The Sherwin-Williams Defense Corp.

National Labor Relations Board - Board Decisions

Oct 23, 1942

45 N.L.R.B. 46 (N.L.R.B. 1942)

In the Matter of THE SHERWIN-WILLIAMS DEFENSE CORPORATION,
ILLINOIS ORDNANCE PLANT and DISTRICT 50, UNITED MINE WORKERS
OF, AMERICA, GAS, COKE & CHEMICAL DIVISION
Case No. R-4103.-Decided October 23, 1940
Jurisdiction : ordnance manufacturing industry. -
Investigation and Certification of Representatives : existence of question : re-
fusal to accord petitioner recognition because it did not submit cards in proof
of membership as requested by Company ; election necessary.
Unit Appropriate for Collective Bargaining : firemen and guards, excluding
chiefs, captains, lieutenants, and sergeants.
Definitions : plant-protection employees nude civilian auxiliaries of military
police by virtue of a directive - order of War Department, held employees
within the meaning of the Act.
Mr. T. J. McDowell, of Cleveland, Ohio, and Mr. L. E. Spooner
and Mr. T. E. Fancher, of Herrin, Ill., for the Company.
Mr. F. A. Henderson, of Herrin, Ill., and Mr. James Nash, of St.
Louis, Mo., for District 50.
Mr. Louis A. Pontello, Jr., of counsel to the Board. -
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by District 50, United Mine Workers of
,America, -Gas, Coke & Chemical Division, herein called District 50,
alleging that a question affecting commerce had arisen concerning
the representation of employees of. The Sherwin-Williams Defense
'Corporation, Illinois Ordnance Plant, Carbondale, Illinois, herein
called,-the Company, the National Labor Relations Board provided
for an appropriate hearing-upon due notice before William-W: Ward,
Jr., Trial Examiner. Said hearing was held at Herrin, Illinois, on
July 30, 1942. The Company and District 50 appeared, participated,
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
At the hearing the Company moved that the petition be dismissed on
the grounds (1) that the employees involved herein are not employees
45 N. L. R. B., No. 9.
46
THE SHERWIN-WILLIAMS DEFENSES CORPORATION 47
within the meaning of the National Labor Relations Act,- (2) that
the plant protection employees do not constitute an appropriate unit,
and (3) that the Company_ is not engaged in commerce within the
meaning of the Act. The Trial Examiner referred the motion to the
Board. Y or the reasons indicated below, the motion is hereby de-
nied. The Trial Examiner's rulings made at the hearing are free
-from, prejudicial error and are hereby affirmed: The Company filed-
a_brief which the Board has considered.
Upon the entire record in the case, the Board,makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY -
The Sherwin-Williams Defense Corporation, an Ohio corporation,
located in Carbondale, Illinois, was organized for the purpose of
manufacturing' detonators, fuses, and boosters, and to construct and
operate the ordnance facilities,for loading shells and bombs for the
United States War Department, under a cost plus fixed-fee operation
contract. It is affiliated with the Sherwin-Williams Company, but
has no subsidiaries of its own. ' The Company uses raw materials-coil-
sisting of copper, brass, manufactured powder, and lead amounting-
to several million-dollars annually in value. The finished products,
likewise, amount to several million dollars annually in value. A-sub-
stantial part of the raw materials and finished products are shipped
to and from the State of'Illinois. The plant, machinery, and equip-
ment therein, the `raw materials used, and the finished products are
the property of the United States Government. The Company con-
tends that it is not engaged in interstate commerce within the mean-
ing of the National Labor Relations At. We find that the Company
-is engaged in commerce within the meaning of the Act?
H. THE ORGANIZATION INVOLVED
District 50, United Mine Workers\of America, Gas, Coke &,Chem-
ical Division, is a labor organization admitting to membership. em-
ployees of. the Company.
III. THE QUESTION CONCERNING REPRESENTATION
At a conference held on or about June 1, 1942, a representative of
,District 50 claimed that District 50 represented a majority of the
firemen and guards employed by the, Company. The Company
requested proof of membership, but District 50 refused to submit its
I'Seo N. L R. B.. y. Fatinblatt, 306 U. S. 601, Matter of The United States,CartridgeCom^
pangrand International Brothel hood of Electrical Workers, Local No. 1, , A. F. L.,_et, al, 42
N,*L 11. B.191.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards to the Company. At a ,conference held on June 4, 1942, the
Company took the position that it could not recognize District 50 as
no proof of majority had been submitted to it.
A statement of the Regional Director introduced in evidence dis-
closes that District 50 represents a substantial number of employees
in the unit hereinafter found to be appropriate.
We find that a question affecting 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
District 50 contends that plant-protection employees of the Com-
pany including firemen and guards, but excluding chiefs, captains,
lieutenants, and sergeants of the fire and guard departments, consti-
tute an appropriate unit. It is the contention of the Company that
plant-protection employees are a part of management, and for that
reason they cannot constitute a bargaining unit.
The War Department has recently issued a directive order, making
plant-protection employees at plants producing war materials civilian
auxiliaries to the military police. Upon appropriate Army-
supervi-sion, they are being trained and equipped to meet the additional
responsibility placed upon them. The Company contends that
because 'of the military changes there is some doubt whether they are
``employees" within the meaning of the Act. We cannot agree with
- this contention. The directive order specifically preserves the essen-
tial employment relationship. The employer's right to discharge for
cause remains. Hiring, compensation for services performed, and
general working conditions remain matters to be adjusted between
the employqr and employees through the usual employment contract.
Clearly the relationship between the Conipany and the plaint-protec-
tion employees is that of employer and employee. We find nothing
in the duties of these employees set forth above to warrant a finding,
-that they be denied the rights to self-organization and collective
-bargaining under the Act. We find that plant-protection employees
are employees within the meaning of Section 2 (3) of the Act and
are entitled to the benefits of the Act.'
S The Regional Director reported that Distiluet 50 presented 316 authorization an u mem-
bership cards , which were dated between January 1942 and July 1942 Of the 316 cairns
submitted, 255 bore apparently genuine original signatures , while 01 cards bore printed
names . Ile further reported that 54 cards bone the names of persons appearing on the
Company ' s pay roll as of June 15. 1942, containing 65 fit emen ; that 185 cards bore the
navies of persons appealing on said pay loll, containing names of 401 guards ; that 20 of
the cards bore names on the pay-roll list of June 15, 1942, containing names of 43 `ciul
guards
8 See Matter of Chrysler Corporation , Highland Paik Plant and Local 11.,.United Auto-
nnobule, Aar craft and Agricultural Implement Workers of America - affiliated with the C. I. 0.,
44 N L R B 881.
THE SHERWIN -WILLIAMS ' DEFENSE CORPORATION 49
The Company further contends that there is such a differentiation
of "-work between the firemen and guards that they should not be
included within the same unit. All the plant-protection employees
are under the same plant official , but are divided into two groups, one
of firemen and the other of regular and civil guards. Each group
has its own chief, assistant chief, captains , lieutenants , and sergeants.
There are approximately 350 regular guards, 50 civil guards, and 100
firemen employed by the Company. The civil guards serve as watch-
men, while it is the duty of the regular guards to guard plant prop-
erty, check people who are entering or leaving the premises, serve as
gatemen, and patrol the plant area in general. The regular guards
are uniformed and armed but the civil guards are not. All guards,
must be approved by the Army before being hired. The wages of
both types of guards are substantially the same and there is some
interchange between the two groups. It is the duty of the firemen
to check the fire equipment and to protect the property of the Com-
pany from damage by fire. The functions of the firemen and both
types of guards are similar in that they both protect the property from
damage. We find that firemen and civil and regular guards may
appropriately be included in the same unit.
The chiefs, assistant chiefs, captains, lieutenants, and sergeants of
the fire and guard department supervise the firemen and guards in
their respective departments . For this reason, we shall exclude them
from the unit.
.We find that all plant-protection employees, including firemen and
guards, but excluding chiefs, captains , lieutenants , and sergeants of
the fire and guard department, 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 the
employees 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
Relations . Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
49:508-43-vo1 45--4
50 DECISIONS , OF,NATIONAL LABOR RELATIONS BOARD
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Sherwin-
Williams Defense Corporation, Illinois Ordnance Plant, Carbondale,
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 Fourteenth 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 the employees in the unit
found appropriate in Section IV, above, who were employed during
the pay -roll period immediately preceding the date of this Direction
of Election , including 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 employees who have since quit or been discharged
- for cause , to determine whether or not they desire to be represented
by District 50, United Mine Workers of America, Gas, Coke and
Chemical Division , for the purposes of collective bargaining.