Miss Elaine, Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1985

274 N.L.R.B. 181 (N.L.R.B. 1985)

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