Shreveport Garment Manufacturers

National Labor Relations Board - Board Decisions

Sep 14, 1961

133 N.L.R.B. 117 (N.L.R.B. 1961)

SHREVEPORT GARMENT MANUFACTURERS 117
All professional and technical employees of the Employer's medical
division at Mercury, Nevada, excluding all other employees, the resi-
dent doctor, and all other supervisors as defined in the Act.
(2) If a majority of the professional employees do not vote for
inclusion in a unit with the technical employees, we find that the fol-
lowing will constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
All technical employees of the Employer's medical division at Mer-
cury, Nevada, excluding all other employees and all supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS LEEDO311 and BROWN took no part in the consideration of
the above Decision and Direction of Elections.
Shreveport Garment Manufacturers and Amalgamated Cloth-
ing Workers of America , AFL-CIO. Case No. 15-CA-1853.
September 14, 1961
DECISION AND ORDER
On April 14, 1960, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint herein be dis-
missed, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
men dations of the Trial Examiner.'
[The Board dismissed the complaint.]
'In concurring in the result in this case, Chairman McCulloch relies particularly on
the Trial Examiner ' s determination ( footnote 2, Intermediate Report ) that the complaint
was not amended to raise the issue of the Respondent ' s good faith and this issue was not
litigated at the hearing
133 NLRB No. 18.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by Amalgamated Clothing Workers of America , AFL-CIO,
herein called the Union , the General Counsel of the National Labor Relations Board,
herein called the Board , by the Regional Director for the Fifteenth Region , issued his
complaint dated January 6, 1961 , against Shreveport Garment Company. By
amendment at the hearing the name of this company was changed in all the pleadings
to Shreveport Garment Manufacturers which is herein called the Respondent. The
complaint alleged that the Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and (5)
and Section 2(6) and ( 7) of the National Labor Relations Act, 61 Stat. 136, herein
called the Act. Copies of the complaint , charge, and notice of hearing were duly
served upon the parties. The Respondent 's answer denies the allegations of un-
lawful conduct in the complaint.
A hearing was held at Shreveport , Louisiana , on February 8, 1961 , before the
duly designated Trial Examiner . All parties were represented by counsel and were
afforded full opportunity to be heard , to examine and cross -examine witnesses, and
to introduce evidence and submit argument . Briefs filed by the General Counsel
and the Respondent after the close of the hearing have been carefully considered.
Upon the entire record in the case, and from observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America , AFL-CIO , is a labor organization
which admits to membership the employees of the Respondent.
II. PERTINENT BUSINESS AND COMMERCE FACTS
The allegation of the complaint that the Respondent is a Louisiana corporation
was amended to state that the Respondent is a business enterprise i which operates
three plants, one in Mansfield, Louisiana, and two in Shreveport, Louisiana. The Re-
spondent manufactures wearing apparel at each of these plants. 'In the operation of
these plants during the year ending November 15, 1960, the Respondent received
in excess of $100,000 for goods sold outside the State of Louisiana and received
shipment of goods valued in excess of $100,000 from points outside Louisiana. The
Respondent admits and it is here found that the Respondent is engaged in inter-
state commerce within the meaning of the Act and I further find that the Board's
assertion of jurisdiction over the Respondent's business in this proceeding will
effectuate the policies of the Act.
i Doubt was expressed by the parties at the hearing as to the legal status of the Re-
spondent. It was stipulated that until October 12, 1960, the Respondent was a co-
partnership existing under the laws of the State of Louisiana composed of David H
Goldman, Shirl S Shanhouse, wife of Raymond S. Morris, George Shanhouse, Raymond
S Morris, and Louise Scheinberg, and that the principal office and place of business of
the partnership was in Shreveport, Louisiana On October 12, 1960, the aforementioned
David H Goldman died and since then the business has been owned by the surviving
partners and the estate of David H Goldman and Mrs Isobel Goldman, wife of David H
Goldman On December 31, 1960, the interest of George Shanhouse was purchased by
Raymond S Morris Under the will of David H Goldman there were three named
executors The General Counsel's brief states that under the Civil Code of Louisiana,
Article 2876, Section 3, a partnership ends with the death of one of the partners, and
that other sections of the Code provide that there shall be such dissolution by death of
a partner unless there has been agreement made to provide for some other result. The
General Counsel points to lack of proof in the record of the existence of such agreement
The General Counsel further adverts to Article 738 of the Louisiana Code of Civil Pro-
cedure which provides that an unincorporated association may be sued in its own name,
and asserts that the Respondent is an "unincorporated association" within the meaning of
the Louisiana Code if it is no longer a parnership. A determination of the legal status
of the Respondent as a partnership or some other form of business enterprise might be
required were it necessary to direct the Respondent and its various named owners or
representatives to take remedial action Such determination is, however, obviated by the
dismissal of the complaint recommended below.
SHREVEPORT GARMENT MANUFACTURERS 119
III. THE ALLEGED UNFAIR LABOR PRACTICES
On December 14, 1959, the Union was certified by the Board as collective-
bargaining representative of the Respondent's production and maintenance employees.
On January 12, 1960, the Union began negotiations with the Respondent for a con-
tract. The 20th meeting between the parties took place on November 15, 1960. The
complaint alleges that on that date the parties had "reached final and full agreement
on all terms and provisions of a collective bargaining agreement," but that despite the
Union's request the Respondent refused and still refuses to sign a written contract
incorporating such agreement. By this refusal, the complaint further alleges the
Respondent violated Section 8 (a) (5) and (1) of the Act. The Respondent denies
that it came to a "final and full agreement on all terms and provisions" before the
Union demanded its signature to a contract. In view of the narrow pleading in this
case, if in fact the "final and full agreement" asserted by the complaint was not
reached before demand for execution, the allegation of unlawful refusal to sign
the contract must fall. It is appropriate to note at this point that this case was not
litigated on a "bad faith" bargaining theory, in the sense that the Respondent had en-
gaged in tactical maneuvers, such as stalling, evasion, etc., with intention of avoiding
the execution of a contract.2 The only question at issue concerns the fact that the
parties had or had not come to a complete understanding on all terms of a contract
before the Union demanded the Respondent's signature. Determination of that
fact issue requires resolution of inconsistent evidence in the record, but nothing more.
Attorneys Victor Hess and Richard C. Keenan had represented the Union and
Respondent, respectively, during the negotiations, at least during the crucial final
meetings of the parties. William C. Hall, the Union's assistant regional director, and
Raymond S. Morris, one of the Respondent's owners, were also present at these
meetings. Each testified concerning the events relevant to the decisive issue.
Hess related, and it is not denied, that at the next to the last meeting held on
November 3, 1960, the parties had reached agreement on all terms and conditions
which had been negotiated except the duration of the contract. The Union had pro-
posed a 1-year contract while the Respondent favored a 2-year term. The meeting
had ended with the understanding that Morris would discuss the question of term with
the other owners and persons involved with the Respondent's business and would
communicate with Hess by telephone on November 7. Morris did not call Hess that
day but sent a telegram which Hess received late on November 7 informing him that
the persons he needed to contact were unavailable and that he would communicate
with Hess the following week. Hess immediately replied to Morris by telegram
emphasizing that the only item on which there was not yet agreement was the term
of the contract, and again demanded the Respondent's answer, as promised at the last
meeting, by no later than November 11, 1960. Keenan called Hess the next day and
told Hess that there were "certain problems in connection with the company's answer
that was to be given at the end of the company's answer to the question of the term
which had been proposed" at the November 3 meeting. Keenan and Hess then
arranged a November 15 meeting of the parties.
At the November 15 meeting, as recounted by Hess, the latter reminded Keenan
and Morris of their promise previously made to tell the Union whether its proposed
1-year term was acceptable. Hess now renewed his request for the Respondent's
answer. Keenan raised a question concerning the identification or definition of em-
ployees. Hess insisted that the Respondent reply to his query as to the term. Keenan
interposed a question. He wanted to know, in the event the Respondent were to
agree to a 1-year term, what would be the Union's position on "excess employees."
By this reference Keenan adverted to the replacement by the Respondent of em-
ployees who had struck on April 27, 1960, and who were still on strike at the time
of the November 15 meeting, as well as to certain employees who the Respondent
believed had committed acts of misconduct during the strike which disqualified them
2At the hearing and with all counsel present I had informally discussed from the
bench the issues and the meaning of the complaint and had expressly stated to the General
Counsel's attorneys that I did not regard the complaint as drawn to be sufficiently broad
to encompass an allegation of bad-faith bargaining in the sense that the Respondent had
resorted to tactics designed to avoid the making of a contract Counsel were afforded an
opportunity to amend the complaint to include such allegation, but the invitation was
declined The General Counsel, nevertheless, has argued in his brief that the Respondent
engaged in conduct which constituted a "mere guise, device and/or scheme to attempt to
avoid its statutory duty to bargain and to sign the agreement the parties had reached "
I do not regard this "bad faith" theory of unlawful conduct germane to the issue raised by
the complaint and litigated in this case.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for future employment by, the Respondent. Hess retorted that the parties had met
to discuss only the one remaining question , namely the term of the contract. He
expressed his willingness to meet problems about employees as they arose under the
contract, but maintained this was not the time for such consideration. He reiterated
the Union's willingness to sign an agreement with a 1-year term. Keenan and Morris
then recessed. Upon resuming negotiations , Keenan asked Hess to state the Union's
interpretation of the seniority provision which had already been negotiated. Hess
reminded him that he was still awaiting the Respondent' s answer as to the contract
term. Hess and Hall then requested a recess. Upon their return to the bargaining
they stated the Union's acceptance of the agreement with the 2-year term proposed
by the Respondent. Keenan now asked whether the Respondent could choose a 1- or
2-year term. Hall consented. Hess reviewed the Respondent's insistence for a 2-year
term and the supporting reasons advanced. Keenan agreed this had been the Re-
spondent's position. Hess again declared the Union's acceptance of the Respondent's
proposal and requested ' signature of the contract by the parties. Keenan then an-
nounced that the Respondent would not sign the contract "until the excess em-
ployee problem was solved." Hess maintained that there had been agreement on a
complete contract and demanded the Respondent's signature. Keenan thereupon
expressed intent to amend the seniority provisions. Hess emphasized that the parties
had met not to renegotiate clauses long since agreed upon, that the parties now had
a complete agreement and he was calling for the Respondent's signature. Keenan
replied, "Well, if that is your attitude, I will tell you bluntly that we are withdrawing
certain provisions of the company, specifically portions of the seniority article." Hess
pointed out that if this were the Respondent's attitude the Union's negotiators were
"knocking [their] heads against a brick wall," and because of the Respondent's
refusal to sign a contract that the meeting should adjourn. There have been no
further contracts between the parties.
Hall's direct testimony was substantially in accord with Hess' version of the
events of the November 15 meeting. He had, however, given the General Counsel
a detailed affidavit during the investigation of the case describing these events. No
part of this affidavit was repudiated by him in his extensive cross-examination. Hall
explained that in making the affidavit he had relied upon notes he had taken at
the November 15 meeting of what had transpired there. According to his affidavit,
these notes were "especially complete." In the affidavit he related that after Hess
had demanded a statement by the Respondent as to the term of the contract Keenan
commented about the Respondent's business prospects and then questioned the
Union "regarding employees and further, who are employees." Hess acknowledged
the problems resulting from Goldman's death, and emphasized that all contract
clauses had been negotiated except the term and that he wanted the Respondent's
answer as to this. Hess also told Keenan that his question " as to employees was one
-of the Union could not answer at that time." Keenan then remarked that the "excess
employee" problem became critical upon Goldman's death. He stated that before
signing the contract, "an agreement had to be reached as to employee problem." He
asked Hess for the Union's position as to "excess personnel" if there were agreement
on a 1-year term. Hess replied that he did not know whether this problem could
be ironed out before first reaching an agreement. Keenan expressed the Respond-
ent's desire for an agreement concerning the return to work of striking employees.
In Hall's words, "he wanted a supplement to the agreement to take care of the excess
employees and, in general, a clear understanding of where the Company and the
Union stood on the excessive employee problem." Hess renewed his request for a
position on term. Keenan stated the Respondent had no answer to this question.
Hess reminded him that the meeting had been called to come to agreement on this
issue and demanded an answer. Keenan asked whether the Union was unwilling to
discuss the excess employee problem. Hess claimed it was not then appropriate to
discuss this matter and once more called for agreement on term, and then execution
of the contract. Keenan, still according to Hall's affidavit, "seem to indicate that
the Company might want a change in the contract depending on our approach or
answer to the excessive employee problem." Hess reiterated the Union's willingness
to sign a contract with a 1-year term. Keenan obtained a brief recess. Upon re-
turning to the bargaining he asked whether the Union would agree to apply the
seniority provisions only to persons presently employed by the Respondent. Hess
would speak only about the matter of term. Thereupon Hess and Hall conferred
privately. Upon resumption of the negotiations Hess announced the Union's ac-
ceptance of the Respondent's 2-year proposed term and called for execution of the
contract. Discussion of other problems, he said, could come afterward. Keenan
was then given a choice between a 1- and 2-year term, but declared the Respondent's
refusal to enter a contract until certain matters were settled. Hess cut off his remarks
SHREVEPORT GARMENT MANUFACTURERS 121
with a reminder that the Union was not interested in renegotiating clauses as to which
agreement had been reached. Keenan asserted the Respondent's withdrawal of
the seniority clause and the, meeting terminated at this juncture.
Morris' testimony was in substance a recital from contemporaneous notes he had
made at the November 15 meeting. Like the account in Hall's affidavit, Morris'
notes revealed that Hess pressed for an answer to the Union's request for a position
on the term of the contract and that Keenan, without responding to this demand,
sought to open discussion on the issue of "excess employees." In turn, according
to Morris, Hess refused to become involved in this area, and persisted in his demand
for a statement by the Respondent as to term. In the course of these discussions
Keenan had pointed out to Hess that the Union's position on the subject of "excess
employees" might require the Respondent to seek revision of certain contract provi-
sions already negotiated. Hess firmly insisted that these matters could not appropri-
ately be raised at that time, and that the matter of contract term had to be decided
before other subjects could be considered. With the negotiations in this posture the
union representatives obtained a recess and upon their return Hess announced the
Union's acceptance of the Respondent's proposed 2-year term. When Hess de-
manded that the contract be signed, Keenan refused to comply without first dis-
cussing the excess employee matter and with opportunity for modification of the
seniority clauses. Hess refused to engage in such discussion before final agreement
and execution of the contract. He maintained that the parties had made a contract.
Keenan denied this. In Morris' words, the parties were at "loggerheads" and so the
meeting came to an end.
Keenan testified that at the time of the November 15 meeting there was an excess
employee problem resulting from the strike about which, in his opinion as an ex-
perienced labor lawyer, there was legitimate concern by the Respondent; that to
protect the Respondent's interest he had sought discussion of the subject with the
possibility that the agreements previously negotiated, particularly the seniority clause,
would have to be altered by amendment or supplement to the contract depending on
the Union's position; that Hess had resisted any discussion of the subject before
agreement as to the term of the contract was reached and the contract was signed;
and that this had transpired before Hess had announced the Union's acceptance of
the Respondent's proposed 2-year term.
The essential conflict between the testimony of Hess and Hall on the one hand
and the testimony of Morris and Keenan on the other hand pertains to the sequence
of events at the November 15 meeting. Hess' testimony may be construed as mean-
ing that the Respondent's offer to consummate a contract with a 2-year term had
not been modified or withdrawn before its acceptance by the Union. Hall's testi-
mony on direct examination supports Hess' version. However, Hall's pretrial affi-
davit reveals that the Respondent had before the Union's acceptance of the proposed
2-year term introduced a new subject for negotiation which the Union refused to
consider. Morris' and Keenan's testimony consistently reflects the introduction by
the Respondent of this new subject as a matter for negotiation before the Union's
acceptance of the Respondent's proposed term. I am persuaded to rely on the con-
temporaneous written accounts of what transpired on November 15 rather than on
a witness' bare memory of these events. For this reason I find, in accord with the
version contained in Hall's affidavit and in Morris' notes, that before the Union
accepted the Respondent's proposed 2-year term the Respondent had raised other
matters for consideration which it believed might require alteration of terms already
negotiated and, particularly, might require modification of the seniority clause.
While a labor contract is sui gereris, like commercial or other contracts it comes
into being with binding effect only after there has been a meeting of the minds by
the contracting parties on a complete agreement. Such meeting of the minds may
occur by the acceptance of an outstanding offer which looks to the creation of a
binding contract upon acceptance. The General Counsel believes this occurred when
the Union stated its acceptance of the Respondent's proposed 2-year term. It does
not occur, however, where the offer is conditioned upon prior agreement as to other
unresolved matters.. The Respondent maintains that it had imposed a condition
upon its offer which required settlement by the parties before the Union's acceptance
of the proposed term could have transformed the Respondent's outstanding offer
into a binding contract. -Strictly as a matter of fundamental contract law, and with-
out regard to possible bad-faith motives, the Respondent effectively could have fore-
stalled a contract at any tim before acceptance of its outstanding offer by withdraw-
ing or changing its terms .3 /It did so in this case by raising for consideration before
the Union's acceptance of the proposed term the question of "excess employees"
a Williston on Contracts, 3d ed., vol. 1, sec. 55.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the express stipulation that the Union 's position on this subject might require a
supplement to or modification of agreements previously reached . Thus, when the
Union accepted the proposed term it no longer had before it an offer of a complete
agreement looking to a binding contract upon acceptance . Its act of acceptance did
not create a binding contract which the Respondent was statutorily compelled to
sign . The Respondent 's refusal to do so in this case was not violative of Section
8(a)(5) of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Shreveport Garment Manufacturers , Shreveport, Louisiana , is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. The allegations of the complaint that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 ( a)( I) and (5)
of the Act have not been sustained.
[Recommendations omitted from publication.]
Denson Electric Co., Inc. and Floyd R . Price, Roy Edward Fill-
yaw, Robert L. Barkheimer , Eldridge Lee McCormick, Clint
W. Parvin , Calvin E . Bryant , Jessie F. Withrow, and Billy
Ray Johnson . Cases Nos. 12-CA-1211,12-CA-1213,12-CA-1214,
12-CA-1215,12-CA-1216, 12-CA-1218, 12-CA-1219, and 12-CA-
1220. September 14, 1961
DECISION AND ORDER
On August 30, 1960, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged 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 Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Members Leedom,
Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed.' The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations except as indicated below.
'We find no merit in the Respondent 's motion to dismiss the complaint on the basis of
the alleged bias of the Trial Examiner and hereby deny the motion.
133 NLRB No. 7.