Belz Upholstered Furniture Co.

National Labor Relations Board - Board Decisions

Feb 17, 1942

38 N.L.R.B. 1326 (N.L.R.B. 1942)

In the Matter of SAM BELZ AND PHILIP BELz, D/B/A BELz UPHOL-
STERED FURNITURE Co. and INTERNATIONAL WOODWORKERS OF AMERICA
AFFILIATED WITH C. I. O.
Case No. R-3476.-Decided February 17,194
Jurisdiction : furniture manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to recognize either of two competing unions until certified by the Board;
election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees of the Company, excluding clerical and office personnel, and super-
visory employees above the rank of working foremen ; working foremen who
spend 95 per cent of their time doing manual labor, are paid on an hourly basis,
and do not have power to hire or discharge, included notwithstanding desire of
one of the unions involved for their exclusion. "
Mr. Sam Margolin, of Memphis, Tenn., for the Company.
Mr. H. J. Burbach, of Memphis, Tenn., for the Upholsterers.
Mr. Harry Koger, of Memphis, Tenn., for the I. W. A.
Mr. Robert C. Moore, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 3, 1941, and November 9, 1941, respectively, Interna-
tional Woodworkers of America affiliated with C. I. 0., herein called
the I. W. A., filed with the Regional Director for the Tenth Region
(Atlanta, Georgia) a petition and an amended petition alleging that
a question affecting commerce had arisen concerning the representation
of employees of Sam Belz and Philip `Belz, doing business as- Belz
Upholstered Furniture Co., Memphis, Tennessee, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On November 25, 1941, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act, and Article III, Section 3, of Na-
tional Labor Relations Board Rules and Regulations-Series 2, as
38 N L. R. B, No. 236.
1326
BELZ UPHOLSTERED FURNITURE CO. - 1327
amended, ordered an investigation and authorized the Regional Direc-
tor to conduct it and to provide for an appropriate hearing upon due
notice. On November 26, 1941, the Board, acting pursuant to Article
III, Section 10 (c) (3), of said Rules and Regulations, ordered that
the case be transferred from the Tenth Region to the Fifteenth Region
(New, Orleans, Louisiana).
On January 13, 1942, the -Regional Director for the Fifteenth Region
issued a notice of hearing, copies of which, together with copies of
the amended petition, were served upon the Company, the I. W. A.,
and upon Upholsterers' International Union of North America, Local
325, affiliated with A. F. L., herein called the Upholsterers, a labor
organization claiming to represent the employees affected by the inves-
tigation. Pursuant to notice a hearing was held at,Memphis, Ten-
nessee, on January 21, 1942, before Charles A. Kyle, the Trial Exam-
iner duly designated by the Chief Trial Examiner. The Company,
the I. W. A., and the Upholsterers were represented by counsel or by
their official representatives and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all parties.
During the course of the -hearing the Trial Examiner made 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.
The Trial Examiner reserved ruling on a motion, made by the Com-
pany, that the Upholsterers be excluded from participation in the
hearing. The grounds for said motion were, (1) that the Company
had not been notified prior to the hearing that the Upholsterers would
participate, and (2) that the Upholsterers was barred from partici-
pation by the results of a prior election among the Company's em-
ployees, in which the employees, voted' against representation by the
Upholsterers.' The record does not disclose that the Company was
in any manner prejudiced by. lack of notice that the Upholsterers
would participate. The fact that the Upholsterers lost the prior
election furnishes no basis for excluding it from the present proceed-
ing; the record shows that the Upholsterers has a substantial interest
herein. The Company's motion to exclude the Upholsterers is there-
fore denied.
1 On May 22, 1941 , subsequent to the filing by the Upholsterers of a petition similar to the
petition in the instant case , the Company and the Upholsterers agreed between themselves
that an election should be held among the Company 's employees under the supervision of the
Regional Director (Tenth Region ) to determine whether or not said employees wished to
be represented by the Upholsterers Concerning the results of the election , which was
held May 29, 1941, the Regional Director reported that of 61 employees eligible to vote, 58
had voted , 28 having voted in favor of , and 30 against , such representation.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company manufactures upholstered furniture, maintaining its
office and plant at Memphis, Tennessee. The principal raw materials
used are tapestry, springs, filling, tacks, twine, lumber, paints, lacquer,
moss, and upholstery fabrics. The Company annually uses raw mate-
rials valued at about $65,000, about 60 percent of which it imports
from: sources outside the State of Tennessee. Average annual sales
amount to about $200,000, and about 80 percent of these sales are made
to customers outside the State of Tennessee.
II. THE ORGANIZATIONS INVOLVED
International Woodworkers of America, affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to
membership employees of the Company.
Upholsterers' International( Union of North America, Local 325,
affiliated with the American Federation of Labor, is a labor,organiza-
tion admitting to membership employees of the Company.
M. THE QUESTION CONCERNING REPRESENTATION
The I. W. A. has requested of the Company recognition as exclusive
bargaining agent for its employees. The Company has refused to
grant such recognition pending a certification of representatives by
the Board. The record reflects that both the I. W. A. and the Up-
holsterers have substantial membership among the Company's
employees? ,
There is a dispute among the parties as to the unit appropriate for
the purposes of collective bargaining.
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
2 The I W A. presented to the Trial Examiner a total of 80 applications for membership,
of which apparently 21 bore signatures of employees appearing on the Company 's pay roll
for January 16, 1942. There are about 36 employees on said pay roll in the appropriate
unit The Upholsterers , in addition to introducing evidence that it received 28 of 58 votes
in a previous election ( see footnote 1, supra ), presented to the Trial Examiner four member-
ship applications bearing dates subsequent to the date of the agreement for said election.
Two of these named employees on said pay roll.
BELZ UPHOLSTERED FURNITURE CO. 1329
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
The parties agreed that the appropriate collective bargaining unit
should include all production and maintenance employees, excluding
supervisory, clerical, and office personnel. There is disagreement,
however, as to the status of working foremen, the I. W. A. contending
that these employees should be excluded from the unit, due to their
supervisory activities, while the Upholsterers and the Company con-
tended that they should be included.3 '
As of January 16, 1942, the Company employed five persons classed
as working foremen. The record discloses that these employees are
more accurately described as gang leaders or "pushers," since they
spend from 80 to 95 percent of their time doing manual labor of the
same character as that performed by the men under them. The re-
mainder of their time is spent in setting up machines and in inspecting
the work of the other men. The working foremen are paid on an
hourly basis. They do not have the power to hire or discharge, al-
though they may recommend such action. We shall include these
employees in the appropriate unit.4
We find that all production and maintenance employees of the Com-
pany, including working foremen, but excluding clerical and office
personnel and supervisory employees above the rank of working fore-
men, constitute a unit appropriate for the purposes of collective bar-
gaining and that said unit will insure to employees of the Company
the full benefit of their right to self-organization and to collective
bargaining and otherwise will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. In accord-
ance with our usual practice, and with the expressed desires of the
parties, we shall direct that such an election be conducted among
employees within the appropriate unit who were employed during
the pay-roll period immediately preceding the date of our Direction
of Election, subject to the additions and limitations set forth in the
Direction.
3 Prior to the afore-mentioned election among the Company ' s employees ( see footnote 1,
supra ) the Upholsterers and the Company agreed that working foremen were within the
appropriate unit and were eligible to vote
See Matter of Indianapolis Paint & Color Co. and Chemical Division of District No 50
United Mine Workers of America, affiliated with the C. 1 0, 38 N. L R B 185
438801-42-vol 38-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Sam Belz and Philip Belz, doing business
as Belz Upholstered Furniture Co., Memphis, Tennessee, 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 of the Company, in-
cluding working foremen, but excluding clerical and office personnel
and supervisory employees above the rank of working foremen, con-
stitute 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
DmEcTED that, as a part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Sam Belz and Philip Belz, doing business as Belz Upholstered
Furniture Co., 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, Section 9, of said Rules and Regulations, among all
production and maintenance employees, including working foremen,
who were employed by the Company during the pay-roll period im-
mediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill
or on vacation or in the active military service or training of the
United States, or temporarily laid off, but excluding clerical and office
personnel and supervisory employees above the rank of 'working fore-
men, and employees who have since quit or have been discharged for
cause, to determine whether they desire to be represented by Inter-
national Woodworkers of America, affiliated with C. I. 0., or by Up-
holsterers'--International Union of North America, Local 325, affiliated
with A. F. L., for the purposes of collective bargaining, or by neither.