Sealy Mattress Co. of Southern California

In the Matter of SENIEL OsTRow, DOING BUSINESS AS SEALY MATTRESS COMPANY OF SOUTHERN CALIFORNIA and UPHOLSTERERS INTERNA- TIONAL UNION OF NORTH AMERICA, LOCAL 15, A. F. OF L. Case No. R-2237.-Decided January 22, 19111 Jurisdiction : mattress, box springs, and studio divan manufacturing industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord recognition to union; election necessary ' Unit` Appropriate for Collective Bargaining : prodiiction and shipping employees- including truck drivers but excluding foremen, supervisors, and, clerical employees ; agreement as to Mr. Edgar Anspacher; of Los Angeles, Calif., for they Company. Mr. Arthur Garrett and Mr. Charles L. Yost, of Los Angeles,. Calif., for the International. gallagher, Wirin d 'Johnson, by Mr. Leo Gallagher, of- Los Angeles, Calif., and Mr. Ernest Marsh, of Los Angeles, Calif., for the United. Mr. Louis Colcin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 26 and December 6, 1940, respectively, Upholsterers International Union of North America, Local 15, herein called the International, filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition and an amended peti- tion alleging that a question affecting commerce had arisen concern- ing the representation of employees of Seniel Ostrow, doing business as Sealy Mattress Company of Southern California,) Los Angeles, 'California, herein called the Company, and requesting an investi- gation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act,.49 Stat. 449, herein called the Act. On December 18, 1940, the National Labor Relations.Board, herein 'Incorrectly designated in the formal papers as Sealy Mattress - Company. This was corrected by motion at the hearing 29N L R.B,No 26. 142 SENIEL OSTROW 143 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 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On December 20, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the International, and United Furniture Workers of America, Local 576, herein called the United, a labor organization claiming to rep- r- esent employees directly affected by the investigation. Pursuant to notice,, a hearing was held on December 30, 1940, at Los Angeles, California, before David Sokol, the Trial Examiner duly designated by the Board. The International and the United were represented by, counsel, the Company by its general manager; all participated in the hearing. Full opportunity to be heard, to examine and cross- exainine 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 objections to the admission of evidence. The Board has reviewed the rulings of The Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Seniel Ostrow, doing business as Sealy Mattress Company of Southern California, operates a plant at Los Angeles, California, where he is engaged in the business of manufacturing mattresses, box springs, and studio divans. From January 1, 1940, to Decem- ber 1,, 1940, the Company purchased raw materials valued in ex- cess of $90,000, approximately 11 per cent of which were shipped to it from points outside the State of California. During the same period, the Company's sales exceeded $200,000, approximately 5 per cent of which represented goods shipped to points outside the State of California. IT. THE ORGANIZATIONS INVOLVED Upholsterers International Union of North America, Local 15, is a labor organization affiliated with the American Federation of Labor. - It admits to - membership all production and shipping em- ployees of the Company, including truck drivers, but excluding foremen, supervisors, and clerical employees. United Furniture Workers of America, Local 576, is a labor organization affiliated with the Congress of Industrial Organiza- 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. It admits to membership the same classes of employees of the Company as the International. - III. THE QUESTION CONCERNING REPRESENTATION During July 1940 the International, claiming to represent a ma- jority of the employees, requested the Company to recognize it as the exclusive representative of its employees. The Company--denied this request stating that it was operating under a contract with the United. The Company and the United entered into a closed-shop contract in 1939 which expired on December 31, 1940. It is apparent that this contract is not a bar to a present determination of-representatives. A statement of the Regional Director, introduced in evidence, shows that the International and the United each represent a substantial number, of employees in the alleged- appropriate unit .2 We find that a question has arisen concerning the representation of, employees of the Company. IV. THE EFFECT OF TI-11] 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 coriunerce among the several States and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The International,' the United, and the Company agreed at the -hearing that the appropriate unit should consist of all production and shipping employees of the Company, including truck drivers, but excluding foremen, supervisors, and clerical employees.' We see no reason for departing from the desires of the parties We find that all production and shipping employees of the Com- pany, including truck drivers, but excluding foremen, supervisors, and clerical employees, constitute a unit appropriate for the pur- The Regional Directors statement shows that 22 employees whose names appear on the Comp•iny's pay roll of December 6 1940, have signed application cards in the Inter- national and that 20 employees whose names appear on this pay roll halve signed a peti- tion authnrizmg the United to bargain for them The December 6, 1940. pay roll contains the names of 27 employees in the alleged appropriate unit The contract between the United and the Company which expired on December 31, 1040, ,coveted "employees of the Company," and specifically excluded employees in the sales and office departments, foremen, superintendents, shipping clerk, temporary maintenance employees, and special service employees SENIEL OSTROW 145 poses of collective bargaining , and that said unit will insure to em- ployees of the Company the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The International stated that, in the event the Board directed- an election, it desired that the pay roll of December 6, 1940, be used as a basis for determining eligibility to vote. The United stated that it desired a pay roll for the period immediately preceeding the (late of the Direction of Election. We find that those eligible to vote in the election shall be the employees in the appropriate, unit who were employed by the Company during the pay-roll period im- mediately preceding the date of the Direction of Election herein, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those employees 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 :' CO NCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Seniel Ostrow, doing business as Sealy Mattress Company of Southern California, Los Angeles, California, within the meaning of Section 9 (c) and Section 2 .(6) and (7) of the National Labor Relations Act. 2. All production and shipping employees of the Company, in- cluduig truck drivers, but excluding foremen, supervisors, and cler- ical employees, 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, is is hereby - DIRECTED that , as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective - bargaining with Seniel Ostrow , doing business as Sealy. Mattress 2n Zn Company of Southern California , Los Angeles , California , an elec- 146 DECISIONS OF NATIONAL" LABOR RELATIONS BOARD tion by secret ballot shall be conducted as early as possible, but hot later than thirty (30) days from the -date of this Direction, under the direction and supervision of_ the Regional Director for the Twenty-first 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 all production and shipping employees of the Company who were employed during the pay-roll period immediately preceding the date of this Direction, including truck drivers, employees who did not work during such pay-roll period because they were ill or on vacation,-and employees who were then or have since been temporarily laid off, but excluding foremen, supervisors, clerical employees, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Upholsterers International Union of North Amer- ica, Local 15, affiliated with the American Federation of Labor, or by United Furniture Workers of America, Local 576, affiliated with the Congress of Industrial Organizations, for the purposes of col- lective bargaining, or by neither. CHAIRMAN HARRY A. DIii.Lis took no part in the consideration of the above Decision and Direction of Election. [SAME TITLE] CERTIFICATION OF REPRESENTATIVES February 20, 1941 On January 22, 1941, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding., Pursuant to the Direction of Election, an election by secret ballot was conducted on February 5, 1941, under the direction and supervision of the Regional Director for the Twenty-first Region (Los Angeles, California). On February 5, 1941, the Regional Director, acting pursuant to Article III,' Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties an Election Report, No objections to the conduct of the ballot or the Election Report have been filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Total on eligibility list-------------------------------------- 23 Total ballots cast -------------------------------------------- 22 Total ballots challenged------------------------------------- 0 Total blank ballots------------------------------------------ 0 Total void ballots ------------------------------------------- 0 SENILL OSTROW 147 Total ballots not counted____________________________________ 0 Total ballots counted ---------------------------------------- 22 Total votes for United Furniture Workers of America, Local 576, affiliated with the Congress of Industrial Organizations__ 17 Total votes for Upholsterers International Union of North • ` America, Local 15, affiliated with the American Federation of Labor-------------------------------------------------- 4 Total votes for neither______________________________________ 1 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 2, as amended, IT Is HEREBY CERTIFIED that United Furniture Workers of America, Local 576, affiliated with the Congress of Industrial Organizations, has been designated and selected by a majority of all production and shipping employees of Seniel Ostrow, doing business as Sealy Mattress Company of Southern California, Los Angeles, California, including truck drivers, but excluding foremen, supervisors, and clerical employees, as their representative for the purposes of collec- tive bargaining, and that, pursuant'to Section 9 (a) of the Act, United Furniture Workers. of America, Local 576, affiliated with the Congress of Industrial Organizations, is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 29 N. L. R. B., No. 26a. I 413602-42-vol. 29-11