Western Paint & Varnish Co.

National Labor Relations Board - Board Decisions

Sep 23, 1942

44 N.L.R.B. 363 (N.L.R.B. 1942)

In the Matter of WESTERN PAINT &', VARNISH COMPANY and NATIONAL
COUNCIL OF GAS, COKE AND CHEMICAL WORKERS, LOCAL 12079
Case No. R-1254.-Decided September 0, 1942
Jurisdiction : paint and varnish manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; election necessary
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees'incliiding production clerical workers,'but excluding executives, super'
visors, laboratory employees, and all other clerical employees ; agreement as to.
McCabe, Gruber and Clure, by Mr. Thomas M. McCabe, of Duluth,
Minn., for the Company.
Mr. Henry Paull, of Duluth, Milin., for the National Council.
Mr. Joseph J. Timko, of St. Paul, Minn., for District 50.
Mr. Willi^',m C. Baisinnger, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
Upon petition duly filed by National Council of Gas, Coke and
Chemical Workers, Local 12079, herein called National Council, alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of Western Paint & Varnish Company,
Duluth, Minnesota, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upondue notice
before James M. Shields, Trial Examiner. Said hearing was held
at' Duluth, Minnesota, on September 4, 1942. The Company, the Na-
tional Council, and United Mine Workers of America, District 50,
herein called District 50, 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
ruliligs made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Western Paint & Varnish Company is a Minnesota corporation
engaged at Duluth, Minnesota, in the manufacture and distribution of
44 N. L R B.. No 66 -
363
364 DECISIONS ' OP NATIONAL LABOR RELATIONS BOARD
paint. For the year ending December 31, 1941, the raw materials used
by the Company, consisting of pigments, dye colors, oils, turpentine,
minerals and mineral spirits, and naptha, amounted to approximately
$325,000 in value. Approximately 80' percent of such materials was
purchased outside the, State of Minnesota. For the same period, the
total value of finished products sold by the Company was $500,000 of
which approximately 60 percent represented products shipped to cus-
tomers outside the State of, Minnesota. The Company admits that
it is engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATIONS INVOL\L1)
National Council of Gas, Coke - and Chemical Workers is a labor-
organization . It admits to membership employees of the Company.
United Mine Workers of America , District 50, is a labor organiza-
tion. It admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Both ,the National Council and District 50 claim to represent em-
ployees of the Company, but the Company refuses to bargain with
either until it is certified by the Board. A contract between the Com-
pany and District 50 was entered into on November 13, 1941, and
expires, by its terms, on October 1, 1942. It contains a clause which
automatically continues it for another year unless either party noti-
fies the other of its desire to terminate the agreement 30 days before
the expiration date. On August 31, 1942, the Company notified Dis-
trict 50 of its desire to terminate the contract, pursuant to the termina-
tion clause.
A statement of the Regional Director, introduced at the hearing,
shows that the National Council represents a substantial 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 meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with a stipulation of the parties, that all
production and maintenance employees of the Company, including
production clerical workers, but excluding executives, supervisors,
1 The statement of the Regional Director shows that the National Council submitted
to him 27 authorization cards All of these cards were dated July 28, 1942 and appear to
bear genuine original signatures of persons whose names appear on the Company's pay
roll of .July 27, 1942, which pay roll contains the names of 27 persons in the appropriate
unit.
District 50 relies on its contract with the Company to substantiate its claim of
representation.
WESTERN PAINT & VARNISH COMPANY 365
laboratory employees, and all other clerical employees, constitute a
unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act. ,
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 em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of our Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION ' '
• By virtue of and pursuant to the power vested lit 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 to ascertain representa-
tives for the purposes of collective bargaining with Western Paint &
Varnish Company, Duluth, Minnesota, an election by secret ballot
shall be conducted as early as possible, but not later than thirty. (30)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Eighteenth Region, acting in
this matter as agent for the National Labor Relations Board, and-
subject to Article III, Section 9, 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 in the
active military service or training of the-United States, or temporarily
laid off, but excluding employees who have-since quit or been discharged
tor cause, to determine whether they desire to be represented-by Na-
tional Council of Gas, Coke and Chemical Workers, Local 12079, or
by United Mine Workers of America, District 50, for the purposes
of collective bargaining, or by neither.
MR. WM. M. LEISERSON took no part in the consideration of the above
Decision and Direction of Election. '
In the Matter of WESTERN PAINT'S, VARNISI-I COMPANY aaul NATIONAL
COUNCIL OF GAS, COKE AND CHEMICAL WORKERS, LOCAL 12079
Case No. R-4254
AMENDMENT TO DIRECTION OF ELECTION
October 20, 1942
• On September 23, 1942, the National Labor Relations Board issued a,
Decision and Direction of Election in the above-entitled proceeding.'
In the election directed therein, the Board placed upon the ballot the
names of National Council of Gas, Coke and Chemical Workers, Local
12079, and United Mine Workers of America, District 50, herein called
District 50. Thereafter District 50 notified the Regional Director for
the Eighteenth Region that it desired that its name she withdrawn from
the ballot.
The Board accordingly hereby amends the aforesaid Direction of
Election by striking therefrom the words "whether they desire to be
represented by,National Council of Gas, Coke and Chemical Workers,
Local 12079 or by United Mine Workers of America, District 50, for
the purposes of collective bargaining, or by neither" and substituting
therefor the words "whether or not they desire to be represented by
National Council of Gas, Coke and Chemical Workers, Local 12079, for
the purposes of collective bargaining."
Alit. GERARD D. REU,LY took no part in the consideration of the above
Amendment to Direction of Election.
-.144 N. L . R. B 363
44'N. L. R. B., No. 60a.
. 366