Lowe Brothers Co.

National Labor Relations Board - Board Decisions

Jun 7, 1941

32 N.L.R.B. 369 (N.L.R.B. 1941)

In the Matter of LOWE BROTHERS Co. and LOCAL 13001, DISTRICT: 50,
UNITED MINE WORKERS OF AMERICA, AFFILIATED' WITH THE, C. I. O.
Case No. B-2532.-Decided June 7, 191,1
Jurisdiction : paint manufacturing industry.
Investigation and Certification of Representatives :, existence of question: union
refused to submit its cards for checking with signatures in Company's posses-
sion ; members-only contract for one year subject to terminate on written notice
by either party, not asserted as a bar; election necessary.
Unit Appropriate for Collective Bargaining : all hourly paid production and
maintenance employees, factory janitors, truck drivers, elevator men, and,
technical service employees, excluding office janitors, kitchen employees, watch-
men, foremen, assistant foremen, all other supervisory employees, clerical
employees, and cooperative student employees.
Mr. Thomas F. Veach, of Cleveland,, Ohio, for the. Company.
Mr. Herman Edelsberg, of Washington, D. C., for the C. I. O.
Mr. Irvin Carl Delscamp, of Dayton, Ohio, for the Independent.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 27, 1941, Local 13001, District 50, United Mine Workers
of America, affiliated with the C. I. 0., herein called the C. I. 0., filed
with the Regional Director for the Ninth Region (Cincinnati, Ohio) a
petition, and on April 8, 1941, an amended petition, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Lowe Brothers Co., Dayton, Ohio, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On April 18, 1941, the Na-
tional Labor Relations Board, herein called the Board, acting pursuant
to Section 9 (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice.
32 N. L R. B, No. 78
369
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 19, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the C. I. 0,
and The Paint, Varnish, and Chemical Workers Union of Dayton,
Ohio, herein called the Independent, a labor organization claiming
to represent employees directly affected by the investigation. Pur-
suant to notice, a hearing was held'on May 2, 3, and 5; 1941, at Day-
ton, Ohio, before Karl Filter, the Trial Examiner duly designated
by the Chief Trial Examiner. The Company and the Independent
were represented by counsel; and the C. I. O. by its representative.
All participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. During the course of
the hearing, the Independent moved that the Board certify it upon
the, record as exclusive bargaining agent of the Company's employees
in the unit proposed by it to be appropriate. The Trial Examiner
reserved ruling on this motion for the Board. For reasons which
appear in Section VI below, the motion is denied. During the course
of the hearing, the Trial• Examiner made several rulings on other
motions and 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
1. THE BUSINESS OF THE COMPANY
Lowe Brothers Co., a wholly owned subsidiary of The Sherwin-
Williams Company, is engaged in the manufacture, sale, and dis-
tribution of lacquers, paints, varnishes, and enamels. Its plant is
located at Dayton, Ohio. The principal raw materials used in the
manufacture of its products are oil, pigments, nitrocellulose, rosins,
gums, thinners, packages, and cans. The value of raw materials used
by the Company per year is approximately $2,500,000 to $3,000,000.
Approximately 80 per cent of such raw materials come to the plant
from outside Ohio. The sales of the Company's products amount
annually to,' between $4,000,000 and $5,000,000. Approximately 85
per cent of the sales of the Company's products are made to cus-
tomers outside Ohio in other States and several foreign countries.
The' Company admits that it is, engaged in commerce within the
meaning of the Act.
II. TILE ORGANIZATIONS INVOLVED'
Local 13001, District 50, United Mine Workers of America, is a
labor organization affiliated with the Congress of Industrial
Organizations.
LOWE BROTHERS CO. 371
The Paint, Varnish, and Chemical Workers Union of Dayton, Ohio,
is an unaffiliated labor organization.
These organizations admit to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
In April 1941 the C. I. O. requested the Company to, bargain with
it for hourly paid production and maintenance employees at the
Company's Dayton, Ohio, plant. The Company asked proof of the
C. I. O.'s majority among such employees. The C. I. O. refused to
submit its cards to the Company for checking with signatures in the
Company's possession. The CompanyI was willing to determine the
question by a consent election to be conducted by the Board. The
Independent would not agree to such election.
On August 14, 1940, the Independent requested the Company to
recognize the Independent as bargaining agent for production and
maintenance employees at the plant and submitted its membership
cards for check by the Company. On August 30, 1940, the Company
recognized the Independent as sole bargaining agent for such em-
ployees. On November 27, 1940, the Company and the ,Independent
entered into a members-only contract. The duration of the contract
is 1 year. The contract is subject to termination on written notice
of either party. Neither the Company nor the Independent contends
that this contract constitutes a bar to this proceeding.
A statement prepared by the Trial Examiner and introduced in
evidence at the hearing discloses that the C. I. O. and the Inde-
pendent each represent a substantial number of employees in the
appropriate unit.'
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 1, above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
' In support of its claim to represent a majority of the employees in the appropriate unit,
the C. I O. submitted 103 authorization cards, 94 of which appear to bear genuine sig-
natures of employees on the pay roll of May 2, 1941 . Fourteen of these cards are dated in
June 1940 , 40 between July 1 and December 31, 1940 , and 39 in 1941.
In support of its claim to represent a majority of the employees in the appropriate unit,
the Independent submitted 95 authorization cards, dated in April 1941, all of which
appear to bear genuine signatures of employees on the pay roll of May 2, 1941.
There are about 190 employees in the appropriate unit.
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372 DECISIONS OF NATIONAL LABOR RELATIONS HOARD
foreign countries and tends to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The parties agree that hourly paid production and maintenance
employees, factory janitors, truck drivers, and elevator men, should
be included in the appropriate unit. They further agree that office
janitors, kitchen employees, watchmen, foremen, assistant foremen,
all other supervisory employees, clerical employees, and cooperative
student employees should be excluded from the appropriate unit.
The parties disagree in respect to the inclusion in the unit of tech-
nical service employees. The C. I. O. wishes to exclude them; the
Company and the Independent wish to include them.
There 'are 13 technical service employees. The work which they
individually perform differs in some respects, but it involves the
routine testing of products and raw materials by visual comparison
with fixed standards or the making of sample batches by formulae
for special orders. Technical service employees are not laboratory
employees and do not have technical schooling.
Testers do routine testing for shade, weight, and viscosity of raw
materials, production batches, and orders on which complaints are
received. The head of the technical service department approves or
disapproves the product. The tester cares for his equipment, which
consists of color sheets, panels, test tubes, and brushes. The tester
goes to the production department for his samples or they are brought
to him by a production employee who waits while the test is being
made.
In the manufacture of sample batches for special orders, the tech-
nical service employee, by hand or in small machines, performs all
the operations of manufacture which in mass production are per-
formed by different classes of production workers. Such sample
batches are tested by other employees and sometimes sold. Raw
materials for sample batches are assembled by the workers from
various places in the production department.
Technical service employees are on a salary basis at the plant.
Their wages amount to less than the wages of some hourly paid
shaders. As salaried employees, they emjoy more holidays and
greater sick leave and vacation privileges than hourly paid workers.2
Of the 13 technical service employees, 8 are members of the Inde-
pendent and covered by the Company's contract with the Independ-
ent. Laboratory employees were expressly excluded from this
contract.
2 The parties agree that a truck driver , who, as a salaried employee , enjoys these same
privileges, should be included in the appropriate unit,
LOWE BROTHERS CO. 373
Since technical service employees are eligible to membership in
both organizations and are covered by the contract between the
Independent and the Company, we find that they are properly
included with other production employees in the appropriate unit."
We find that all hourly paid production and maintenance em-
ployees, factory janitors, truck drivers, elevator men, and technical
service employees at the Company's Dayton, Ohio, plant, excluding
office janitors, kitchen employees, watchmen, foremen, assistant fore-
men, all other supervisory employees, clerical employees, and coop-
erative student employees, constitute a unit appropriate for the
purposes of collective bargaining and that said unit will insure to
employees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate the
policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The C. I. O. desires that an election should determine the bargain-,
ing representative of the Company's employees. The Independent,
desires certification on the basis of its membership cards and contends
that employees who signed authorization cards of the C. I. O. have
since revoked them. The Company contends that neither the C. I. O.
nor the Independent are entitled to certification upon the record.
In view of these contentions and the conflicting claims of the rival
organizations, we find that the question concerning representation
of the employees of the Company can best be resolved by, and we
shall accordingly direct, an election by secret ballot.4 The parties
agree that employees in the appropriate unit whose names appear
on the pay roll of May 2, 1941, should be eligible to vote.", At the
hearing, the organizations checked against this pay roll the names
of employees whom they agree fall within the excluded categories.
Those eligible to vote in the election shall be employees in the
appropriate unit whose names appear on the Company's pay roll'of
May 2, 1941, subject to such limitations and additions as are set
forth in the Direction of Election.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
3 See Matter of Acme White Lead d Color Wwks and United Construction Workers
Organizing Committee, Local Union 202, affiliated with the Congress of Industrial Organiza-
tions, 29 N. L R B 1158, wherein the Board included hourly technical service em-
ployees in the production unit at a subsidiary plant of The Sherwin -Williams Company.
4 See Matter of The Cudahy Packing Company and United Packinghouse Workers of
America, Local No. 21, of the Packinghouse Workers Organizing Committee , affiliated with
the Congress of Industrial Organizations , 13 N L. R. B. 526.
5 The pay-roll period closed Api it 29, 1941
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLusIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Lowe Brothers Co., Dayton, Ohio, within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
2. All hourly paid production and maintenance employees, factory
janitors, truck drivers, elevator men, and technical service employees
of Lowe Brothers Co., Dayton, Ohio, excluding office janitors, kitchen
employees, watchmen, foremen, assistant foremen, all other super-
visory employees, clerical employees, and cooperative student employ-
ees, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
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 Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with Lowe
Brothers Co., Dayton, Ohio, 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 of Election, under the direction and super-
vision of the Regional Director for the Ninth Region, acting in this
matter as agent for the National Labor Relations Board and sub-
ject to Article III, Section 9, of said Rules and Regulations, among
all hourly paid production and maintenance employees, factory jan-
itors, truck drivers, elevator men, and technical service employees of
the Company, whose names appear on the pay roll of May 2, 1941,
including employees who did not work during that 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 exclud-
ing office janitors, kitchen employees, watchmen, foremen, assistant
.foremen, all other supervisory employees, clerical employees, coopera-
tive student employees, and employees who have since quit or been
discharged for cause, to determine whether said employees desire to
be represented, by Local 13001, District 50, United Mine Workers of
America, affiliated with the C. I. 0., or by The Paint, Varnish, and
Chemical Workers Union of Dayton, Ohio, for the purposes of
collective bargaining, or by neither.