Bebry Bedding Corp.

National Labor Relations Board - Board Decisions

Sep 20, 1940

27 N.L.R.B. 335 (N.L.R.B. 1940)

In the Matter of BEBRY BEDDING CORPORATION and FEDERAL LABOR
UNION No. 21863 , A. F. OF L.
Case No. R-2096.-Decided September 20, 1940
Jurisdiction : bedding manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; strike for recognition ; employees,
including the strikers who have not resigned from the Company's employ,
on pay roll preceding strike eligible to vote ; election necessary.
Unit Appropriate for Collective Bargaining : production employees, including
working foremen, but excluding clerical employees and officers of the Com-
pany; agreement as to.
Mr. John T. Kreeger, of New York City, for the Company-.
Mr. John Makowski, of New York City, for Local 21863.
Mr. Thomas Powers, of New York City, for the A. F. of L.
Mr. Alex Sirota and Mr. Harry Weirnstock, by Mr. H. D. Margulies,
of New York City, for Local 140.
Miss Mary Metlay, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 14, 1940, Federal Labor Union No. 21863, affiliated
with the American Federation of Labor, herein called Local 21863,
filed with the Regional Director for the Second Region (New York
City) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Bebry Bedding
Corporation, New York City, herein called the Company, and re-
questing an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On August 27, 1940, 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 Re-
lations'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.
27 N. L R B, No 77
335
.336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 29, 1940, the Regional Director issued a notice of hear-
ing, copies of which were served upon the Company, Local 21863,
and Bedding Furniture Local 140 of the United Furniture Workers
.of America, affiliated with the Congress of Industrial Organizations,
herein called Local 140, a labor organization named in the petition
as claiming to represent employees of the Company.
Pursuant to notice, a hearing was held on September 3, 1940, at
New York City, before Millard L. Midonick, the Trial Examiner
duly designated by the Board. The Company was represented by
.counsel, Local 21863 by its secretary-treasurer, the American Fed-
eration of Labor by a general representative, and Local 140 by its
-business manager.' All participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
wring the course of the hearing the Trial Examiner made several
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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE COMPANY
Bebry Bedding Corporation is a New York corporation with its
.office and principal place of business in New York City. It is engaged
in the manufacture, sale, and distribution of sofa beds, chair beds, bed-
.ding, and related products. The principal raw materials used by the,
Company are steel, lumber, cotton felt,.and textiles. The Company
expends annually about $140,000 for the purchase of such materials,
approximately 50 per cent of which are shipped to it from points
outside the State of New York. It manufactures annually products
amounting in value to $240,000, 15 per cent of which are shipped
to points outside the State of New York. It employs approximately
26 production employees. It concedes that its business is conducted
in interstate commerce.
II. THE ORGANIZATIONS INVOLVED
Federal Labor Union No. 21863 is a labor organization affiliated
-with the American Federation of Labor: It admits to membership
all -production employees of the-Company.
I An associate of counsel for Local 140 appeared at the hearing solely for the purpose of
-moving for an adjournment . The Trial Examiner denied this motion
'BFDBRY BE 'DDYING CORPORATION 337
Bedding Local 140 of the United Furniture Workers of America
is a labor organization affiliated with the Congress of Industrial
Organizations. It admits to membership all production employees
engaged in the bedding industry.
III. THE QUESTION CONCERNING REPRESENTATION
On July 10, 1939, subsequent to certification by the New York
State Labor Relations Board of Local 140 as the exclusive bargain-
ing representative of the Company's production employees, the Com-
pany entered into a closed-shop contract with Local 140. The con-
tract expired August 15, 1940.2 On or about August 1 and 11, 1940,
Local 140,requested the Company to enter into negotiations for a
renewal of the contract. The Company failed to respond to these
requests. On August 13, 1940, Local 21863 informed the Company
that it represented a majority of the Company's employees and re-
quested the Colripany to bargain with it. The Company refused to
-bargain prior to certification by the Board of the exclusive bargain-
ing representative of its employees in an appropriate unit. On
August 16, 1940, Local 140 called a strike and nine of the Company's
-employees struck. At the date of the hearing the strike was still
in effect. Both Local 21863 and Local 140 submitted to the Regional
Director evidence indicating that they represented a substantial "
number of the Company's production employees.3
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, ocurring 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 com-
merce' and the free flow of commerce.
2 It contained a provision for submission of a written demand for a renewal of, the
contract 30 days prior to its expiration
S The Regional Director reported that Local 21863 submitted 17 applications for member-
ship ' m Local 21863 dated August 12, 1940. All the names appearing on the application
appeared on the Company's pay roll of August 14, 1940 Local 140 submitted 26 cards
applying for membership in Local 140 and authoiizing Local 140 to represent the signers
for the purposes of collective bargaining, dated from March 1937 td September 1939 All'
signatures appearing on the cards are those of persons whose names are on the Company's
pay roll of August 14, 1940
323428-42-vol•27=23''
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE APPROPRIATE UNIT
The parties agreed at- the hearing that all production employees
of the Company including. working foremen, but excluding clerical
employees and officers of the Company, constitute a unit appropriate
for the purposes of collective bargaining.
We find that all production employees of the Company, including
working foremen but excluding clerical employees and officers of the
Company, constitute a unit appropriate for the purposes of collective
bargaining and that such unit will insure to employees of the Com-
pany the full benefit of their right to self-organization and to col-
lective bargaining and 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 secret ballot.
The Company" has employed five employees to replace the strikers.
Local 21863 requested that employees employed by the Company sub-
sequent to August 15, 1940, should not be eligible to participate in
he election. - Neither the, Company nor Local 140 opposed this re-
quest. ,_ We 'shall j direct that all employees of • the Company within
-the appropriate. unit,- who were employed by the Company during
the pay-roll period immediately, preceding August 15, 1940,4 including
!employees who did 'not work during such pay-roll, period, because
they were ill or on vacation, and employees. who. were then or have
since been temporarily laid off, but excluding those who have since
quit, or been discharged for cause, shall be eligible to participate in
the election. " - 1 -
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 Bebry Bedding Corporation, New York
City, within the meaning of Section 9 (c) and Section- 2 (6) and
(7), of the Act. '
2. All production employees of the Company, including working
foremen but excluding clerical employees and officers of the Com-
pany, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (c) of the Act.
* Including the strikers who have not resigned from the Company 's employ.
I
BEBRY BEDDING CORPORATION
DIRECTION OF ELECTION
339
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 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 Bebry Bedding Corporation, New York City, 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
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 all production employees of Bebry Bedding
Corporation, New York City, including working foremen but exclud-
ing clerical employees and officers of the Company, who were em-
ployed during the -pay-roll period immediately preceding- August
15, 1940, including employees who did not work during such pay-roll
period because they were ill or, on vacation, and employees who were
then or shall have since, been temporarily laid off, but excluding
employees who have since quit or been, discharged for cause, to deter-
mine whether they desire to be ,represented by Federal Labor Union
No. 218631' affiliated with the American, Federation of Labor, or by
Bedding-Furniture Local 140 of the United Furniture Workers of
America, affiliated with, the • Congress of Industrial Orga nizations,
for,the purposes of collective bargaining- or by neither.
[SAME TrrLE]
CERTIFICATION OF REPRESENTATIVES
October 17, 1941)
On September 20, 1940, the National Labor Relations Board issued
its Decision and Direction of Election in the above-entitled proceed-
ings. Pursuant to the Direction of Election, an election by secret
ballot was conducted on October 2, 1940, under the direction and
supervision of the Regional Director for the Second Region (New
York City). On October 4, 1940, the Regional Director, acting pur-
suant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, issued and duly served
upon the parties an election report. No objection to the conduct of
340 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
the ballot or the election report have been filed by any of the parties.
As to the balloting and its results, the Regional Director reported
as follows :
Total number eligible to vote-------------------------------- 27
Total number of ballots cast-------------------------------- 24
Total number of valid ballots------------------------------- 24
Total number of votes in favor of Bedding Furniture Local 140
of the United Furniture Workers of America, C. I. 0 -------- 0
Total number of votes in favor of Federal Labor Union No.
21863, A. F. of L. --------------------------------- 17
Total number of votes in favor of neither union-------------- 6
Total number of blank ballots------------------------------ 0
Total number of void ballots------------------------------- 0
Total number of challenged ballots------------------------ 1
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, Sections 8 and 9,
of National Labor Relations Board Rules acid Regulations-Series
2, as amended,
IT IS HEREBY CERTIFIED that Federal Labor Union No. 21863, A. F.
of L., has been designated and selected by a majority of the produc-
tion employees of Bebry Bedding Corporation, New York City, in-
eluding working foremen, but excluding clerical employees and offi-
cers of Bebry Bedding Corporation, as their representative for the
purposes of collective bargaining, and that pursuant to the provisions
of Section 9 (a) of the National Labor Relations Act, Federal Labor
Union No. 21863, A. F. of L., is the exclusive representative of all
such employees for, the purposes, of collective bargaining in respect
to rates of pay, wages, -liours of employment, and other conditions
of employment.
27 N.-L R. B., No. 77a.