Solar Varnish Corp.

National Labor Relations Board - Board Decisions

Nov 18, 1941

36 N.L.R.B. 1101 (N.L.R.B. 1941)

In the Matter of SOLAR VARNISH CORPORATION and FRANK S. MILLER,
RUSSEL J. COLE, JAMES J. MC'DONALD, HENRY JULIAN, FRANK
MOORE, AND FRANK VERNBAUM
Case No. R-3049.-Decided November 18, 1941
Jurisdiction : paint manufacturing industry.
Practice and Procedure : petition dismissed ; no question concerning representa-
tion is held to have arisen where petitioners, a group of employees, had not
designated any representative to act for them.
Mr. Frederick Maguire, of Linden, N. J., for the Company.
Mr. Frank S. Miller, of Linden, N. J., for the Petitioners.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On August 7 and September 12, 1941, respectively, Frank S. Miller,
Russel J. Cole, James J. McDonald, Henry Julian, Frank Moore,
and Frank Vernbaum, herein called the Petitioners, filed with the
Regional Director for the Second Region (New York City) a peti-
tion and an amended petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of
Solar Varnish Corporation, Linden, New Jersey, herein called the
Company, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On September 17,
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.
On September 18, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
Petitioners, and International Brotherhood of Electrical Workers,
36 N L R B., No. 223.
1101
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the I. B. E. W. Pursuant to notice, a hearing was held
on September 24, 1941, at Linden, New Jersey, before Will Maslow,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Company and the Petitioners were represented and participated
in the hearing. The I. B. E: W. did not appear at 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 Trial Examiner granted a
motion of the Petitioners to amend the petition to set forth correctly
the unit. During the course of the hearing the Trial Examiner made
rulings on other motions and on objections to the admission of evi- -
dence. The Board has reviewed these rulings 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
Solar Varnish Corporation is a New Jersey corporation with its
principal office and place of business at Linden, New Jersey, where
it is engaged in the manufacture of paints, varnishes, lacquers, and
related products. During the 6-month period preceding September
23, 1941, the Company purchased approximately $125,000 worth of
raw materials from points outside the State of New Jersey, this
figure representing 35 per cent of all raw materials purchased by the
Company during said period. During the saine period, the Company
sold approximately $24,000 -worth of finished products to points out-
side the State of New Jersey, this figure representing approximately
90 per cent of all the finished products sold by it during said period'.
The Company admits that it is engaged in commerce within the mean-
ing of the Act.
IT. THE QUESTION CONCERNING REPRESENTATION
The Petitioners have requested the Company to recognize them as
the exclusive representative of its employees. The Company has
denied this request. As stated above, the petition, as amended, was
filed by six individuals who seek to be certified as exclusive repre-
sentatives. The petition alleged that these six employees constitute
an appropriate unit for the purposes of collective bargaining. At
the hearing, however, the Petitioners and the Company agreed that
there are eight employees within the appropriate unit. The record
does not disclose that the six petitioners have formed an organization'
of any kind for the purposes of collective bargaining or that they have
designated any of their number to act for them. Instead, as the ma-
SOLAR VARNISH CORPORATION 1103
jority of the employees in the allegedly appropriate unit, they seek
'certification as collective bargaining representatives of themselves and
of the two employees who failed to join them in the petition. We
are of the opinion that under the circumstances here disclosed, there
is.no question concerning the representation of employees. Section
9 of the Act provides only for certification by the Board of "repre-
sentatives . designated or selected for the purposes of collective bar-
gaining by the mnjonity of the employees in a unit appropriate for
such purpose." 1 The term "representatives" is defined by Section
2 (4) of the Act to include "any individual or labor organization."
Thus, certification under the Act is clearly appropriate only when
the process of collective bargaining is to be carried on not by the
majority of the employees themselves, but by individuals or a labor
organization whom the majority designates. In the case before us,
the six employees have not formed and designated as their representa-
tive "any organization, or any agency, or employee representation
committee or plan." 2 Nor have they designated any individual to
act for them.
We conclude that these six employees cannot, under the Act, be
certified for the purposes of collective bargaining. We therefore
find that no question has arisen concerning the representation of
employees of the Company. - We shall dismiss the petition without
prejudice to the filing of a new petition at any time employees of the
Company show that they have designated any individual or a labor
organization to represent them.'
ORDER
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 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended,
IT IS HEREBY ORDERED that the petition, as' amended, for investiga-
tion and certification of representatives of employees of Solar Varnish
Corporation, Linden, New Jersey, filed by Frank S. Miller, Russell J.
Cole, James J. McDonald, Henry Julian, Frank Moore, and Frank
Vernbaum, be, and it hereby is, dismissed.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order. .
I See Section 9, Sub -section ( a) and (c)
9 Section 2 (5) of the Act defines a labor organization as "any organization of any kind,
or anv a_enev or emplu-ee iepresentntien committee or plan, In which emplovee8 par-
ticipate and which exists for the purpose, in whole or in part, of dealing- kith employers
concerning grievances , labor disputes , wages, rates of pay , hours of employment or
conditions of work "