Anderson Mattress Co.

National Labor Relations Board - Board Decisions

Nov 10, 1939

17 N.L.R.B. 473 (N.L.R.B. 1939)

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.