Bergen Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1958

122 N.L.R.B. 801 (N.L.R.B. 1958)

BERGEN KNITTING MILLS, INC. 801
Bergen Knitting Mills, Inc., Petitioner and Local 222, Inter-
national Ladies Garment Workers Union, AFL-CIO. Case No.
22-RM-42. December 31, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Clement P. Cull,
hearing officer, The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. The Employer is engaged in manufacturing sweaters at its
plant in Union City, New Jersey. It contends that the Union has
made a demand for recognition as the bargaining representative of
its employees and that the Union was picketing for that purpose.
The Union argues that it has made no demand for recognition and
that therefore no question concerning representation exists. It as-
serts that it does not represent the Employer's employees and that
its continued picketing is for organizational purposes only.
On September 18, 1958, the Union, without prior notice, com-
menced picketing the Employer's plant,' and 4 days later, on Sep-
tember 22, the Employer filed the petition herein. The pickets, at
times numbering from 3 to 40, impeded access to the plant by mass-
ing together and making entrance into the plant difficult. Delivery
trucks were stopped by pickets and some of them turned back with-
out making delivery. Pickets carried placards bearing the Union's
name and inscriptions such as "Stop Unfair Price Cut, Get Union
Pay, Join a Union," "Workers of Bergen Knit on Strike," and
"Workers of Bergen Strike for Union Agreement."2 The Employ-
er's president was also frequently accosted, on entering or leaving
the plant, by pickets calling to him to "sign a contract and get this
over with" and "why don't you go up to headquarters and get this
over with." Further, while picketing was in progress, the Employ-
' None of the Employer's employees appeared on the picket line until October 7.
2 The Employer ' s president testified that on October 13, he saw this latter sign along
with other picket signs resting against the plant fence . The existence of such sign is
not disputed.
122 NLRB No. 98.
505395-59-vol. 12 2-5 2
802 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
er's vice president approached a group of his employees who were
standing outside the plant and asked them to come to. work. Union
Business Agent Cooper stopped him with the assertion that if he
wanted to talk to these people he had to "do it through me because
I now represent them." Picketing was in progress at the time of
the hearing on October 10 and 13.
The record also shows that two representatives of the Union, on
three separate occasions after picketing had commenced, called the
Employer's president by telephone to request a private joint meeting
for the purpose of discussing "the problem," without identifying
what "the problem" was.3 The Employer's president testified that,
during these conversations, the additional subjects discussed in-
eluded : (1) the Union demands and how the Employer could meet
them; (2) the kind of proposed contract, i.e., it would be that of an
out-of-town agreement applicable to New Jersey, rather than the
New York agreement of the Union's sister Local 155, and (3) union-
contract benefits and terms which would be satisfactory to the
Employer.4
We are satisfied upon the entire record, that the Union's present
picketing is for the purpose of obtaining immediate recognition and
a contract. This is evident from all the circumstances of this case,
and particularly from the fact that union-contract demands and
terms were discussed with the Employer, that the Employer was
told it could talk to employees only through a union representative
who claimed to represent them, that picket signs stated the Em-
ployer's employees were on strike and were striking for a union
agreement, and that some delivery trucks were turned away from
the plant without being permitted to make a delivery.5 In these
circumstances, we find that the Union's picketing is tantamount to
.a present demand for recognition and its disclaimer ineffectual.6
Accordingly, we find that a question affecting commerce exists con-
.cerning the representation of employees of the Employer within the
meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act.
s The union witnesses admitted that they did not clarify the ambiguous expression
"the problem" in the conversations with the Employer. At the hearing , they explained
it as having reference to the organizational claims of another union, rather than a de-
mand for a contract by the Union.
4 Union Business Agent Cooper testified, and the Union admits, that there was some
discussion between the Employer 's president and business agent, Cooper , about union
contract benefits. However , the Union contends that the subject of contract was intro-
duced by the Employer. For the purposes of this decision we find it immaterial who
brought tip the matter of contract benefits.
5 We find without controlling effect the Union's contention that pickets merely en.
deavored to ascertain from truckdrivers the identity of their cargoes and suppliers for
use in the event its organizational efforts led to recognition and contract negotiation.
We note that Union Business Agent Cooper admitted he did not consider the pickets'
conversations with the truckdrivers as part of the union organizational drive.
9 See Atlantic-Pacific Manufacturing Corporation , 121 NLRB 783 ; Jerome F. Mundy
Co., Inc ., 116 NLRB 1487; Swee-T-Shirts, Inc., 111 NLRB 377 ; Francis Plating Co.,
109 NLRB 35.
WALDORF INSTRUMENT COMPANY 803
We shall therefore direct an election among the employees in the
unit hereinafter found appropriate.
4. The parties agree that a unit of production and maintenance
employees is appropriate but disagree as to the unit placement of
the shipping clerk, the porter, and a knitter mechanic, whom the
Union would include.
The shipping clerk receives and ships merchandise and supplies,
maintains records related thereto, and spends about 10 percent of
his time driving a truck. The porter cleans up the plant and also
assists in the shipping department. We find that these employees
have interests in common with the employees in the unit, and in
accordance with Board policy, we shall include them in the Unit .7
The Union would exclude the knitter mechanic solely because, un-
like other employees in the unit, he is paid on a salary basis. This
employee performs the same work as other employees in the unit
and receives the same benefits and treatment. As difference in the
manner of payment alone is no reason for exclusion8 and as the
knitter mechanic has interests in common with other employees in
the unit, we shall include him.
Accordingly, we find that the following employees at the Employ-
er's Union City, New Jersey, sweater manufacturing plant, consti-
tute an appropriate unit for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act: All production
and maintenance employees including the shipping clerk, porter, and
knitter mechanic but excluding office clerical employees, salesmen,
professional employees, guards, and supervisors as defined in the
Act.
[Text of Direction of Election omitted from publication.]
7 Jefferson Mille, Division of Kahn and Feldman, Inc., 120 NLRB 885 ( shipping clerk) ;
and Gluck Bros., Inc., 119 NLRB 1848 ( porter).
8 White Provision Company, 118 NLRB 1552, 1555.
Waldorf Instrument Company, Division of F. C . Huyck & Sons
and International Union of Electrical Radio and Machine
Workers, AFL-CIO, Petitioner. Case No. 2--RC-9356. Decem-
ber 81, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Milton A. Shaham,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
:122 NLRB No. 96.