De Soto Paint and Varnish Co.

National Labor Relations Board - Board Decisions

Mar 12, 1942

39 N.L.R.B. 727 (N.L.R.B. 1942)

In the Matter of DE SOTO PAINT AND VARNISH COMPANY and DISTRICT
50, UNITED MINE WORKERS OF AMERICA
Case No. R-3512.-Decided March 10, 1942
Jurisdiction : paint and varnish products manufacturing industry.
Investigation and Certification of Representatives : existence of question : _ re-
fusal to accord union recognition unless certified by the Board ; election
necessary
Unit Appropriate for Collective Bargaining : all employees engaged in the pro-
duction, handling, shipping, and maintenance processes of the Company, but
excluding foremen, working foremen, office' clerks, timekeepers, chemists
(including the chief chemist and his assistant), watchmen, the printer, the
engineer, and the shipping clerk.
Mr. R. D. Hooke, of Chicago, Ill., for the Company.
Mr. Martin A. Watkins, of Madison, Tenn., for the C. I. O.
Mr. H. J. Burbach, of Memphis, Tenn., for the X. F. of L.
Mr. A. Sumner Lawrence, of counsel to the Board.,
DECISION
AND
DIRECTION OF ELECTION'
STATEMENT OF. THE CASE
On November 10, 1941, District 50, United Mine Workers of Amer-
ica, herein called the C. I. 0., filed with the Regional Director for
the Tenth Region (Atla:ita, Georgia) a petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees-of De Soto Paint and Varnish Company, Memphis, Tennes- -
see, herein called the Company, and requesting an investigation and
certification of representatives, pursuant to Section 9 (c,) of the. Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On
November 24, 1941, the National Labor Relations Board, herein called,
the Board, acting pursuant to Article III, Section 10 (c) (3), of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, ordered that the case be transferred to and- continued
in the Fifteenth Region. On January, 28, 1942, 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
39 N. L. R B., No. 138
727
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended, ordered an investigation and authorized the Regional Di-
rector for the Fifteenth Region (New Orleans, Louisiana) to conduct
it and to provide for an appropriate hearing upon due notice.
On January 31, 1942, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, the C. I. 0.,
and upon the American Federation of Labor,' herein called the
A. F. of L., a labor, organization claiming to represent employees
directly affected by the investigation. Pursuant to notice, a hearing
was held on February 6, 1942, at Memphis, Tennessee, before Fon-
taine Martin, Jr., the Trial Examiner duly designated by the Chief
Trial Examiner. The Company, the C. I. 0., and the A. F. of L.
were represented and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. During
the hearing, the Trial Examiner made rulings on 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
De Soto Paint and Varnish Company is a Tennessee corporation,
a subsidiary of Sears Roebuck & Company of Chicago, Illinois, and
has its plant and principal place of business located at Memphis,
Tennessee . The Company is engaged at its Memphis plant in the
manufacture, sale, and distribution of paint and varnish products.
During the six months immediately prior to January 16, 1942, the
Company purchased from sources outside the State of Tennessee and
shipped to its plant at Memphis all its raw materials, amounting in
value to approximately $500,000. During the same period; the Com-
pany sold finished products of the approximate value of $600,000,
which products were shipped from the Memphis plant to places
outside the State of Tennessee.
The Company admits it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, is a labor organiza-
tion affiliated with the Congress of Industrial Organizations. It
admits to membership employees of the Company.
' At the hearing , the American Federation of Labor representative stated that he
appeared for the Upholsterers -International Union
DE SOTO PAINT AND VARNISH COMPANY 729
Upholsterers International Union is a labor organization affiliated
with the American Federation of Labor., It admits to membership'
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Shortly before the filing of the petition herein, the C. I. 0., claim-
ing to represent a majority of the Company's employees, requested
that the Company recognize it as the sole collective bargaining agent
for all its employees. The Company refused to recognize the C. I. 0.
unless certified by the Board.
A report of the Regional Director, introduced in evidence, and
a statement of the Trial Examiner, show that each union represents a
substantial number of the 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 I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The C. I. 0. claimed in its petition that the appropriate unit
should consist of all employees of the Company engaged in produc-
tion, handling, shipping, and maintenance processes, excluding fore-
men, office clerks, timekeepers, and employees having the power to
hire or discharge or the power to recommend hire or discharge. At
the hearing, the C. I. 0. clarified its position by stating that it
wished to exclude the working foremen, the chemists (including the,
chief chemist and two assistants), the four watchmen, one engineer,
2 The Regional Director reported that the C I. 0 had submitted 43 signed application
for membership cards , all dated in November 1941 and that 41 of the 43 signatures
are the names of persons whose names appear on the Company's pay roll for,the first
week in December 1941 The Regional Director reported that the A F of L had
submitted 19 authorization cards of which 6 were dated between November 24, 1941,
and December 5, 1941 , and 13 undated and that 12 of the 19 signatures are the names
of persons on the Company's pay roll for the first week in December 1941 The Trial
Examiner stated that the C . I O. had submitted to him 7 additional signed membership
cards all dated in January 1942 and that of the 7 signatures , 5 are the names of persons
whose names are on the pay ,roll . The Trial Examiner also stated that the A F of L.
had submitted to him 20 additional membership cards, all dated in January and February
1942 and that of the 20 signatures , 17 are the names of persons whose names are on the
pay roll. There are approximately 65 employees in the unit hereinafter found appropriate.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one printer, and the shipping clerk. The Company's position was
similar to that of the C. I. O. The status of the following employees
is in dispute, the A. F. of L. contending that they should be in-
cluded : the chemist, the printer, the engineer, the shipping clerk,
and the working foremen.
The chemists work in the laboratory. The chief chemist, a trained
college graduate, is 'engaged principally in research and develop-
ment work. The two assistants perform more routine work, such
as testing paints and approving the products prior to filling opera-
tions. They would normally continue to work even though the
plant were shut down and the production employees laid off. Since
the work of these chemists is substantially different from that of
the other employees within the appropriate unit we shall exclude
them from the unit.3
-The printer prints labels, envelopes, and other printed matter
required' in the production, sales, or promotional work of the Com-
pany. His status is similar to that of the chemists in that his work
is separate from that of the other production employees and would
continue even though the production employees in general should be
laid off. We shall therefore exclude him from the appropriate unit.
The, engineer whose duties consist entirely of maintenance of oper-
ating equipment, is paid on a definite weekly scale while production
employees are paid only for the hours actually worked. He has
normally one helper and in addition may order, additional workers
or crews of employees to do certain maintenance work in and about
the plant. Because of the obvious difference between the character
of his employment and that of the other employees, and also because
of the extensive nature of his supervisory powers, we shall exclude
him from the unit.
The shipping clerk routes and checks shipments and has direct
control over the truck drivers insofar as their discipline and direc-
tion is concerned. He has special knowledge of routes and railroad
schedules, and has the entire responsibility of seeing that the product
,gets out and that the amount required is brought to the proper place
for shipment. He is also paid on a weekly rate. Since his duties
are primarily supervisory and clerical, he will be excluded from the
unit'
The, working foremen supervise small groups of production em-
ployees in the various departments, reporting directly to a foreman
in charge of the entire operation. They are held responsible for
3 See Matter of American Cyanamid and Chemical Corporation and Local 12119 , Gas Coke and
Chemical Workers Union District No. 50 United Mine Workers of America , 11 N. L. R B
803; Indianapolis Paint it Color Co and Chemical Division of District 50 United Mine
Workers of America, affiliated with the C I. 0, 38 N. L. R. B 185.
* See Matter of Indianapolis Paint it Color Co , supra.
DE SOTO PAINT AND VARNISH COMPANY 731
the work in their particular' group. Their rate of pay is consider-
ably higher than that of the other employees in their departments.
They have the right to recommend the hire or discharge of employees
and while they may not actually hire, their requests for additional
men in any department are ordinarily granted. In addition they
are ineligible for membership in the C. I. 0. because of their super-
visory duties. We are of the opinion that the working foremen in
question have interests substantially different from those of the other
men in their group, and for this reason and because of the apparently
extensive character of their supervisory duties, we shall exclude them
from the appropriate unit.'
We find that all the employees of the Company engaged in the
production, handling, shipping, and maintenance processes of the
Company, excluding foremen, working foremen, office clerks, time-
keepers, chemists (including the chief chemist and his assistants),
watchmen, the printer, the engineer, and the shipping clerk, con-
stitute a unit appropriate for the purposes of collective bargaining
and that such unit will insure to employees of the Company the full
benefit of their right to self-organization and to collective bargaining
and otherwise will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question, concerning representation which has
arisen can best be resolved by an election by secret ballot.
The C. I. 0. requests that eligibility be determined by reference
to a pay roll between December 8 and December 28, 1941. The A.. F.
of L. contends that a current eligibility date should be used. We
see no reason in this case to depart ,from our usual practice, and we
shall therefore direct that the employees eligible to vote shall be
those who were employed during the pay-roll period immediately
preceding our Direction of Election herein, subject to the limitations
and additions set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting' commerce has arisen concerning the rep-
resentation of employees of De Soto Paint and Varnish Company,
Memphis, Tennessee, within the meaning of Section 9 (c) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act.
2. All the employees of the Company engaged in the production,
handling, shipping, and maintenance processes of the Company, ex-
See Matter of Chrysler Pittsburgh Company, Inc and United Automobile Workers of
America, 36 N. L R B. 1117
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluding foremen, working foremen, office clerks, timekeepers, chem-
ists (including the chief chemist and his assistants), watchmen, the
printer, the engineer, and the shipping clerk, constitute a unit ap-
propriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations 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 Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with De' Soto Paint and Varnish Company, Memphis, Tennessee, 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 supervision of the Regional Director for
the Fifteenth 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 all employees of the Company en-
gaged in the production, handling, shipping, and maintenance proc-
esses of the Company, who were employed during the pay-roll period
immediately preceding the date of this Direction of Election, in-
cluding those who did not work during such pay-roll period because
they were ill or on vacation or in the active military service or train-
ing of the United States, or temporarily laid off, but excluding fore-
men, working foremen, office clerks, timekeepers, chemists (including
the chief chemist and his assistants), watchmen, the printer, the
engineer, and the shipping clerk, and those who have since quit or
been discharged for cause, to determine whether they desire to be
represented by District 50, United Mine Workers of America, affili-
ated with the Congress of Industrial Organizations, or by Upholster-
ers International Union, affiliated with the American Federation
of Labor, for the purposes of collective bargaining, or by neither.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.