Glen Raven Knitting Mills, Inc.

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged as it is with the security of the Nation, does not consider the operation of commissaries to be of sufficient importance to the national defense so as to assume responsibility for them, I am at a loss to under- stand how this Board can presume to say that the furnishing of milk to a commissary is "directly related" to the national defense. Commissaries are not operated to feed the Armed Forces but to pro- vide a convenient grocery store for service personnel and their fam- ilies. If, as the result of a labor dispute, the Employer here could not supply milk to the Fort Bragg commissary, it would mean no more than that the service personnel and their families would have to travel about 10 miles to Fayetteville or Southern Pines, North Carolina, to buy their milk from some other grocery store until the commissary obtained a new supplier. The effect on national defense would be too infinitesimal to consider. The majority decision today makes meaningless the jurisdictional requirement of the Maytag case that the goods or services involved be "directly related" to the national defense. The majority should either give meaning to that requirement and decline to assert jurisdiction here or they should abandon it. To do neither is to confuse the public as to what in fact are the Board's jurisdictional standards for national defense enterprises. I would adhere to the standards established by the Maytag case. Ac- cordingly, I would dismiss the petition here for lack of jurisdiction. Glen Raven Knitting Mills, Inc. and American Federation of Hosiery Workers, AFL-CIO. Case No. 11-CA-868. February 15, 1956 DECISION AND ORDER Upon a charge duly filed on May 9, 1955, and an amended charge filed on June 2, 1955, by American Federation of Hosiery Workers, AFL-CIO, herein called the Union, the General Counsel of the Na- tional Labor Relations Board, herein called the General Counsel, by the Regional Director for the Eleventh Region, issued a complaint dated June 17, 1955, against Glen Raven Knitting Mills, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Act. Copies of the complaint, the charge, the amended charge, and the notice of hearing were duly served upon the Respondent and the Union on or about June 17,1955. With respect to the unfair labor practices, the complaint alleges in substance that on or about April 29, 1955, and at all times thereafter, 115 NLRB No. 66. GLEN RAVEN KNITTING MILLS, INC. 423 down to and including the issuance of the complaint, the Respondent refused to bargain collectively with the Union as the exclusive repre- sentative of all employees in an appropriate unit, although on April 15, 1955, the Board had certified the Union as the exclusive representative of all employees in the unit for the purposes of collective bargaining as the result of an election 1 held on April 7,1955, in which the Union was successful; that the Union was on April 7, 1955, and has been since that date, the exclusive representative of all employees in the unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment; and that on or about May 23,1955, the Respondent altered the working con- ditions of its employees in the said unit by instituting new knitting rates and changing knitting rates without giving notice to or consult- ing with the Union. On or about June 29, 1955, the Respondent filed an answer ad- mitting the allegations of the complaint, except that it denied that the unit in which the election was held was an appropriate unit, and denied that its actions constituted a violation of the statute as alleged. Thereafter all parties entered into a stipulation which set forth an agreed statement of facts, incorporating the entire record in the representation case proceeding, Case No. 11-RC-707, as well as the Union's April 19 letter to Respondent requesting specific information about wages and existing conditions of employment, and the Re- spondent's April 29 letter to the Union declining to recognize or deal with it as bargaining agent. The parties expressly, waived hearing before a Trial Examiner and agreed that a Trial Examiner might make appropriate findings of fact, conclusions of law, and recom- mendations to the Board based upon the stipulated record. The afore- said stipulation is hereby approved and accepted and made a part of the record in this case. On August 3, 1955, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8 (a) (1) and (5) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter both the Respondent and the General Counsel filed exceptions to the Intermediate Report. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner except as modi- fied below. 1 This election was directed by Board decision of Maich 10 , 1955 , in Case No. 11-RC-707 (not reported in printed volumes of Board Decisions and Orders ), after bearing in which the Respondent and the Union participated. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We reject, as without merit, the contentions raised by the Respond- ent in its exceptions with respect to the unit found appropriate in the representation proceeding in Case No. 11-RC-707 and the Union's certification based thereon, contentions identical with those which we have already overruled in the representation proceeding. A review of that proceeding affirms our opinion of the correctness of those rulings. The Respondent's exceptions raise no new or novel issues. The Board has fully explicated its position as to the appropriateness of a unit of full-fashioned hosiery knitters in Mock, Judson, Voehr- inger Company of North Carolina, Inc., 110 NLRB 437, and Angelica Hosiery Mills, Inc., 95 NLRB 1284. This record contains testimony by the Respondent's witness that'the knitting operation here is the same as that at the plant involved in the Mock, Judson case, where *e found appropriate a unit limited to knitters. In addition, the record shows that knitters constitute a department of the Respond- ent's Altamahaw plant, with separate supervision, and with skills and duties distinct from those of all other employees. The Respondent lays much stress on its contention that the Petitioner here more fre- quently represents plantwide units of hosiery workers and would have done so in this instance had sufficient employee interest been shown in the organizing campaign which led up to the petition for a knitters' unit. We consider this immaterial in the circumstances. As the Board observed in Angelica, the Act clearly contemplates, in Sec- tion 9 (b), the establishment of a plant "subdivision"-other than a traditional craft group-as an appropriate unit. No violence is done to Section 9 (c) (5) of the Act by establishing a unit which happens to coincide with the extent of a union's organization when that unit is appropriate by reason of its homogeneity, its distinct functions, and its identity as a subdivision of the plant. The unit of knitters here found appropriate is such a unit. The record does not support the Respondent's contention made at the representation case hearing that other groups of its employees have skills similar or comparable to those of knitters. The General Counsel terms his exceptions "technical."- Although in accord with the violation found, he excepts to the failure of the Trial Examiner to implement his findings by recommending (1) that the Respondent cease and desist from changing or effecting new knitting rates, or otherwise altering the working conditions of the employees in the bargaining unit without giving notice to and consulting with the Union, and (2) that the Respondent, upon request, furnish the Union with the wage and related information requested in the Union's letter request to bargain of April 19, 1955. We find that these exceptions have merit. The Trial Examiner found, properly on the record, that the Respondent's change in knitting rates without notice to or consul- GLEN RAVEN KNITTING MILLS, INC. 425 tation with the Union was in derogation of its duty to bargain, and also that the Respondent's refusal to supply the information requested by the Union constituted a refusal to bargain. We shall fashion our order to cover specifically these violations. With respect to the refusal to furnish information, we shall order the Respondent to furnish the Union wage and related data relevant to wages.' The precise informa- tion sought by the Union is not ascertainable from the record, as the forms attached to its letter of request of April 19, 1955, were not made a part of the record. However, the letter states that the forms sought "an accurate description of your various style constructions." The testimony of Respondent's vice president is that the Employer makes numerous styles of hosiery and that the knitter's pay, which is on a piece-rate basis, depends upon the style of hose being knitted. It is thus obvious that information as to style construction is related data relevant to wages-indeed, it would seem essential to intelligent nego- tiation of piece-rate wages. Our colleague dissents from the form of our order because it provides for furnishing wage and related data "relevant to wages" instead of "relevant and necessary." He asserts that the Oregon Coast Operators case requires the addition of the word "necessary." We note first that in the Whitin Machine Works deci- sion, in which our dissenting colleague joined, this Board held that a union is entitled to "all wage information essential to the intelligent representation of employees" and stated with reference to wage data cases that. "we agree with the statement of our concurring colleague, that in these cases it is sufficient that the information sought by the Union is related to the issues involved in collective bargaining, and that no specific need as to a particular issue must be shown." [Empha- sis supplied.] 3 The Whitin case was cited in Oregon Coast Operators, and there is nothing in the latter decision which in any way indicates that the Board intended to overrule or qualify what was stated in the Whitin case in regard to the obligation to furnish "relevant" wage data information. The fact that the order in the Oregon Coast Opera- tors decision required the employers there to furnish generally "infor- mation which is relevant and necessary for purposes of collective bar- gaining" may be explained by the fact that that case was not simply a wage data case. Much of the data there requested by the union ap- peared to involve information and issues other than wage. This in- cluded "certain production and operational statistics," the relevance 2Whatin Machine Works, 108 NLRB 1537, enfd 217 F. 2d 593 (C. A. 4), cert. denied 349 U. S. 905 ; Skyland Hosiery Mills, 108 NLRB 1600; ef. Oregon Coast Operators Asso- ciation, 113 NLRB 1338. s This holding is consistent with that of the Court of Appeals for the Second Circuit that "the employer has an affirmative statutory duty to supply relevant wage data," and that the rule governing disclosure of data of this kind is that it "must be disclosed unless it plainly appears irrelevant." [Emphasis supplied .] N. L. R. B. v. Yawman if Erbe Manu- faoturing Co., 187 F. 2d 947, 949. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and necessity of which in connection with issues involved in collective bargaining was 'not readily apparent. As the instant case involves wage data or related data on style construction relevant to the negotia- tion of piece rates, the type of order used in the Whitin case is appro- priate rather than that used in the Oregon Coast Operators case. In- deed, we believe that the information sought and ordered here-appears to be much.the same as that ordered by the Board to be provided in ,Skyland Hosiery Mills, 108 NLRB 1600, with our dissenting colleague participating. There the employer was ordered to furnish "wage data concerning itemized piece rates by style, construction, gauge, and yard denier on all piece-rate operations," citing the Whitin case. We note that the Trial Examiner in his third conclusion of law has referred to the Union as the exclusive bargaining representative on and after April 29. We amend this date to read "April 15, 1955," the date when the Union was certified. The fourth conclusion of law, which specifies no time as of which the refusal to bargain occurred, we amend to include the words "on and after April 29, 1955" after the words "by refusing." ORDER Upon the entire record in this case, and pursuant to Section 10 (c) Of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondent, Glen Raven Knitting Mills, Inc., Altamahaw, North Carolina, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with American Federation of Hosiery Workers, AFL-CIO, as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment. (b) Changing or effecting new knitting rates, or otherwise altering the working conditions of its employees in the appropriate unit with- out giving notice to and consulting with the Union. (c) In any like or related manner refusing to bargain collec- tively with said labor organization as the exclusive representative of the employees in the appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request furnish the Union the wage and related data relevant to wages requested by said labor organization, within a rea- sonably prompt time. (b) Upon request bargain collectively with the Union as the exclu- sive representative of the employees in the appropriate unit, and embody in a signed agreement any understanding reached. GLEN RAVEN KNITTING MILLS, INC. 427 (c) Post at its plant in Altamahaw, North Carolina, copies of the no- tice attached hereto marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for the Eleventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER RODGERS, dissenting : I am unable to subscribe to Section 2 (a) of the Board's Order in this case. Section 2 (a) requires the Respondent, upon request, to furnish the Union wage and related data relevant to wages. This sug- gests that "relevance" is the sole criterion for determining an em- ployer's obligation to furnish a labor organization information for collective-bargaining purposes. But in Oregon Coast Operators Asso- ciation, which is the Board's most recent pronouncement on the matter, and which all of the members of the majority signed, the Board stated that "an employer is under a statutory duty to furnish data to the employees' bargaining representative, upon request, provided that the data is relevant and needed by the representative for purposes of col- lective bargaining." 5 [Emphasis supplied.] The Board relied as au- thority for this statement of the law upon the Whitin Machine, Sky- land Hosiery, and Yawman & Erbe cases, inter alia, which the majority would now cite in support of their claim that relevance is the sole criterion.' The Board, moreover, referred to wage data as one of the types of data to which this statement of the law was applicable' In view of the foregoing and the clear language of the Oregon case, quoted above, it can scarcely be questioned that at the time of the Oregon case, the Board, including the present majority, interpreted the Whitin and related cases, as do I, to require that the information requested by a union be necessary as well as relevant to collective bargaining. 4 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 "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 6113 NLRB 1338. See also, ibid., where the Board stated that "a part of [the] duty of the Respondents to engage in good faith bargaining is the requirement that they furnish information in their possession requested by the Unions which was relevant and neces- sary . . " [Emphasis supplied ] 6 113 NLRB 1338, footnotes 14 and 15. 7Ibid, 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The majority seeks to distinguish the instant case from the Oregon case on the ground that'here the information sought related to wages only, whereas in the Oregon case the union sought wage data and other information. This suggests that the Board has a dual standard for information cases, whereunder if the union seeks only wage data, the sole criterion is relevance, but if the union requests both wage data and other information, then necessity as well as relevance must be shown. I know of no authority for such a proposition, and significantly the majority cites none. I also am at a loss to understand how the ma- jority proposes to apply so confusing a standard. For example, in mixed information cases does the criterion of necessity apply only to nonwage data or to wage data as well? In the Oregon case the Board drew no distinction but applied the criterion of necessity to the union's entire information request including wage data. The majority should either follow the Oregon case and draft the order herein accordingly in terms of necessity as well as relevance, or it should overrule the Oregon case and tell the parties and the public what is the law. I would adhere to the Oregon case, and would there- fore draft the Board's Order herein in terms of both relevance and necessity. MEMBER BEAN took no part in the consideration of the above Deci- sion and Order. APPENDIX A 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, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with American Federation of Hosiery Workers, AFL-CIO, as the exclusive rep- resentative of the employees in the bargaining unit described below. , WE WILL NOT refuse to bargain collectively with said labor organization, as the exclusive representative of the employees in the bargaining unit described below, by changing or effecting new knitting rates, or otherwise altering the working conditions of our employees in the appropriate unit without giving notice to and consulting with the said labor organization. WE WILL NOT in any like or related manner refuse to bargain collectively with said labor organization as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL, upon request, furnish to said labor organization the wage and related data relevant to wages requested by it, within a reasonably prompt time. GLEN RAVEN KNITTING MILLS, INC. 429 WE WILL, upon request, bargain with American Federation of Hosiery Workers, AFL-CIO, as the exclusive representative of all the employees in the appropriate bargaining unit with respect to wages, rates of pay, hours of employment , and other terms and conditions of employment, and embody in a signed agree- ment any understanding reached. The bargaining unit is: All full-fashioned hosiery knitters and helpers or helper trainees at our Altamahaw, North Carolina, plant, excluding office clerical employees, professional employees, watchmen, guards, all other employees, fixers, and all other supervisors as defined in the Act. GLEN RAVEN KNITTING MILLS, INC.-7 Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE AND FINDINGS By stipulation variously executed on July 13, 15, and 28, 1955, the attorneys for the Respondent, Glen Raven Knitting Mills, Inc., and the Union , American Federa- tion of Hosiery Workers, AFL, and counsel for the General Counsel agreed, inter alia, as follows: It is agreed that the entire record in the Board 's Case No. 11-RC-707, including the transcript of the evidence taken at the hearing in said case, is hereby incorporated into and made a part of the record in the present case, as truly as if the said record had been made and the said evidence had been taken in the present case; and this Stipulation, together with the Charges, Affidavits of Service, Complaint , Notice of Hearing, Respondent 's Answer and the afore- said record made and evidence taken in Case No. 11-RC-707 shall constitute the entire record in the present case and shall be filed with the Chief Trial Examiner of the Board in Washington, D. C. All parties hereto expressly waive hearing before a Trial Examiner, and agree that a Trial Examiner may make appropriate findings of fact, conclusions of law and recommendations to the Board based upon the Record in this matter as above described. Said record in Case No. 11 -RC-707 and the various documents so listed are hereby incorporated herein by reference as the record in the instant case. Admitting its refusal to bargain the Company here would test the Board's certifica- tion of the Union as the exclusive collective-bargaining representative of all of the employees in an appropriate unit. Admitted are the petition in Case No. I 1 -RC-707; the holding of a hearing before a hearing officer of the Board on January 18, 1955; the issuance of the Board's Decision and Direction of Election on March 10, 1955; that the Board therein found that the following employees constitute a unit appropri- ate for the purposes of collective bargaining: All of the Respondent's full-fashioned hosiery knitters and helpers or helper trainees at its Altamahaw, North Carolina, plant, excluding office clerical employees , professional employees , watchmen, guards, all other employees, fixers, and all other supervisors as defined in the Act; a Board-conducted election on April 7, 1955, and designation of the Union by a majority of the employees in the above -described unit as their representative for 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the purposes of collective bargaining; and certification of the Union on April 15, 1955, as the exclusive representative for the purposes of collective bargaining. The Respondent denies the appropriateness of the unit as certified. It was admitted and I find that the Respondent, a North Carolina corporation, with its principal office and place of business at Altamahaw, North Carolina, manu- factures and sells ladies' hosiery; and that during the past 12 months, a representative period, it has sold and shipped finished products valued at more than $200,000 from its Altamahaw plant directly to points located outside the State of North Carolina. I find that the Respondent is engaged in commerce within the meaning of the Act. It was also admitted and I find that the Union is a labor organization within the meaning of the Act. On or about April 19, 1955, the Union requested that the Respondent make avail- able to it information concerning rates of pay, wages, hours of employment, and other conditions of employment. On April 29, the Respondent acknowledged the Union's request and declared: It seems to us that the action of the Labor Board in permitting only knitters to vote in the election recently held here at our Plant, and in denying the right to vote to all other employees, was wrong in every sense. We must therefore decline to recognize or deal with your Union as a bargaining agent. There is no issue concerning any request to bargain; the answer admits ,the Union's request and the Respondent's refusal. Were greater emphasis or insistence placed on a specific request to negotiate, the Respondent's letter would be an anticipatory refusal.' The refusal to supply information such as that requested also constitutes a refusal to bargain.2 On or about May 23, 1955, the Respondent instituted certain new knitting rates and changed certain knitting rates without notice or consultation with the Union. Such changes were bargainable and, unilaterally effected, were in derogation of Respondent's obligations under the Act .3 The Respondent's defense is based on the Board's procedures. I will not presume to review the Board's finding of an appropriate unit. Accepting the certification, and the refusal to bargain being admitted, I find that.at all times since April 29, 1955, the Respondent has, in violation of the Act, refused to bargain with the Union as the exclusive collective bargaining representative of the employees in an appro- priate unit. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. American Federation of Hosiery Workers, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of the Respondent's full-fashioned hosiery knitters and helpers or helper trainees at its Altamahaw, North Carolina, plant, excluding office clerical em- ployees, professional employees, watchmen, guards, all other employees, fixers, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. American Federation of Hosiery Workers, AFL, was on April 29, 1955, and at all times since has been the exclusive bargaining representative within the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By refusing to bargain collectively with American Federation of Hosiery Workers, AFL, as the exclusive representative of the employees in the appropriate unit, Glen Raven Knitting Mills, Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By such refusal to bargain, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 3 Toolcraft Corporation, 92 NLRB 655. a Whitin Machine Works, 108 NLRB 1537, 1541; Boston Harald-Traveler Corporation, 110 NLRB 2097. N L R. B. v. Crompton-Highland Mills, Inc, 337 U. S. 217, 233.