Simmons Co.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 290 (N.L.R.B. 1946)

In the Matter of SIMbIONS COMPANY and FOREMEN 'S ASSOCIATION OF
AMI RICA, CHAPTER #54:
Case No. 2-C-6244.Decided August 26,1916
Mr. William T. Little, for the Board.
Mr. Raymond E. Hackett, of Stamford, Conn., for the respondent.
Mr. Peter Willig, of Newark, N. J., for the Association.
Mr. Herbert C. Kane, of counsel to the Board.
DECISION
AND
ORDER
On June 21, 1946, Trial Examiner David Rein issued his Inter-
mediate Report in the above-entitled proceeding, finding that the re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the respondent and the Board's
Trial Attorney filed exceptions to the Intermediate Report. On
August 6, 1946, the Board, at Washington, D. C., held oral argument
in which the respondent participated; the Association submitted a
statement in 'lieu of oral argument.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby af-
firmed. The Board has considered the Intermediate Report, the ex-
ceptions, the contentions advanced at the oral argument rand in the
Association's Statement, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
' On July 8, 1946, the respondent filed with the Board a Motion to Dismiss Complaint
and a Motion For Stay of 'Proceedings These motions are hereby denied.
70 N. L. R. B., No. 31.
290 ,
SIMMONS COMPANY 291
Board hereby orders that the respondent, Simmons Company; Eliza-
beth, New Jersey, and its officers, agents, successors, and assigns shall
1. Cease and desist from :
(a) Refusing to bargain collectively with Foremen's Association
of America, Chapter #54, as the exclusive representative of all general
foremen, general inspection foremen, foremen, inspection foremen and
foreladies in the production and maintenance departments of the-
respondent's Elizabeth, New Jersey, plant, excluding assistants to de-_
partment superintendents and all other supervisors above the rank of
general foremen, in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment; ti
(b) In any manner interfering with the efforts of Foremen's Asso-
ciation of America, Chapter x$54, to bargain collectively with it.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request; bargain collectively with Foremen's Association
of America, Chapter #54, as the exclusive representative of all its
employees in the aforesaid bargaining unit, in respect to rates of pay,
wages, hours of employment, or other conditions of employment ;
(b) Post at its Elizabeth, New Jersey, plant, copies of the notice_
attached to the Intermediate Report, marked "Appendix A." 2 Copies-,
of said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the respondent's representa-
tive, be posted by the respondent immediately upon receipt thereof,.
and maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees-
are customarily posted. Reasonable steps shall be taken by the re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material;
(c) Notify the Regional Director for the Second Region, in writing,.
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. GERARD-D. REILLY, dissenting :
For the reasons stated in my dissenting opinion in Matter of Pack-
ard Motor Car Company,3 I am constrained to dissent from the ma- _
jority opinion in this case.
INTERMEDIATE REPORT
Mr. William T. ,Little, for the Board.
Mr. Raymond E. Hackett, of Stamford, Conn, for the Respondent.
Mr. Peter Willig, of Newark, N. J., for the Association. -
2 This notice, however, shall be, and hereby is, amended by striking from the first para-_
graph thereof the words, "The Recommendations of a Trial Examiner," and substituting in,_
lieu thereof the woi ds, "A Decision and Order."
3 64 N L R. B. 1212, 1217.
712344-47-vol 70-20
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon an amended charge duly filed by Foremen ' s Association of America,
Chapter #54, herein called the Association , the National Labor Relations Board,
herein called the Board , by its Regional Director for the Second Region (New
York, New York ), issued its complaint dated May 10, 1946, against Simmons
Company, herein called the respondent , alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 ( 1) and ( 5), and Section 2 (6) and ( 7) of the National
Labor Relations Act, 49 Stat . 449, herein called the Act. Copies of the complaint,
_,accompanied -by notice of hearing thereon , were duly served upon the respondent
and the , Association. `"
With respect to the unfair labor practices , the complaint alleged in substance
that the respondent , on or about April 1, 1946, and at all times thereafter , refused
to bargain collectively with the Association as the exclusive bargaining repre-
sentative of the respondent 's employees within an appropriate bargaining unit,
although a majority of the employees in such -unit in an election conducted under
the supervision of the Board on March 4 , 1946 , had designated and selected the
Association as their representative for the purposes of collective bargaining,
thereby interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act The respondent thereafter filed
its answer in which it admitted that it had , on or about April 1, 1946 and at
all times thereafter , refused to bargain collectively with the Association as the
exclusive representative of the employees in the unit described in the complaint.
The respondent denied, however , that such unit was appropriate for the purpose
of collective bargaining or that the Association was the exclusi ve representative
of all the employees in said unit for the purposes of collective bagaining. The
respondent 'further denied that it had engaged in any unfair labor practices
within the meaning of the Act. The respondent also filed a motion to dismiss
the complaint on the ground that the foremen involved in this case do not con-
stitute an appropriate unit for the purposes of collective bargaining and are
not employees within the meaning of the Act , and on the further ground that
employment conditions and relationships between the respondent and its foremen
and foreladies were substantially different froni those at the hearing in the
representation proceeding before the Board. This motion was subsequently denied
by the Trial Examiner at the hearing on the complaint.
Pursuant to notice , a hearing was held on May 28 , 1946, at New York City before
the undersigned , the Trial Examiner duly designated by the Chief Trial Ex-
aminer The Board and the respondent were represented at the hearing by
counsel and the Association by its Regional Director . Full opportunity to be
heard , to examine and cross-examine witnesses , and to introduce evidence
bearing on the issues was afforded all parties ' At the close of the Board's case
the motion of counsel for the Board to conform the pleadings to the proof was
granted without objection At the close of the hearing the respondent renewed
its motion to dismiss the complaint , which motion was denied by the undersigned
The parties did not avail themselves of the opportunity afforded them to present
oral aigument before , or to file briefs with, the undersigned
1 Counsel for respondent offered in evidence a previous decision of the Board involving
the ie^,pondent The undersigned rejected the offer but stated he mould take judicial
notice of the decision This decision is reported at 54 N 1, N B 130
SIMMONS COMPANY 293
Upon the entire record in^ the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Simmons Company, a Delaware corporation with its principal office and place
of business in New York City, maintains a branch office and factory in Elizabeth,
New Jersey At this plant it is engaged in the manufacture, sale, and distribu-
tion of bedding and furniture During the year ending April 30, 1946, the re-
spondent caused to be delivered to its plant at,Elizabeth, New Jersey, steel,
cotton. textiles, and other materials valued in excess of $1,000,000, of which
approximately 90 percent was shipped from points outside the State of New
Jersey. During the same period, approximately 90 percent of the products
manufactured at this Elizabeth, New Jersey, plant valued in excess of $1,000,000,
was shipped to points outside the State of New Jersey.
At the hearing the respondent conceded that it was engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Foi emen's Association of America, Chapter #54, is a labor organization admit-
ting supervisory employees of the respondent into membership.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain -
1 The appropriate unit and representation by the Association of a majority
therein ''
On February 11, 1946, the Board issued a Decision and Direction of Election
in Case No 2-R-5626,2 finding that all general foremen, general inspection fore-
men. foremen, inspection foremen and foreladies in the production and mainte-
nance departments of the' respondent's Elizabeth, New Jersey plant, excluding
assistants to the department superintendents and all other supervisors above
the rank of general foremen, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act
On March 4, 1946, pursuant to said Direction of Election, an election by secret
ballot was conducted under the supervision of the Regional Director for the
Second Region.' On March 19, 1946, the Board certified the Association as the
exclusive iepresentative, for the purposes of collective bargaining, of the em-
ployees in the unit hereinabove described.
The respondent contends, as it did at the representation proceeding, that the
unit as found by the Board was not an appropriate unit since the supervisors
included within the unit were not employees within the meaning of the Act.
This contention was considered by the Board in a previous representation pro-
ceeding and it was resolved against the views of the respondent. Accordingly,
the undersigned will not review this contention de novo 4
The respondent also introduced evidence to show that its plant at Elizabeth,
New Jersey, had reconverted from the production of war products to civilian
2 65 N L R B. 984
"The tall', of ballots showed that of approximately 32 eligible voters, 31 votes acre cast,
30 of which were east for the Association and 1 was challenged.
4 Matte, of Swift and Company, 63 N. L. R. B. 718.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
products . It contended that this reconversion resulted in a change in the rela-
tionship between the respondent and its supervisory employees . However, none
of the evidence introduced by the respondent supports this contention. There
has been no substantial change . in the relationship between the respondent and
its foremen or in the nature of the duties of the foremen , certainly no circum-
stances that would warrant a different finding as to the appropriate unit. The
evidence establishes at most that the foremen have a slightly greater degree
of responsibility today than they had at the time of the representation case.
The Board has held that such minor variations in degrees of responsibility will
not alter its conclusions that foremen constitute an appropriate unit.'
Accordingly , the undersigned finds that all general foremen, general inspection
foremen, foremen , inspection foremen and foreladies in the production and main-
tenance departments of the respondent's Elizabeth, New Jersey, plant, excluding
assistants to department superintendents and all other supervisors above the
rank of general foremen, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act . The under-
signed further finds that on and at all times after March 19, 1946 , the Asso-
ciation was the duly designated bargaining representative of a majority of the
employees in the aforesaid bargaining unit and that pursuant to the provisions
of Section 9 (a) of the Act the Association was on March 19, 1946, and at all
times thereafter has been and now is the exclusive representative of all the
employees in the aforesaid unit for the purposes of collective bargaining with
respect to rates of pay , wages, hours of employment , and other conditions of
employment.
2. The refusal to bargain
On March 22 , 1946, the Association wrote to the respondent requesting a
meeting for collective bargaining purposes . A meeting was subsequently held
on April 1, 1946 , between representatives of the Association and Mr. Chaffe,
Works Manager of the respondent . At this meeting the representatives of the
Association requested recognition for the Association as exclusive bargaining
agent. In reply, Mr . Chaffe read a letter which had been prepared by counsel
for the respondent . This letter recited that the respondent would not recognize
the Board certification and that the respondent contended that the Board had
no jurisdiction over the matter . The letter further stated that the respondent
would not, recognize the Association as the bargaining representative for any
of its supervisory employees because ' it considered that supervisors were not
,employees within the meaning of the Act.
At the hearing, the respondent admitted its refusal to bargain with the Asso-
ciation and made the same contentions set forth above. The respondent made
the further contention that it was not required to bargain with the Association
,because of the change in circumstances since the date of the representation
hearing. Both of these contentions have already been discussed in this report.
It is clear that the respondent 's conduct constituted a refusal to bargain and the
undersigned so finds.
The undersigned finds that the respondent on April 1, 1946, and at all times
thereafter has refused to bargain collectively with the Association as the exclu-
sive representative of its employees in an appropriate unit and has thereby inter-
fered with , restrained and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
11
6 Matter of L. A Young Spring & Wire Corporation, 65 N L. R. B. 298.
SIMMONS COMPANY
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
295 ,
The activities of the respondent, set forth in Section III, above, occurring in
-connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
Because of the basis of the respondent's refusal to bargain as indicated in the
-facts found, and tecause of the absence of any evidence that danger of other
unfair labor practices is to be anticipated from the respondent's conduct in the
past, the undersigned will not recommend that the respondent cease and desist
from the commission of any other unfair labor practices. Nevertheless, in order
to effectuate the policies of the Act, the undersigned will recommend that the
respondent cease and desist from the unfair labor practices found and from in
any manner interfering with the efforts of the Association to bargain collectively
with it ° '
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Foremen's Association of America, Chapter #54, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. All general foremen, general inspection foremen, foremen, inspection foremen
and foreladies in the production- and maintenance departments of the respond-
ent's Elizabeth, New Jersey, plant, excluding assistants to department superin-
tendents and all other supervisors above the rank of general foremen, constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. Foremen's Association of America, Chapter #54, was on March 19, 1946,
and at all times thereafter has been the exclusive representative of all employees
in the aforesaid unit for the purposes of collective bargaining within the mean-
ing of Section 9 (a) of the Act.
4. By refusing on April 1, 1946, and at all times thereafter to bargain collec-
tively with Foremen's Association of America, Chapter #54, as the exclusive
representative of all its employees in the aforesaid appropriate unit, the re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
° See N. L B. B v Express Publishing Company, 312 U. S. 426.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in' the case , the undersigned recommends that the respondent,
Simmons Company , and its officers , agents, successors , and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Foremen 's Association of America,
Chapter #54, as the exclusive representative of all general foremen, general
inspection foremen, foremen , inspection foremen and foreladies in the production
and maintenance departments of the respondent 's Elizabeth , New Jersey , plant,
excluding assistants to department superintendents and all other supervisors
above the rank of general foremen ;
(b) In any manner interfering with the efforts of Foremen 's Association of
America, Chapter #54, to bargain collectively with it. e
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Foremen 's Association of Amer-
ica, Chapter #54, as the exclusive representative of all its employees in the
aforesaid appropriate unit;
(b) Post at its plant at Elizabeth , New Jersey , copies of the notice attached
to the Intermediate Report herein marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall , after being
duly signed by the respondent 's representative , be posted by the respondent im-
mediately upon receipt thereof and maintained by it for sixty ( 60) consecutive
days thereafter , in conspicuous places, including all places where , notices to
employees are customarily posted. Reasonable steps shall be taken by the
respondent to insure that said notices are not altered , defaced, or covered by any
other material ;
(c) File with the Regional Director for the Second Region , on or before ten
(10) days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondent has
complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the re-
ceipt of the Intermediate Report the respondent notifies said Regional Director
in writing that it has complied with the foregoing recommendations , the_Na-
tional Labor Relations Board issue an order requiring the respondent to take
the action aforesaid. -
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as 'amended effective November 27,
1945, any party or counsel for the Board may within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board , pursuant to
Section 32 of Article II of said Rules and Regulations , file with the Board. Ro-
chambeau Building , Washington 25, D. C., an original and four copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to
any other part of the record or proceedings ( including rulings upon all motions
or objections ) as he relies upon, together with the original and four copies of
a brief in support thereof . Immediately upon the filing of such statement of ex-
ceptions and/or brief , the party or counsel for the Board filing the'same shall
serve a copy thereof upon each of the parties and shall file a copy with the
Regional Director . - As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10 ) days from the date of the order trans-
ferring the case to the Board Any party desiring to submit a brief in support
I
SIMMONS COMPANY 297
of the Intermediate Report shall do so within fifteen (15) clays from the date
of the entry of the order transferring the case to the Board, by filing with the
Board an original and four copies thereof, and by immediately-serving a copy
thereof upon each of the other parties and the Regional Director.
DAVID REIN,
Trial Examiner.
Dated June 21, 1946.
0 APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with the efforts of Foremen's Associa-
tion of America, Chapter #54, to bargain collectively with us.
We will bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in it signed agreement. The bargaining unit is:
All general foremen, general inspection foremen, foremen, inspection
foremen and foreladies in the production and maintenance department
at the Elizabeth, New Jersey, plant, excluding assistants to department
superintendents, and all other, supervisors above the rank of general
foreman.
SIMMONS COMPANY, %
Employer.
By---------------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
r