The Valspar Corp.

National Labor Relations Board - Board Decisions

Mar 5, 1942

39 N.L.R.B. 466 (N.L.R.B. 1942)

In the' Matter of THE VALSPAR CORPORATION, VALENTINE & COMPANY,
''INC.,' DETROIT GRAPHITE COMPANY, CON-FERRO PAINT & VARNISH
COMPANY, EDWARD SMITH' & Co`,' INC.,'AND THE! VALSPAR CORPORA-
TION,, LIMITED aaul LOCAL •12129,; DISTRICT 50i UNITED MINEWORKERS
OF AMERICA,V. •L O.
•1:; Case'No.,R-3366.-Decided March 5; 1942
Jurisdiction : paint, varnish, and lacquer manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-I fl 7"
to bargain with petitioning union on ground+•t1lat-unit claimed by it is
inappropriate ; election 'necessary. '
Unit Appropriate for Collective Bargaining : all weekly and monthly paid em-,
ployees and all clerical employees in the Company's Brooklyn plant, exclusive
of the plant superintendent, the research director, the office manager, super-
visory employees, plant foremen, -and all employees in the statistical and
order and billing departments ; employees located in the Company's New York
office excluded notwithstanding Company's desire for their inclusion
Sullivan & Cromwell, by Mr. Glen McDaniel, of New York City,
for the Company.
Mr. Harry Friedson, of New York City, for the Union.
Mr. Gerard J. Manacle, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 25, 1941, Local 12129, District 50, -United Mine Workers
of America, C. I. 0., herein called the Union, filed with the Regional
Director for the, Second Region (New York City) a petition, and
on November 13, 1941, an amended petition, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Valspar Corporation, Valentine & Company, Inc.,
Detroit Graphite Company, Con-Ferro Paint & Varnish Company,
Edward Smith & Co., Inc., and The Valspar Corporation, Limited,
New York City, herein jointly called the Company, and requesting
an investigation and certification of representatives pursuant to Sec-
39 N. L. R. B., No 83 -
466
THE VALSPAR CORPORATION - I t' 467
tion 9 (c) of the National Labor Relations Act; 49 Stat. 449, herein
'called the Act.. On November 14, 1941, the National Labor Relations
Board, herein called the Board; acting' pursuant, toiSection 9 '(c)t of
the Act, and Article III, Section 3, of National, Labor Relations' Board
Rules and R'eg'ulations=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 November 15, 1941, the Regional Director issued a notice of
hearing, and on November 21, 1941, a `notice of postponeinent-of hear-
ing, copies 'of which were duly- served upon' the Company and the
Union. Pursuant' to notice, a he tiring -ivas held ;on Deceriiber_4,,1941,
at New York City, before William T. Little, the Trial; Examiner
duly designated by the Chief Trial Examiner. - ;The Company 4and
the Union we're represented by 'counsel and participated in the Bear-
ing. Full opportunity to be'hea'rd, to."examine ,and cross-examine
witnesses, and to introduce evidence bearing on the issues'was afforded
all parties. D`ur'ing"tlie course of the hearing' the Trial Examiner
made various rulings on motions and 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 'Fillings are
hereby affirmed. On December 26, 1941, the Company and the Union
filed briefs which the Board has considered.
Upon the entire 'record in the case,' the Board makes the following :
FINDINGS OF FACT'
I. THE i3USINESS OF THE COMPANY
The Valspar Corporation is a Delaware corporation with, its-:prin-
cipal office and place of business at 11 East 36th Street , New York
City. Valentine & Company, 'Inc.; Detroit Graphite Company, Con-
Ferro Paint & Varnish Company, Edward Smith & -' Co., Inc., and
The Valspar Corporation ,.- Limited, are wholly' .owned ' subsidiaries
of The Valspar Coip'oration . -. The Valspar Corporation, and its'sub-
sidiaries operate as aii integrated enterprise . The Company is en=
gaged in the manufacture and sale of paints, varnishes ; and lacquer's.
The Company maintains plants, warehouses , • and: offices throughout
the United States. During the year preceding November 1, 1941,
the Company Iised _ at its Brookln , New York; plant ,, raw',inaterials
valued at approximately $1,241 ,290, of . which about 75 percent were
obtained and shipped f'rom ' points outside the' State of NO^y York.
During the same period , the Company manufactured at the Brooklyn'
plant finished products valued at approximately ' $1,750,887 ,' of Which
approximately 90 percent were sold and shipped to points outside the
State of New York. The Company admits that it is engaged in
commerce within the meaning of the Act.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
Local 12129, District 50, United Mine Workers of America, is a
labor organization affiliated with the Congress of Industrial Organiza-
tions. It admits to membership employees of the Company's Brooklyn
plant.
III. THE QUESTION CONCERNING REPRESENTATION
The Union requested the Company to bargain with it as the ex-
clusive representative of certain employees of the Company, but the
Company refused on the ground that the unit claimed by the Union
is inappropriate.
A statement prepared by the Regional Director and introduced into
evidence at the hearing discloses that the Union represents a sub-
stantial number of employees in the unit claimed by it to be
appropriate?
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 and the Union agree that all weekly and monthly
paid employees and all clerical employees in the Brooklyn plant of
the Company, exclusive of the plant superintendent, the research
director, and the office manager, should be included in the appropriate
unit 2 The stated exclusions are appropriate. In addition, we find
1 The Union submitted 52 applications for membership cards, 7 of which were dated
between July 15, 1941 , and December 1, 1941, inclusive , and 45 of which were undated
All cards appear to bear genuine, original signatures , 45 of which are names appearing on
the Company 's pay roll of December 1941, which contains the names of 66 employees in
the Brooklyn plant. Evidence was adduced at the hearing , showing that the undated
cards were signed between May 1941 and June 16, 1941.
'The Company has recognized , and bargained with, the Union as the representative of
the hourly paid production employees in the Brooklyn plant for the past 5 years. These
employees are not involved in this proceeding.
THE VALSPAR CORPORATION 469
1
that the plant foremen and the other supervisory employees, as
management representatives, should also be excluded from the unit.'
The Company would include the employees located in the New
York office. This office is, however, geographically separate .from
the Brooklyn plant, and, with the exceptions noted below, the em-
ployees thus separated appear to perform different work. More-
over, the Union's organizational efforts have not extended to the
-employees located in the New York office. Upon the entire record,
we find that the employees located in the New York office should
be excluded. However, the statistical and order and billing em-
ployees who happen now to be stationed at Brooklyn are an integral
part of the statistical and order and billing departments which are
located for the most part in the New York office and should therefore
also be excluded from the unit here in question.
We find that all weekly and monthly paid employees and all
clerical employees in the Brooklyn plant of the Company, exclusive
of the plant superintendent, the research director, the office manager,
supervisory employees, plant foremen, and all employees in the
statistical and order and billing departments; constitute an appro-
priate unit for the purposes of collective bargaining, and that said
unit will insure to employees of the Company the full benefit of
their right to self-organization and to collective bargaining and will
otherwise effectuate the policies of the Act.
VI. TIIE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by, and we shall accordingly direct, an
election by secret ballot.
Pursuant to our usual practice, we shall direct that the employees
of the Company 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 this Direction of Election, subject
to the limitations and additions 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 rep-
resentation of employees in the Brooklyn plant of The Valspar
Corporation, Valentine & Company, Inc, Detroit' Graphite Company,
Con-Ferro Paint & Varnish Company, Edward Smith & Co., Inc.,
'Matter of James E. Stark Lumber Company and Upholsters' International Unson of
North America, Local No. 255, 33 N. L. R. B. 1076.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and The Vaispar Corporation, Limited, New York City, within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the National
Labor Relations Act.
2. All weekly and monthly paid employees and all clerical em-
ployees in the Brooklyn plant of the Company, exclusive of the
plant superintendent, the research director, the office manager, super-
visory employees, plant foremen, and all employees in the statistical
and order and billing departments, 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
Relations 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
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with The Vaispar Corporation, Valentine & Company, Inc., Detroit
Graphite Company, Con-Ferro Paint & Varnish Company; Edward
Smith & Co., Inc., and The Valspar Corporation, Limited, New
York City, an election by secret ballot shall be conducted as soon
as possible, but not later than thirty (30) days after the date of this
Direction of Election, under the direction and- supervision of the
Regional Director for the Second 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 weekly and
monthly paid employees and all clerical employees of the Company
at its Brooklyn, New York, plant, who were employed by the Com-
pany 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 active military service or training of the United States, or
temporarily laid off, but excluding the plant superintendent, the
research director, the office manager, supervisory employees, plant
foremen, all employees in the statistical and order and billing de-
partments, and employees who have since quit or been discharged
for cause, to determine whether or not they desire to be represented
by Local 12129, District 50, United Mine Workers of America,
C. 1. 0.