Memphis Furniture Mfg. Co.

National Labor Relations Board - Board Decisions

Aug 19, 1943

51 N.L.R.B. 1447 (N.L.R.B. 1943)

In the Matter Of MEMPHIS FURNITURE MFG. Co. and UNITED FURNITURE
WORRIERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL
ORGANIZATIONS
Case No. R-5604.=Decided August 19,1943
Mr. George Kamenow, of Detroit, Mich., for the Company.
Mr. Harry Weinstock, of New York City, for the C. I. O.
Mr. Philip D. Goodman, of Chicago, Ill., for the A. F. L.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Furniture Workers of America,
affiliated with the Congress of Industrial Organizations, herein called
the C. I. 0., alleging that a question affecting commerce had arisen
concerning the representation of employees of Memphis Furniture
Mfg. Co., Memphis, Tennessee, herein called the Company, the Na-
tional Labor Relations Board provided for an appropriate private
hearing upon due notice before J. Michael Early, Trial Examiner.
Said hearing was held at Memphis, Tennessee, on June 29 and 30,
1943. The Company, the C. I. 0., and Upholsterers' International
Union of North America, Local 255, A. F. of L., herein called the
A. F. L., appeared, participated, and were afforded full opportunity
to be heard, to examine and cross- examine witnesses , and to introduce
evidence bearing on the issues. The A. F. L. made a motion to dismiss
the petition which the Trial Examiner referred to the Board. For
reasons appearing herein, this motion is denied. The Trial Exam-
iner 's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. All parties were -afforded opportunity to file
briefs with the Board.
51 N. L. R. B., No. 234.
1447
1448 DEC'ISION'S 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
Memphis Furniture Mfg. Co., a Tennessee corporation with its office
and principal place of business located in Memphis, Tennessee, is
engaged in the manufacturing of home furniture. During the past
year, in the course and conduct of its business, the Company purchased
raw materials valued in excess of $1,000,000, of which approximately
85 percent was shipped to the Company from points outside the State
of Tennessee. Approximately 85 percent of the finished products of
the Company valued in excess of $1,000,000 was shipped by it to points
outside the State of Tennessee. The Company is engaged in defense
work,. having direct contracts with the United States Government.
We find that the Company is engaged in commerce within the meaning
of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
United Furniture Workers of America is a labor organization affili-
ated with the Congress of Industrial Organizations, admitting to
membership employees of the Company.
Upholsterers' International Union of North America, Local 255, is
a labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On April 30, 1942, the Company and the A. F. L. executed a 1-year
collective bargaining agreement. The contract recited that it was to
continue until May 1, 1943, and from year to year thereafter unless
changed, modified, or terminated, upon 30 days' written notice by
either party prior to any expiration date.
On or about May or June of 1942, the C. I. O. first showed interest
in the employees of the Company. However, after ascertaining the
existence of the afore-mentioned contract, it stopped all organizational
activities (which up to this time had been confined solely to the con-
tacting of "key" men). ' It resumed its organizational activities in
March of 19431
On September 9, 1942, the President issued Executive Order No.
9240 which directly affected the computation of overtime wages of the
employees herein. Due to conflicts arising from interpretation of this
' These facts were derived from the undisputed testimony of C. I . 0. witnesses.
MEMPHIS FURNITURE MFG. CO. 1449
order, dissatisfaction arose among these employees who believed that
they were not receiving the proper overtime pay. The Company and
the A. F. L. entered into negotiations concerning this matter in October
of 1942 which continued for several months, resulting finally in the
execution of an agreement dated March 25, 1943. This agreement,
according to the Company and the A. F. L., merely interpreted the
contract in the light of the Executive Order. However, the document
contained the following :
The agreement as made and entered the, 30th day of April 1942
by and between the [Company] and the [A. F. L.] is hereby
extended for 1 year with the following amendments: [There fol-
lowed amendments to Sections 3, 4, and 5 of the contract relating
to working hours, overtime, and holidays.]
Section 17: WAGES: The wage scale as set forth in the contract
shall remain in full force and effect but individual wage adjust-
ments shall be discussed and determined between the Company and
the Union during the month of April 1943. The new wage rates
for the individual employees shall become effective as of the 30th
day of April 1943 unless such wage adjustments require prior
approval of the National War Labor Board .. .
These are the only changes and all other provisions of the agree-
ment dated the 30th day of April 1942 shall remain in full force
and effect.
As hereinabove stated, the C. I. O. resumed organizational activities
in March of 1943, apparently without knowledge of the negotiations
which resulted in the above-mentioned document. On March 31 it sent
a night letter to the Company setting forth its claim of representation.
This was received by the Company on April 1, 1943. The Company
made no reply to this notification, taking the position that its contract
with the A. F. L. constituted a bar.
As hereinbefore noted, the A. F. L. moved at the hearing to dismiss
the petition herein, contending that (a) at the time the C. I. O. made
its claim of representation known to the Company, the contract of
April 30, 1942, had renewed itself, and therefore constituted a bar to
the present proceeding; and (b) at the time of the filing of the petition
herein, the C. 1. 0. did not represent a substantial number of employees
of the Company, and therefore the petition should have been dismissed
ab initio.2
The agreement of March 25 provided for an extension of the con-
tract for 1 year; in addition, it called for certain changes with respect
to wages and working conditions. That it modified or changed the
original contract and was not, as contended by the parties thereto; a
2 The latter contention of the A . P. L. Is disposed of in footnote 8, infra.
1450 DECISIONS, OiF.NATIANAL LABOR RELATION'S. BOARD
mere statement of policy or an interpretation of the original contract,
is further evidenced by the fact that the Company, in a notice to its
employees, referred to "our new contract with the [A. F. L.]," a and
the A. F. L., in a notice of meeting sent to its members, stated that the
Company agreed to "several revisions in the contract." 4 In view of
the foregoing, we are of the opinion that the agreement of March 25
changed, modified, and superseded the original contract.
We are of the opinion that the premature extension of a contract of
reasonable duration for another like period should nqt operate as a bar
to a claim of representation made prior to the expiration date of the ex-
tended contract. As we have previously stated in Matter of Wichita
Union Stockyards Company: 5
Were,we to hold that the parties to a collective bargaining
agreement . . . could forestall a petition for investigation and
certification of representatives by entering into a supplemental
agreement modifying the contract in advance of the date fixed
therein for reopening negotiations, the right of the employees to
'seek a change of representatives after the lapse of a reasonable
time might be defeated. , So to hold would require of employees,
desiring to change representatives, acceleration of organization
activities so that they would be ready to assert a claim of majority
representation at any time the contracting parties might elect
to discuss modification of the existing agreement, thus leading to
dissatisfaction of unrest under the existing agreement instead of
stabilized labor relations.
In accordance with the foregoing principle, we find that to hold the
agreement of March 25 a bar would operate unreasonably to prevent
the exercise of the right of the employees to select a new bargaining
representative, if they so desire. While we have adhered to the further
principle that where an automatic renewal date is specified in the con-
tract, the rival claim to representation must be made prior to such
dates such principle applies only where the renewal clause remains
operative. In the instant case, the making of the new agreement on
March 25 caused the renewal clause of the original contract to become
inoperative, thus relieving the C. I. 0. of the duty it otherwise would
have had to present notice of its claim prior to April 1, 1943, the
renewal date.?
8 Petitioner 's Exhibit 5-A.
4 Petitioner 's Exhibit 7.
"Matter of Wichita Union Stockyards Company, 40 N. L. R. B . 369, 372. See also
Matter of Inland Container Corporation , 47 N. L. R. B 952.
'Matter of Mill B Inc ., 40 N. L. R. B. 346 ; Matter of Cleveland Container Company,
47 N. L. R. B. 1309.
7 This case is distinguishable from our holding in Matter of Valve Bag Company, 50
N. L. R. B . 481; which was decided upon the narrow grounds of the , facts presented
therein , and any interpretation of that decision which conflicts with the principle enun-
ciated in the Wichita case, tps applied herein, is hereby overruled.
MEMPHIS FURNITURE MFG. CO.' 1451
Since we have found that the April 1942 contract was superseded by
the agreement of March 25, 1943, and since the-latter contract cannot
operate to prevent the selection of a new bargaining representative
under the principle of the Wichita case, set forth above, we find that
neither the April 1942 contract nor the agreement of March 25, 1943,
constitutes a bar to a present determination of representatives.
.Statements of the Regional Director and the Trial Examiner intro-
duced into evidence at the hearing, indicate that the C. I. 0. and the
A. F. L. each represents a substantial number of employees in the unit
hereinafter found appropriate."
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, substantially in accordance with a stipulation of the parties,
that all production and maintenance employees of the Company, exclud-
ing superintendents, non-productive foremen, foremen, clerical work-
ers, watchmen, engineers, firemen, and any other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the direction.
8 The Regional Director reported that the C . I. O. submitted 412 designation cards, of
which 290 bore apparently genuine and original signatures and the names of persons
appearing on the Company 's pay roll of April 23 , 1943. The Trial Examiner reported that
the C I. O. submitted 78 additional designation cards bearing apparently genuine and
original signatures of persons appearing upon a current pay roll of the Company; he
further reported that the C . I. O. submitted petitions containing the apparently genuine
and original signatures of an additional 163 persons whose names appear upon a current
pay roll of the Company. There are approximately 750 employees in the appropriate unit.
The A F. L. relies upon its contract dated March 30, 1943 , to establish its interest.
A breakdown of the report of the Regional Director indicates that on the date of the
filing of the petition herein the C. I. O. represented approximately 30 percent of the
employees of the Company ; and that by the date of the hearing it represented approxi-
mately 71 percent of these employees . Accordingly , we find that the contention of the
A. F. L that the C. I. O. did not evidence a substantial representation at the time of
the filing of the petition herein is untenable . Our finding in this respect is in no way
indicative that either date alone is determinative of the time wherein a substantial show-
ing must be made for the purpose of filing a petition in a representation proceeding.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Memphis Furni-
ture Mfg. 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 111, Section 10, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately 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 temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
those employees who have since quit or been discharged for cause, to
determine whether they desire to be represented by United Furniture
Workers of America, affiliated with the Congress of Industrial Organi-
zations, or by Upholsterers' International Union of North America,
Local 255, affiliated with the American Federation of Labor, for the
purposes of collective bargaining, or by neither.
CHAIRMAN MiLLIS took no part in the consideration of the above
Decision and Direction of Election.