Lilly Varnish Co.

National Labor Relations Board - Board Decisions

Dec 7, 1943

53 N.L.R.B. 1203 (N.L.R.B. 1943)

In the Matter of LILLY VARNISH COMPANY and UNITED GAS, COKE_&
CHEMIOAL WORKERS OF AMERICA, AFFILIATED WITH THE C. 1. 0.,
LOCAL 168
Case No. 9-R-1'2920.Decided December 7, 1943
Messrs. Kurt F. Pantzer and John W. Houghton, both of Indian-
apolis, Ind., for the Company.
Messrs. Howard L. McNamara and Thomas H. Taylor, both of Indi-
anapolis, Ind., for the Union.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Congress of Industrial Organizations,
herein called the Union,' alleging that a question affecting commerce
had arisen concerning the representation of employees of Lilly Varnish
Company, Indianapolis, Indiana, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before John W. Coddaire, Jr., Trial Examiner. Said
hearing was held at Indianapolis, Indiana, on October 28, 1943. The
Company and the Union appeared, participated, and 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Lilly Varnish Company, an Indiana corporation with its principal
manufacturing plant and sales office located in Indianapolis , Indiana,
'At the hearing the Union made a motion to amend all papers to change the name of
the labor organization to United Gas, Coke & Chemical Workers of America , affiliated
with the C. I. 0., Local 168. This motion was granted by the Trial Examiner and all
papers were amended accordingly.
53 N. L. R. B., No. 217.
1203
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is engaged in the manufacture and sale of protective coatings, such as
varnishes, enamels, lacquers, stains, and fillers. The Company pur-
chases raw materials valued in excess of $100,000 per annum, of which
more than 50 percent is received from sources outside the State of
Indiana, and produces finished products valued at more than $200,000
per annum, of which more than 50 percent is shipped to points outside
the State of Indiana. In the course and conduct of its business, the
Company maintains auxiliary sales offices in Chicago, Illinois, and
Gardner, Massachusetts, and sales agents throughout the eastern half
of the United States. The Company admits that it is engaged in
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Gas, Coke & Chemical Workers of America, Local 168, is a
labor organization affiliated with the Congress of Industrial Organ-
izations, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company refuses to recognize the Union as the exclusive bar-
gaining representative of certain of its employees until the Union
has been certified by the Board in an appropriate unit.
A statement of the Field Examiner, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate 2
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
The Union seeks to represent a unit consisting of all production
and maintenance employees of the Company including truck drivers,
but excluding all supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, clerical employees,
technicians, laboratory workers, and employees directly connected
with management or ownership of the Company. The Company con-
cedes the general appropriateness of the unit sought herein, but
2 The Field Examiner reported that the Union submitted 33 designations of which 30
bore apparently genuine original signatures and contained the names of persons appearing
upon the Company's pay roll of October 1, 1943 There are apparently 36 employees in
the unit sought herein by the Union . He further reported that there are approximately
56 employees in the unit which the Company contends is appropriate , and that the Union
has no representation among the employees in dispute.
LILLY VARNISH COMPANY 1205
contends that laboratory workers who are engaged in checking raw
materials prior to processing and finished materials during and upon
completion of the processing, should be included within the unit.
The Company employs a group of laboratory workers, who are
engaged in the several laboratories maintained by the Company, at
its Indianapolis plant, and whose duties consist of testing, inspecting,
formulating, shading, and matching the various products of the
Company in their finished or unfinished state. Some of these em-
ployees commenced their employment with the Company as product
tion and maintenance workers, and gradually advanced to their pres-
ent positions ; others commenced their employment in the laboratory
directly, and still others came into the laboratory from various other
positions with the Company. These employees are paid hourly,
weekly, or monthly, depending partially upon their prior experience
and their relative utility to the Company. In contrast to the research
technicians employed by the Company, who must be graduate chem-
ists, there are no high standards of education or technical training
required of these employees. They are not engaged in experimental
or research work, as such, and the majority of their time is spent in
duties connected with the manufacturing process of the Company.
These employees are eligible for membership in a labor organization
affiliated with the same parent body as the Union herein, and for this
reason, the Union does not admit them to membership and has no
membership among them. Under these circumstances, we shall ex-
clude them from the unit.3
Accordingly, we find that all production and maintenance employees
of the Company including truck drivers, but excluding clerical employ-
ees, laboratory technicians, laboratory workers, salesmen, and all super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees or effectively
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
I 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 employ-
ees 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.
3Matter of Monsanto Chemical Company ( Longhorn Chemical Wails), Case No. 16-R-
743, 53 N. L. R. B . 784; Matter of E. 1. du Pont de Nemours d Company , 53 N L. R B.
No 8 ; Cf. also Matter of Colo+ado Portland Cement Company, 15 N L R B 197.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, it is hereby
Dn cTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Lilly Varnish Com-
pany, Indianapolis, Indiana, 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 Ninth 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 temporarily laid off, and
including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding 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 United Gas, Coke &
Chemical Workers of America, Local 168, affiliated with the Congress
of Industrial Organizations, for the purposes of collective bargaining.
O