Superior Sleeprite Corp.

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secretary of accounts printers supply room and record room printshop employees employees all nonclassified and non- addressograph operators supervisory employees SUPERIOR SLEEPRITE CORPORATION and DIE AND TOOL MAKERS LODGE No. 113, INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL. Case No. 13-CA-1634. July 23, 1954 Decision and Order On April 20, 1954, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner 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 recom- mendations of the Trial Examiner.' Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Superior Sleeprite Cor- poration, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Die and Tool Makers Lodge No. 113, International Association of Machinists, AFL, as the ' The Respondent contends that the Board made an erroneous determination of the appropriate unit in the representation case (106 NLRB 228). The Board has carefully reexamined the record and decision in that case and perceives no reason for upsetting its unit determination. The Board notes, moreover, that the Respondent never requested reconsideration of the decision in the representation case before the election , nor did it file exceptions to the Regional Director's report on challenged ballots which disposed of cer- tain challenged ballots on the basis of the unit determination In the representation decision. The Respondent further contends that no bargaining order -should Issue because, under standards of unit determination formulated In American Potash & Chemical Corporation, 107 NLRB 1418, issued March 1, 1954, the unit found appropriate In 1953 would not simi- larly be found appropriate today. The American Potash decision was intended to have prospective and not retroactive effect. It does not nullify unit determinations already made nor does it excuse refusals to bargain which occurred before its Issuance. 109 NLRB No. 71. SUPERIOR SLEEPRITE CORPORATION 323 exclusive representative of all toolroom employees, experimental em- ployees, and machine repairmen at its Chicago plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Die and Tool Makers Lodge No. 113, International Association of Machinists, AFL, as the exclusive representative of all the employees in the above-described unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its place of business at Chicago, Illinois, copies of the notice attached to the Intermediate Report and marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent imme- diately upon receipt thereof and be maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, includ- ing 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) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges filed by Die and Tool Makers Lodge No. 113, International Asso- ciation of Machinists, AFL, herein called the Union, the General Counsel by the Regional Director for the Thirteenth Region (Chicago, Illinois ), of the National Labor Relations Board , herein called the Board , issued his complaint dated March 1, 1954, against Superior Sleeprite Corporation , herein called the Respondent, alleg- ing that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5), and Section 2 (6) and (7) of the Labor Management Relations Act, 1947 , 61 Stat. 136, herein called the Act. Copies of the complaint and the charge together with notice of hearing were duly served upon the Respondent and the Union. With respect to unfair labor practices, the complaint alleges in substance that beginning about December 23, 1953, the Respondent refused and continues to refuse 2 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof, the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall,be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 334811-55-vol. 109-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bargain with the Union. The Respondent's answer denies the commission of unfair labor practices. Pursuant to notice a hearing was held on March 31, 1954, at Chicago, Illinois, before the undersigned Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union was represented by its agent. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues, was afforded the parties. The parties presented certain of their views and arguments on the record and only the Respondent filed a memorandum. Upon the entire record of the case the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation, is engaged in the manufacture of beds and springs and operates manufacturing plants located in Chicago, Illinois, and Los Angeles, California. During the calendar year 1953, the value of raw materials purchased by the Respondent for use at its Chicago plant was in excess of $50,000, of which more than one-half was shipped to its Chicago plant from points outside the State of Illinois. During the same period, the Respondent manufactured and sold finished products valued in excess of $100,000, of which more than one-half was shipped from its Chicago plant to points outside the State of Illinois. In accord- ance with the Board's prior determination in a representation proceeding involving the Respondent and the Union (Superior Sleeprite Corporation),' the undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Die and Tool Makers Lodge No. 113, International Association of Machinists, AFL, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES The Refusal To Bargain After an election was conducted on August 13, 1953, pursuant to the Board's Decision and Direction of Election, Case No. 13-RC-3364, the Union was certified on December 10, 1953, as exclusive representative under Section 9 (a) of the Act in the following unit which the Board had found to be appropriate under Section 9 (b) of the Act: All toolroom employees, experimental employees, and machine repairmen at the Respondent's Chicago plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. On December 18 the Union requested collective bargaining, and on December 23 the Respondent declined the Union's request explaining that it was contesting the Board's finding as to the appropriate unit and stating that the Respondent would not meet with the Union until such time as the Board reviewed its unit finding. The Union thereupon on January 7, 1954, filed a charge alleging a refusal to bargain on the part of the Respondent thus giving rise to the instant case. At the hearing before the undersigned the Respondent urged that the Board mis- interpreted the record made in the representation proceeding,' and that under the principles laid down in the Board's subsequent decision in the American Potash case (107 NLRB 1418), the Board would have reached a different result in the instant case regarding the unit finding. These matters are for the consideration of the Board and not for the Examiner.' The Respondent also offered to prove through its plant manager, who was hired subsequent to the hearing in the representation proceeding, that the work performed by individuals in the unit found by the Board to be appropriate does not constitute work which would be considered as a true craft. The Union, on the other hand, declared that it viewed the facts differently. These proffers which relate to unit issues which have been litigated or concerning 1 106 NLRB 228. The parties are in agreement that the record in this representation proceeding be made part of the record in the instant case. See footnote 1. ' In the memorandum filed with the undersigned the Respondent has set forth the spe- cific matters which it views as supporting this contention. 4 The Grace Company, 84 NLRB 435, footnote 1. SUPERIOR SLEEPRITE CORPORATION 325 which there has been an opportunity for litigation in the representation proceeding were not received .' It is found in accordance with the Board 's prior determination in the representation proceeding that the following unit is appropriate within the meaning of Section 9 (b) of the Act : All toolroom employees , experimental employees , and machine repair- men at the Respondent's Chicago plant, excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. It is further found in accordance with the Board 's prior determination that the Union was on December 10, 1953 , and at all times material thereafter has been the exclusive representative of the employees in the aforesaid unit within the meaning of Section 9 (b) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices , it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent refused to bargain collectively with the Union as the exclusive representative of the employees in the above-described appropriate unit, it will be recommended that the Respondent bargain collectively with the Union upon request, as the statutory representative of the employees in that unit and, if an understanding is reached , embody such understanding in a signed agreement. Since the record does not reveal any evidence that the Respondent has engaged in any other unfair labor practices , and since it appears that the refusal to bargain by the Respondent is based upon its desire to obtain review by the Board of the unit finding, rather than a fundamental attitude of opposition to the objectives of the Act, it will be recommended merely that the Respondent cease and desist from refusing to bargain with the Union as the exclusive representative of its employees in the above-described unit, and from in any manner interfering with the efforts of the Union to bargain collectively on their behalf. Upon the basis of the foregoing findings of fact and upon the entire record in the case the undersigned makes the following: CONCLUSIONS OF LAW 1. Die and Tool Makers Lodge No. 113, International Association of Machinists, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All toolroom employees, experimental employees , and machine repairmen at the Respondent's Chicago plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act , constitute and at all times material herein have constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Die and Tool Makers Lodge No. 113, International Association of Machinists, AFL, was on December 10, 1953, and has been at all times material thereafter the exclusive representative of all the employees in the unit above -described for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on December 23, 1953, and thereafter to bargain collectively with the above-named labor organization, as the exclusive representative of all the em- ployees in the unit above-described, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By said refusal to bargain the Respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 6. The aforesaid unfair 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.] 5 N L. R B. v. Worcester Woolen Mills Corp., 170 F. 2d 13, 16 ( C. A. 1), cert. denied 336 U S. 903; Pittsburgh Plate Class Co. v N. L. R. B, 313 U. S. 146,162; Allis-Chalmers Mfg Co . v. N. L R. B., 162 F. 2d 435, 440-441 ( C. A. 7) ; N. L. It. B. v. West Kentucky Coal Co, 152 F. 2d 198, 201 ( C. A 6), cert. denied, 328 U. S. 866. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL bargain collectively upon request , with Die and Tool Makers Lodge No. 113 , International Association of Machinists, AFL, as the exclusive repre- sentative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, or other conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All toolroom employees, experimental employees , and machine repairmen at our Chicago, Illinois, plant, excluding office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. WE WILL NOT in any manner interfere with the efforts of the above-named Union to bargain with us, or refuse to bargain collectively with said Union as the exclusive representative of the employees in the bargaining unit set forth above. SUPERIOR SLEEPRITE CORPORATION, Employer. Dated---------------- By---------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, CIO and MARIE J. KUHLMAN, ANNETTE CIERVO SCANDARIATO AND MARGARET KARLE. Cases Nos. 2-CB 925, 2-CB-926, and 2-CB958. July 23,1954 Decision and Order On January 19, 1954, Trial Examiner Arthur Leff 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 Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the exceptions and modifications noted below. 109 NLRB No. 56.