The Contract Knitter, Inc.

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