INTERNATIONAL LADIES'GARMENT WORKERS'UNION v. NLRB, 366

• Decision Date: 20 November 1964
• Docket Number: Docket 28228.,No. 366,366
• Citation: 339 F.2d 116
• Parties: INTERNATIONAL LADIES' GARMENT WORKERS' UNION AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

339 F.2d 116 (1964)

INTERNATIONAL LADIES' GARMENT WORKERS' UNION AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 366, Docket 28228.

United States Court of Appeals Second Circuit.

Argued June 10, 1964.

Decided November 20, 1964.

COPYRIGHT MATERIAL OMITTED

Simon H. Rifkind, New York City (Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on the brief) (Jay H. Topkis and Thomas R. Farrell, Jr., New York City, of counsel), for petitioner.

Warren M. Davison, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Ira M. Lechner, Atty., N. L. R. B., on the brief), for respondent.

Before FRIENDLY, SMITH and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

The National Labor Relations Board found the International Ladies Garment Workers Union ILGWU to have violated sections 8(a) (1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and (5), by refusing to bargain with the certified representative of its business agents, organizers, educational directors and certain other personnel. ILGWU seeks review of the Board's order requiring it to cease and desist from this refusal to bargain and the Board has cross-petitioned for enforcement of its order. We overrule ILGWU's claims that the classes of its employees sought to be organized were not within the protection of the Act, but we sustain certain of its objections to the exclusion of ballots and remand for further proceedings by the Board.

Proceedings Before the Board

On December 27, 1960 the Federation of Union Representatives FOUR filed a representation petition with the Board, pursuant to section 9(c) of the Act. It sought to be recognized as the bargaining representative of "All General Office staff employees listed as organizers" in the latest ILGWU financial report, a group totalling 262. The Board ordered a hearing on the petition, and on April 21, 1961 found that ILGWU was engaged in commerce, that FOUR was a labor organization which claimed to represent certain employees of ILGWU, that a question affecting commerce existed concerning the representation of certain ILGWU employees, and that an appropriate unit for the purpose of collective bargaining within section 9(b) of the Act was "all individuals on the payroll of the International Ladies Garment Workers' Union (as distinguished from its locals) who serve as business agents, organizers, educational directors, and who do union label, and political work excluding office clericals, supervisors, professionals, watchmen and guards as defined in the Act." The Board rejected ILGWU's contention that "the business agents here involved are managerial employees, or for other reasons, should not be considered employees under the Act," relying on its decisions in Airline Pilots Association, International, 97 N.L.R.B. 929 (1951) and American Federation of Labor, 120 N.L.R.B. 969 (1958). Pursuant to this decision, an election was ordered, at which employees within the bargaining unit were asked to decide whether they wished to be represented for purposes of collective bargaining by FOUR.

The election was duly held on May 12, 1961, and of the 248 votes excluding two void ballots, 115 were cast for FOUR, 100 were against it, and 33 were challenged. In accordance with the Board's rules and regulations, the Regional Director conducted an investigation and recommended to the Board that 26 challenges be sustained, 4 overruled and 3 ballots held in abeyance pending the disposition of unfair labor practice charges. Both parties took exceptions to certain recommendations of the Regional Director. The Board, following the Regional Director's recommendation, ordered the four ballots to be opened and counted. All these were cast against FOUR, making the tally 115-104. With regard to nine of the ballots challenged by FOUR on the ground that the voters were supervisors the Board found that material and substantial issues of fact had been raised in connection therewith and directed a hearing to be held on the eligibility of those voters. The hearing officer recommended that the challenges be overruled and that all those ballots be counted. The recommendation was followed by the Board, and all nine were against FOUR, making the total 115 to 113 in its favor. As to ten other ballots, however, the Board sustained the challenges. Shortly afterward, FOUR was certified as bargaining representative.

Having been certified as the bargaining representative, FOUR thereupon demanded that ILGWU bargain with it. Upon the International's refusal to do so, FOUR filed a complaint which culminated in the unfair labor practice proceeding under consideration here. ILGWU admitted that it had refused to bargain, this being the only available method for presenting its legal position, but claimed it was justified in that course. Considering that all the defenses asserted by ILGWU had been litigated and determined adversely to ILGWU during the representation proceeding and that none of its proffered evidence was newly discovered or previously unavailable, the Trial Examiner granted the General Counsel's motion to strike them. He recommended that an order issue requiring ILGWU to bargain collectively with FOUR, and to take certain other action. This recommendation was followed by the Board, and the petition to review the order followed.

Structure of the Union

ILGWU is a far-flung labor organization with about 450,000 members in the garment and needle trades, throughout the United States and Canada. Its basic unit of organization is the local, of which there are over 500. Locals may be formed and chartered at the request of seven or more workers in the industry, and they are in part geographical and, in larger cities, in part organized according to the division of the industry involved. In metropolitan areas, locals are grouped into joint boards, each of which is composed of locals in a single branch of the industry, and in certain areas they are also grouped into district Councils, which correspond functionally to joint boards except that a larger area than one city or metropolitan area is involved. Locals, joint boards, and district councils elect delegates to the International's triennial convention. In the intervals between conventions, administration of the International's affairs is in the hands of its General Executive Board, which consists of the President, the General Secretary Treasurer and 21 Vice-Presidents. All these officers are salaried.

On the lower levels of the International's paid professional staff are business agents, organizers and educational directors, who are appointed by the President with the consent of the General Executive Board. In areas where joint boards and district councils exist, personnel of this category are on the payrolls of these units, and they are paid through assessments on member locals. Outside these areas, such personnel are on the International's payroll, and it is only these who are the subject of this proceeding. The country is divided into ten regions for purposes of administration of the International's affairs, each of which is headed by a manager who is usually also a Vice-President and member of the General Executive Board. There are also intervening layers of supervisors between the regional manager and the business agents. In one typical region, the Eastern, there is an Assistant General Manager, and below him 15 local managers in charge of 34 local unions. The local managers supervise business agents directly. In the Northeast department, there is a director (an International Vice-President), two area supervisors, a field supervisor for organization, and 15 district managers who supervise 65 to 70 business agents.

The duties of business agents are diverse, but they principally involve communication between rank and file union members in the shops, and the employers. One of their most important functions concerns the setting of rates for the different types of operations performed in garment manufacturing and finishing establishments. Because of the peculiar structure of this industry, with its many independent, small shops and the great variety and diversity of its products, formal collective bargaining agreements are usually somewhat skeletal matters, defining in broad terms the rights and responsibilities of the parties. Furthermore, most workers in the industry are paid on a piece-rate rather than an hourly wage basis. Consequently, as each new job comes into a shop, it may be necessary to set new piece-rates which will return workers a satisfactory weekly paycheck. The business agent normally conducts negotiations regarding piece-rates with employers. Depending on his evaluation of the employer's willingness to cooperate with the union, he may follow a "hard" or "soft" policy in these negotiations. Similarly, the business agent deals with the employer over such common matters as distribution of work among different employees, in order to assure equal treatment; extension of employee probationary periods (during which the employer may discharge a newly hired worker without cause); authorization for overtime work; and arranging holiday schedules. In all of these, he may take a "hard" or "soft" line. The business agent visits the shops represented by the local or locals which he serves regularly, conferring with shop chairladies or, sometimes, with workers directly, to determine whether there is any action the union should take. He has the responsibility to negotiate a settlement of grievances, if possible, otherwise referring them to arbitration. In the event of any work stoppage by employees in a shop, he is obligated to terminate it within twenty-four hours, according to ILGWU's standard collective bargaining contract. He attends and participates in the regular meetings of the locals under his jurisdiction, meetings of shop chairladies, and other types of...