Annshire Garment Company, Inc.

ANNSHIRE GARMENT COMPANY, INC. 595 Annshire Garment Company, Inc. and Missouri-Kan- sas-Nebraska-Iowa-Minnesota District Council, affiliated with the International Ladies' Garment Workers Union . Case 17-CA-5720 June 14, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 13, 1974, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified herein and hereby orders that Respondent, Annshire Garment Company, Inc., Pittsburg, Kan- sas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Delete paragraph 2(b) and substitute the following: "(b) Reimburse and make whole any employees who have not been compensated in the manner prescribed in the aforementioned contract which we have directed shall be executed. Employees should receive their full wages from the date we have found the terms of the contract to have been agreed to, namely, June 2, 1972, along with interest at the rate of 6 percent per annum, computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716." 2. Insert the following as paragraph 2(c) reletter- ing subsequent paragraphs accordingly: "(c) 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 to analyze the amount of backpay due under the terms of this recommended Order." 3. Substitute the attached Appendix for thel Administrative Law Judge's. 1 We find merit in General Counsel's exceptions to the Administrative Law Judge's failure to include in his recommended remedial Order both a provision to award the standard 6-percent interest per annum on all moneys due the unit employees under the new contract , and the standard order that the Respondent preserve and make available all payroll related records and reports. We shall therefore include these two provisions in our Order. However, we find no merit in Respondent's exception to the Administra- tive Law Judge's Order that Respondent sign the agreement in question, in that this exception centers not on the problem of the wage rate for leather 'cutters, which was fully litigated at the hearing , but rather the wording of the vacation provision of the agreement, which Respondent, for the first time, alleges to be at variance with the intent of the parties as expressed in the June 2, 1972, memorandum of agreement . In view of the fact that Respondent President Liebling repeatedly stated at the hearing that the only objection he had to the proposed agreement was the matter of the leather cutters' wage rate, we find Respondent's present exception untimely. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning the rates of pay, wages, hours, and other terms and conditions of employment with the Missouri-Kansas-Nebraska-Iowa-Minnesota District Council, affiliated with the International Ladies' Garment Workers Union, as the exclusive bargaining representative of our employees in the appropriate bargaining unit, by failing to sign and execute the labor agreement agreed to by the parties on June 2, 1972. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL sign and execute that labor contract comprised of 32 typewritten pages captioned: AGREEMENT ANNSHIRE GARMENT CO., INC. with MISSOURI-KANSAS-NEBRASKA DISTRICT COUNCIL of the International Ladies' Garment Workers' Union June 1, 1972 thru May 31, 1975 WE WILL reimburse and make whole any employees who have not been compensated in the 211 NLRB No. 89 5% DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner prescribed in the aforementioned con- tract, including their full wages from the time the terms of the contract were agreed to, with interest at 6 percent per annum. Our employees are free either to support , or refrain from supporting, any labor organization without interference, restraint, or coercion. ANNSHIRE GARMENT COMPANY, INC. (Employer) these admitted facts I find that the Respondent is now, and at all times material herein has been, an employer engaged in commerce, within the meaning of Section 2(6) and 2(7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent's answer acknowledges, and I herewith find that the Missouri-Kansas-Nebraska-Iowa-Minnesota District Council, affiliated with the International Ladies' Garment Workers Union is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 616 Two Gateway Center, Fourth at State, Kansas City, Kansas 66101, Telephone 816-374-4518. DECISION STATEMENT OF THE CASE JAMES T. RASBURY , Administrative Law Judge : This case was heard before me in Pittsburg, Kansas , on December 19, 1973, with all parties represented . The complaint herein is based on a charge filed on August 7, 1973. The complaint alleges that Respondent has violated Sections 8(a)(l) and (5) of the National Labor Relations Act, as amended (herein Act), in that Respondent has since on or about July 11, 1973 and at all times thereafter refused and continues to refuse to sign and execute a written agreement allegedly agreed to between the Respondent and the Charging Party on or about June 2, 1972.1 Upon the entire record,-including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel , the Charging Party, and the Company, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a Kansas corporation located in Pittsburg, Kansas, where it operates a plant and engages in the manufacture and distribution of women's coats. In the course and conduct of its business the Respondent annually sells goods and materials valued in excess of $50,000 which are shipped directly to customers located outside the State of Kansas, and it annually purchases goods and materials valued in excess of $50,000 directly from sources outside the State of Kansas. On the basis of III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Bargaining Unit Involved The complaint alleges the appropriate bargaining unit to be: All production, packing, and shipping workers em- ployed by Annshire Garment Co ., Inc., excluding office clerical employees, plant clerical employees , corporate officers or executives, designers, assistant designers, instructors, pattern makers, guards and supervisors as defined in the Act. Respondent's answer would appear to raise an issue concerning the appropriate bargaining unit . At the hearing Respondent's representative stated that he only wanted to be certain that it was understood by all parties concerned that clericals who perform some work in the area of the shipping department are not included in the bargaining unit. After an expression from the union representative, Mr. Frank Peirce, that there was not now, nor had there been for many years any disagreement concerning the employees to be included in the bargaining unit, the Respondent's representative indicated on the record that he would accept the description of the appropriate bargaining unit as alleged in the complaint . (See Mr. Liebling's response to the Administrative Law Judge's question at p. 11, 1. 9 of the official transcript.) I herewith find the appropriate bargaining unit to be as alleged in the complaint and as set forth hereinbefore. B. Background and Sequence of Events Respondent and the Charging Party have had a bargaining relationship for a number of years . The most recent contract signed by the parties covered the period from June 1, 1969, through May 31 , 1972 (See G.C. Exh. 10). As the contract approached its termination date, there were a number of informal meetings and exchanges between the parties. A formal negotiating session was held on or about May 26 . According to the testimony of Frank Peirce, district manager for the Union, from the initial negotiations it had been the Union's position that it wanted to change the grouping of leather cutters from one in which they were associated with the examiners, finishers, and bundlers to a new grouping covered by the machine operators, special, and single-needle machine operators. I All dates hereinafter will be 1972 unless otherwise indicated. ANNSHIRE GARMENT COMPANY, INC. While the May 26 meeting did not result in a resolution of all the negotiating differences between the parties, the Respondent indicated that it was agreeable to following the pattern set by the Kansas City Dress and Sportswear Association contract asking only that it be given an allowance of a 5-percent differential in wage rates. (See G.C. Exh. 2, which is a letter written immediately following the May 26 negotiating session by the Respondent's president to Mr. Frank Peirce.) According to the testimony of all witnesses the next meeting was held on June 2, which meeting culminated in the parties signing a memorandum of agreement. Both parties were of the opinion that this memorandum of agreement resolved their differences. The problem provok- ing the filing of charges, the issuance of complaint and the necessity of this hearing stems from the interpretation of a few words in the memorandum of agreement. The memorandum of agreement (see G.C. Exh. 3) was drafted on letterhead stationery of the Annshire Garment Co., Inc., and reads as follows: June 2, 1972 WE AGREE TO ADHERE TO THE KANSAS CITY SPORTSWEAR AGREEMENT, 1972 TO 1975 AND IN ADDITION THE FOLLOWING WILL BE ADDED: 1. Leather cutters minimum wages-same as oper- ators in third year. 2. 3rd. week vacation-definitely between Christ- mas & New Years. 3. Those entitled to 1 week vacation will be prior to Labor Day. -2 Wks vac. shall be set prior to Labor Day. J.L. F.P. [Last sentence was handwritten and initialed by the parties.] 4. New Union Labels 5. Inexperienced worker trial period will be 30 work days. Experienced worker trial period will be 30 calendar days. 6. Notify Union in writing on all disciplinary actions. Subject to approval of the Local Union Jack Liebling, Pres. Frank Peirce, Manager By letter dated June 7, Frank Peirce advised Leibling that the Union had ratified the new contract and that he would prepare the formal agreement and send it to him for his signature as soon as possible. (See G.C. Exh. 4.) Thereafter the Union supplied the Respondent with a copy of the contract to cover Respondent's operation in Pittsburg, Kansas (See G.C. Exh. 9), and also provided Respondent with a copy of the Kansas City Sportswear Agreement covering the period from June 1 through May 31, 1975, for purposes of comparison with the specific contract covering the Respondent's operation. C. Respondent Refuses to Execute the Agreement The Respondent voiced its objections to the leather cutters' wage rates as set forth in the new contract between the parties. At several meetings Leibling voiced his objections to the Union on this matter as well as other minor problems which did not become an issue in this case. Respondent did, however, institute all of the changes provided for in the new agreement except that he continued to protest the leather cutters' rates as set forth in 597 the contract and refused to sign the agreement. At a conference between the parties, held on July 11, 1973, the Union made a demand that the Company immediately sign the agreement as it had been negotiated. This oral demand was followed with a letter dated July 19, again demanding that Respondent immediately sign the contract (See G.C. Exh. 5). D. Respondent's Contentions Respondent acknowledged at the hearing that there was only one issue in dispute. That issue concerns the paragraph numbered 1 in the memorandum of agreement dated June 2, 1972, which reads as follows: "Leather cutters' minimum wages-same as operators in 3rd year." According to Respondent's witness, Jack Liebling, who was the chief spokesman at the negotiating sessions for the Respondent, he understood this language to mean and, it was his intent at the time it was signed, that the leather cutters would be paid the same wages as they had received in the third year of the old contract. The answer filed by Respondent in this case would appear to raise two allegedly unsettled issues : a) the leather cutters' wages and b) the 5-percent wage differential requested in the Respondent's letter of May 26, 1972 (G.C. Exh. 2). Analysis The testimony of Thelma Sheets and Linda Rodabaugh, employee members of the bargaining committee, corrobo- rated the testimony of Frank Peirce. None of the witnesses was able to testify concerning any reference by Respon- dent during the negotiating meeting to an old contract wage rate for the leather cutters. Testimony of General Counsel's witnesses consistently support the contention that the Union at all times sought to remove the leather cutters from the wage grouping with the examiners, finishers, and bundlers and desired to place them in the wage grouping occupied by the special and single-needle machine operators. According to witnesses Peirce, Sheets, and Rodabaugh-whom I credit-the final obstacle was removed when the Union agreed to compromise its position by deferring the regrouping of the leather cutters to the higher paying classification for the first 2 years of the contract, but then placing them in the higher paying classification in the third year of the contract. Their explanation of what transpired at the negotiating session on June 2 is not only reasonable but it is a logical and a most likely compromise from their initial bargaining position. The wording of the disputed portion of the memorandum of agreement supports their position and does not support the Respondent's position that it has some reference to wages paid in the third year of the old contract. While Respondent's position is somewhat vague and something considerably less than precise, I understand his evidence and testimony to be as follows. Yes, I signed the June 2 memorandum of agreement, but the words "same as operators in third year" meant, "same as leathercutters in third year of the old contract." (The word old meaning the most recently expired contract.) While this may be what Respondent desired to agree to, it is not what the language 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to on June 2 says. Respondent's president, Jack Leibling, is an intelligent, able indibidual. There is nothing in the record evidence to indicate that he was tricked or misled in a manner that would justify setting aside the contract. There is no evidence of fraud. In Respondent's brief to the courts, this statement was made : "I would not have the Judge believe that no contract was actually reached. Everything was agreed to subject to review of the Kansas City contract, which was being used as a guide." (Emphasis supplied.) There is nothing said in the memorandum of agreement signed by the Respondent and the Union on June 2 indicating that the Kansas City contract was to be used as a guide. The language clearly indicates that the parties agreed to the Kansas City sportswear agreement with the following additions, which are thereafter set forth. It is interesting to note that the Kansas City agreement does not carry a "leather cutters" classification. While Respondent may not be happy with the agreement which was made, nevertheless, the evidence is overwhelm- ing that Respondent finalized an agreement with the Union on June 2, subject only to ratification by the Union. This was done. It has long been established that the party who fails and refuses to execute a written contract, when requested to do so by the other party, embodying the terms and the conditions which have been fully agreed upon, violates Section 8(a)(5) or 8(b)(3) of the Act, whichever is applicable. H. J. Heinz Co. v. N.LR.B., 311 U.S. 514 (1941). I herewith find that the memorandum of agreement dated June 2 and signed by the Respondent and the Union embodied a complete understanding between the parties and the entire contract as reflected by the General Counsel's Exh. 9, which is in evidence, is an accurate reflection of that memorandum of agreement. The failure and refusal by Respondent to execute the written agree- ment since requested to do so by the Union on or about July 11, 1973, I find to be a violation of Section 8(a)(5) and (1) of the Act.2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Employer described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer as defined in Section 2(2) of the Act engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The unit appropriate for collective bargaining is as follows: All production, packing, and shipping workers em- ployed by Annshire Garment Co., Inc., excluding office clerical employees, plant clerical employees, corporate officers or executives, designers, assistant designers, instructors, pattern makers, guards and supervisors as defined in the Act. 4. By its failure to sign and execute the labor agreement as fully agreed to by the Respondent and the Union on June 2, 1972, the Respondent has since July 11, 1973, and thereafter, been in violation of Section 8(aX5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the entire record, the findings of fact and conclusions of law and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, its officers, agents, and representatives, shall: 1. Cease and desist from: a. Refusing to bargain collectively concerning the rates of pay, wages, hours, and other terms and conditions of employment with the Missouri-Kansas-Nebraska-Iowa- Minnesota District Council, affiliated with the Internation- al Ladies' Garment Workers Union, as the exclusive bargaining representative of its employees in the appropri- ate bargaining unit, by failing to sign and execute the labor agreement agreed to by the parties on June 2, 1972. b. In any like or related manner interfering with, restraining, or coercing employees in the nghts guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary in order to effectuate the policies of the Act: a. Sign and execute that labor contract comprised of 32 typewritten pages captioned: 2 See If. J. Heinz Co. v. N.LR.B., 311 U.S. 514 (1941) and Sununit findings, conclusions, and recommended Order herein shall, as provided in Tooling Co., 195 NLRB 479 at 488. Section 102.48 of the Rules and Regulations , be adopted by the Board and 3 In the event no exceptions are filed as provided by Section 102.46 of become its findings, conclusions, and Order , and all objections thereto shall the Rules and Regulations of the National Labor Relations Board , the be deemed waived for all n.'-^-^- ANNSHIRE GARMENT COMPANY, INC. AGREEMENT ANNSHIRE GARMENT CO., INC. with MISSOURI-KANSAS-NEBRASKA DISTRICT COUNCIL of the International Ladies' Garment Workers' Union June 1, 1972 thru May 31, 1975 b. Reimburse and make whole any employee who has not been compensated in the manner prescribed in the aforementioned contract which I have directed should be executed. Employees should receive their full wages from the date I have found the terms of the contract to have been agreed to, namely June 2, 1972.4 I shall not order reimbursement with interest because there was no evidence to indicate Respondent 's conduct to 4 Schill Steel Products Co., 161 NLRB 939; N L R B. v. Huttig Sash and Door Company, 362 F.2d 217 at p. 219, (C.A. 4 - 1966). S In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by 599 be either vicious, malicious, or that Respondent has heretofore been guilty of unfair labor practices. c. Post at its principal operating location in Pittsburg, Kansas, copies of the attached notice marked "Appen- dix."5 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representatives, should be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. d. Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."