Burton Dixie Corporation

National Labor Relations Board - Board Decisions

Jan 25, 1939

10 N.L.R.B. 1417 (N.L.R.B. 1939)

In the Matter of BURTON DIXIE CORPORATION and BEDDING LOCAL 140,
UNITED FURNITURE WORKERS OF AMERICA, C. I. O.
Case No. B-1137.-Decided January 05,1939
Bedding and Furniture Supplies Manufacturing Industry-Investigation of
Representatives : controversy concerning representation of employees : employer
questions majority status of union-Unit Appropriate for Collective Bargaining:
all, employees , excluding chauffeurs , clerical and supervisory employees , watch-
men, an engineer or` fireman , and a porteress ; controversy as to classification of
certain employees-Election Ordered
Mr. Mark Lauter, for the Board.
Boudin, Cohn d Glickstein, by Mr. Victor Rabinowitz, of New York
City, of counsel for the Union.
Mr. Otto A. Jaburek, Chicago, Ill., for the Company.
Mr. William P. Wysong, of counsel to the, Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 15, 1938, Bedding Local 140, United Furniture Workers
of America, C. I. 0., herein called the Union, filed with the Regional
Director for the Second Region (New York City) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of the Burton Dixie Corporation, 960 Franklin
Avenue, Brooklyn, New York, herein called the Company, and re-
questing an investigation and certification of representatives pursuant
to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On October 12, 1938, 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 1, ' as amended, or-
dered an investigation and authorized the Regional Director to conduct
it and to provide for an appropriate hearing upon due notice.
On November 19, 1938, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
the Union. Pursuant to the notice, a hearing was held on December
10 N. L. R. B., No. 125.
1417
1418 NATIONAL LABOR RELATIONS BOARD
1, 1938, in New York City before Edward G. Smith, the Trial Exam-
iner duly designated by the Board. The Board, the Company, and
the Union were represented by counsel. All parties 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 Ex-
aminer made several rulings on motions and on objections to the ad-
mission 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 a plant in Brooklyn, New York,
with which this proceeding is concerned. The Company is-engaged in
the production and manufacture of bedding, mattresses, iron springs,
studio and furniture supplies. Approximately 85 per cent of the
gross volume of the Company's purchases-of raw materials were made
outside the State of New York during the period from January 1,
1938, to October 1, 1938. Sixty-six per cent of the gross volume of all
the Company's sales during the same period were made outside the
State of New York. At the hearing the Company stipulated that it
was engaged in interstate commerce within the meaning of Section
2 (6) and (7) of the Act.
II. THE ORGANIZATION INVOLVED
Bedding Local 140, United Furniture Workers of America, C. I. 0.,
is a labor organization affiliated with the Congress of Industrial Or-
ganizations admitting to membership all production employees of
the Company excluding supervisory and clerical employees.
III. THE QUESTION CONCERNING REPRESENTATION
In letters to the Company, dated June 3, 1938, and June 9, 1938,
respectively, the Union claimed to represent a majority of its em-
ployees and requested the Company to recognize it as the collective
bargaining agency for its employees and asked that a conference be
arranged for.bargaining purposes. The Company did not reply to
either of these letters. At the hearing the Company contended that
the Union did not represent a majority of the employees within an
appropriate unit.
DECISIONS AND ORDERS 1419
We find that a question has arisen concerning 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
The Union claims that the appropriate unit should consist of all
employees of the Company excluding chauffeurs, clerical and super-
visory employees, watchmen, an engineer or fireman, and porteress.
The Company is in agreement with the claim of the Union except as.
to the last three classifications of employees.
There were six employees, namely, four watchmen, an engineer or
fireman, and a porteress, in the disputed classifications. These em-
ployees devote from 65 to 90 per cent of their time to maintenance,
work, and the balance to assisting in production operations. The
Union seeks to bargain only for those employees who spend the ma-
jority of their time in production work. Moreover, it asserts that
there is a serious question whether or not the watchmen, the engineer
or fireman, and the porteress are eligible for membership in its organi-
zation. Since the Union has organized and desires to bargain on the
basis of a production unit, we will not include the employees with
an essentially maintenance function in this unit.'
We find that all the employees of the Company at its Brooklyn,.
New York, plant, excluding chauffeurs, clerical and supervisory em-
ployees, watchmen, an engineer or fireman, and a porteress, constitute
a unit appropriate for the purposes of collective bargaining and that
the said unit will insure to employees of the Company the full benefit
of their right to self-organization and collective bargaining and other-
wise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing the Union claimed to represent a majority of the
employees within the unit we have found to be appropriate but offered
no proof of its contention. We find that the question which has arisen
'Matter of Marks Brothers Company and United Toy and Novelty Workers Local
Industrial Union No. 538, affiliated with the C . 1 0., 7 N. L. R. B. 156
1420 NATIONAL LABOR RELATIONS BOARD
-concerning the representation 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 should direct an election, the
eligibility of employees to participate therein should be determined by
the Company's pay roll of September 14, 1938. No reason appears
for departing from the wishes of the parties in this regard. Accord-
ingly, we find that those employees of the Company within the appro-
priate unit who were on the Company's pay roll on September 14,
1938, shall be eligible to vote, excluding those who have since quit or
have 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 repre-
sentation 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,
,excluding chauffeurs, clerical and supervisory employees, watchmen,
an engineer or fireman, and a porteress, constitute a unit appropriate
-for the purposes of collective bargaining, within the meaning of Sec-
tion 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 1, as amended, it is
hereby
DIRECTED that, as a part of the investigation ordered by the
Board to ascertain representatives for the purposes of collective bar-
gaining with Burton Dixie Corporation, Brooklyn, New York, an
election' by secret ballot shall be conducted within fifteen (15) days
from the date of this Direction of Election under the direction and
supervision of the Regional Director for the Second 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
the employees whose names appear on the Company's pay roll of
September 14, 1938, at its Brooklyn, New York, plant, excluding
chauffeurs, clerical and supervisory employees, watchmen, an engineer,
or fireman, and a porteress, and those who have since quit or have been
discharged for cause, to determine whether or not they desire to be
represented by Bedding Local 140, United Furniture Workers of
America, C. I. 0., for the purposes of collective bargaining.