The Glidden Co.

National Labor Relations Board - Board Decisions

May 11, 1940

23 N.L.R.B. 714 (N.L.R.B. 1940)

In the Matter of THE GLIDDEN COMPANY and LOCAL 12148, DISTRICT
50, UNITED MINE WORKERS OF AMERICA (C. I. 0.)
Case No. R-1803.-Decided May 11, 1940
Paint Manufacturing Industry-Investigation of Representatives : controversy
concerning representation of employees : Company refused recognition to peti-
tioning union unless certified by the Board ; collective agreement with rival
union, shortly to expire , no bar to determination of representatives-Unit Ap-
propriate for Collective Bargaining : no controversy as to ; all hourly paid
production employees , excluding supervisory and all other salaried employees-
Representatives : eligibility to participate in choice : agreement as to-Election
Ordered
Mr. Drexel A. Sprecher, for the Board.
Mr. Adrian D. Joyce and Mr. Clifton M. Kolb, of Cleveland, Ohio,
for the Company.
Mr. Peter Zvara, of Cleveland, Ohio, for the United Local.
Mr. A. E. Stevenson, of Clevel'and,' 'Ohio, for the Cleveland In-
dustrial Council.
Mr. Trent Longo, of Cleveland, Ohio, for the Brotherhood Local.
Mr. John Green, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 26, 1940, Local 12148, District 50, United Mine Workers
of America, herein called the United Local, affiliated with the Con-
gress of Industrial Organizations, filed with the Regional Director
for the Eighth Region (Cleveland, Ohio) a petition alleging that a
question affecting commerce had arisen concerning the representa-
tion of employees of The Glidden Company, Cleveland, Ohio, herein
called the Company, and requesting an investigation and certification
of representatives, pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On April 11,
1940, the National Labor Relations Board, herein called the Board,
acting pursuant to Section 9 (c) of theAct and Article III, Section
3, of National Labor Relations Board Rules and Regulations-Series
23 N. L. R. B., No. 69.
714
THE' GLIDDEN COMPANY 715
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 April 13, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the United
Local, and upon Paint and Varnish Makers' Local Union No. 610,
of the Brotherhood of Painters, Decorators and Paperhangers of
America, herein called the Brotherhood Local, a labor organiza-
tion named in the petition as claiming to represent employees directly
affected by the investigation.'
Pursuant to the notice, a hearing was held on April 22, 1940, at
Cleveland, Ohio, before Herbert Wenzel, the Trial Examiner duly
designated by the Board. The Board was represented by counsel.
The Company, the United Local, and the Brotherhood Local were
represented by duly authorized representatives. At the hearing the
Cleveland Industrial Council entered an appearance and was repre-
sented by a duly authorized representative. All parties participated
in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. At the close of the hearing the Brotherhood Local
moved that the proceedings be dismissed, or should such-dismissal not-
be-ordered, that the name of the Brotherhood Local appear on the bal-
lot in the event the Board should order an election. The Trial Exam-
iner made no ruling on this motion. For the reasons sufficiently ap-
pearing hereinafter, the motion to dismiss is denied and the name of
the Brotherhood Local will be placed upon the ballot in the election
we shall direct.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Glidden Company, an Ohio corporation with its principal
office in Cleveland, Ohio, is engaged in the manufacture and produc-
tion of paints, lacquers, varnishes, and enamels at its plant at Cleve-
land, Ohio, }herein called, the Cleveland plant. The Company, owns
a number of subsidiary corporations in the various States of the
United States, and in Canada, and maintains branches and distribu-
tion outlets in many States of the United States. This proceeding
involves the Cleveland plant.
The principal raw materials used by the Company in the manu-
facture and production of the finished products of the Cleveland plant
'The Brotherhood Local is designated in the petition as Paint and Varnish Makers'
Local Union 610 (A F. L ).
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are vegetable oils, solvents, pigments, chemicals, dry colors, and nitro
cellulose. During 1939 the total value of raw materials purchased by
the Company for use at its Cleveland plant amounted to approxi-
mately $1,750,000, of which approximately 80 per cent was secured
from States other than the State of Ohio or from foreign countries.
During the same period the total sales of finished products of the
Cleveland plant amounted to approximately $2,250,000, of which ap-
proximately 50 per cent was shipped and transported to States other
than the State of Ohio or to foreign countries.
II. THE ORGANIZATIONS INVOLVED
Local 12148, District 50, United Mine Workers of America, is a
labor organization affiliated with the Congress of Industrial Organi-
zations, and admits to membership employees of the Company.
Paint & Varnish Makers' Local Union No. 610, of the Brotherhood
of Painters, Decorators and Paperhangers is a labor organization
affiliated with the American Federation of Labor, and admits to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On March 20, 1940, the United Local sent a letter to the Company,
stating that a majority of the employees in the production depart-
ments of the Cleveland plant were members of the United Local and
requesting a conference to discuss and agree upon the provisions of
an enclosed contract. The Company replied, by letter dated March
22, that because of an existing agreement with the Brotherhood
Local it could not make another agreement until the expiration of
such contract on May 12, 1940, but that upon request, it would mean-
while confer with the United Local.2 On March 25 a conference was
held between representatives of the United Local and of the Com-
pany. At that time the Company stated that it could not negotiate
with the United Local until assured by a certification of the Board
that the United Local represented a majority of the employees.
As we have stated above, the Brotherhood Local moved at the
close of the hearing to dismiss the proceedings. No grounds were
assigned for the motion. Manifestly, it may not validly be rested
upon the agreement between the Brotherhood Local and the Com-
pany. That agreement, shortly to, expire on May 12, 1940, does not
2 While the letter of March 20 ivas signed by , and the Company's reply on March 22 was
addressed to, Peter Zvara , the international representative of District 50, United Mine
Workers of America, herein called District 50, it appears from the record that Zvara was
regarded as acting on behalf of the United Local, and that the membership application
cards, referred to inIra, although nominally for membership in District 50, were regarded
as applications for membership in the United Local.
THE GLIDDEN COMPANY 717
preclude the existence of a question concerning representation and
is no bar to an investigation and determination of representatives.'
Nor are we able to perceive any other basis for the motion. The
Company, as of April 17, 1940, employed 243 persons in the unit
alleged in the petition of the United Local, agreed by all parties,
and found below to be the appropriate unit. There was introduced
in evidence at the hearing an analysis made by the Regional Director
showing that the United Local had submitted to him 135 membership
application cards, of which 116 were dated March 1, 1940, or there-
after, and 113 bore apparently genuine signatures including the
names of 109 persons listed on the Company's pay roll as of April
17, 1940.4 On the other hand, according to the report of the Re-
gional Director received in evidence, the Brotherhood Local sub-
mitted to him only a list of 146 persons stated to be members in good
standing according to its records, and to be employed by the Com-
pany, but did not produce its records for comparison with the
Company's pay roll. The motion to dismiss is without merit and is
denied.
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
between the several States and foreign countries, and tends to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE APPROPRIATE UNIT
At the hearing the parties agreed that the appropriate unit shall
include all hourly paid production employees of the Company, ex-
clusive of supervisory and all other salaried employees. We see no
reason to depart from the wishes of the parties.
We find that all hourly paid production employees of the Company,
exclusive of supervisory and all other salaried employees, constitute
a unit appropriate for the purposes of collective bargaining, and
that such unit will insure to the said employees the full benefit of
8 Cf Matter of The Wadsworth Watch Case Company and International Association of
Machinists, District #,%, 21 N L R B 476 , and cases cited therein
4 See footnote 2, supra. Three cards were dated between October 5 , 1939, and February
23, 1939; 16 were undated ; some bore printed signatures.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their right to self-organization and collective bargaining and will
otherwise effectuate the policies of the Act.
VI. TILE DETERMINATION OF REPRESENTATIVES
The United Local and the Brotherhood Local asked that an elec-
tion be held, although the Brotherhood Local conditioned its request
upon the denial of its motion to dismiss the proceedings, which motion
we have denied. Under the circumstances, we find that the question
which has arisen concerning representation can best be resolved by
the holding of an election by secret ballot.
The United Local made no objection to the inclusion of the Brother-
hood Local upon the ballot, and we shall order that its name appear
thereon.
The parties stipulated that, in the event that the Board should
direct an election, eligibility to vote in the election should be limited
to employees whose names appear upon the pay roll as of April 17,
1940.5 We construe the stipulation to include as eligible to vote those
employees whose names do not appear on the pay roll because they
..were ill or on vacations, or.who..have since.been-temporarily-laid off;
and to exclude those who have since quit or have been discharged for
cause. As thus construed, we see no reason to depart from the wishes
of the parties, and we shall direct accordingly.
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 Glidden Company, Cleveland, Ohio,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. All hourly paid production employees of the Company, exclusive
of--=supervisory, and all other -salaried employees, constitute a unit
appropriate 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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
'Board Exhibit No. 2
THE GLIDDEN COMPANY 719
DmECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purpose of collective bargaining
with The Glidden Company, Cleveland, Ohio, 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 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 Regulations,
among all hourly paid production employees whose names appear
upon the pay roll of the Company as of April 17, 1940, including
employees whose names do not appear on said pay roll because they
were ill or on vacation, or who have since been temporarily laid off,
but excluding supervisory and all other salaried employees, and those
employees who have since quit or been discharged for cause, to deter-
mine whether they desire to be represented by Local 12148, District
50, United Mine Workers of America, affiliated with the C. I. 0., or
by Paint & Varnish Makers' Local Union, No. 610 of the Brotherhood
of Painters, Decorators and Paperhangers, affiliated with the A. F.
of L•.;'.for;.the, purposes,of,,collective.bargaining, or by neither.