Burton-Dixie Corp.

National Labor Relations Board - Board Decisions

Mar 23, 1944

55 N.L.R.B. 723 (N.L.R.B. 1944)

In the Matter of BURTON-DIXIE CORPORATION and BEDDING LOCAL 140,
OF THE UNITED FURNITURE WORKERS OF AMERICA, CIO
Case No. 2-R-441!.Decided March !?3, 1944
Fyffe cC Clarke , by Mr. Albert J. Smith of Chicago , Ill., and Mr.
George S. Knott, of Brooklyn , N. Y., for the Company.
Mr . Harry Weinstock , of New York City, for the Union.
Mr. William Strong, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATFNENT OF THE CASE
Upon a petition duly filed by Bedding Local 140 of the United
Furniture Workers of America, affiliated with the Congress of In-
dustrial Organizations, herein called the Union, alleging that a ques-'
tion affecting commerce had arisen concerning the representation of
employees of Burton-Dixie Corporation,' Brooklyn, New York, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before David H. Werther,
Trial Examiner. Said hearing was held at Brooklyn, New York, on
February 21, 1944. The Company and the Union appeared and par-
ticipated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All.
parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Burton-Dixie Corporation, a Delaware corporation, has its princpal
office in Chicago, Illinois, and plants in Chicago, Illinois, Brooklyn.
1 The naive of the Company, incoriectly shown at times in the record, was corrected by
amendment at the hearing.
55 N. L R B, No. 129.
723
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York, and in several other States where it is engaged in the
manufacture of bedding products, cotton felt and sisal padding for
upholstering. This proceeding is concerned only with the Brooklyn,
New York, plant. During the last 12 months the Company purchased
for its Brooklyn plant raw materials valued in excess of $500,000,
approximately 90 percent of which was shipped from points outside
the State of New York, and shipped from its Brooklyn plant finished
products valued in excess of $1,000,000, approximately 66 percent of
which was shipped to points outside that State.
II. THE ORGANIZATION INVOLVED
Bedding Local 140 of the United Furniture Workers of America,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Colnpany.
III. TILE QUESTION CONCERNING REPRESENTATION
The Company has failed to reply to the Union's request for rec-
ognition as the bargaining representative of certain of the Company's
employees.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. TIIE APPROPRIATE UNIT
The Union seeks a unit composed of all employees of the Company
at its Brooklyn plant, excluding all foremen, clerical employees,
chauffeurs, watchmen, porters, maintenance and supervisory em-
ployees.3 This is in effect a production unit. The Company agrees
with the Union except that the Company would also include in the
unit watchmen, porters, maintenance employees, laborers, and one
Willie Kuhn. We see no reason for departing from the unit insofar
as the parties are in agreement. We shall now consider the disputed
categories.' However, since in considering unit problems we deal
2 The Field Examiner reported that the Union submitted 36 application and authoriza-
tion cards, and that there are about 90 employees in the alleged appropriate unit.
At the hearing the Company submitted its pay roll bearing 93 Barnes and the Trial Ex-
anuner reported that of the Union's cards, 29 bore apparently genuine original signatures
of persons appearing on the aforesaid pay roll.
3 The Company employs no chauffeurs.
41n a prior Decision and Direction of Election involving the parties herein (Matter of
Burton-Dixie Corporation, 23 N L R. B 958), we found that a unit appropriate for pur-
poses of collective bargaining among the Company's employees consists of all employees of
the Company at its Brooklyn plant, including the porter and porteress, but excluding super-
BURTON-DIXIE CORPORATION 725
only with classifications and categories of work rather than individ-
uals, we shall discuss the status of Kuhn below.'
Maintenance employees, -whom the Company also designates as
machinists, spend most of their time repairing machinery 6 Tem-
porarily, until the Company acquires additional production workers,
these maintenance employees also spend some time on production
work. The Union does not admit this category of employees to mem-
bership and they are excluded from coverage under numerous con-
tracts between the Union and employers in this industry. As stated,
we have heretofore excluded maintenance employees from the pro-
duction employees' unit at this plant. We see no reason for includ-
ing them at present. We shall exclude them from the unit.
TVatcltmen at the plant perform the regular duties of watchmen,
and on occasion assist with some other work. While the record is
not clear as to whether the watchmen are members of the auxiliary
military police, it is probable that they are. The Union does not
admit watchmen to membership, and in the prior proceeding all
parties agreed to their exclusion. We shall exclude the watchmen
from the unit.
Porter or laborer and porteress. The Company employs a general
worker who acts as a porter and performs general maintenance and
other work, and employs a porteress who performs general cleaning
work. Pursuant to a stipulation between the parties, we heretofore
included the porter at this plant in the unit, and since there were but
insubstantial differences between the functions of the porter and the
porteress, we also included the latter in the unit.? The Union does
not now admit to membership any maintenance employees in this
industry, limiting its membership to production employees, although
in the past the Union did admit porters. It has been the Union's
experience that the inclusion in a production unit of some but not all
maintenance employees in a plant produced unsatisfactory results
from the standpoint of the Union, the employees, and the employers
involved. The Union has, consequently, excluded all maintenance
employees from its membership. Although we heretofore included
the porter and porteress in the unit,' in the light of all the circum-
stances now before us, we shall exclude the porter and the porteress.9
visory employees , woiking and non-working foiemen , clerical employees , chauffeurs , watch-
men, an engineer or fireman , and maintenance employees In that proceeding an issue also
aro-e as to maintenance employees and the portere"s , amoeg other with the Company urging
their inclusion and the Union seeking the_i exclusion , and it also was agreed by the parties
that watchmen should be excluded from the unit.
6 See Section V , infra.
C The Company has several thousand machines at its plant in Brooklyn
7 Matter of Burton -Diane Corporation, 23 N L R. B 958
' Button-Duxee case , supra.
"The Union would include any employees who perform general work about the plant
all of the time The porter or laborer, however , spends about half of his time acting as a
porter and the other half at various laborer jobs.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all employees of the Company at its Brooklyn plant,
excluding all clerical employees, watchmen, porter and porteress, all
maintenance employees, foremen and all other supervisory employees
with authority to lure, 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.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
had arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in
the Direction.
The parties are in disagreement as to the eligibility of Willie Kuhn.
The record is somewhat ambiguous as to Kuhn's duties. While there
is testimony that he has been "in charge of the tool crib" and "in
charge of supplies" for years, is a machinist and "supervises," the
Company terms Kuhn as a "general supply man, carrying stuff around
the place," and asserts that he supervises no one, is classified as a
general laborer, and receives an hourly rate about equal to that paid
lowest skilled production employees. The Union does not admit to
membership employees performing functions similar to Kuhn's. We
conclude that Kuhn is not a production employee within the appro-
priate unit and is therefore ineligible to participate in the election.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Burton-Dixie
Corporation, Brooklyn, New York, an election by secret ballot shall
be conducted as early as possible, but not later than thirty (30) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Second Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Ar-
ticle -III, Sections 10 and 11, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
BURTON-DIXIE CORPORATION 727
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 discharged
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 repre-
sented by Bedding Local 140 of the United Furniture Workers of
America, affiliated with the Congress of Industrial Organizations, for
the purpose of collective bargaining.