The Kay and Ess Co.

National Labor Relations Board - Board Decisions

Apr 17, 1943

48 N.L.R.B. 1387 (N.L.R.B. 1943)

In the Matter of THE KAY AND Ess COMPANY and GAS, COKE AND
CHEMICAL INTERNATIONAL UNION, C. I. O.
Case No. RD060.Decided April 17,1943
Jurisdiction : varnishes , enamels and lacquers manufacturing industry.
Investigation and Certification of Representatives : existence • of question when
a contract was found not to bar a determination of representatives in that the
identity and affiliation of the contracting union was in doubt, and the conflicting
claims of rival representatives created an unresolved doubt with respect to the
identity of the labor , organization which the employees of the company desired to
represent them ; election necessary.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, including watchmen, but excluding supervisory employees , office and
clerical employees , and armed or militarized guards.
Estabrook, Finn & McKee, by Mr. Harry L. La'wner, of Dayton,
Ohio, for the Company.
Messrs. Fred -Fudge, Carl Jacobs and Jack Fiske, ,of Dayton, Ohio,
for the C. I. O.
Messrs. George E. Rice and Michael Roy Trout, of Cincinnati, Ohio,
for the U. M. W.
Mr. William R. Cameron, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed' by Gas, Coke and Chemical International
Union, ' C. I. 0., herein called the C. I. 0., alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Kay and Ess Company, Dayton, Ohio, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Thomas E. Shroyer, Trial
Examiner. Said hearing,wa`s held at Cincinnati, Ohio, on March 26,
1943. The Company, the C. I. 0., and Local 13001, District 50, Chem-
ical Division, United Mine' Workers of America, -herein called the-
U. M. W., appeared, participated, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby, affirmed.
The U. M. W. filed a brief, which the- has,considered.
48 N. L. R B., No. 170.
1387
1388 DECISIONS OF NATIONAL LABOR RELATIONIS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE-COMPANY
The Kay and Ess Company, an Ohio corporation, has its principal
office and place of business in Dayton, Ohio. It is engaged in the
manufacture, sale, and distribution of varnishes, enamels and lacquers.
Over 90 percent of the 'raw materials used is obtained from points
outside the State of Ohio, and over 50 percent of the finished products
is sold and delivered to places'outside the State of Ohio. It employs
approximately 70 employees. During 1942 its volume of business
exceeded $500,000 in value.
• II. THE ORGANIZATIONS INVOLVED
Gas, Coke, and Chemical International Union is a' labor organiza-
tion affiliated with the Congress of Industrial Organizations, ad=
mitting. to membership employees of the Company.
Local 13001, District 50, Chemical Division, United Mine Work4
ers of America is a •labor , organization admitting to membership
employees of the Company. -
III. THE QUESTION CONCERNING REPRESENTATION
On March 13, 1942, Local- 13001 of the U. M. W., as collective
bargaining representative of the employees, entered into a contract
with the Company for the term. of 1 year with provision for auto-
matic renewal for similar periods unless either party gave written
notice to the other, 30: days before -its expiration date, requesting a
change. On February 10, 1943,,a meeting of Local 13001 was held
at.which action was taken purporting to sever its affiliation with the
U.. M: W. and to ,affiliate, with' the C. I._ O. -By letter' dated Feb"
ruary 13, 1943, the International representative of the C. I. 0.- noti=
fled the Company of its desire to. make some changes in the contract
and requested a bargaining conference. By telegram of March 1,
1943, the Regional Director of the U. M. W. notified the Company
that the U. M. W. still claimed to be sole bargaining agent and
likewise requested a• bargaining conference. The Company then
- refused to bargain with either union, but indicated at the hearing
that it was ready and willing to negotiate with either union pro-
videdit was certified as the duly authorized representative of its
employees. .
The U. M. W. which acted as bargaining representative of the
employees in negotiation of the contract with, the Company, con-
tends that -the continuance of the contract is a bar to an election
l
THE KAY 'AND- EuSS COIVIPAN-f 1389
to ascerthi'n bargaining representatives at the present time. It'based
its contention on the ground that the contract was automatically
renewed for another yearly period since neither Local 13001 nor the
Company gave notice of intention to terminate the contract 30 or
more days prior to March 13, 1943, the expiration date. The C. I. O.
contends that by virtue of the alleged• withdrawal of the members-of
the local union from the U. M. W. and their acceptance of member-
ship in the C. I. 0., the latter organization is successor to U. Al. W.
as bargaining representatives of the Company's employees. The
C. I. 0., as hereinafter indicated, claims at the present time to repre-
sent a majority of the Company's employees.
The Board, as a general rule, will-not proceed with an investiga-
tion as to representation when 'there exists a contract urged as a bar
by a party. The Board, however, has, in prior cases found that a
contract is not a bar to a determination of representatives where
there exists substantial doubt as to the identity of the labor organ-
ization that claiiiis to be the party to the contract.1 In this case the
present identity, and affiliation of the local union which entered into
the contract with the Company is in doubt. Resolution of this
question, involving as it does the application and construction of
the constitutions of the U. Al. W. and the C. I. O. and of the char-
ters granted to the local unions, affiliated with these organizations,
is not a function of the Board. -However, the conflicting claims of
the U. M. W. and C. I. O. do establish that there is an unresolved
doubt with respect to the identity of the labor orgainzation which
the employees of the Company desire to represent them. Under such
circumstances, we hold that the contract does not .constitute a bar
to a present determination of representatives.
It is also contended by the U. M. W. that the pendency of an
arbitrated wage dispute before the National War Labor Board is
a bar to an election at this time. Sometime early in. 1942, the
U. M. W. obtained a verbal agreement, with the Company securing
a wage increase of 10 cents,per hour. The Company later, after giv-
ing notice to the U. M. W., discontinued the increase, and in Novem-
ber 1942 the matter was submitted to arbiters, who made a finding
favorable to the employees. On or about December 27, 1942, the
dispute appears to have been submitted to the National War Labor
Board and is pending without settlement at the present time. We
find that the pending" wage dispute does not in this case preclude
an election , but rather, in view of the uncertainty which appears to
See Matter of Brenizer Trucking Company, et al. and United Paving and Building
Supply Workers , Local Industrial Union ##1221, C.•I. 0, 44 N.. L. It. B. 810 ; Matter of
Rarb,son -Walker Refractories Company and United Clay Products Workers Local Indus-
trial Union # 1205, etc, 44 N. L. It. B 816; Atlantic Waste Paper Company, Inc. and
United Construction Workers, Division of District 50, U. M. W. - and Congress of Industrial
Organizations , 45 N.-L. R. B. 1087.
J
1390 DECISIO 'N'S OF NATIONAL LABOR RELATIONS BOARD
exist as to exclusive, bargaining representative of the employees, the
existence of an unsettled wage dispute is an additional reason that
the question concerning representation should be determined at this
time. ,
A statement of the Field Examiner , introduced into evidence at
the hearing , indicates that the C . I. 0. represents a substantial num-
ber of employees in the unit hereinafter found to be appropriate.2
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company , within the mean-
ing of Section 9 (c) and Section 2 (6) and ( 7) of the Act.
IV. THE APPROPRIATE UNIT
The parties are agreed"that the unit should consist of all produc-
tion and maintenance employees, excluding supervisory employees and
office and clerical employees. A question arose at the hearing, how-
ever, with respect to watchmen. The contract of March 13, 1942,
between Local 13001 and the Company, covered "all hourly paid
employees" and thus included the three watchmen who were then
employed, as well as production and maintenance employees. Since
the summer of 1942, the Company has employed two additional watch-'
men, who were hired upon the understanding that this employment
was for the duration of the present emergency arising from the war,
and that they might be discharged whenever, in the Company's opinion,
the emergency is over. They were not deemed to -be covered by the
contract, and the parties agree that these two additional watchmen
should be excluded from the bargaining unit.
The additional watchmen are employed on the same basis as to'
'pay and other conditions of employment, -and have exactly the. same
duties, as the watchmen regularly employed. We perceive no rea-
son for distinguishing between the watchmen employed prior to
'the emergency and those more recently hired. There is no evidence
indicating that any of the watchmen carry arms, have been sworn in
as members of the auxiliary police, or 'are under the supervision
of the armed forces of the United States. In the absence of such
showing, we shall include the, watchmen, including those recently
employed, in the unit. We shall, however, exclude armed or mili-
tarized guards, if, any.
We' find that all production and maintenance employees of the
Company, including watchmen, but excluding supervisory employees,
2 The Field Examiner reported that the C. I. O. submitted 37 membership cards bearing
apparently genuine signatures of persons whose names appear on the Company's pay
roll dated March 12, 1943, containing 40 names in the unit claimed appropriate, and 1
card bearing a typewritten signature corresponding to a name on that pay roll Of the
cards corresponding to the names ' on, the pay roll, 31-were- dated February 10, 1943, 3
were dated February 12, 1943, and 4 were dated February 18, 1943.
The U. M. W. relies upon the contract referred to above as establishing its interest.
THE KAY - AND ESS COMPANY 1391
office and clerical employees , and armed or militarized guards, consti-
tute 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 em-
ployees 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 df 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 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it
is hereby
DIRECFED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with the Kay and Ess
Company, Dayton, Ohio, an election by secret ballot shall be con-
ducted 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 Ninth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Section 10, of said Rules and Regulations, among the employees
in the unit found appropriate in Section IV, above, who were em-
ployed during the pay-'roll period immediately preceding the date
of this Direction , including any such employees who did not work
during said pay-roll period,because„they were ill or on vacation or
temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding any who have since quit or been discharged for cause,
to determine whether they desire to be represented by Gas, Coke and
Chemical International Union, 'affiliated with the Congress of Indus-
trial Organizations , or by Local 13001, District 50, Chemical Division,
United Mine Workers of America, for the purposes of 'collective
bargaining , or by neither. - - • ,