the Re-
spondent had a counterproposal. The Respondent did not answer Benet's letter. On
June 28 Benet again wrote to the Respondent requesting a conference at Dallas on
July 29 or on some other suitable date. There was no reply from the Respondent.
On July 2, 1954, the Regional Director dismissed all the charges filed by the Union
against the Respondent and sent notices to the parties of his action. On July 8 the
Respondent wrote to the Regional Director, and, pointing to the foregoing dismissal,
asked for advice as to the Respondent's legal obligation with respect to its relations
with the Union. A copy of this letter was sent to Benet with a separate note ad-
vising that a reply would be given to his request for a meeting after the Regional
Director's advice was received. By letter dated July 9 the Regional Director advised
the Respondent that in view of the dismissal of the Union's charges the Respondent
could test the Union's majority if it chose to do so by filing an RM petition, but that
if the charges were to be reinstated by the General Counsel on the Union' s appeal
from the dismissal , the RM petition could not be processed. Upon receipt of this ad-
vice the Respondent notified the Regional Director on July 13 that in view of the
possibility of an appeal by the Union it would take no action until the question was
completely settled. The Union did subsequently appeal,the dismissal and on October
11, 1954, the General Counsel sent notice to the parties of his reversal of dismissal
of the charges upon which the instant complaint is based. This ended all contact be-
tween the Union and the Respondent.
E. The Respondent's unilateral actions affecting terms and conditions of
employment of its employees
The parties stipulated that the following changes in terms and conditions of employ-
ment of its employees were instituted by the Respondent:
1. In January 1953 new inspecting machines and processes were installed and
piece rates were set for these operations after a trial period.
6 The specific proposals , counterproposals , and other positions taken by the parties in
the course of their negotiations are set out in detail, infra.
VANETTE HOSIERY MILLS 1115
2. In March 1953 mending work was reclassified and segregated as to pulls and
latch mends including both handwork and work on new mending machines and
rates were adjusted accordingly.
3. In the spring of 1953 a new operation for knitting 51 gauge and 30 denier
was started and rates for this work were set after a trial period.
4. In June 1953 production was started of knee-length hose with revised con-
struction and piece rates were established for this operation after a trial period.
5. On June 1, 1953, the employee cost-of-living bonus was discontinued with
upward revision of some rates in the lower pay scales.
6. On August 10, 1953, some knitting rates were revised in accordance with
a notice issued to employees dated August 3, 1953.
7. On August 24, 1953, helpers were employed to train for 2-machine opera-
tions on a trial basis, and this operation was later abandoned after a period of
more than 6 months.
8. On April 5, 1954, there was a general rate revision as set forth in a notice
to employees dated April 2, 1954.
The record shows that the foregoing actions were taken by the Respondent without
prior notice to or bargaining with the Union concerning them.
Testimony by the aforementioned Elden Bowling and employee Gertrude Bailey
reveals the following added unilateral actions by the Respondent taken without
notice to or bargaining with the Union. (1) On November 24, 1952, the Respond-
ent's shop superintendent notified employees that they would be permitted to produce
a maximum of 120 dozen hose daily. When on May 27, 1953, the superintendent
announced to the employees that their cost-of-living bonus was to be eliminated,
he also told them that the rate for dozens of hose produced would be raised 1 penny
and that the maximum permitted to be produced would be lifted to 125 dozen.
In May 1954 the Respondent's floorlady announced that the maximum would be
raised to 130 dozen daily. (2) In the fall of 1952 the Respondent changed the
penalty rates charged its knitters for defective work. In April 1954 when the
general rate revision was announced the penalty rate was also revised.
F. The January 1952 contract negotiations
There is no allegation that the Respondent failed to bargain in good faith at the
January 23, 1952, conference. Detailed reference to the specific transactions be-
tween the parties on this occasion, however, is necessary for a complete and clearer
understanding of the critical events directly associated with the alleged unfair labor
practices and the Respondent's defenses thereto.
It has been stated that there was a 1-year contract between the parties with a
February 18, 1952, expiration date. At the January 23 conference at which Benet
and Burnett were the spokesmen, respectively, for the Union and the Respondent,
the Union presented a written statement of demands consisting of specific changes
which it desired in the subsisting contract. These requests called for changes in
several numbered articles of the contract including the procedure for establishing
rates for new or revised operations (article 7), the grievance and arbitration provi-
sions (articles 8 and 9),6 the vacation provisions (article 12), the provisions for
paid holidays (article 13), the provisions for overtime work (article 14), the group
insurance plan (article 17), the agreement concerning return to work of employees
who had been on strike before February 18, 1951 (article 18), the term of the
contract (article 21), and the request for inclusion of a new clause providing for
checkoff and a union shop. 'With reference to the request for changing the arbitra-
tion provisions (article 9), the Union also presented in writing a provision that it
desired included in the contract as to the jurisdiction of the arbitrator. In addition
the Union presented 8 written "inequities" relating to earnings of specific job classi-
fications indicating the changes desired, and, finally, requested a general 10-percent
wage increase for all piece- and time-workers. During the course of the negotia-
tions, Benet also orally proposed deletion of two paragraphs from the vacation section
of the contract qualifying vacation rights of employees set out in other parts of the
section on the basis of their absences from work.
Burnett generally opposed any proposed change in the contract which would
increase the Respondent's operating costs. As to the Union's specific requests,
Burnett unqualifiedly rejected all but the proposals relating to the vacation section
(article 12), the return of striking workers section (article 18), and the term of the
e No number appears in the contract in evidence to identify the arbitration clause.
This apparently is a typographical omission. From the sequential position of this article
in the contract it is apparent that it should have been numbered article 9
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract ( article 21 ). As to article 18 , Burnett agreed to the proposal for its
deletion. As to the term of the contract , he asked that the requested change from
1 to 2 years be held in abeyance as the Respondent had not reached a decision on
this matter . Regarding the vacation proposals , he rejected those which would have
increased operating costs, but indicated that the other changes requested should
be left open.
Burnett went through the contract clause by clause and orally proposed various
changes in it desired by the Respondent . He sought modification of the grievance
procedure , the seniority system , deletion of the wage-reopening clause and the provi-
sions dealing with summary discharges , and revision of the "100 percent guarantee"
(articles 11 and 20 ). As to grievances , Burnett suggested and the Union agreed
that foremen be given 2 working days rather than 24 hours in which to reply to a
grievance , and that the 3-day period in which the Union was required to process
a grievance to the superintendent or general manager level be increased . The Union's
offer to lengthen the latter period to 5 days was accepted . Burnett's proposal that
no grievance be processed in the shop which would interfere with production was
rejected by the Union . His proposal for substitution of efficiency for seniority in
departmental layoffs was also rejected . As to his suggestion for a change in the
contract definition of a promotion (better jobs ) with reservation to the Respondent
of determining what constituted a promotion , the Union agreed in principle, but
it was agreed to consider this item later. To Burnett 's request that layoffs be made
by job classification instead of seniority the Union agreed in principle , but asked for
further clarification from the Respondent as to what it meant. In situations where
an employee declined a promotion , Burnett indicated that he should be dropped
to the bottom of the promotion list. The Union asked that this be held for further
discussion . His proposal for excluding "seniority unaffected by strike time" brought
agreement on condition that the existing seniority list remain unchanged . Burnett's
request for a change regarding seniority during the 90-day probationary period was
agreeable to the Union . The Union also agreed to his proposal for increasing tempo-
rary transfer status from 1 week to 30 days . A change proposed by Burnett per-
taining to leaves of absence of employees to attend conventions resulted in an agree-
ment with the Union . He suggested more than the 30 days provided for in the
contract before grievances could be filed when new rates are established. The
Union requested that this item as well as the request for a reduction in the "100
percent guarantee " be held in abeyance The Union rejected Burnett 's proposal for
elimination of rules concerning summary dismissals , and advised of its desire to
participate in working out rules covering this matter . The question was held for
further discussion . The meeting closed with an understanding that a date for
resumption of discussions would be fixed as hereinabove described.
G. The July 1953 bargaining sessions
Benet testified that at the opening of the July 22 meeting he informed Burnett
that with one exception the Union's demands were the same as those presented at
the January 23, 1952, conference. As noted, the Respondent on June 1, 1953,
had unilaterally deprived its employees of the 20-cent per hour cost-of-living bonus
payment which before then had been part of their wages . Benet now proposed that
this bonus be restored , and at the same time offered to withdraw the 10-percent wage
increase which had been part of the January 23, 1952, demands. There followed,
during the 3 days of conferences ending July 24, a consideration of the bargaining
positions of both sides which , according to Benet's testimony , was fully described by
him in the above-mentioned letter dated August 6, 1953, sent by Benet to Burnett in
reply to the latter's July 28, 1953, letter giving his version of what had occurred at
these conferences.
Before examining the content of Benet's letter, it would be appropriate first to
relate Burnett 's version of the July meetings as set forth in his letter . He started
by challenging the accuracy of Benet's notes of the meetings and emphasized that
if he had not clearly stated the Respondent's position before he now intended to
remove any misunderstanding . He declared the Respondent 's intention to bargain
in good faith and to make every possible effort to reach agreement on all matters
which were not irreconcilable . He then listed nine specific demands which had
been presented by the Union and described the responses given to them by the
Respondent . As to economic issues arising from these demands, Burnett said he
had explained to Benet the unfavorable business conditions troubling the Respondent
and had advanced them as justification for the elimination of the cost -of-living
bonus and his decision to revise rates downward in the future . In explanation for
the Respondent 's decision to take sole responsibility for these rate revisions , Burnett
wrote that he had mentioned his realization that the Union would be placed in
VANETTE HOSIERY MILLS 1117
a difficult position if it were asked to agree to downward revisions . He had therefore
had in mind , he said, leaving the question of wages open for further bargaining if
agreement could not be reached on this subject , and to avoid disagreement on other
issues by not requiring agreement to a wage reduction as the price of a contract. He
set forth the rate revisions he had stated as necessary to meet the current economic
situation, and concluded this subject with the reminder that he had not pleaded
the Respondent's inability to pay but had merely asserted the advisability of his
rate revisions to enable the Respondent "to operate the mill profitably."
Burnett further related that he had rejected the Union 's request for checkoff and
its proposal to broaden the powers of the arbitrator . As to arbitration , he stated
the Respondent 's dissatisfaction with it and suggested its total elimination from the
contract . In support of the Respondent 's proposed change in the vacation pay
plan, he assigned economic reasons based on the depressed industry conditions.
He had , for the same reasons , rejected the Union 's proposal for 5 paid holidays,
Burnett stated that the old contract had been reviewed clause by clause, and in
his letter set forth the position taken by him on each of these clauses. He had
wanted ( a) elimination of all references to arbitration appearing in several clauses
of the contract ; (b) revision of the seniority provision to provide for seniority in
some cases by `-machine" in the knitting departments ; ( c) to amend promotion
procedures to provide for promotions from the top 30 percent based on produc-
tion and quality (he would however consider dropping this request ); (d) to lengthen
the period for temporary transfers ; (e) to eliminate the provision regarding "seniority
unaffected by strike time" as no longer necessary ; (f) to amend article 7 (establish-
ment of new rates ) to provide for "80 percent of average rather than 100 percent of
average earnings " as a formula for setting new rates ( also wanted more time to
study this article ); ( g) to include an added step to the grievance procedure to bring
about more settlements at the departmental level; (h ) to change the provisions re-
garding disciplinary and discharge rules (while he had not expressed this view be-
fore, he now stated he favors an American National Insurance type clause ); and (i) to
change the method for computing vacation pay (he had indicated his willingness to
drop this request in order to obtain agreement on a contract ). Regarding the wage
and wage-reopening clause of the contract ( article 16 ), Burnett's letter , referred to
his stated position as follows , "depends on whether union desires wages in the agree-
ment." Concerning his stated position on the no-strike clause (article 6 ), he also
wrote "depends on whether the Union wants included in the contract ," and added,
"if we do not agree on wages, then we feel the Union should be free to strike if
the bargaining is not satisfactory."
Burnett indicated that as to the other remaining clauses of the contract, he had
taken no controversial position for or against their inclusion , These were relatively
unimportant clauses.
He further wrote that at the conference Benet had made "some hypothetical sug-
gestions looking to compromise ," and that he had in turn indicated that the Re-
spondent would consider making concessions in return for others. Accordingly, he
had asked for a "comprehensive proposal" from the Union "in the light of the dis-
cussions" between the parties. He reiterated such request in his letter. As to
the Union 's request for financial information concerning the Respondent 's business
operations , Burnett wrote that the Respondent was not , in connection with its bargain-
ing position , presumably as to wages , pleading inability to pay , and that the Re-
spondent was not therefore obligated to furnish the requested information. As
to the Union's request for earnings data for certain job classifications , he offered to
make it available to the Union if it would at its expense send an accountant to the
Respondent 's office to check the payrolls . He suggested that if there was disagree-
ment as to the correctness of his position on this matter, that the attorneys for the
parties ought perhaps agree on the procedure to be followed.
Burnett expressed a willingness to approach negotiations constructively regardless
of past differences in the hope that agreement could be reached , and in conclusion
repeated his request for a "comprehensive written proposal from [the Union ] in which
[its] various hypothetical offers may be made definite for [his] study ." After oppor-
tunity for study of the proposal , he offered to meet with the Union "at reasonable times
and for discussions of reasonable length as required by law "
Benet's reply letter to Burnett defended the accuracy of his notes taken at the July
meetings and questioned whether Burnett was in a position to comment on their
accuracy . Because of Burnett's assertedly faulty account of the negotiations, Benet
proposed to set the record straight by detailing what he recalled had transpired. He
accordingly presented the following detailed chronology:
Benet had started the July 22 session by informing Burnett that the Union was
picking up where it had left off on January 23, 1952 , with the exception , as herein-
above noted , that it was withdrawing its request for a wage increase and was asking
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for restitution of the cost-of-living bonus. Referring to Burnett's letter, he con-
ceded that with one modification, as to the arbitrator's jurisdiction, Burnett's letter
had correctly stated the Union's demands as presented at the meeting. Continuing
with his letter, Benet related a series of 20 specific arguments and statements of posi-
tion by Burnett. These included the Respondent's advice to the Union that economic
necessity would compel future downward rate revisions which would be made effec-
tive with or without the Union's agreement. To Benet's objection to such unilateral
wage reductions, Burnett had insisted that wages were the Respondent's responsibility,
that wage rates could be left out of a bargaining agreement, and that the Respondent
should have the right to change rates whenever it deemed such action necessary.
Upon Benet's insistence that wages be included in a contract, Burnett asserted that
in such event the rates would have to be those he intended to put into effect, and
that he would not agree to freeze wages for the duration of a contract. He would also
want a wage-reopening clause or some "contingency" for rate revisions. Thereupon
Benet inquired whether the wage-reopening clause of the old contract would be agree-
able, and Burnett reserved decision 7 as to the inclusion of the clause.
Burnett had also requested elimination of arbitration, gearing of vacation pay to a
percentage of earnings exclusive of overtime, and reducing the 100 percent of aver-
age earnings formula to 80 percent (article 20). In addition he had indicated that
the Respondent would consider elimination of the no-strike clause, and that it might
want to change the grievance procedure.
Benet pointedly differed from Burnett's denial that the Respondent had pleaded
inability to pay in support of its position on wages, and attributed to Burnett the
specific claim that the Respondent had lost money for the past 6 months and had not
realized a profit for the past 2 years. It was for this reason, Benet wrote, that he
had requested substantiating financial data from Burnett which the latter had refused
to supply.
Finally, on this first day, Benet had accused Burnett of unfairness in coming in
with new demands after a lapse of 18 months in bargaining, and had proposed that
both sides revert to the demands made by them when the January 23, 1952, negotia-
tions were interrupted. He had then asked Burnett whether the Respondent would
agree to terms substantially like those of the old contract. This suggestion was turned
down. The July 22 session ended at this point.
During the negotiations of July 23, Benet inquired whether Burnett would agree to
inclusion of checkoff if the Union were to consent to elimination of arbitration.
Burnett replied that he, personally, would not agree to this, but that as he did not
have the "final say" he would have to consult with his associates. This evoked
inquiry from Benet as to Burnett's authority to make final decisions. Burnett de-
ferred answering this question. Later that day, with reference to the foregoing in-
quiry, Burnett told Benet that anything he signed as vice president would be binding
on the Respondent. Pressed for an answer as to his authority to make binding com-
mitments, he went no further than to repeat that Respondent was bound by what he
signed as vice president.
Benet had proposed an agreement on rates which would not include the down-
ward revisions Burnett intended to put into effect, with inclusion of the 6-month wage-
reopening clause of the old contract or a reopening clause of lesser time. Burnett
had responded that his wage-revision comments were not part of the bargaining and
that Benet's suggestion was not "in harmony" with his approach. Benet had next
requested information from the Respondent concerning individual hourly earnings of
knitting department employees for the previous year, and Burnett had acknowledged
the Union's entitlement thereto. Benet now consequently challenged Burnett's sub-
sequent offer by letter to make this data available only if the Union were to furnish
an accountant at its expense.
Benet had next expressed the Union's willingness to submit all unresolved issues
to arbitration. This was rejected. He had then proposed reaching agreement on
all issues as to which agreement was possible, excluding wages, and that a factfinding
committee be established to investigate and report its findings on wages. This pro-
posal would not have required the Respondent or the Union to be bound by the re-
port which would have served merely as a guide for resolving the wage issue. The
rights of the parties to strike or lockout were also to be reserved should there still
be disagreement after the report was received. Burnett then took the position that
wages were a management responsibility and rejected Benet's proposal.
T Benet's letter actually states that Burnett "revised" decision. I construe this as a
typographical error and infer from the general sense of the letter that what was meant
was that Burnett "reserved" decision.
VANETTE HOSIERY MILLS 1119
In the course of the July 23 , discussions Benet, according to his letter, had indi-
cated the Union's willingness to work out an agreement based on the Respondent's de-
mand for reduction of the 100 percent of average earnings formula to 80 percent pro-
vided there were agreement as to other remaining issues. He had also indicated the
Union's willingness to accept a clause permitting wage reopening in less than 6
months, and its willingness to exclude general wage revisions from arbitration. He
had then proposed that agreement be reached on all issues except wages and upon
the signing of a contract that the parties convene and form a wage tribunal con-
sisting of one representative of Respondent, another for the Union, and a third im-
partial member chosen by the other representatives. The wage issues in dispute,
namely the intended downward revision announced by Burnett and the previously
rescinded cost-of-living bonus, would be submitted to the tribunal whose majority
determination on these matters would be binding on the parties. Burnett wanted
time to study this latter proposal. The parties then agreed to meet again the fol-
lowing day, although Burnett at this point had attempted to break off negotiations in
view of his expressed feeling that progress was not being made.
On July 24, the last of these 3-day sessions, Benet, as stated in his letter, asked
Burnett whether his position had changed and was informed it had not. Burnett then
insisted upon the Union's counterproposals in writing, as hereinbefore related, and
Benet asked for written proposals from the Respondent. Benet then suggested a
mutual exchange of written proposals at the next meeting, but Burnett was firm in
his demand. Benet next advised that the Union was withdrawing its demand for 5
paid holidays and for changes in the insurance plan. He again asked whether Re-
spondent's position had changed and was told it had not. Burnett still insisted on
a written counterproposal from the Union before he would agree to another meet-
ing. Benet then requested various specific meeting dates, but Burnett would not
accede without written counterproposals first received by mail, and maintained this
position in spite of Benet's opposition to bargaining on less than a face to face basis.
After Benet brought up the subject of the Respondent's alleged discriminatory treat-
ment of employees as set forth in the amended charges, and Burnett insisted that this
matter be detailed in a letter to him, the meeting adjourned.
In his letter recounting the foregoing events and circumstances, Benet indicated
that he had set forth the Union's position in writing and stated:
Since both parties now have each others position in writing, I think it timely
that we set a date for the next bargaining conference so we can attempt to resolve
all of the issues that have not yet been resolved.
He thereupon proposed an August 20 meeting in Dallas. He further requested that
the Respondent furnish the financial data to support its claims of business losses
and lack of profits, and the earnings data for knitters which, according to Benet,
was required to enable the Union intelligently to discuss the Respondent's intended
rate reductions for these employees. He further requested the presence of Respond-
ent's president, Davis, at the next conference in view of Burnett's failure clearly
to state whether he had authority to make binding commitments.
H. The course of events between the July and September 1953 bargaining sessions
On August 3, 1953, Burnett sent a letter to Benet enclosing a copy of a notice of
the same date from the Respondent to its employees notifying them of certain down-
ward revisions of knitting rates. The notice contained the following statement:
This rate change was decided upon by the Company because of business con-
ditions. It is not for the purpose of interfering with collective bargaining, and
as a matter of fact, the union has not agreed to the change. We are putting
it into effect on Monday, August 10.
Burnett's letter to Benet stated:
In accordance with our conversation, this change is without prejudice to
collective bargaining . It is unnecessary for you to agree to this change, and, if
you wish, the issues of wages can remain open for discussion at any time, not-
withstanding any agreement we may reach on other issues.
Upon receipt of the foregoing letter and notice, Benet sent a telegram dated Au-
gust 6 to Burnett protesting what he termed Respondent's unilateral wage reduction
in the midst of contract negotiations, and requested an August 20 meeting with
Respondent. On the same day he sent Burnett the lengthy resume of the July nego-
tiations related above. The Respondent's office manager replied to the telegram
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on August 6 and informed Benet that Burnett and Respondent's counsel were on
vacation and that the telegram would be referred to the latter upon his return later
in the month.
Burnett had sent a copy of his August 3 letter with the notice of rate revisions
to the Regional Director, and also asked for suggestions concerning the Union's
demand for financial data made in the July meetings. As a guide to the Respondent
the Regional Director's answering letter, dated August 12, cited several Board
and court cases dealing with an employer's obligation to furnish requested data to
support its position on wages during bargaining. By letter to Benet, dated Sep-
tember 3, Burnett referred to the Regional Director's advice and indicated that in
compliance therewith he had enclosed a financial report for 1951 and 1952. He
stressed, however, that he had not and still was not arguing that his wage position
rested on a claim of the Respondent's inability to pay, but that he relied on de-
pressed industry conditions in justification of his view that wages should be modi-
fied. He further stated that in accord with the Regional Director's advice he would
in a few days furnish the Union's requested hourly earnings data and would con-
sider any other reasonable request for information concerning employee earnings.
With regard to the revised wage rates which the Respondent had recently put into
effect, Burnett had this to say:
We recognize the fact that wages are a bargainable and important issue. We
feel the responsibility for the wage alteration is entirely that of the Company
because the union has not accepted it as agreeable In changing wages we have
accepted, so far as the employees are concerned, the full responsibility. We are
willing to discuss the subject of wages without any restriction in future meet-
ings and make an agreement which is silent on wages, leaving both parties free
to discuss it and bargain on it and then incorporate any agreement which may
be reached as a supplement to the contract. Or, if you prefer, we will bargain
on the subject as a part of the whole agreement and not execute the contract
until all issues are settled
in the foregoing letter Burnett also asserted his authority to bind the Respondent
with his agreements during the negotiations He disagreed with Benet's factual
recital in his August 6 letter of what had transpired at the July meetings and ex-
pressed belief that Benet was engaging in "legalistic maneuvering with hypothetical
questions, demands, and other positions taken more for the purpose of harassing
the Company with legal proceedings than to further an agreement, and concluded
with a request for specific proposals" from the Union "embodied in a proposed agree-
ment prior to a further meeting " While he believed that such written contract
proposal submitted to him for advance study would permit more rapid negotiations,
he would not insist should the Union continue to decline to submit such written pro-
posal and would in any event meet with the Union
Benet replied to Burnett by letter dated September 8. In it he denied the accu-
sation that he had been indulging in."legalistic maneuvering" and in turn charged
Burnett with maintaining an adamant and arbitrary position in negotiations. He re-
iterated his repugnance to debates carried on by mail and requested instead a Sep-
tember 21 conference in Dallas to continue negotiations This arrangement was
agreeable to Burnett who wrote back informing Benet that the Respondent would
meet with the Union at the time and place requested.
1. The September 27, 1953, bargaining session
There are no documents in evidence detailing the September 21 negotiations.
The record contains only Benet's testimony as to what transpired on this occasion.
According to Benet, the parties reviewed each other's position and ascertained that
there were no changes since the July meetings. Benet enumerated the following
unresolved issues.
1. Wages -The Respondent's position was that the determination of wages
was its responsibility, and would reach agreement on this subject only on the
basis of the Union's acceptance of rates which the Respondent had determined
to put into effect in the future. The Respondent also favored leaving wage
rates entirely out of the contract. The Union on the other hand took the
position that wages were bargainable and that they should be included in the
contract. As an alternative, the Union proposed and the Respondent rejected
its suggestions for settling the wage issue through arbitration, a fact-finding
committee or a wage tribunal as hereinabove related in Benet's August 6 letter
VANETTE HOSIERY MILLS 1121
to Burnett. The latter's reasons for these rejections were (a) the depressed
condition of the industry, and (b) wages were the Respondent's responsibility.
2. Arbitration.-The Respondent was opposed to any form of arbitration in a
contract. The Union favored retention of this feature of the old contract,
but at one point of the bargaining had proposed elimination of arbitration for a
grant of check-off. This proposal was rejected.
3. Term of contract.-The Respondent favored a 1-year term as opposed to
the Union's request for a 2-year term. The Respondent also opposed the
Union's proposal for an automatic renewal provision.
4. Overtime pay.-The Union proposed and the Respondent rejected pay-
ment for time and one half for work in excess of 8 hours and for Saturday
work.
5. Vacation.-The Union proposed that the vacation provisions of the old
contract be retained with a modification which would give all employees a
vacation under an arrangement whereby employees would be deprived of
vacations if they had a record of 25 percent absenteeism, and for computing
their vacation time on a percentage basis if absent for 10 days. The Respond-
ent opposed the Union's proposal on the ground that it would increase operat-
ing costs, and instead proposed that the old contract provisions be modified
to provide less vacation time.
6. Senidrity.-The Union opposed the Respondent's proposal to modify the
seniority system under the old contract to provide for promotions from the top
30 percent.
7. Discipline and discharge -The Union opposed the Respondent's proposal
to change these contract provisions. Benet did not explicate the Respondent's
proposal, but it should be noted, as related above in the resume of Burnett's
July 28, 1953 letter, that the Respondent favored an American National In-
surance type clause.
8. Check-off.-The Respondent rejected this Union proposal.
Concerning grievances, Benet testified that the Union had at first differed with
the Respondent's position on the subject, but there had been no elaboration or
discussion of respective positions and that the parties could have gotten together on
this subject. As to the Respondent's proposed reduction of the 100 percent payment
to 80 percent, Benet testified that the Union had indicated its willingness to agree
provided there was agreement on the Union's other proposals.
Benet conceded in his testimony that the total area of disagreement between the
parties at the September meeting was. substantial, and that neither the Union nor
the Respondent gave indication at this meeting, or subsequently, of a willingness to
retract or modify its demands. No new matters, not previously considered, appear
to have been brought up at this session except that Benet inquired whether Burnett
would agree to a contract on the basis of the existing wage rates. Burnett replied,
according to Benet, that he probably would if the Union were to agree to the two-
machine operation which the Respondent had recently initiated and the rates set for
these operations by the Respondent. As set forth above, the Respondent on August
24, 1953, had unilaterally instituted two-machine operations on a trial basis and
had employed helpers to be trained for these jobs.8 Benet's testimony does not
disclose his response to Burnett's proposition, but that he turned it down may reason-
ably be inferred from the failure of the parties to reach agreement on wages and
from the fact that Benet charged the Respondent with bad faith by instituting the
two-machine operation without consulting the Union. Having in mind the asser-
tions in Burnett's letters to Benet that the latter had made "hypothetical proposals"
during the July conferences, counsel for the Respondent asked Benet during his cross-
examination whether such proposals were made at the September meeting. Benet
conceded that he had made a few "implied proposals" in an effort to narrow the
area of disagreement.
The September meeting terminated without agreement between the parties on a
contract. No date was set for resumption of negotiations despite Benet's request for
another meeting. In this connection there ensued Burnett's demand for a proposed
contract in writing as a condition for granting a meeting, and Benet's refusal to
comply with this demand for the reasons previously adverted to in this report.
These new operations provided for the manning of 2 machines by only 1 skilled
operator and a helper in lieu of the former practice under which each machine was
manned by a skilled operator
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. Analysis and conclusions
1. The Union's majority and the Respondent's alleged good-faith doubt thereof
According to well-settled Board and court precedent the majority of a certified
union is presumed to continue for 1 year from the date of the certification and,
absent proof of specially defined unusual circumstances, the union's majority status
within that period may not be rebutted. After the first year the majority status of
the certified union is presumed to continue indefinitely until shown to have ceased.
As distinguished from the situation prevailing in the first year of the certification,
the presumption of continuing majority may after the first year be rebutted even
in the absence of unusual circumstances, and this may be accomplished by direct
or circumstantial evidence. Where there is evidence to show directly that the union
after the first year of the certification does not in fact represent a majority of the
employees in an appropriate unit the employer is under no obligation to recognize
or bargain with the union as the representative of its employees. Circumstantial
factors such as the filing by employees of a decertification petition, a rival union claim
or petition, or disaffection from the union by a majority of employees are relevant
to a consideration of whether the presumption has been sufficiently rebutted to
release an employer from his obligation after the first year to recognize and bar-
gain with the certified union. Finally, after the first year of the certification, an
employer may decline to recognize and bargain with the union if he entertains a good-
faith doubt as to the union's majority .9
The Union holds a 1946 certificate from the Board as exclusive bargaining rep-
resentative of the Respondent's production and maintenance employees. The Re-
spondent's defenses that the General Counsel has failed to prove the Union's majority
and that it doubted in good faith the Union's majority must therefore be tested by
the foregoing principles. The General Counsel having proved the Union's cer-
tification, the legal presumption of its majority status became operative. It was
thereupon incumbent upon the Respondent to rebut the presumption by direct or
circumstantial evidence. No direct evidence was presented to show that in fact the
Union was not representative of a majority. Any challenge to the presumption must
therefore come from circumstantial evidence. The record shows that in 1952 the
union certificate was approximately 6 years old. Beyond that there is the claim in
the March 12, 1952, letter by President Davis of the Respondent that:
We are constantly told by people in our employment that they do not wish
the union to represent them. Some of the people whom you no doubt feel
desire union representation, insist that they want an election where they can
express their views by secret ballot.
Pertinent also is the July 31, 1952, letter by the Respondent's attorney, Scott, in
which he asserted that in February 1951, at the end of the 19-week strike waged by
the Union against the Respondent, "the great majority of employees were overwhelm-
ingly against the union" and that as a result of the strike factionalism had developed
in the plant. This in sum is the evidence which may be regarded as impugning
the presumption of continuing majority flowing from the Union's certificate. Assum-
ing, arguendo, that as a certification grows weaker through the passage of years
that the evidence required to rebut its presumptive force need not be as strong as
that required during an earlier and perhaps more vital period, I do not regard the
assertions and claims put forth in the foregoing letters as an effective attack upon
the Union's presumptive majority. Had there been in place of Davis' generaliza-
tions some numerical showing to indicate the scale of opposition among the em-
ployees to the Union, this evidence might have attained some formidability. As
it is, it is utterly impotent. All that it shows is dissatisfaction by some employees
with the Union. The inference is just as likely that the oppositionists constituted
a mere handful as it is that they were a sizeable group. Nor does Scott's letter
claiming that after termination in February 1951 of the strike against the Respond-
ent, the employees were "overwhelmingly" against-the Union contribute anything
to rebut the Union's presumptive majority, for this is merely a lawyer's argument
volunteered in correspondence with the Regional Director and obviously does not
qualify as proof.1° In these circumstances I am satisfied that on February 14,
g For a more elaborate exposition of the above principles see Celanese Corporation of
America, 95 NLRB 664, and the Board and court cases cited herein.
1° Scott's letter was received in evidence without a stipulation such as that pertaining
to Davis' letter that if called as a witness Scott would have testified consistently with
what he had written.
VANETTE HOSIERY MILLS 1123
1952, the Union had presumptive majority status by force of its certification as
representative of the Respondent's employees, and that the Union has continued
since then and still continues to maintain its presumptive status as the majority rep-
resentative of these employees.
I turn to the Respondent's defense that its good-faith doubt justified its refusal
to bargain with the Union. The Board, in its Celanese decision, supra, said,
By its very nature, the issue of whether an employer has questioned a union's
majority in good faith cannot be resolved by resort to any simple formula. It
can only be answered in the light of the totality of all the circumstances involved
in a particular case. But among such circumstances, two factors would seem
to be essential prerequisites to any finding that the employer raised the majority
issue in good faith in cases in which a union had been certified. There must,
first of all, have been some reasonable grounds for believing that the union had
lost its majority status since its certification. And, secondly, the majority issue
must not have been raised by the employer in a context of illegal antiunion
activity, or other conduct by the employer aimed at causing disaffection from
the union indicating that in raising the majority issue the employer was mere-
ly seeking to gain time in which to undermine the union.
As I construe the foregoing pronouncement by the Board, an employer's defense of
good-faith doubt cannot prevail in a refusal to bargain proceeding without a showing of
reasonable grounds for belief that the certified union has lost its majority, and where
there is a failure of such proof by the employer the General Counsel is relieved of the
necessity of showing that the majority issue was raised in a context of illegal anti-
union activities with the object of gaining time to undermine the union.li Because the
record contains no evidence, other than the assertions in the above-mentioned letters
by Davis and Scott, to show the basis for the Respondent's doubt as to the Union's
majority, I conclude that there were no reasonable grounds to support a good-faith
doubt, and that the Respondent's defense in this respect has not been sustained.12
While I am satisfied that the absence of sufficient reasons for doubting the Union's
majority is under the Celanese rule warrant for rejecting the Respondent's defense, I
allude to the following factors as additional support for this result. The Union's
petition signed by a majority of the Respondent's employees and presented by the
Union to the Respondent's vice president with opportunity for a cross check of signa-
tures was in my view not only proof that the Union on that date had a majority in
fact as well as law, but should have overcome any of the reasons advanced in this
proceeding by the Respondent to doubt the Union's majority.13 I have found that the
Respondent's vice president, Burnett, accepted the petition with the understanding that
he would cross check the signatures. I therefore regard President Davis' subsequent
letter rejecting the petition as proof of majority and denying its acceptance by Burnett
for a cross check as evidence of a broken promise which detrimentally reflects on the
Respondent's asserted good faith. Similarly indicative of the Respondent's lack of
good-faith doubt is Attorney Scott's August 25, 1952, letter to the Union forecasting
a bargaining conference if the Board were to sustain the Regional Director's dismissal
of the Respondent's RM petition, and his December 24, 1952, letter to the Union,
after the Board had on December 1, 1952, notified the parties that the dismissal of
the petition had been sustained, that the Respondent did not intend to accord recogni-
tion unless legally required to do so. I regard the promise by Scott in the same
letter to give legal advice shortly after January 1, 1953, to the Respondent as to its
obligation to recognize the Union, and the subsequent failure by Scott or the Respond-
ii Henry Heide Inc., 107 NLRB 1160, 1165, enfd. 219 F. 2d 46 (C. A. 2).
is Contrast the Respondent's asserted reasons with those held by the Board in the
Celanese case, supra, to give rise to the employer's reasonable doubt as to continuation of
the certified union's majority. In the Celanese case the doubt was based on the circum-
stance that after a strike conducted by the union 108 of the 310 employees were permanent
replacements of strikers, and 160 were former strikers who had crossed the picket lines
to return to work during the strike.
is The Respondent's brief argues that the petition should not be regarded as reflecting
more than the desire of the employees who signed it for an election. I disagree. The
petition clearly and succinctly states that its signers desire the Union to represent them
in collective bargaining with the Respondent. The brief also attacked the authenticity
of the signatures claiming that many of them had been forged. There is not a shred of
evidence in the record to support such attack on the petition.
387644-56-Vol. 114-72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent to communicate with the Union, necessitating the Union's inquiry of March 11,
1953, as evidence of unreasonable procrastination which further impugns the
Respondent's good-faith doubt. To the same effect is the Respondent's failure to test
the Union's majority by filing an RM petition with the Board in February 1952
before the Union filed its refusal to bargain charge.14
An especially convincing factor pointing to the Respondent's lack of good-faith
doubt was its full scale participation with the Union in the contract negotiations of
January 23, 1952, and the failure by the Respondent at any time or in any manner
to question the Union's majority in these negotiations.15 This conduct by the
Respondent strongly persuades me that the questioning by it on February 14, 1952,
of the Union's majority was merely an afterthought and not genuine. The January
23 negotiations appear to have been transacted as if the Respondent sincerely desired
to reach agreement on a new contract. The contacts between the parties after
this meeting to set another date for resumption of negotiations impressed me as show-
ing the earnest desire of the Respondent to continue bargaining. As nothing new
occurred between January 23 and February 14, 1952, to explain why on this latter
date the Respondent should suddenly doubt the Union's majority, I am constrained to
believe that this was a newly thought of excuse to forestall further bargaining.
In anticipation of this implication the Respondent argues in its brief that it did not
raise the majority question at the January 23 negotiations because it was legally
precluded from doing so. It advances the theory that because it was obligated under
the subsisting contract to bargain with the Union until the February 18 expiration
date, it could not before then have questioned the Union's majority without violating
Section 8 (a) (5) of the Act. This argument is erroneous. While it is true that the
contract compelled recognition of the Union until its expiration, neither the contract
nor the Act precluded the Respondent's refusal to negotiate a contract for a term
beyond the expiration date if the Respondent in good faith doubted the Union's
majority.16
In connection with all the foregoing factors, I have considered also the circum-
stance that the Respondent did finally agree to resume bargaining with the Union,
and the fact that it had a history of refusing to bargain with the Union which resulted
in a Board order and court decree. As to the resumption of bargaining, I am mind-
ful that it came after the General Counsel with Board authorization had decided upon
contempt proceedings in the Fifth Circuit, and that the Respondent, according to its
counsel, felt it was less expensive to bargain than to defend the contempt proceed-
ing. I am not impressed by this explanation of Respondent's consent to bargain, for
it does not square with its prior litigious attitude in connection with the reviews
sought from the dismissal of the RM petition. Nor is such surrender consistent
with the Respondent's seemingly principled unwillingness before then to bargain with
a union not representative of a majority to prevent thwarting the will of its em-
ployees. However, because I can conceive that a party engaged in litigation may
settle to avoid a possibly greater penalty or expense, even where settlement is at
the expense of principle, I do not at all rely upon the fact that in July 1953 the
Respondent resumed negotiations with the Union as evidence before then of its lack of
good-faith doubt as to majority. I do, however, give some, though small, regard to
the Respondent's history as a statutory violator as evidence of its bad-faith refusal
to recognize and bargain with the Union during the February 1952 and July 1953
period in view of Board and court precedent.17 My conclusion as to the Respond-
ent's violation of the Act for such refusal to recognize and bargain is, however, not
dependent upon the last-mentioned factor.
For the foregoing reasons, I find that the Respondent's refusal to recognize and to
bargain collectively with the Union as the representative of its employees from Febru-
ary'14, 1952, to July 22, 1953, constituted a violation of Section 8 (a) (5) and (1) of
the Act I further find that all changes in terms and conditions of employment uni-
laterally instituted by the Respondent during the foregoing period without consult-
ing or bargaining with the Union constituted per se conduct violative of Section
8 (a) (5) and (1) of theAct.18
'i I7ntted States Gypsum Company, 90 NLRB 964
167'oolci'aft Corporation, 92 NLRB 655
16 Compare with the Board's holding in Hinde & Dauch Paper Company, 104 NLRB 847.
where a refusal to sign a contract for a term longer than the certification year was not a
violation of the Act because of an absence of intent thereby to avoid good-faith bargaining.
Al L R B v Reed & Prince Mfg Co , 20.5 F 2d 131 (C A. 1), enfg 96 NLRB 850
16 International Furniture Company, 106 NLRB 127.
VANETTE HOSIERY MILLS 1125
2. The Respondent 's refusal to bargain in good faith in July and September 1953,
and its unlawful refusal thereafter to confer with the Union
Failure to reach agreement on a contract in the July and September 1953 bargain-
ing sessions is attributed by the General Counsel to the Respondent 's rejection of
the collective-bargaining principle enunciated in the Act. According to Benet's testi-
mony, the Respondent 's bad faith is demonstrated by the enlargement of its demands
at these sessions over its demands in the January 1952 negotiations , the less con-
ciliatory and more adamant attitude displayed by Burnett as contrasted with his
greater pliancy in January 1952, the denial by Burnett after the July meetings of
positions and reasons in support thereof taken by him at these meetings , his refusal
to bargain as to wages , the Respondent 's unilateral institution of changes in terms
and conditions of employment in the midst of the negotiations , and the stalling
tactic involved in repeatedly demanding written counterproposals or contracts from
the Union as a condition for further meetings. The Respondent asserts that it had
bargained in good faith albeit its refusal to submit to the Union's proposals or to
abandon its own demands , that the parties had bargained to an impasse which per-
mitted the unilateral economic actions taken by it in the course of the negotiations
and subsequently, and that failure to agree on a contract resulted from the Union's
desire to avoid agreement as evidenced by "legalistic maneuvering ," the filing of un-
fair labor practice charges which were later dismissed by the Regional Director,
the questioning of Burnett 's authority as a negotiator , the leveling of criticism by
Benet against the Respondent 's good faith, and the refusal by the Union to submit
written proposals or a contract in compliance with Burnett 's justifiable request there-
for.
The record of the January 23, 1952, bargaining, as hereinabove related, reveals
a genuine concern on this occasion by the negotiators on both sides for reconciling
their differences and reaching agreement . As indicated, there were several completed
agreements on proposals , others were agreed to in principle but were temporarily
tabled for further consideration, there were a few counterproposals from the Union
which were accepted by the Respondent, and finally there was agreement for con-
tinuation of the bargaining at a later date. Definitely, there was indication of prog-
ress toward a contract, and certainly there was nothing to show unwillingness by
either side to achieve that objective. A drastic departure in July 1953 from Burnett's
salutary bargaining methods at the January 1952 conference could signify, as Benet
testified , an obstructive attitude calculated to prevent rather than to achieve agree-
ment. Although I find, in accord with his testimony, that the Respondent had in
July 1953 changed and enlarged its former position , specifically as to arbitration and
wages, that Burnett was inconsistent in his several explanations of the Respondent's
financial position concerning wages , that there was initial reluctance to furnish
financial and wage data to which the Union was legally entitled, and that the Re-
spondent had adamantly refused to agree to the Union's demands or to make con-
cessions , I am reluctant to conclude therefrom that the Respondent entered the nego-
tiattons with a determination not to reach a contract. While these circumstances are
relevant to a determination of whether the Respondent bargained in good or bad
faith, reliance thereon would raise debatable questions which in this case can be
avoided because of the presence in the record of other tangible factors which clearly
impel the conclusion that the Respondent 's conduct during and after the July and
September 1953 meetings with the Union was violative of Section 8 (a) (5) of the
Act I refer specifically to the Respondent's stand during the negotiations on the
subject of wages, its unilateral actions during and after the negotiations , and its
refusal to continue the negotiations without resubmission of written counterpro-
posals or a contract by the Union.
With respect to the wage issue , I find, as Benet testified, that at the July 1953
meeting the Respondent took the position that it alone was responsible for all wage
revisions upon which it had already made up its mind, and that the only bargaining
it would permit on this subject was on the basis of its own predetermined rates which
it indicated would be made effective with or without the Union's agreement This,
in my view, was not just "hard" bargaining as the Respondent seeks to characterize
it in its brief This constituted foreclosure from bargaining of a vitally important
element of a labor contract. • ' Despite assurances by Burnett by letter or otherwise
that he recognized the bargainability of wages and his willingness to carry out the
Respondent 's statutory duty. in this respect , these utterances did not conform to the
Respondent's deeds. Thus on July 23, Benet had asked Burnett to supply hourly
earnings data for the knitting department, employees whose wages he said were to
be -revised, and Burnett had then acknowledged the Union's entitlement thereto.
In his September 3 letter to Benet, Burnett promised that he would' furnish the
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested data. However, the Respondent had already revised the rates for knitters,
having given the Union notice thereof by letter dated August 3. Burnett's advice
to Benet in his August 3 letter that the rate change was not intended by the Re-
spondent to interfere with the bargaining, and that the Union did not have to agree
to this action but could if it so wished, allow the subject of wages to remain open for
future discussion, does not alter the unilateral character of its fait accompli or
mitigate its damaging effect on the pending negotiations. In like manner, the
Respondent had flouted the Union's representative status by unilaterally instituting
the two-machine operations on August 24 without notice to or consultation with the
Union. Such unilateral action by an employer is violative of the Act even when
committed at a time when it is not engaged in contract negotiations with the repre-
sentative of its employees. Where it occurs during negotiations, it has, as I believe
it did in this case, the double vice of undermining the representative status of the
Union and of disparaging the collective-bargaining process. This, I find was not
only per se violative of Sections 8 (a) (5) of the Act, but also evidence of bad-faith
bargaining.19
I accord no merit to any defense that an impasse had occurred in the course of
the negotiations which left the Respondent free to embark on its program of uni-
lateral action. As to the August 10 wage revisions, there clearly could not have been
an impasse because the Respondent had not furnished the Union with the earnings
data of the affected employees before instituting the change. The matter so far as
the Union was concerned was still open. While the Union had on July 23 indicated
opposition to the Respondent's intended revisions, it had not yet bargained with the
Respondent on this issue to the point where it could be said that the parties were
stalemated and that further discussion would have been fruitless. If the Respondent
claims otherwise, how does it explain the incongruity of its September 3 letter offering
the earnings data as to which there would obviously have been no need if it had
regarded further bargaining on the issue as futile? Certainly, there could have
been no impasse on the two-machine operations because there had been no discussion
at all before their institution on August 24 relative to the Respondent's intention to
install these operations.
The disruptive impact of the Respondent's preemptive position on wages coupled
with its unilateral actions is clearly discernible. The record of the July and September
meetings shows that the wage issue was foremost among the unresolved matters under
negotiation. And this matter remained unresolved although at the last meeting in
September Benet had gone so far as to inquire whether Burnett would agree to a
contract on the basis of the existing rates including the unilateral revisions made by
the Respondent both before and after the start of negotiations in July. When, in
reply to this inquiry, Burnett required the Union's submission to the unilaterally insti-
tuted two-machine operations, thereby evoking a bad-faith accusation from Benet,
there was no further progress toward agreement on the subject. If in a literal sense
there was an "impasse" on wages, it was the result of the Respondent's unilateral ac-
tion, and thus the creation of its own unlawful conduct. The Respondent cannot,
therefore, justify the unilateral actions taken by it during the negotiations on the
ground that a genuine impasse existed lawfully permitting economic self-help of
this sort 20 The Respondent's April 5, 1954, unilateral rate revisions were, therefore,
also violative of Section 8 (a) (5) of the Act.
I accord no merit to the Respondent's contention that the Union deliberately sought
to avoid bargaining by obstructionist tactics. The Union's so-called "legalistic
maneuvering" referred to in Burnett's letter to Benet after the July meeting is not
clearly defined. However, if it means, as counsel for Respondent states in his brief,
that the Union had "maneuvered" to bring about Board contempt proceedings against
the Respondent in the Fifth Circuit, I find this charge wholly irrelevant to the issue
of whether the Respondent had bargained with the Union in good faith. I further
reject as unpersuasive the contention that the Union, by filing unfair labor practice
charges against the Respondent which were dismissed by the Regional Director for
want of evidence, was shown to have demonstrated bad faith in its contract negotia-
tions with the Respondent. In this connection it should be noted that the amended
charges of 8 (a) (3) and 8 (a) (1) conduct were filed months before the resumption
of bargaining in July 1953. I also regard as without merit the claim that by question-
ing Burnett's authority to make binding commitments in negotiations the Union was
blocking a contract. The inquiry was pertinent under the circumstances which pro-
voked it, and its repetition was occasioned by Burnett's ambiguous reply. Nor is
'9 L. L. Majure Transport Company, 95 NLRB 311, enfd. 198 F. 2d 735 (C A. 5).
so N. L. It. B. v. Andrew Jergens Co., 175 F. 2d 130 (C. A. 9) ; City Packing Company,
98 NLRB 1261.
VANETTE HOSIERY MILLS 1127
there merit to the defense that the Respondent's conduct was justified because the
Union allegedly insisted on terms which it knew in advance to be unacceptable, and
its refusal to make reasonable concessions in the face of the Respondent's persuasive
arguments . The record, as detailed above, shows that as between the Union and the
Respondent, the former was the more compromising during the July and September
negotiations , and this in the face of the Respondent's illegal unilateral actions.
Finally, I reject the contention that the Respondent was justified in its refusal to
meet with the Union after September 21 because of the latter's failure to submit
written counterproposals or a contract as requested by Burnett. Collective bargain-
ing as defined by Section 8 (d) of the Act does not contemplate negotiations through
the exchange of proposals and counterproposals by mail or by messenger service as
a substitute for face to face meetings where a party to negotiations is unwilling
to bargain on such basis .21 The Act expressly denotes that "to bargain collectively
is the performance of the mutual obligation of the employer and the representative
of the employees to meet at reasonable times and confer in good faith.... " tEmphasis
-supplied.] I construe this unqualified obligation to "meet" and "confer" as a require-
ment for the representative of both sides to engage in personal negotiations notwith-
standing the demand by one side and the refusal by the other to furnish written state-
ments of position, counterproposals, or an integrated contract at any time during the
course of negotiations. Accordingly, I regard the Respondent's refusal to meet and
confer with the Union after September 21, 1953, because of noncompliance with its
demands for written counterproposals or a contract to be violative of Section 8 (a)
-(5) of the Act .22
Assuming, arguenda, that if the Respondent's negotiators had become confused or
uncertain as to the Union's demands during negotiations, and that in this circumstance
it could lawfully have insisted upon a further statement in writing of the Union's
position before resuming bargaining, I am satisfied that the Respondent's condition
for granting another bargaining meeting did not spring from its doubt as to the Union's
demands. The Union's initial proposals had been submitted in writing to the Re-
spondent at the January 21, 1952, conference. These proposals were orally enlarged
only by the Union's proposal for modification of the vacation clause in the subsisting
contract. Evidently there was no doubt in the Respondent's mind on that occasion
as to the Union's specific demands, for no request for clarification or a restatement
in writing was registered by the Respondent. When negotiations were resumed in
July 1953, the Union's demands were identical with those of January 1952 except for
the withdrawal of the request for a general wage increase and its replacement with a
request for restoration of the cost-of-living bonus. Assuming that the Union's de-
mands were modified in the July meetings as a result of "hypothetical" proposals, and
that the Respondent thereupon became uncertain as to the Union's demands, Benet's
long and carefully detailed letter was sufficiently comprehensive to have eliminated
any doubt as to its position. So far as this record shows, nothing occurred on Septem-
ber 21, 1953, the last day of negotiations, to indicate that the Union's position had
become more complicated or confusing as a result of new or changed demands. Ac-
tually, little appears to have transpired on this last day in the way of new negotiations.
Thus, I find that the Union's proposals and demands as reflected by its written state-
ment of January 21, 1952, and Benet's August 6, 1953, letter were sufficiently ex-
plicit and complete to obviate a requirement for a further written statement of posi-
tion in order to familiarize the Respondent on and after September 21, 1953, with its
bargaining demands. In view thereof, the Respondent's insistence over the Union's
,objection for further written counterproposals or other statement of position as a
condition precedent to a meeting, impresses me as being a mere delaying tactic de-
signed to forestall bargaining and is a further indication of the Respondent's bad faith.
As evidenced by its unilateral wage revisions of April 25, 1954, and its failure to
reply to the Union's requests of April 7 and June 28, 1954, for resumption of bar-
gaining, the Respondent has determined to ignore the Union's representative claims.
Having found that the Union had and still retains its majority status, that the Respond-
ent did not entertain a good-faith doubt as to the Union's majority status, that the
21 In United States Cold Storaqe Corporation, 96 NLRB 1108, the Board in construing
Section 8 (d) declared, "It is elementary that collective bargaining is most effectively
-carried out by personal meetings and conferences of parties at the bargaining table.
Indeed, the Act imposes this duty to meet."
2 Cf. Jacobs Manufacturing Company, 94 NLRB 1214, enfg. 196 F. 2d 680 (C. A. 2).
See also Shannon & Simpson Casket Company, 99 NLRB 430, 434, where the Board re-
garded the insistence of the employer's negotiator for restatement of the union's proposals
in a completely integrated document as a condition of his consideration of the proposals
as an indication of bad-faith bargaining.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July and September 1953 negotiations had not been stalemated by a genuine impasse,.
and that neither the Respondent's insistence upon resubmission of a written state-
ment of position nor any of the other reasons advanced by it in this proceeding justi-
fied breaking off or not resuming bargaining relations with the Union, I find that the
Respondent by failing to meet with the Union pursuant to the foregoing requests has
refused and still refuses to bargain with the Union in violation of Section 8 (a) (5)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8 (a) (5) and (1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
It has been found that the Respondent has refused and still refuses to bargain, col-
lectively with the Union as the exclusive representative of the employees in the appro-
priate unit described herein. It will therefore be recommended that the Respondent
bargain collectively, upon request, with the Union as the exclusive representative of
the employees in the appropriate unit, and, if an understanding is reached, embody
such understanding in a signed agreement. It will also be recommended that the
Respondent cease and desist from unilaterally instituting any changes affecting wages
or other terms or conditions of employment of its employees without first consulting
with and bargaining with the Union concerning these matters.
Upon the basis of the above findings of fact, and upon the entire record in the.
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Vanette' Hosiery Mills is an employer within the meaning of Section 2 (2) of-
the Act and is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. American Federation of Hosiery Workers, AFL, is a labor organization within,
the meaning of Section 2 (5) of the Act.
3. All production and maintenance employees at the Respondent's Dallas, Texas,
mill, excluding office clerical employees, watchmen, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
4. On February 14, 1952, and at all times thereafter, the American Federation of
Hosiery Workers, AFL, was, and now is, the representative of a majority of the
Respondent's employees in the appropriate unit described above for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
5. By refusing from February 14, 1952, to July 22, 1953, to confer with the Union
as the exclusive representative of all its employees in the above-described appropriate
unit, the Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
6. By refusing on July 22, 1953, and at all times thereafter to bargain collectively
with the Union as the exclusive representative of all its employees in the above-
described appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
7. By unilaterally instituting the several changes in the terms and conditions of
employment of employees in the above-described appropriate unit as herein related,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
8. By the foregoing unfair labor practices the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, and has thereby engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
THE ]MIULTI-COLOR COMPANY ' 1129
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board , and in order to effectuate the policies of the Labor Management Re-
lations Act, we hereby notify our employees that:
WE WILL bargain collectively upon request with American Federation of
Hosiery Workers , AFL, as the exclusive bargaining representative of all our
employees in the appropriate unit described below with respect to rates of pay,
wages, hours of employment , and other terms and conditions of employment,
and, if an agreement is reached , embody such understanding in a signed con-
tract. The appropriate unit is:
All production and maintenance employees at our Dallas , Texas, mill, ex-
cluding office clerical employees , watchmen, guards , and supervisors as
defined'in the Act.
WE WILL NOT unilaterally institute changes affecting the terms and condi-
tions of employment of employees in the bargaining unit described above with-
out first consulting and bargaining with American Federation of Hosiery
Workers, AFL, as the exclusive bargaining representative.
WE WILL NOT in any other manner interfere with the efforts of American
Federation of Hosiery Workers, AFL , to bargain collectively with us or refuse
to bargain collectively with said Union as the exclusive representative of the
employees in the bargaining unit set forth above.
VANETTE HOSIERY MILLS,
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.
The Multi-Color Company and Truck Drivers Local Union No.
299, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , A. F. L. and Charlotte
Hollenbeck , Eve Davis and Marie Swinyar, Individuals and
Members of the Employees Committee of The Multi-Color
Company, and the Employees Committee of The Multi-Color
Company. Case No. 7--CA-1243. November 16, 1955
DECISION AND ORDER
On August 9, 1955, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and,
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner also found that the
Respondent Company had not engaged in certain other, unfair labor
practices alleged in the complaint. Thereafter, the Respondent, the
General Counsel, and the Union filed exceptions to the Intermediate
Report and the Respondent and the Union filed briefs in support of
their exceptions.
114 NLRB No. 168.