De Soto Paint & Varnish Co.

National Labor Relations Board - Board Decisions

Sep 19, 1942

44 N.L.R.B. 217 (N.L.R.B. 1942)

In the Matter of DE SOTO PAINT & VARNISH COMPANY and NATIONAL
COUNCIL OF GAS, COKE AND CHEMICAL WORKERS
Case No. R-4202.Decided September 19, 19V
Jurisdiction : paint and varnish manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord petitioner recognition ; prior certification held no bar when cer-
tified representative apparently was unable. to function as the certified repre-
sentative of the employees, in, that its members had voted unanimously to join
petitioner ; election necessary.
Unit Appropriate for Collective Bargaining : all employees engaged in the pro-
duction, handling, shipping, and maintenance processes of the Company, exclud-
ing foremen, working foremen, office clerks, timekeepers, chemists (including
the chief chemist and his assistants), watchmen, the printer, the engineer, and
the shipping clerk ; stipulation as to.
Mr. James A. Mazzula, of Chicago, Ill., for the Company.
Mr. W. I. Smith, of Memphis, Tenn., and Mr. C. W. Danenburg, of
Greensboro, N. C., for the National Council.
Messrs. William E. Mitch and E. K. Collins, both of Birmingham,
Ala., for the U. M. W.
Mr. H. J. Burbach, of Memphis, Tenn., for the A.. F. of L.
Mr. A. Summer Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by National Council of Gas,
Coke, and Chemical Workers, herein called the National Council,
alleging that a question affecting commerce had arisen concerning the
representation of employees of De Soto Paint & Varnish Company,
Memphis, Tennessee, herein called the. Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Charles A. Kyle, Trial Examiner. Said hearing.was held at
Memphis, Tennessee, on August 25, 1942. The Company, the National
Council, District 50, United Mine Workers of America, herein called
the U. M. W., and Upholsterers International Union of America, affili-
44 N L R. B, No. 38.
217
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ated with the American Federation of Labor, herein called the -A. F.
of L., appeared , participated , and were afforded full opportunity, to be
heard, to examine , and cross -examine witnesses , and to introduce evi-
dence bearing on the issues . The Trial Examiner 's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS of FACT
I. THE, BUSINESS OF THE CODIPANY
De Soto Paint and Varnish Company is a Tennessee corporation, a
subsidiary of Sears Roebuck & Company of Chicago, Illinois, and has
its principal place of business and plant, the only one involved in this
proceeding, at Memphis, Tennessee. where the Company is engaged
in the manufacture, sale, and distribution of paint and varnish prod-
ucts. During the 6 months immediately prior to January 16, 1942,
the Company purchased from sources outside the State of Tennessee
and shipped to its plant at Memphis all its raw materials amounting
in value to approximately $500,000. During the same period, the
Company sold finished products of the approximate value of $600,000,
which products were shipped from the Memphis plant to points out-
side the State of Tennessee. -
The Company admits that it is engaged in commerce within the
nieanmlg of the Act.
II. TILE; ORG.1NIZATIONS INVOLVED
\atunial Council of Gas. Coke and Chemical Workers is an un-
affiliated labor organization, admitting to membership employees of
the Company.
District 50, United Mine Workers of America is a labor organiza-
tion, admitting to membership employees of the Company.
Upholsterers International Union of America is a labor organiza-
tion, affiliated with the American Federation of Labor, admitting to
membership employees of the Company.
III. THE QUESTION CONCERNI NG REPRESENTATION
Shortly before the filing of the present petition , the National Coun-
cil requested that the Company bargain collectively. The Company
declined to bargain with the National Council until certified by the
Board.
- The U. M. W. contends that the- present proceeding is barred by
reason of the fact that less than 4 months prior to the filing of the
DE SOTO PAINT & VARNISH COMPANY •219
,present petition, the U. M. W., in a previous case 1 involving the Com-
pany, was certified by 'the Board as the • exclusive ,representative of
the employees here involved. i
It appears that at the time of the prior election and until July 7,
1942, the U. M. W. had been represented in the plant by a local union
.which, following the Board's certification, attempted through a nego-
tiating`committee to reach-an agreelitei t'^witli the Company. In fur-
therance of this purpose, five or six conferences with the Company
were-held prior to July 7, 1942, without, however, any agreement
being reached on the substantial issues between the parties.
On July 7, 1942, at a meeting which had been scheduled as a meeting
between the Company and the U. M. W., it appeared, from published
iiewspaper reports of the preceding clay, that one Smith, a member of
,the negotiating committee, had annou'neecl his resignation from the
U. M. W. and his affiliation with the National Council. As the result
of this news, the Company's representative declined to negotiate fur-
ther until the question'of the con-lnlittee's right of representation had
been determined by the Board.
The_outconie of this meeting was reported at, a, regular, ineeting of
the local held the same evening and attended by about 30 members, on
which occasion it was voted unanimously by those present to sever
relations with the U. M. W. and to, seek affiliation with the National
Council. At the same time, cards of affiliation with the National Cohn-
cil were signed by members present at the meeting, who also authorized
'Smith to draw up a formal resolution 2 for all the members to sign.
The resolution was drawn up by Smith who presented it at a subse-
quent meeting on July 23, 1942, where it was unanimously approved
and signed by 34'out of the then total of 35 employees of the Company
eligible for membership in'the local.
Subsequent to the signing of the resolution, Smith sent a copy to
the Company, together with a letter, dated July 27, 1942, requesting
recognition of the National Council and a resumption of negotiations.
In addition thereto, a negotiating committee,of 'the-National Council,
which committee was composed of substantially the same members as
the, committee formerly representing the U. M. W., attempted to
'Matter of De Soto Paint and Varnish Company and District 50 United Mine Workers
of America , 39 N L R 1:727 Certification issued April 24, 1942, certifying District 50,
United Mine Woikers of America as the result of an election in which District 50 obtained
34 out of a total of 00 valid votes cast in the election 40 N. L. It B. 834
'The resolution contained in addition to a severance of affiliation and a direction to
affiliate with and an acceptance of inembeiship in the National Council , a saving clause
to.the effect that "this local union and all its membership shall continue in existence and
operation in accordance with its iules and by -laws heietofore adopted excepting only such
changes as may be necessary in connection with the foregoing provisions of this resolution
and this Local shall ietain and continue all of its assets and liabilities and all rights
,,ested in it b3 contract or law."
220 DECISIONS ' OF -NATIONAL LABOR -RELATIONS BOARD
reopen negotiations with the Company. . The Company, however,
declined to bargain pending a clarification of the status of the National
Council by a certification from the Board. '
Since it appears that all or practically all the members in the local
formerly affiliated with the U. M. W. have withdrawn their affiliation
from the U. M. W., which is apparently unable to function, as the certi-
fied representative- of the employees of the Company," together with
the fact that not only do three labor organizations now claim the right
of representation but'the Company has refused to recognize any' repre-
sentative -unless it has been certified- by• the Board, we find that the
prior certification of the U. M.• W. is 'not a bar to the present
proceeding.4 • '
A statement prepared by the Regional Director and introduced in
evidence at the hearing indicates that the National Council and the
A. F. of L. each represents a substantial' number of-employees in the
unit hereinafter found to be 'appropriate.' - • ' - t
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 UNIT
In accordance ' with a stipulation of the parties we find that all
employees'of the Company engaged in the production, handling, ship-
ping, and maintenance processes of the Company, excluding foremen,
working foremen, office clerks, timekeepers, chemists (including the
chief chemist and his assistants), watchmen, the printer, the engineer,
and the shipping clerk, constitute a unit ° appropriate for the purposes
of collective bargaining within the meaning of Section ,9 (b) of the
Act. '
8 The U. M w offered, aside from the prior certification , no evidence that it now repre-
sents any employees of the Company.
4 See Matter of Godchaux Sugars, Inc . and United Sugar Workers, Local 111§, affiliated
with Congress of Industrial Organizations , 136, N. L. R: B. 926 ;,Automatic Products Com-
pany and International Union, United Automobtile,Workers of America , Local 736 (AFL),
'40 N L. R. B. 941.
The Regional Director reported that the National Council had 'submitted the resolution
already noted above, dated July 23, 1942, and containing 34 apparently genuine signatures,
of which 32 ' are the names of persons whose names appear on the' Company 's pay-roll
for the week ending July 16, 1942 ( identical 'with the pay roll of July 23 , 1942, except
for the fact that the latter listed only 33 persons ). The Regional Director further reported
that the A . F of L. had submitted 10 authorization cards bearing apparently genuine
,original signatures. 8 of which cards bore, the names of employees whose, names appear
on the pay loll of July 16 . 1942 that the A. F of L. called attention to the fact that
in the , election held on April 8, 1942, It received 26 out of 60 valid votes cast ; and that
the U. M. W which also asserted an interest in the matter , did not present any evidence
In support of its claim.
6The unit is Identical with that - found ' appropriate in the previous decision already
noted above.
DE SOTO PAINT & VARNISH COMPANY 221
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 the
employees in the appropriate unit who were employed during the pay-
roll'period immediately preceding the date of the Direction.of Electldii
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 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended , it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with De Soto Paint and
Varnish Company, Memphis ; Tennessee , an election by secret ballot'
shall be conducted as early as possible but not later than thirty (30)
days from the date of this Direction , under the direction and super-
vision of the Regional Director for the Fifteenth Region, acting in this
matter as agent for the National Labor Relations Board and subject
to Article III, Section 9, 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 any such employees who did not work
during said pay-roll period because they were ill or on vacation or in
the active military service or training of the United States, or tempo-
rarily laid off, but excluding any who have since quit or been dis-
charged for cause, to determine whether they desire to be represented
by National Council of Gas, Coke and Chemical Workers , or by Dis-
trict-50, United Mine Workers of America, or by Upholsterers Inter-
national Union of A inerica , affiliated v,-,ith the American Federation o
Labor, for the purposes of collective bargaining , or by none of these
organizations. .
MR. WM. M. LEISERSON took no part in the consideration of the above
Decision and Direction of Election.