The Contract Knitter, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1975

220 N.L.R.B. 579 (N.L.R.B. 1975)

THE CONTRACT KNITTER, INC.
The Contract Knitter , Inc. and International Ladies'
Garment Workers ' Union , AFL-CIO, Petitioner.
Case 10-RC-9842
September 24, 1975
DECISION AND DIRECTION
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and ap-
proved by the Regional Director for Region 10 on
December 10, 1973, an election by secret ballot was
conducted on January 23 and 24, 1974, under the
direction and supervision of said Regional Director
among the employees in an appropriate unit. At the
conclusion of the election, the parties were furnished
with a tally of ballots which showed that, of approxi-
mately 280 eligible voters, 272 cast ballots, of which
132 were for, and 122 against, the Petitioner, 17 were
challenged, and I was void. The challenged ballots
were sufficient in number to affect the results of the
election and, on January 31, 1974, the Employer filed
timely objections to the election.
An investigation of the issues raised by the objec-
tions and challenges was conducted and, thereafter,
on May 24, 1974, the Regional Director issued and
served on the parties his Report on Objections and
Challenged Ballots. In his report, the Regional Direc-
tor recommended to the Board that Objections 1
through 6 be overruled, that Objection 7 be sus-
tained, and that a second election be directed. He
further recommended that the challenges to two bal-
lots be sustained, that the challenges to four ballots
be overruled, and that the segregated ballot be count-
ed as a valid vote for Petitioner. As to the 10 remain-
ing challenged ballots, he concluded that a final dis-
position be held in abeyance pending the disposition
of Cases 10-CA-10540 and 10-CA-10584.
Thereafter, the Employer filed limited exceptions
and a brief in support thereof, the Petitioner filed
exceptions, and the Employer filed an answering
brief to the Petitioner's exceptions.
Upon due consideration, the Board concluded that
substantial and material issues were presented by
Employer's Objections 3 and 7. Accordingly, the
Board ordered a hearing thereon. Thereafter, a hear-
ing was held before Hearing Officer Armin J. Moel-
ler, Jr., on October 8, 9, 10, 29, 30, and 31, 1974. All
parties were represented and afforded full opportuni-
ty to be heard, to present and examine witnesses, to
introduce relevant evidence, and to present oral ar-
guments during the course of the hearing. At the out-
579
set of the hearing, the Employer withdrew Objection
3.
On December 10, 1974, Hearing Officer Moeller
issued and served on the parties his Report and Rec-
ommendations on Objections. In his report, the
Hearing Officer recommended that Employer's Ob-
jection 7 be dismissed. Thereafter, the Employer filed
exceptions and a supporting brief. The Petitioner
filed limited exceptions, a brief in support of recom-
mendations, and an answering 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 au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the Em-
ployer within the meaning of Section 9(c)(I) and Sec-
tion 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees at
the Employer's Northport, Alabama, plant, in-
cluding pattern makers, inspectors, menders,
roving patrollers, lab assistants, shipping and re-
ceiving clerks, yarn room clerks and janitors, but
excluding office clerical employees, IBM depart-
ment employees, production clerks, foremen, as-
sistant foremen in knitting department, quality
control assistant supervisors, and all profession-
al employees, guards and all other supervisors as
defined in the Act.
5. The Board has considered the Hearing Officer's
report, the Employer's exceptions, the briefs, and the
entire record in the case, and, as hereinafter set forth,
finds said exceptions to be without merit.
The Employer's Objection 7, alleging material mis-
representations by Petitioner to which the Employer
had no opportunity to reply, concerns the contents of
certain campaign literature mailed by the Petitioner
to all eligible unit employees shortly before the elec-
tion.' The literature in question consists of five pages.
We have considered the Employer ' s motion to strike the Petitioner's
answering brief and find it to be without merit. Accordingly, it is hereby
denied.
2 The employees received the literature within I to 3 days before the
Continued
220 NLRB No. 31
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first page, or cover sheet, includes, inter alia, the
statement "We do the same kind of work, but what a
difference in pay! COMPARE THE ENCLOSED
CHECK STUBS!" The last four pages are photoco-
pies of payroll check stubs of 16 employees who
work in the Butte, Debra, and Andrew garment
plants? The 16 check stubs were labeled as follows: 6
from the Butte plant; 4 from the Debra plant; and 6
from the Andrew plant. These three plants comprise
the Butte Knitting Mills, Division of Jonathan Lo-
gan, Inc. Petitioner represents, under a collective-
bargaining agreement with Jonathan Logan, Inc., the
employees of these three plants.
The Employer is engaged in knitting or manufac-
turing fabric for various customers which operate
"cut and sew" or garment manufacturing plants. The
Employer's largest customer is Butte Knitting Mills,
Division of Jonathan Logan, Inc. The Employer as-
serts that the literature in question contained at least
three misrepresentations which together constitute
grounds for setting the election aside under the
Board's decision in Hollywood Ceramics Company,
Inc., 140 NLRB 221, 224 (1962). The three misrepre-
sentations allegedly contained in the literature are:
first, the check stubs are not those of employees who
do the same kind of work as that performed by the
Employer's employees; second, the check stubs from
the Andrew and Debra plants appear with captions
which create the impression that the workers were
paid on an hourly basis when in fact they were paid
on the basis of piece work; third, two job classifica-
tions ("Fixer and Knitter") were placed in such a
location, each between two different Butte check
stubs, that they did not correctly identify the job
classifications of the union members to whom they
applied.
In Hollywood Ceramics the Board stated that:
[A]n election should be set aside only where
there has been a misrepresentation or other simi-
lar campaign trickery which involves a substan-
tial departure from the truth, at a time which
prevents the other party or parties from making
an effective reply so that the misrepresentation,
whether deliberate or not, may reasonably be
expected to have a significant impact on the
election. However, the mere fact that a message
is inartistically or vaguely worded and subject to
different interpretations will not suffice to estab-
lish such misrepresentation as would lead us to
set the election aside. Such ambiguities, like ex-
travagant promises, derogatory statements
election and the Employer asserts that it first learned of it on the morning of
the first day of the election.
J The Butte plant is located in Spartanburg , South Carolina , while the
Debra and Andrew plants are located in or near Tuscaloosa , Alabama
Tuscaloosa is adjacent to Northport, Alabama , where the Employer's plant
is located.
about the other party, and minor distortions of
some facts, frequently occur in communication
between persons. But even where a misrepresen-
tation is shown to have been substantial, the
Board may still refuse to set aside the election if
it finds upon cosnideration of all the circum-
stances that the statement would not be likely to
have had a real impact on the election. For ex-
ample, the misrepresentation might have oc-
curred in connection with an unimportant mat-
ter so that it could only have a de minimus effect.
Or it would have been so extreme as to put the
employees on notice of its lack of truth under
the particular circumstances so that they could
not reasonably have relied on the assertion. Or,
the Board may find that the employees pos-
sessed independent knowledge with which to
evaluate the statement.
The Hearing Officer concluded, in view of Hollywood
Ceramics, that neither coercion nor campaign trick-
ery existed with respect to the literature; the alleged
misrepresentation did not involve a substantial de-
parture from the truth; and the alleged misrepresen-
tation did not have a tendency to materially mislead,
even assuming it involved a substantial departure
from the truth.
We believe, on the basis of the following evidence
adduced at the hearing, that the literature in question
did not involve a substantial departure from the truth
which could reasonably be expected to have had a
significant impact on the election. The evidence re-
veals that the work performed by the employees
whose names appear on the six Butte check stubs is
substantially similar to that performed by the
Employer's employees. Thus, witness Black, who was
vice president for personnel of Butte Knitting Mills,
Division of Jonathan Logan, Inc., testified that
O. R. Maybin was a knitter; R. M. Miller was a ten-
ter frame operator; L. J. Birch was a creeler; L. J.
Horton was a jacquard fixer; M. L. Dunlop was a
plain tube knitter; and W. T. Ridings was a tenter
frame operator. The record further discloses that
these job classifications concern job functions per-
formed by the Employer's employees.4
As to the literature with respect to the Andrew and
Debra check stubs, we do not believe, within the rule
of Hollywood Ceramics and upon consideration of all
of the following circumstances, that the literature
was likely to have had a real impact on the election.5
The relevant circumstances reveal the following.
4 In addition to the fact that the six Butte check stubs were from employ-
ees who actually performed similar work, the record reveals that the Peti-
tioner mailed certain literature, Empl. Exh . 3, to the employees on January
16, 1974 , which listed the various job classifications and minimum hourly
rates of pay applicable to the employees and the Butte plant
5In so concluding , we do not rely on the evidence in the record with
respect to the employees' subjective reaction to the literature.
THE CONTRACT KNITTER, INC.
First, the testimony of the witnesses, including those
of the Employer, establishes that the employees were
aware that the Debra and Andrew plants made gar-
ments .6 Second, the Petitioner passed out and dis-
cussed at its preelection meetings the contract which
it had with Jonathan Logan, Inc. Pointed out and
discussed at these meetings were those segments of
the agreement dealing with wage scales and job clas-
sifications. Some employees actually received copies
of the contract to show their friends and to use per-
sonally. The contract, including the wage and job
classification sections , was often discussed by union
representatives with employees during home visita-
tions. In addition to the foregoing, we do not feel
that the Petitioner's translation of the piece rate wag-
es or the Debra and Andrew check stubs into hourly
rates requires us to reach a contrary conclusion. This
follows for two reasons . First, the check stubs them-
selves have a box marked "piece wk." on them which
indicates piece work wages. Second, the Jonathan
Logan contract which was discussed with and made
available to the employees indicates that employees
of Debra and Andrew are paid on the basis of piece
work.
Under the foregoing circumstances, we find that
the Petitioner has not exceeded the bounds of fair
6 With respect to the employees ' knowledge of operations of the Debra
and Andrew plants , the record revealed that all the Employer's knitters
received knitting instructions and these instructions often had the name
"Butte Knitting Mills" at the top; most of the employees were aware that
the Employer's largest customer was Butte Knitting Mills, Division of Jona-
than. Logan ; most, if not all, employees were aware that the Debra and
Andrew plants were operated by Butte Knitting Mills (through reading the
signs in front of the plants ; through community knowledge; or through
applying for jobs at the plants); and many employees had friends or rela-
tives working at the Debra or Andrew plant
581
electioneering and has not interfered with the free
choice of the employees? Accordingly, we adopt the
Hearing Officer's recommendation that the
Employer's objection be overruled. We further adopt
the Regional Director's recommendations with re-
spect to the determinative challenges herein, except
as to the 10 challenged ballots involved in Cases 10-
CA-10540 and 10-CA-10584. As to these 10 chal-
lenged ballots, we will direct that they be opened and
counted since we have determined in 200 NLRB No.
30, that the 10 voters in question were improperly
discharged under the Act.
DIRECTION
It is hereby directed that the Regional Director for
Region 10 shall, pursuant to the Rules and Regula-
tions of the Board within 10 days from the date of
this Direction, open and count the ballots of Cliff
McIntosh, Bobby Miklic, Joan Crowell, Margaret
Watts, Norma Bates , Carol Frierson, Timothy Hall,
Debra Higginbotham, Judy Jones, Bobby Johnson,'
Jeanne Lollar, Mary McQuaig, Linda Newman, and
Charles Townsend and also count the segregated bal-
lot with the questionable marking as a valid vote for
the Petitioner and, thereafter, prepare and cause to
be served on the parties a revised tally of ballots,
including therein the count of said ballots. Upon the
basis of the revised tally, the Regional Director shall
issue the appropriate certification in accordance with
the Board's Rules and Regulations.
7 Member Penello agrees that the alleged misrepresentations do not war-
rant setting aside the election but does so because, for the reasons expressed
in his dissenting opinion in Medical Ancillary Services, Inc, 212 NLRB 582
(1974), he would overrule Hollywood Ceramics Company, Inc, 140 NLRB
221 (1962).
Chairman Murphy concurs in the result inasmuch as the same conclusion
is warranted under any view of Hollywood Ceramics