U.S. Mattress Corp.

National Labor Relations Board - Board Decisions

Feb 20, 1962

135 N.L.R.B. 1150 (N.L.R.B. 1962)

1150 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
its customers would cut down their orders and its business would
be adversely affected. We have held that such statements generate
fear of economic loss among employees about to vote on the question
of self-representation and constitute a basis for setting aside the
election results.' For these reasons, we adopt the Regional Director's
recommendations to sustain the above- discussed objections.
Accordingly, we shall order the election set aside and shall direct
that a new one be conducted.
[The Board set aside the election.]
[Text of Direction of Second Election oinitted from publication.]
4 P D Cole lfanufactai inq Company, 133 NLRI 1455
U.S. Mattress Corporation and Restyme Products Incorporated 1
and Bedding Local 140, affiliated with United Furniture Work-
ers of America , AFL-CIO, Petitioner . Case No. 22-RC-1362.
February 20, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Christopher J. Hoey,
hearing 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-
inember panel [Chairman McCulloch and Members Leedom and
Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.2
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. On September 18, 1961, the Petitioner filed a petition, naming
U.S. Mattress as the employer, which was served upon Arthur Cohen,
president and treasurer of U.S. Mattress, and vice president of
Restyme, of which his brother Murray is president. The petition re-
"The Employer',, name appears as corrected at the hearing
2 For the reasons set forth below, we find that U S Mattress Corporation, herein called
US Mattress , and Restyme Products Incorporated, herein called Restyme, constitute a
single employer for the purposes of the Act
s Teamsters , Production , Maintenance and Allied Workers Local Union No 418, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
was permitted to intervene on the basis of a contract interest
135 NLRB No. 112.
U.S. MATTRESS CORP. AND RESTYME PRODUCTS INC. 1151
quested a production and maintenance unit of 35 employees, described
the employer's establishment as a factory located in Irvington, New
Jersey, and its principal product as_mattresses. On September 27,
the Petitioner filed an amended petition adding the name of Restyme
Products to that of U.S. Mattress as the employer. In the meantime,
on September 22, Arthur Cohen, acting under authority from his
brother, who was out of the country, signed a contract on behalf of
Restyme with the Intervenor which Restyme and the Intervenor
assert as a bar. -
Restyme has been engaged since 1954 in the. manufacture of mat-
tresses, box springs, and related items, whereas U.S. Mattress, which
was'established in 1956, is primarily a seller and jobber of such prod-
ucts. The Restyme personnel is comprised of 37 production and
maintenance employees and 3 truckdrivers. U.S. Mattress, which
does no manufacturing, has only 1 maintenance man at the Irvington
operation as its selling functions are carried on primarily by 12 sales-
men who work out of a showroom maintained by U.S. Mattress in
New York City. U.S. Mattress deliveries are made in trucks marked
"U.S. Mattress Corporation" but driven by Restyme employees, and
Restyme employees receive, handle, and maintain materials shipped
to U.S. Mattress pursuant to oral contractual arrangements between
the two corporations. Although separate payroll records and tax
returns are maintained by each corporation, employees of both punch
a single timeclock. The two brothers, Arthur and Murray Cohen, and
the estate of their deceased sister own virtually all the stock of both
corporations.- The brothers are also the sole stockholders in another
corporation which owns the building in Irvington occupied by both
U.S. Mattress and Restyme', and in which they have adjoining offices
and share the same facilities including storage space.
The Petitioner asserts that it intended to designate the employees
of both corporations in its original petition, but failed to name both
through confusion as to the identity of the -employer of the employees
in question. In view of the interrelated activities of the two cor-
porations at the Irvington location, we find such confusion readily
understandable. Moreover, Arthur Cohen testified at the hearing that
when the petition was served upon him he read and noted its contents.
It is apparent from the contents of the petition that the Petitioner
intended to include' employees of both corporations in its unit request
as the petition made reference to 35 production and maintenance em-
ployees, to the establishment involved as a factory, and to its product
as mattresses. Accordingly, we find, under all the circumstances of
this case, that service of the original petition on Arthur Cohen, at a
time when he was representing both corporations in contract negotia-
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, constituted notice to both corporations,4 and, therefore, that the
Restyme contract which he signed does not constitute a bar.-'
Accordingly, we find that a question affecting commerce exists
concerning the representation,of employees of the Employer within
the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The parties are in general agreement as to unit composition, but
disagree as to scope. The Petitioner, while it indicated a willingness
to participate in separate elections, contends that the production and
maintenance employees of both corporations comprise a single ap-
propriate unit. U.S. Mattress and Restyme, as well as the Intervenor,
contend that the two corporations are separate employers for unit
purposes, and U.S. Mattress moved to dismiss the petition as to it on
the ground that it has only one employee in the categories sought.
As noted above, Arthur Cohen, who was concluding negotiations
with the Intervenor on behalf of both corporations when the original
petition was served on him, discontinued negotiations for U.S. Mat-
tress but concluded and executed a contract for Restyme. Prior to
that, each of the brothers had negotiated separately with the Inter-
venor for the corporation of which he was president, and had signed
separate contracts. The latest of these contracts, however, were vir-
tually identical. In fact, although U.S. Mattress does not employ any
production employees, the contracts of both corporations by their
terms covered the same classifications of production employees, and
provided the same wages, hours, working conditions, and employee
benefits for such employees. Moreover, both contracts had the same
3-year effective period and the same expiration date, October 31, 1961.
On the basis of the factors, set forth in paragraph 3, above, that
the two corporations have substantially the same officers and owners,
and operate on a closely interrelated basis, including the sharing of
some employee functions, equipment, and facilities, we find that they
constitute a single employer for unit purposes.6 The motion to dis-
miss as to U.S. Mattress is, therefore, hereby denied.
It is also apparent from all the facts that, although separate con-
tracts were executed, this did not result in the establishment of sepa-
rate bargaining units at the Irvington location. Rather do we find on
the basis of the identity of the terms and provisions of the separate
* See Concrete Joists & Products Co., Inc , 120 NLRB 1542 ; Esgro Inc . and Esgro Valley,
Inc., 135 NLRB No 20.
In its brief filed after the hearing, the Employer relies on The Baldwin Company, 81
NLRB 927, in support of its contention that the Restyme contract is a bar. That case
is distinguishable , however, in that the company in that case which signed the contract
in question had not previously been served with a petition indicating that the Petitioner
was seeking to represent its employees
5In view of this disposition, we find it unnecessary to pass upon the parties ' other con-
tract-bar contentions
6 See Wichita Falls Foundry & Machine Co., 132 NLRB 199
INT'L HOD CARRIERS BUILDING, ETC., LOCAL 840 1153
contracts, without regard to applicability of the provisions to the
corporation signatory thereto, that the separate instruments were
merely an accommodation to the Employer's legal structure and that
the resulting unit was an overall unit of employees of both corpora-
tions at this location. Accordingly, we find that a production and
maintenance unit coextensive with the operations of both corpora-
tions is appropriate.
We find therefore that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (c) of the Act :
All production and maintenance employees at the Employer's Irv-
ington, New Jersey, operations, including truckdrivers, but excluding
all office clerical employees, professional employees, guards, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
International Hod Carriers Building and Common Laborers
Union of America , Local 840, AFL-CIO and Charles A. Blinne,
d/b/a C. A. Blinne Construction Company. Case No. 17-CP-2.
February 20, 1962
SUPPLEMENTAL DECISION AND ORDER
On February 20, 1961, the Board (Member Fanning dissenting)
issued a Decision and Order in this case finding that Respondent
Union had engaged in unfair labor practices in violation of Section
8(b) (7) (C) of the Act.' Thereafter, on or about April 3, 1961,
Respondent Union filed with the Board a motion for reconsideration
and for dismissal of the complaint, followed by a memorandum in
support of its motion. Respondent Union also requested leave to
argue orally before the Board. Neither the Charging Party nor the
General Counsel has filed any response to the Union's motion.
The Board has considered the motion, the memorandum in support'
thereof, and the entire record in the case,' and hereby grants the
Union's motion insofar as it requests reconsideration. The request
for oral argument is denied as the record, including the motion for
reconsideration and the memorandum in support thereof, adequately
presents the issues and the positions of the parties.
1130 NLRB 587.
2'Chairman McCulloch and Member Brown have read and considered the transcript of
oral argument which preceded the issuance of the February 20 Decision and Order.
135 NLRB No. 121.
634449-62-vol. 135-74