Burton-Dixie Corp.

National Labor Relations Board - Board DecisionsNov 6, 1940

27 N.L.R.B. 1223 (N.L.R.B. 1940)

In the Matter of BURTON-DIxIE CORPORATION and WHOLESALE UP- HOLSTERERS AND BEDDING WORKERS, LOCAL 173, UPHOLSTERERS INTER- NATIONAL UNION OF NORTH AMERICA, AFFILTA7 :1) WITH THE ADIERICAN FEDERATION OF LABOR Case No. R-2079.-Decided November 6, 1940 Jurisdiction : bedding and furniture supply manufacturing industry Investigation and Certification of Representatives : existence of question:-re- fusal to accord recognition to union, election necessary. Unit Appropriate for Collective Bargaining : production and maintenance employees, stockroom employees, timekeepers, and working foremen, including watchmen engaged primarily in maintenance work Mr. Otto A. Jaburek, of Chicago, Ill., for the Company. Mr. Charles J. Hill, of Kansas City, Mo., for the Union. Mr. Norman M. Neel, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 13, - 1940, Wholesale Upholsterers and Bedding Workers, Local 173, Upholsterers International Union of North America, affiliated with the American Federation of Labor, herein called the Union, filed with the Regional Director for the Seven- teenth Region (Kansas City, Missouri) a* petition alleging that a question affecting commerce had arisen concerning the representation of employees of Burton-Dixie Corporation, Kansas City, Missouri, herein called the Company, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On Sep- tember 21, 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 appro- priate hearing upon due notice. On September. 29, 1940, the Regional Director issued a, notice of- hearing, copies of which were duly served upon the Company and the 27 N. L. R. B., No. 201 1223 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. Pursuant to notice, a hearing was held on October 3, 1940, at Kansas City, Missouri, before Daniel J. Leary, the Trial Examiner duly designated by the Board. The Company by its counsel and the Union by its representative 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 objections 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. On October 26, 1940, the "Union executed an instrument waiving the objection it had made at the hearing to the inclusion of one D. M. Trimble in the appropriate unit. 'We hereby incorporate said waiver of objection into the record and make it a part thereof. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is a Delaware corporation with its principal office in Chicago, Illinois. It maintains plants in Brooklyn, New York; Chi- cago, Illinois ; Kansas City, Missouri;, Memphis, Tennessee; Newark, New Jersey; Detroit and Lansing, Michigan; and Blacksburg, South Carolina, at which plants it is engaged in the production and manu- facture of bedding, mattresses, iron springs, and studio and furniture supplies. ' - - The principal raw materials used by the Company in the manu- facture of its products are steel springs, flat and rolled- steel, feathers, canvas, . and textiles. During the year ending August 31, 1940, the Company expended approximately $30,000 for raw materials for its Kansas City, Missouri, plant, all of which materials were purchased, outside the â€¢ State of Missouri. During the same period, the gross sales of finished products from the Kansas City, ' Missouri, -plant, were approximately $150,000, of which approximately 50 per cent were shipped outside the State of Missouri. - The Company conceded that it was engaged in interstate commerce within the meaning of the Act. - II. THE ORGANIZATION INVOLVED Wholesale Upholsterers and Bedding Workers, Local 173, Uphol- sterers International Union of 'North America is a labor organiza- tion affiliated with the American Federation ` of Labor, admitting to BURTON-DIXIE CORPORATION I .,I 1225 membership employees of Burton-Dixie Corporation ' at its, Kansas City, Missouri,, plant. , 4 III. THE QUESTION CONCERNING REPRESENTATION On or about August 20, 1940, a committee of representatives of the Union advised D. M. Huston, manager of the Company, that the Union represented a majority of the production and maintenance employees, stockroom employees, packers and timekeeper's, excluding supervisory and office personnel, engineers, and truck drivers, at the Kansas City, Missouri, plant of the Company; for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment, and that it desired to enter into collective negotiations for' all said employees of the Company. Thereafter, on September 6, 1940, the committee of rep- resentatives of the Union were advised by D. M. Huston, in sub- stance, that he did not know whether the Union represented a majority of the employees of the Company. Both parties then agreed that an election should be conducted to determine the Union's status as majority representative. There was adduced in evidence a statement of the Trial Examiner, showing a substantial union membership.) We find that a question has arisen concerning the representation of employees of the Company. IV. THE 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 In its petition, as amended at the hearing, the Union claimed a unit consisting of all production and maintenance employees, stock- room employees, timekeepers, and working foremen, excluding super- visory and office personnel, watchmen, and engineers. It contends that Delbert White, Sherrell Noble, and William O. Miller should be.ex- ' The unit sought by the Union is comprised of approximately 70 employees The Union submitted to the Trial Examiner 53 application cards, 46 of which her(,, the genuine signatnies of persons in that unit whose names were on the Company' s October 1, 1940, pay roll. 1226 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD eluded as watchmen.2 The Company does not object to the unit claimed by the Union, but contends that the three men named should be included in the unit. White, Noble, and Miller, who work only at night, are designated on the Company's pay roll as -watchmen, but their duties consist largely of janitor work, cleaning the building and preparing the machines for the men who come on in the mornings. -They also fire the' boners' in the winter to heat the workrooms. Their duties as watchmen, punch- ing clocks periodically, appear to be incidental to their cleaning work. The union representative stated at the hearing that while these men' were classified as watchmen, their duties led him to believe that they were "nothing but' laborers, doing the cleaning and sweeping and cleaning the machines. . . ." Since they are engaged, for the most part, in maintenance work, we shall include them in the, unit. â€¢ We find that all production and maintenance employees, stockroom employees, timekeepers, and working foremen of the Company, includ- ing D. M. Trimble, Delbert White, Sherrell Noble and William O. Miller, but, excluding supervisory and office personnel, and engineers, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to the employees of the Company the full benefit of their right to self-organization and to collective bargain- ing and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representation can best be resolved by the holding of an election by secret ballot. We shall direct that such an election be held. The parties stipulated that-the pay roll of the Company for the pay-roll period ending October 1, 1940, should serve as determinative of eligibility to participate in an election. We shall direct that all employees in the appropriate unit whose names appear on the Com- pany's pay roll for the pay-roll period ending October 1, 1940, includ- ing employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to vote. Upon the, basis of- the, above. findings of fact and upon ,the entire record in the case, the Board makes the following: 2 At the hearing the Union requested the exclusion of another employee , D. M Trimble, and the Company sought his inclusion After the hearing , as stated , supra, the Union withdrew its objection to Trimble 's inclusion in the unit and, accordingly , he will be included. BURTON-DIXIE CORPORATION 1227- CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Burton-Dixie Corporation, Kansas City, Missouri, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees, stockroom -em- ployees, timekeepers, and working foremen of the Company, including D. M. Trimble, Delbert White, Sherrell Noble, and William O. Miller, but excluding supervisory and office personnel, and engineers, consti- tute 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 Rela- tions 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, Kansas City, Missouri, 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 Seven- teenth Region,- acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all production. and maintenance employees, stockroom employees, timekeepers, and working foremen of the Com- pany, who were employed during the pay-roll period ending October 1. 1940, including D. M. Trimble, Delbert White, Sherrell Noble, and William O. Miller, and those who are not working because they are ill or on vacation and employees who are temporarily laid off, but excluding supervisory and office personnel and engineers, and all persons who have quit or have been discharged for cause since that date, to determine whether or not they desire to be represented by Wholesale Upholsterers and Bedding Workers, Local 173, Uphol- sterers-International Union of North America, affiliated with the American Federation of Labor, for the purposes of collective bargaining.