Patek Brothers, Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1945

60 N.L.R.B. 1117 (N.L.R.B. 1945)

I n the Matter Of PATEK BROTHERS, INC. and PAINT AND VARNISH MAK-
ERS LOOAL UNION No. 5 719, PAINTERS, DECORATORS AND PAPER HANGERS
OF AMERICA, A. F. OF L.
Case No. 13-R-2839.-Decided March 7, 1945
Messrs. E. W. Peck and M. J. Klein, of Milwaukee, Wis., for the
Company.
Messrs. Roman M. Roberts and Stanley Joers, of Milwaukee, Wis.,
for the Union.
Mr. Louis Cokin, of counsel to the Board. `
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Paint and Varnish Makers Local Union
No. 579, Painters, Decorators and Paper Hangers of America, A. F.
of L., herein called the Union, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Patek
Brothers, Inc., Milwaukee, Wisconsin, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Benjamin B. Salvaty, Jr., Trial Examiner.
Said hearing was held at Milwaukee, Wisconsin, on February 9, 1945.
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
within the Board. -
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Patek Brothers, Inc., is a Wisconsin corporation with its principal
place of business at Milwaukee, Wisconsin, where it is engaged in the
manufacture and sale of paints, varnishes, and enamels, and the proc-
OO N T. R. R.. No. 186
1117
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
essing and sale of plate glass. During 1944 the Company purchased
materials valued at about $1,150,000, approximately 80 percent of which
was shipped to it froln points outside the State of Wisconsin. During
the same period the Company sold goods valued at- about $1, 50,000,;
approximately 15 percent of which was shipped to points outside the
State of Wisconsin. -
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Paint and Varnish Makers Local Union No. 579, Painters, Dec-
orators and Paper Hangers of America, is a labor organization affil-
iated with the American Federation of Labor, admitting to -member-
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On December 4, 1944, the Union requested the Company to recog-
nize it as the exclusive collective bargaining representative of the
Company's employees. The Company refused this request until such
time as the Union is certified by the Board.
A statement of a Field Examiner of the Board, introduced into
evidence at the hearing, indicates that the Union represents a sub-
stantial number of employees in the unit hereinafter found to be
appropriate
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union urges that all employees of the Company engaged in
the manufacture of paints, varnishes, and enamels, including work-
ing foremen, the elevator operator, stockmen, pickers and packers,
watchman, and employees in the shipping and receiving department,
but excluding office and clerical employees, employees who process
and handle glass, glaziers, and supervisory employees, constitute an
appropriate unit. The only controversy with respect to the unit
concerns stockmen, pickers and packers, watchman, and employees
in the shipping and receiving department. The Company would ex-
clude all such employees from the unit.
The Company employs two stockroom employees who, when the
finished paint product has been canned and labeled, carry the cans
1 The Field Examiner reported that the Union presented 37 membership application
cards. There are 38 persons in the appropriate unit.
PATER BROTHERS, INC. 1119
from the production floor and place them in the proper place in the
stockroom . They are paid on an hourly rate and work under the
supervision of the plant superintendent. In addition to the duties
described above, they keep a perpetual inventory of the Company's
products . The Company also employs two individuals who work
in its basement. They are hourly paid and are under the supervision
of the plant superintendent. During the winter season , one of them
spends 75 percent of his time firing the boilers and the remainder of
his time stocking materials . The other spends most of his time
stocking material. We shall include all stockmen in the unit.
The Company employs nine order pickers and packers. These indi-
viduals fill orders sent up from the office by picking the materials
from the various bins in the stockroom and packing them. They are
paid on an hourly rate and are under the supervision of the plant
superintendent. We shall include them in the unit.
The Company employs three shipping and receiving room em-
ployees. These persons load the orders on trucks for shipment after
such orders have been packed by the pickers and packers. They also
unload materials shipped to the paint department. The shipping and
receiving room employees are under the supervision of the plant
superintendent and are paid on an hourly rate. We -shall include,
them in the unit.
The Company employs one watchman who is neither militarized,
uniformed, nor armed. He is paid on an hourly rate and works under
the supervision of the plant superintendent. He makes 'a round of the
plant every hour and punches time clocks. In addition, he performs
janitorial services in the general offices. We shall include him in the
unit.
We find that all employees of the Company engaged in the manu-
facture of paints, varnishes, and enamels, including the working fore-
men ,2 elevator operator, stockmen, pickers and packers, the watchman,
and employees in the shipping and receiving department, but exclud-
ing employees who process and handle glass, glaziers, office and clerical
employees, and 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, constitute a unit
appropriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act.
V. THE 1)FTFRAMTNATION OF REPRESENTATTVFR
We shall direct that the question concerning representation which
has arisen be resolved by means of, an election by secret ballot among
'The record indicates that the working foremen do not have authority to recommend
effectively the hire, discharge , discipline , or promotion of any employees.
1-120 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
the employees 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.-
- .The Company contended at the,hearing that if an election is directed
in this proceeding that the Board should take the vote of employees in
military service by mail." With respect to employees in the armed
forces, it has been our customary practice to declare eligible only those
who present themselves in person at the polls; In the Mine Safety
Appliances Co. case,3 we reconsidered fully our policy in that respect
and reaffirmed our previous finding that it is not administratively
practicable to poll employees-on military leave by mail. No further
reason appears in the instant case to depart from our established
policy. Our inability to poll all the employees on military leave, how=
ever, will not necessarily operate to give permanent status to a bar-
gaining, representative chosen in their absence. When it is denmon-
strated that servicemen have returned to their employment in sufficient
numbers so that they comprise a substantial percentage of the em-
ployees in an appropriate unit in which we have certified a collective
bargaining representative, a new petition for the investigation and
certification of a bargaining agent may be filed with the Board. In-
this manner employees in the armed forces who were unable to cast a
vote will be afforded an opportunity to affirm or change. the bargaining
agent selected in their absence. -
The Union requests that it appear on the ballot as "Paint and Var-
nish Makers Local Union No. 579, A. F. of L." The request is hereby
granted.
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, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Patek Brothers,
Inc., Milwaukee, Wisconsin, an election by secret ballot shall be con-
ducted as early as possible, but not later than sixty (60) days from the
date of this Direction, under the direction and supervision of the
Regional Director for the Thirteenth 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
3 55 N. L. R. B. 1190.
PATEK BROTHERS, INC. 1121
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
any 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 Paint and Varnish
Makers Local Union No. 579, A. F. of L., for the purposes of collective
bargaining.
628563-45-vol 60-72