The Ferbert-Schorndorfer Co.

National Labor Relations Board - Board Decisions

Nov 27, 1941

36 N.L.R.B. 1279 (N.L.R.B. 1941)

In the Matter of THE FERBERT-SCHORNDORFER COMPANY avid DISTRICT
50, UNITED MINE WORKERS OF AMERICA (C. I. 0.)
Case No. R-3225.-Decided November !?7, 1941
Jurisdiction : paint and varish manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal by Company to recognize petitioning union ; contract about to expire no
bar to investigation and determination of representatives ; election necessary.
Unit Appropriate for Collective Bargaining : all production employees, excluding
members of the management of the Company, laboratory employees, experi-
mental-department employees, and factory-office employees.
Mr. Raney Donovan, for the Board.
Mr. John A. Nieding, of Cleveland, Ohio, for the Company.
Mr. E. S. Crudele, of Cleveland, Ohio, for the United.
Mr. David'Lederman, of Cleveland, Ohio, for Local Union 610.
Mr. Frederic B. Parkes, end, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
)t., 1{n
On'September 30, 1941, District 50, United Mine Workers of Amer-
ica, C. I. 0.), herein called the United, filed with the Regional Director
for the Eighth Region (Cleveland, Ohio) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of The Ferbert-Schorndorfer Company, Cleveland, Ohio,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On
October 20, 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 Re-
gional Director to conduct it and to provide for an appropriate hearing
upon due notice.
On October 23, 1941, the Regional Director issued a notice of hear-
ing,'copies of which were duly served upon the Company and the
36 N L R 13, No 258.
1279
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United and upon Local Union 610, Painters & Varnish Makers Union,
affiliated with the American Federation of Labor, herein called Local
Union 610, a labor organization claiming to represent employees
directly affected by the investigation. Pursuant to notice, a hearing
was held on October 31; 1941, at'Cleveland, Ohio, before G: B., Erick-
son, the Trial Examiner duly designated by the Chief Trial Exam-
iner. The Company, the United, and Local Union 610 were
represented and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi
dente bearing on the issues was afforded all partie"s ` , During the
course of the hearing, the Trial Examiner made various rulings on
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 Fe-rbert-Schorndorfer Company, an Ohio corporation, is en-
gaged in the manufacture of paints, varnishes, enamels, and lacquers
at its plant at Cleveland, Ohio. During the period from January 1
to September 1, 1941, the Company sold products valued at
$1,379,334.50, 60 per cent of which were sold and shipped to points
outside the State of Ohio. The Company employs approximately
67 employees.
IT. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, is a labor organiza-
tion affiliated with the Congress of Industrial Organizations , admit-
ting employees of the Company to membership.
Local Union 610, Painters & Varnish Makers Union, -is a labor
organization affiliated with the American Federation of Labor,
admitting employees of the Company to membership.
III. THE QUESTION CONCERNING REPRESENTATION
On December 16, 1940, the Company entered into a union-shop
contract with local Union 610.1 The, contract provides that it shall
'The contract provides : "In the employment of new help, it is understood that the
Company will call and allow the Union to fill any vacancies if Union members are avail-
able within forty-eight (48) hours In the event the Union is unable to supply a sufficient
number of qualified workers within this forty-eight (48) hour period, the Company may
then hire such help as it desues , such new employees after a trial period of sixty (60)
days to make application to the Union for membership therein . The Company will,
make it known to all other employees that it would be mutually beneficial if .all such
other employees become and remain members of Local Union 610 "
THE FERBERT -SCHORNDORFER COMPANY 11281
be in effect until December 31, 1941. The United has requested the
Company to recognize it as the exclusive bargaining representative
for the Company's employees for the period following termination
of the contract of Local Union 610. The Company refused tonego-
tiate with the United until it had been certified by the Board. Since
the present contract between the Company and Local Union 610 is
terminable on December 31, 1941, it plainly cannot preclude the
Board from making an investigation and determination of the bar-
gaining representative for the purpose of negotiating a new agree-
ment for the period following December 31, 1941.2
A statement of the Board's Field Examiner introduced in evidence
at the hearing shows that the United represents a substantial number
of employees in the unit found hereinafter to be appropriate .3
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 commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company, the United, and Local Union 610 agreed at the
hearing, and we find, that all production employees of the Company,
excluding members of the management of the Company, laboratory
employees, experimental-department employees, and factory-office
employees, constitute a unit appropriate for the purposes of collective
bargaining.4 We further find 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.
2 See Matter of United Scientific Laboratories, Inc and Local 430, of the United Elec-
trtieal , Radio it Machine Workers of America , C I. 0, 29 N L. R. B., No. 36, and cases
cited therein I
3 The United submitted to the Field Examiner 64 authorization cards The Field Ex-
aminer stated that 9 were dated in September, 2 in October, and 53 were undated, and
that all cards bole apparently genuine original signatures of persons whose names were on
the Company's pay roll of October 4, 1941. These aie approximately 67 employees within
the unit found below to be appropriate
4 The unit is the same as that co%cied by the contract between the Company and Local
Union 610
433118-42-vol 36-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by means of an election by secret ballot.
We shall direct that those persons eligible to vote in the election shall
be those in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions hereinafter 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 repre-
sentation of employees of The Ferbert Schorndorfer Company, Cleve-
land, Ohio, Within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the Act.
2. All production employees of the Company, excluding members
of the management of the Company, laboratory employees, experi-
mental-department employees, and factory-office employees, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the 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 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
DIRECTED that as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with The Ferbert-Schorndorfer Company, Cleveland, Ohio, an elec-
tion 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 of the Eighth
Region, acting in this matter as agent for the National Labor Relations
Board, and subject to Article III, Section 9, of said Rules and Regula-
tions, among all production employees of the Company who were em-
ployed during the pay-roll period immediately preceding the date, of
this Direction, including all employees who did not work during
such 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 members of the management of the Company,
THE FERBERT-SCHORNDORFER COMPANY 1283,
laboratory employees, experimental department employees, factory
office employees, and employees who have since quit or been discharged
for cause, to determine whether they desire to be represented' by Dis-
trict 50, United Mine Workers of America, affiliated with the C. I. 0.,
or by Local Union 610, Painters & Varnish Makers Union, affiliated
with the American Federation of Labor, for the purposes of collective
bargaining, or by neither.