Russell-Newman Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1966

158 N.L.R.B. 1260 (N.L.R.B. 1966)

1260 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD
- NOTE -We will notify Clyde Clinton , if presently serving in the Armed Forces
of the United States , of -his right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Serv-
after discharge from the Armed Forces.ice Act as amended ,,
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 comunicate directly with the Board 's Regional Office, 1831
Nissen Building , 310 West Fourth Street , Winston-Salem , North Carolina, Tele-
phone No . 723-2911, Extension 302.
Russell-Newman , Manufacturing Co., Inc. and International
Ladies' Garment Workers' Union , AFL-CIO. Case No. 16-CA-
9318. June 1, 1966
DECISION AND ORDER
On December 7, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Charging Party and the General Counsel filed ex-
ceptions to the Trial Examiner's Decision and supporting briefs, and
Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and adopts the findings of the Trial Examiner only to the
extent consistent herewith.
The basic facts are as follows. Pursuant to a Decision on Review
issued by the Board on December 7, 1964, an election by secret ballot
among the employees of Respondent in the appropriate unit was con-
ducted by the Regional Director for Region 16 on January 26, 19651
The tally of ballots indicated that the Union had received a majority
of the votes cast. Thereafter, Respondent filed objections to conduct
affecting results of the election. On March 5, the Regional Director,
after an investigation, issued a supplemental decision in which he
overruled Respondent's objections, and certified the Union as the
1 Except where otherwise indicated , all dates are in 1965.
158 NLRB No. 117.
RUSSELL-NEWMAN MANUFACTURING CO., INC. 1261
collective -bargaining representative of Respondent 's employees. Re-
spondent then filed with the Board a timely request for review of this
decision , which was denied by the Board in a telegraphic order dated
March 26 (Case No . 16-RC-3714).
Pursuant to a charge filed April 16 by the Union, the complaint
herein was issued on May 6 alleging that Respondent refused to bar-
gain with the Union on and after March 10, in violation of Section
8(a) (5) of the Act. In its answer , Respondent admitted that it had
refused to bargain with the Union but contended that its refusal was
justified on the ground that the Board's certification of the Union
was invalid because statements in the Union 's election campaign
propaganda concerning the wage provisions of union contracts at
other plants constituted material misrepresentations of fact which
interfered with the freedom of choice of the employees at the election.
These alleged misrepresentations were the same as those relied on by
Respondent in its objections to the election filed in the original repre-
sentation proceeding.
The General Counsel then filed a motion to strike portions of
Respondent 's answer and a motion for judgment on the pleadings.
These motions were referred to the Trial Examiner . On May 28,
the Trial Examiner issued an order to show cause, accompanied by
an opinion, in 'which he indicated that since no hearing had been
held in the representation case with respect to the disputed election
propaganda , he would afford to Respondent an opportunity to show
what facts, if any, it was prepared to adduce contrary to those set
forth in the Regional Director 's supplemental decision , in support
of its position that the election should be set aside. . Respondent sub-
mitted its offer of proof, and on June 4, the Trial Examiner denied
the General Counsel 's motions.
Thereafter , on June 10, the General Counsel filed with the Board
a request for special permission to appeal the Trial Examiner's
rulings. The General Counsel contended that an examination of the
pleadings indicated the only real issue in this proceeding was whether
Respondent 's objections to the Union 's campaign propaganda should
be sustained and since this issue was settled in the underlying repre-
sentation case , under well-established Board rules , Respondent is not
entitled to an opportunity to relitigate these matters in the unfair
labor practice proceeding . On July 14, the Board denied this request
by the General Counsel and a hearing was held on September 27.
The issue whether Respondent has unlawfully refused to bargain
with the Union turns solely on whether the election herein, which
resulted in the Board's certification of the Union , should be set aside
because of alleged misrepresentations contained in campaign leaflets
distributed by the Union.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As described more fully in the Trial Examiner's Decision, on
January 25, the day before the election, the Union distributed a
handbill entitled "Election Final, Union Election Campaign Com-
mittee, ILGWU Newsletter " This handbill stated "yes, take a good
look at some of the many good things voting `yes' for the Union has
brought garment workers in some of the Union shops in Texas,
Oklahoma, and Arkansas-just in the last few months " The hand-
bill then listed five companies and referred to the wage increases or
minimum wages provided for in the new contracts, and went on to
desci ibe the new union contract at the Kabro plant in Houston,
Texas, as providing "a 25¢ an hour general increase for timeworkers "
The handbill also stated regarding the negotiations which were then
in progress for a new union contract that at the Nardis Company's
plant in Dallas, "the company has already offered the Union a 15d
an hour raise in minimum wage", and that the 800 union members
at the Bobbie Brooks plant in Arkansas "now have a new Union
contract which provides a minimum wage of $173 an hour for opera-
tors, $3 10 an hour for cutters, $2 05 an hour for spreaders and a 220
an hour increase for other time workers" The handbill also referred
to conti acts negotiated by the Union at other plants in Laredo,
Texas, and Bristow, Oklahoma The other leaflet which Respondent
alleged contained material misrepresentations included statements as
to provisions in the Kabro, L'iredo, and Bobbie Brooks contracts
relating to cutting and shipping department employees This leaflet
was distributed on January 26, the day of the election
The Trial Examiner initially rejected Respondent's contention that
The election had been conducted in an inappropriate unit, on the
ground that the issue as to the appropriateness of the unit had been
fully litigated in the representation proceeding, and the Board's
decision therein foreclosed fuithei litigation on this issue in the in-
stant unfair labor practice case We agree However, the Trial
Examiner considered Respondent's contention that certain statements
in the campaign propaganda constituted material misrepresentations
of fact, and concluded that although the statements contained in the
leaflets were otherwise accaitite in all important respects,' the election
should be set aside because the references in the leaflel s to minimum
wage sates and wage increases not effective "until years later" con-
stituted a deliberate effort on the part of the Union to mislead the
employees
2 The Trial Examiner found that the Union 's propaganda was inaccurate only as to a
2 cent error in the Nardis offer, a misstatement as to Nardis ' holiday offer inclusion of
shipping employees in Kabro's contract and the representation of a 25 cent incre'Ise for
Laredo cutting employees which did not materialize However he concluded that these
inaccuracies were not sufficient reason to set aside the election we agree with this
conclusion
RUSSELL-NEWMAN MANUFACTURING CO., INC . 1263
In making this finding, the Trial Examiner relied upon the lan-
guage in the leaflets used to describe the Kabro, Bobbie Brooks, and
Nardis contracts. Thus, the Trial Examiner noted that although the
leaflet stated that at Kabro the new contract "provides . . . a 25¢ an
hour general increase for time workers," the contract actually pro-
vided for a 10-cent-per-hour increase in 1965, a 10-cent increase in
1966, and a 5-cent increase in 1967; that the propaganda stated that
"the Nardis Company has already offered the Union a 15¢ an hour
raise in minimum wages" while the actual offer was for increases in
three 1-year stages of 4 cents, 4 cents, and 5 cents, respectively; and
that at the Bobbie Brooks plant, the minimum wage rates for opera-
tors, cutters, and spreaders and the 22-cent-per-hour increase for
other time workers, referred to in the union handbill, would not be
in effect until the third year of the contract. Relying upon the prin-
ciples set forth in Hollywood Ceramics,3 the Trial Examiner con-
cluded that the cumulative effect of the inaccuracies was substantial
enough to warrant setting aside the election, and since Respondent
therefore had never been under a legal obligation to bargain, he
recommended that the complaint be dismissed. The Trial Examiner
also stated that the Board might deem it advisable to vacate all pro-
ceedings in the underlying representation case and to direct an elec-
tion in that proceeding.
The General Counsel excepts to the Trial Examiner's findings,
arguing, inter alia, that a fair reading of the lea,iets refutes the Trial
Examiner's conclusion that the Union's failure to specify that the
increases mentioned in the propaganda were spread over the life
of the contracts constituted a deliberate effort on the part of the
Union to mislead the employees. The Union also excepts to the
Trial Examiner's findings, arguing that not only was the propaganda
accurate in all respects, but also that it is now common practice to
describe economic gains received under a contract in terms of the
total "cost of the package" since the future incr-,aces were guaranteed
by the contract.
We find merit in these exceptions. At the outset, we note that the
leaflet did not state that the full raises were immediately effective.
Rather the leaflet stated only that the contract "provides for" those
increases, and this is literally true. Moreover, the leaflet's reference
to the still inchoate Nardis contract further demonstrates that the
propaganda was referring to the ultimate wage increases to be gained,
rather than to any immediate increase because, in this instance, the
parties were engaged in negotiations for a new contract, and no
wage increase at all had become effective. Thus, the fact that the
propaganda fairly characterized the Nardis negotiations further
3 Hollywood Ceramics Company, Inc., 140 NLRB 221.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
serves to bolster our conclusion that the statements about the other
contracts were not misrepresentations.
The Trial Examiner's conclusion that the leaflet was sufficiently
misleading to warrant setting aside the election is in large part
predicated on the Union's failure to add that the wage increases
described in the leaflet would be effective "over a three-year period."
Although it is true that the addition of this phrase would have made
the statements unmistakably clear, so much so that no objection
would even have been tenable with respect to them, the omission is
scarcely enough, in itself, to justify the Trial Examiner's inference
that the Union's failure to add this phrase was deliberately intended
to mislead the employees. Indeed, in Hollywood Ceramics, supra,
the Board held that an election should be set aside only where there
has been a misrepresentation or similar campaign trickery which
involves "a substantial departure from the truth," and that it would
not set aside an election on the basis of propaganda where the mes-
sage is sought to convey was merely "inartistically or vaguely worded
and subject to different interpretations." This being so, we think
that the Union's propaganda herein, at worst, was an exaggeration
of fact, subject to different interpretations, and as such would not
constitute a sufficient basis for setting aside an election. Indeed,
we note that a characterization of a three-step wage increase in terms
of a total package is now a relatively common method of announcing
such benefits in newspapers, trade publications, and the like.
In concluding that the election should be set aside, the Trial Ex-
aminer recognized that the Regional Director, after considering the
union leaflets, had found that there was no merit in Respondent's
objections, and the Board had denied review of this decision. The
Trial Examiner stated that "the Board 's position may well have
rested, however, upon the belief that of all the rates and increases
claimed by the Union only the Kabro increase was of a deferred
type" and that the Board's view may well have been otherwise if
it realized "that the same characteristic inheres in the union's repre-
sentations at Brooks and Nardis, and applies not to merely one
figure in the literature but to six." But, the Regional Director's
supplemental report makes it clear that he was aware that the in-
creases at the Brooks and Nardis plants were also of a deferred type.
The report explicitly states that the Nardis offer was a "71/2 cent per
hour increase the first year with 4¢ per hour increase during the two
ensuing years of a three-year contract," and it contains an excerpt
from an article in Woman's Wear Daily and an article from the
Union's newspaper discussing in great detail the Brooks' contract
and indicating that the raises were over a 3-year period. Thus,
contrary to the Trial Examiner, it was on the basis of essentially
the same evidence that is before the Board in the instant case that
RUSSELL-NEWMAN MANUFACTURING Co., INC. 1265
the Regional Director concluded that the Union's campaign propa-
ganda did not "constitute a substantial departure from the truth
calculated to trick or delude employees," and that the Board refused
review of this decision.
In view of the foregoing and the record as a whole, we find, as did
the Regional Director, that the inaccuracies and misleading state-
ments, if any, were not substantial enough to require setting aside
the election. Accordingly, we find that on March 10, 1965, and at
all times thereafter, Respondent refused to bargain with the Union,
in violation of Section 8(a) (5) of the Act.4
The complaint alleged and the answer admits, that Respondent
refused to furnish to the Union, after its certification, data regarding
certain proposed changes in its operations that would affect employees
in the unit, and a list of employees in the unit, including their classi-
fications, seniority dates, and rates of pay. We find that such refusal
further violated Section 8 (a) (5).
The Remedy
Having found that Respondent has engaged in certain unfair labor
practices affecting cominerce, we shall order that it cease and desist
therefrom and take certain affirmative action in order to effectuate
the purposes of the Act.
We have found that Respondent violated Section 8(a) (5) of the
Act by refusing to recognize the Union and bargain in good faith
and by refusing to furnish certain data to the Union. We shall
therefore order that Respondent cease, and desist from refusing to
bargain and from refusing to furnish this data. We shall further
order that Respondent bargain, upon request, with the Union as the
exclusive representative of the employees in the appropriate unit and,
if an understanding is reached, embody such understanding in a
signed agreement, and that upon request, it furnish this data to the
Union.
Additional Conclusions of Law
Upon the basis of the foregoing findings of fact and the entire rec-
ord in this case, we hereby delete the Trial Examiner's conclusions of
law 4 and 5, and adopt new conclusions of law 4 through 6 as follows :
4. At all times since January 26, 1965, International Ladies' Gar-
ment Workers' Union, AFL-CIO, has been the exclusive representa-
4In view of our disposition herein , it is unnecessary to rule upon the Charging Party's
Motion to Reopen the Record.
Respondent moves that in the event the Board disagrees with the conclusion of the
Trial Examiner, the record be reopened in order that it be permitted to adduce certain
evidence excluded by the Trial Examiner, However, since Respondent made no clear
statement as to what evidence it proposed to adduce , and since in anyi event such evidence
apparently would be cumulative , we deny Respondent 's motion.
221-731-67-vol . 158-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Live of all the employees in the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay, 'wages, hours of
employment, or other terms and conditions of employment.
5. By refusing, on and after March 5, 1965, to bargain collectively
with the aforesaid labor organization as the exclusive representative
of its employees in the appropriate unit, and by refusing to furnish
certain data to the Union, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (5) and
(1) of the Act.
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.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
the Respondent, Russell-Newman Manufacturing Co., Inc., Denton,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of pay, wages,
hours of employment, or other terms and conditions of employment,
with International Ladies' Garment Workers' Union, AFL-CIO, as
the exclusive representative of its employees in the following appro-
priate unit : All production and maintenance employees at Respond-
ent's Denton, Texas, plant, excluding designers, office clerical employ-
ees, guards, and supervisors as defined in the Act.
(b) Refusing to furnish said labor organization, on request, data
concerning proposed changes in its operations that would affect
employees in the appropriate unit and a list of employees in the unit,
including their classifications, seniority dates, and rates of pay, as
requested by the Union in March 1965.
-(c) In any like or related manner interfering with the efforts of
the employees' exclusive representative to bargain collectively on their
behalf.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request meet and bargain collectively with International
Ladies' Garment Workers' Union, AFL-CIO, as the exclusive repre-
sentative of all of its employees in the unit found appropriate herein,
with respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment, and, if an understanding is
reached, embody such understanding in a written signed agreement.
(b) Upon request, make available to the Union data concerning
proposed changes in its operations that would affect employees in
RUSSELL-NEWMAIV MANUFACTURING CO., INC. 1267
the appropriate unit, and a list of employees in the unit, including
their classifications, seniority dates, and rates of pay, as requested by
the Union in March 1965.
(c) Post at its plants in Denton, Texas, copies of the attached
notice marked "Appendix." 5 Copies of said notice, to be furnished
by the Regional Director for Region 16, shall, after being duly signed
by the Company's representative, be posted immediately 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. The Company shall take reasonable steps
to ensure that such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 16, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
5 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree
of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with International
Ladies' Garment Workers' Union, AFL-CIO, as the exclusive
representative of all employees in the bargaining unit described
below concerning rates of pay, wages, hours of employment, and
other conditions of employment, and, if an understanding is
reached, embody it in a signed agreement. The bargaining unit
is :
All production and maintenance employees employed at the
Denton, Texas, plant, but excluding designers, office clerical
employees, guards, and supervisors as defined in the Act.
WE WILL, upon request, furnish to the above-named Union data
concerning proposed changes in our operations that would affect
employees in the appropriate unit and a list of employees in the
unit, including their classifications, seniority dates, and rates of
pay, in order that it may properly discharge its function as the
statutory bargaining representative of our employees in the bar-
gaining unit described above.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner refuse to bargain
collectively with said labor organization as the exclusive repre-
sentative of our employees in the bargaining unit as described
above.
RUSSELL-NEWMAN MANUFACTURING CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(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 compli-
ance with its provisions, they' may communicate directly with the
Board's Regional Office, Sixth Floor, Meacham Building, 110 West
Fifth Street, Fort Worth, Texas, Telephone No. 335-4211, Extension
2145.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , heard at Denton , Texas, September 27, 1965 , pursuant to a
charge filed the preceding April 16 and a complaint issued May 6, arises out of
Respondent's admitted refusal to bargain with the Charging Party, following the
latter's victory in a Board-conducted election on January 26, 1965 , and its certi-
fication the,following March 5. Respondent , contending that its refusal to bargain
was not•unlawful , urges that the certification was improperly issued because (1)
the unit was inappropriate and (2 ) the election was tainted by the Charging Party's
last minute resort to improper, false, and misleading campaign propaganda.
This matter first came before Trial Examiner Frederick U. Reel on General
Counsel's Motion for Judgment on the Pleadings , filed May 18, 1965 . After obtain-
ing responses to an Order to Show Cause , I denied this motion on June 7, 1965,
with an accompanying opinion in which I indicated that I believed a hearing would
be appropriate as to the issue Respondent raised over the campaign propaganda,
but not with respect to the other issues raised by Respondent , such as the appro-
priateness of the unit; as those issues had already been the subject of a formal
hearing. The testimony and exhibits introduced at the hearing before me were
therefore limited to that issue, except that the entire record in the representation
proceeding (Case No. 16-RC-3714) is a matter of official notice at this stage of the
proceeding, and becomes part of the record for purposes of judicial review , if such
review materializes.
On the basis of the entire record and on my observation of the witnesses, and
after full consideration of the briefs filed by each of the parties , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and I find, that Respondent, herein called the Company,
a Texas corporation engaged at Denton and at Pilot Point, Texas, in the manu-
facture of ladies' garments, annually ships products valued in excess of $50,000 to
points outside the State, and is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. I further find that the Charging Party, herein called
the Union, is a labor organization within the meaning of Section 2(5) of the Act.
This' is established by the contracts the Company itself introduced in evidence, as
well as by the proceedings in the representation case, and indeed is a subject of
such common knowledge, of so much published literature, and of so many, reported
cases, as to be subject to official notice. The Company's sworn answer insofar as
it questions the Union's status as a labor organization is hereby stricken as sham.
RUSSELL-NEWMAN MANUFACTURING CO, INC 1269
II THE ALLEGED UNFAIR LABOR PRACTICE
The Board on December 7, 1964, issued a decision in Case No 16-RC-3714,
affirming the Regional Director's earlier determination that "all production and
maintenance employees at the [Company's] Denton, Texas, plant, excluding design-
ers, office clerical employees, guards, and supervisors as defined in the Act" con-
stitutes a unit appropriate for the purposes of collective bargaining An election
was thereafter scheduled for Tuesday, January 26, 1965 The Union won this
election 108 to 75, and was thereafter certified as the representative of the employ-
ees in the aforesaid unit The Company at all times since the Union's certification
has refused to bargain with it and in defense to this prima facie violation of Sec-
tion 8(a)(5) and (1) challenges the appropriateness of the unit, and also urges
that the election should be set aside because of the Union's last minute resort to
what the Company contends is false and misleading propaganda So far as the
unit is concerned, this issue was fully litigated in the representation proceeding and
the matter is foreclosed at this level by the Board's decision I therefore find that
the above described unit is appropriate The facts with respect to the election
propaganda were in dispute, were not the subject of a hearing in the representation
proceeding, and hence were developed at the hearing before me We turn, there-
fore to a consideration of this issue
A The facts attending the dissemination of the challenged propaganda
As noted above, the election was scheduled for Tuesday, January 26, 1965, the
polls were open from 2 to 3 30 p in at the "sewing plant" and from 4 to 4 30 p m
at the `main plant " The preceding Saturday, January 23, the Union mailed cer-
tain campaign literature to the employees, a substantial number of whom received
this material after 2 p in on Monday, January 25 On the morning of the election,
January 26, the Union handed a further piece of campaign literature to the
employees
B The challenged statements and the truth or falsity thereof
1 Amedee Frocks and Laredo Mfg Co i
a The propaganda
The union liteiature stated that in the last few months new union contracts
were signed by Amedee Frocks and by Laredo Manufacturing Company provid-
ing every union member with a 25 cent per hour wage increase The literature also
included a representation that the contract provided a 25 cent hourly increase for
cutting department employees
b The contracts
The Union had executed new contracts covering those plants a few months
before the election in this case The previous contracts had provided, inter alia,
for an hourly wage rate of $1 10 an hour effective January 1, 1961, and $1 15 an
hour effective January 1, 1962 The contract further provided
However, if the federal minimum wage is increased after January 1, 1961, by
fifteen (150) an hour, each of the above minimums shall be increased by ten
(100) cents an hour on the effective dates provided above (but not prior to
the effective date of the increase in the federal minimum wage) and shall be
further increased by an additional five (50) cents six (6) months after the
said ten (100) cent increase is made effective
The Federal minimum wage was raised 15 cents an hour in legislation enacted
May 5, 1961, and effective 120 days thereafter, or in early September 29 U S C
206 The result was to raise the January 1, 1962, minimum to $125, and the
additional 5 cents referred to in the above provision should have been added a
few months later
The new contract provided a minimum wage for "all workers" effective in July
1964 and ranging from $1 25 per hour during the trial period to $140 after 6
months' experience The new contract further provided minimum wages for
"operators" commencing in September 1965, prescribing $1 25 per hour for the
trial period and ranging up to $1 50 per hour after 6 months' experience Finally
i The Union's contracts with these two employers are identical
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contract provided that in July 1964 timeworkers would "receive a compensating
wage increase to offset the reduction in work hours" from a 371/2 - to a 35-hour
workweek, and that pieceworkers would receive an increase of 7.14 percent.
. c. The testimony
The testimony of Union Representative Vickers is that the employees at Amedee
Frocks are hourly paid as are the Company's employees, whereas the great ma-
jority of the Laredo Manufacturing employees are pieceworkers. Vickers further
testified that by oral agreement the piece-rate increase for the Laredo workers was
13- percent, rather 7.14 percent as provided in the contract. According to Vickers,
he understood the applicable minimum hourly rate at Laredo and Amedee prior to
the signing of the new contract was $1.25, and he rather vaguely recalled hearing
that "the union and the [Laredo] Company got into a dispute over what the wage
should be since the federal minimum wage had been raised during this period of
time and as a result the wage increases stayed exactly where they were." Vickers
testified that Laredo employed one cutter and one apprentice, both hourly paid
employees. 'At one period he testified that a New York representative of the
concern owning Laredo Manufacturing orally agreed to give the cutting department
a 25-cent-an-hour increase ; later Vickers replied "I don't know" to the suggestion
of company counsel that the cutter 's increase had been 121 cents, rather than 25
cents, an hour . It also appears from Vickers' testimony that as late as September
1965 not all the cutting department at Laredo had received the wage increase he
thought had been agreed to. Finally, Vickers testified that while Amedee Frocks
had given a 25-cent wage increase to everyone , "Laredo Manufacturing Company,
with the exception of a. few people , have not."
2. Kabro of Houston, Inc.
a. The propaganda
The union literature stated that "The new union contract at Kabro, Inc. pro-
vides a minimum wage of $1.60 and a 25 cent an hour increase for timeworkers."
The union literature also recited that Kabro had "signed an agreement with the
Union granting a 25 cent an hour wage increase to the members in the Cutting
and Shipping Department."
b. The evidence
Vickers' testimony establishes that the wage increases referred to were provided
in a contract with Kabro which was never actually signed, as Kabro sold its busi-
ness to a New York company. The wage increases were in effect and were con-
tinued by the new owner, although a written contract was not executed until
August 1965. The 25-cent increase was spread over a 3-year period, 10 cents in
each of the first 2 years and 5 cents in the third. The contract executed in 1965
expressly excludes shipping clerks and deliverymen, as did the prior written contract
with Kabro. Vickers testified that the wage increase was given to "the people
in the cutting and shipping department."
3. Bobbie Brooks, Inc.
a. The propaganda
The union literature stated that at the Bobbie Brooks plants at West Helena and
Lepanto, Arkansas, more than 800 union members had a new contract which "pro-
vides a minimum wage of $1.73 an hour for operators, $3.10 an hour for cutters,
$2.05 an hour for spreaders, and a 220 an hour increase for other time workers."
b. The evidence
The Union's' contract with Bobbie Brooks, which had been agreed to but not
executed at the time the literature here in question was distributed (indeed, it had
not been reduced to writing at the time of the hearing), provided a minimum wage
of $1.73 for experienced pieceworkers effective January 3, 1967 (earlier increases
in the minimum were effective in January 1965 and January 1966). The new
agreement did not expressly provide new minimums for cutters and spreaders, but
it did provide for a three-step increase in their existing wages, which in effect amounted
by January 1967 to a 13 percent increase. Other time workers received a 22-cent
RUSSELL-NEWMAN MANUFACTURING CO., INC. 1271
wage increase over the 3-year span. The rates of $3.10 and $2.05, used in the
Union's propaganda, were arrived at by adding 13 percent to the cutter's rate of
$2.75 and to the spreader's rate of $1.80. According to Vickers, he knew that the
cutters at West Helena had a minimum hourly wage of $2.75 and the spreaders had
a minimum hourly wage of $1.80 when this agreement was reached. He further
testified that no cutters were employed at Lepanto.
Vickers testified that if at the time of the hearing any cutters or spreaders
employed by Bobbie Brooks were making $2.75 or $1.80, respectively, they were in
an "apprenticeship" and were not receiving the "top minimum." In the Brooks
contract immediately preceding that here in question, the minimum rates for
"experienced" cutters and spreaders were $2.75 and $1.80, respectively, after 2
months' employment, and "inexperienced" spreaders received the journeyman's
minimum after 6 months.
4. Nardis Sportswear
a. The propaganda
The Union's literature recited that "at the start of talks for a new Union Con-
tract, the Nardis Company has already offered the Union a 15 cent an hour raise
in minimum wages , more Holiday Pay; and the Company is looking favorably on
granting 2 weeks paid vacation for anyone who has worked 2 years or longer.
(They now have 2 wks. after 5 yrs.)"
b. The evidence
Werner Friedman, production manager of Nardis Sportswear, testified that at the
time of the union literature negotiations were in progress between Nardis and the
Union. At the last meeting prior to the distribution of the literature here in ques-
tion, Nardis had offered an increase in the minimum wage of 7V2 cents an hour,
and had also offered an overall increase in wages, over a 3 -year span , of 13 cents
an hour. Friedman further testified that at the time the parties agreed to pass the
issues of holidays and vacations to later negotiations.
Vickers testified as to the Nardis negotiations that when the Union proposed 2
weeks' vacation after 2 years' service, Nardis' counsel replied that if the differences
on wages could be resolved, he was sure the vacation matter could be settled.
Vickers also testified that the same attitude was reflected in the discussions of holi-
day pay, in that the Union had asked for an additional holiday and Nardis' counsel
said he was sure the matter could be worked out once the wage increases were
settled. At that time, however, the Company had not offered the Union more
holiday pay.
The contract later executed by Nardis and the Union, as compared with the pre-
ceding contract, granted an additional half-day's holiday, 2 weeks' vacation after
3 years' employment, and numerous wage increases, many of them more than 15
cents per hour, but only a 10-cent-per-hour increase in the minimum applicable to
all employees not covered by the rates established for particular classifications.
However, the new contract also provided for 71 cent hourly increases in 1965 and
again in 1966 , and hence effected a minimum increase of 15 cents for persons then
employed.
C. The subpenas and the offer of proof
The foregoing discussion sets forth the pertinent evidence concerning the truth
or falsity of propaganda, insofar as such evidence was admitted at the hearing. In
addition, the Company offered to prove through the testimony of Frank Martino,
vice president of the Company, that in conversations with Klein of Bobbie Brooks,
Bishins of Lily Lynn, Inc. (the owner of Kabro), and Gonzalez of Laredo Manu-
facturing, he had been told certain matters inconsistent with the statements con-
tained in the Union's propaganda. More specifically the Company offered to prove
through Martino that Klein told him Bobbie Brooks "has other cutters who are
getting a minimum of $2.75 per hour who are not journeymen; . . . that he also
has spreaders that are getting a minimum of $1.89, and that he has spreaders get-
ting a minimum of $1.80, and these are all classified as spreaders." As to Bishins,
Martino would have testified that Bishins told him the shipping department was
not included in the Kabro contract. As to Gonzalez, Martino would have testified
that Gonzalez told him that approximately 70 percent of Laredo's employees are
operators, that Laredo employees worked approximately 30 weeks a year, and that
"there is one cutter [at the plant] whose rate in February 1965 was $1.871/2 per
hour on a 35 hour week whose rate had been on July 11, 1964, $1.75 on a 371/2
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hour week." 2 I directed that the foregoing matters stand in the record as an offer
of proof, for I sustained objections to Martino's testifying along those lines on the
ground that the testimony would be hearsay, of no probative force.
In this connection it is appropriate to note that the Company had obtained sub-
poenas duces tecum directed to Klein, Bishins, and Gonzalez, each of whom had in
turn filed a motion to revoke which I granted. The subpenas in question directed
each of the men in question to produce at the hearing their company's current
contract with the Union, the next preceding contract, and all payroll records for the
period covered by the two contracts. A similar subpena was directed to Mr. Hon-
ore Ligarde of Amedee Frocks, Inc.
Each of the persons subpenaed alleged in their motions to revoke that they were
strangers to the controversy between the Company and the Union, and that furnish-
ing the payroll records would be unduly burdensome. Thereafter, the Company
apparently agreed with Ligarde not to insist upon his payroll records if Ligarde
would abandon his motion to revoke.
After the Union agreed to furnish the contracts here in issue. I quashed the
subpenas directed to Klein, Bishins, and Gonzalez.3 I did so because in my view
it was burdensome to impose on those men and their companies "the travel involved
(2,400 miles in the case of Klein, 3,600 miles for Bishins, and 1,000 miles for
Gonzalez) and the production of such extensive records. In this connection, the
Company's indication to Ligarde that it would waive the. request for his records
further indicated that the furnishing of the contracts would suffice. The Company
did not at any time apply for subpoenas ad testificandum.
At the hearing, the Company agreed not to press for Ligarde's testimony unless,
upon examining the Union-Amedee Frocks contract, the Company believed there
was any material variance between that contract and the contract with Laredo.
As the matter has been dormant since the close of the hearing, I must assume that
the Company is satisfied insofar as the Ligarde matter is concerned. The remain-
ing subpena matters are preserved in the record, so that the Company is free to
argue to the Board and to any other reviewing tribunal that erred in revoking the
subpenas. The subpenas, had they been kept in force, would have required Bishins
to journey from New Bedford, Massachusetts, and to produce all Kabro payrolls
since November 1960, Klein to travel from Cleveland, Ohio, with all Bobbie
Brooks payrolls at two Arkansas plants since January 1963, and Gonzalez to travel
from Laredo, Texas, with all his payrolls since July 1961?
D. Concluding findings
The facts summarized above disclose certain inaccuracies and some misleading
statements in the questioned literature. They may be summarized as follows:
1. At Nardis, the offered wage increase was 13, rather than 15, cents an hour,
and the 13-cent offer was spread over a 3-year period, a factor discussed more
fully below.
2. Also at Nardis, contrary to the Union's representation, the employer had not
offered more holiday pay.
3. At Kabro, the contract had not been "signed" (a technical misrepresentation
of no serious import in my view), the 25-cent increase was spread over 3 years (as
2 The transcript shows the last figure as 35 , but I am certain that company counsel said,
or meant to say, "371/2."
3 In addition to the extensive subpena matters introduced into evidence at the hearing,
certain correspondence pertaining thereto passed between me and the parties prior to the
hearing which correspondence was not introduced into evidence . To complete the record
I hereby incorporate into the records as Trial Examiner 's Exhibits 1-5 the following
documents:
1. (a) Letter of August 19, 1965, from company counsel to Trial Examiner.
(b) Unexecuted stipulation referred to in la, above
2. Trial Examiner 's letter in response , dated August 24. 1965.
3. Trial Examiner 's letter to all counsel , dated August 31, 1965.
4. Company counsel's reply to No . 3, dated September 9, 1965.
5. Union counsel 's reply to No. 3 dated September 15, 1965.
* In view of the observation of company counsel that "We subpenaed the people that
knew and that has been quashed on us," it may be appropriate to note that according to
the testimony of Vickers , the appearancw of Bishins might well have proved of little value
as Vickers ' dealings with Lily Lynn, Inc., were through one Abraham Teller, who was not
subpenaed , and not with Bishins.
RUSSELL-NEWMAN MANUFACTURING CO., INC. 1273
matter discussed below), and the agreement which the Union represented as apply-
ing to the "Cutting and Shipping Department" applied to cutting but not to
shipping.
4. At Brooks, the $1.73 minimum, the 22-cent increase, and the 13-percent
increase were not effective until 1967; the rates immediately effective called for a
$1.65 minimum , a 9-cent increase , and a 5-percent increase . Aside from those
matters, which are discussed below, the literature as to Brooks was inaccurate only
insofar as it referred to cutters at West Helena and Lepanto when there were no
cutters at the latter plant, and insofar as it referred to minimum wages for cutters
and spreaders which minimums applied only after 2 month's employment.
5. At Laredo and Amedee, whether the new contract provided a 20- or 25-cent
hourly increase depends on whether the employees had been paid $1.30 or a $1.25
under the old contract. That document by its terms seems to require a $1.30 mini-
mum as of its expiration date, but Vickers testified that a dispute had arisen and
that the employees were receiving only $1.25. The literature is incorrect, however,
insofar as it refers to a 25-cent hourly increase for cutting department employees
at Laredo. The cutter there received an hourly increase from $1.75 to $1.871/2 to
compensate for the reduction in weekly hours from 371/2 to 35.5 What the Union
referred to, however, was an oral agreement that Vickers made with Laredo's New
York owner to give the cutting department an increase in early September 1965
when the contract provided an increase for operators. At the time of the hearing,
however, in late September 1965, not all the cutting department employees had
received the increase in question.
In short, aside from the matters 'I have expressly reserved for discussion below,
the Union's literature was accurate in all important respects except for a 2-cent
error in the Nardis offer, the misstatement as to Nardis' holiday offer, the inclusion
of shipping in Kabro's contract, and the representation of a 25-cent increase for
Laredo cutting, which did not materialize.
The most important question as to the accuracy of the literature, however, is
that raised by its using as minimum wage rates and wage increases not effective
until years later. The literature invites the employees to "take a good look at some
of the many good things voting for the Union has brought garment workers ... just
in the last few months." It then recites that at Kabro the new contract "provides
... a 250 an hour general increase for time workers." But the Kabro agreement
provided a 10-cent increase in 1965, 10 cents more in 1966, and 5 cents more in
1967. The literature states that at Bobbie Brooks the employees "now have a new
Union contract which provides a minimum wage of $1.73 for operators; $3.10 an
hour for cutters; $2.05 an hour for spreaders; and a 220 an hour increase for
other timeworkers." The Brooks contract called for a minimum of $1.65 in 1965,
$1.70 in 1966, and $1.73 in 1967. It provided a 9-cent-an-hour increase in 1965,
9 cents more in 1966, and 4 cents more in 1967. And the $3.10 and $2.05 rates
were based on a 13-percent raise, a figure reached because the contract awarded
5 percent in 1965, 4 percent in 1966, and 3 percent in 1967, and the last two
increases were to be figured on the rates effective at the time of each increase,
making a total increment of about 13 percent over the then existing rate.
Similarly, the literature states that "the Nardis Company has already offered the
Union a 150 an hour raise in minimum wages," whereas the actual offer was in
three 1-year stages of 4 cents, 4 cents, and 5 cents, respectively.
As an original proposition I would regard this type of propaganda as deliber-
ately misleading. To tell employees that "contracts provide" certain minimums
which the Union "has brought . . . in the last few months" seems to me to imply
that those rates are now in effect. All that was needed to make the statements
accurate was to add the expression "over a 3 year period." The omission of that
simple phrase suggests to me a deliberate intention to mislead.
I am aware that Regional Director Davis feels otherwise, for in his Supple-
mental Decision and Certification he recites that the representations as to Brooks
"were both accurate and truthful," and he also recites that he examined the
Union's newspaper which fully reports the progressions in wages set forth above.
Also, in that same decision the Regional Director spells out the three steps needed
to reach the 25-cent increase at Kabro, and the Board denied review in a telegram
signed by the Associate Executive Secretary, which recited that the request for
review "raises no substantial issues warranting review."
The Board's position may well have rested, however, upon the belief that of
all the rates and increases claimed by the Union only the Kabro increase was of
5 $1.75 for a 371/2 hour week equals $1 . 871/ for a 35-hour week.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a deferred type. Its view may well be otherwise ( and in my judgment should be
otherwise ) when it realizes that the same characteristic inheres in the Union's
representations at Brooks and Nardis , and applies not to merely one figure in the
literature but to six.
The law relating to when elections will be set aside has been recently restated
by the Board in Hollywood Ceramics Company, Inc., 140 NLRB 221; see also the
note at 3 ALR 3d 889, 913-917. Without restating all the applicable principles,
I regard the cumulative effect of the inaccuracies and misleading statements here
to be so substantial as to require setting the election aside. 6 I therefore find that
the Company was not under a legal obligation to bargain with the Union and
recommend dismissal of the complaint.?
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The unit found appropriate in Case No. 16-RC-3714 is an appropriate bar-
gaining unit within the meaning of Section 9(b) of the Act.
4. The Union had not demonstrated in a valid election or by other means that
it represents a majority of the employees in the aforesaid unit , and the Company
was therefore under no legal obligation to bargain with the Union at any time
up to and including the date of the hearing in this proceeding.
5. The Company has not committed the unfair labor practices alleged in the
complaint.
[Recommended Order omitted from publication.] 8
E In so finding , I am not motivated by the fact that the various companies to which
the literature refers are not competitors of the Company, or that some of the rates referred
to were for pieceworkers whereas all the company employees are hourly paid. The Union's
literature covered all the plants in Texas and neighboring States in which the Union had
contracts.
4 The Union has urged that a bargaining order issue, and that the order include a
specific prohibition against unilateral action and a specific requirement for the production
of data. Correspondence in the record establishes that such provisions would be appro-
priate if the duty to bargain existed. See General Counsel 's Exhibits 3-14.
8 The Board may deem it advisable to vacate all proceedings in Case No . 16-RC-3716
which followed its decision of December 7, 1964, finding the unit appropriate , and to di-
rect the Regional Director to hold an election in that proceeding.
Baker & Drake , Inc., d/b/a Deluxe Taxi Service and Teamsters,
Chauffeurs, Warehousemen & Helpers Local 533, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America . Case No. 0O-CA-3548. June 3, 1966
DECISION AND ORDER
On March 18, 1966, Trial Examiner James R. Hemingway issued
his Decision 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 be dismissed
in its entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
158 NLRB No. 132.