The Sherwin-Williams Co.

National Labor Relations Board - Board Decisions

Sep 15, 1941

35 N.L.R.B. 434 (N.L.R.B. 1941)

In the Matter of THE SHERWIN-WILLIAMS COMPANY and UNITED
MINE WORKERS OF AMERICA, DISTRICT 50, C. I. O.
Case No. R-2837.-Decided September 15, 1941
Jurisdiction : paint manufacturing industry.
Practice and Procedure : petition dismissed where a unit of so-called "engineers",
who are primarily engaged as watchmen and whose duties are closely allied
with those of other employees at the Company's warehouse is held to be
inappropriate for the purposes of collective bargaining.
Mr. George D. Bonebrake , of Cleveland , Ohio, for the Company.
Mr. Milton J. Davenport and Mr. Stanley Dobry , of Detroit, Mich.,
for the Union.
Mr. Armin Uhler, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On April 4, 1941, and on July 15 and 29, 1941, respectively, United
Mine Workers of America, District 50, C. I. 0., herein called the
Union, filed with the Regional Director for the Seventh Region
(Detroit, Michigan) a petition and amended petitions' alleging that
a question affecting commerce had arisen concerning the represen-
tation of employees of The Sherwin-Williams Company, Detroit,
Michigan, herein called the Company, and requesting an investi-
gation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On June 30, 1941, the National 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.
3 The first amended petition was intended to correct the name of the employer while
on the second amended petition Acme White Lead & Color Works, a subsidiary, was
added as a party. In the course of the hearing it was stipulated , however, that the
employees involved herein are employees of The Sherwin-Williams Company.
35 N. L. R. B., No. 95.
434
THE SHERWIN-WILLIAMS COMPANY 435
On July 16, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Compaity and the Union.
Pursuant to notice, a hearing was held on July 30, 1941, which was
adjourned to August 4, 1941, at Detroit, Michigan, before Colonel
C. Sawyer, the Trial Examiner duly ' designated by the Chief Trial
Examiner. The Company and the Union were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. During the
course of the hearing, the Company moved to dismiss the proceeding.
The Trial Examiner reserved ruling on the motion for the Board.
The motion is granted for reasons set forth below. During the
course of the hearing, the Trial Examiner made various 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
I. THE BUSINESS OF THE COMPANY
The Sherwin -Williams Company , an Ohio corporation with its
principal office at Cleveland , Ohio, and offices and warehouses in the
principal cities of the United States, operates manufacturing plants
situated at Newark , Bound Brook, and Gloucester City, New Jersey;
Cleveland, Ohio ; Chicago, Illinois ; and Oakland, California. The
Company controls through stock ownership a number of subsidiary
corporations , among which are Acme White Lead & Color Works with
plants at Detroit, Michigan ; Dallas, Texas ; and Los Angeles, Cali-
fornia; and John Lucas & Company , Philadelphia, Pennsylvania,
with a plant at Gibsboro , New Jersey . The Company is primarily
engaged in the manufacture and sale of paints, varnishes , lacquers,
insecticides , dry colors , chemicals, white pigments , and other raw and
intermediate materials of the paint and varnish industry . In connec-
tion with the sale and distribution of its products , the Company oper-
ates retail stores and warehouses located in numerous cities in the
United States.
One of the Company's warehouses consists of a section of the old
Detroit White Lead Works plant , Detroit, Michigan , where the
employees involved in this proceeding are located . Goods valued in
excess of $500,000 are received at the Detroit warehouse , each year,
approximately 95 per cent of which originate in the Company's fac-
tories located in other States. Of the materials so received approxi-
451270-42-vol 35--29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately 95 per cent are distributed in the State of Michigan. The
materials distributed from the Detroit warehouse constitute less than
2 per cent of the Company's total annual gross sales.
IT. THE ORGANIZATION INVOLVED
United Mine Workers of America, District 50, affiliated with the
Congress of Industrial Organizations, is a labor organization admit-
ting to membership employees of the Company.
III. THE ALLEGED APPROPRIATE UNIT
The Union contends that certain employees employed by the Com-
pany at the Detroit White Lead Works, whom the Union describes
as engineers , constitute a unit appropriate for collective bargaining
purposes.2 The Company, on the other hand, insists that the unit
requested by the Union is inappropriate and that only hourly em-
ployees at the Detroit warehouse, excluding watclunen, constitute an
appropriate unit.
The employees covered by the petition function in a dual capacity.
In part, they are employed by the Company as watchmen on the old
Detroit White Lead Works premises, a portion of which it utilizes
as a warehouse. During the cold season of the year, in addition to
patrolling the 17 buildings of the Detroit White Lead Works, they
attend a low-pressure boiler which serves exclusively for heating
purposes.3 The Union rests its contention in regard to the appro-
priate unit chiefly on the ground that the three employees perform
duties sufficiently similar to those performed by certain powerhouse
employees at the Acme White Lead & Color Works, a wholly owned
subsidiary of The Sherwin-Williams Company, and that these power-
house employees enjoy status as a separate bargaining unit.' The
'There are three emplo3ees whom the Union seeks to represent . The Trial Examiner
at the hearing stated for the record that he had in his possession three membership
application cards submitted by the Union to the Regional Director , which bear the signatures
of these three employees.
18 The buildings which must be heated consist of the buildings of the Detroit White Lead
Works which are used by the Company as a warehouse and those which are leased to
certain tenants.
4 In Matter of Acme White Lead c6 Color Works and United Construction Workers
Organizing Committee , Local Union 202, affiliated with the Congress of Industrial organ-
izations, 29 N. L. R. B. 1158, the Board determined the appropriate bargaining unit
for the Acme Works , excluding from the unit , among other groups, powerhouse employees
and watchmen Subsequently United Construction Workers Organizing Committee, Local
202, C. I. 0, herein called Local 202 petitioned for a unit of the Acme powerhouse em-
ployees United Mine Workers of America , District 50, C. I . 0 intervened in that
proceeding and reached an agreement with Acme White Lead & Color Works whereby a
separate unit of Acme powerhouse employees was recognized Apparently Local 202 has
acquiesced in that agreement . Matter of Acme White Lead & Color Works and United
Construction Workers Organizing Committee , Local 202, affiliated with the C. I. O ,
Case No. VII-R-512.
THE SHERWIN-WILLIAMS COMPANY 437
duties of the Acme powerhouse employees and the three employees
involved herein are dissimilar in that the latter are primarily engaged
as watchmen. Furthermore, the interests of the three employees are
closely allied with those of other employees at the Company's Detroit
warehouse.5
Under all the circumstances, we find that the unit contended for by
the Union is inappropriate for the purposes of collective bargaining
and we shall, therefore, grant -the motion of the, Company to dismiss
the petition for investigation and certification of representatives filed
by the Union.
IV. THE QUESTION CONCERNING REPRESENTATION
Since, as stated in Section III, we do not find that the unit alleged
in the petition filed by the Union is appropriate, we find that no ques-
tion has arisen concerning the representation of employees of the Com-
pany in an appropriate bargaining unit.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
No question concerning representation of employees of The Sher-
win-Williams Company, Detroit, Michigan , in a unit appropriate
for the purposes of collective bargaining, has arisen, within the mean-
ing of Section 9 (c) of the National Labor Relations Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion of
law, the National Labor Relations Board hereby orders that the peti-
tion for investigation and certification of representatives filed by
United Mine Workers of America, District 50, affiliated with the
Congress of Industrial Organizations be, and it hereby is, dismissed.
The Company emplois at its Detroit warehouse nine employees, four of whom are
classified as supervisory, while the remaining five are engaged in receiving, packing, and
shipping functions.