Anderson Mattress Co.

In the Matter of ANDERSON MATTRESS COMPANY and TEXTILE WORKERS ORGANIZING COMMITTEE Cases Nos. C-735 and R-791.-Decided November 10, 1939 Mattress and Studio Couch Manufacturing Industry-Settlement: stipulation providing for compliance with Act, including disestablishment of labor organ- ization as representative of employees, reinstatement of employees, and back pay-Order: entered on stipulation-Complaint: dismissed as to surveillance, refusal to bargain. and discrimination against three persons. Mr. Lester M. Levin and Mr. Weldon P. Monson, for the Board. Mr. Everett E. MoDaniels, of Anderson, Ind., for the respondent. Mr. Earl Heaton, of Anderson, Ind., and Mr. Carl F. Albrecht, of Indianapolis, Ind., for the Union. Mr. Bernard W. Freund, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On September 18, 1937, Textile Workers Organizing Committee, herein called the Union, filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Anderson Mattress Company, Anderson, Indiana, herein called the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 25, 1937, the Union filed with the Regional Director a charge alleging that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the mean- ing of the Act. On February 21, 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 investigation of the petition and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 17 N. L. R. B., No. 39. 473 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 21, 1938, the Board, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations, ordered that the complaint and representation cases be consolidated. On February 25, March 7, and March 11, 1938, the Union filed amended charges. Upon the above charge and amended charges the Board, by the Regional Director, issued its complaint against the respondent, dated April 6, 1938, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. Copies of the complaint, accom- panied by notice of hearing, were duly served upon the respondent and the Union. The complaint alleged in substance (1) that the respondent urged, persuaded, and warned its employees to refrain from becoming or remaining. members of the Union, threatened them with discharge and other reprisals if they became or remained members thereof, and kept under surveillance meetings and meeting places of its em- ployees who were members of the Union; (2) that the respondent dominated and interfered with the formation and administration of Mattress Workers Association, herein called the Association, and contributed support thereto; (3) that the respondent discharged and refused to reinstate Earl Wiley, Charles Gwinnup, Leonard Hires, Fred Dempsey, Vendora Hill, Mary Michaels, Ernie Planck, Bertha Hudson, Edgar Harvey, and Hazel Davis on various dates between September 7, 1937, and March 4, 1938, inclusive, because of union membership and activity; (4) that on or about and after August 24, 1937, the respondent refused to bargain collectively with the Union, the duly designated exclusive representative of employees of the respondent in an appropriate unit; and (5) that, by the above and other acts, the respondent interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 15, 1938, the respondent filed an answer to the complaint, denying that it had engaged in or was engaging in the alleged unfair labor practices. Pursuant to notice, a hearing on the complaint and representation cases was held at Anderson, Indiana, on April 21, 22, 23, 25, 26, and 27, 1938, before Harold Stein, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union partici- pated in the hearing, the Board and the respondent being represented by counsel. Full opportunity to be heard, to examine and cross- examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case, counsel for the Board moved to dismiss the complaint as to Ernie Planck without prejudice. The ANDERSON MATTRESS COMPANY 475 Trial Examiner granted the motion. At the close of the hearing, counsel for the Board moved to conform the pleadings to the proof. The Trial Examiner granted the motion. At the close of the Board's case and at the conclusion of the hearing, counsel for the respondent moved to dismiss the complaint on the ground that the evidence failed to show that the respondent had engaged in unfair labor prac- tices. The Trial Examiner denied both motions. During the course of the hearing the Trial Examiner made other rulings on motions and on objections to the admission of evidence. On June 27, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties. He found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act, as alleged in the complaint, except with respect to the alleged discrimination against Mary Michaels, Edgar Harvey, and Hazel Davis, and the alleged surveillance of union meetings and meeting places. He rec- ommended that the respondent cease,and desist from engaging in the unfair labor practices, and affirmatively, disestablish the Asso- ciation, terminate a certain contract with the Association, offer full reinstatement with back pay to Earl Wiley, Charles Gwinnup, Leon- ard Hires, Fred Dempsey, Vendora Hill, and Bertha Hudson, and bargain collectively on request with the Union. The Trial Examiner further recommended that the complaint, in so far as it alleges discrimination against Michaels, Harvey, Davis, and Planck, and surveillance of union activity, be dismissed, but without prejudice as to Planck. On July 7, 1938, the respondent filed exceptions to the Intermediate Report, and requested oral argument thereon before the Board. Op- portunity to present oral argument was afforded all parties. The parties did not appear. On March 14, 1939, counsel for the re- spondent submitted written argument in support of its exceptions. On or about October 20, 1939, the respondent, the Union, and counsel for the Board entered into a stipulation in settlement of the case, subject to approval by the Board. The stipulation provides as follows : STIPULATION It is hereby stipulated and agreed by and between the Ander- son Mattress Company, Respondent herein; and the Textile Workers Organizing Committee, Local 169, affiliated with the Congress of Industrial Organizations, party herein; and Weldon P. Monson, attorney for the National Labor Relations Board, that : 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Upon charges duly filed by the Textile Workers Organizing Committee, affiliated with the Congress of Industrial Organiza- tions, the National Labor Relations Board, by the Regional Director for the Eleventh Region, acting pursuant to authority granted in Section 10 (b) of the National Labor Relations Act, 49 Stat. 449, and its rules and regulations-Series I, as amended, Article IV, Section I, issued its Complaint on the sixth day of April 1938 against the Anderson Mattress Com- pany, an Indiana Corporation. II. On or about the 27th day of June 1938 Harold Stein, Trial Examiner, designated to conduct the hearing in the above entitled cause, duly rendered his Intermediate Report after a hearing in which all parties were offered an opportunity to participate and be heard, including the calling, examining and cross-examining of witnesses, together with the production of other evidence bearing on the issues thereof. Copies of said Intermediate Report were duly served upon all parties to said proceedings. On or about the seventh day of July 1938 the Anderson Mattress Company, an Indiana Corporation, the em- ployer, filed exceptions to said Intermediate Report with the National Labor Relations Board. III. The Textile Workers Organizing Committee is affiliated with the Congress of Industrial Organizations, and is a labor organization as defined in Section 2, subsection 5, of said Act. IV. Upon this Stipulation, if approved by the National Labor Relations Board, and if such approval is not made without being considered as a waiver by the employer of any of its rights, and upon all proceedings heretofore had in this matter, and on the record in this case and all the pleadings, an Order may forthwith be entered by said Board, which Order may be embodied in a consent decree (consent thereto being hereby expressly given) and filed with the United States Circuit Court of Appeals for the Seventh Circuit, without further notice of application for enforcement thereof, providing as follows : The respondent, the Anderson Mattress Company, and its officers and agents, shall: 1. Cease and desist : (a) From. in any manner interfering with, restraining or coercing its employees in the exercise of the right of self organ- ization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed under Section 7 of the National Labor Relations ,Act; ANDERSON MATTRESS COMPANY 477 (b) From discouraging membership in the Textile Workers Organizing Committee Local 169, affiliated with the C. I. 0., by discharging or in any other manner discriminating against its employees in regard to the hire or tenure of employment or any condition of employment for the reason that they or any of them joined or assisted the Textile Workers Organizing Com- mittee, affiliated with the C. I. 0., or any other labor organiza- tion of its employees; (c) From dominating or interfering with the formation or administration of the Anderson Mattress Workers Association, or any other labor organization of its employees, or contributing financial or other support to any such labor organization; (d) Giving effect to its contract with the Mattress Workers Association. 2. Take the following affirmative action to effectuate the poli- cies and purposes of the National Labor Relations Act : (a) Offer to Earl Wiley, Charles Gwinnup, Leonard Hires, Fred Dempsey and Vendora Hill, immediate reinstatement to their former positions without prejudice to their former rights or privileges enjoyed by them, the said offer of reinstatement -shall be made by the Respondent by registered mail, return receipt requested, and the acceptance of said offer shall be made by the above named employees within five (5) days from the receipt thereof, otherwise said offer shall be deemed rejected; that said offer shall be made immediately upon the approval .of this Stipulation by the Board and receipt of the notice of the approval by the Anderson Mattress Company. (f) Make whole Earl Wiley, Charles Gwinnup, Leonard Hires, Fred Dempsey, Vendora Hill and Bertha Hudson, for the loss .of pay suffered by same by payment to the Regional Director .of the Eleventh Region, immediately upon approval of this Stipulation by the Board, the sum of Three hundred dollars ($300.00), which sum shall be distributed by him to the persons and in the amounts as he shall deem just and proper, and which sum is in full settlement of the amount which each employee above named would have earned as wages from the dates of their respective discharges to the date of payment less net earnings from any employment elsewhere during said periods. (c) Withdraw all recognition from the Mattress Workers Association as a representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work, and completely disestablish Mattress Workers Association as such representative. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) After notice of the approval of this stipulation post im- mediately notices in conspicuous places throughout the Anderson Plant and maintain such notices for a period of sixty (60) consecutive clays from the date of such posting, stating that respondent will cease and desist in the manner aforesaid; (e) Notify the Regional Director for the Eleventh Region, in writing, within ten (10) days from the date of the receipt of the notice of approval of this Stipulation by the full Board, of the steps the Respondent has taken to comply therewith; (f) And it is further ordered that the allegations of the com- plaint relating to Respondent's refusal or failure to bargain with the Textile Workers Organizing Committee Local 169 be and they hereby are dismissed. (g) And it is further ordered that those sections of the com- plaint relating to the discharges of Hazel Davis, Mary. Michael and Edgar Harvey, together with the allegations of the com- plaint relating to surveillance by the Respondent over the labor activities of its employees be dismissed. V. It is further understood and agreed that : (a) An election will be conducted by the National Labor Relations Board within ninety (90) days from the date of the approval of this Stipulation by the Board, upon request of the Textile Workers Organizing Committee affiliated with the Con- gress of Industrial Organizations for the purpose of determining exclusive representatives for collective bargaining. (b) All the respondent's production and maintenance em- ployees, except supervisors, salesmen, office and clerical workers, watchmen and casual labor, shall constitute a unit for the purpose of collective bargaining within the meaning of Section IX (b) of the National Labor Relations Act. (c) Upon the conclusion of said election the respondent will immediately recognize and bargain with the Textile Workers Organizing Committee should that organization represent the majority of votes among the respondent's employees in the unit above named. VI. The Anderson Mattress Company does hereby consent to the withdrawal of, and does so hereby withdraw its exceptions, filed in this matter with the Board, and does hereby stipulate that the record will be closed for the purposes of this Stipula- tion and the entry of the Board's Order together with the filing of the Consent Decree embodying said Order, with the United States Circuit Court of Appeals for the Seventh Circuit, with- out delay. ANDERSON MATTRESS COMPANY 479 VII. This Stipulation embodies the entire agreement between the parties, and there is no verbal agreement of any kind which varies, alters, or adds to the Stipulation. VIII. This Stipulation is subject to the approval of the Na- tional Labor Relations Board, and shall become effective im- mediately upon the granting of such approval by the. Board. On October 25, 1939, the Board issued its order approving the stipulation and making it a. part of the record in the case. In our Order below, the provisions relating to reinstatement, back pay, posting of notices, and notification to the Regional Director con- template action by the respondent subsequent to the issuance of the Order, rather than subsequent to the approval of the stipulation by the Board, as indicated in the stipulation. If such action has already been taken by the respondent, these provisions shall not be deemed to require repetition thereof. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Anderson Mattress Company, is an Indiana cor- poration, with its -principal place of business at Anderson, Indiana. It is engaged in. the manufacture and sale of mattresses, box springs, studio couches, chairs, and other items. During 1937, the respond- ent's gross sales amounted to approximately $174,000,. of which ap- proximately $37,000 was derived from shipments to States other than Indiana, and its purchases of raw materials amounted to $106,584.68, of which $95,368.91 was expended for raw materials obtained outside Indiana. We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. ORDER Upon the basis of the above findings of fact, stipulation, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Anderson Mattress Company, Anderson, Indiana, and its officers and agents, shall: 1. Cease and desist : (a) From in any manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form, join, or assist labor organizations, to bargain collectively 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed under Section 7 of the National Labor Relations Act; (b) From discouraging membership in the Textile Workers Or- ganizing Committee Local 169, affiliated with the C. I. 0., by dis- charging or in any other manner discriminating against its employees in regard to the hire or tenure of employment or any condition of employment for the reason that they or any of them joined or as- sisted the Textile Workers Organizing Committee, affiliated with the C. I. 0., or any other labor organization of its employees; (c) From dominating or interfering with the formation or ad- ministration of the Anderson Mattress Workers Association, or any, other labor organization of its employees, or contributing finan- cial or other support to any such labor organization; (d) Giving effect to its.contract with the Mattress Workers Asso- ciation. 2. Take - the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Earl Wiley, Charles Gwinnup, Leonard Hires, Fred Dempsey, and Vendora Hill, immediate reinstatement to their former- positions without prejudice to their former rights or privileges en- joyed by them, the said offer of reinstatement shall be made by the- respondent by registered mail, return receipt requested, and the ac- ceptance of said offer shall be made by the above-named employees. within five (5) days from the receipt thereof, otherwise said offer- shall be deemed rejected; (b) Make whole Earl Wiley, Charles Gwinnup, Leonard Hires, Fred Dempsey, Vendora Hill, and Bertha Hudson, for the loss of pay suffered by same, by payment to the Regional Director of the Eleventh Region, the sum of three hundred dollars ($300.00), which sum shall be distributed by him to the persons and in the amounts- as he shall deem just and proper, and which sum is in full settlement of the amount which each employee above named would have earned as wages from the dates of their respective discharges to the date of" payment less net earnings. from any employment elsewhere during said periods; (c) Withdraw all recognition from the Mattress Workers Asso- ciation as a representative of any of its employees for the purpose- of dealing with the respondent concerning grievances, labor disputes,. wages, rates of pay, hours of employment or conditions of work, and completely disestablish Mattress Workers Association as such rep- resentative; ANDERSON MATTRESS COMPANY 481 (d) Immediately post notices in conspicuous places throughout the Anderson Plant and maintain such notices for a period of sixty (60) consecutive days from the date of such posting, stating that re- spondent will cease and desist in the manner aforesaid; (e) Notify the Regional Director for the Eleventh Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the allegations of the complaint relating to respondent's refusal or failure to bargain with the Textile Workers Organizing Committee Local 169 be, and they hereby are, dismissed. AND IT IS FURTHER ORDERED that those sections of the complaint relating to the discharges of Hazel Davis, Mary Michael, and Edgar Harvey, together with the allegations of the complaint relating to surveillance by the respondent over the labor activities of its em- ployees be dismissed.