Simmons Co.

National Labor Relations Board - Board Decisions

Mar 26, 1938

6 N.L.R.B. 208 (N.L.R.B. 1938)

In the Matter of SIMMONS COMPANY and STEEL WORKERS ORGANIZING
COMMITTEE
Case No. R-592.-Decided March 26, 1938
Bed, Spring , Mattress, and Studio Couch Manufacturing Industry-Investiga-
tion of, Representatives : controversy concerning representation of employees :
rival organizations ; refusal by employer to recognize petitioning union. as
bargaining agency of its employees-Unit Appropriate for Collective Bargaining:
production employees , excluding watchmen and supervisory employees-Election
Ordered: eligibility to vote determined as of pay-roll period preceding hearing-
Certification of Representatives.
Mr. John P. Jennings, for the Board.
Mr. John Despol, of San Francisco, Calif., for S. W. O. C.
Mr. John B. Oddone, of San Francisco, Calif., for F. W. U.
Mr. Don Cameron, of San Francisco, Calif., for F. W. U., and the
United.
Mr. Wallace M. Cohen, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 13, 1937, Steel Workers Organizing Committee,
herein called the S. W. O. C., filed with the Regional Director for
the Twentieth Region (San Francisco, California) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Simmons Company, San Francisco,
-California, herein called the Company, and requesting an investiga-
tion and certification of representatives pursuant to Section 9 (c)
-of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On January 29, 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, ordered an investiga-
tion and authorized the Regional Director to conduct it and to provide
for an appropriate hearing upon due notice.
On February 1, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon the
.S. W. O. C., and upon the Furniture Workers Union, Local 1541,
208
DECISIONS AND ORDERS 209
herein called the F . W. U., a labor organization claiming to represent
employees directly affected by the investigation. Pursuant to the
notice, a hearing was held • on February 10, 1938, at San Francisco,
California , before Waldo C. Holden, the Trial Examiner duly desig
nated by the Board. The United Brotherhood of Carpenters and
Joiners of America, herein called the United, intervened for the pur-
pose of objecting to the holding of an election . The Board was rep-
resented by counsel and the S. W. O. C., the F. W. U., and the United
by their representatives , and all participated in the hearing. The
Company did not appear . 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 Examiner made several rulings on motions and on objec-
tions to the admission of evidence . Thereafter, letters in the nature
of briefs were filed with the Board. 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
I. THE BUSINESS OF THE COMPANY
Simmons Company is a Delaware corporation engaged in the manu-
facture and sale of beds , springs, mattresses , and studio couches., It
has executive offices in New York City and plants in eight States of
the United States and four provinces of Canada . The plant of the
Company at San Francisco , California , is the only one involved in
this proceeding.
For the year 1937 , sales of the products of the San Francisco plant
amounted to $3,361 ,000 in value , of which 45 per cent represent sales
outside of the State of California and in foreign countries . Approxi-
mately 55 per cent of the raw materials used by the plant in 1937
were purchased from sources outside the State.
On November 13, 1937 , the date of the filing of the petition, the
employees on the pay roll of the Company numbered 703. On the
pay roll of January 22, 1938, there were 519 employees.
H. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee is a labor organization affili-
ated with the Committee for Industrial Organization , admitting to
its membership all production employees of the Company excluding
supervisory employees , foremen and their assistants , clerical workers,
watchmen, timekeepers , and teamsters, but including hand truckers,
janitors , elevator operators, shipping clerks, stock clerks, and
checkers.
1
210 NATIONAL LABOR RELATIONS BOARD
Furniture Workers Union, Local 1541, is a labor organization affili-
ated with the United Brotherhood of Carpenters and Joiners of
America which is in turn affiliated with the American Federation of
Labor. It admits to its membership all production employees, ex-
cluding clerical workers, timekeepers, and teamsters, but including
hand truckers, janitors, elevator operators, shipping clerks, stock,
clerks, checkers, watchmen, the superintendent and his assistant, and
the supervisor of each department.
III. THE QUESTION CONCERNING REPRESENTATION
On October 25, 1935, a consent election was held among the em-
ployees of the Company, at its San Francisco plant, which resulted
in the F. W. U. being designated as bargaining representative by a
majority of the employees. As a result of conferences between the
Company and the F. W. U., the Company, on September 28, 1936,.
posted on bulletin boards in the plant a memorandum of working
conditions signed by the plant superintendent recognizing F. W. U.
as the bargaining representative of the employees of the Company
and setting forth certain working conditions. The memorandum, by
its terms, was to remain in effect until July 31, 1937. Since July
31, 1937, the F. W. U. has attempted to negotiate an agreement with
the Company, but as yet no agreement has been reached. The busi-
ness agent of F. W. U. testified that "relations are being carried on
under the old memorandum by mutual consent".
At the request of a committee of employees of the Company, the
S. W. O. C. began organizational activities in the plant early in No-
vember 1937. On November 3, 1937, the S. W. O. C. wrote to the
Company alleging that the S. W. O. C. was the collective bargaining
agent of the employees and requesting a conference. There was no
response to this letter. Subsequently, a committee representing the
S. W. O. C. sought to confer with the management of the Company.
The superintendent of the plant refused, claiming that the Company
did not "do business with any local but Local 1541".
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.
DECISIONS AND ORDERS
N. THE APPROPRIATE UNIT
211
The F. W. U. and the S. W. 0. C. would include in the bargaining
unit all production employees of the Company, excluding clerical
employees, teamsters, and timekeepers, but including hand truckers,
janitors, checkers, and elevator operators. The F. W. U., in addi-
tion, would include the superintendent and his assistant, the super-
visor of each department and the watchmen. The S. W. 0. C. con-
tends that watchmen and supervisory employees should be excluded.
It has been our practice not to include supervisory employees
within a bargaining unit composed essentially of production em-
ployees and to exclude watchmen from such a unit where objection
to their inclusion is raised by a participating labor organization.
We shall, therefore, exclude the supervisory employees and watch-
men from the bargaining unit.
We find that the production employees of the Company at its
San Francisco plant, including hand truckers, janitors, checkers,
and elevator operators, but excluding clerical employees, supervisory
employees, watchmen, teamsters, and timekeepers, 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 collective -bargaining and otherwise
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
Both the F. W. U. and the S. W. 0. C. claim to represent a majority
of the employees of the Company within the appropriate unit, but
neither has introduced evidence to substantiate its claim. The
F. W. U. and the United vigorously oppose the holding of an election.
Roy Phalen, secretary of the United, testified that an election would
probably result in a temporary curtailment of production and stated
that if the Company recognized anyother labor organization the United
would boycott the Company.' The Board's determination of the
' Q (By Mr DESPOL ) On what basis have you been able to ascertain that there
will be a curtailment of work in the Simmons plant if the employees vote to go
C. I O ?
A. Well, the plans of our organization is to boycott the Simmons Company if
they change their affiliation at this time . Now, we are quite strong throughout this
country I believe we have 2,200 locals in the State of California alone ; we have
about 365,000 people organized throughout the United States now; and a strenuous
boycott would curtail production not only here in the plant in San Francisco but
in all the plants.
Q (Trial Examiner IIOLDEN ) By your organization, you refer to what?
A. (The WITNESS ) The United Brotherhood of Carpenters and Joiners of America
Q (Trial Examiner HOLDEN ) Their entire membership?
A (The WITNESS) Yes
Q (By Mr. DESPOL ) Their boycott in this would be similar to the boycott of the
lumber companies in the Pacific Coast?
A. I have been given that assurance.
212 NATIONAL LABOR RELATIONS BOARD
issues herein cannot, of course, be influenced by such threats of
boycott.
We find-that an election by secret ballot is necessary to resolve the
question concerning representation.
The S. W. O. C. requests that it be designated on the ballot as :
"Amalgamated Association of Iron, Steel, and Tin Workers of
North America, Lodge 2062, through Steel Workers Organizing Com-
mittee, affiliated with the Committee for Industrial Organization."
We see no reason why this request should not be granted.
The S. W. O. C. urges that November 13, 1937, be selected as the
date for determining eligibility to vote, claiming that the 703 em-
ployees on the pay roll as of that date are representative of the Com-
pany's permanent staff. The F. W. U. and the United state that
November 13, 1937, was a peak period of employment and that, if
an election is held, an eligibility date should be adopted which will
exclude seasonal employees as they seldom return from one season
to another.
Beginning January 1, 1938, the Company inaugurated a policy of
working its employees overtime during peak periods and of division
of work at other times. Accordingly, it has set up a pay roll of 519
employees as its permanent staff, stating that it "will be able to get
by with very few, if any, casual employees." Under the circum-
stances, we conclude that the persons eligible to vote are those em-
ployees of the Company within the appropriate unit who were em-
ployed during the pay-roll period immediately preceding February
10, 1938, the date of the hearing herein, excluding those who have-
since quit or 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 Simmons Company at its San Francisco,
California, plant, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
2. The production employees of the Company at its San Francisco,.
California, plant, including hand truckers, janitors, checkers, • and
elevator operators, but excluding clerical employees, supervisory
employees, watchmen, teamsters, and timekeepers, constitute a unit
appropriate for the purposes of collective bargaining, within the-
meaning of Section 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--
DECISIONS AND ORDERS 213
'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 bargaining
with Simmons Company, San Francisco, California, an election by
secret ballot shall be conducted within twenty (20) days from the
date of this' Direction, under the direction and supervision of the
Regional Director for the Twentieth 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 production
employees of Simmons Company at its San Francisco, California,
plant, who were employed by it during the pay-roll period immedi-
ately preceding February 10,-1938, including hand truckers, janitors,
checkers, and elevator operators, but excluding clerical employees,
supervisory employees, watchmen, teamsters, and timekeepers, and
those who have since quit or been discharged for cause, to determine
whether they desire to 'be' represented by Amalgamated Association
of Iron, Steel,' and Tin Workers of North America, Lodge 2062,
through Steel Workers Organizing Committee, affiliated with the
Committee for Industrial Organization, or by United Brotherhood
of Carpenters and Joiners of America, Furniture Workers Local 1541,
affiliated with the American Federation of Labor, for the purposes
of collective bargaining, or by neither.
CHAIRMAN J. WARREN MADDEN took no part in the consideration of
the above Decision and Direction of Election.
[SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
April 22, 1938
On March 26, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in
the above-entitled case. The Direction of Election directed that
an election by secret ballot be conducted among the production em-
ployees of Simmons Company at its San Francisco, California, plant,
who were employed by it during the pay-roll period immediately
preceding February 10, 1938, including hand truckers, janitors,
checkers, and elevator operators, but excluding clerical employees,
supervisory employees, watchmen, teamsters, and timekeepers and
those who had since quit or been discharged for cause, to determine
whether they desire to be represented by Amalgamated Association
of Iron, Steel, and Tin Workers of North America, Lodge 2062,
214 NATIONAL LABOR RELATIONS BOARD
through Steel Workers Organizing Committee, affiliated with the
Committee for Industrial Organization, or by United Brotherhood
of Carpenters and Joiners of America, Furniture Workers Local
1541, affiliated with the American Federation of Labor, for the
purposes of collective bargaining, or by neither. On April 4, 1938,
the Board issued an Order denying the petition of the Furniture
Workers Union requesting postponement of the election and a reopen-
ing of the record.
Pursuant to the Decision and Direction of Election, an election
by secret ballot was conducted on April 14, 1938, under the direction
and supervision of Alice M. Rosseter, the Regional Director for the
Twentieth Region (San Francisco, California), among the eligible
employees of Simmons Company. On April 14, 1938, the said
Regional Director acting pursuant to Article III, Section 9, of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, issued and duly served upon the parties an Intermediate
.Report on the election. No objections or exceptions to the Inter-
mediate 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-------------------------------- 493
Total number of ballots cast --------------------------- ____ 466
Total number of votes in favor of Amalgamated Association of
Iron, Steel, and Tin Workers of North America, Lodge 2062,
affiliate of C. I. 0---------------------------------------- 263
Total number of votes in favor of United Brotherhood of Car-
penters and Joiners of America, Furniture Workers Local
1541, affiliated with the A. F. of L______________________ 191
Total number of votes in favor of neither organization---___ 12
Total number of blank ballots______________________________ 1
Total number of void ballots_________________________________ 2
Total number of challenged ballots____________________________ 28
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, Sections
8 and 9, of National Labor Relations Board Rules and Regulations-
Series 1, as amended,
IT IS HEREBY CERTIFIED that Amalgamated Association of Iron,
Steel, and Tin Workers of North America, Lodge 2062, through
Steel Workers Organizing Committee, affiliated with the Committee
for Industrial Organization, has been designated and selected by
a majority of the production employees of Simmons Company, San
Francisco, California, including hand truckers, janitors, checkers,
and elevator operators, but excluding clerical employees, supervisory
employees, watchmen, teamsters, and timekeepers, as their representa-
tive for the purposes of collective bargaining, and that, pursuant to
DECISIONS AND ORDERS 215
Section 9 (a) of the Act, Amalgamated Association of Iron, Steel,
and Tin Workers of North America, Lodge 2062, through Steel-
Workers Organizing Committee, affiliated with the Committee for
Industrial Organization, is the exclusive representative of all such
employees for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
80618-38-VOL. VI-15