Annshire Garment Company, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1974

211 N.L.R.B. 595 (N.L.R.B. 1974)

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."