U. S. Bedding Co.

National Labor Relations Board - Board DecisionsSep 2, 1943

52 N.L.R.B. 382 (N.L.R.B. 1943)

In the Matter of U. S. BEDDING COMPANY and UNITED FURNITURE WORKERS OF AMERICA, C. I. O.. Case No. R-5792.-Decided September 0, 1943 Messrs. A. D. Waldauer and Harry U. Scruggs, both of Memphis, Tenn., for the Company. Mr. Bernard Hiatt, of Memphis, Tenn., for the C. I. O. Mr. Newell N. Fowler, of Memphis, Tenn., for the A. F. L. Mr. David V. Easton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Furniture Workers of America, C. I. 0., on behalf of its Local No. 282, herein collectively called the C. I. 0., alleging that a question affecting commerce had arisen con- cerning the representation of employees of U. S. Bedding Company, Memphis, Tennessee, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Earl S. Bellman, Trial Examiner. Said hearing was held at Memphis, Tennessee, on July 30 and 31, and August 2,1943. The Com- pany, the C. I. 0., and Upholsterers' International Union of North America, Local No. 417, herein called the A. F. L., appeared, partici- pated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Company and the A. F. L. joined in a motion to dismiss the petition herein, which was referred by the Trial Examiner to the Board. For reasons hereinafter stated this motion is denied. Subse- quent to the hearing, the Company made a further motion that the Board conduct an oral hearing on its motion to dismiss. This motion is hereby denied, since the matters in issue have been adequately argued in briefs. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. 52 N. L. R. B., No. 56. 382 U. S. BEDDING COMPANY 383 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY U. S. Bedding Company, a Georgia corporation, is engaged in the manufacture of mattresses, springs, steel and canvas cots, bed springs and box springs, divans, and chairs. In the course and conduct of its business it operates and maintains a plant located in Memphis, Tennes- see, with which we are concerned herein. During the year 1942, the Company purchased raw materials for use at its Memphis plant which were valued at approximately $900,000, of which approximately 75 percent originated from points outside the State of Tennessee. Dur- ing the same period the Company manufactured finished products valued at approximately $1,500,000, of which approximately 89 per- cent was shipped to points outside the State of Tennessee. Between 65 and 70 percent of the dollar value of the finished products of the Company was manufactured pursuant to contracts having a direct relationship to the national war effort. We find that the Company is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Local No. 282, United Furniture Workers of America, is a labor organization 1 affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. - Upholsterers' International Union of North America, Local No. 417, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On August 5, 1941, the Company and the A. F. L. executed a con- tract providing for exclusive recognition of the latter as the bargain- ing representative of its production and maintenance employees. It further provided for a yearly term subject to renewal in the absence of 30 days' notice by either party prior to any expiration date. This contract was automatically renewed in 1942, and no notice of termina- tion was given by either party by July 1943. The contracting parties 1 The Company contends that the C . I. O. is not a bona fide labor organization , allegedly because all of its members are Negroes . Although the record does not disclose that the C. I O. has among its membership any of the white employees of the Company, such em- ployees are eligible for membership . ( Preamble to Constitution of the United Furniture Workers of America. ) There is nothing in the record indicating that white employees have been refused- membership. It is obvious that the C . I. O. is a labor organization within the meaning of the Act. The contention of the Company is accordingly rejected. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contended at the hearing that the contract has again renewed itself and thus constitutes a bar to the instant proceeding. On or about April 29, 1943, the C. I. O. notified the Company of its claims of representation. The Company replied by letter stating that its president would be willing to discuss the matter. On or about May 3, 1943, the Company met with representatives of both the C. I. O. and the A. F. L., at which time the C. I. O. was informed that the Company's contract with the A. F. L. would expire in August 1943. After receiving this information, the C. I. O. filed the petition herein on May 7, 1943. Subsequently, as a result of negotiations between agents of the Board, the Company, and the labor organizations herein, the parties executed a consent election agreement which was there- after approved on June 28, by the Regional Director. The agreement provided for an election to be held on July 23, among the Company's employees in the stipulated unit who were on the pay roll of the Company as of July 14. However, on July 21, the Company withdrew its consent to the election and on the following day the Regional Director issued a notice of cancelation of the election. Inasmuch as the C. I. O. gave notice of its representation claim and filed the petition herein prior to the renewal date of the contract, the contract, under the Board's well-settled policy, does not constitute a bar to this proceeding.2 'The Company and the A. F. L. further strongly urge, however, in support of their motion to dismiss, that a limitation on the expenditure of Board's funds ,in the current Appropriations Act 3 precludes the Board from proceeding in this case. The provision in question is as follows : No part of the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agree- ment between management and labor which has been in existence for three months or longer without a complaint being filed . . . [Italics supplied.] Since the above-cited provision clearly indicates that it is applicable to complaint proceedings brought pursuant to Section 10 of the Act, rather than to representation proceedings pursuant to Section 9 of the Act, we find this contention to be without merit.4 2Matter of Serwee Wood Heel Co Inc , 41 N L R B . 45; Matter of Pressed Steel Car Co., 41 N L R B. 1 ; Matter of General Motors Corp , 40 N. L R. B 1233 ; Matter of Fire- stone Tire and Rubber Co., 40 N L R B 71 ; Matter of Hall Mfg Co, 40 N L R B. 14. 3 National Labor Relations Board Appropriations Act, 1944, Title IV, Act of July 12, 1943, P L 135, 78th Congi ess, 1st Session 4 It does not follow that plain and unambiguous language of the Act is to be construed as urged by the Company and the A. F. L by reason of the fact that in the debates on the bill certain members of Congress used language which suggests that the limitation applies to representation cases The National Labor Relations Act, and the Boaid 's rules, pro- cedures and decisions thereunder, clearly differentiate between complaint and iepiesenta- tion cases, a fact well known to the Congi ess Ti. S. BEDDING COMPANY 385 Accordingly, we find that the contract of August 5, 1941, and any renewal or alleged renewal thereof, does not constitute a bar to the instant proceeding. Statements of the Regional Director and the Trial Examiner, introduced into evidence at the hearing indicate that the C. I. 0. and the A. F. L. each 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. THE APPROPRIATE UNIT The Company and the A. F. L. have maintained collective bargain- ing relations with each other since August 1941. In the August 1941 agreement the Company recognized the A. F. L. as the exclusive bargaining representative of "all production and maintenance em- ployees [of the Company], exclusive of superintendents, foremen, clerical workers, and engineers." The C. I. 0. contends that, with minor variations," the same unit continues to remain appropriate. The A. F. L. asserts that (a) no appropriate unit should, at the present time, include the common laborers because of the alleged heavy turn-over of personnel among this class, and (b) the unit sought by the C. I. 0. is inappropriate in that it would be dominated by unskilled and transitory Negroes. It contends, in substance, that the appropriate unit should now be confined solely to skilled em- ployees a The Company contends that the Board should make no R The Regional Director reported that the C . I 0 submitted 179 membership cards bearing apparently genuine signatures of which 88 contained the names of persons appear- ing upon the Company's pay roll of July 14, 1943 Said pay roll contained the names of 216 persons in the appropriate unit. The C. I. 0 has, therefore , made a representation showing of about 36 percent We find this substantial , contrary to the contention of the A. F L, without regard to the fact that the contract between the Company and the A. F. L has a maintenance of member- ship clause. The Trial Examiner reported that the A F L submitted at the hearing 103 designation cards of two types, all bearing apparently genuine original signatures and indicating that the Company was the employer of persons whose signature appealed thereon In addi- tion , the A F L submitted 117 designations of a third type bearing apparently genuine original signatures , of which 66 contained the.names of persons appearing upon the afore- mentioned pay roll. 6 The C I 0., as indicated by its petition and its contentions at the hearing , seeks to represents a unit consisting of all production and maintenance employees of the company, excluding clerical and supervisory employees ( including inspectors and the person in charge of the machine shop , the latter sometimes being reterred to as an "engineer"), and depu- tized watchmen. 4 At the hearing, in answer to a question seeking to ascertain its contention with respect to the appropriate unit , the A. F. L defined it as consisting of "all skilled operators in the sewing room , and in the production of mattresses , all ciaftsnien , all operators of ma- chinery and equipment in the spring room, in the experiment room, and in the garnett room . . . 386 DECISIONS OF NATIONAL LABOR RELATIONIS BOARD finding with respect to the unit at the present time because (a) con- trol would be in the hands of unskilled and migratory Negro labor, and (b) the skilled white personnel are allegedly excluded from having a voice in the C. I. 0., and would therefore be unrepresented S The Company, under -normal circumstances, is engaged in produc- tion requiring -the services of persons in the ratio of approximately 4 skilled workers to 1 semi-skilled or unskilled worker.' However, due to conditions brought about by the national emergency, the character of its production has gradually changed in the past 2 years, so that the Company now concentrates upon fewer items which it produces in volume. In consequence the Company presently employs approximately 65 skilled and 149 semi-skilled and unskilled workers, a ratio of about 3 skilled to 7 unskilled or semi-skilled employees. However, this shift alone is not sufficient to render an industrial unit inappropriate. It is common knowledge that in many industries, and particularly in mass production industries, the unskilled personnel is in the majority. We take notice of the fact that in such industries bargaining on the basis of industrial units is successfully conducted. Insofar as the Company's bargaining relations are concerned, the record demonstrates that an industrial unit has functioned effectively. Indeed, at the hearing and in their briefs, both the Company and the A. F. L., as the representative of such a unit, strongly emphasized the amicable and beneficial relationships which have, existed between them. As indicated above, both the Company and the A. F. L. refer to the transitory and migratory qualities of the Company's unskilled and semi-skilled Negro employees as a reason for either (a) not finding any unit appropriate at this time, or (b) excluding such employees from the unit. The facts do not bear out such a description of these employees., On July 14, 1943, the Company employed approximately 216 workers within the unit sought by the C. I. O. and presently represented by the A. F. L.; 10 approximately 59 were white workers and the rest Negroes; approximately 65 of these employees were skilled, and the balance were unskilled or semi-skilled; and approxi- mately 90 percent of the skilled labor is white. During the period S This appears to be a tacit admission by the Company that the unit sought by the C I. 0. would , under normal conditions , be appropriate ; the objection of the Company is apparently not directed toward the classifications of employees within the unit, but to the C. I 0. acting as their representative . This is borne out by the fact that the Company has, as herein indicated , bargained for 2 years with the A . F. L. on the basis of an industrial unit, and by the further fact that the Company, on or about June 28, 1943, executed a con- sent election agreement which described the'umt as consisting of "all production and main- tenance employees, exclusive of superintendent , foremen, clerical workers, engineers, and deputized watchmen " -0 The record indicates that at the time of the execution of the agreement of August 5, 1941, 80 percent of the employees of the Company were skilled and 20 percent were either semi-skilled or unskilled 10 See footnote 5, supra. V. S. BEDDING COMPANY 387 between March 10 and July 14, 1943, the Company engaged 352 new workers (127 white and 225 Negro) to fill the places of 359 workers (118 white and 241 Negro) who left its employ. The record further indicates that the number of employees within the unit is compara- tively stable.- Thus, the figures cited by the Company tend to indicate that the white employees are more transitory than the Negro 12 In any event, the record does not disclose sufficient evidence to support a finding that the Negroes as a group are more transient than the white employees. Although the Company contends that 98 percent of the turnover involves semi-skilled and unskilled labor, the afore- mentioned figures would certainly appear to negate this contention. We, therefore, reject the arguments of the Company and the A. F. L., based upon the alleged instability of the Negro personnel, for a unit which would exclude the common labor group. The contention that the skilled employees alone should constitute an appropriate unit, on the grounds other than the claimed transitory character of the unskilled employees, is also without merit. The bargaining history of the Company and of the industry 13 indicates that both classes of employees, i. e., the skilled and unskilled, are usually included within the same unit. There is a close interrelation between the two classes and no functional basis is indicated in the record which would warrant their separation. 'Accordingly, we find this contention to be without merit 14 It would appear that the objection of both the Company and the A. F. L. to the proposed industrial unit is based solely upon the ground that the C. I. 0. includes within its ranks at the present time only Negro employees, a circumstance which they assert would result in the colored employees, were the C. I. 0. certified as the bargaining repre- sentative of all the Company's employees controlling the bargaining on behalf of both colored and white employee. That neither the Com- 11 On March 3, 1943, there were approximately 213 employees on the Company ' s pay roll in the unit hereinafter found appropriate. On July 14, 1943, there were approximately 216 employees within said unit. 11 The Company, on July 14, 1943, employed 216 workers, 59 white and 157 Negro. Be- tween March 10 and July 14, 1943, 127 white employees left the Company, a turnover of 215 percent ; during the same period, 225 Negro employees left , a turnover of 143 percent. Thus, it would appear that there is less turnover among the Negro personnel of the Com- pany than among its white personnel , in proportion to the number of employees in each group. 13 Matter of Memphis Furniture Company, 51 N. L. R. B. 1447; Matter of Jasper Co., 45 N. L. R B. 374; Matter of Charlton Company, Inc, 45 N. L. R. B. 772; Matter of Gluck Brothers, Inc., 45 N. L R B. 1159; Matter of Los Angeles Period Furniture Co., 43 N. L. R B. 327 ; Matter of The Nahon Company, 42 N L. R. B. 329 14 See Matter of Southern Wood Preserving Company, 37 N. L. R. B . 25. In that case, the intervenor sought two units ; one composed of skilled employees which would be con- fined solely to white workers, and the other composed of unskilled labor do hich would consist of Negroes. In that case , in finding that a single unit including both types of em- ployees was appropriate , we stated : "The record does not clearly show any differentiation in functions which would constitute a basis for the segregation of white and colored employees into separate bargaining units." 549875-44-vol. 52-26 388 DECISIONS Or NAT'IONA'L LABOR RELATIONS BOARD pany nor the A. F. L. opposes an industrial unit, as such, is evidenced by the past bargaining relations between the two and by the fact that both were parties to the consent election agreement which preceded the hearing herein. They do oppose the finding of an appropriate unit if there is a possibility that the colored workers, through having a majority, would control it. The color or race of employees is an irrelevant and extraneous con- sideration in determining, in any case, the unit appropriate for the purposes of collective bargaining. We have consistently refused to delimit units on the basis of race, and the national policy has recently been stated by the President to be opposed to any discrimination on racial grounds. The President's Executive Order 15 provides that "there shall be no discrimination in the employment of any person in war industries or in Government by reason of race, creed, color, or national origin, and . . . it is the duty of all employers . . . and all labor organizations, in furtherance of this policy and of this Order, to eliminate discrimination in regard to hire, tenure, terms or condi- tions of employment, or union membership because of race, creed, color, or national origin." It is plain, therefore, that a finding that the industrial unit is in- appropriate because the majority of the employees in the unit are colored would be contrary to the spirit of the Executive Order and the established principles of this Board. The circumstance that the membership of the C. I. O. is exclusively colored is equally irrelevant. The record refutes any claim that the C. I. O. discriminates against white employees in membership or otherwise. The constitution of the C. I. O. International prohibits racial discrimination, and the record does not show that any white employee has been refused mem- bership. There is no warrant, therefore, for assuming that the C. I. O. discriminates against white persons, and consequently no occasion for passing upon the question whether a union which denies membership to employees on the basis of race may nevertheless repre- sent a unit composed in part of members of the excluded race 16 We find that the industrial unit is appropriate. A dispute exists with regard to inspectors, whom the Company and the A: F. L. would include within the appropriate unit, whereas the C. I. O. would exclude them. The record indicates that these rem- ployees have the power to recommend discharge. Accordingly, we shall exclude them from the unit. We find that all production and maintenance employees of the Com- pany, excluding superintendents, foremen, inspectors, and any other 1+ Executive Order No 9346, amending Executive Order No 8802. 10 See Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, et al v United Transport Service Employees of America, etc., - App. D. C -, 12 L R. R 875 (August 2, 1943). U. S. BEDDING COMPANY 389 supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, clerical employees, deputized watchmen, and engineers, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The A. F. L. contended at the hearing that, if an election is to be held, eligibility to vote therein should be determined as of the pay-roll date of July 7, 1943, because said pay roll is the one nearest to the time its contract with the Company was allegedly automatically renewed 17 However, in order not to disenfranchise any of the workers herein, we shall follow our customary procedure and shall direct that the' employees of the Company eligible to vote in the election shall be those in the appropriate anit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction.'s 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, it is hereby DIE=D that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with U. S. Bedding Company, Memphis, Tennessee, 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 Fifteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article 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 the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on i4 In its brief, the A F L . urges that eligibility should be determined as of the week of August 5, 1943, the date of the current expiration of the contract 18 The C I . O. requested that it appear upon the ballot as "Local No. 282, United Furniture Workers of America , CIO," and the A F. L requested that it appear upon the ballot as "Upholsterers' International Union of North America, Local No 417, A F of L " Both requests are hereby granted. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, to determine whether they desire to be represented by Local No. 282, United Furniture Workers of America, C. I. 0., or by Upholsterers' International Union of North America, Local 417, A. F. of L., for the purposes of collective bargaining, or by neither. CHAIRMAN MII.LIS took no part in the consideration of the above Decision and Direction of Election.