Local 140

National Labor Relations Board - Board Decisions

Feb 3, 1956

115 N.L.R.B. 318 (N.L.R.B. 1956)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By refusing and continuing to refuse to bargain collectively with the said Local
943 as the exclusive representative of all its production and maintenance employees,
excluding office clerical employees , watchmen and guards , and professional and
supervisory employees as defined in the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the
Act.
3. By refusing and continuing to refuse to bargain with Local 943, as aforesaid,
the Respondent has interfered with and continues to interfere with the rights guar-
anteed to its employees under Section 7 of the Act, and thereby has engaged in and
is engaging in an unfair labor practice within the meaning of Section 8 (a) (1) of
the Act.
4. By unilaterally, and without consultation with Local 943, on or about September
10, 1954, revoking the preferential seniority granted to the officers and members of
the bargaining committee of the Union, and by denying to the Union the use of a
bulletin board, the Respondent has interfered with and continues to interfere with
the rights guaranteed to its employees under Section 7 of the Act, and thereby has
engaged in and is engaging in an unfair labor practice within the meaning of
Section 8 (a) (1) of the Act.
5. The above-described labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
(Recommendations omitted from publication.]
Local 140, Bedding, Curtain & Drapery Workers Union , United
Furniture Workers of America, AFL-CIO i and Cenit Noll Sleep
Products, Inc. Case No. 2-CC-340. February 3,1956
DECISION AND ORDER
On November 9, 1955, Trial Examiner William F. Scharnikow
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be dis-
missed, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
We agree with the Trial Examiner that it would not effectuate the
policies of the Act to assert jurisdiction in this proceeding. If the
Company had not had any operating experience its prediction of the
volume of business it would do might have served to meet our jurisdic-
tional standards. Actual sales experience, however, during the first
3 months of its operations fall so far short of prediction that this cir-
cumstance, among other things, makes unwarranted, in our opinion,
1 As the AFL and the CIO merged subsequent to the hearing in this ease, we are taking
notice thereof and amending the name of the Respondent herein.
115 NLRB No. 54.
LOCAL 140 319
a finding that there is a reasonable expectancy that the Company's
annual interstate sales will satisfy the Board's jurisdictional require-
ment of $50,000. Accordingly, we shall dismiss the complaint herein 2
[The Board dismissed the complaint.]
2 In view of our disposition of the case on jurisdictional grounds, we find it unneces-
sary to pass on the other issues in the case.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
1. A GENERAL STATEMENT OF THE CASE
The complaint in the present case was issued by the General Counsel on a charge
filed by Cenit Noll Sleep Products, Inc., herein called the Company. Using the
pertinent language of the National Labor Relations Act, as amended (61 Stat. 136),
the complaint alleges in substance that since June 1, 1955, the Respondent, Local
140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers of
America, CIO, has committed unfair labor practices affecting commerce within the
meaning of Sections 8 (b) (4) (C) and 2 (6) and (7) of the Act, by induc-
ing and encouraging employees of the Company and employees of other employers
doing business with the Company, to engage in a strike or a concerted refusal to
perform services for their respective employers, with the object of coercing the
Company to recognize and bargain collectively with the Respondent as the rep-
resentative of an appropriate unit of the Company's employees, although, on June
1, 1955, the Regional Director for the Second Region of the National Labor Re-
lations Board, acting under Section 9 of the Act, had certified that Local 422,
International Jewelry Workers Union, AFL, herein called Local 422, was the ex-
clusive bargaining representative of the Company's employees in this unit. The
Respondent filed an answer which in substance amounted to a general denial of
the allegations of the complaint.
The complaint, the charge, and notice of hearing were duly served upon the Com-
pany and the Respondent. At the hearing, conducted by the duly designated Trial
Examiner in New York City on July 20, 21, 22, 25, and 27, and September 15,
1955, it appeared from uncontradicted evidence submitted by the General Counsel
that: (1) Pursuant to a consent-election agreement between the Company and Local
422 in Case No. 2-RC-7481 (not reported in printed volumes of Board Decisions and
Orders), an election by secret ballot held thereunder by the Regional Director for
the Second Region, and the consequent authority vested in him by the agreement
and the Board's Rules and Regulations, the Regional Director certified on June
1, 1955, that Local 422 was the exclusive bargaining representative of the Company's
employees in an agreed appropriate unit; i and (2) by picketing from June 1 to
July 13, 1955, and by picket signs and statements made by the pickets during this
period to company employees and employees of trucking companies who appeared
at the plant to make deliveries, the Respondent induced and encouraged the Com-
pany's employees and the employees of other employers to engage in a strike or a
concerted refusal to perform services for their respective employers, with the object
of coercing the Company to recognize and bargain collectively with the Respondent
as the exclusive bargaining representative of the Company's employees in spite of
the certification of Local 422.2
It In the representation case, the Company appeared by the name, "Lifetime Sleep Prod-
ucts, Inc." By amendment of its corporate charter on or about May 11, 1955, its name
was changed to "Cenit Noll Sleep Products, Inc."
f Harvey Noll, the Company's vice president, testified that on two occasions in the last
part of March and early April 1955, Bernard Minter, the Respondent's representative,
asked Noll to discuss a contract with the Respondent ; that Noll told Minter a contract
with the Respondent was impossible because the Company had not yet hired any em-
ployees and that, in any event, the Company intended to hire only inexperienced em-
ployees who were local residents ; that on May 17, 1955 (after the election in the repre-
sentation case but before the certification of Local 422), Minter informed the Company
"that the time had come to sign a contract" and that otherwise the Respondent was "go-
ing to be very, very difficult on us"; that Cenit, the Company's president, then told Minter,
'.'You do what you think is best, and we will do what we think is best" ; that the Respond-
ent immediately began picketing the employee and delivery entrances of the Company's
plant and continued picketing, on and off, until July 13, 1955; that, after the certifica-
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the course of the hearing , the Respondent asserted two principal defenses
under its general denial:
(a) That the certification of Local 422 was invalid because, as known by the
Company and concealed from the Board through a collusive scheme between the
Company and Local 422, the Company was not engaged in commerce ; the Respond-
ent, as well as Local 422, was interested in the representation of the Company's
employees ; and the Company's employees who voted in the election were temporary,
and not bona fide permanent employees , since most of them were replaced after
the election.
(b) That, in any event , the Board should not now assert jurisdiction in the present
complaint case because the Company is not engaged in commerce to the extent
which would satisfy the jurisdictional minima established by the Board as a matter
of policy.
The General Counsel and the Company objected to the reception of any evidence
for the purpose of attacking the validity of the certification but, in the course of
argument , suggested that such evidence , and all rebuttal evidence , might be pro-
visionally taken, and ruling upon the objection be ultimately made by the Trial
Examiner in his Intermediate Report. The Trial Examiner at first accepted this
suggestion but, after receiving some of the evidence during the balance of that day,
reopened the question on his own initiative . Upon reconsideration , and after
inviting further argument from counsel , the Trial Examiner sustained the objection
and thereafter excluded all evidence relating to the validity of the certification.3
tion of Local 422, pickets told company employees as they were going to work, "You
shouldn't cross the picket line ; it is a company union in there ; you shouldn 't work there" ;
and that on June 6 and other occasions , pickets also asked drivers employed by trucking
companies not to cross the picket line to make deliveries because "this was an organiza-
tional strike and there was a company union in the factory." Abraham Cenit, the Com-
pany's president , also testified without contradiction that on June 3, 1955, and thus dur-
ing the Respondent 's picketing , he had a conversation with Minter in which Minter said,
"Well, if I were you , I would sign a contract with us , and if not , we will put you out of
business ," and that he did not care whether there was a certification or not. It was
stipulated that the pickets carried signs which stated : "Lyftime, Cenit-Noll's Sleep Prod-
ucts unfair to organized labor. Please give your support to Local 140 , UFWA, CIO,
80-11th Street, New York City."
3 The Trial Examiner made his ruling and stated his reasons upon the record , in the fol-
lowing language :
For the reasons stated by me to you gentlemen at our last session on Friday after-
noon , I have reconsidered my decision provisionally to receive evidence bearing upon
the validity of Local 422 's certification , and to defer ruling upon the General Coun-
sel's objection to such evidence until the issuance of my intermediate report.
I am now sustaining the objection and, in accordance with this ruling , will exclude
such evidence.
The grounds for my ruling are the following:
First , Local 422 is a necessary party to any proceeding affecting its certification
and its rights thereunder . It is not a party to the present proceeding.
Second, under the general substance and arrangement of the provisions of the
Act, questions affecting the certification of exclusive bargaining representatives by
the Board, are to be raised before the Board and decided by it In representation pro-
ceedings , under Section 9 of the Act and not in unfair labor practice proceedings
under Sections 8 and 10 of the Act.
The respondent union did not exhaust its remedies in objecting to the certification
in the representation proceeding , since it failed to apply to the Board for permission
to appeal the Regional Director 's denial of its application to set the election aside.
Third, In any event, unless specifically directed by the Board to do so, a Trial
Examiner conducting a Section 8 (b) (4) (C ) proceeding for the Board may not prop-
erly entertain a collateral attack in that proceeding upon the validity of a Board
certification since, under the language of Section 8 (b) (4) (C), unlike that of Sec-
tion 8 (a) (5), the mere existence of the Board 's certification , rather than its validity,
or the facts upon which it is based , or the facts which it purports to certify, Is the
critical element of the unfair labor practice forbidden by that subsection.
I should say that the first of these three grounds has impelled me to sustain the
General Counsel 's objection at the present time, rather than to take the evidence and
later rule on the objection in my intermediate report, for consideration of this ground
alone has now made it clear to me that there is no point In taking the testimony.
But since this ruling is final so far as I am concerned , I felt it desirable to consider
LOCAL 140 321
On July 27, 1955, the Respondent filed a petition with ,the Board for leave (1) to
intervene, and to procure the reopening of the record, in the representation case for
the purpose of attacking and testing the validity of the certification; and (2) to pro-
cure the consolidation of the present complaint case with the reopened representa-
tion case , for purposes of further hearing. Alternatively, the Respondent petitioned
the Board for leave to appeal the Trial Examiner's ruling excluding an attack upon
the certification of Local 422 in the present complaint proceeding. On August 19,
1955, during a recess of the hearing in the present case, the Board denied the appli-
cations thus made by the Respondent, without prejudice, however, to a review of
the Trial Examiner's ruling after the issuance of the Intermediate Report.
On the last day of the hearing, the Company moved for leave from the Trial
Examiner to withdraw its charge, asserting, in substance, that the Respondent had
not only ended its picketing, but had promised not to resume it, that the Company
was content to rely upon this promise, and that the purposes and policies of the
Act had been, and would continue to be, effectuated by the present proceeding with-
out the issuance of a Board cease and desist order. The Respondent supported this
motion. Upon opposition by the General Counsel, however, the Trial Examiner
denied the motion.
The issue of whether the Board should assert jurisdiction in the present case was
fully litigated in the hearing. Upon the evidence in this connection, and from his
observation of the witnesses, the Trial Examiner makes the findings of fact, con-
clusions , and recommendation set forth in section 11, below.
II. THE BUSINESS OF THE COMPANY
The Company is engaged at its plant in Amityville, New York, in the manufacture,
sale, and distribution of mattresses, box springs, studio sofas, convertible sofas, and
related products. Since it was incorporated under the laws of the State of New
York on March 4, 1955, it could furnish information as to the amount of its out-of-
State sales only for a period of a few months, and not for an entire year. The
General Counsel and the Company contend, but the Respondent denies, that (1) an
arithmetical, full-year projection of the actual volume of the Company's interstate
business for this short period 4 and (2) the Company's reasonable expectation as
to the total volume of interstate business for its first year,5 satisfy the Board's
applicable jurisdictional requirement of a minimum annual total of $50,000 in
direct out-of-State sales .6
The Company sold and delivered its first mattresses and box springs on May 31,
1955, and began an advertising and sales campaign on June 6, 1955. At the end of
3 months (that is, up to the last day of the hearing on September 15, 1955) the
Company had sold and delivered mattresses and box springs of an approximate total
value of $50,000, of which no more than $5,000, by value, was sold and delivered
to customers at points outside the State of New York. On September 15, 1955, it
had additional outstanding orders for future delivery in the approximate amount
of $35,000, of which approximately $3,500 or $4,000, by value, represented orders
contemplating ultimate shipment to points outside the State of New York. Although
3 additional orders, aggregating $25,514, had been placed by a Miami, Florida,
purchaser, these orders had been cancelled by this purchaser before September
15, 1955.
Even if we include the Company's outstanding out-of-State orders at the end of
the 3-month period after the opening of its sales campaign, it is clear (and the Trial
Examiner finds, contrary to the General Counsel' s argument ) that a 12-month
projection of the Company's out-of-State business would not satisfy the $50,000
minimum established by the Board as a condition of its asserting jurisdiction in the
present case.
Immediately and to set forth the two additional grounds which, in my opinion, also
support the ruling against a collateral attack upon the certification in the present
proceeding.
A See C. & A. Lumber Go., 91 NLRB 909; Calera Mining Company, 97 NLRB 950, at 952;
Essex County Carpenters' Council, 95 NLRB 969; Sunset Lumber Products, 113 NLRB
1172, footnote 1.
6 The General Counsel relies upon Delta Match Co., 102 NLRB 1400. See also William
Fargo (London Mills), 91 NLRB 1003, at 1004, footnote 2 and related text; and General
Seat and Back Mfg. Corp., 93 NLRB 1511, at 1512.
6 Jonesboro Grain Drying Cooperative, 110 NLRB 481.
390609-56-vol. 115-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remains the further question whether the Board should assert jurisdiction
because of a reasonable expectation or expectancy on the part of the Company that
its out-of-State sales for the year will exceed $50,000. The General Counsel makes
this argument upon estimates given by Abraham Cenit and Harvey Noll, the Com-
pany 's president and vice president, and also upon the basis of their uncontradicted
testimony concerning the development of the Company 's production and sales fa-
cilities and its advertising-all of which the General Counsel asserts show the reason-
ableness of. the Company's estimates and the Company's reliance upon, and con-
fidence in, them.
Operation of the Company's business is generally divided between President
Cenit and Vice-President Noll. Noll, who is in general charge of the Company's
production and personnel, had been employed for 7 years by a large New York City
department store as its buyer of mattresses and other sleeping equipment, and, in
this capacity, had been responsible for the placement of over $50,000 a year in
advertisements and from $700,000 to $1,250,000 in annual sales. Cenit, who is
primarily in charge of the Company's sales, had previously been employed for 16
years in the mattress industry and, as the general manager of the New York plant
of a large mattress company with plants in 27 States, had been responsible for the
New York plant's production and its sales, merchandising, and advertising in the
New York metropolitan area which embraced 4 of the 5 boroughs of New York City;
Westchester County, and Long Island, all of which are in New York State.
The Company took possession of its plant at the end of March 1955 under a lease
calling for a rental of $9,000 a year . Between that time and May 20, 1955, it
purchased and installed "machinery and equipment at a cost of approximately
$20,000. It hired a foreman on March 25, 1955, and 7 nonsupervisory employees
between April 14 and 25, 1955. Since none of these nonsupervisory employees had
previous experience in manufacturing box springs or mattresses , the Company trained
them and, by May 31, after experimentally making and remaking a number of
mattresses and box springs and securing the necessary sanitary labels approving their
sale in the States of New York, New Jersey, Massachusetts, Connecticut, and Pennsyl-
vania, produced an initial sales stock of 50 sets of mattresses and box springs. By
July 22, 1955, the Company had increased its working force to 12 employees, the
number it intends regularly to employ.
Noll and Cenit both testified concerning the sales promotional campaign which
the Company has entered into and which it expects to bring a substantial volume of
sales from outside the State of New York. Up to the time of the hearing, 1,500
brochures describing the Company's product had been mailed to furniture dealers
in New York, Connecticut, and New Jersey and, according to Noll's testimony, the
Respondent intended to add to its mailing list the names of dealers in the State of
Pennsylvania and in Baltimore, Maryland, and Washington, D. C. In addition, the
Company on one occasion, ran a three-quarter page advertisement in a nationally
distributed trade journal. And, on June 6, 1955, at a luncheon and radio program
broadcast from a hotel in New York City, the Company showed its line to "key
merchandise people in the area, people who have stores locally and outside the
State." The luncheon thus launched the Company's participation for 6 months as-
I of a number of sponsors of a week-nightly, 1-hour-and-l0-minute radio broadcast,
in which the entertainment feature is broadcast over a national radio hookup, al-
though the spot commercial announcements of the Company's product (of 1i min-
utes, 3 or 4 times a week) are themselves broadcast only from the New York City
station. Moreover, at the time of the hearing, the Company had an option (though
it apparently had not yet exercised it) to participate in a similar multisponsorship
of a weekly television program from New York City.
Cenit himself is apparently the Company's principal salesman, although there_
are also 6 others who act in that capacity, that is, 3 salesmen in the State of New
York, and 3 general manufacturers' representatives operating on a commission basis
in Pennsylvania, Connecticut, and New Jersey, respectively. All three of these out-
of-State agents started their representation of the Company in mid-July 1955.
Just what portion of the Company's out-of-State sales and orders as of September
15, 1955, were attributable to the efforts of these agents, is not shown by the record,
for the only testimony on the point was that of Cenit and was merely to the effect
that they "had gotten some business."
In his testimony, Noll estimated that the "total possible production capacity" of
the Company's plant was 25,000 units per year, which would sell at an average of
from $20 to $22 per unit. On this basis, Noll (and apparently Cenit, too) estimated
that the Company's total annual gross sales will amount to $500,000 to $550,000
a year. Proceeding further, Noll testified that , from his knowledge of what their
advertising would do, he believed that 30 percent of this gross volume of sales
LOCAL 140 323