Osage Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 30, 1968

173 N.L.R.B. 458 (N.L.R.B. 1968)

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