Garden State Hosiery Co.

National Labor Relations Board - Board Decisions

Jun 20, 1947

74 N.L.R.B. 318 (N.L.R.B. 1947)

In the Matter of GARDEN STATE HOSIERY CO ., EMPLOYER and AMERICAN
FEDERATION OF HOSIERY WORKERS, BRANCH No. 7, C. I. 0., PETI-
TIONER
Case No. 2-R-68,59.-Decided June 20, 1947
Mr. Myron Engelman , of New York City, and Mr . August E. Laus-
berg, of Paterson , N. J., for the Employer.
Rothbard, Harris & Oxf eld, by Mr . Samuel L. Rothbard , of Newark,
N. J., and Messrs . Vance White and Leo O'Driscoll , of Philadelphia,
Pa., for the Petitioner.
Mr. Morton B. Spero, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a, petition duly filed, hearing in this case was held at Paterson,
New Jersey, on September 12, 1946, before Bertram Diamond, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations.
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Garden State Hosiery Co., a New Jersey corporation, operates a
plant at Midland Park, New Jersey, where it is engaged in the manu-
facture of ladies' full-fashioned hosiery. During the 12-month period
preceding the hearing, the Employer purchased raw materials valued
in excess of $100,000, of which amount approximately 90 percent
represented shipments to this plant from sources outside the State of
New Jersey. During the same period, the Employer sold from this
plant in excess of $250,000 worth of finished products, of which 90,
percent represented shipments to points outside the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
74 N. L. R. B., No. 52.
•
318
GARDEN STATE HOSIERY CO.
II. TIIE ORGANIZATION INVOLVED
319
The Petitioner is a labor organization affiliated with the Congress of
Industrial Organizations, claiming to represent employees of the Em-
ployer.
III. TI-IE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of certain of the employees of the Employer
until the Petitioner has been certified by the Board in an appropriate
unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit of all employees in the knitting depart-
ment at the Employer's Midland Park, New Jersey, plant, excluding
the fixer and all supervisory employees.- The Employer contends that
only a plant-wide unit is appropriate. However, in the event that the
Board finds appropriate a unit of knitting department employees
alone, the Employer would include the fixer in the unit.
The Employer's plant is housed in a single building, and consists
of 2 departments, the knitting department having 43 production em-
ployees, and the auxiliary department, having 39 production em-
ployees. There is 1 other employee, a fixer, whose duties are plant-
wide.
Contrary to the practice in other small hosiery plants, the knitting
department at this plant is physically separated from the rest of the
plant by a brick wall. This department is composed of leggers and
footers, collectively called knitters, toppers, and helpers.2 The legger
starts the leg blank from the welt and knits the complete leg and heel.
The topper places this leg blank on a transfer bar and then "tops" this
bar on the footing machine, where the footer completes the knitting
of the stocking. The helper cuts the ends and ties up the work.
The stocking then proceeds to the auxiliary department where a
looper loops the toe and heel, and sends it on to it seamer, who sews the
seam in the stocking. An examiner then checks for defects or imper-
fections. If any are found, the stocking is returned to a mender, who
repairs it. After the stocking is stamped by a stamper, it is folded by
a folder, packed by a boxer, and is then ready for shipment.
I The requested unit appears above as amended at the hearing.
2 The record indicates that, although at the time of the hearing there were no helpers in
the knitting department, helpers are noimally included in its complement
766420-48-vol. 74-22
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The knitters in the knitting department are highly skilled employees
who require 4 years' training as apprentices to achieve competence.
The toppers are also skilled employees, requiring a 6-month appren-
ticeship, and, together with the helpers, form an essential and neces-
sary adjunct to the knitting operation. The record reveals that knit-
ting department employees work exclusively at their assigned tasks and
.do not interchange with employees in the auxiliary department. And
-while loopers are assigned in emergencies to work as toppers, the two
.departments are otherwise functionally distinct. Indeed, the Em-
ployer admitted at the hearing that all employees in its knitting de-
partment comprise a closely integrated group.
There has been no history of collective bargaining at this plant.
The Petitioner tried to organize the entire plant in 1935. However, it
met with success only among the employees in the knitting department,
and after 2 years, withdrew from the plant and ceased all organization.
In May 1944, in response to a request by the employees in the knitting
department, the Petitioner again commenced its organizational efforts
at the plant. Inasmuch as most of the employees in the auxiliary de-
partment indicated at that time that they did not desire to be repre-
sented by the Petitioner, the Petitioner confined its efforts to the knit-
ting department employees. Since 1935, and up to the time of the
hearing, the Petitioner has been the only organization seeking
representation among the Employer's employees on any basis.
In support of its position that the desired unit is currently appro-
priate, the Petitioner relies on the present state of union organization,
as well as on the physical segregation of the knitting department, the
high degree of skill required by most of the employees therein, the
general absence of interchange of its employees, and the similarity and
mutuality of interests of the knitting department employees. The
'Employer, on the other hand, points to the integrated nature of its
operations, the prevailing uniform working conditions throughout its
plant, and the small size of that plant, in support of its position that
the only appropriate unit is a plant-wide unit.
The issue in this case, consequently, is whether the Board should
deny the knitting department employees the benefits of the Act until
the other employees also become interested in collective bargaining, or
whether it should make collective bargaining an immediate possibility
for those who may presently desire it.
The Act provides 'that the Board, in determining the appropriate
unit in each case, use as its standard that of insuring to the employees
involved the "full benefit of their right to self-organization and to
collective bargaining, and otherwise to effectuate the policies of this
GARDEN STATE HOSIERY CO. 321
Act." 3 The power to designate the appropriate unit is therefore a
broad discretionary one. If the Board, in the exercise of its discre-
tion, bases its determination on relevant considerations which provide
a reasonable foundation for its conclusion that the unit designated as
appropriate will effectuate the policies of the Act, it has fulfilled its
obligation.4 Among the many considerations to which the Board, for
a decade, has unanimously given weight in making its determination
of the appropriate unit is the extent of organization by the union
through which the employees are apparently seeking collective bar-
gaining. The Board has done soon the theory that it is often desirable
in the determination of an appropriate unit to render collective bar-
gaining for the employees involved a reasonably early possibility, lest
prolonged delay expose the organized employees to the temptation of
striking to obtain recognition, and permit unorganized employees, en-
gaged in other work tads, to thwart collective bargaining by those
who have evinced an interest in selecting a representative.' Such de-
lay would be inevitable if distinguishable groups of employees were
required to await an election until all their fellows requested one.
Indeed, it would preclude the organization of many larger enterprises
at any time.
If Mr. Reynolds' dissent were limited to disagreement with the ma-
jority's conclusion that extent of organization is a sufficiently weighty
factor to influence our decision on the facts of this particular case, we
would not, be seriously concerned. Differences of opinion are inevi-
table where close factual questions are presented to the Board, and this
record is one on which reasonable men can easily differ. Our concern
arises, rather, from the fact that the dissent is written in such broad
terms that, if it were to become the prevailing view of the Board, little
would be left of a decade-old decisional theory that seems to us to have
effectuated the policies of the Act. -
For this is not only ancient doctrine, but doctrine that has been
3 Section 9 (b) of the Act provides that • "The Board shall decide in each case whether, in
order to insure to employees the full benefit of their right to self-organization and to
collective bargaining, and otherwise to effectuate the policies of this Act, the unit ap-
propriate for collective bargaining shall be the employer unit, craft unit, plant unit, or
subdivision thereof!" (Emphasis supplied.)
4Pittsburgh Plate Glass Co. v. N. L. R B., 113 F (2d) 698, 701 (C. C. A. 8), affirmed
313 U. S. 146.
5 As early as 1937 the Board stressed the "extent of organization" factor in its unit
determinations, in order to extend the benefits of collective bargaining under the Act
to those persons who had indicated a desire therefor Matter of R. C. A Communications,
Inc., 2 N L R B 1109, 1115; Matter of Chase Brass and Copper Company, Inc, 4
N L R. B 47, 49-51 , Matter of Gulf Oil Corporation, 4 N. L R B 133, 137
The "extent of organization" piinciple has been reiterated since then in a long series
of decisions See in this connection, Matter of Gastonia Weaving Company, Inc, 49
N L R B 342, Matter of The J L. Hudson Company, 56 N L R. B 406, Matter of Armour
Creameries, 63 N L R. B 1214; Matter of The Globe Brick Company, 65 N. L R. B
527 , Matter of Wells-Gardner d Co , 71 N L R B 176
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approved by those who review the Board's action. The courts have
uniformly upheld the Board's use of the "extent of organization" prin-
ciple." The Supreme Court of the United States, in N. L. B. B. v.
Hearst Publications,7 said:
Wide variations in the forms of employee self-organization and
the complexities of modern industrial organization make difficult
the use of inflexible rules as the test of an appropriate unit. Con-
gress was informed of the need for flexibility in shaping the unit
to the particular case and accordingly gave the Board wide dis-
cretion in the matter . . . The flexibility which Congress
thus permitted has characterized the Board's administration of
the section and has led it to resort to a wide variety of factors in
case-to-case determination of the appropriate unit. Among the
considerations to which it has given weight is the extent of or-
ganization of the union requesting certification or collective bar-
gaining. This is done on the expressed theory that it is desirable
in the determination of an appropriate unit to render collective
bargaining of the Company's employees an immediate- possibility.
No plausible reason is suggested for withholding the benefits of
the Act from those here seeking it until a group of geographically
separated employees becomes interested in collective bargaining.
This is not to suggest, however, that the principle is either applicable
or applied under all circumstances. Extent of existing organization
can never be the sole criterion, nor is it often the controlling one. The
Board has always insisted on the coexistence of certain other facts that
establish the feasibility of bargaining on the basis of the smaller unit.
Additional objective factors must be present in order to rule out the
possibility that the petitioning union might unrestrictedly manipulate
the boundaries of the appropriate unit. Thus, not only must bargain-
ing on a more comprehensive basis be improbable in the near future,
but, as a wholly separate matter, the unit sought must itself be homo-
geneous, identifiable, and distinct. Indeed, the Board has consistently
refused to set apart as an appropriate unit any subdivision or group
of employees the nature or situs of whose work is indistinguishable
from that of other employees, or whose work is not functionally co-
herent and differentiated, despite the contention of a petitioning union
to the contrary. Petitions which lack objective support are regularly
dismissed, despite unions' attempts to invoke the extent-of-organiza-
e N. L. R B v Hearst Publications, Incorporated, 322 U. S. 111, 134-135; May De-
partment Stores Company v. N. L. R B., 326 U. S. 376, 380; N. L. R. B. v. Norfolk
Southern Bits Corp., 159 F (2d) 516 (C C. A 4), cert denied March 31, 1947; see
particularly the language of the Court at p. 520 in the Norfolk case.
7 See footnote 6, supra.
GARDEN STATE HOSIERY CO. 323
tion theory 8 As the statute contemplates, the question is one of fact
in every case.
In our opinion, the establishment of the requested unit herein is
warranted in view of the presence of adequate safeguards. Thus, there
is no union organizing on a more comprehensive basis; there is no
reasonable ground for believing that collective bargaining on such a
basis might be achieved within a reasonable period of time; 9 the unit
is homogeneous, identifiable, and distinct, being composed of a separate
department ; it comprises skilled employees ; there is no circumstance
peculiar to the industry itself which militates against the establishment
of the requested unit, and no showing that it would work such serious
hardship on the Employer that bargaining could not be successful.
Indeed, the "extent of organization" doctrine has in the past been
applied by the Board to the hosiery industry. The Board has found
units appropriate where organization had extended only to two of the
company's three mills,10 where only the knitting building of the com-
pany's mill operations had been organized,", and recently where, as
here, the Petitioner had succeeded only in organizing the knitting
department of a small plant.12
Nor would the application of the "extent of organization" principle
to this case result, as suggested by our dissenting colleague, in a
renunciation of the principle of majority rule or in the impairment
of industrial stability. For should the petitioning union win the
election directed herein, the collective bargaining that follows will
take place only in the unit where a majority favor collective action,
and to the extent that the employees of the Employer are bargained
for, the causes of industrial strife will be mitigated.13
Our colleague's use of the loaded word "gerrymandering" in this
connection appears to us to beg the question. "Gerrymandering" is
districting for an improper purpose. We believe that only by refer-
ence to the statute can it be determined whether a purpose is proper.
The sole statutory standard, recited in Section 9 (b), is to "insure to
8 Matter of Triangle Publications, Inc., 40 N L. R B. 1330 , 1332 , Matter of K-D Lamp
Division, Noma Electric Corporation of Maryland , 71 N. L. It. B. 704 ; Matter of Ohio
Telephone Service Company, 72 N . L It. B 488 , Matter of Eisner Gi ocery Company, 72
N L. It. B. 721 ; Matter of Fairchild Advertising, Inc., 72 N L R B. 1082.
See also the opinion signed by Chan man Herzog in Matter of Hudson Hosiery Company,
74 N L R B 250, issued this day, indicating the point beyond which lie is unwilling to
go in this very industry ( petition dismissed by vote of the Chairman , and Mr. Reynolds,
Mr. Houston dissenting).
9 Cf Matter of Metropolitan Life Insurance Company, 56 N. L. R B 1635 and 1642
n Matter of Charles H. Bacon Company, 54 N L R B. 703.
11 Matter of May, MeEwen, Kaiser Company, 66 N. L. It. B 1341.
12 Matter of Forest City Knitting Company , 69 N. L. R B 89. The entire mill was
housed in a single building , and the appropriate unit consisted of only 30 employees This
seems an early date on which to overrule, as our colleague would , this unanimous 1946
decision.
11 See N. L. If . B. v. Norfolk Southern Bus Corp, footnote 6, supra.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees the full benefit of their right to self-organization and to.
collective bargaining." That is the standard we are applying.
The invocation of the majority rule principle as an argument against
our decision seems to us to ignore the legislative history of the Act,14
and to assume the very question that is at issue. Section 9 (a) speaks
of majority rule "in a unit appropriate," and Section 9 (b) leaves it
to the Board to determine what unit is appropriate. The presence or
absence of a majority must be determined when an appropriate unit is.
found and not before; the numerator can only be calculated against a
denominator which is fixed by the confines of the unit. Therefore,
whatever other grounds may be available to question the validity of a
unit, the fact that it does violence to the majority rule principle cannot
logically be invoked.
It may well be that the unit found herein is not the perfect unit, or
the best possible unit, or the ultimate unit. But the statute does not
require that it be perfect, or the best possible, or the ultimate; it re-
quires only that the unit be "appropriate." 15 It must be appropriate
to ensure to employees, when each case is decided and not at some un-
known date in the distant future, "the full benefit of their right to-
self-organization and to collective bargaining."
Moreover the fact that these employees' skill, however substantial,
does not rise to the dignity of a craft does not compel dismissal of this
petition. The Congress specifically endorsed units smaller than plant
or employer units which are other than craft units. Section 9 (b),
after reciting those three alternatives, also authorizes the Board to
find appropriate a unit comprising only a "subdivision thereof." That
is the express legislative authority for the Board's decision in this case.
It is also asserted that because working conditions are often uniform
throughout an enterprise, the "extent of organization" doctrine may
impose on all employees the results achieved by collective bargaining
by some. The premise is, we feel, largely erroneous. As already indi-
cated, the Board's practice has been to apply the doctrine only where a
homogeneous group has already organized; where, in short, a group,
exists that can bargain for and by itself without involving all other
employees of the particular employer. We have not applied the doc-
trine in such a way as to make the mere fact of membership or interest
14 The language of the Senate Report relied upon in footnote 19 of the dissent itself
refers to the inadvisability of having separate agreements for workers " in a single unit,"
and not to the question of the unit basis against which that majority should be calculated.
It was directed at the well-nigh forgotten 1935 arguments in favor of "proportional repre-
sentation " within a bargaining unit.
15 Appiopriate is a word with a well understood meaning Webster's International
Dictionary defines it as : " Suitable for the purpose and circumstances , befitting the place
or occasion " It carries within it no overtones of the superlative To convey that thought,
the word "most" ' must be conjoined with the word "appropriate " The statute does not
conjoin them.
GARDEN STATE HOSIERY CO. 325,
:n self-organization decisive as to the boundaries of the interim unit;
the Board has thereby preserved the possibility of separate conditions
for a separate group. Other groups, outside the unit, are not bound
by any agreement reached for the separate group. If that agreement
should result indirectly in an improvement of their working conditions
they could hardly be heard to complain.
In any event, this argument cannot be decisive. Even assuming its
validity, the converse is also true : to refuse ever to apply an extent
of organization doctrine would mean that, pending organization of an
entire enterprise, working conditions must continue to be fixed by
individual bargaining for all, despite the apparent contrary desires of
some. All employees would thereby be deprived of an opportunity to
observe whether collective bargaining will work well or badly in the
enterprise of which they are a part. The problem posed to the Board,
therefore, is not whether wages and working conditions shall be uni-
form throughout an enterprise, but whether individual or' collective
bargaining should be encouraged. And on that issue the statute impels
the choice that we have made. As was recently observed by the Chair-
inan of a sister Board:
A Board vested with the duty of encouraging collective bargain-
ing should not be asked to prevent a situation from arising where-
in the advantages of collective bargaining are clearly shown.ls
(Emphasis in original.)
We find that all employees in the knitting department at the Em-
ployer's Midland Park, New Jersey, plant, excluding the fixer 11 and
all supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Garden State Hosiery Co., Pater-
son, New Jersey, an election by secret ballot shall be conducted as early
11 Reverend Wm. J. Kelley , OMT , Chairman of the New York State Labor Relations Board.
dissenting, in Matter of Bank of Manhattan Co , 19 L . R. R M 1331.
17 The Petitioner would exclude the fixer as a supervisor , and the Employer would include
him as a knitter This employee performs the duties typical of employees in this category
in the full-fashioned hosiery industry . We have heretofore recognized that there exists a
well -established pattern of collective bargaining in the full -fashioned hosiery industry
whereby fixers are excluded from units of production and maintenance employees
(Matter of Dothan Salk Hosiery Company , Inc., 70 N. L . It. B. 1350 ; Matter of Mock,
Judson, Voehringer Company of North Carolina, Inc, 63 N L R. B 96.) Accordingly, we
shall, irrespective of the precise status of the fixer, exclude him from the unit.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as possible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Direc-
tor for the Second Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period immed-
iately preceding the date of this Direction, including employees who
did not work during said pay-roll period because they were- ill or on
vacation or temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the
polls, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to
the date of the election, to determine whether or not they desire to be
represented by American Federation of Hosiery Workers, Branch No.
7, C. 1. 0., for the purposes of collective bargaining.
MR. JAMES J. REYNOLDS, JR., dissenting :
It has long been recognized that the democratic principle of majority
rule is the basis of the National Labor Relations Act and the sine qua
non of effective collective bargaining which the Congress prescribed
as a substitute for internecine warfare between management and labor.
With this in mind the Board has constructed elaborate safeguards to
insure that its processes provide for a free expression by the majority
of its acceptance or rejection of representation by a petitioning union,
since "the overriding consideration must always be the employees'
untrammeled freedom of choice ; upon that the whole framework
rests." 1S
But it is not enough that the election process be made safe from
coercion or fraud or that the secrecy of the ballot be preserved. Even
more important, no minority group-either pro-union or anti-union-
may be permitted to manipulate the boundaries of the appropriate unit
for the sole purpose of constructing another wherein it comprises a
majority. Obviously indulgence in such tactics-commonly referred
to in political science as "gerrymandering"-makes a mockery of the
principle of majority rule.
In the field of employee-employer relations such tactics are par-
ticularly conducive to the strife which the Act seeks to avoid. Where
workers are bound together by the similarity of their skills and duties,
and by the administration and organization of the employer's business,
it is practically impossible to apply different terms and conditions of
employment to separate parts of the group without encountering resent-
'IN L. R. B. v. Dadourian Export Corporation , 138 F. ( 2d) 891 (C C. A 2).
GARDEN STATE HOSIERY CO. 327
ment and reproach. Indeed, it was this very thought that impelled
the Congress to insert the principles of majority rule into the Act 19
In the instant case, the Employer manufactures ladies' hosiery of
rayon and nylon. All of its production and maintenance operations,
performed by about 83 workers, are housed in 1 building. Most of
these workers perform duties requiring no extensive skill and, when
the heed arises, many of them may be shifted from one job to another.
All are subject to the sane general supervision. Clearly, under such
circumstances, despite various contrary contentions advanced by em-
ployers and/or by one or more-but not all-interested labor organi-
zations, the Board has consistently held the appropriate bargaining
unit to be comprised of all rank-and-file production and maintenance
eniployees,20 or, absent a bargaining history on a more comprehensive
basis, all employees in a bona fide skilled craft group. Unquestion-
ably, were any bona fide labor organization requesting certification as
the bargaining representatives of the employees in either type unit, the
Board would find such a unit to be appropriate in this case and would
permit the majority of such employees to accept or reject collective
representation. The only excuse for not doing so here is the fact that
the Petitioner concedes a majority of such employees would reject
its proffered representation.21 In my opinion, to recognize validity
in this contention, as have my colleagues, does violence to the whole
principle of majority rule which clearly contemplates that the Board
must respect such a rejection by the majority. While I agree that the
Act is designed to encourage collective bargaining, I cannot believe
such encouragement to be a permissible function of this Board where
the price is the sacrifice of the principle of majority rule and the im-
pairment of industrial stability.
Accordingly, I would dismiss the petition herein With the under-
standing that the Board will consider a new petition when it appears
19 Senate Report No 573, Congressional Reports, National Labor Relations Act, 74th
Congress, 1st Session, states at p 13
The object of collective bargaining is the making of agreements that will stabilize
business conditions and fix fair standards of working conditions Since it is well-nigh
universally recognized that it is practically impossible to apply two or more sets of
agreements to one unit of woikeis at the same time, or to apply the terms of one
agreement to only a portion of the workers in a single unit, the making of agreements
is impracticable in the absence of majority rule. And, by long experience, majority
rule has been discovered best for employers as well as employees Workers have found
it impossible to approach their employers in a friendly spirit if they lemamed divided
among themselves Employers likewise, where majority rule has been given a trial
of reasonable duration, have found it more conducive to harmonious labor relations to
negotiate with representatives chosen by the majority than with numerous warring
factions.
20 See , for example, Matter of Rodgers-Wade Manufacturing Company, 69 V. L. R. B.
264, Matter of Ramsay Mills, Inc, 70 N. L. It. B. 12S3.
23 No contention is made in this case that the employees in the knitting department are
possessed of sufficient skill so that they may constitute an appropriate craft unit.,
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Petitioner may have persuaded a majority of the employees
in the appropriate unit to accept it as their representative. By so
acting, the Board would merely pursue the principle that while the
Act imposes upon an employer the duty to treat with the majority
representative of its employees in an appropriate unit, it also imposes
the "negative duty to treat with no other." 22
22 Virginia Railway Co . v System Federation No. 40, 300 U. S. 515