Indianapolis Paint & Color Co.

National Labor Relations Board - Board Decisions

Jan 13, 1942

38 N.L.R.B. 185 (N.L.R.B. 1942)

In the Matter Of INDIANAPOLIS PAINT & COLOR CO. and CHEMICAL
DIVISION OF DISTRICT No. 50 UNITED MINE WORKERS OF AMERICA,
AFFILIATED WITH THE CIO
In the Matter Of INDIANAPOLIS PAINT AND COLOR Co. and COAL,
ICE, BUILDING MATERIAL DRIVERS AND HELPERS, LOCAL No. 716,
OF THE, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS, AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR
Cases Nos. R-3332 and R-3333.-Decided January 13, 1942
Jurisdiction : paint and finishing materials manufacturing industry.
Investigation and Certification of Representatives : existence of question: dispute
as to appropriate unit; refusal to accord recognition to either of two rival rep-
resentatives until one of the other is certified by the Board; election necessary.
Unit Appropriate for Collective Bargaining : single or separate units comprising:
(1) all truck drivers, warehousemen, and helpers; (2) production and mainte-
nance employees; working foremen to be included in, and chemists and the
receiving and shipping clerk to be excluded from, the unit or units found ap-
propriate; determination of, dependent upon elections.
Mr. Fae W. Patrick, of Indianapolis, Ind., for the Company.
Mr. George N. Craig, of Indianapolis, Ind., for the U. M. W. A.
Faust, Faust and Faust, by Mr. William H. Faust, Sr., of Indian-
apolis, Ind., for the Teamsters.
Mr. Robert C. Moore, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On October 11, 1941, Chemical Division of District No. 50 United
Mine Workers of America, affiliated with the CIO, also referred to
herein as the U. M. W. A., filed a petition with the Regional Director
for the Eleventh Region (Indianapolis, Indiana), alleging that a
question affecting commerce had arisen concerning the representation
of employees of Indianapolis Paint & Color Co., also referred to herein
as the Company, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor
38 N. L. R. B., No. 49.
185
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, 49 Stat . 449, herein called the Act . On October 21,
1941, Coal , Ice, Building Material Drivers and Helpers , Local No. 716,
of the International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers, affiliated with the American Federation of
Labor, also referred to herein , as,thc_Teamsters , filed a similar petition.
On November. 13, 1941, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act , and Ar-
ticle III , Sections 3 and 10 (c) (2), of National Labor Relations
Board Rules a na Regulations-Series 2, as amended, ordered an in-
vestigation and authorized the Regional Director to conduct it and to
provide for an appropriate , hearing upon due notice , and further
ordered th'a' t the two cases be consolidated.
On_ November 14, 1941, the Regional Director issued a notice of con-
solidated hearing, copies of ,which, together with copies of the peti-
tions, were duly served upon the Company, upon the U. M. W. A.,
and upon the Teamsters . Pursuant to notice a hearing was held at
Indianapolis, Indiana , on November 26, 1941, ' before Arthur R.
Donovan , the Trial Examiner duly designated by the Chief Trial
Examiner . The Conipany , "the 'U "M W. A., and the Teamsters
appeared , were represented by counsel , and participated in'the hear-
ing: ; Full opportunity to, be heard, to examine and cross -examine
witnesses , and to introduce evidence bearing upon the issues, was
afforded all parties During the course of the hearing the Trial
Examiner made rulings on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no'prejudicial errors were committed . The rulings are hereby
affirmed.
Upon the entire record in the case the Board makes the following:
FINDINGS OF FACT
I THE BUSINESS' OF THE COMPANY
Indianapolis Paint & Color Co. is an Indiana corporation with its
principal office and plant in Indianapolis, Indiana. The Company
manufactures paint and finishing materials for dealer distribution and
also jobs certain articles, such as wall paper,-glass, paints,' and a large
number of allied materials Among the many' materials used by the
Corripariy in its operations' are lead; •ziiic, titanium, oils, varnishes,
colors, lacquer materials, solvents, Blase; wall paper, and brushes. It
has hundreds of sources of supply, and an estimated' 80' 90-percent of -
its Iriateiials are obtained from sources outside the State of Indiana.
It'is estimated that purchases for manufacturing and jobbing opera-
tions`for 1941 will amount to $490,000 to $500,000. Sales during 1940
totaled $787,000 and during 1941 will amount to more than' $900,000.
Approximately 10-12 percent of the products sold by the Company
INDIANAPOLIS PAINT & COLOR CO. ,:187
are shipped out of the State of Indiana, going principally to, purchasers
located in Ohio, Illinois, Tennessee, Texas, and West Virginia.
II. THE ORGANIZATIONS INVOLVED
Chemical Division of District 50 United Mine Workers of America,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
Coal, Ice, Building l\'Iaterial Drivers and Helpers, Local- No. 716,
of the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees of
the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The U. M. W. A. contends that the Company's employees properly
constitute but a single collective bargaining unit 1 The Teamsters,
on the other hand, contends that the truck drivers, warehousemen,
and helpers employed by the Company constitute' to appropriate
bargaining unit, these employees being also within the larger unit
sought by the U M. W A.2 The Company refuses to recognize either
union prior to a determination by_ the Board of the appropriate unit
or units
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which ,has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The U. M. W. A. contends that all production and maintenance
employees (including working foremen),' truck drivers, warehousemen,
and helpers, but excluding office and supervisory employees, receiving
I Excluding specified classes of employees See Section V, infra
a Reports of the Regional Director , introduced into evidence to show the results of his investigation of the
claims of the two unions , show that the U M W. A submitted to him 28 membership applications bearing
apparently original, genuine signatures of employees appearing on the Company's October 9 , 1941, pay roll,
which contained a total of 50 names. The Teamsters submitted 9 membership applications bearing appar-
ently genuine, original signatures of employees listed on the Company's October 22, 1941, pay roll as ware-
housemen , truck drivers , and helpers This pay roll listed 14 such employees. -
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and shipping clerks, chemists and glaziers, constitute an appropriate
unit. The Teamsters -and -the Company urge- that the truck drivers,
warehousemen, and helpers properly constitute a separate unit apart
from a unit of production and maintenance employees. In addition
the Company takes the position that chemists should be included in
the proposed unit of production and maintenance employees.; that
working foremen should be excluded therefrom; and that the -Board
should decide whether or not'the receiving and shipping clerk employed
by the Company should be included in a collective bargaining, unit.
The evidence reflects that the duties of the employees listed on the
Company's records as, warehousemen are not similar to those of
production and maintenance employees. They are employed ^ in a
different part of the plant,' and come into contact with production
employees only incidentally in taking raw materials to the head of the
production line and in removing the finished product for storage.
They are under different supervision and their duties consist of storing
and caring for the Company's materials and products and assembling
products, to fill orders. In the past there have been transfers of
employees from one of these classifications to the other, but such
transfers have been permanent, and there has been no temporary
interchange of employees between the two departments. Truck
drivers work outside the plant and normally come into contact only
with the warehousemen, who, often help in loading the trucks.4 The
evidence also discloses, however-, that this is a relatively small and
closely-knit concern, housed for the most part, in a single building.
There is no substantial differential,in the matter of skill required as
between production employees on the one hand and warehousemen
and truck drivers on the other. The two classes of employees are
paid on the same basis and at substantially the same rates.
There is no history of collective bargaining among the employees
involved in these proceedings., Evidence bearing upon the customary
collective bargaining procedure in other plants with similar industrial
problems indicates that, in some such plants single bargaining units
include both production employees and warehousemen, truck drivers,
and helpers, as proposed by the U. M. W. A., while in others these
employees are treated as separate units, as desired by the Teamsters
and,the Company.
Under the circumstances herein presented we find that the ware-
housemen, truck drivers, and helpers could properly constitute a
separate unit or be included with production and maintenance-
employees as a part of a larger unit, either of which would insure
3 Two of the 10 warehousemen are employed in a separate building away from the manufacturing plant.
4 On November 13, 1941, the Company had no employees listed specifically as helpers.
S The Company has an oral agreement with a union covering glaziers in its employ . Neither petitioning
union claims jurisdiction over glaziers.
INDIANAPOLIS PAINT -& COLOR CO. 189
to the employees of the Company the full benefit of their right to
self-organization and to collective bargaining and otherwise would
effectuate the policies of the Act. We hold, therefore, that the,
desires of the employees involved shall govern, and we shall direct
that separate elections be held among the_ warehousemen, truck
drivers, and helpers, and among the production and maintenance,
employees. Upon the results of these elections will depend in part
our determination of the appropriate unit or units. If a majority
of the warehousemen,. truck drivers, and helpers select the Teamsters
as their representative, they will constitute a separate and distinct
bargaining unit; if a majority of them choose the U. M. W. A. and a
majority of the production and maintenance employees also' express
their desire to be represented by the U. M. W. A., then the two classes
of employees shall together constitute a single unit.'
We turn next to a consideration of certain disputed categories.
Chemists: The Company desires that its chemists be included in
the proposed bargaining unit composed of production and maintenance
employees, on the ground that their work is necessary to production.:
The U. M. 'W. A.` objects to the inclusion of chemists. The record,
shows that the chemists have a high degree of technical training and
and skill; that they are paid on a salary rather than an hourly basis;
that their supervision is of a different type from that of production
and maintenance employees; and that they, often work irregular
hours, or work on Sundays or holidays: For these reasons we shall
exclude chemists.7, . ; „
Working foremen. Among 30 persons listed as production employees
on the Company's records as of,November 13, 1941, were six men,
occupying the positions of working foremen. - They are for in
the sense that each has the responsibility for the proper completion of
a single step in the paint-manufacturing process. The U. M. W. A.
seeks to include these employees, whereas the Company wants them
excluded. These six men perform manual labor in the same manner,
as the other workmen engaged, in the same operation, and they'are'
paid on the same basis, although their rate is slightly higher. They
do not have the power to hire or to'discharge an employee. We'shall'
include these employees.
Receiving and shipping clerk. The Company desires'that the Board
decide whether the employee designated on the Company's records as,
receiving and shipping clerk should be ' included in an, appropriate
bargaining',unit. This employee checks'incoming materials and also
checks products assembled at the plant to fill orders. He makes out
6 Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No 3, et at , 3 N L.
R B: 294 and subsequent cases '
7 Matter of Tennessee Copper Company and A F. of L Federal Union No. 21164 , 5 N L. R. B 768; Matter
of Allied Laboratories, Inc, (Pitman-Moore Division) and Indianapolis Specialty Union #465, affiliated with
the International Printing Pressmen and Assistants ' Union affiliated with AFL, 23 N L . R. B 184.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bills of lading covering shipments and' has a desk for his use in the
shipping room. He supervises the work of the truck drivers, although
he does not, drive a truck, and he also ' supervises the work of the
warehousemen to a large extent. Each of the petitioning unions
objects to the inclusion of this employee in the unit proposed by it,
upon the grounds that his duties are supervisory and clerical in nature.
We shall exclude this employee.'
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning representa-
tion of employees of the Company can best be resolved by means of
elections by secret ballot. We shall direct two separate elections,
one among warehousemen, truck drivers, and helpers, and the other
among production and maintenance employees.
The parties agreed that eligibility to vote should be determined by
reference to the pay roll for the period ending immediately prior to our
Direction of Elections. This is in accordance with the usual practice
of the Board and we shall so direct, subject to the additions and
limitations set forth in the Direction.
Upon the basis of the above findings of fact and the entire record in
the case, the Board makes the following:
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the representa-
tion of employees of Indianapolis Paint & Color Co., Indianapolis,
Indiana, within the meaning of Section 9 (c) and Sections 2 (6) and (7)
of the National Labor Relations Act. -
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions 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 a part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Indianapolis Paint & Color Co., Indianapolis, Indiana, elections
by secret ballot shall be conducted as soon as convenient but not later
than thirty (30) days from the date of this Direction, under the direc-
tion and supervision of the Regional Director for the Eleventh Region,
8 Matter of National Candy Company, Inc , Veribrite Factory and Local 351 Candy Workers, affiliated with
Bakery and Confectionery Workers International Union of America (A F of L Affil) 7 N. I, R B 1207.
INDIANAPOLIS PAINT & COLOR CO. 191
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Section 9, of said Rules and Regulations-
1. Among the truck drivers, warehousemen, and helpers who were
employed by the Company during the pay-roll period ending immedi-
ately preceding the date of this Direction, including any such em-
ployees 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 temporarily laid off, but -excluding office and
supervisory- employees; shipping and receiving clerks, and employees
who have since quit or have been discharged for cause, to determine
whether they desire to be represented by Chemical Division of District
No. 50 United Mine Workers of America, 'affiliated with the C. I. 0.,
or by Coal, Ice, Building Materials Drivers and Helpers, Local No.
716, of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers, affiliated with the American Federation
of Labor, for the purposes of collective,bargainmg, or by neither; and
2. Among all production and maintenance employees (including
working foremen) employed by the Company during -the' pay-roll
period ending 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 temporarily laid off; but
excluding office and supervisory employees, chemists, glaziers, and
employees who have since quit or have been discharged for cause, to
determine whether or not they desire to be represented by Chemical
Division of District No. 50 United Mine Workers of America, affili-
ated with the C. I. 0., for the purposes of collective bargaining.
MR. GERARD D. REILLY took no-part ,in the consideration of the
above Decision and Direction of Elections. I ,