Dupli-Color Products Co., Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1946

65 N.L.R.B. 1435 (N.L.R.B. 1946)

In the Matter of DUPIJ-COLOR PRODUCTS Co., INC. and UNITED GAS,
COKE & CHEMICAL WORKERS OF AMERICA
Case No. 13-R-3257.-Decided February 26, 1946
Messrs. Schwartz d Cooper, by Mr. Ira Kolb, of Chicago, Ill., and-
Lt. Col. Sigmund E. Edelstone, of Chicago, Ill., for the Company.
Mr. Howard M. Jones, of Chicago, Ill., for the Union.
Mr. John A. Nevros, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Gas, Coke & Chemical Workers
of America, herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Dupli-Color Products Co., Inc., Chicago, Illinois, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Gustaf B. Erickson, Trial Ex
aminer. The hearing was held at Chicago, Illinois, on October 18,
1945. The Company and the Union appeared and participated. All
parties 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 with the Board. On October 25,
1945, the Company filed with the Board a motion to dismiss the peti-
tion on the grounds that the Union was not a labor organization within
the meaning of the Act and that the Union had failed to make a show-
ing of present representation among the employees in the alleged
appropriate unit. It also filed a supporting brief. For the reasons
stated in Sections II and III, infra, the motion is denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Dupli-Color Products Co., Inc., an Illinois corporation, with its
principal office and plant in Chicago, Illinois, is engaged in the manu-
65 N. L R B., No. 238.
1435
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facturing and packaging of synthetic enamel and lacquer paint mate-
rials. During the fiscal year ending February 28, 1945, the Company
purchased raw materials consisting of synthetic enamel, lacquer,
bottles, plastic bottle caps, brushes, bottle labels, and packing-mate-
rials at a cost of approximately $63,000, of which about 50 percent
represented purchases from sources outside the State of Illinois.
During the same period, the Company's sales of finished products
amounted to $210,000, of which approximately 85 percent represented
shipments to points outside the State.
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Gas, Coke & Chemical Workers of America, affiliated with
the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Company.'
III. THE QUESTION CONCERNING REPRESENTATION
Both before and after the filing of the instant petition the Union
requested recognition as the exclusive bargaining representative of
the Company's employees, but the Company failed to answer. At the
hearing the Company stated that it refused to recognize the Union
,because the continuance of its business had been rendered uncertain
by the fact that it was as yet unable to find a replacement for its
manager, who had been discharged for mismanagement, and by the
additional circumstance that its president was serving in the armed
forces and was unable to predict when he could fully assume control
of the business.2 We have heretofore held, as we do now, that the
possibility that the Company may cease operations at some unpre-
dictable future date does not warrant depriving the Company's em-
ployees of the benefits of collective bargaining.' Accordingly, inas-
much as the Union represents a substantial number of employees in
' At the hearing the Company disputed the status of the Union as a labor organization
within the meaning of Section 2 (5) of the Act and objected to the admission of testimony
by the union representative on that issue The Trial Examiner overruled the objection
As noted above, one of the grounds of the Company's motion to dismiss the petition was,
that "the petitioner has not made a showing as to its identity and structure or as to the
eligibility of members with reference to the employees of [the Company]." Inasmuch as
there is uncontradicted testimony that the Union is in fact organized for the purposes of
collective bargaining concerning hours wages, and other working conditions. we hereby
uphold the Trial Examiner's ruling and find no merit to the first ground of the motion to
dismiss the petition. See Matter of Gielow, Incorporated, 60 N. L. R. B. 1477 , and cases
cited therein.
2 At the time of the hearing, the president was on leave from the army and was actively
conducting the business.
3 See Matter of Edison General Electric Appliance Co., Inc, 63 N. L R B 968; and
Matter of War Hemp Industries, Inc., 57 N L. R. B. 1709.
DUPLI-COLOR PRODUCTS CO., INC. 1437
the unit hereinafter found appropriate,4 we find that a question affect-
ing 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
The Union seeks a unit of all production and maintenance em-
ployees except for the porter, clerical, and supervisory employees .5
The Company took a position only with respect to the porter, the
clerical employees, and supervisory employees. As to these three
categories, its sole disagreement with the Union concerns the porter,
whom it would include in the unit.
The porter not only performs the customary janitorial functions
of cleaning the plant, but also carries supplies to and from the
storeroom and the production floor. He is also a, general handyman
performing miscellaneous tasks as required. He is paid on an hourly
basis as are all the other employees and works the same hours, has
the same lunch period, and enjoys the same vacation privileges. Ac
cordingly, we are of the opinion that the interests of the porter are
similar to those of the production and maintenance workers, and in
accordance with our usual practice, we shall include the porter .6
We find that all production and maintenance employees, including
the porter, but excluding clerical employees and all supervisory em-
ployees with authority to hire, promote, 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 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 employees
7
4 The Field Examiner reported that the Union submitted 10 application cards ; that 9
of these cards bore names of employees listed on the Company's pay toll ; and that there
are 18 employees in the unit sought
At the hearing the Trial Examiner overruled the Company 's objection to the admission
into evidence of the Field Examiner ' s report. His ruling is hereby upheld . As the second
ground in its motion to dismiss the petition , the Company urged that the Union "has not
made a showing of present representation of employees in the alleged appropriate unit to
raise a question concerning representation . . We have frequently rejected similar
contentions in like circumstances . Accordingly we find no merit in the second ground of
the motion to dismiss . See Matter of Baker d- Company , Inc., 65 N L R. B. 646, and
cases cited therein
5 The parties agreed that Jack Shearer , who mixes paint and supervises approximately
14 employees, and Ludwig Adler, packing foreman, who supervises 3 workers, are super-
visory employees within the Board ' s customary definition of the term , and we so find
6 See Matter of E. I duPont de Nemours d Company, 61 N L R B 473 ; Matter of Gale
Products, a Dsvsston of Outboard Marine and Manufacturing Go , 60 N . L R B 725, and
Matter of H. G. Hill Stores , Inc, 39 N . L R B. 874.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
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 Rela-
tions 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 Dupli-Color
Products Co., Inc., Chicago , Illinois, 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 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 employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preced-
mg the 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 those employees 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 repre-
sented by United Gas, Coke & Chemical Workers of America , for the
purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.