Comite de Empleados de Simmons, Inc.

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 5. All driver-salesmen employees of the Respondent employed at its Cohoes plant, exclusive of all other employees and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 6. The above-named Union was on July 16, 1959, and since that date has been at all times , the exclusive representative of all employees in the aforesaid appropri- ate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 7. By refusing on July 27, 1959 , and at all times thereafter, to bargain collec- tively with the above-named Unions, respectively, as the exclusive representatives of their employees in the aforesaid appropriate units, the Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 10. The Respondent Employer did not and has not engaged in unfair labor practices within the meaning of Section 8(a) (2) of the Act. [Recommendations omitted from publication.] Comite de Empleados de Simmons , Inc. (also known as Comite de Negociaciones de los Empleados de la Simmons, Inc.) and its officers and/or agents Miguel Pacheco Cintron , Angel Luis Gambaro, Juan A. Garcia, Jose C. Burgos, and Filiberto Aviles Padilla; and/or Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, IBTCW & H of America and Simmons, Inc. Comite de Empleados de Simmons, Inc. (also known as Comite de Negociaciones de los Empleados de la Simmons , Inc.) and its officers and/or agents Miguel Pacheco Cintron , Angel Luis Gambaro, Juan A. Garcia, Jose C. Burgos, and Filiberto Aviles Padilla; and/or Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, IBTCW & H of America and Seafarers International Union of North America, Atlantic & Gulf Dis- trict, P.R. Division, AFL-CIO. Cases Nos. 24-CC-60 and 24-CC-61. July 19, 1961 SUPPLEMENTAL DECISION AND ORDER On June 17, 1960, the Board issued a Decision and Order 1 in the above-entitled proceeding in which the Board found, contrary to the Trial Examiner, that Respondents Comite de Empleados de Simmons, Inc., herein called the Comite, and Miguel Pacheco Cintron, Angel Luis Gambaro, Juan A. Garcia, and Jose C. Burgos had not engaged in conduct violative of Section 8 (b) (4) (C) of the Act, and, there- 1 127 NLRB 1179 132 NLRB No. 27. COMITE DE EMPLEADOS DE SIMMONS, INC. 243 fore, dismissed these allegations of the consolidated complaint herein. The Board agreed with the Trial Examiner's recommended dismissal of the remaining allegations and, therefore, dismissed the complaint in its entirety. Thereafter, on March 10, 1961, the Court of Appeals for the First Circuit handed down its opinion and decree vacating the Board's order of dismissal and remanding the proceeding to the Board for an order consistent with the opinion. Although the Board respectfully disagrees with the court, it has decided to accept the remand, and not to seek certiorari, because to do so does not appear appropriate in this case. The matter having been thus remanded and considered by the Board, the Board hereby accepts as the law of this case the court's findings and conclusions that the above-named Respondents had de- clared their independence of the SIU, which had been certified as the representative of the Simmons employees, and were demanding recognition as the bargaining representative of these employees, in violation of Section 8(b) (4) (C) of the Act. Accordingly, the Board has amended its Order as follows : IT IS HEREBY ORDERED that Comite de Empleados de Simmons, Inc. (also known as Comite de Negociaciones de los Empleados de la Sim- mons, Inc.), its agents, representatives, successors, and assigns, in par- ticular its representatives Miguel Pacheco Cintron, Angel Luis Gam- baro, Juan A. Garcia, and Jose C. Burgos, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of Simmons, Inc., to engage in, any strike or concerted refusal in the course of their employment to use, manufacture, proc- ess, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services for Simmons, Inc., where an object thereof is to force or require Simmons, Inc., to recognize or bargain with Comite de Empleados de Simmons, Inc. (also known as Comite de Negociaciones de los Empleados de la Sim- mons, Inc.) as the representative of any employees in the unit de- scribed below, so long as any other labor organization is certified by the Board as the representative of such employees. The unit is : All production and maintenance employees employed by Simmons, Inc., at its San Juan, Puerto Rico, place of business, excluding all office clerical employees, truckdrivers; drivers' helpers, dispatching and receiving clerks, warehouse employees, guards, and supervisors as defined in the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Cause to be published, at their own expense, in a newspaper of general daily circulation in San Juan, Puerto Rico, the notice at- 614913-62-vol 132-17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tached hereto marked "Appendix," in Spanish translation, and in such format and with such frequency (not to exceed three times) as the Regional Director for the Twenty-fourth Region shall determine. (b) Upon request by the said Regional Director, after receipt from him of copies of the said notice in Spanish translation, return to him sufficient copies, dated and duly signed by a representative of Comite de Empleados de Simmons, Inc. (also known as Comite de Negociaciones de los Empleados de la Simmons, Inc.) and individually by Miguel Pacheco Cintron, Angel Luis Gambaro, Juan A. Garcia, and Jose C. Burgos, for posting, the Company willing, for 60 con- secutive clays at the San Juan, Puerto Rico, place of business of Sim- mons, Inc., in conspicuous places where notices to employees are custo- marily posted. (c) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be dismissed inso- far as it alleges that Respondent Filiberto Aviles Padilla and Re- spondent Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, IBTWC & H of America, have violated the Act, and insofar as it alleges that the remaining Respondents induced or encouraged con- certed activities by employees of any employer other than Simmons, Inc., or that an object of their conduct was to force or require Sim- mons, Inc., to recognize or bargain with Teamsters, Chauffeurs, Ware- housemen and Helpers, Local 901, IBTWC & H of America, as the representative of any employees in the unit described above. CII AIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Supplemental Decision and Order. ,APPENDIX NOTICE TO ALL OUR REPRESENTATIVES, AGENTS AND MEMBERS, AND TO ALL EMPLOYEES OF SIMMONS, INC. Pursuant to a Supplemental Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, you are notified that : WE WILL NOT engage in, or induce or encourage the employees of Simmons, Inc., to engage in, any strike or concerted refusal in the course of their employment to perform services for their em- ployer where an object is to force or require Simmons, Inc., to recognize or bargain with Comite de Empleados de Simmons, Inc. (also known as Comite de Negociaciones de los Empleados de la Simmons, Inc.) as the representative of any employees in the unit described below, so long as any other union is certified by the FUNKHOUSER MILLS, DIVISION OF THE RUBEROID CO. 245 National Labor Relations Board as the representative of such employees. The unit is : All production and maintenance employees employed by Simmons, Inc., at its San Juan, Puerto Rico, place of busi- ness, excluding all office clerical employees, truckdrivers, drivers' helpers, dispatching and receiving clerks, ware- house employees, guards, and supervisors as defined in the National Labor Relations Act. COMITE DE EMPLEADOS DE SIMMONS, INC. (ALSO KNOWN AS COMITE DE NEGOCIA- CIONES DE LOS EMPLEADOS DE SIMMONS, INC., Labor Organization. Dated ---------------- By------------------------------------- (Representative ) ( Title) Dated ---------------- Dated---------------- (MIGUEL PACHECO CINTRON, Representative) (ANGEL Luis GaMUARO , Representative) Dated---------------- ------------------------------------- ( JUAN A GARCIA, Representative) Dated---------------- (JosE C. BURGOS, Representative) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Funkhouser Mills, Division of The Ruberoid Company and United Cement, Lime and Gypsum Workers, Local Union 402. Case No. 10-CA-49275. July 19, 1961 ORDER REMANDING CASE TO TRIAL EXAMINER Hearing upon the complaint herein was held before Trial Exam- iner John H. Dorsey on February 23, 24, and 25, 1960. On February 24, 1960, on motion of the Respondent at the close of the General Counsel's case, the Trial Examiner dismissed the complaint insofar as it alleged that the Respondent had violated Section 8(a) (3) and (1) of the Act by failing to recall, and by discharging, James E. Norrell. On June 23, 1960, the Trial Examiner issued his Interme- diate Report reaffirming his ruling of dismissal and further finding that the Respondent had not engaged in the other unfair labor prac- tices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed 132 NLRB No. 20.