Osage Manufacturing Co.

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Osage Manufacturing Company and Missouri-Kansas- Nebraska-Oklahoma District Council, Interna- tional Ladies' Garment Workers ' Union, AFL- CIO. Case 17-CA-3363 October 30, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On May 23, 1968, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. General Counsel filed a Motion to Strike Respondent's Brief and a Motion to Correct. Respondent filed a Reply to the Motion to Strike. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has dele- gated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief,' and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified herein ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that Respondent, Osage Manufacturing Company, Osage City, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as so modified • 1. Add the following as paragraph 2(e), and reletter the following paragraphs accordingly: (e) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amend- ed, after discharge from the Armed Forces. 2. Add the following as the last indented para- graph of the Appendix attached to the Trial Examiner Decision. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 1 Because of our Decision in this case , we find it unnecessary to pass on General Counsel's Motion to Strike Respondent 's Brief 2 Under our established policy not to overrule a Trial Examiner's credibility findings unless a clear preponderance of all the relevant evidence convinces us that they were incorrect , we find no basis for disturbing the credibility findings made by the Trial Examiner in the case Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A 3) In the absence of opposition, General Counsel 's motion to correct an error in the Trial Examiner 's Decision is granted , and it is found that Respondent in late June or July 1967 repudiated the agreement, withdrew recognition , and made unilateral changes in working conditions TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER,Trlal Examiner This proceeding, with all the parties represented, was heard on March 21 and 22, 1968, at Kansas City, Missouri, on the complaint of the General Counsel issued on November 30, 1967,1 which was subse- quently amended, and the amended answer of Osage Manufac- turing Company, herein called the Respondent In issue are the questions (a) whether the Respondent violated Section 8(a)(5) of the National Labor Relations Act by repudiating its collective-bargaining agreement with Missouri-Kansas- Nebraska-Oklahoma District Council, International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, during the contract term, by unilaterally changing terms and conditions of employment, and by withdrawing recognition of the Union as the exclusive bargaining representative of its employees in an appropriate unit, (b) whether the Respondent discharged employee Dixie Osborn and Mabel Dowell because of their union or concerted activities, in violation of Section 8(a)(3) of the Act, and (c) whether by the foregoing and other conduct it interfered with, restrained and coerced employees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act At the close of the hearing the parties waived oral argument Although afforded the opportunity, only the General Counsel and the Union thereafter filed briefs in support of their respective positions. I The complaint is based on a charge filed on October 5, 1967, by Missouri-Kansas-Nebraska-Oklahoma District Council, International Ladies' Garment Workers' Union , AFL-CIO, a copy of which was duly served upon the Respondent the same day by registered mail An amended charge was filed and similarly served on November 20, 1967 173 NLRB No. 73 OSAGE MFG CO Upon the entire record," and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following FINDINGS AND CONCLUSIONS I THE BUSINESS Of, THE RESPONDENT The Respondent, a Kansas corporation, is engaged in the business of manufacturing ladies' ready-wear clothing at its plant in Osage City, Kansas During the period from May 30, 1966, to May 30, 1967, the Respondent sold and shipped apparel manufactured in its plant of the approximate value of $49,000 to customers located outside the State of Kansas On or about September 19, 1966, the Respondent became a member of Kansas City Garment Manufacturers Association, herein called the Association, an organization composed of employers in the Metropolitan Kansas City and adjoining areas who are engaged in the manufacture of ladies' garments. The Association has as its primary purpose the representation of its members in collective bargaining with the Union. Although not a member of the Association when the latter executed its current agreement with the Union, the Respondent, upon joining the Association, expressly adopted this agreement and promptly implemented it One of the Association members is Frances Gee Garment Company whose annual sales of goods manufactured in its plant in Kansas City, Missouri, which are shipped directly to customers located outside that State, exceed $2,500,000 In view of the foregoing, I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act As the combined operations of all the members of the Association are relevant to a determination whether the Board should assert jurisdiction,3 I find that it would effectuate the policies of the Act to do so in this case II THE LABOR ORGANIZATION INVOLVED As the Union admits employees into membership and exists for the purpose of negotiating and administering contracts with employers concerning wages, hours and other working conditions, I find that it is a labor organization within the meaning of Section 2(5) of the Act. 2 The General Counsel's unopposed motion to correct the transcript of testimony, notice of which was duly served on all the parties, is hereby granted and the transcript is corrected in the respects therein requested. In addition , since it appears from the transcript that G C. Exh. 5 For Identification was not received in evidence , the reporter's contrary notation on the exhibit is hereby amended, on the Trial Examiner's own motion , to reflect the record. 3 Belleville Employing Punters, 122 NLRB 350 4 Also identified in the contract as a union party is Kansas City Joint Board, ILGWU. 5 The contract defines the bargaining unit as consisting of all non-supervisory production , maintenance , packing and shipping workers employed by said Employer- lexcluding l officers or ex- III THE ALLEGED UNFAIR LABOR PRACTICES A The Evidence 1 Establishment of contractual relations, subsequent repudiation of the contract and unilateral changes, the arbitration award 459 As indicated above, the Respondent in September 1966, became a party to the Association's collective-bargaining agreement with the Union,4 which was executed on June 1, 1966, for a term expiring on May 31, 1969, with provision for automatic renewal.' In conformity with this agreement, the Respondent instituted at its plant the terms and working conditions therein prescribed, including the wage rates, a 7-hour day with time and a half for overtime, health and welfare fund contributions and the checkoff of union dues. On January 23, 1967, the Association, on behalf of some of its members including the Respondent, entered into a Supple- mental Agreement with the Union raising the wage rates of certain employee classifications There is nothing to indicate that the Respondent did not comply with the new wage rate schedules. Assertedly finding itself financially unable to continue to operate under the terms of its agreement with the Union, the Respondent in the latter part of June or early part of July 1966, repudiated the agreement, withdrew recognition of the Union as its employees' bargaining representative,6 reduced the existing wage rates, increased the normal workday from 7 to 8 hours at straight time, discontinued health and welfare fund contributions, and terminated the union dues checkoff This it admittedly did without notice or consulting with the Union. The Respondent informed the employees of these changes, giving them the option of working under the new wage scales and conditions or quitting their jobs It appears that an undisclosed number remained in the Respondent's employ When the Union learned that the Respondent was no longer honoring its contractual commitments but was operating under inferior working conditions it had unilaterally established, the Union sent the Respondent a letter in which it complained about the contract violations, requested inspection of com- pany payroll records? and demanded that it pay wage deficiences due the employees The Respondent, however, ecutives of the Employers, designers , assistant designers , supervisory personnel , instructors , pattern makers , mechanics, lead order fillers, and office and plant clerical workers 6 It also appears that the Respondent 's membership in the Associa- tion terminated on August 1, 1967, by reason of nonpayment of dues 7 Article XXI of the parties' bargaining agreement provides 2 The Employer shall, upon request , submit to representatives of the Union within ten (10) working days after said request is made the payroll books and all other pertinent records for examination for the purpose of ascertaining whether the Employer has complied with the terms of this agreement 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ignored these demands with the result that the Union submitted its complaint to arbitration, as provided in the bargaining agreement where a dispute was not satisfactorily settled between the parties 8 The arbitration proceeding was held on September 28, 1967,9 in Kansas City, Missouri, which the Respondent's president, C R Allemang, Union representatives and employ- ees Dixie Osborn, Mabel Dowell, Evelyn Ross and Sandra Thompson attended Osborn, who was the Union's shop chairlady, and Dowell, Local 409's secretary-treasurer, were present at the Union's request Litigated in that proceeding was the Respondent's asserted breach of contract in unilater- ally altering wage rates and other working conditions. After taking testimony, including Allemang's, the arbitrator found in favor of the Union Since the Respondent did not comply with the arbitrator's award, the Union on November 29 sent the Respondent a letter in which it stated, among other things, that No answer has been received to our recent inquiry as to your compliance with the decision of the arbitrator in the matters recently heard, resulting from your violations of the labor contract, nor have you told us when auditors named by the Union could have access to company records for the purpose of computing the amounts owed If we do not hear from you on these matters by Monday, December 4, 1967, we intend to file an appropriate action against your company in the United States District Court for the District of Kansas for redress and damages sustained as a conse- quence of your contract violations You may guide yourself accordingly No evidence, however, was presented at the instant Board proceeding as to what court action, if any, the Union had subsequently taken to enforce the arbitrator's award 2 Osborn's and Dowell's separation Dixie Osborn was a single needle machine operator in the Respondent's employ for about a year In the evening of September 27, while Osborn was in layoff status,' 0 the Respondent's president, C. R Allemang, made a telephone call to her home to advise her that about 2 weeks' work was coming in and to ask her to report at the plant. Because Dixie Osborn was away from home to attend the above-mentioned arbitration proceeding scheduled to be heard the next day, Allemang spoke to her husband, Walter Whether Allemang learned of Dixie's contemplated presence at the arbitration hearing from her husband or confirmed his prior suspicion, it is undisputed that at this time Allemang was fully aware of Dixie's intentions. A sharp exchange of words between Allemang and Walter Osborn then ensued with the latter remarking that Allemang was operating a sweat shop and was in trouble with the Union This evoked uncomplimentary comments from Allemang about that organization and those employees who would attend the arbitration hearing and a disavowal that he "belong[ed] to the union" any longer There is an irreconciliable conflict in testimony as to whether Allemang made any statements concerning the future status of employees who attended the arbitration hearing Walter Osborn testified that Allemang declared that "any of the girls going to the arbitration-were fired from his place " Allemang, on the other hand, denied making that statement. However, he admitted that, although the expected work, some of which Dixie Osborn was capable of performing, did come in, he never asked her to return to the plant to do any of it I find Walter Osborn's testimony that Allemang made the statement in question very convincing and, indeed, consistent with the events that followed Thus, Allemang did not request Dixie Osborn to report for work when he met her at the arbitration hearing, despite the fact that he admittedly had called her home for that purpose the preceding evening Nor, for that matter, did he make any effort to communicate with her thereafter, except when he sent her a letter on November 27, purportedly offering her reinstatement after unfair labor practice charges in this case had been filed.' Moreover, the likelihood that Allemang actually made the discharge declara- tion to Walter Osborn is further indicated by employee Mable Dowell's credited testimony, later discussed, concerning her telephone conversation with Allemang in which he confirmed the information that she, too, was fired Accordingly, I credit Walter Osborn's testimony and find that Allemang told him that the employees who attended the arbitration hearing were discharged Following the conclusion of the arbitration proceeding on September 28, employees Dixie Osborn, Dowell, Thompson and Ross, left for home While en route by automobile, they met Dixie's husband, who was also driving on the highway. Both cars stopped and Dixie spoke to her husband who informed her that Allemang had called him on the telephone the night before and told him that the girls who went to the arbitration hearing were fired Dixie thereupon returned to the car in which she was riding and conveyed this information to her coworkers As soon as Dowell arrived at home she telephoned Allemang to ascertain her status as an employee with the company 12 Dowell testified that she opened up the conversation by saying that she heard that she no longer had a job and that she was fired and Allemang replied, "That's right " Dowell further testified that Allemang then told her to come to the plant on Friday (September 29) to pick up a check that was due her for the previous week she had worked,' 3 adding that he had something to tell her which he could not do over the telephone However, Dowell testified, she stated that she could not be at the plant Friday but would be there a few days later According to Allemang's version, the following occurred [Dowell] called me about 8 or 8 30 that evening. The first thing she said was, "I understand I am fired " I said, "You are9 That's news to me. I am the last one to know about it " She says, "I am fired." I says, "Why don't you 8 Article XXVIII 9 Unless otherwise indicated, all dates refer to 1967. i o For some time the Respondent has been experiencing difficulties in securing sufficient contract work to keep its plant in full operation. As a result, there have been at different periods during the year a number of layoffs or short workweeks Osborn was last laid off about September 14 No claim is made that this layoff was discriminatory i t Whether this letter constituted an unconditional offer of rein- statement will be considered in the remedy section of the Trial Examiner's Decision 12 The other two employees , Thompson and Ross , who had also attended the arbitration hearing, are not involved in the instant case 13 Dowell had worked 30 hours during the week ending Wednesday, September 27 OSAGE MFG. CO. 461 come in and talk to me, Mabel " She said, "I will be in Saturday." I said, "I will wait for you " She had a check to pick up Allemang further testified that Dowell, however, did not show up on Saturday. I find it extremely difficult to believe that Dowell, who had been in Allemang's employ, with certain interruptions, over a period of 9 years and who was regarded by the Respondent as one of its best employees, would insist on being considered terminated, if Allemang had actually given her any reason to believe that she had not been discharged. This is all the more improbable since Dowell did not impress me as an individual who would deliberately decline employment and contrive a story which would subject her employer to charges of discrimination For these reasons, I credit Dowell's testimony On October 5, Dowell came to the plant for her check Allemang stated that he would have work for her and asked whether she was interested in coming in Dowell answered that she understood that she had been fired. Apparently referring to their September 28 telephone conversation, Allemang asserted, in effect, that she had misinterpreted his remarks and denied that he had fired her He then reverted to his offer, telling her that if she wanted, she could come to work the following Monday (October 9) and that, if she did not, he would conclude that she had quit Dowell replied that she would return to work Monday. At about this point, Dowell asked employee Flossie Duffy, who was working at a nearby table, for her monthly union dues.' 4 Duffy refused to pay them for the reason that as long as she did not do so she was not in the Union. Observing Dowell's effort to collect dues from Duffy, Allemang ordered Dowell to "just forget about the union and-lust forget about coming in Monday " In reply to Dowell's remark that he would be sorry, Allemang stated that he was already sorry On this note, Dowell left the plant.' S 3 The Respondent's other acts Dixie Osborn testified that in early May she telephoned President Allemang at his home and advised him that she had been nominated for the Union office of shop chairlady and inquiry whether, if she accepted that position, they could still remain friends and discuss union matters on an amicable basis She further testified that Allemang answered that, although he could not tell her that she could not accept that position, the two "girls" who previously held that position, now traveled 50 miles a day to work Allemang denied the statements imputed to him, asserting that he wasn't even aware that Osborn was shop chairlady However, Allemang testified that he knew the two employees Osborn referred to, that they had quit the Respondent's employ, and that they now were obliged to travel 35 miles to reach their present jobs Osborn testified to another conversation she had with Allemang in the plant one morning in the last week in August, as follows Allemang told her that while he was in Kansas City he had received some disturbing news that she was the one who had called the Union the day the "union man" appeared at the plant When Osborn denied the accusation, Allemang retorted that he still had a few friends in Kansas City. Allemang testified that he never had the conversation in question However, in an affidavit which he had signed and given to a Board agent at a time when the charges in this case were under investigation, Allemang admitted that he had a conversation with Osborn in which he told her, in substance, that he understood that she had contacted Curtis, a union representative 16 When confronted with this statement on cross-examination, Allemang testified that he still could not recall the incident I find that Osborn's recollection of both conversations related above is more reliable than Allemang's and I accord- ingly credit her testimony. Mabel Dowell testified that about 8 o'clock in the morning of September 11, as she was getting out of her car to report to work, Allemang approached her After informing her that there was no work for her and that he had unsuccessfully tried to reach her before," he warned that, if any girls attended a union meeting they would be automatically discharged Allemang remembered this occasion but categorically denied that he mentioned the Union or made any threats concerning attendance at union meetings It is noted that the conversation in question took place at a time when the Union was complaining about the Respondent's contract violations and unilateral changes in terms and conditions of employment. Viewing Dowell's testimony in light of Allemang's total rejection of the Union as the employees' bargaining representative and the fact that Dowell has in other respects impressed me as a reliable witness, I credit her testimony that Allemang made the threat concerning attendance at union meetings. B Concluding Findings 1 With respect to the refusal to bargain It is undisputed that during the term of the parties' collective-bargaining agreement, the Respondent withdrew recognition from the Union as the employees' exclusive representative, repudiated that agreement and, in complete disregard of its contractual commitments, unilaterally reduced 14 As secretary-treasurer of the Union 's Local 409, which appar- ently assisted in servicing the parties ' collective -bargaining agreement, Dowell's duties included the collection of union dues As previously shown, Allemang had discontinued the dues checkoff provided for in the contract. 15 The foregoing findings are based on Dowell 's credible testimony which, in all but one material respect , was corroborated by Duffy, a witness produced by the Respondent Concerning this item of variance, Duffy testified that when she and Dowell were talking about the Union, Allemang addressed both of them and simply said, "That's enough" and Dowell left the shop She specifically denied that Allemang told Dowell not to return to work Monday However, Allemang himself admitted that he had fired her on this occasion. In view of the foregoing, I accept Dowell's account of this episode 16 The relevant portion of the affidavit reads, as follows Around the latter part of August or first part of September 1967, I had a conversation with Dixie Osborn at the Company facility sometime during the afternoon I told Osborn "I understand you contacted Curtis," or words to that effect-I do not remember the exact phrasing and I do not remember whether I phrased it in terms of "I heard some disturbing news" regarding Dixie contacting Curtis Dixie replied, "No, I didn 't " I don't remember what else was said, it was a short conversation 17 No discrimination is charged in this layoff 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the wage rates, increased the workday from 7 to 8 hours at straight time, discontinued health and welfare fund contribu- tions and terminated the dues checkoff, without the Union's consent, much less without even consulting that organization Such conduct, under settled law,' 8 was a flagrant violation of the statutory bargaining obligation the Respondent owed both to the Union and the Company's employees, which economic necessity cannot excuse 19 As one court recently noted'20 "The Act not only protects the employees from the direct economic effect of the employer's unilateral action, but also forbids the bypassing of the collective-bargaining agent, for this would undermine the union's authority by disregarding its status as the representative of the employees " Indeed, Section 8(d) of the Act,21 which defines the bargaining obligation of both employer and union, explicitly prohibits during the life of an existing agreement its termination or the modification of any of its terms, by either party without the consent of the other, except under specified conditions not here applicable Certainly, the Board is not powerless to determine whether an unfair labor practice was committed and to afford appropriate remedial relief simply because the conduct in question happens also to be a breach of contract 22 This is particularly so where, as here, the Respondent's actions have a continuing impact on their working conditions and their basic statutory right to representation with respect to these matters of vital concern to their economic interests Accordingly, I find that the Respondent's withdrawal of Union recognition, its repudiation of their contract, and its unilateral changes of terms and conditions of employment, all in derogation of its bargaining obligation under Section 8(d), violated Section 8(a)(5) and (1) of the Act In so finding, I have considered the fact that pursuant to the parties' contract, the Union had previously submitted to binding arbitration the Respondent's unilateral changes in breach of their agreement, and that the arbitrator, after the matter was fully litigated by the parties, ruled in the Union's favor Under the particular facts of this case, I do not believe that the Board should withhold its authority to adjudicate the unfair labor practice issues It is quite clear that the question before the arbitrator did not reach the Respondent's repudiation of the bargaining contract in its entirety and the Union's representative status Since the unilateral action is so inseparably interwined with the questions not litigated in the arbitration proceeding and, indeed, is but one aspect of the Respondent's unequivocal rejection of the collective bargaining principle embodied in the statutory scheme, the determination that the Respondent violated the Act does not conflict with the Board's recognition 18 C & S Industries, Inc , 158 NLRB 454, 457-459 , Kinard Trucking Company, Inc, 152 NLRB 449, 450-451,C& CPlywoodCorporation, 148 NLRB 414, 415 , set aside 351 F 2d 224 (C.A. 9), reversed 385 U.S. 421, Ref-Chem Company , 169 NLRB No 45, cf. United Aircraft Corporation (Pratt & Whitney Division), 168 NLRB No 66, TXD 19 C & S Industries, supra, 460 20 Leeds & Northrup Company v NL.R B, 391 F 2d 874 (C.A. 3), enfg 162 NLRB 987 21 Insofar as pertinent , Section 8 (d) provides That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce , the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract unless the party desiring such termination or modification [ complies with four specified require- ments] and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the of arbitration as "an instrument of national labor policy for composing contractual differences s2 3 Manifestly, the arbitra- tion award herein was not such as to "put the statutory infringement finally at rest in a manner sufficient to effectuate the policies of the Act "24 I, therefore, conclude that the Respondent violated Section 8(a)(5) and (1) of the Act in the respects indicated above 2 With respect to discrimination I have found above that the Respondent on September 27, 1967, discharged employees Dixie Osborn, the Union's shop chairlady, and Mabel Dowell, the Local secretary- treasurer, because they had attended the arbitration proceeding, which the Union had initiated on behalf of the employees to vindicate their complaints that the Respondent had unilater- ally imposed lower wage rates and other inferior working conditions than those prescribed in the collective-bargaining agreement No claim is made that they were not privileged to attend, as the Union had requested them to do. Since arbitration was the agreed-upon method for preserving and enforcing contractual rights, Osborn's and Dowell's participa- tion in that procedure was but an extension of the concerted and union activity which had previously resulted in the consummation of the parties' collective-bargaining agreement Activity of this type is clearly the exercise of a right guaranteed by Section 7 of the Act 25 Therefore, by discharg- ing these two employees in reprisal for such activity, the Respondent discriminated against them to discourage member- ship in the Union within the meaning of Section 8(a)(3) of the Act and interfered with, restrained and coerced employees in the exercise of their guaranteed rights in violation of Section 8(a)(1) of the Act. With respect to Dowell, I find, in addition, that the Respondent on October 5, 1967, also discriminatorily dis- charged her in violation of the same statutory provisions Thus, shortly after Dowell on that day accepted the offer of Respondent's president, Allemang, to report for work the following Monday, Allemang abruptly withdrew the offer because Dowell proceeded to solicit union dues from employee Duffy. Absent evidence that Dowell's conduct violated a valid no-solicitation rule, her collection of union dues was mani- festly a form of protected union activity and a discharge for that reason was discriminatory and an unlawful infringement of employee rights Accordingly, I find that Dowell's discharge on October 5 was also violative of Section 8(a)(3) and (1) of the Act. terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the con- tract . (Emphasis added ) See also C & S Industries, supra, 457 22 Id. at 458 ,Kinard Trucking, supra, 450 23 International Harvester Company, 138 NLRB 923, 926, enfd sub nom Ramsey v N L R B, 327 F 2d 784 (C A 7), cert denied 377 U.S. 1003. 24 C & S Industries, supra, 460, Cloverleaf Division of Adams Dairy Co, 147 NLRB 1410, 1416 25 Cf Bunney Bros Construction Company, 139 NLRB 1516 In relevant part, Section 7 provides that "[ e]mployees shall have the tight to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . " OSAGE MFG CO. 463 3. With respect to other interference with and restraint and coercion of employees As found above, in May 1967, Allemang, in an obvious effort to dissuade employee Osborn from accepting the position of shop chairlady, alluded to the fact that two of her predecessors who had occupied that office were no longer in the Respondent's employ and were obliged to commute 50 miles a day to their present jobs. In the following August, Allemang accused Osborn of being responsible for a Union respresentative's appearance at the plant apparently to investi- gate employee complaints and asserted that he still had an undisclosed source for securing information of this nature. Lastly, on September 11, 1967, Allemang warned employee Dowell that employees would be terminated for attending union meetings. It requires no extended discussion that Allemang's conduct was an unwarranted encroachment upon employees' self-organizational rights and constituted interfer- ence with, restraint and coercion of employees proscribed by Section 8(aXl) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent as described in section I, above, have a close, intimate and substantial relation to trade, traffic and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and its free flow V THE REMEDY Pursuant to Section 10(c) of the Act, as amended, I recommend that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and take certain affirmative action designed to effectuate the policies of the Act Since the Respondent, in derogation of its statutory obligation, withdrew recognition of the Union as the employ- ees' exclusive bargaining representative in an appropriate unit and repudiated its collective-bargaining agreement with that organization in its entirety, I recommend that the Respondent be ordered to recognize the Union's representative status, reinstate their agreement, and give immediate and full effect to its terms including, but not limited to the provisions relating to wages, benefits, hours of employment, overtime and incentive rates, and the checkoff of union dues In addition, it is recommended that the Respondent be directed specifically to rescind the wage reductions and other unilaterally instituted changes in terms and conditions of employment and to refrain from altering wages, hours and other working conditions during the term of the collective-bargaining contract covering the employees involved, without first reaching agreement with the Union concerning such contemplated changes 26 To prevent an employer from reaping the benefits of his unlawful unilateral action and in order to restore the status quo ante, it has been the Board's customary policy to direct the employer to reimburse employees for the loss of moneys suffered in consequence of such action 2 7 However, the Board has observed that reimbursement is not "an automatic or inflexible remedys28 to be applied in all circumstances In view of the fact that the Union had previously invoked arbitration to enforce the employees' contractual rights vio- lated by the Respondent and had secured a favorable award which, by letter dated November 29, 1967, it advised the Respondent it intended to enforce in the Federal court,29 I find sufficient reason to withhold this reimbursement remedy in this case 30 I have found that the Respondent unlawfully discharged employees Osborn and Dowell because of their union and concerted activities. To redress these unfair labor practices, I recommend that the Respondent be ordered to offer these employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, unless a prior valid unconditional offer of reinstatement has already been made to these employees 31 Because it appears that the Respondent has been experiencing work shortages requiring either a complete shutdown or curtailed operations, utilizing less than a full complement of employees or a short workweek, the Respondent shall offer Osborn and Dowell employment to available jobs on the same nondiscriminatory basis prevailing prior to their discharge. The Respondent shall make these employees whole for any loss of earning they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which she normally would have earned from September 27, 1967, the date of her discharge, to the date of the offer of reinstatement, less her net earnings during the said period. Of course, no backpay will be due for any period during which work would not have been available to her on a nondiscrimi- natory basis Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and Isis Plumbing & Heating Co, 138 NLRB 716. To facilitate the computation, as well as to clarify the named employees' rights to reinstatement and employment, the Respondent shall make available to the Board, upon request, payroll and other records necessary and appropriate for such purposes. The posting of a notice is also recom- mended In view of the nature of the discrimination for union and concerted activity which "goes to the very heart of the Act,s3 2 and the other unfair labor practices here found, there 26 C & S Industries, Inc., 158 NLRB 454, 460-461. 27 C & S Industries, supra, 461, 466, Kinard Trucking Company, Inc, 152 NLRB 449, 452, Leeds & Northrup Company, 162 NLRB 987, enfd 391 F 2d 874 (C A 3). 28 Leeds & Northrup Company, supra. 29 United States District Courts have jurisdiction to enforce arbitration awards See Section 301 of the Labor Management Relations Acts, 1947, United Steelworkers of America v Enterprise Wheel and Car Corp, 363 U S 593. 30 In his brief, the General Counsel , alluding to the arbitration award, agrees that "a make-whole order is not essential in the setting of the peculiar facts of the instant case " 31 There is some evidence in the record that the Respondent had already made an offer of reinstatement to these employees However, whether this was an unconditional offer which would obviate any further offer or serve as a cutoff date for the Respondent's backpay liability was not fully litigated Determination of this question will be left to the compliance stage of this proceeding. 32 NL R B. v Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4) 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accord- ingly, I recommend that the Respondent cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act 3 3 Upon the basis of the foregoing findings of facts and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All nonsupervisory production, maintenance, packing and shipping workers of the employer-members of Kansas City Garment Manufacturers Association who are parties to the Association's 1966 agreement with the Union, excluding officers or executives of the employees, designers, assistant designers, supervisory personnel, instructors, pattern makers, mechanics, lead order fillers, and office and plant clerical workers, constitute a unit appropriate for purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4 At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5 By untimely withdrawing recognition from the Union as the exclusive representative of the employees in the aforesaid appropriate unit; by repudiating its current collective-bargain- ing agreement with the Union in its entirety and refusing to honor the terms and conditions of employment therein provided during the life of said agreement, and by making unilateral changes in wages, rates of pay, health and welfare benefits, hours and other terms and conditions of employment of its employees in the above-described appropriate unit during the term of the above contract, without the Union's consent, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By discriminating in regard to the hire and tenure of employment of Dixie Osborn and Mabel Dowell to discourage membership in, and activities on behalf of, the Union, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7 By discharging Osborn and Dowell for engaging in concerted and union activity for mutual aid and protection, by engaging in the previously described conduct; by impliedly threatening Osborn with discharge if she accepted the position of shop chairlady and accusing her of being responsible for the appearance of a union representative at the plant to investigate employee grievances, and by warning Dowell that employees risked termination if they attended union meetings; the Respondent interfered with, restrained and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. 8 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 33 N L R.B. v. Express Publishing Company, 312 U.S 426, 433 RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the Respondent, Osage Manufacturing Company, Osage City, Kansas, its officers, agents, successors, and assigns, shall 1. Cease and desist from. (a) Refusing to recognize and bargain with Missouri- Kansas-Nebraska-Oklahoma District Council, International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of the employees in the unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employment. All nonsupervisory production, maintenance, packing and shipping workers of the employer-members of Kansas City Garment Manufacturers Association who are parties to the Association's 1966 agreement with Missouri-Kansas- Nebraska Oklahoma District Council, International Ladies' Garment Workers' Union, AFL-CIO, excluding officers or executives of the employers, designers, assistant designers, supervisory personnel, instructors, pattern makers, mech- anics, lead order fillers, and office and plant clerical workers. (b) Repudiating the current collective-bargaining agreement between the above-named Union and Kansas City Garment Manufacturers Association, to which it is a party, and refusing to give effect to the terms and conditions of employment therein provided, during the life of that agreement. (c) Making unilateral changes in wages, rates of pay, health and welfare benefits, hours, and other terms and conditions of employment of its employees in the above-described appropri- ate unit during the term of the current contract, without the above-named Union's consent. (d) Discouraging membership in the above-named Union, or any other labor organization, by discharging employees or discriminating against them in any other manner in regard to their hire or tenure of employment or any term or condition of employment (e) Discharging employees for engaging in concerted or union activities for mutual aid and protection guaranteed to them in Section 7 of the Act (f) Threatening employees with discharge if they accepted the shop chairlady or any other union office or position or if they attended union meetings, or warning them not to enlist the assistance of any union official or representative to handle or investigate employee grievances. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities 2 Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request of the above-named Union, reinstate its current collective-bargaining agreement with that organization and give full force and effect to all the terms and conditions of employment therein provided during the life of the said agreement. OSAGE MFG. CO. (b) Upon the said Union's request, rescind the unilateral changes in wages, rates of pay, health and welfare benefits, hours and other terms and conditions of employment of its employees in the above-described appropriate unit, which it has heretofore made during the term of its collective-bargain- ing agreement without the Union's consent (c) Offer Dixie Osborn and Mable Dowell immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and offer them employment to available jobs on the same nondiscriminatory basis prevailing prior to their discharge, as provided in the section of this Decision entitled "The Remedy." (d) Make Osborn and Dowell whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this Recommended Order. (f) Post at its plant in Osage City, Kansas, copies of the attached notice marked "Appendix .7,34 Copies of said notice, on forms provided by the Regional Director for Region 17, shall, after having been duly signed by an authorized represent- ative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director for Region 17, in writing, within 20 days from the date of the Trial Examiner's Decision, as to what steps the Respondent has taken to comply herewith 35 34 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substitued for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision and Order." 35 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read * "Notify the Regional Director for Region 17, in writing , within 10 days from the date of this Order, as to what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL NOT refuse to recognize Missouri -Kansas- Nebraska-Oklahoma District Council, International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive 465 bargaining representative of the employees in the unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employment. The bargaining unit is All nonsupervisory production, maintenance , packing and shipping workers of the employer-members of Kansas City Garment Manufacturers Association who are parties to the Association's 1966 agreement with Mis- souri-Kansas-Nebraska-Oklahoma District Council, Inter- national Ladies' Garment Workers' Union, AFL-CIO, excluding officers or executives of the employers, designers, assistant designers , supervisory personnel, in- structors, pattern makers, mechanics, lead order fillers, and office and plant clerical workers WE WILL NOT repudiate the current collective-bar- gaining agreement between the above-named Union and Kansas City Garment Manufacturers Association, to which we are a party, or refuse to give effect to the terms and conditions of employment therein provided, during the life of that agreement WE WILL NOT make unilateral changes in wages, rates of pay health and welfare benefits, hours, or other terms and conditions of employment of our employees in the above-described unit during the term of the current contract, without the Union's consent WE WILL NOT discourage membership in the above- named Union or any other labor organization, by dis- charging any of our employees, or otherwise discriminating against them in regard to their hire or tenure of employ- ment or any term or condition of employment WE WILL NOT discharge any of our employees for engaging in concerted or union activities to improve their terms and conditions of employment and for any other mutual aid and protection. WE WILL NOT threaten our employees with discharge if they accepted the shop chairlady or any other union office or position or if they attended union meetings, or warn them not to enlist the assistance of any union official or representative to handle or investigate employee grievances. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities WE WILL upon request of the Union, reinstate our current collective-bargaining agreement with that organiza- tion and give full force and effect to all the terms and conditions of employment therein provided during the life of that agreement. WE WILL, upon the Union's request, rescind the uni- lateral changes in wages , rates of pay, health and welfare benefits, hours, and other terms and conditions of employ- ment of our employees in the above-described bargaining unit, which we have heretofore made during the term of our collective-bargaining agreement without the Union's con- sent WE WILL offer Dixie Osborn and Mabel Dowell im- mediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and offer them 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment to available jobs on the same nondiscrimina- Dated By tory basis prevailing prior to their discharges, as provided in the Trial Examiner's Decision. WE WILL reimburse Dixie Osborn and Mabel Dowell for any loss of earnings they suffered by reason of our discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining , members of Missouri-Kansas- Nebraska-Oklahoma District Council, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization OSAGE MANUFACTURING COMPANY (Employer) (Representative ) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material If employees have any question concerning this Notice or compliance with its provisions they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 374-5282