Cook Paint and Varnish Co.

National Labor Relations Board - Board Decisions

Jun 14, 1960

127 N.L.R.B. 1098 (N.L.R.B. 1960)

_1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit would consist solely of the permanent employees.
However, we are administratively satisfied that the Petitioner does
not have an adequate showing of interest in that unit. Therefore, we
shall dismiss the petition.
,[The Board dismissed the petition.]
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Order.
Cook Paint and Varnish Company ' and District No. 50, United
Mine Workers of America , Petitioner. Case No. 23-RC-1490.
June 14, 1960
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before C. L. Stephen, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial 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 [Members Rodgers, Jenkins, and Fanning].
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 labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A 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.
The Employer and the Intervenor, Brotherhood of Painters, Deco-
rators and Paperhangers of America, Paint Makers Local Union No.
1523, AFL-CIO,2 contend that the existing collective-bargaining con-
tract between the Intervenor and the Employer effective June 1, 1957,
up to and including May 31, 1960, constitutes a bar to these
proceedings.
This contention is denied. A contract having a fixed term, as in
this instance 3 years, operates as a bar only for as much of its term
as does not exceed 2 years.' As the petition was filed subsequent to
the end of this 2-year period, we find that the petition was timely filed
and that the contract does not constitute a bar to these proceedings.
'The name of the Employer appears as amended at the hearing.
Intervenor was permitted to intervene on the basis of its contractual interest.
s Paci fic Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990, 992.
127 NLRB No. 150.
COOK PAINT AND VARNISH COMPANY 1099
4. The Petitioner seeks to represent a unit of the Employer's pro-
duction and maintenance employees, laboratory employees, porters
and/or janitors at the Employer's Houston, Texas, plant, excluding
clerical and managerial employees, foremen, chemists, watchmen,
truckdrivers, guards, and all supervisors as defined in the Act.
The Employer, who is engaged in the manufacture and sale of paints
and allied products, and the Intervenor contend that the only appro-
priate unit is the contractual unit set forth in the current collective-
bargaining contract between the Employer and the Intervenor. The
contract provides that the unit shall consist of all o^ the employees
at the Employer's Houston, Texas, plant, except clerical and man-
agerial employees, foremen, watchmen, research chemists, control tech-
nicians, and maintenance employees, porters and/or janitors, guards,
and all supervisors as defined in the Act.
The parties have stipulated that the chemists shall be excluded from
the unit. The Employer and the Intervenor, however, urge the ex-
clusion of the laboratory employees as professionals. They also urge
the exclusion of the maintenance employees in accordance with the
provisions of their contract. The Petitioner, however, contends that
the laboratory employees are not professionals and therefore should
be included in the unit. It also contends that the maintenance em-
ployees should be included in the unit.
The control technicians are under the supervision of the chief
chemist. The duties of all of the control technicians are substantially
similar with varying degrees of difficulty. Their work consists of
testing the quality of the paint with respect to the color, consistency,
and brushing and spraying qualities. They use various instruments
to test the quality of the paint. However, no formal education is
required, and the record shows that one man with only a few weeks'
training is considered a control technician. The duties which they
perform are repetitive and routine.
The laboratory assistant also works under the supervision of the
chief chemist. The record shows that any employee with a fair amount
of skill could become a laboratory assistant in about 6 months. No
fixed amount of education is required to qualify as a laboratory as-
sistant. The tests which this employee performs are described by a
witness for the employer as being repetitive and routine.
The laboratory mixer is also under the supervision of the chief
chemist. His duties involve the loading and unloading of the labora-
tory-size mill. No formal education or special skill is required to per-
form the work.
The laboratory formulator must have at least 2 years of university
training. The tests which he performs, for the most part, require the
exercise of independent judgment and the application of the scientific
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge that he gained in his college training, especially in the
application of analytical chemistry.
On the basis of the entire record we find that all of the employees
named above, except the laboratory formulator, are neither profes-
sional nor technical, and we shall include them in the unit. However,
as the skills and educational requirements of the job of the laboratory
formulator indicate that he is either a technical or professional em-
ployee,4 and as the Employer and the Intervenor object to the inclusion
of technical employees, we shall exclude the laboratory formulator
from the unit.
As the maintenance employees, control technicians, the laboratory
assistants, the laboratory mixers, and the porters and/or janitors have
been unrepresented in the past, we shall ascertain by a self-determina-
tion election whether they desire to be included in the existing unit,
before including them therein.' Accordingly, as the representative
status of the Intervenor, the present bargaining representative in the
historical unit, is also in issue, we shall direct separate elections in the
two voting groups of employees at the Employer's Houston, Texas,
plant, described below, excluding from each voting group office clerical
employees, truckdrivers,6 guards, watchmen, chemists, laboratory
formulators, technical employees, foremen, and all other supervisors
as defined in the Act :
Group 1.-All production employees, including warehouse em-
ployees, shipping and/or receiving clerks, but excluding employees
in voting group 2.
Group 2.-All maintenance employees, control technicians, labora-
tory assistants, laboratory mixers, porters and/or janitors, but ex-
cluding all employees in voting group 1.
If a majority of the employees in voting group (1), the historical
unit, vote for the Intervenor, or if a majority of the employees in
voting group (1) vote for the Petitioner and a majority of employees
in voting group (2) reject the Petitioner, we find that the employees
in voting group (1) constitute a separate appropriate unit. If a
majority of employees in voting group (1) vote for the Intervenor,
and a majority of the employees in voting group (2) vote for the
Petitioner, we find that the employees in each voting group constitute
separate appropriate units. If however, a majority of the employees
in voting group (1) vote for the Petitioner and if in such circum-
stance a majority of the employees in voting group (2) also vote for
the Petitioner, we find that employees in both voting groups together
constitute a single appropriate unit. If a majority of the employees
in voting group (1) vote for no union the employees in both voting
4 Litton Industries of Maryland, Incorporated , 125 NLRB 722.
5 The Zia Company, 108 NLRB 1134, 1136.
e Inasmuch as the record reveals that the truckdrivers are represented by another labor
organization , they are excluded from the unit.
MURFREESBORO PURE MILK CO. 1101
groups shall remain unrepresented regardless of the vote in voting
group (2). The Regional Director is instructed to issue a certifica-
tion or certifications as decided by the results of the elections.'
[Text of Direction of Elections omitted from publication.]
MEMBER FANNING, dissenting in part and concurring in part:
I agree with the majority decision as to the unit determination
found. However, I disagree with their failure to provide for the
pooling of the ballots in the event that the presently represented
employees reject the Intervenor. Their vote in such circumstances
makes the overall unit appropriate, and the Petitioner would be en-
titled to certification if it obtains a majority of all the votes in that
unit.
As I pointed out in Waikiki Biltmore, Inc., 127 NLRB 82, the
only way to insure that the election in such overall appropriate unit
will be determined by the majority vote is to provide for the pooling
of the votes, in the event the currently represented employees (in
voting group 1) vote against the Intervenor.
I therefore dissent from the majority's failure to provide for
pooling.
7 Waikiki Biltmore, Inc., 127 NLRB 82.
Herbert D. Young, d/b/a Murfreesboro Pure Milk Co. and
Teamsters, Chauffeurs, Helpers & Taxicab Drivers Local
Union No. 327, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Ind. and Old Hickory Local No. 150, Retail , Wholesale
and Department Store Union, AFL-CIO, Party to the Con-
tract. Case No. 26-CA-882 (formerly 10-CA-4142). June 15,
1960
DECISION AND ORDER
On November 25, 1959, Trial Examiner Thomas N. Kessel 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.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members. Rodgers,
Jenkins, and Fanning].
127 NLRB No. 140.