The Sherwin-Williams Co.

In the Matter of THE SHERWIN-WILLIAMS COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT 50, C. I. O. Case No. R-2837.-Decided September 15, 1941 Jurisdiction : paint manufacturing industry. Practice and Procedure : petition dismissed where a unit of so-called "engineers", who are primarily engaged as watchmen and whose duties are closely allied with those of other employees at the Company's warehouse is held to be inappropriate for the purposes of collective bargaining. Mr. George D. Bonebrake, of Cleveland, Ohio, for the Company. Mr. Milton J. Davenport and Mr. Stanley Dobry, of Detroit, Mich., for the Union. Mr. Armin Uhler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On April 4, 1941, and on July 15 and 29, 1941, respectively, United Mine Workers of America, District 50, C. I. 0., herein called the Union, filed with the Regional Director for the Seventh Region (Detroit, Michigan) a petition and amended petitions' alleging that a question affecting commerce had arisen concerning the represen- tation of employees of The Sherwin-Williams Company, Detroit, Michigan, herein called the Company, and requesting an investi- gation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 30, 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. 3 The first amended petition was intended to correct the name of the employer while on the second amended petition Acme White Lead & Color Works, a subsidiary, was added as a party. In the course of the hearing it was stipulated , however, that the employees involved herein are employees of The Sherwin-Williams Company. 35 N. L. R. B., No. 95. 434 THE SHERWIN-WILLIAMS COMPANY 435 On July 16, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Compaity and the Union. Pursuant to notice, a hearing was held on July 30, 1941, which was adjourned to August 4, 1941, at Detroit, Michigan, before Colonel C. Sawyer, the Trial Examiner duly ' designated by the Chief Trial Examiner. The Company and the Union were represented by counsel and participated in 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 Company moved to dismiss the proceeding. The Trial Examiner reserved ruling on the motion for the Board. The motion is granted for reasons set forth below. During the course of the hearing, the Trial Examiner made various rulings on other 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 Sherwin -Williams Company , an Ohio corporation with its principal office at Cleveland , Ohio, and offices and warehouses in the principal cities of the United States, operates manufacturing plants situated at Newark, Bound Brook, and Gloucester City, New Jersey; Cleveland, Ohio ; Chicago, Illinois ; and Oakland, California. The Company controls through stock ownership a number of subsidiary corporations, among which are Acme White Lead & Color Works with plants at Detroit, Michigan ; Dallas, Texas ; and Los Angeles, Cali- fornia; and John Lucas & Company , Philadelphia, Pennsylvania, with a plant at Gibsboro, New Jersey . The Company is primarily engaged in the manufacture and sale of paints, varnishes , lacquers, insecticides, dry colors, chemicals, white pigments , and other raw and intermediate materials of the paint and varnish industry . In connec- tion with the sale and distribution of its products , the Company oper- ates retail stores and warehouses located in numerous cities in the United States. One of the Company's warehouses consists of a section of the old Detroit White Lead Works plant , Detroit, Michigan , where the employees involved in this proceeding are located . Goods valued in excess of $500,000 are received at the Detroit warehouse , each year, approximately 95 per cent of which originate in the Company's fac- tories located in other States. Of the materials so received approxi- 451270-42-vol 35--29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mately 95 per cent are distributed in the State of Michigan. The materials distributed from the Detroit warehouse constitute less than 2 per cent of the Company's total annual gross sales. IT. THE ORGANIZATION INVOLVED United Mine Workers of America, District 50, affiliated with the Congress of Industrial Organizations, is a labor organization admit- ting to membership employees of the Company. III. THE ALLEGED APPROPRIATE UNIT The Union contends that certain employees employed by the Com- pany at the Detroit White Lead Works, whom the Union describes as engineers , constitute a unit appropriate for collective bargaining purposes.2 The Company, on the other hand, insists that the unit requested by the Union is inappropriate and that only hourly em- ployees at the Detroit warehouse, excluding watclunen, constitute an appropriate unit. The employees covered by the petition function in a dual capacity. In part, they are employed by the Company as watchmen on the old Detroit White Lead Works premises, a portion of which it utilizes as a warehouse. During the cold season of the year, in addition to patrolling the 17 buildings of the Detroit White Lead Works, they attend a low-pressure boiler which serves exclusively for heating purposes.3 The Union rests its contention in regard to the appro- priate unit chiefly on the ground that the three employees perform duties sufficiently similar to those performed by certain powerhouse employees at the Acme White Lead & Color Works, a wholly owned subsidiary of The Sherwin-Williams Company, and that these power- house employees enjoy status as a separate bargaining unit.' The 'There are three emplo3ees whom the Union seeks to represent. The Trial Examiner at the hearing stated for the record that he had in his possession three membership application cards submitted by the Union to the Regional Director , which bear the signatures of these three employees. 18 The buildings which must be heated consist of the buildings of the Detroit White Lead Works which are used by the Company as a warehouse and those which are leased to certain tenants. 4 In Matter of Acme White Lead c6 Color Works and United Construction Workers Organizing Committee, Local Union 202, affiliated with the Congress of Industrial organ- izations, 29 N. L. R. B. 1158, the Board determined the appropriate bargaining unit for the Acme Works , excluding from the unit , among other groups, powerhouse employees and watchmen Subsequently United Construction Workers Organizing Committee, Local 202, C. I. 0, herein called Local 202 petitioned for a unit of the Acme powerhouse em- ployees United Mine Workers of America , District 50, C. I . 0 intervened in that proceeding and reached an agreement with Acme White Lead & Color Works whereby a separate unit of Acme powerhouse employees was recognized Apparently Local 202 has acquiesced in that agreement . Matter of Acme White Lead & Color Works and United Construction Workers Organizing Committee , Local 202, affiliated with the C. I. O , Case No. VII-R-512. THE SHERWIN-WILLIAMS COMPANY 437 duties of the Acme powerhouse employees and the three employees involved herein are dissimilar in that the latter are primarily engaged as watchmen. Furthermore, the interests of the three employees are closely allied with those of other employees at the Company's Detroit warehouse.5 Under all the circumstances, we find that the unit contended for by the Union is inappropriate for the purposes of collective bargaining and we shall, therefore, grant -the motion of the, Company to dismiss the petition for investigation and certification of representatives filed by the Union. IV. THE QUESTION CONCERNING REPRESENTATION Since, as stated in Section III, we do not find that the unit alleged in the petition filed by the Union is appropriate, we find that no ques- tion has arisen concerning the representation of employees of the Com- pany in an appropriate bargaining unit. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW No question concerning representation of employees of The Sher- win-Williams Company, Detroit, Michigan , in a unit appropriate for the purposes of collective bargaining, has arisen, within the mean- ing of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby orders that the peti- tion for investigation and certification of representatives filed by United Mine Workers of America, District 50, affiliated with the Congress of Industrial Organizations be, and it hereby is, dismissed. The Company emplois at its Detroit warehouse nine employees, four of whom are classified as supervisory, while the remaining five are engaged in receiving, packing, and shipping functions.