Burton-Dixie Corp.

National Labor Relations Board - Board Decisions

Feb 7, 1941

29 N.L.R.B. 444 (N.L.R.B. 1941)

In the Matter of BuRToN-DIxIE CORPORATION and FuRNITuRE, BED-
DING & CASKET LOCAL 325, UPHOLSTERERS' INTERNATIONAL UNION OF
NORTH AMERICA
Case 1Vo. R-2264.-Decided February 7, 1941
Jurisdiction : bedding manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord recognition to union ; striking employees held eligible to vote ;
election necessary.
Unit Appropriate for, Collective Bargaining : all employees at one of the Com-
pany's plants except the manager, the superintendent , and office employees ;
agreement as to.
Mr. Lucius E. Burch, Jr., of Memphis, Tenn., and'Mr. Otto A.
Jaburek, of Chicago, Ill., for the Company.
Mr. Roy W. Grow, of Memphis, Tenn., for the Union.
Mr. Robert F. Koretz, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 16, 1940, Furniture, Bedding & Casket Local 325,
Upholsterers' International Union of North America,' herein called
the Union, filed a petition with the Regional Director for the Tenth
Region (Atlanta, Georgia), alleging that a question affecting com-
merce had arisen concerning the representation of employees of
Burton-Dixie Corporation, 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 January 10, 1941, 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 Regulations- Series 2,
1 Designated in the petition as "Furniture , Bedding & Casket Local 325 , Upholsterers'
International Union, " and in the notice of hearing and other formal papers as "Furniture,
Bedding & Casket Local 325." In accordance with a motion made at the hearing , which we
grant, the caption of the case has been changed to lead as above, and the petition and other
formal papers amended in like manner
29 N. L. R. B , No. 86.
444
BURTON-DIXIE CORPORATION 445-
s amended, ordered an investigation and authorized the Regional
,Director to conduct it and to provide for an appropriate hearing
upon due notice. On January 13, 1941, the Regional Director issued
a notice of hearing, copies of which were duly served upon the
Company and upon the Union. '
Pursuant to the notice, a hearing was held on January 22,'i941,
at Memphis, Tennessee, before Alexander E. Wilson, Jr., the Trial
Examiner duly designated by the Board. The Company and the
Union appeared, 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. At the close of the hearing motions were
made to, amend the petition and other formal papers in certain
respects. No objection was made to the motions, which are hereby
granted. During the course of the hearing the Trial Examiner
made several' rulings on other 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.
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 with its prin-
cipal office in Chicago,. Illinois, has 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, steel springs, studio and furni-
ture supplies. This proceeding is concerned only with the Memphis,
Tennessee, plant, herein called the Memphis plant, where the Com-
pany is engaged in the production of cotton batting used in the
manufacture of upholstered furniture and automobiles. - The prin-'
cipal raw materials used at the Memphis plant are linters and mill
waste. During the year ending November 30, 1940, the Company
used approximately 5,200,000 pounds of raw materials, worth about
$320,000, 90 per cent of which were transported to the Memphis plant
from outside the State of Tennessee. During the same period, the
Company sold finished products manufactured at the Memphis plant
weighing approximately 4,300,000 pounds and worth about $530,000,
70 per cent of which were transported to points outside the State of
Tennessee.
446. DECISIONS OF ;NATIONAL LABOR RELATIONS BOARD
IT. THE ORGANIZATIONS INVOLVED
Furniture, Bedding & Casket Local 325, Upholsterers' Interna-
tional Union of North America, is a labor organization affiliated with
American Federation of Labor, admitting to membership employees
of the Company at the Memphis plant.
III. THE QUESTION CONCERNING REPRESENTATION
On or about November 10 and 15,.1940, the Company refused the
Union's request for collective bargaining on the ground that it
doubted that the Union had been designated for such purpose by a
majority of its employees, and stated-that it would not recognize or
otherwise bargain collectively with the Union as the statutory repre-
sentative of it's employees until the Union was certified by the Board
as such representative. -'
At the hearing the Trial Examiner made a report and statement
for the purposes of the record which showed that a substantial num-
ber of employees of the Company within the unit hereinafter found
t o be appropriate designated the Union as their representative for
the purposes of collective bargaining.2
We find that a question has arisen concerning the representation
of employees of the Company.
TV. 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
The Company and the Union agreed, and we find, that all em-
ployees of the Company at its Memphis plant, except the manager,
the superintendent, and office employees, constitute a unit appropriate
for the purposes of collective bargaining, 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 effec-
tuate the policies of the Act.
. 2 The Trial Examiner reported that the Union had submitted to him 62 membership cards.
Sixty-one were of persons who were on the Company's November 13, 1940, pay roll, which
contained the names of eighty -five persons.
BURTON-DIXIE CORPORATION
VI: THE DETERMINATION OF REPRESENTATIVES
•447
We find that the question concerning representation which has
arisen can best be resolved by the holding of an election by secret
ballot among employees within the appropriate unit- to determine
their desires with regard to representation.
On November 19, 1940, .the Union called a strike, which is still in
progress. On that date the Company employed about 85 persons.
At the date^of the hearing, about 45 employees were on strike; about
.35 persons were at work in the Memphis plant, one of whom had been
hired since the strike began. There is no showing that the person
hired since 'the strike began occupies a position which did not exist
prior thereto. The Union requests the use of a pay-roll date prior
,to October 24, 1940, when the Union began to organize employees of
the Company, as determinative of eligibility to participate in the
election. The Company urges that a current pay roll be,used to
determine eligibility, and that the strikers be eliminated from-par-
ticipation in the election. In support of its position the Company
contends in substance that the strike has so affected its production
that it will be unable to reemploy all the strikers for several months
and that by that time it is likely that the strikers will not be avail-
able for reemployment. The record shows that the Company's oper-
ations normally, begin to' slacken' in about the middle of June, reach
their lowest ebb in the latter part of July, begin to increase near
-September 1, reach their maximum level in November or December,
and remain at this level until March, or if business is favorable, until
June. The Company customarily seeks to reemploy satisfactory
workers who are laid off during the seasonal slump between June
and September, and it was estimated by the manager of the Memphis
plant that only about 15 per cent of those laid off do not return
to work when operations increase. In 1940 the Company employed
80 to 85 persons until the middle of Julie, when lay-offs began which
.ultimately-, reduced personnel; to about 35 in number; it' began to
reemploy on about the first of September and employed about' 85
persons when the strike was called. As regards reemployment of
the strikers, the Company's manager testified that the strike caused
a decrease in production of "at least 50 per cent"; that at about the
first of the year, when the Company normally enters into sales con-
tracts for delivery of goods, the Company only accepted sales con-
tracts possible of fulfillment under existing productive capacity ;
that the Company will be unable to obtain additional contracts
,for several months; that as a,result the Company will be unable to
employ as many persons between the date of the hearing and the
seasonal slack period beginning in June as were employed prior to
.448 DECISIONS -OF "NATIONAL -LABOR' RELATIONS BOARD
the strike; and that "maybe some-of the men who are out now never
will be hired back again." He further testified that he had learned
that some 10 or 11 of the strikers are employed elsewhere or have
left Memphis. I
We are of the opinion that the Company's contentions and show-
ing do not warrant the exclusion of the strikers from participation
in the election. The strikers remain employees under the terms of
the Act since the record shows, and we find, that the strike is a
current labor dispute. Further, we are satisfied from the record
that the strikers have a reasonable expectancy of reinstatement.
Under the circumstances of this case, we are satisfied that the most
accurate determination of the desires of the ' Company's employees
affected by our investigation will be obtained by the use of the'pay
roll for the period last preceding November 19, 1940, to determine
eligibility, and we shall so direct.
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 repre-
sentation of employees of Burton-Dixie Corporation, Memphis, Ten-
nessee, 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 Memphis, Tennessee, plant
except 'the manager, the superintendent, and office employees, 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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Bbard 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 bargain-
ing with Burton-Dixie Corporation, 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 of Election;
under the direction and supervision of the Regional Director for
the Tenth Region, acting in this matter as agent for the National
Labor Relations Board and subject , to Article III, Section 9, of
BURTON-DIXIE CORPORATION 449
said Rules and Regulations, among all employees of Burton-Dixie
Corporation at its Memphis, Tennessee, plant, who were employed
during the pay-roll period last preceding, November 19, 1940, in-
cluding employees who did not work during said pay-roll period
because they were ill or on vacation and employees who were then or
have since, been temporarily laid off, but excluding employees who
have since quit or been discharged for cause, and also excluding the
manager, the superintendent, and office employees, to determine
whether or not they desire to be represented by Furniture, Bedding
& Casket Local 325; Upholsterers' International Union of North
America, for the purposes of collective bargaining.