Specialty Mattress Co.

National Labor Relations Board - Board Decisions

Jul 9, 1938

8 N.L.R.B. 187 (N.L.R.B. 1938)

In the Matter of SPECIAIJrY MATTRESS COMPANY AND ITS SUBSIDIARY
AND AFFILIATE, THE TERRE HAUTE NATIONAL MATTRESS CO., INC.
and TEXTILE WORKERS LOCAL No. 169'
Case No. C-575.-Decided July 9, 1938
Mattress Manufacturing Industry-Settlement : on basis of stipulation pro-
viding for reinstatement of two employees and payment of back pay to one of
them . Order: entered on stipulation.
Mr. Colonel C. Sawyer, for the Board.
Mr. Paul R. Shafer, of Terre Haute, Ind., for the respondent.
Mr. Jacob Gerson, of Terre Haute, Ind., for the Textile Workers
Local No. 169.
Mr. George Rose, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by the Textile Workers Local
No. 169, herein called the Union, affiliated with the Textile Workers
Organizing Committee, the National Labor Relatiops Board, herein
called the Board, by Robert H. Cowdrill, Regional Director for the
Eleventh Region (Indianapolis, Indiana), issued its complaint dated
April 8, 1938, against Specialty Mattress Company of Huntington,
West Virginia, herein called the Huntington respondent, and its
subsidiary and affiliate, The Terre Haute National Mattress Com-
pany, Inc., Terre Haute, Indiana, herein called the Terre Haute
respondent, alleging that the respondents had engaged in and were
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
The complaint alleged in substance that the respondents had dis-
charged Wayne King on November 11, 1937, B. H. King and Harold
Ferguson on November 22, 1937, and refused to reinstate them be-
cause of their membership in and their affiliation with the Union
and refused to bargain collectively on October 6, 1937, and there-
8 N. L. It. B., No. 22.
187
188 NATIONAL LABOR RELATIONS BOARD
after with the Union as the representative of the employees within
an appropriate unit. A copy of the complaint, accompanied by a
notice of hearing, was duly served upon the respondents and the
Union. On April 25, 1938, the respondents filed their answers in
which they denied the material allegations of the complaint.
Pursuant to notice, a hearing was held on April 25, 1938, at Terre
Haute, Indiana, before Horace A. Ruckel, the Trial Examiner duly
designated by the Board. At the hearing the Board and the respond-
ents were represented by counsel, and the Union by its representative.
Counsel for the Board and the respondent and the representative for
the Union entered into a stipulation. During the hearing motions
to withdraw their answers, conditioned upon the acceptance by the
Board of the stipulation, were duly filed and served upon the Board
and the Union by the respondents. No objections having been made,
the Trial Examiner granted the motions. The. ruling of the Trial
Examiner is hereby affirmed. Thereupon new answers were filed on
behalf of the respondents in which the respondents admitted all the
material allegations of the complaint, but denied that such acts con-
stituted unfair labor practices, also denying that the Huntington
respondent controlled the operations of the Terre Haute respondent,
but admitting that C. F. Edwards controlled the policies of each.
Counsel for the Board filed the following stipulation, agreed to by
the respondents and the Union.
It is hereby stipulated and agreed by and between the Specialty
Mattress Company of Huntington, West Virginia (hereinafter
called the Huntington Respondent), The Terre Haute National
Mattress Company, Inc. (hereinafter referred to as the Terre
Haute Respondent), by Paul R. Shafer, Attorney at Law, 801
Sycamore Building, TerreHaute, Indiana, representing the said
Respondents herein, and by F. B. Adkins, Secretary of the two
above named Respondents, and the Textile Workers Local No.
169 by Jake Gerson, International Representative and Otho
Brown, organizer, respectively representing the said Local No.
169, and Colonel Sawyer, Attorney for the Eleventh Region of
the National Labor Relations Board as follows:-
1. The Huntington Respondent is now and has for a number
of years been a West Virginia Corporation with its principal
office in the City of Huntington, West Virginia, and its one and
only plant and principal place of business being located in
Saginaw, Michigan, and for a number of years has been engaged
at its said Saginaw, Michigan, plant in the manufacture, sale and
distribution of mattresses, box springs and studio couches. That
the Terre Haute Respondent is an Indiana Corporation, incorpo-
rated November 12, 1929, and has since said -date been engaged
DECISIONS AND ORDERS 189
in the place of business in Terre Haute and in the manufacture,
sale and distribution of mattresses, box springs and studio
couches.
That said C. F. Edwards of Huntington, West Virginia is the
principal stockholder in each of the above named corporations
and is the President of each of the above named corporations.
That the said C. F. Edwards is also the principal stockholder
and the President of numerous other mattress factories, most of
them going under the name of National Mattress Companies and
located in the States of Ohio, Illinois, Michigan, New York,
Pennsylvania. That the said C. F. Edwards, as President of each
of these corporations receives reports from each of them in the
office of the Specialty Mattress Company at Huntington, West
Virginia, and from his said office and as President of each of the
various corporations in each instance, controls the general policies
of said corporations. That the said C. F. Edwards as President
of The Terre Haute National Mattress Company, receives re-
ports periodically therefrom, and controls and directs not only
the general policies, but also labor policies of the said Terre
Haute National Mattress Company.
2. That the Terre Haute Respondent purchased ninety-five
per cent (950/0) of all raw material used during the past year in
the manufacture and assembling of mattresses, box springs and
studio couches from outside the State of Indiana. That the cost
of the total raw materials used by the Respondent during the last
year was approximately $100,000.00. The greater portion of
the cotton piece goods are purchased and shipped from manu-
facturing points in the New England States, while the cotton,
cotton linters and other cotton products are purchased and
shipped from the Southern States. That the raw materials
used by the Respondent consist of cotton, cotton linters, cotton
waste materials or picker, cotton piece goods, innerspring unit
assemblies, kapok, etc.
3. Approximately forty percent (40%) of the manufactured
articles are shipped to points in Kentucky, Illinois and Tennessee
and approximately sixty per cent (60%) of the manufactured
articles 'of the Terre Haute Respondent is delivered to dealers
by the Respondent's trucks, while approximately thirty per cent
(30%) is shipped by way of truck lines and approximately ten
percent (10%) by rail. Sales are made by salesmen selling
directly to customers, such as retail furniture stores and dealers,
said salesmen personally contacting virtually all customers once
a month. No advertising medium is used by the Terre Haute
Respondent, with the exception of circular letters.
190 NATIONAL LABOR RELATIONS BOARD
4. The gross sales of the Terre Haute Respondent' for the year
1937 was approximately $165,000.00.
It is stipulated and agreed by all the parties hereto that none
of the parties to this stipulation are to be precluded from prov-
ing or introducing evidence as to other or additional facts con-
cerning any and all matters relating to commerce hereinabove
stipulated.
It is further stipulated and agreed by all the parties hereto that
for the purpose of this proceeding, the Terre Haute Respondent
admits that it is engaged in interstate commerce.
It is further stipulated by all the parties hereto that the follow-
ing facts may be taken as proven in regard to the discharge of
Harold Ferguson and Wayne King as set out in the complaint
herein. That Harold Ferguson left the employ of the company
on the date set out in the complaint herein, to wit : November 22,
1937, and immediately thereafter leased a filling station in the
City of Terre Haute and has continuously ever since been en-
gaged in the business of selling gasoline and oils and by reason of
his said employment has not suffered any loss of pay because of
his ceasing to be employed by the Terre Haute Respondent. That
the said Harold Ferguson makes no claim and is not desirous of
being reinstated by the Terre Haute Respondent, and has received
substantially equivalent employment.
That the said Wayne King was laid off by the Terre Haute
Respondent on- November 11, 1937. That there has been no
other employee engaged by the company to do the work of the
said Wayne King for the reason that at the time of the said
lay-off, the job which the said Wayne King did was abolished,
and that since said date there has been no new employee engaged
by the company at any other work which the said Wayne King is
capable of doing, and that because of said facts, there is no back
pay due and owing to said Wayne King from the Terre Haute
Respondent at this time.
If approved by the National Labor Relations Board, the Re-
spondents, the complaining Union herein and the Attorney for
the Eleventh Region above named, consent upon the pleadings
to the making of finding and entry of an order thereupon as
hereinafter set out.
It is further stipulated and agreed by all the parties hereto,
subject to the approval of the National Labor Relations Board
may enter its cease and desist order in the above entitled case in
the following form :
i.
DECISIONS AND ORDERS
1. That the Terre Haute Respondent shall :
191
I. Cease and desist from refusing to bargain collectively
with the Textile Workers Local No. 169 as the exclusive
representative of all their employees, exclusive of super-
visory and clerical employees.
2. Cease and desist from interfering with, restraining or
coercing its employees in the exercise of their rights to
form, join or assist labor organizations of their own
choosing, and in particular, the Textile Workers Local
No. 169, to bargain collectively and to engage in other
concerted activities with their employees at their Terre
Haute plant.
3. Cease and desist from discharging, or laying off, or
in any other manner penalizing its employees for the
reason that such employees have joined or assisted the
Textile Workers Local No. 169, or any other labor or-
ganization of its employees, or from in any manner
discriminating in regard to hire or tenure of employ-
ment of any of its employees, in order to encourage
or discourage membership of A heir employees in, or
their affiliation with, any labor organization of their
employees.
H. Take the following affirmative action in order to effectuate
the policies of the National Labor Relations Act :
1. (a) Upon request, bargain collectively with the Textile
Workers Local No. 169, as the exclusive representa-
tive of its employees at its Terre Haute plant, ex-
clusive of supervisory and clerical employees, in
respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and if
an understanding is reached on any such matters,
embody such understanding in a signed agreement
for a definite term, to be agreed upon, if requested
to do so by said Local No. 169.
(b) Offer to Wayne King and B. H. King immediately
their full reinstatement to employment in their
former positions without prejudice to their former
seniority, rights or privileges.
(c) Make whole the said B. H. King for any losses of
pay he may have suffered by reason of the Re-
spondent's discriminatory acts, by paying to him
the sum of $38.00, this being calculated by deduct-
ing $66.00 earned by King from $104.00, money
due him from Respondent,
192 NATIONAL LABOR RELATIONS BOARD
(d) Cease and desist from in any manner discouraging
the membership of its employees in, or their affilia-
tion with any labor organization of its employees
and from in any manner discriminating in regard
to hire, tenure of employment, or any term or con-
dition of employment of their employees because
of their membership in, or their affiliation with the
Textile Workers Local No. 169.
(e) Within five days from the receipt of notice that the
National Labor Relations Board has accepted this
stipulation, post in two conspicuous places in the
Terre Haute plant, notices stating :
(1) That the Terre Haute Respondent will
cease and desist in the manner aforesaid ;
(2) That the Respondent's employees are free
to join in or assist any labor organization
for the purposes of collective bargaining
with the Respondent;
(3) That the Respondent will not discriminate
against members of any labor organization
of its employees, or any person assisting
such organizations by reason of such mein-
bership or assistance.
(4) That such notices shall remain posted for
a period of at least thirty consecutive days
from date of posting.
(f) File with the Regional Director of the Eleventh
Region within ten days from the date of acceptance
of this stipulation by the National Labor Relations
Board, a report in writing, setting forth in detail,
the manner and form in which the Respondents have
complied with the foregoing requirements.
All parties hereto expressly consent to the entry by the appro-,
priate Circuit Court of Appeals, of an enforcement order, em-
bodying the terms of the Board's order to be entered herein by
consent, pursuant to-the terms of this stipulation.
The Board hereby approves the above stipulation.
By order of the Board dated May 4, 1937, the proceeding was trans-
ferred and continued before the Board in accordance with Article II,
Section 37,1 of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, for action pursuant to Article II, Section
38, of said Rules and Regulations.
Upon the stipulation above, the pleadings and the entire record in
the case, the Board makes- the following :
DECISIONS AND ORDERS
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
193
The Specialty Mattress Company of Huntington, West Virginia,
is a West Virginia corporation, with its principal office in the city of
Huntington, West Virginia, and its one and only plant and-principal
place of business located in Saginaw, Michigan. The Terre Haute
National Mattress Company, Inc., is an Indiana corporation incor-
porated November 12, 1929, and since that'date has been engaged
in business in Terre Haute. The respondents are engaged in the
manufacture, sale, and distribution of mattresses, box springs, and
studio couches. The Terre Haute respondent purchased from outside
the State of Indiana 95 per cent of all raw materials, valued at approx-
imately $100,000, used during the past year in the manufacture and-
assembling of its products. The raw materials used by the Terre
Haute respondent consist of cotton, cotton linters, cotton waste mate-
rials or picker, cotton piece goods, innerspring assemblies, kapok.
Approximately 40 per cent of the manufactured articles are shipped
to points in Kentucky, Illinois, and Tennessee.
C. F. Edwards of Huntington, West Virginia, is the principal
stockholder in each of the respondent corporations and is the presi-
dent of each. He is also principal stockholder and president of a
number of other corporations manufacturing similar products, and
as such president he receives reports from each of them, and controls
the general policies of these corporations, and the labor policies of
the Terre Haute respondent.
We find that the above-described operations of" the respondents
constitute a continuous flow of trade, traffic, and commerce among
the several States.
H. THE APPROPRIATE UNIT
We find that all of the Terre Haute respondent's employees, exclu-
sive of clerical and supervisory employees, constitute an appropriate
unit for the purposes of collective bargaining in the Terre Haute _
respondent's plant and that such a unit insures to the employees the
full benefit of their right to collective bargaining and otherwise
effectuates the policies of the Act.
III., REPRESENTATION BY THE UNION OF A MAJORITY IN THE APPROPRIATE
'UNIT
We find that on or about August 29, 1937, and at all times there-
after, the Union was the representative of the majority of the Terre
Haute respondent's employees in the appropriate bargaining unit,
and by virtue of Section 9 (a) of the Act was the exclusive repre-
194 NATIONAL LABOR RELATIONS BOARD
sentative of the employees in the unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
ORDER
On the basis of the above findings of fact and stipulation and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that The Terre Haute
National Mattress Company, Inc., and its officers, agents, successors,
and assigns shall :
1. Cease and desist :
(a) From refusing to bargain collectively with the Textile Work-
ers Local No. 169 as the exclusive representative of all its employees,
exclusive of supervisory and clerical employees;
(b) From interfering with, restraining, or coercing its employees
in the exercise of their rights to form, join, or assist labor organiza-
tions of their own choosing, and in particular, the Textile Workers
Local No. 169, to bargain collectively and to engage in other con-
certed activities with its employees at its Terre Haute plant;
(c) From- discharging, or laying off, or in any other manner
penalizing its employees for the reason that such employees have
joined or assisted the Textile Workers Local No. 169, or any other
labor organization of its employees, or from in any manner discrimi-
nating in regard to hire and tenure of employment of any of its
employees, in order to encourage or discourage membership of their
employees in, or their affiliation with, any labor organization of its
employees.
2. Take the following affirmative action in order to effectuate the
policies of the National Labor Relations Act :
(a) Upon request, bargain collectively with the Textile Workers
Local No. 169, as the exclusive representative of its employees at its
Terre Haute plant, exclusive of supervisory and clerical employees,
in respect to rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is reached on
any such matters, embody such understanding in a signed agree-
ment for a definite term, to be agreed upon, if requested to do so by
said Local No. 169;
(b) Offer to Wayne King and B. H. King immediately their full
reinstatement to employment in their former positions without preju-
dice to their former seniority, rights or privileges;
(c) Make whole the said B. H. King for any losses of pay he may
have suffered by reason of the respondent's discriminatory acts, by
paying to him the sum of $38, this being calculated by deducting $66
earned by King from $104, money due him from respondent;
DECISIONS AND ORDERS 195
(d) Within five (5) days from the receipt of notice that the National
Labor Relations Board has accepted this stipulation, post in two con-
spicuous places in the Terre Haute plant, notices stating :
(1) That the Terre Haute respondent will cease and desist in
the manner aforesaid;
(2) That the respondent's employees are free to join in or assist
any labor organization for the purposes of collective bargaining
with the respondent;
(3) That the respondent will not discriminate against members
of any labor organization of its employees, or any person assisting
such organizations by reason of such membership or assistance;
(4) That such notices shall remain posted for a period of at least
thirty consecutive days from date of posting;
(e) File with the Regional Director of the Eleventh Region within,
ten (10) days from the date of acceptance of this stipulation by the
National Labor Relations Board, a report in writing, setting forth in
detail the manner and form in which the respondent has complied
with the foregoing requirements.
It is further ordered that the complaint be, and it hereby is, dis-
missed without prejudice in so far as it alleges that the respondent
has engaged in unfair labor practices by its discharge of Harold
Ferguson on November 22, 1937.
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