Russell-Newman Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1967

167 N.L.R.B. 1112 (N.L.R.B. 1967)

1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Russell-Newman Manufacturing Company , Inc. and
International Ladies' Garment Workers' Union,
AFL-CIO. Case 16-CA-2660
October 30, 1967
DECISION AND ORDER
4. Delete from paragraph 2(c) the last six words
"from the date of this Order."
5. Delete from the sixth indented paragraph of
the attached Appendix to the Trial Examiner's
Decision the last six words "from the date of the
Order."
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 27, 1966, Trial Examiner Herman
Tocker issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and Charging Party
filed exceptions to the Decision and Respondent
filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated 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 i and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, Rus-
sell-Newman Manufacturing Company, Inc.,
Denton and Pilot Point, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Delete the following language from paragraph
1(a) of the Trial Examiner's Recommended Order
and the first indented paragraph of the attached
Trial Examiner's Appendix:
". . . and (ii) any change in rate of pay for those
employees."
2. Delete the following language from paragraph
2(e) of the Trial Examiner's Recommended Order
and the seventh indented paragraph of the attached
Appendix:
. . or any change in their rate of pay."
3. Delete from paragraph 2(f) of the Trial Ex-
aminer's Recommended Order that part which
reads "to be furnished" and substitute therefor "on
forms provided. . ."
I For the reasons stated in our decision in Russell-Newman Mfg Co ,
Inc, Cases 16-CA-2116, 2138 (167 NLRB 1119), issued this day, the
General Counsel ' s and Charging Party ' s motions to consolidate that
proceeding with the instant case is denied
2 On January 30, 1967, the General Counsel filed a motion to amend
the complaint by deleting the 8 (a)(5) allegation insofar as it is based upon
the unilateral granting of the September 1966 10 -cent-an-hour wage in-
crease to employees at the unionized Denton plant The motion is not op-
posed , and we shall grant it, modifying the Trial Examiner ' s Recom-
mended Order accordingly
TRIAL EXAMINER'S DECISION
1. STATEMENT OF THE CASE
HERMAN TOCKER, Trial Examiner: This case was
heard before Trial Examiner Herman Tocker, in Denton,
Texas, October 18, 1966, upon a complaint issued by the
General Counsel June 23, 1966, as the same was
amended during and subsequent to the close of the hear-
ing, and the Respondent's answer served June 29, 1966,
as amended, during the hearing.
The complaint, as it has been developed by the succes-
sive amendments, alleges that following the certification
of International Ladies' Garment Workers' Union,
AFL-CIO, as the collective-bargaining agent of the
production and maintenance employees of Russell-New-
man Manufacturing Company, Inc., at its Denton, Texas,
plant, Russell-Newman violated Section 8(a)(5) of the
Labor Management Relations Act, 1947, as amended, by
unilaterally changing working conditions and unilaterally
granting a general wage increase at the Denton plant. It al-
leged also that Russell-Newman withheld from the
Denton employees a wage increase given to its em-
ployees at another plant thereby both discriminating
against the Denton employees who had been organized
and interfering with the organizing activities at the other
plant.
The Respondent admitted that it had granted the wage
increase to the employees at the other plant and had not
granted a similar increase to the Denton employees, that
it unilaterally had changed the working conditions of the
Denton employees (which change had been company-
wide) and also unilaterally granted the general wage in-
crease. It justifies the unilateral changes in pay and work-
ing conditions at the Denton plant by reliance on an ap-
peal now pending in the United States Court of Appeals
for the District of Columbia seeking nullification of the
Board's Order certifying the Union as bargaining agent
for that plant.
In general, the Respondent admitted all jurisdictional
allegations and denied that any of its actions were viola-
tions of the Act.
In its original and amended form the complaint was
concerned also with an alleged wrongful discharge of one
Joan Stubblefield but the General Counsel, following the
close of the hearing, moved that this count be withdrawn.
The motion is granted and all allegations with respect to
the Stubblefield discharge are eliminated from this
proceeding.
167 NLRB No. 156
11. THE ISSUES
RUSSELL-NEWMAN 1113
The issues are:
I Did the Respondent , in violation of Section 8(a)(5)
and thus of Section 8(a)(1) of the Act, unilaterally adopt
a minimum to its work point total system at the Denton
plant when it instituted the companywide change?
2. Did the Respondent , by granting a 5-cent wage in-
crease to its unorganized employees at its Pilot Point
plant , interfere with the organizing activities there in
violation of Section 8(a)(1) of the Act?
3. Did the Respondent , by failing to give a similar in-
crease to its employees at the Denton plant , discriminate
against them for having selected the Union as their bar-
gaining agent and thereby seek to discourage membership
in the Union, thus violating Section 8(a)(1) and (3) of the
Act?
4. Did the Respondent, by unilaterally granting a
general wage increase to its Denton employees at the
same time that it granted a similar wage increase to its
employees at the Pilot Point plant , violate Section 8(a)(5)
and (1) of the Act?
III. PRELIMINARY
Respondent has renewed a motion it made for a con-
tinuance by reason of the amendment of the complaint
during the course of the hearing to include the additional
charge concerned with the unilateral wage increase to the
Denton employees. Decision on that motion was
reserved pending the hearing of the evidence. Now that
I have heard all the evidence and have given due con-
sideration to the nature of the amendment it is my conclu-
sion that there was no need for the continuance, that the
Respondent has not been prejudiced and that the motion
should be and hereby is denied.
Respondent renewed, as well, certain other motions
made prior to and during the course of the hearing but
these are denied in view of my rulings and findings on the
merits
IV. BACKGROUND
The Respondent is engaged in the manufacture of
ladies' garments at three plants in Texas, only two of
which are involved in this proceeding, that at Denton and
that at Pilot Point, located approximately 18 miles apart.
During 1964 the Union engaged in activities seeking to
organize Respondent's employees at the Denton plant.
Following a decision on review issued by the Board
December 7, 1964, a Board-conducted election was held
January 26, 1965 Following Respondent's objections to
the election the Regional Director, on March 5, 1965, is-
sued a supplemental Decision overruling them and certi
fying the Union as the collective-bargaining representa-
tive of Respondent's employees at Denton. After various
intermediate proceedings, the Board, by Decision and
Order issued June 1, 1966, reaffirmed a prior denial of
Respondent's request for review of the Regional
Director's decision overruling the objections and certify-
ing the Union as collective-bargaining representative of
Respondent's employees. In the same Decision the
Board found that at all times since January 26, 1965, the
Union had been the exclusive representative of Respond-
ent's production and maintenance employees (with
some exceptions) in the Denton plant for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, or other terms and conditions of
employment . It found also that, by refusing on and after
March 5, 1965, to bargain collectively with the Union as
such exclusive representative , Respondent had engaged
in and was engaging in unfair labor practices within the
meaning of Section 8(a)(5) and ( 1) of the Act. (Case
16-CA-2318, 158 NLRB 1260.)
Petitions for review of this Decision are now pending
in the Courts of Appeals for both the Fifth Circuit and the
District of Columbia Circuit but 1, as an NLRB Trial Ex-
aminer, am bound by them.
Prior to the hearing in Case 16-CA-2318, Respondent
had been involved in another unfair labor practice case al-
leging violations of 8(a )( 1) of the Act including, among
others, an alleged unlawful 5-cent -per-hour increase
granted to its Pilot Point plant employees following the
Union' s announcement to those employees that it had
won the election at the Denton plant and its solicitation
of union authorization cards from them. The Board found
(153 NLRB 1312, 1315) that the wage increase to the
Pilot Point employees during an organizational campaign
but not to the Denton employees under the circumstances
mentioned "constituted an inducement to those em-
ployees not to support the Union " and was a violation of
Section 8(a)(1) of the Act In this connection it said,
It is well settled that the test of interference,
restraint, and coercion under Section 8(a)(1) turns
not on motive for the conduct, but on its reasonable
effect on the employees. The test is whether the em-
ployer engaged in conduct which, it may reasonably
be said, tends to interfere with the free exercise of
employee rights under the Act. Accordingly, we find
. that by granting the wage increase . under the
circumstances herein, the Respondent interfered
with, restrained, and coerced its employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act in violation of Section 8(a)(1) thereof. [Board's
footnote references are omitted.]
Respondent contends that the bringing of this proceed-
ing is unwarranted harassment because it is cumulative
only to the acts charged in the case decided by the Board
in 158 NLRB 1260 now pending before the court of ap-
peals and that whatever acts are involved in this case will
be subject to the decision ultimately made by a court of
appeals in the prior litigation. It is settled Board
procedure that cumulative or new acts in violation of law
may be prosecuted even though those acts may be subject
to the same ultimate conclusions of law as were made in
prior proceedings. Moreover , although Respondent con-
tends that this case is "100 percent dependent upon the
Court of Appeals' determination of 158 NLRB 1260,"
this actually is not so. In this case independent 8(a)(3) and
(1) violations are alleged which could result in an order
having entirely different remedial provisions than the
prior order and enforceable without regard to what ulti-
mately may happen to the order in 158 NLRB 1260.
In substance, the admitted unilateral actions of which
complaint is made in this proceeding are holding actions
designed to preserve Respondent's position that the
Board Order in Case 158 NLRB 1260 should not be en-
forced. In effect, it concedes that if the Board was right,
its unilateral conduct here was unlawful
After carefully considering the testimony given by all
the witnesses, after observing their conduct and
demeanor on the witness stand and, after having read
carefully the posthearing briefs submitted by the General
Counsel and by the Respondent, now, on the basis of the
entire record, I hereby make the following-
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. FINDINGS OF FACT
A. The Business of Respondent and Jurisdiction
Russell-Newman Manufacturing Company, Inc., is and
at all times material herein has been a corporation duly
organized and existing under and by virtue of the laws of
the State of Texas with its principal place of business in
the city of Denton, Texas, and with operating plants
there, at Pilot Point and Saint Jo, Texas, where it is en-
gaged in the manufacture of ladies' garments. During the
past 12 months, a representative period, it manufactured,
sold, and shipped from its Denton plant finished products
of a value in excess of $50,000 to places in States other
than the State of Texas. It is now and at all times material
herein has been an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
B. The Labor Organization Involved
International Ladies' Garment Workers' Union,
AFL-CIO, is now and at all times material herein has
been a labor organization within the meaning of Section
2(5) of the Act.
C. The Unfair Labor Practices
I. The 5-cent wage increase given to the Pilot Point
plant employees
On or about January 18, 1966, Russell-Newman
granted a 5-cent-per-hour wage increase to its employees
at the Pilot Point plant. This increase was given a little
less than one year after it had granted to the same
employees a similar increase found to have been a
violation of Section 8(a)(1) of the Act in 153 NLRB 1312.
It is Respondent's contention that it knew of no union
activities at the Pilot Point plant when it granted this
second increase. It is my finding, however, that the Union
did nothing which would have Justified the Respondent to
conclude that its organizing activities, begun in 1964, had
been abandoned by January 1966. Although, as appears
from testimony given by the Union's representative,
Vickers, when called by the Respondent as an adverse
witness, the campaign was not being aggressively con-
ducted, it appears also that in May, June, and July, 1965,
the Union attempted to obtain renewal cards from em-
ployees to replace cards which had expired during the
course of the preceding year. This effort was continued
throughout the year by an organizer who frequently
visited the Pilot Point plant. He had been there trying to
organize the employees during a period of approximately
two weeks in November 1965 Some progress was made
but he took a vacation at some unspecified time following
that and did not return to Pilot Point until about February
1966. The Union continued to correspond with commit-
tee members at the Pilot Point plant.
Respondent denies that it had knowledge of this con-
tinuing activity and there is no evidence which would sup-
port a finding of actual knowledge. On the other hand, the
overall picture cannot be ignored. The Union had been
successful at Denton. The Board had ordered the
Respondent to bargain with it The Union had become
more active in the Pilot Point organizing activity im-
mediately after its victory at Denton. The Company al-
ready was subject to a Board decision that the January
1965 5-cent-per-hour increase of Pilot Point was a viola-
tion of Section 8(a)(1). One may not assume that the
Respondent did not have continually thereafter an aware-
ness of the Union's desire to organize the Pilot Point em-
ployees. The contrary should be the normal assumption.
The Union's abandonment of its effort to organize Pilot
Point after its success at Denton, only 18 miles away, is
not lightly to be inferred. The granting of the second 5-
cent-per-hour increase in January 1966 can be interpreted
only as Respondent's way of telling the Pilot Point plant
employees that it was the source from which wage in-
creases and benefits came and that such wage increases
and benefits were obtainable without the assistance of a
labor organization. The message was made stronger by
withholding a similar or any increase from the Denton
employees who had selected the Union as their bargain-
ing agent. It seems clear to me that this is the "reasonable
effect on the employees" to which the Board referred in
the prior case, 153 NLRB 1312, from which I have
quoted above.
It is my conclusion and I find that this second 5-cent-
per-hour wage increase to the employees at the Pilot
Point plant, just as the first, "constituted an inducement
to (the Pilot Point employees) not to support the Union."
It was an interference with those employees in the exer-
cise of their rights guaranteed in Section 7 of the Act in
violation of Section 8(a)(1).
2. The failure to grant a similar 5-cent - per-hour increase
to the Denton employees at the same time that the in-
crease was given to the Pilot Point employees
The Denton employees were not granted any wage in-
crease in January 1966, the month when the Pilot Point
employees had been granted the 5-cent-per-hour in-
crease. As a matter of fact, Denton employees had
received no increase in pay following a 5-cent increase in
July 1963, an increase equivalent to that given the Pilot
Point employees at the same time. Conversely, during the
two and one-half years following, the Pilot Point em-
ployees received three successive 5-cent increases, April
29, 1964, February 3, 1965, and January 18, 1966. These
seem to have been coincidental with the Union's cam-
paign of organization which began in April 1964, had
been conducted actively at Denton, and had culminated
in its being certified as the bargaining representative of
those employees.
The Union had prevailed but Respondent ignored both
it and the Denton employees and withheld from them at
least two periodic increases (apart from the increase with
which we are here concerned) which had been granted to
the unorganized Pilot Point employees.
The pattern of increases at the Denton and Pilot Point
plants since 1958 does not justify a conclusion that every
time an increase was granted at one of these plants a
similar increase was granted at the other Nevertheless,
in the years 1959, 1960, 1961, and 1963 (before the union
activity), Denton employees were granted increases and
in each of those years and yearly thereafter until and in-
cluding the January 1966 increase, Pilot Point employees
were given increases. Also, the company policy is to
bring employees in both plants to the maximum wage rate
within 2 years, the work skills required of the employees
are the same in both plants, hospitalization plans in both
plants are identical, and the same paid or unpaid holidays
are allowed to all employees.
The Pilot Point plant had not been organized and the
Denton plant had been. The granting of 5-cent-per-hour
increase to the Pilot Point employees while the union or-
RUSSELL-NEWMAN 1115
ganization of the Denton plant was still under attack and
still the subject of active opposition can be regarded only
as seeking to impress the Denton employees with "the fu-
tility of unionism" to which the Board referred in another
context in the prior case, 153 NLRB 1312.
Respondent has submitted two charts to support its
claim that the Pilot Point plant was more efficient than
Denton and therefore merited an increase while the latter
did not. One of these charts depicts efficiency at the two
plants from March 1965 until July 1966 but there is
nothing in it which would explain why, in January 1966,
the Respondent should have been persuaded to grant an
increase to Pilot Point and not to Denton. The lines of ef-
ficiency at both plants seem to have been running parallel
throughout the period. The other chart demonstrates only
that Pilot showed a marked decrease of efficiency as its
slip operation was phased out while Denton showed a
marked increase of efficiency as it got into slip produc-
tion. These charts do not persuade me to alter my conclu-
sion that the increase at Pilot Point and the failure to
grant the same increase at Denton were discriminatory.
I find that under the circumstances with which the
Respondent and the employees at the Denton plant were
confronted at the time those employees were denied a 5-
cent-per-hour increase which had been granted to their
fellow employees in a plant only 18 miles away, the denial
of that increase was an interference with, a restraint of,
and a coercion upon its employees at Denton in the exer-
cise of their rights guaranteed in Section 7 of the Act in
violation of Section 8(a)(1) thereof. I find further that the
Respondent thereby sought to induce those employees to
abandon their selection of the Union as their collective-
bargaining agent and also sought to discourage their mem-
bership in the Union in violation of Section 8(a)(3) of the
Act.
3. The unilateral change in work point system
The Respondent admits that in February 1966 it in-
stituted a change in the work point system which set 275
points as the minimum desirable point average of produc-
tion to be maintained by employees and provided for
disciplinary actions to be taken against those not attaining
that minimum It contends that this change was made
February 18, 1966, the date of an intrasupervisory
memorandum not posted to the employees.
Respondent stresses the importance of this date
because it claims that the charge is barred by the limita-
tion in Section 10(b) of the Act to the effect, "That no
complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof
upon the person against whom such charge is made.
Assuming that a charge specifically addressed to this
particular unilateral action on the part of the Respondent
was necessary, the record discloses that a second
amended charge was filed and served August 24, 1966.
This charge alleged, "Respondent, on or about February
28, 1966, and continuously thereafter, unilaterally
changed terms and conditions of employment by chang
ing the point totals required of its employees at the
Denton, Texas, plant to reach in order to maintain their
required production quota." E. Milliner, who was
designated by the Respondent as the person having actual
knowledge of the facts, testified that no disclosure of this
point change had been made to the employees at the
Denton plant at any time on or before February 28, 1966.
The intrasupervisory memorandum cannot be held bind-
ing on the employees as of the date on which it might have
been circulated to the supervisors . Such a communication
does not become effective nor can the employees be
bound by it until such time as they are informed of its con-
tents.
Since this point change was not communicated to the
employees until some time after the end of February
1966, it is my conclusion and finding that a charge filed
and served on August 24, 1966, was filed and served in
due time and is not barred by the Statute of Limitations
contained in Section 10(b) of the Act.
Respondent contends further that this allegation of uni-
lateral change in terms and working conditions should be
dismissed because of another provision in Section 10(b)
which makes the filing of a charge a condition precedent
to the issuance and services of a complaint by the
General Counsel in this proceeding the complaint,
charging among other things the violation of Section
8(a)(5) of the Act because of the unilateral change in the
work point system , was served June 23, 1966, after the
filing of two charges against the Respondent. Respondent
argues that at the time no charge in support of this par-
ticular allegation had been made and it points to the fact
that the charge first was made, as noted above, on August
24, 1966.
Initially, since the charge actually was made prior to
the hearing herein , it could have been the basis for an
amended complaint even if the facts had not been alleged
in the original complaint . It would have been tautologous
for the General Counsel at that time to seek an amend-
ment of the complaint to set forth precisely what already
was set forth therein.
It is not necessary however to rest on this view. That
the complaint which issued following the filing of the
original charges contains, in addition to allegations sup-
ported by them, the allegations of the unilateral change of
the work point system requires the inferences that the
General Counsel learned of this change during the course
of his investigation of the charges . The Supreme Court,
in N L.R.B. v. Fant Milling Company, 360 U.S. 301,
306, quoting from National Licorice Company v.
N L.R.B , 309 U.S. 350, pointed out that there is "no
warrant in the language or purposes of the Act for saying
that it precludes the Board from dealing adequately with
unfair labor practices which are related to those alleged
in the charge and which grow out of them while the
proceeding is pending before the Board " At the time the
complaint was issued the General Counsel had before
him two charges alleging discriminatory action against the
Denton employees because of "their support of the
charging union and for the purpose of influencing em-
ployees at its other plants to reject unionization ." He had
before him as well the prior charges and Respondent's
conduct which constituted the deliberate and admitted in-
tention to ignore the Union which had been certified as
bargaining agent for the Denton plant employees
Moreover , both the original and first amended charge
contained the words, "and by other acts and conduct."
(As to the relevance of this "catch-all" phrase, see
N.L.R.B. v. Reliance Steel Products Company, 322 F 2d
49 (C.A. 5, 1963).)
The unilateral change in the work point system was
definitely related to the unfair labor practices alleged in
the charges previously filed with the Board and was a part
of the continuing pattern or course upon which Respond-
ent had embarked in its attitude to the Union . The al-
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legations of unilateral change of the work point system
were not made improperly in the complaint.
In N.L.R.B. v. Kohler Company , 220 F.2d 3, 7, 8
(C.A 7, 1955), upon which Respondent relies, the court
said:
(The acts charged ) were totally different kinds of acts
but done during a common endeavor for a single pur-
pose. Is this relationship enough to say that the com-
plaint was adequately supported by the charges? We
have answered this question in the affirmative ....
The six month limitation refers only to acts that
occur before the charge and does not prohibit the in-
clusion of similar or related acts happening after the
charge. Where, as here, the charge refers to part of a
continuing pattern of conduct, there is no reason why
the Board cannot allege specific acts which are part
of that pattern although they occurred after the
charge was filed.
This admitted unilateral change in the work point
system constituted an unlawful failure and refusal to bar-
gain collectively with the Union in violation of Section
8(a)(5) of the Act and thus of 8(a)(1).
4. The unilateral 10-cent-per-hour wage increase in
September 1966
Respondent admits that in September 1966 it increased
the wages of the employees at the Denton plant from
$1.50 maximum to $1.60 maximum per hour and that this
increase was made without any notification to or con-
sultation with the Union . ( In his written motion presented
at the hearing the General Counsel set the date at Sep-
tember 1, 1966, but in the transcript the date appears as
September 7.)
Because this wage increase was instituted without first
being the subject of notification or consultation with the
Union certified as the agent of its employees at Denton
for the purposes of collective bargaining , it constituted a
refusal to bargain collectively in violation of Section
8(a)(5) of the Act.
VI THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section C,
above , occurring in connection with its operations
described in section C, above, have a close , intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
VII. CONCLUSIONS OF LAW
1. By granting to the employees at Pilot Point an in-
crease in wages amounting to 5 cents per hour in January
1966, Respondent thereby sought to induce those em-
ployees not to support the Union and interfered with
them in the exercise of their rights guaranteed in Section
7 of the Act in violation of Section 8(a)(1).
2 By denying to its Denton employees the 5-cent-per-
hour increase which it had granted to the employees at
Pilot Point, Respondent discriminated as to the former in
the terms and conditions of their employment and thereby
sought to discourage membership in the International
Ladies' Garment Workers ' Union , AFL-CIO, which had
been chosen by them as their collective -bargaining agent,
in violation of Section 8(a)(3) of the Act.
3. By failing to grant that increase to the employees in
Denton at the same time that it granted such increase to
the employees at Pilot Point after the Denton employees
had selected the Union as their bargaining agent, Re-
spondent interfered with those employees in the exercise
of their rights guaranteed in Section 7 of the Act in
violation of Section 8(a)(1) thereof.
4. By unilaterally instituting the change in its work
point system which affected the working conditions of the
employees at Denton , Respondent unlawfully failed and
refused to bargain collectively with the agent selected by
those employees for collective bargaining in violation of
Section 8 (a)(5) of the Act and thus of Section 8(a)(1).
5. By unilaterally granting a 10-cent -per-hour wage in-
crease to its employees who were represented by the In-
ternational Ladies' Garment Workers' Union,
AFL-CIO, at its plant in Denton , Texas, Respondent
refused and failed to bargain collectively with that Union
and thereby violated Section 8(a)(5) of the Act and thus
Section 8(a)(1) as well.
6. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
VIII. THE REMEDY
Because of its continued failure and refusal to recog-
nize and bargain with the Union as the certified bargain-
ing representative of its employees at Denton and its re-
peated denial to those employees of wage increases
granted to unrepresented employees at another or other
plants, the Respondent has shown a strong antiunion at-
titude. Consequently , a broad cease-and-desist order
should be entered herein.
Because of Respondent 's failure and refusal to bargain
collectively with International Ladies' garment Workers'
Union , AFL-CIO, the bargaining agent certified for and
designated by the employees at its plant in Denton, Tex-
as, concerning the change in its work point total system
and the wage increase , the Respondent should be ordered
to cease and desist specifically from failing and refusing
to bargain collectively with that Union concerning any
change in such work point total system affecting the
production requirements for its employees at Denton and
any change in rates of pay for such employees, such
direction to supplement and not replace , supplant , limit,
or detract from any of the decretal provisions contained
in the order of the National Labor Relations Board issued
in Case 16-CA-2318 ( 158 NLRB 1260).
Such benefits as may have accrued to the Denton em-
ployees by reason of the September 1966 10-cent-per-
hour wage increase shall not be varied or abandoned by
reason of anything contained in the order of this Deci-
sion.
Since the change in the work point total system was in-
stituted unilaterally at a time when the Union was the cer-
tified bargaining agent of Respondent 's employees at the
Denton plant such change, to the extent that it may affect
those employees , should be rescinded forthwith.
The General Counsel requests that I recommend an
order specifying that the Denton employees shall receive,
retroactive to its effective date at the Pilot Point plant, the
5-cent-per-hour increase granted to the Pilot Point em-
RUSSELL-NEWMAN
ployees in January 1966 On November 14, 1966, the
Board issued a Decision in Schill Steel Products, Inc.,
161 NLRB 939, in which it said:
The Board has a particular duty under Section
10(c) to tailor its remedies to the unfair labor practice
which has occurred and thereby effectuate the poli-
cies of the Act. Thus, depending on the circum-
stances of each case, the Board must "take measures
designed to recreate the conditions and relationships
that would have been had there been no unfair labor
practices ." With this in mind , we have carefully con-
sidered all the circumstances of this case , including
the Respondent 's history of serious unfair labor prac-
tices and the nature of the violation found herein, and
have concluded that it will best effectuate the poli-
cies of the Act to modify the remedy recommended
by the Trial Examiner by ordering the Respondent tt
reimburse the employees, with 6 percent interest per
annum thereon , for the loss of any benefits which
would have accrued to them under the contract
which the Respondent refused to sign; and, in the
event the Union requests the Respondent to sign the
aforesaid contract , the expiration date thereof be ex-
tended until 1 year subsequent to the date on which
the Respondent signs it.
In view of what the Board has said in Schill , the request
of the General Counsel seems appropriate under the cir-
cumstances of this case . The Respondent, consequently,
should be ordered to adjust the wage rates of the unit em-
ployees in its plant at Denton , Texas, to conform such
rates to the rates they would have been had those em-
ployees been granted the 5-cent increase which they were
not granted when it was granted to the Pilot Point plant
employees.
As to all employees who were on the payroll in the unit
at the Denton plant at the end of, and at any time follow-
ing, the week in which the 5-cent increase should have
become effective, the Respondent should be ordered to
make such employees whole for any loss of pay which
they would have received had they been granted the 5-
cent-per-hour wage increase when the Pilot Point plant
employees were granted that increase . Such loss of pay
should be computed on the basis of the actual number of
hours worked by each such employee following such ef-
fective date and should be paid with interest at six percent
per annum computed from the date of the order.
Now, upon the foregoing findings of fact and conclu-
sions of law , and upon the entire record , and pursuant to
Section 10 (c) of the Act, I hereby issue the following
recommended
ORDER
Pursuant to Section 10 (c) of the Labor Management
Relations Act, 1947, as amended, the National Labor
Relations Board hereby orders that the Respondent, Rus-
sell-Newman Manufacturing Company, Inc., Denton,
Texas, its officers , agents, successors , and assigns , shall:
I Cease and desist from:
(a) Refusing and failing to bargain collectively with In-
ternational Ladies' Garment Workers' Union,
AFL-CIO, as the exclusive representative of its em-
ployees in the unit comprising all production and main-
1117
tenance employees at Respondent ' s Denton , Texas,
plant , excluding designers , office clerical employees,
guards, and supervisors as defined in the Act, concerning
(i) any change in the work point total system affecting the
production requirements for those employees and (ii)any.
change in rate o loyees.
(b) Discouraging membership in International Ladies'
Garment Workers' Union, AFL-CIO, or any other labor
organization , by granting or withholding any wage in-
crease , provided, however, that nothing in this Order
shall be construed as requiring the Respondent to reduce
or abandon any increase in wages heretofore granted to
any of its employees.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights to
self-organization , to form labor organizations , to join or
assist any labor organization , to bargain collectively
through representatives of their own choosing , to engage
in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain
from any and all such activities.
2. Take the following affirmative action which it is
hereby found will effectuate the policies of the Act:
(a) Forthwith rescind the notice and rule dated
February 18, 1966 , entitled , " Production policy on
Operators that are on Points ," to the extent that such
notice, rule, or policy may apply to or govern the produc-
tion requirements for employees in the aforedescribed
unit at its Denton plant.
(b) Forthwith adjust the wage rates of the employees
in said unit at its Denton plant by conforming such rates
to those employees would have been paid had they been
granted the 5-cent -per-hour wage increase which they
were not granted when it was granted to the employees in
its plant at Pilot Point , Texas.
(c) Make whole, for any loss of pay which they would
have received had they been granted the 5-cent-per-hour
wage increase when the Pilot Point employees were
granted that increase, all employees who were on the
payroll in the said unit at the Denton plant at the end of or
at any time following the week in which that increase
became effective at the Pilot Point plant , by paying to
each such employee an amount of money equivalent to
the difference between what he or she has been paid and
what he or she would have been paid if the increase had
been granted to the Denton employees when it was
granted to the Pilot Point employees, together with in-
terest at the rate of six percent per annum from the date
of this Order
(d) Preserve and, upon request , make available to the
Board and its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Upon request meet and bargain collectively with
International Ladies' Garment Workers' Union,
AFL-CIO , as the exclusive representative of all its em-
ployees in the aforesaid unit at Denton , Texas, with
respect to any change in its work point total system af-
fecting production requirements for those employees.-n[,
-ate-of-pay-i
(f) Post at its plant in Denton and Pilot Point , copies
1118 / - ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the attached notice marked "Appendix."' Copies of
said notice, o he iumis1 ed by the Regional Director for
Region 16, after being duly signed by the Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 16, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.2
' In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
2 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL bargain collectively with International
Ladies' Garment Workers' Union, AFL-CIO, as the
exclusive representative of our employees in the unit
comprising all production and maintenance em-
ployees at our Denton, Texas, plant, excluding
designers, office clerical employees, guards, and su-
pervisors as defined in the Act, concerning (i) any
change in the work point total system affecting the
production requirements for those employees and (ii)
any change in rate of pay for those employees.
Wit WILL NOT discourage membership in Interna-
tional Ladies' Garment Workers' Union, AFL-CIO,
or any other labor organization, by granting or
withholding any wage increase; provided, however,
that nothing in this notice shall be construed as
authorizing us to reduce or abandon any increase in
wages heretofore granted to any of our employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor or-
ganizations, to join or assist any tabor organization,
to bargain collectively through representatives of
their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection, and to refrain from any and all
such activities.
WE HEREBY rescind the notice and rule dated
February 18, 1966, entitled, "Production policy on
Operators that are on Points," to the extent that such
notice, rule, or policy may apply to or govern the
production requirements for employees in the
aforedescribed unit at our Denton plant.
WE WILL forthwith adjust the wage rates of the
employees in said unit at our Denton plant by con-
forming such wage rates to the rates those employees
would have been paid had they been granted the 5-
cent-per-hour wage increase which they were not
granted when it was granted to the employees in our
plant at Pilot Point, Texas.
WE WILL make whole, for any loss of pay which
they would have received had they been granted the
5-cent-per-hour wage increase when the Pilot Point
employees were granted that increase, all employees
who were on the payroll in the said unit at the
Denton plant at the end of or at any time following
the week in which that increase became effective at
the Pilot plant, by paying to each such employee an
amount of money equivalent to the difference
between what he or she has been paid and what he or
she would have been paid if increase had been
granted to the Denton employees when it was
granted to the Pilot Point employees, together with
interest at the rate of six percent per annum from
the date of the Order.
WE WILL upon request meet and bargain collec-
tively with International Ladies' Garment Workers'
Union, AFL-CIO, as the exclusive representative
of all our employees in the aforesaid unit at Denton,
Texas, with respect to any change in the work point
total system affecting production requirements for
those employees or any change in their rate of pay.
Dated By
RUSSELL-NEWMAN MANU-
FACTURING COMPANY, INC.
(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, Room 8A24,
819 Taylor Street, Fort Worth, Texas 76102, Telephone
817-334-2921, Extension 2131.