Taylor Bedding Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 30, 1942

38 N.L.R.B. 755 (N.L.R.B. 1942)

In the Matter of TAYLOR BEDDING MANUFACTURING COMPANY and
UPHOLSTERERS ' INTERNATIONAL UNION OF NORTH AMERICA
Case No. R-3270.Decided January 30, 1942
Jurisdiction : mattress, furniture, and bedding items manufacturing industry
Investigation and Certification of Representatives : existence of question:
refusal of Company to accord union recognition until certified by the Board ;
election necessary.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, including foremen and subforemen who spend 50 per cent or more
of their time in the performance of manual labor, but excluding officials,
stockholders, superintendents, non-working foremen and subforemen, outside
salesmen, clerical workers, and night watchmen.
Mr. Harris A. Melaskey, Mr. W. C. Wo ff ord, and Mr. L. D. Hamnnack,
of Taylor, Tex., for the Company.
Mr. Ed Conrad, of Philadelphia, Pa., and Mr. Grady Oliver of Dal-
las, Tex., for the Union.
Mr. Gerard J. Manack, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 10, 1941, Upholsterers' International Union of North
America, herein called the Union, filed with the Regional Director for
the Sixteenth Region (Fort Worth, Texas) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of Taylor Bedding Manufacturing Company, Taylor,
Texas, herein called the Company, and requesting 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
29, 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,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice.
38 N. L. R. B., No 145
755
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 31, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
Union. Pursuant to notice, a hearing was held on November 5, 1941,
at Taylor, Texas, before Clifford W. Potter, the Trial Examiner duly
designated by the Chief Trial Examiner. The Company was repre-
sented by counsel, the Union by its representatives, and both partici-
pated 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 various rulings on motions and objections to
the admission of evidence. The Board has reviewed all the rulings
of the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed. On November 21, 1941,
the Company filed a brief which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Taylor Bedding Manufacturing Company, a Texas corporation, with
its principal place of business in Taylor, Texas, is engaged in the
manufacture and sale of mattresses, box springs, bed divans, furniture,
cotton batting, cotton upholstery felts, and other related bedding items.
It uses approximately $1,000,000 worth of raw material annually, and
its annual sales amount to, approximately $1,500,000. Approximately
65 percent of the total manufactured products of the Company is
shipped to points outside the State of Texas.
The Company admits that it is engaged in commerce within the
meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
Upholsterers' International Union of North America, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about October 7, 1941, the Union requested the Company to
recognize it for the purposes of collective bargaining. The Company
declined to grant such recognition unless the Board certified the Union
as the representative.
TAYLOR BEDDING MANUFACTURING COMPANY 757
A statement prepared by a Field Examiner of the Board, introduced
at the hearing, discloses that the Union represents a substantial number
of employees within the unit hereinafter found to be appropriate.'
We find that a question has arisen concerning the representation of
employees of the Company:
IV. THE EFFECT OF TILE 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 describes in its petition the bargaining unit which it
claims as appropriate as "all production and maintenance employees,
exclusive of officials, stock-holders and all supervisory employees in
the capacity of superintendent and above, clerical workers and night
watchmen." The Company contends, however, that in addition to
the exclusions claimed by the Union, foremen, subforemen, outside
salesmen, and temporary employees should also be excluded from
the unit.
The principal controversy centers around a large group of em-
ployees who the Company contends are extra or temporary employees.
As of September 30,1941, the Company employed 109 regular full-time
employees, and 356 so-called extra or temporary employees. These 356
employees are used solely in the performance of government contracts
under which the Company manufactures mattresses for the United
States armed forces. The Company has been engaged approximately
58 percent of its working days since October 1, 1939, in such govern-
ment contract work, but during lapses in this work it, "dismisses" these
extra or temporary employees. The Company's practice, however, is
to reemploy the same persons when government contract work is
resumed. The evidence discloses that 188 of these 356 employees have
worked more than 50 percent of the time the Company has devoted
to this type of work since October 1, 1939, and 168 less than 50 percent
of the time. Since June 1, 1941, the Company has been working
steadily on government contract work, and so far as the record indi-
cates the majority of these 356 employees have been working full time
for the Company since that date. The Company stated at the hearing
I The Union submitted 381 authorization cards, dated between October 3, 1941, and
October 20, 1941, of which 276, appearing to bear genuine, original signatures, bear the
names of persons appearing on the Company pay roll for September 30, 1941, containing
465 names.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that its present government contract work would be completed on or
about November 15, 1941, whereupon immediate dismissal of these
356 employees would be effective; but intimated that in case the United
States entered the war, this work would continue. These 356 so-called
extra or temporary employees perform the same kind of work as the
regular employees. We find that they should be included in the unit.
The parties disagree with regard to the inclusion or exclusion of
foremen and subforemen. The Company contended that foremen and
subforemen should be excluded because of the supervisory character
of their work, the precise nature of which is not disclosed by the record.
The Union urged that only the superintendent and higher officials
should be excluded from the unit. The record discloses that the
Union admits to membership working foremen and subforemen, but
not those who spend all their time in the performance of supervisory
duties. We are of the opinion that foremen and subforemen who spend
50 percent or more of their time at manual labor should be included
in, and that all other foremen and subforemen should be excluded
from, the unit.
The Union would include, and the Company would exclude, one
Roy Orear, who was a production worker, but who acted as night
superintendent in charge of the entire plant during the time the
Company engaged in government contract work .2 We find he should
be excluded from the unit because of the supervisory nature of the
position.
We find that all production and maintenance employees, including
working foremen and subforemen who spend 50 percent or more of
their time in the performance of manual labor, but excluding officials,
stockholders, superintendents, non-working foremen and subforemen,
outside salesmen, clerical workers, and night watchmen, 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
will otherwise 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 means of an election by secret ballot.
In accordance with our usual practice we shall direct that the em-
ployees eligible to vote in the election shall be those employed by the
Company in the appropriate unit during the pay-roll period immedi-
ately preceding the date of this Direction of Election, subject to the
limitations and additions set forth in the Direction.
2 Although the parties raised the issue of Oiear's inclusion in the unit at the hearing,
the record discloses that he voluntarily quit his job as such superintendent October 2,
1941, and it does not appear that he has been rehired in any capacity If Orear has not
been rehired he is ineligible to vote, regardless of the nature of his previous employment.
TAILOR BEDDING MANUFACTURING COMPANY 759
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 Taylor Bedding Manufacturing Company,
Taylor, Texas, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the Act.
2. All production and maintenance employees of the Company
including working foremen and subforemen who spend 50 percent or
more of their time in the performance of manual labor, but excluding
officials, stockholders, superintendents, non-working foremen and sub-
foremen, outside salesmen, clerical workers, and night watchmen, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the 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 Relations
Act, 49 Stat. 449, 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 authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Taylor Bedding Manufacturing Company, Taylor, Texas, an
election by secret ballot shall be conducted as early as possible, but
not later than thirty (30) days after the date of this Direction of Elec-
tion, under the direction and supervision of the Regional Director for
the Sixteenth 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 em-
ployees of the Taylor Bedding Manufacturing Company who were
employed by the Company during the pay-roll period immediately
preceding the date of this Direction of Election, including working
foremen and subforemen who spend. 50 percent or more of their time
in the performance of manual labor, and employees who did not work
during such 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 officials, stockholders, superin-
tendents, non-working foremen and subforemen, outside salesmen, cler-
ical workers, and night watchmen, and employees who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented for the purposes of collective bargaining by Uphol-
sterers' International Union of North America.