Burton Dixie Corp.

National Labor Relations Board - Board DecisionsMay 18, 1940

23 N.L.R.B. 958 (N.L.R.B. 1940)

In the Matter of BURTON DIxri CORPORATION and BEDDING LOCAL 140, UNITED FuRNITIInE WORRIERS OF AMERICA, CIO Case No. B-1816.-Decided May 18, 1940 Bedding and Furniture Supplies Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees: refusal by employer to recognize petitioning organization as exclusive representative in a unit which it claims appropriate unless certified by the Board-Unit Appro- priate for Collective Bargaining: all employees, including the porter and por- teress, but excluding supervisory employees, non-working foremen, clerical employees, chauffeurs, watchmen, an engineer or fireman, working foreman, and maintenance employees; controversy as to classification of certain employees- Election Ordered Mr. Martin I. Rose, for the Board. Mr. Otto A. Jaburek , of Chicago , Ill., for the Company. Mr. Alexander E. Racolin, of New York City, for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 13, 1939, Bedding Local 140, United Furniture Work- ers of America, herein called the Union, filed with the Regional Di- rector for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Burton Dixie Corporation, Brooklyn, New York, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act. , On March 7, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regu- lations-Series 2, as amended, ordered an investigation and author- ized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On March 25, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the 23 N. L. R. B., No. 103. 958 BURTON DIXIE CORPORATION , 959 Union. On March 29, 1940, the Company filed a motion for continu- ance. On April 4, 1940, the Regional Director issued a notice of postponement. Pursuant to the notice of postponement, a hearing was held on April 29, 1940, at New York City, before Edward G. Smith, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objec- tions to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Burton Dixie Corporation is a Delaware corporation with its prin- cipal office in Chicago, Illinois, and plants in Brooklyn, New York; Chicago, Illinois; Kansas City, Missouri; Memphis, Tennessee'; Newark, New Jersey; Detroit and Lansing, Michigan; and Blacks- burg, South Carolina, where it is engaged in the production and manufacture of bedding, mattresses, iron springs, and studio and fur- niture supplies. This proceeding is concerned only with the plant at Brooklyn. During the fiscal year of the Company from December 1, 1938, to November 30, 1939, the Company purchased raw materials for the Brooklyn plant valued at approximately $670,000, 85 per cent of -which were shipped to the Brooklyn plant from points outside the -State of New York. During the same period the Company sold products manufactured at the Brooklyn plant valued at approxi- mately $1,400,000, of which approximately 66 per cent were shipped from the Brooklyn plant to points outside the State of New York. At the hearing the Company stipulated that it is engaged in com- merce within the meaning of Section 2 (6) -and (7) of the Act. II. THE ORGANIZATION INVOLVED Bedding Local 1'40, United Furniture Workers of America, is a 1&r organization affiliated with the Congress of Industrial Organizations, ,admitting to membership all production employees of the Company, excluding supervisory and clerical employees. - 960 DECISIONS OF NATIONAL. ,LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION The, Company and the Union stipulated that the Company would not bargain with the Union until it had been certified by this Board as the exclusive representative of a majority of the Company's em- ployees in an appropriate unit. We find that a question has arisen concerning the representation of employees of the Company. TV. TIIE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen,. occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT With the exception of four classifications of employees, the Company and the Union were in agreement as to the composition of the appro- priate unit, namely, all employees of the Company, including the porter, but excluding supervisory employees, non-working foremen, clerical employees, chauffeurs, and watchmen at the Brooklyn plant. We see no reason for departing from the agreement of the parties in this respect. The four classifications of employees over whom there is disagreement are: an engineer or fireman, maintenance employees, working foremen, and a porteress. The engineer or fireman is engaged in operating a boiler in a separate .building for the purpose of producing steam for baking Enamel on springs and bed arms. The Company contends that he should be in- cluded within the unit because he supplies the power to run a necessary production function. The Union desires that the enginer or fireman be excluded because he is not -eligible for membership in its organiza- tion, pointing out that he is required to have a license from the mu- nicipal authorities and that he is engaged in work so dissimilar from the production workers that the Union does not feel itself competent to bargain or adjust grievances in his behalf. We find that the engineer or fireman should be excluded from the unit. The Company.urges the inclusion of the maintenance employees in the unit and the Union desires their exclusion. These employees spend approximately 90 per cent of their time repairing machinery in the plant, they receive a higher rate of pay than the production workers, their duties take them into all the departments of the plant, and their work requires a higher skill than that of the production employees. BURTON DIXIE CORPORATION 961 The business agent of the Union testified that this type of employee is traditionally not organized along with the production employees in the beddilig trade. We find that the maintenance employees should be excluded from the unit.' The Company urges the inclusion of the working foremen within the appropriate unit since they are actively engaged in the manufac- turing process. The Union desires their exclusion from the bargaining unit because their duties ally them with the management. The record disclosed that the working foremen act as instructors, are in part re- sponsible for the maintenance of the Company's production schedule, receive a higher rate of pay than the ordinary production workers, and are not eligible for membership in the Union. We find that the working foremen should be excluded from the unit.2 The Union desires to exclude from the unit the porteress who cleans, the offices of the Company at night. The Company contends that there is no reason for including the porter in the unit, as the parties stipulated, and excluding the porteress. While the work done by the: porter is different from that of the porteress, such difference is not so substantial as to afford sufficient ground for excluding her from the. unit where, as here, there appears to be no other labor organization which could represent her and her exclusion from the unit would oper- ate to deprive her of the benefits of collective bargaining. We find that the porteress should be included in the unit. We find that all employees of the Company at its Brooklyn plant,' including the porter and porteress, but excluding supervisory em- ployees, non-working foremen, clerical employees, chauffeurs, watch- men, an engineer or fireman, working foremen, and maintenance enl: ployees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company full benefit of their right to self-organization and to collective bar-' gaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by an election by secret ballot. The parties agreed at the hearing that in the event the Board directed an election eligibility of employees to vote should be determined by the Company's pay roll of April 23, 1940. We find that those employees of the Company within the appropriate unit who were on the Company's pay roll of April 23, 1940, shall be I See Matter of McAdoo Sportswear Company, Inc . and International Ladies' Garment Workers Union, 12 N. L. R. B. 1199 2 Cf. Matter of Clinton Garment Company and International Ladies' Garment Workers Union, 8 N L B R. 775; Matter of A Fink and Sons Co, Inc, and Amalgamated Meat Cutters & Butcher Workmen of N. A., Local 422, A. F. of L., 9 N. L. R. B. 441. 962 DECISIONS OF, NATIONAL LABOR RELATIONS -BOARD eligible to vote, excluding those who have since quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAw 1. A question affecting commerce has arisen concerning the rep- resentation of employees of Burton Dixie Corporation, Brooklyn, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. ' 2. All employees of the Company at its Brooklyn, New York, plant, including the porter and porteress, but excluding supervisory employees, non-working foremen, clerical employees, chauffeurs, watchmen, an engineer or fireman, working foremen, and inailito- nance employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 Re- lations Act and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby , DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives 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 Rela- tions Board and subject to Article III, Section 9, of said Rules and Regulations, among all employees of the Company at its Brooklyn plant, whose names appear on the Company's pay roll of April 23, 1940, including the porter and porteress, but excluding supervisory employees, non-working foremen, clerical employees, chauffeurs, watchmen, an engineer or fireman, working foremen, maintenance employees, and employees who have since quit or been discharged- for cause, to determine whether or not they desire to be represented by Bedding Local 140, United Furniture `Yorkers of America, affili- ated with the Congress of Industrial Organizations, for the purposes- of collective bargaining.