Simmons Co.

National Labor Relations Board - Board Decisions

Feb 11, 1946

65 N.L.R.B. 984 (N.L.R.B. 1946)

In the Matter of SIMMONS COMPANY and FOREMAN'S ASSOCIATION OF
AMERICA, CHAPTER #54
Case No. 2-R-5626.-Decided February 11, 1946
Mr. Raymond E. Hackett, of Stamford, Conn., for the Company.
Mr. W. Allen Nelson, of Detroit, Mich., and Mr. Peter Willig, of
Newark, N. J., for the Union. ,
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Foreman's Association of America.
Chapter #54, herein called the Union, alleging that a question af-
fecting commerce had arisen concerning the representation of em-
ployees of Simmons Company, Elizabeth, New Jersey, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Robert A. Levett, Trial
Examiner. The hearing was held at Elizabeth, New Jersey, on July
31 and August 1, 1945. The Company and the Union appeared and
participated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded opportunity to file briefs with the Board.
At the hearing, the Company moved to dismiss the petition on the
grounds that, under the definitions contained in the Act, the general
foremen, foremen, and foreladies involved in this proceeding are
"employers" rather than "employees", and the unit sought is ifiap-
propriate. The Trial Examiner referred this motion to the Board.
For reasons stated hereinafter, the motion is hereby denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Simmons Coinpany, a Delaware corporation having its principal
office in New York City, is engaged in manufacturing bedding and
65 N. L. R. B., No. 174.
984
SIMMONS COMPANY 985
furniture I at a number of plants throughout the United States, in-
cluding a plant at Elizabeth, New Jersey, which is involved in this
proceeding. Annually the Company purchases more than $1,000,-
000 worth of raw materials for use in the manufacturing operations
of the Elizabeth plant hand fabricates in excess of $1,000,000 worth
of finished products. Approximately 90 percent of the raw materials
is shipped into the State of New Jersey and the same percentage of
the finished products is shipped out of the State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Foreman's Association of America, Chapter #54, unaffiliated, is a
labor organization admitting supervisory employees of the Company
into membership.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has declined to recognize the Union as the collective
bargaining representative of any of its supervisory employees on the
ground that its supervisors are not employees within the meaning of
the Act.
The status of foremen under the Act has been considered in a
number of Board and court decisions. Both the Board 2 and the
courts' have concurred in holding that foremen have a dual aspect
under the definitions of "employer" and "employee" contained in the
Act. When a foreman acts in the interest of his employer, he is an
"employer," but when he acts in his own interest, as when he seeks
to better the terms and conditions of his employment, he is an "em-
ployee." There is no inconsistency in recognizing such duality of
status. In accord with previous determinations involving similar
employees, we find that the general foremen, foremen, and foreladies
involved in this proceeding are employees within the meaning of
Section 2 (3) of the Act.4
A statement of a Board agent, introduced into evidence at the hear
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.'
' During the war years the Company also engaged in the manufacture of war materials.
Matter of Soss Manufacturing Company, 56 N. L. R. B. 348; Matter of Packard Motor
Car Company, 61 N, L R. B 4, and 64 N. L. R . B. 1212 ; Matter of L. A. Young Spring R
Wire Corporation , 65 N. L. R. B 298; Matter of The B. F. Goodrich Company, 65 N. L R B.
294
3N. L R. B. v. Armour and Co, 17 L R. R. 372 (C. C A. 10, Nov. 5, 1945 ) ; Jones cC
Laughlin Steel Corporation v. N. L. R. B, 146 F. (2d) 833 (C. C. X. 5) ; N. L. R. B. v.
Skinner f Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8).
4 Footnotes 2 and 3, supra.
6 The Field Examiner reported that the Union submitted dues receipts for 49 employees
and that there are between 43 and 50 employees in the appropriate unit.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We. find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE IJ IT
The Union seeks a unit of all general foremen, foremen, and fore-
ladies, including general inspection foremen and inspection foremen,
in the production and maintenance departments of the Elizabeth plant.
The Company contends generally that the unit sought is inappropriate
and will not effectuate the policies of the Act. Apparently, the Com-
pany's objection to the proposed unit is not based primarily on im-
proper grouping but on the belief that no possible unit of these super-
visors would be appropriate.
In the recent Young case,6 the Board treated in detail the various
arguments addressed to the inappropriateness of any unit of super-
visors. The majority of the Board there concluded that foremen are
employees within the meaning of Section 2 (3) of the Act and that
as employees they are entitled to be placed iri some appropriate bar-
gaining unit under Section 9 (b). The majority also pointed out that
the purpose of the Act was to encourage the practice of collective
bargaining as a means of settling labor disputes and that this purpose
is as applicable to labor controversies involving foremen as to those
pertaining to rank and file.employees. Accordingly, we find no merit
in the Company's argument that it would not effectuate the policies
of the Act to find a unit of its foremen appropriate for collective bar-
gaining purposes.?
The supervisory hierarchy of the Company at the Elizabeth plant
insofar as it is relevant to this proceeding consists of the following :
1 Division Manager
1 Plant Manager
1 Plant Superintendent
1 Assistant Plant Superintendent and 1 Chief Inspector
7 Department Superintendents and 1 Assistant Chief Inspector
$ General Foremen and General Inspection Foremen
34 Foremen, Foreladies and Inspection Foremen
The general foreman is a floor supervisor on a shift supervising the
work of between four and six foremen; the general inspection foreman
is on the same level of authority as the general foreman. A foreman,
forelady, or inspection foreman, all of whom are on the same super-
visory level, is in immediate charge of a group of rank and file em-
ployees. Although the general foreman functions in a broader sphere
than the foreman, it is conceded that the authority and jurisdiction of
6 Matter of L. A. Young Spring & Wire Corporation, supra.
* See Matter of The B . F. Goodrich Company , supra.
SIMMONS COMPANY 987
general foreman and foreman are essentially identical. In view of
these facts, we are of the opinion that the two lowest levels of super-
vision, comprising general foremen, general inspection foremen, fore-
men, foreladies, and inspection foremen, may together constitute an
appropriate unit.
Some question exists as to whether general foremen Sikora, Hurring,
Nielson, Gilbert, and Tilquist are actually on a higher level of super-
vision. The Company asserts that, despite their classification on its
books as general foremen, these men are assistants to department su-
perintendents, who are excluded from the unit; the Union contends
that there are no distinctions among the general foremen. Two of the
supervisors in question, Sikora and Hurring, regularly substitute for
their respective department superintendents for substantial periods of
time. During such periods of substitution, they have all the authority
of superintendents, including authority over other general foremen
and foremen. The other 3 general foremen in dispute, Nielson, Gil-
bert, and Tilquist, are highly skilled craftsmen in charge of specialized
sub-departments within the maintenance department. Each of these
3 men supervises about 13 mechanics and helpers engaged in various
forms of maintenance work, but none of them exercises any supervision
over other supervisors except leadmen, who are included in the rank
and file production and maintenance unit. Because of the special skills
required in their sub-departments, Nielson, Gilbert, and Tilquist have
greater authority and discretion with respect to the handling of their
subordinates than the ordinary general foremen. However, the re-
sponsibility of each is limited to his sub-department; none regularly
substitutes for the head of the maintenance department. Under the
circumstances, we shall exclude general foremen Sikora and Hurring,
whose interests appear to be more closely linked to those of the depart-
ment superintendents, who are excluded from the unit, than to those of
other general foremen. We shall, however, include general foremen
Nielson, Gilbert, and Tilquist, whose predominant interests -'appear
to lie with other supervisors in the unit.
The Company has not contended that the Union is not independent
of the labor organizations which represent the rank and file employ-
ees.8 As in previous cases involving the Foreman's Association of,
America and its locals, we find that the Union is an independent, un-
affiliated labor organization organized for the exclusive purpose of
representing supervisory employees.9
s An independent union, Simmons Elizabeth Employees Union, Inc., represents the Com-
pany's production and maintenance employees, except for teamsters and machinists who
are represented by American Federation of Labor unions
9 Matter of L. A Young Spring d Wire Corporation, supra: Matter of The B. F. Goodraeh
Company, supra ; Matter of Packard Motor Car Company, supra.
J
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all general foremen,10 general inspection foremen, fore-
men, inspection foremen, and foreladies in the production and main-
tenance departments of the Company's Elizabeth, New Jersey, plant,
excluding assistants to department superintendents 11 and all other
supervisors above the rank of general foremen, constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
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 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Simmons Com-
pany, Elizabeth, New Jersey, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from the
date of this Direction, under the direction and supervision of the
Regional Director for the Second Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
said pay-roll period because they were ill or on vacation or tempo-
rarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether or not they desire to be represented by
Foreman's Association of America, Chapter #54, for the purposes
of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
"This Includes Nielson, Gilbert , and Tilquist
It Excluded as within this category are Sikora and Hurring