Wintex Knitting Mill, Inc.

National Labor Relations Board - Board Decisions

May 5, 1976

223 N.L.R.B. 1293 (N.L.R.B. 1976)

NEWPORT DIVISION OF WINTEX KNITTING MILL, INC. 1293
Newport Division of Wintex Knitting Mill , Inc. and
United Textile Workers of America , AFL-CIO and
International Ladies Garment Workers Union, Par-
ty to the Contract . Case 10-CA-11040
L Delete paragraph 2(b) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
May 5, 1976
DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO, AND WALTHER
On December 22, 1975, Administrative Law Judge
Eugene E. Dixon issued the attached Decision in this
proceeding. Thereafter, Respondent and Party to the
Contract filed exceptions and supporting briefs, and
the General Counsel filed cross-exceptions to the Ad-
ministrative Law Judge's Decision.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent Newport
Division of Wintex Knitting Mill, Inc., Newport,
Tennessee, its officers, agents , successors, and as-
signs , shall take the action set forth in the recom-
mended Order, as so modified:
1 The Administrative Law Judge inadvertently stated that the representa-
tion petition was filed on July 26, 1974, whereas the record shows that the
petition was filed on July 26, 1973.
2 In par . 2(b) of the recommended Order, the Administrative Law Judge
ordered Respondent to reimburse employees for all initiation fees and dues
deducted from their pay pursuant to the collective -bargaining agreement
with the International Ladies Garment Workers Union. We note, however,
that the contract between Respondent and the International Ladies Gar-
ment Workers Union did not contain a union-security agreement but did
contain a voluntary union checkoff clause . We also note that there is no
evidence in the record that any employee was coerced or compelled to join
the Union or sign the checkoff authorization . Accordingly, where there is no
evidence that employees have been coerced into joining a union, we will not
order the reimbursement of initiation fees and dues that have been volun-
tarily paid by employees . See Lowell Corrugated Container Corporation, 177
NLRB 169, 173 (1969), enfd. 431 F.2d 1196 (C.A. 1, 1970). Where, however.
in other circumstances not present here, there is an affirmative showing that
employees are coerced into paying dues and joining a union, we will order
reimbursement of those moneys. See Baggett Industrial Construction Incor-
porated, 219 NLRB 171 (1975); R. L. Sweet Lumber Company. 207 NLRB
529, 540 (1973): Scottex Corporation, 200 NLRB 446. 452 (1972).
MEMBER WALTHER, concurring:
I concur in the finding of the majority that Re-
spondent violated Section 8(a)(2) and (1) of the Act
by recognizing and executing a contract with the In-
ternational Ladies Garment Workers Union. I do so,
however, because I find that Respondent has actively
aided and assisted the Garment Workers, and has
failed to accord equal treatment to United Textile
Workers. Accordingly, I concur in the result in this
case for the reasons set forth in my separate opinion
in Buck Knives, Inc., 223 NLRB 983 (1976), and
therefore find it unnecessary to consider the applica-
bility of Midwest Piping and Supply Co., 63 NLRB
1060 (1945).
The essential facts are few. The United Textile
Workers filed a representation petition for the pro-
duction and maintenance employees at Respondent's
Newport, Tennessee, plant on July 26, 1973. The
hearing in the representation proceeding was blocked
by 8(a)(1) and (3) unfair labor practice charges filed
by both the Textile Workers and the Garment Work-
ers in Case 10-CA-10459. The Textile Workers re-
quested the Regional Director to proceed with the
representation case, but the Garment Workers did
not make a similar request. On March 14, 1975, the
Board affirmed the Administrative Law Judge's De-
cision, finding the unfair labor practices as alleged?
In the meantime, on November 26 and 27, 1974, the
production and maintenance employees had erected
a picket line at the Wintex plant. The picketers de-
manded that Respondent recognize the Garment
Workers. On November 27, the Textile Workers sent
a telegram to Respondent advising Respondent that
the Textile Workers maintained a continuing interest
in representing the employees. On the same day, the
Garment Workers demanded a card check and rec-
ognition as representative of the employees, and
threatened to strike the "45-60" other plants of Re-
spondent then represented by the Garment Workers.
Respondent consented to the card check, which was
conducted forthwith by a neutral third party. The
results of the card check demonstrated that a majori-
ty of the employees had executed cards designating
the Garment Workers as their representative. Re-
spondent recognized the Garment Workers on this
basis and entered into negotiations with the Garment
Workers on December 3, 1974, which eventuated in
the execution of a contract on December 11, 1974.
Respondent's conduct clearly discriminated in fa-
216 NLRB 1058 (1975).
223 NLRB No. 195
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vor of the Garment Workers. Here, as in Buck
Knives, supra, the Respondent has recognized, bar-
gained with, and contracted with one of two compet-
ing labor organizations without giving notice to one
that it intended to determine the representation ques-
tion by means of a private card check. This distortion
of the selection process, by which the employees ex-
ercise their guaranteed right to choose freely their
collective-bargaining representative, is in clear con-
travention of the Act. Respondent's defense that it
was unaware of any active organizing efforts by the
Textile Workers for some period prior to its recogni-
tion of the Garment Workers falls in the face of the
Textile Workers November 27 telegram expressing
its continuing interest and in the face of the
Company's complete disregard of the Textile Work-
ers support among the employees. The fact that none
of the production and maintenance employees
crossed the Garment Workers picket line during a
1-day strike is no basis for inferring that the employ-
ees prefer one union to the other. It is equally infera-
ble that the employees were protesting the lack of
any resolution of the aged outstanding representa-
tion issue. Further, the cards submitted by the Gar-
ment Workers cannot be accorded controlling weight
where Respondent has not examined those cards in
light of the cards of the Textile Workers. Inasmuch
as the Textile Workers clearly had a colorable claim
to support among the employees, Respondent's re-
fusal to accord the same treatment to the Textile
Workers as it granted the Garment Workers is pre-
ferred treatment in violation of Section 8(a)(2) of the
Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL withdraw and withhold all recogni-
tion of International Ladies Garment Workers
Union as collective-bargaining representative of
our Newport Division of Wintex Knitting Mill,
Inc., employees unless and until that Union
shall have been certified by the National Labor
Relations Board as such representative.
WE WILL cease performing and giving effect to
our current collective-bargaining agreement
with International Ladies Garment Workers
Union assuring you, however, that we will not
vary or alter any of the substantive rights pro-
vided by such agreement or prevent your asser-
tion of them.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees
in the exercise of their rights to self-organiza-
tion , to bargain collectively through representa-
tives of their choosing, or to engage in concerted
activities for the purposes of collective bargain-
ing or other mutual aid or protection , or to re-
frain from any or all such activities.
All our employees are free to belong or not to be-
long to United Textile Workers of America, AFL-
CIO, International Ladies Garment Workers Union;
or any other union of their free choice.
NEWPORT DIVISION OF WINTER KNITTING
MILL, INC.
DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Administrative Law Judge: This pro-
ceeding, brought under Section 10(b) of the National La-
bor Relations Act, as amended, (61 Stat. 136), herein called
the Act, was heard at Newport, Tennessee, on July 1, 1975.
The complaint, dated January 2, 1975, was based upon
charges filed by United Textile Workers of America, AFL-
CIO (UTW) and served December 11, 1974, on Respon-
dent and on January 7, 1975, on International Ladies Gar-
ment Workers Union (ILGWU), Party to the Contract.
The complaint was issued by the Regional Director for
Region 10 (Atlanta, Georgia) of the National Labor Rela-
tions Board on behalf of its General Counsel, herein called
the Board and the General Counsel.
The complaint alleges that Respondent had engaged in
and was engaging in unfair labor practices by granting rec-
ognition to the ILGWU on November 27, 1974, as exclu-
sive collective-bargaining agent for its production and
maintenance employees and entering into a collective-bar-
gaining agreement on December 12, 1974, with that union,
thus assisting and supporting it in violation of Section
8(a)(2) and (1) of the Act.
In its duly filed answer, Respondent denied the commis-
sion of any unfair labor practices.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
At all times material Respondent has been a Delaware
corporation with an office and place of business located at
Newport, Tennessee, where it is engaged in the manufac-
ture and sale of double knit fabrics. During the past calen-
dar year, a representative period, Respondent sold and
shipped finished products valued in excess of $50,000 di-
rectly to customers located outside the State of Tennessee.
At all times material Respondent has been engaged in
NEWPORT DIVISION OF WINTEX KNITTING MILL, INC. 1295
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATIONS
United Textile Workers of America, AFL-CIO and In-
ternational Ladies Garment Workers Union at all times
material have been labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The facts are not in dispute. On July 26, 1974, United
Textile Workers of America, AFL-CIO (UTW) filed a rep-
resentation petition on behalf of the Wintex Production
and Maintenance Employees at Newport, Tennessee.
Thereafter, a notice of hearing in the representation case
was issued and a hearing was held at which the Interna-
tional Ladies Garment Workers Union (ILGWU) was al-
lowed to intervene, but no evidence was taken due to the
absence of Respondent's attorney and the hearing was con-
tinued to a future date. The hearing was never resumed due
to intervening unfair labor practice charges filed by both
the UTW in Case 10-CA-10435 and the ILGWU in Case
10-CA-10459. In the meantime, notwithstanding the pend-
ing unfair labor practice charges, the UTW filed a request
to proceed with the representation case but the ILGWU
did not and the R case hearing has not been resumed to
date.
The unfair labor practice charges were consolidated for
hearing which was held in January 1974. On June 27, 1974,
Administrative Law Judge Wellington Gillis issued his de-
cision finding violations of Section 8(a)(1) and (3) of the
Act. On March 14, 1975, his decision was affirmed by the
Board. On November 26 and 27, 1974, while the case was
still pending before the Board a work stoppage occurred at
the Wintex plant. None of the production and mainte-
nance employees crossed the picket line. The picketing em-
ployees carried makeshift picket signs asking Wintex to
recognize the ILGWU.
At 11:30 a.m. on November 27, 1974, the UTW sent a
wire to Wintex (copy to the Board) addressed to Benjamin
West, plant manager I as follows:
We are advised ILGWU has struck Wintex for rec-
ognition. As counsel for UTWA this will advise you of
UTWA's continuing interest in the question concern-
ing representation of Wintex employees.
Copy of this wire being sent to National Labor Re-
lations Board, Region 10, Attention Doug Marshall,
Board Agent.
The Regional Director for the ILGWU, Harry Berger,
was on the picket line both dates. On November 27, pur-
suant to a demand by ILGWU for a card check and recog-
nition and a threat to strike the "45 to 60" other Wintex
plants represented by the ILGWU, a card check was
agreed upon and the picketing was discontinued. The card
1 According to Joseph Wolfer, Wintex vice president, West had left Win-
tex some 6 or 7 months previously. Wolfer also testified that UTW's wire
did not come to his attention "at any time during the day of November 27.
check was conducted forthwith by a Reverend Bush who
found 96 valid cards (all claimed by Berger to have been
signed during the previous 6 months) out of 135 names on
the payroll. On the basis of the card check Respondent
recognized the ILGWU and a negotiation meeting was
held on December 3 at Newport. A second meeting was
held in Atlanta on December 11 at which time a contract
(effective November 25, 1974, to May 30, 1977) was agreed
upon and executed the following day.
In addition to the foregoing evidence, Berger testified
that during the 6 months preceding the recognition of the
ILGWU, there was no sign of the UTW on the scene while
the ILGWU had permanent organizers stationed in New-
port. On his part, Vice President Wolfer testified that dur-
ing the same period he heard "absolutely nothing" about
the UTW while hearing a great deal about the ILGWU's
organizational activity.2 He also admitted that he had nev-
er been advised by the Board that the R Petition filed by
the UTW had been withdrawn.
Conclusions
Under Board law established in 1945 in Midwest Piping
and Supply Co., Inc., 63 NLRB 1060 (1945) and followed
for three decades, Novak Logging Company, 119 NLRB
1573 (1958); Swift and Company, 128 NLRB 732 (1960);
Sweater Bee by Banff, Ltd., 197 NLRB 805 (1972); Inter-
Island Resorts, Ltd., d/b/a Kona Surf Hotel, 201 NLRB 139
(1973), it is an unfair labor practice for an employer to
recognize one of two or more competing unions while a
question of representation is pending before the Board by
virtue of the filing of a representation petition with the
Board.
Respondent, recognizing "that the Board has thus far,
adhered to its basic position with respect to Midwest Pip-
ing" nevertheless argues for a favorable decision contend-
ing that the instant case can be distinguished from the de-
cided cases chiefly on the grounds that here the R Petition
is 1-1/2 years old and that the UTW "may not have been
supported" by the card of one single employee in the bar-
gaining unit as of November 27, 1974. No mention is made
however of the intervening unfair labor practice case pend-
ing against Respondent during this period.
On its part, the ILGWU, referring to the rejection of the
Midwest Piping doctrine by some of the courts, Suburban
Transit Corp. v. N.L.R.B., 499 F.2d 78 (C.A. 3, 1974), cert.
denied, 419 U.S. 1089 (1974); N.L.R.B. v. Inter-Island Re-
sorts, Ltd., (Kona Surf Hotel), 507 F.2d 411 (C.A. 9, 1974);
American Bread Company v. N.L.R.B., 411 F.2d 147 (C.A.
6, 1969); Playskool, Inc. v. N.L.R.B., 477 F.2d 66, (C.A. 7,
1973), by implication expects an adverse decision noting
that the Board had stated in the Kona Surf Hotel case,
supra, that it would continue to adhere to the Midwest Pip-
ing doctrine until the Supreme Court settled the issue, add-
ing that "it may well be that in the instant case, the Board
2 On September 17. 1975, after the close of the hearing and briefs had
been filed a motion was made by the UTW to "reopen (the) case exclusively
to hear testimony and/or receive affidavits as the UTWA organizational
activities prior to employer recognition of ILGWU." The motion was de-
nied on the grounds that there was no representation that such evidence was
newly discovered or was unavailable prior to the hearing.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will once more seek certiorari which was denied to it on
December 23, 1974, in a case which came up from the third
circuit," i.e., Suburban Transit Corp. v. N.L.R. B., supra.
I see nothing in this record that would permit or require
me to hold for Respondent . Under the Board 's decisions, I
find that Respondent had no right to recognize the
ILGWU while the R Petition was pending before the
Board and that by so doing it showed its approval of the
ILGWU giving that union unwarranted prestige and en-
couraging membership in it and thus rendering it unlawful
assistance within the meaning of Section 8(a)(2) of the Act.
tive-bargaining agreement with that Union pertaining to
those employees while a representation petition was pend-
ing and a question concerning the representation of said
employees existed, Respondent has violated and continues
to violate Section 8(a)(2) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with the operations of the
Respondent described in section 1, above , have a close,
intimate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(2) and (1) of the
Act I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act. In this connection I shall recom-
mend that Respondent withdraw and withhold recognition
from International Ladies Garment Workers Union and
cease giving effect to the collective-bargaining contract
which that organization entered into on December 12,
1974, or to any modification , extension or renewal of that
contract unless and until the International Ladies Garment
Workers Union has been certified by the Board as bargain-
ing representative of the employees covered by such con-
tract.
Nothing in this recommended Order, however, shall be
deemed to permit Respondent to vary or abandon any of
the substantive features provided for in said contract or to
prejudice their assertion by the employees. I shall also rec-
ommend that Respondent reimburse employees for all the
initiation fees and dues deducted from their pay on behalf
of International Ladies Garment Workers Union under the
terms of the aforesaid agreement or any modification, ex-
tension or renewal of it.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. United Textile Workers of America, AFL-CIO and
International Ladies Garment Workers Union are labor
organizations within the meaning of Section 2(5) of the
Act.
2. By recognizing International Ladies Garment Work-
ers Union as the exclusive bargaining representative of
Respondent 's production and maintenance employees in
its Newport, Tennessee , plant and entering into a collec-
ORDER3
Respondent, Newport Division of Wintex Knitting Mill,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing International Ladies Garment Workers
Union as a collective-bargaining representative of
Respondent's employees as covered by the December 12,
1974, collective-bargaining contract between Respondent
and that union or any extension, modification, or renewal
thereof unless and until such labor organization shall have
been certified by the National Labor Relations Board as
such representative.
(b) Performing or giving effect to its December 12, 1974,
collective-bargaining agreement with said labor organiza-
tion or to any modification, extension, supplement or re-
newal thereof, unless and until said organization shall have
been certified by the National Labor Relations Board as
such bargaining agent, provided that nothing herein be
construed as permitting Respondent to vary or alter any of
the substantive terms and conditions of employment pro-
vided for iti the foregoing or to prejudice the assertion of
such by the employees.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
right to self-organization, to bargain collectively through
representatives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Subject to the limitations and exceptions set forth
above in the Remedy section, withdraw and withhold all
recognition from International Ladies Garment Workers
Union or any successor thereto as the representative of any
of the employees covered by the December 12, 1974, con-
tract unless and until said organization shall have been
certified by the National Labor Relations Board as the rep-
resentative of the employees concerned.
(b) Reimburse employees for all initiation fees and dues
deducted from their pay pursuant to the collective-bargain-
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order and all objections thereto shall be
deemed waived for all purposes.
NEWPORT DIVISION OF WINTEX KNITTING MILL, INC. 1297
ing agreement of December 12, 1974, or any subsequent
agreement on behalf of International Ladies Garment
Workers Union.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of initiation fees and dues to be
paid back to the employees under the terms of this recom-
mended Order.
(d) Post at its plant in Newport, Tennessee copies of the
attached notice marked "Appendix." 4 Copies of said no-
4 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United State Court of Appeals Enforcing an Order of the
National Labor Relations Board."
tice, on forms provided by the Regional Director for Re-
gion 10, after being duly signed by an authorized represen-
tative of Respondent, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material,
(e) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that unless on or before 20
days from the date of this Order the Respondent notify
said Regional Director, in writing, that it will comply with
the foregoing recommended Order, the National Labor
Relations Board issue an Order requiring it to take such
action.