Simmons Co.

National Labor Relations Board - Board Decisions

Feb 15, 1960

126 N.L.R.B. 656 (N.L.R.B. 1960)

Q656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action, which the Board has held was not intended by Congress to be reached
by the foregoing proscription in Section 8(b) (4) (A)
The opinion , however, had just before, stated that the Board agreed with the Trial
Examiner that the evidence did not establish that either the Teamsters or Operating
Engineers was responsible for the decision of the members of those unions to re-
spect the picket line It is thus apparent that there was no ruling in this respect on
the issue involved in this case and it seems to me no inference can be drawn from its
,discussion of the primary nature of appeals to the employees of the primary employer
The Respondent Union relies on language in the opinion answering a contention
by the Company that the case was distinguishable from the Rice Milling case, supra,
in that the Teamsters and the Operating Engineers had no dispute with Westhenner,
the primary employer It is as follows
Columbia-Southern contends, however, that the action of Teamsters and
Operating Engineers in inducing employees of the primary employer [West
hermer] in the instant case to leave their work is distinguishable from that of
the union in the Rice Milling case, in that Teamsters and Operating Engineers
,did not, themselves, have any dispute with Westheimer , the only dispute being
between Westheimer and Pipefitters
However, as we read the legislative history of the provisions of- ection
8(b) (4) (A) here involved, Congress was not concerned to protect primary
employers against pressures by disinterested unions, but rather to protect dis-
interested employers against direct pressures by any union
The Court thereby gives another reason why the case as, to the Teamsters and the
Operating Engineers should be dismissed This language relates to the relationship
of the Vinous to the primary employer as to inducement of his employees and does
not touch the issue in this case
There is evidence in the record as referred to earlier that the president of Local
200 participated in picketing on at least one occasion . I can see no unlawful action
,either by said officer or the Local in assisting, whether paid or not, in the picketing
by Local 743 Any request, express or implied, by such picket to drivers of neutral
,carriers not to deliver or pick up is a traditional part and purpose of the picketing
process and does not violate Section 8(b)(4)(A)
It seems basic in principles of picketing that the union or group setting up a
picket line may hire pickets or obtain pickets by requesting individuals to serve or
by requesting other labor organizations to furnish persons to serve, whether or not
the pickets or the assisting union are connected with the subject matter of the dispute
I have been unable to find any such restrictions on the participation in or assistance
to legal picketing at the premises of an employer
In view of the considerations above discussed it is my opinion and I conclude that
the inducement and encouragement by officers of Local 200 to its members to re-
spect the primary picket line at Milwaukee Plywood and not to deliver or pick up
for their carrier employers at the picket line was not a violation of Section
8(b) (4) (A ) of the Act and I shall recommend that the complaint herein be
dismissed
CONCLUSIONS OF LAw
1 The Charging Party, Milwaukee Plywood Company, is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Respondent Union is a labor organization within the meaning of Section
2(5) of the Act
3 The Respondent Union has not engaged in the unfair labor practices alleged in
the complaint as violating Section 8(b) (4) (A) of the Act
[Recommendations omitted from publication ]
`S1ntmans Company and United, Furniture Workers of America,
Local 1010, AFL-CIO, Petitioner. Case No 21-]?--6012 Feb-
ruary 15, 1960
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis S Eberhardt, hearing
126 NLRB No. 75
SIMMONS COMPANY 657
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner and the Intervenor, Upholsters International
Union of North America, AFL-CIO, and Local 15, are labor organiza-
tions which claim to represent certain employees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
Petitioner seeks a unit of employees in the mattress department
of the Employer's Los Angeles, California, plant. The Intervenor
claims its current contract is a bar and that the unit sought is inappro-
priate. The Employer takes the position that the petition is prema-
ture because the department sought is expanding and has not yet
been established on a permanent basis.'
The Employer is a major manufacturer of livingroom and bed-
room furniture, operating some 14 plants in various parts of the
country. The manufacture of livingroom furniture at the instant
plant began in the spring of 1958, and the next year, in about Mao
1959, the Employer commenced the manufacture of mattresses.
The mattress department is located on the same floor as the offices
and showrooms. This floor also houses a warehouse area for packaged
units, behind which is the space used for mattress manufacturing.
Behind the latter, in the rear of the building, is the section where
the livingroom furniture is made. A plywood board separates the
two departments.
In order to establish the mattress department, the Employer trans-
ferred machinery, equipment, and supervisory personnel from its San
Francisco factory to the instant plant. The supervisors were engaged
primarily in training new employees for this department. At the
time of the hearing in the fall of 1959, most of the mattress workers
were still in the training process and on probationary status.
The uncohtradicted record shows considerable similarity between
the livingroom and bedroom operations. It is often difficult to dis-
tinguish a livingroom piece from one used for sleeping purposes. Mat-
tresses are used in upholstered furniture and vice versa. Both opera-
, As we are dismissing the petition on other grounds, we find no necessity for con-
sidering the Employer's expanding unit contention.
554461-60-vol. 126-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions use closers, machine operators, component assemblers, sewers,
packers, cutters, etc. Although the manufacture of mattresses lends
itself somewhat more to machine work rather than hand operations,
which is more characteristic of upholstery manufacturing, the
required job classifications and skills are substantially the same.
While there is at present little interchange of workers, certain skills
will be readily interchangeable. In addition to using similar types of
machines, both operations use the same materials, such as wood, coil
springs, wire, metal bolts, cotton felt, and rubber. Each department
has its own immediate supervision, but the same overall supervision.
All the Employer's products are displayed in the same showrooms,
both departments use the same trucks, the same maintenance employ-
ees service both, the same plant rules apply, and the Employer's San
Francisco office is responsible for payrolls.
As indicated above, the manufacture of livingroom furniture began
in April 1958, and on December 29, 1958, the Employer executed an
agreement, here in issue, with the Intervenor, which has a termina-
tion date of February 28, 1961. This contract by its express terms 2
covers all production and maintenance employees at this plant. There-
fore, if as contended by the Intervenor, the mattress department is
a normal accretion to the production and maintenance unit, the em-
ployees therein are covered thereby. The Petitioner claims that be-
cause the preamble of the contract refers to the Simmons Company,
Living Boom Division, Los Angeles, California (emphasis supplied)
as the Employer, and the mattress department is a new operation, it
is not covered by the contract 3 We find this contention without
merit. It is patently clear that the words "Living Room Division"
were purely descriptive and intended for the purpose of identifying
the Employer and not the scope of the contract's unit coverage.
Nor do we find that the mattress department is a new operation so
as to warrant direction of a separate election therein. Thus, the en-
tire record in this case points to one crucial factor: the Employer is
engaged in the same functional activity in its livingroom and bed-
room operations-the manufacturing of home furniture. As hereto-
fore indicated, both operations are closely integrated and there
2 Section 1 02. Employees covered • "The persons covered by this contract include all
the employees who are production and maintenance employees of the Company employed
in its Los Angeles, California , plant , excluding watchmen , truck drivers , inspectors,
foremen, supervisory, office , administrative , engineering and clerical employees "
' Shortly before the establishment of the mattress department , in May 1959. Petitioner
filed a representation petition ( Case No 21-RC-5820 ), seeking to represent all employees
at this plant , with the usual exclusions The petition was dismissed by the Regional
Director on the ground that the 1958 contract was a bar Petitioner appealed to the
Board urging that the facts indicated an expanding unit and that therefore the contract
was not a valid bar The Board affirmed the dismissal Thereafter, Petitioner filed the
instant petition to represent employees in the mattress department The Intervenor
urges that the Board determination in the appeal is dispositive of the issue in the instant
case. As we are deciding that the contract is a bar , we find no necessity for ruling on
this question.
HARBUR TERMINAL COMPANY 659
clearly exists a community of interest between employees in the two
departments . Nor does the fact that a little more machine work
is required in mattress manufacturing than in upholstery making,
persuade us that the overall fauction has been sufficiently changed
to classify the bedroom operation as a new undertaking . It therefore
follows that the Employer 's mattress department is a normal accre-
tion to an existing unit, and that the contract of December 1958 bars
the present petition .4 Accordingly , we shall dismiss the petition.
[The Board dismissed the petition.]
4Ingersoll-Humphreys Division, Borg-Warner Corporation, 117 NLRB 1715; J. W Rex
Company, 115 'NLRB 775, 777; Richfield Oil Corporation , 119 NLRB 1425; cf. W. P.
Fuller & Companii , 122 NLRB 814.
Harbur Terminal Company and Jesse J. Jamerson and Hod
Carriers & Laborers Local Union 116, AFL-CIO, Party to the
Contract. Case No. 23-CA-869 (formerly 39-CA-869). Febru-
ary 16, 1960
DECISION AND ORDER
On October 21, 1959, Trial Examiner James T. Rasbury 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.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
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 brief, and the entire record in the
case and hereby adopts the findings,' conclusions, and recommenda-
tions 2 of the Trial Examiner.
'The Trial Examiner found, inter alia, that the Respondent violated Section 8(a)(1)
and (3 ) of the Act by maintaining an exclusive hiring -hall arrangement with the Union,
without having posted notices relating to the functioning of the hiring arrangement, as
required by Mountain Pacific Chapter of the Associated General Contractors , Inc., et al.,
119 NLRB 883 Although it is not clear from the present record whether the Respond-
ent's requirement, that applicants for employment be referred by the Union , resulted
from the application of an exclusive hiring -hall agreement with the Union , as found by
the Trial Examiner, or whether such requirement resulted only from a practice uni-
laterally adopted by the Respondent, we find that in either event the Respondent violated
Section 8(a) (3) and (1) of the Act.
2 As it is not clear from the instant record that there was an agreement between the
Respondent and the Union for the establishment of an exclusive hiring hall, and as it
126 NLRB No. 85.