Miss Elaine, Inc.

MISS ELAINE, INC Miss Elaine, Inc. and Evelyn Hatcher Missouri-Mississippi Valley District Council and Texas-Oklahoma District Council , International Ladies' Garment Workers' Union, AFL-CIO and Evelyn Hatcher. Cases 14-CA-16947 and 14-CB-6039 20 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 27 September 1984 Administrative Law Judge Richard L. Denison issued the attached deci- sion. The Respondent Employer and the Respond- ent Union filed exceptions and supporting briefs. The Board has considered the decision and the record in light of the exceptions and briefs and had decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that Respondent Missouri-Missis- sippi Valley District Council and Texas -Oklahoma District Council , International Ladies' Garment Workers' Union, AFL-CIO, St. Louis, Missouri, its officers, agents, and representatives, and Respond- ent Miss Elaine, Inc., St. Louis, Missouri, its offi- cers, agents, successors , and assigns, shall take the action set forth in the Order. ' The Respondent Union has excepted to some of the judge's credibil- ity findings The Board's established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings DECISION STATEMENT OF THE CASE RICHARD L DENISON, Administrative Law Judge. This case was heard at St. Louis, Missouri, on February 21 and 22, 1984, based on an original charge in Case 14- CA-16947, filed August 30, 1983, and an original charge in Case 14-CB-6039, also filed August 30, 1983, and amended October 6, 1983.1 The order consolidating cases and complaint and notice of hearing, issued Octo- ber 13, alleges violations of Section 8(a)(1), (2), and (3) of the Act by the Respondent Employer, and violations of Section 8(b)(l)(A) and (2) of the Act by the Respond- ent Union. These issues center around an agreement be- tween the Company and the Union concerning changes ' All dates are in 1983 unless otherwise specified 181 in the Respondent Employer's manufacturing operations which allegedly resulted in the termination of Evelyn Hatcher and Shirley Dodd, pursuant to the Union's re- quest, without affording them 30 days within which to become members of the Union, and because they protest- ed being required to become members of the Union at times when they were under no obligation to do so. The Respondents' answers deny the allegations of unfair labor practices alleged in the complaint. On the entire record in the case, including observations of the witnesses and consideration of the briefs, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION Based on the allegations of paragraphs 2 A through E of the complaint, admitted by Respondents' answers, I find that the Respondent Employer is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 11. LABOR ORGANIZATION Based on the allegation in paragraph 3 of the com- plaint, admitted by Respondents' answers, I find that the Respondent Union is and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. III THE UNFAIR LABOR PRACTICES The Respondent Union and the Respondent Employer are parties to a collective-bargaining agreement between the Respondent Union and the Associated Garment In- dustries of St Louis (Underwear Branch), an employer association. Article II of that agreement, the "Union Recognition" clause, reads: 2.1 The bargaining unit covered by this agree- ment consists of all non-supervisory production, maintenance, packing and shipping workers em- ployed by said Employer The agreement is not in- tended to cover those employees engaged exclusive- ly in one or more of the following activities: offi- cers or executives of the Employers, designers, as- sistant designers, superintendents, supervisory per- sonnel, instructors, pattern makers or assistant pat- tern makers, mechanics, office workers, billers, and clerical workers who do not handle any garments, parts thereof, or any raw materials It is agreed that the Union represents a majority of such workers and that it shall be the sole and exclusive bargaining representative for all workers in the bargaining unit during the entire period of this agreement. Neither the Employer nor any of its agents shall directly or indirectly discourage membership in the Union. The Respondent Employer manufactures women's lin- gerie at its St. Louis plant, the only facility of the Re- spondent Employer involved in this proceeding. As a part of the Company's quality control phase of the pro- duction process, it employs two categories of employees 274 NLRB No. 36 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD known as quality control inspectors, and final inspec- tors.2 Quality control inspectors spot check to discover any flaws in the work of the sewing machine operators, and return rejections to them for reworking Since the sewing machine operators are compensated on a piece- work basis, returned bundles adversely affect their wages. Over the years the Union discovered that the competing job interests between these two categories of employees caused friction within the Union. Likewise, the Company wanted more control over the quality of its product which it felt it could obtain only from inspec- tors loyal to the Company. Consequently, although the quality control inspector classification had originally been deemed to be a bargaining unit position, it was, by agreement, removed from the bargaining unit in 1981, after which time nonunion quality control inspectors were employed. This arrangement was agreed to by the Union with the additional understanding that the quality control inspectors would not perform bargaining unit work.3 The final inspector's position, however, has always re- mained a bargaining unit position, occupied by union members in accordance with article III of the collective- bargaining agreement entitled "Union Membership," which states. 3 1 Good standing membership in the Union shall be a condition of employment for all employees on and after the thirtieth (30th) day following the be- ginning of such employment or the execution or ef- fective date of this provision, whichever is the later, but not before completion of the workers' trial period. 3.2 For the purpose of this provision, a member of the Union shall be deemed to be in good standing only if his initiation fees and periodic fixed dues are not in arrears for more than thirty (30) days Final inspectors inspect whole bundles of garments after they are completed and have been sent to the finishing department. They inspect the entire garment and the entire bundle, not portions thereof, and send any defec- tive garments to special repair employees, not back to the sewing machine operators. Evelyn Hatcher, the Charging Party, was hired by the Company in October 1981 as a quality control inspector, along with Shirley Dodd, Jacqueline Lane, and Char- lotte Gore. The quality control inspectors worked under the immediate supervision of Hattie Webbs, the floor su- pervisor of quality control. Their hours were from 7 a.m. to 4 p.m. The rate of pay was $4.40 per hour. According to Hatcher, at the time she was hired she was informed by Assistant Plant Manager Bernice Turner that the quality control inspector position used to be considered a union position, but had become a company position be- cause the Union did not agree that one union person 2 The quality control inspectors are also referred to in the record as roving inspectors, in-line inspectors, quality control floor inspectors, and floor inspectors a These findings are based on the testimony of Harvey Gerstein and Charles Hatcher, and parallel the testimony of Evelyn Hatcher and Shir- ley Dodd should be placed in the position of writing up another union person. Company Vice President Harvey Gerstein testified that by 1982, "The quality in the St Louis plant was so bad that we approached the union with the statement that either the quality improve or we were going to have to close the St. Louis operation." Gerstein testified that the problem reached the point that, even after final in- spection, they found it necessary to add another 100-per- cent inspection which revealed numerous further defects. As a result of this problem, management instituted cor- rective measures After meetings with supervisors in which quality was emphasized, the Company hired George Adams as its director of quality control, and set up a new quality control department, each with its own director subordinate to Adams, in each of the Company's plants In May 1983 George Weldon was hired as St. Louis quality control director. He was instructed to ex- amine the St. Louis operation and to implement the changes necessary to improve the quality of the product being produced there. Thereafter, according to Gerstein, Weldon expressed the view that the source of the prob- lem was in the quality control department, which he felt had to be strengthened with additional inspectors.4 Thus, during the first part of May, Weldon called a meeting of the quality control inspectors. According to Evelyn Hatcher, Weldon asked if they wanted to join the Union, and when the quality control inspectors re- sponded negatively, he said that he wanted them to per- form some additional work. Weldon stated that from 3:30 to 4 p.m each day, the last half hour of their work- day, he wanted them to go to the final inspection depart- ment and perform final inspection work until it was time to leave.5 Hatcher asked why it was necessary for them to do the final inspectors' work, commenting that if they had to do their own work, plus the final inspectors' work, the Company did not need the final inspection de- partment. Weldon answered that he was trying to get rid of the final inspection department. The meeting ad- journed and thereafter, in accordance with Weldon's in- structions, the quality control inspectors performed final inspection work for a half hour each afternoon until May 12, when Weldon held another meeting of the quality control inspectors and told them that they should stop performing the final inspection work because he had re- ceived a complaint from the Union that nonunion work- ers were doing union work.6 Shortly thereafter Weldon ° Neither George Weldon nor Flake Robinson, referred to elsewhere in this decision, was employed by the Company at the time of this hear- ing, and there is no evidence in the record concerning whether or not any efforts were made to locate and subpoena them George Adams like- wise did not testify. 6 Final inspectors' work hours are from 8 a in until 3 30 p m 6 The Union's chairlady Denise Leech testified she made the original complaint to Plant Manager Flake Robinson that she had learned that the in-line quality control inspectors were performing union work Robinson asked, "Where could I put them then? Could I put them up on five?" Leech said, "No, because those are union jobs " Robinson asked, "Well, could I send them on two?" Leech answered, "No, because those are union jobs, too " Robinson asked, "What can I do with them?", and Leech said, "I don't know " Then Robinson stated he was going to see about making the in-line (quality control) inspectors and the final inspec- tion either 100-percent company or all union MISS ELAINE, INC. remarked that he needed more quality control inspectors. He began training a final inspector, identified only as Nancy, to do quality inspection work. However, after only a couple of days, she returned to the final inspec- tion job because she did not want to leave the Union. The record shows that about this time there was a dis- pute over union employees performing nonunion work. About mid-June Weldon held another meeting. This time, in addition to the quality control inspectors, sewing machine operators Denise Leech, Gwendolyn Garvis, and Rose Bowen were present Leech is union chairlady, and Bowen is on the Union's executive board. At that time Weldon said, over the protest of the quality control inspectors, that they would have to go into the Union. He said they did not have a choice in the matter. Ac- cording to Hatcher, Weldon produced a letter addressed to Charles Hatcher, on company letterhead. The text of the letter reads as follows. I am requesting that the following girls who are company in-line Quality Inspectors be turned over to the Union. These jobs were previously Union, however, for the past three years have been compa- ny positions. The responsibilities of these girls have grown in three years, whereas, it is impossible for them to do an adequate job not being in the Union. Their jobs include inspecting work at the needle, in bins, repairs (flat and hung), moving whole bun- dles of repairs, and sometimes inspecting off tables. The following four signatures are the names of those who will be moving into the Union. Beneath Weldon's signature line, name, and title was printed four blank lines headed "Name." Opposite each of these lines was another blank line headed "Clock #." Weldon told Hatcher, Dodd, Lane, and Gore that the document signified they were going into the Union, and that they should sign the letter on the blanks at the bottom of the page or "be out of a fob " None of the quality control inspectors signed this document at that time, but about a week later Supervisor Hattie Webbs brought the document to Hatcher and obtained Hatch- er's signature and clock number on the first blank line at the bottom of the page, stating that it was the sheet that George Weldon wanted them to sign. Dodd's, Lane's, and Gore's signatures appear on the letter following that of Hatcher.7 According to the testimony of Shirley Dodd, around this same time a notice was posted on the bulletin board by the timeclock, over Weldon's signature, stating that he needed more floor inspectors in quality control and that anyone interested should sign the notice. Shortly thereafter, the signatures of Rose Bowen, Gwendolyn Garvis, Evelyn Austin, and Denise Leech appeared in the signature space on the notice. When Dodd ques- tioned Leech about the matter, Leech responded that the Union had told her she could remain chairlady and also occupy the position of floor inspector. Leech remem- bered having this conversation with Dodd, but stated she Hattie Webbs did not testify 183 could not remember what was said. When asked if she had shown Dodd the union contract, Leech testified that the agreement had not yet been printed. Hatcher testified that a few days later, Leech, Bowen, and Garvis became quality control inspectors, but re- mained in the Union. Leech and Weldon came to Hatch- er and told her that the nonunion quality control inspec- tors would be in the Union by the time they returned from vacation. Leech remembered having a conversation with Hatcher about joining the Union, and about union dues and benefits, and that Hatcher was angry and did not want to join. Leech said this was the last time she talked with Hatcher. Thus, the union-security provisions of the labor agreement were never even shown or ex- plained to the quality control inspectors. According to Hatcher, immediately after she and the other quality control inspectors were required by Webbs to sign the letter to Charles Hatcher, she sought and ob- tained a meeting with the Company's vice president of operations Harvey Gerstein. She complained that George Weldon had required them to sign a letter re- questing that the quality control inspectors be in the Union Gerstein insisted that the first time this matter had come to his attention was when Charles Hatcher came to him, and showed him the letter which the em- ployees had signed Gerstein said he was angry because George Weldon had gone over his head directly to the Union. Gerstein said he was undecided concerning what to do, because the fact that quality control inspectors wrote up other union employees had previously caused a conflict, and therefore he could not see it being a union position. However, nothing was resolved at this meeting, which was also attended by Shirley Dodd and the other floor inspectors.8 Following the meeting with Gerstein, the plant closed from July 1 until July 18 for its annual vacation period. Upon her return to work, Evelyn Hatcher went to Weldon and asked if they were going to be in the Union or not. Weldon replied that the matter was out of his hands, and that the decision would be made by Harvey Gerstein. On August 11, according to Evelyn Hatcher, Gloria Lumpkins, a member of the Union's executive board and the Union's labor council board, came to her and said that the quality control inspectors would either be in the Union within a week or they would be out of a job.9 On August 18 Evelyn Hatcher, Shirley Dodd, and Charlotte Gore met with Gerstein and George Adams, the Company's director of quality control and George Weldon's superior. i 0 Hatcher began by telling Gerstein 8 Dodd testified that in the meantime the employees had seen a peti- tion which was being circulated in the plant by Evelyn Bogen , complain- ing that Chairlady Denise Leech was working in a a nonunion position 9 Gloria Lumpkms, union executive board and labor council member, testified that she attended several union meetings conducted by Charles Hatcher in the late spring or early summer, in which the problem of what was to be done about the quality control inspectors was discussed According to Lumpkms. Hatcher said that if the quality control inspectors did not join the Union, they would be withoutjobs. Gloria Lumpkins admit- ted telling Evelyn Hatcher that Charles Hatcher said he had met with the Company, and that "everybody" was going to be in the Union, and that the quality control inspectors were either going to join the Union within 2 weeks or they would be without jobs 10 Jacqueline Lane refused to attend the meeting 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she was concerned because she had learned that statements had been made in union meetings by Charles Hatcher that the quality control inspectors would be out of a job in a week if they did not go into the Union Gerstein replied that Charles Hatcher was way out of line in saying someone would be out of a job, especially when he did not hire them in the first place. Gerstein said that if they wrote up a contract stating that one union person could write up another and that he would not have any "beef out of my union-out of the compa- ny inspectors over the union employees , I would think about it." He said until then he had not made a decision. Shirley Dodd's version of the meeting is similar . Accord- ing to Dodd, Gerstein said he had seen the document that the quality control inspectors had signed , and knew they did not sign it on their own He said that it use to be the Union's position that they did not want one union member writing up another . He also said that he wanted the Union to agree that if the quality control inspectors became union members, they could write up other union members without a whole lot of problems . He told the three women not to worry about losing their jobs, and at the close of the meeting promised to meet with them again when he returned from his pending trip out of town. He never did Throughout the week of August 22 , Evelyn Hatcher did not work . The reasons for her absence are not re- ferred to in the record, and there is no contention that the circumstances surrounding this absence had anything to do with her subsequent termination The record also shows that Jacqueline Lane was discharged on August 26, for reasons unrelated to this case On August 29 Evelyn Hatcher and Shirley Dodd were called to the office where they found George Weldon , Assistant Plant Manager Bertha Tippitt, Rose Bowen, Denise Leech, Gwendolyn Garvis, Plant Manager Flake Robinson, and Randy Griffin present Weldon stated that he did not know "how to put this," but that the only way he could say it was that he had to cut down by twos and that Hatcher and Dodd were the employees who would be terminated Hatcher asked why this action was being taken, and Weldon answered that he felt Rose Bowen and Denise Leech were more qualified as inspectors than they were At this point Flake Robinson interjected, "Either be terminated or take a machine." Hatcher re- torted that if the Company needed sewing machine oper- ators they should put Leech and Bowen back on their sewing machines since they took them off those positions to make them inspectors . Weldon responded that he felt Leech and Bowen were more qualified as inspectors than Hatcher and Dodd, although they had only been serving as inspectors since June 6 . Both Hatcher and Dodd in- sisted that none of the company officials offered to train them to become sewing machine operators, and that the Company knew from their job applications that they were not then able to perform the sewing machine oper- ator's job Likewise, Evelyn Hatcher and Shirley Dodd also steadfastly claimed that no one from the Company or the Union ever explained to them the Union's security provisions of the collective-bargaining agreement be- tween the Respondent Employer and the Respondent with the provisions of that agreement Hatcher and Dodd then received their paychecks and left the plant for the last time. Evelyn Hatcher's and Shirley Dodd's testimonies were mutually corroborative Furthermore , the testimonies of Respondents ' witnesses Harvey Gerstein , Denise Leech, and Charles Hatcher did not, for the most part , dispute Evelyn Hatcher's and Shirley Dodd's versions . Indeed, Denise Leech corroborated Evelyn Hatcher and Shirley Dodd's assertion that they were not offered training as sewing machine operators , nor was their joining the Union discussed at the August 29 discharge interview. To the limited extent that Respondents ' witnesses' ver- sions disagree with Hatcher and Dodd, there is no cor- roboration among them . Where conflicts exist, Evelyn Hatcher and Shirley Dodd are credited. Harvey Gerstein testified he learned during May from plant supervision that there had been complaints that the quality control inspectors were performing bargaining unit work. He stated this problem resulted in a meeting late in June between Gerstein and Director of Manufac- turing Gary Campbell , for the Company, and Charles Hatcher and Rinaldo Panetta, manager of the Missouri- Mississippi River Valley District Council, for the Union, in an effort to solve the problem 11 At this meeting the Union took the position that if the quality control inspec- tors were going to perform unit work , they should become a part of the bargaining unit . Gerstein responded that, before this occurred , the Company wanted assur- ances and a procedure mutually adopted and agreed upon concerning the number of garments to be inspected out of each bundle, in order that they could judge whether the quality control inspectors were doing the right kind of job . He said that statistical figures were needed to determine when an entire bundle should be given back to the operator to be redone, or when only the repairs should be given back to the operator. He re- ferred to the previous arrangement the Company had with the Union wherein the inspectors were taken out of the bargaining unit because of the conflict caused by union inspectors reviewing the work of union operators. Gerstein said that in order for the Company 's quality to improve, the quality control inspector would have to have the right to tell the operator to repair the work, and if she failed to do so, to issue a complaint to the su- pervisor, who would in turn give a warning to the oper- ator. In the meantime, according to Gerstein , at the end of June and before the vacation period , he met with the quality control inspectors led by Evelyn Hatcher and Shirley Dodd . Gerstein "recalled only one formal meet- ing." However, he did not deny that there may have been another Evelyn Hatcher protested that they would have to join the Union or be discharged , since their jobs were becoming unionized positions Gerstein assured them that a decision had not been reached at that time, that discussions with the Union were continuing, and that the matter was still under advisement . He said a pro- cedure had not yet been agreed upon , and that they Union, and the consequences of their failing to comply 11 Campbell and Panetta did not testify MISS ELAINE, INC should not worry about their positions with the Compa- ny. He could not recall giving Hatcher and the other workers any further advice. Gerstein testified that between July 25 and 28 another meeting with the Union's officials was held at which agreement was reached on the procedure to be followed in the future with respect to the utilization of quality control inspectors. Thereafter, Gerstein recalled, instruc- tions were issued to all the Company's plant managers that all overtime had to be eliminated, and that they should control all overhead costs. However, Gerstein stated that the decisions concerning what should be done about the floor inspectors was left up to subordinate su- pervision, including Weldon, and that he was not a party to individual decisions concerning personnel. i 2 Gerstein denied ever having given any direction or advice con- cerning terminating Hatcher and Dodd. Nor was he aware, he claimed, of any final decisions concerning whether or not they would be offered positions as sewing machine operators He admitted, however, that after his meeting in June with the quality control inspec- tors, he met with George Weldon and asked why Weldon had been a party to drawing up a letter, which he had the quality control inspectors sign, requesting that these employees be turned over to the Union. Weldon responded that he needed the flexibility in order to have them do the work. Weldon stated that he had talked to the employees affected "over the fact that they should join the union." Gerstein conceded that in his discussions with the group, the employees made it clear that they were unhappy about the way the matter was being han- dled and wanted to stay "company" employees. Gerstein generally described the Company's agreement with the Union as a procedure based upon a statistical sampling specifying how the work was to be inspected as it moved through the plant. He said it was agreed that the quality control inspectors could return the bundles if they found a certain percentage damaged, or if less than that percentage was damaged, the individual defective garments could be returned for repairs. He did not give any further details Gerstein testified that Hatcher and Dodd were told that an agreement had been reached with the Union only during their termination interview According to Gerstein, "I was told that a meeting was held by both Mr. Weldon and Flake Robinson and a meeting was held with the supervisors at which time they told them it was agreed that their job was a union position and they would have to go into the union and that in the case of the two plaintiffs, they were offered 11 The record has been denied any insight into any of these delibera- tions by Gerstein 's subordinates, since none of them appeared to testify Nevertheless, Gerstein also testified as follows Q (By counsel for the General Counsel, Mr Jamison) On what basis then would you, did you make the decision that they would become part of the bargaining unit? A My decision was based on the fact that my supervisors, the quality control department , did not feel that the existing quality, roving inspectors were doing an adequate job That they had to hire other inspectors that were part of the bargaining unit that to accom- plish the work load and to do everything the way we wanted it set up in our procedure that they had to do work that was part of the collective bargaining unit and therefore rather than have a grievance and be in violation of the contract that they should become part of the bargaining unit 185 another job and decided to quit rather than take the other position." (Tr. 226, LL 11-17.) 13 Charles Hatcher's testimony was somewhat more spe- cific than that of Harvey Gerstein Hatcher testified that, although quality control inspectors are not included in the bargaining unit description in article II of the con- tract, they are, he claimed, "examiners" within the mean- ing of schedule "A," subsection D, on page 12 of the supplement agreement Page one of that supplement shows that the supplementary agreement was entered into among the signatory parties on October 13, 1982. Hatcher testified that in the late fall of 1980 the Compa- ny and the Union agreed with Vice President of Manu- facturing Hank Iglauer that the quality control inspector classification should cease to be in the bargaining unit, and that these employees would only make spot checks, and not perform bargaining unit work. Thereafter the Company hired nonunion employees to fill the quality control inspectors' positions. However, shortly after George Weldon was hired in May 1983, Charles Hatcher received a report from Chairperson Denise Leech that Weldon had the in-line inspectors working as final in- spectors. Hatcher confirmed the truth of this report in a conference with Flake Robinson, who referred him to Weldon. Hatcher briefed Weldon on the history of the exclusion of the in-line quality control inspectors, and said the change was a situation the Union could not allow to exist He also admitted saying that if Weldon wanted those employees to begin doing additional work they would have to become a part of the bargaining unit. Weldon replied he would have to confer with his superi- ors concerning what to do. The next event which oc- curred within Hatcher's knowledge was his receipt of the June 28, 1983 letter from Weldon announcing the change and containing the signatures of the four in-line inspectors "who will be moving into the union." The Weldon letter and the events immediately thereaf- ter, described earlier in this decision, precipitated a union meeting with the employee membership, presided over by Hatcher in the Miss Elaine plant about June 16. Hatcher reviewed the in-line inspector problem for the Union's membership, and stated there were ongoing dis- cussions with the Company He said when the matter was resolved he would inform the membership of the specifics. Hatcher did not attempt to relate precisely what he said to the union workers at this meeting. How- ever, when asked by counsel "Did you on that occasion say that all the in-line inspectors would be required to join the union within two weeks or be out of a job?", Hatcher did not deny the threat, answering, "I never specified a time limit, sir." According to Hatcher, he and Rinaldo Panetta met Harvey Gerstein, George Weldon, and Director of Man- ufacturing Gary Campbell on July 18, and reached an agreement in principle that the in-line inspectors would begin performing bargaining unit functions and that they 13 Gerstein's account of what occurred at the August 29 meeting at which Hatcher and Dodd were discharged is the only company version. It is based on hearsay, and is not corroborated by the testimony of any other witnesses The Evelyn Hatcher-Shirley Dodd account of the termi- nation interview is credited 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have to become union members. At another meet- ing of those participants on August 8, the specific word- ing of the memorandum was finalized . Hatcher denied requesting that the Company "remove" Hatcher and Dodd or having anything to do with that action which he described as "management's decision." He stated he knew that Hatcher and Dodd were not union members, and that he never discussed union membership, the terms of the contract, or its training provisions with them However, Hatcher admitted that, pursuant to his instruc- tions, Chairperson Leech had reported that she'd talked with those employees, and had told them they would have to join the Union and to come to the office and sign a card. He also admitted that following his initial discussion with Weldon, he told Leech she could work as a quality control inspector and remain a member of the unit. I find that the Respondent Employer supported and assisted the Union in violation of Section 8(a)(1) and (2) of the Act, and the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by entering into, maintain- ing, and enforcing a memorandum of agreement which had the effect of extending the coverage of the existing collective-bargaining agreement and its union-security provisions to employees who had never before been members of the bargaining unit. The Respondent Union points out that at one time previously in-line inspectors had originally been included. Respondent Employer argues that the change was basically for a legitimate business purpose Neither of those arguments is entirely correct. At the time in 1980-1981 when the agreement to exclude in-line inspectors was made, it was also agreed that they would not perform unit work. Thereafter new nonunion employees were hired for these jobs, and until 1983 these employees performed different work func- tions, at different hours, wages, benefits, under different supervision, and with a different community of interests from unit employees On the other hand, from the Re- spondent Employer's viewpoint the specific arrangement finally agreed upon in July and August 1983 was as much for the purpose of satisfying the Union's demands as it was to achieve the business goals of the Company, since the other practical alternatives tried by Weldon had met with resistance In the end the wishes of the quality control inspectors were ignored, and the quality control inspector classification was taken into the bar- gaining unit without the affected employees ever having voluntarily designated the Union as their exclusive bar- gaining representative either through signed cards, or in an election. Moreover, they were never even shown a copy of the labor agreement nor did anyone bother to explain the union-security provisions to them or even inform them of the 30-day "grace" period in those provi- sions. They were simply told to join the Union or lose their jobs, conduct by company agents, and union agents, which I also find independently violates Section 8(a)(1) and Section 8(b)(1)(A) of the Act, respectively. In my view, the Act, designed as it is to protect employees' rights to select or reject a bargaining representative free from coercive influences, requires a higher standard of conduct than has been demonstrated here by the Compa- ny and the Union in pursuit of their own individual and common interests. I likewise find that the Respondent Employer dis- charged Hatcher and Dodd in violation of Section 8(a)(l), (2), and (3) of the Act As noted earlier the Em- ployer tried various means of accomplishing its business purpose of improving quality. Any of those alternatives had the potential of achieving quality improvement In the final analysis the method selected was that which sat- isfied the Union and avoided labor difficulties. The qual- ity control inspectors' rights were trampled in the proc- ess. The in-line inspectors were simply given an ultima- tum-sign up for the Union or lose their jobs. The em- ployees signed the Weldon letter but concertedly contin- ued to resist organization . After the agreement with the Union was concluded, the nonunion inspectors represent- ed the only remaining obstacle to the success of the ne- gotiations. They resisted becoming members of the Union when they were not obliged to do so. On August 29 they were removed in the presence and with the ac- quiescence of Chairperson Denise Leech The 30-day grace period under the contract was never mentioned It is argued that the Company's action in telling them to take a sewing machine (which they had not been trained to operate and were not, I find, offered training to oper- ate) is a transfer and not a discharge. This is an argument which attempts to differentiate between tweedle dum and tweedle dee At the very least the Employer's action is a constructive discharge in that Hatcher and Dodd were simply forced out of their jobs. Nor does the Com- pany's after-the-fact letter of October 7, 1983, to Field Examiner Grampp, the investigating Board agent, pro- vide any defense, since it does not offer reinstatement to the employees' former or substantially equivalent posi- tions, and was not communicated to the workers them- selves. I further find that the Union caused or attempted to cause the discharges of Hatcher and Dodd through its demonstrated complicity in the events leading up to their discharges It is true, as the Union argues, that there is no specific evidence that any representative of the Union actually requested that Evelyn Hatcher and Shirley Dodd be terminated. For that reason I consider this issue a somewhat closer one than that concerning the issue of the Respondent Employer's motive, where direct evi- dence does exist. Nevertheless, the strong circumstantial evidence persuades me that the Union recognized that its problem over the quality control inspectors could only be resolved, in the end, by the elimination of Hatcher and Dodd who steadfastly resisted organization. Thus, the Union rejected any arrangement with the Company other than one which necessarily led to this result. Charles Hatcher's statements to Chairperson Leech, when she reported that the in-line inspectors did not want to join, and particularly those to Gloria Lumpkins, which she repeated to Hatcher and Dodd, that they must join the Union or lose their jobs, clearly demonstrates the Union's participation in this matter. Finally, the pres- ence of Chairperson Leech during the discharge inter- view placed some degree of official sanction on the em- ployees' terminations. As an officer and agent of the MISS ELAINE, INC Union, it was her responsibility to police and fairly ad- minister the labor agreement for the Union and attempt to protect the Union from liability from any unlawful ac- tions by the Company Instead, she said nothing. Indeed, no one at the meeting even mentioned the union-security provisions. As one of the direct beneficiaries of the em- ployer's action, in accordance with Charles Hatcher's suggestion to her some weeks before, Leech accepted Weldon's outrageous statement that she and Bowen, who had never been inspectors, were more qualified to per- form inspection work than were Hatcher and Dodd. Thus, two of the most vocal union members from among the group of sewing machine operators who were pro- ducing the low quality work the employer asserted a desire to eliminate were awarded the responsibility for improving the quality of their Employer's product. I find that the Union violated Section 8(b)(1)(A) and (2) of the Act by its actions leading up to and resulting in the dis- charges of Evelyn Hatcher and Shirley Dodd on August 29, 1983. CONCLUSIONS OF LAW 1. The Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Employer unlawfully supported and as- sisted the Union in violation of Section 8(a)(1) and (2) of the Act, and Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by entering into, maintain- ing, and enforcing a memorandum of agreement which has the effect of extending the coverage of the existing collective-bargaining agreement containing union-securi- ty provisions to employees working in the classification of quality control inspectors (also known as in-line in- spectors, roving inspectors, quality control floor inspec- tors, or floor inspectors) even though Respondent Union had not been selected as bargaining agent by a majority of the employees in that classification, and by requiring those employees not previously included in the bargain- ing unit to become members of Respondent Union as a condition of employment and without affording such em- ployees 30 days within which to become members of Re- spondent Union. 4 Respondent Employer, through its supervisors and agents George Weldon and Hattie Webbs, violated Sec- tion 8(a)(1) and (2) of the Act by threatening its quality control inspectors not previously included in the bargain- ing unit that they must join the Union or be discharged 5 Respondent Union violated Section 8(b)(1)(A) of the Act, through its agents Business Representative Charles Hatcher and Executive Board Member Gloria Lumpkins, by threatening quality control inspectors employed by the Respondent Employer and not previously included in the bargaining unit that they must join the Union in 2 weeks or be discharged 6. Respondent Union violated Section 8(b)(1)(A) and (2) by causing or attempting to cause the Respondent Employer to discharge Evelyn Hatcher and Shirley Dodd because these employees protested and resisted being required to become members of Respondent Union 187 at times when they were under no obligation to do so, pursuant to the agreement described above in paragraph 3, and without affording Hatcher and Dodd 30 days within which to become members of the Union 7. The Respondent Employer violated Section 8(a)(1), (2), and (3) of the Act by discharging Evelyn Hatcher and Shirley Dodd for the reasons set forth above in para- graph 6 THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since I have found that the Respondent Employer un- lawfully supported and assisted the Union in violation of Section 8(a)(1) and (2) of the Act by entering into and enforcing a memorandum of agreement which has the effect of extending the coverage of the existing collec- tive-bargaining agreement containing union-security pro- visions to employees working in the classification of quality control inspectors (also known as in-line inspec- tors, roving inspectors, quality control floor inspectors, or floor inspectors) even though Respondent Union had not been selected as bargaining agent by a majority of the employees in that classification, I shall order the Re- spondent Employer to withdraw and withhold all recog- nition from the Union as the collective-bargaining repre- sentative of its quality control inspectors and cease and desist from giving effect to, maintaining, or enforcing the agreement or any extension, renewal, modification, or supplement thereto, unless and until the Union is certi- fied by the Board as the representative of the quality control inspectors pursuant to a Board-conducted elec- tion Having also found that the Respondent Union and the Respondent Employer violated Section 8(b)(1)(A) and (2) and Section 8(a)(1) and (3) of the Act, respectively, by enforcing their agreement through the discharges of Evelyn Hatcher and Shirley Dodd because they protest- ed and resisted being required to become members of Respondent Union at times when they were under no obligation to do so, and without affording Hatcher and Dodd 30 days within which to become members of the Union, I shall order that Respondent Employer offer im- mediate and full reinstatement to Evelyn Hatcher and Shirley Dodd to their former positions or, if such posi- tions no longer exist to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. I shall further order that the Respondent Em- ployer and the Respondent Union jointly and severally make Evelyn Hatcher and Shirley Dodd whole for any loss of earnings they may have suffered as a result of the discrimination against them, by the payment to them of backpay computed on a quarterly basis, plus interest, as prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977) 14 In the 14 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case of the Respondent Employer, its backpay obligation shall run from August 29, 1983, the date of the dis- charges, until it makes a proper offer of reinstatement, while the Respondent Union's backpay liability shall run from the date of the discharges to 5 days after it notifies the Respondent Employer and Evelyn Hatcher and Shir- ley Dodd that it has no objection to their reinstatement Furthermore, I shall order both Respondents to ex- punge from each of their files any reference to the un- lawful discharges, and to notify the affected employees, in writing, that the expunction has been accomplished and that the evidence of these unlawful discharges will not be used as a basis for actions against them. Finally, I shall order the Respondents to post appro- priate notices encompassing all violations found to have been committed, including but not limited to each Re- spondents conduct found to have independently violated Section 8(a)(1) and Section 8(b)(1)(A), respectively. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed15 ORDER A Respondent Miss Elaine, Inc, St. Louis, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Contributing support and assistance to Missouri- Mississippi Valley District Council and Texas-Oklahoma District Council, International Ladies' Garment Workers' Union, AFL-CIO, the Respondent Union, or to any other labor organization of its employees. (b) Giving effect to, maintaining, or enforcing the memorandum of agreement, or any extension, renewal, modification, or supplement thereto, which has the effect of extending the coverage of the existing collective- bar- gaining agreement containing union-security provisions to employees working in the classification of quality con- trol inspectors (also known as in-line inspectors, roving inspectors, quality control floor inspectors, or floor in- spectors) even though Respondent Union has not been selected as exclusive bargaining agent by a majority of the employees in that classification. (c) Threatening quality control inspectors not previ- ously included in the bargaining unit that they must join the Union or be discharged. (d) Discharging or otherwise discriminating against Evelyn Hatcher, Shirley Dodd, or any other quality con- trol inspectors because they protested and resisted being required to become members of Respondent Union at times when they were under no obligation to do so, and without affording them 30 days within which to become members of the Union. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) Withdraw and withhold all recognition from the Union as the exclusive collective-bargaining representa- tive of its quality control inspectors unless and until the Union is certified by the Board as the representative of the quality control inspectors pursuant to a Board-con- ducted election (b) Offer to Evelyn Hatcher and Shirley Dodd imme- diate and full reinstatement to their former positions or, if such positions no longer exist to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges. (c) Jointly and severally with Respondent Union make Evelyn Hatcher and Shirley Dodd whole for any loss of earnings they may have suffered as a result of the dis- crimination against them in the manner set forth in the section of this decision entitled "The Remedy." (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Expunge from its files any reference to the dis- charges of Evelyn Hatcher and Shirley Dodd on August 29, 1983, and notify them in writing that the expunction has been accomplished and that evidence of their unlaw- ful discharges will not be used as a basis for future per- sonnel actions against them. (1) Post at its St. Louis, Missouri, plant copies of the attached notice marked "Appendix A."' 6 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered byany other material. (g) Post at the same places and under the same condi- tions set forth in paragraph A,2,(f), above, copies of the attached notice marked "Appendix B." (h) Mail signed copies of "Appendix A" to the Re- gional Director for Region 14 for transmission to and posting by the Respondent Union. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. B. The Respondent, Missouri-Mississippi Valley Dis- trict Council and Texas-Oklahoma District Council, International Ladies' Garment Workers' Union, AFL- CIO, St Louis, Missouri, its officers, agents, and repre- sentatives, shall 1. Cease and desist from is If no exceptions are filed as provided by Sec 10246 of the Board's 16 If this Order is enforced by a Judgment of a United States Court of Rules and Regulations, the findings, conclusions, and recommended Appeals, the words in the notice reading "Posted by Order of the Na- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the tional Labor Relations Board " shall read "Posted Pursuant to a Judgment Board and all objections to them shall be deemed waived for all pur- of the United States Court of Appeals Enforcing an Order of the Nation- poses al Labor Relations Board " MISS ELAINE, INC (a) Acting as the exclusive collective-bargaining agent of the quality control inspectors (also known as in-line inspectors, roving inspectors, quality control floor in- spectors, or floor inspectors) employed by Miss Elaine, Inc., St. Louis, Missouri, unless and until the Union shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the employees (b) Giving effect to, maintaining, or enforcing the memorandum of agreement between the Respondent Union and the Respondent Employer, or any extension, renewal, modification, or supplement thereto, which has the effect of extending the coverage of the existing col- lective-bargaining agreement containing union security provisions to employees working in the classification of quality control inspectors (also known as in-line inspec- tors, roving inspectors, quality control floor inspectors, or floor inspectors). (c) Threatening quality control inspectors employed by the Respondent Employer and not previously includ- ed in the bargaining unit that they must join the Union in 2 weeks or be discharged. (d) Causing or attempting to cause the Respondent Employer to discharge or otherwise discriminate against Evelyn Hatcher and Shirley Dodd or any other employ- ees in violation of Section 8(a)(1) and (3) of the Act. (e) In any like or related manner restraining or coerc- ing employees of the Respondent Employer in the exer- cise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) Jointly and severally with the Respondent Employ- er make Evelyn Hatcher and Shirley Dodd whole for any loss of earnings they may have suffered as a result of the discrimination against them in the manner set forth in the section of this decision entitled "The Remedy." (b) Notify the Respondent Employer in writing that it has no objection to reinstating Evelyn Hatcher and Shir- ley Dodd, and send a copy of that written notification to those employees. (c) Expunge from its files any reference to the dis- charges of Evelyn Hatcher and Shirley Dodd on August 29, 1983, and notify them in writing that the expunction has been accomplished and that evidence of their unlaw- ful discharges will not be used as a basis for future ac- tions against them (d) Post at its office and meeting halls u' ed by or fre- quented by its members and employees it represents at the Respondent Employer's St. Louis, Missouri plant, 189 copies of the attached notice marked "Appendix B "17 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (e) Post at the same places and under the same condi- tions as set forth in paragraph B,2,(d), above, copies of the attached notice marked "Appendix A." (f) Mail signed copies of the attached notice marked "Appendix B" to the Regional Director for Region 14 for posting by the Respondent Employer. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 17 See fn 16, supra APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT in any like or related manner interfere with, restrain, or coer,;e our employees in the exercise of their rights guaranteed by Section 7 of the Act. MISS ELAINE, INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT in any like or related manner restrain or coerce employees of Miss Elaine, Inc., in the exercise of the rights guaranteed by Section 7 of the Act MISSOURI-MISSISSIPPI VALLEY DISTRICT COUNCIL AND TEXAS-OKLAHOMA DIS- TRICT COUNCIL, INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO