The Sherwin-williams Company And Chemical Workers Union No. 22215, American Federation Of Labor, 260 (1941)

In the Matter of THE SHERWIN-WILLIAMS COMPANY and CHEMICAL WORKERS UNION No. 22215, AMERICAN FEDERATION OF LABOR Case No. C-1875.-Decided December 5, 1941 Jurisdiction: paint manufacturing industry.

Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements; questioning employees about the activities of 'outside' union and reasons for its formation;

unlawful advocacy of inside union.

Employer's requirement that its foremen renounce their union affiliation or suffer demotion held appropriate and not to constitute an unfair labor practice where under the circumstances such action was taken to counteract their interference with the right of the subordinate employees to selforganization.

Collective Bargaining: charges of, dismissed.

Held: it is not incumbent upon an employer when confronted with demands of two competing organizations as bargaining representative of employees to grant exclusive recognition to either of such organizations.

Remedial Orders: employer ordered to cease and desist unfair labor practices.

Mr. Christopher W. Hoey, for the Board.

Messrs. Thomas F. Veach and George D. Bonebrake, of Cleveland,

Ohio, for the respondent.

Mr. Leon Gerofsky, of Somerville, N. J., for the Independent.

Mr. Samuel R. Isard, of Newark, N. J., and Mr. Charlton Ogburn, by Mr. C. C. Johnson, of New York City, for the Union.

Mr. Bliss Daffan, of counsel to the Board.

DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been duly filed by Chemical Workers Union No. 22215, American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated November 29, 1940, against The Sherwin-Williams Company, Bound Brook, New Jersey, herein called the respondent, alleging that the respondent had engaged in 260 and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.

Copies of the complaint and accompanying notices of hearing thereon were duly served upon the respondent, the Union, and Independent Labor Union of Sherwin-Williams Employees, herein called the Independent.

Concerning the unfair labor practices, the complaint as amended at the hearing,' alleged in substance that the respondent: (1) urged, persuaded, and warned its employees at its Bound Brook, New Jersey, plant against aiding, becoming, or remaining members of the Union;

threatened its employees with discharge, demotion, or other reprisals if they joined or aided the Union; expressed hostility towards the Union, indicated approval of the Independent; and urged, persuaded, and warned its employees to join or assist the Independent; (2) refused to bargain collectively with the Union as the exclusive representative of the employees of the respondent within an appropriate unit, although the majority of such employees had designated the Union as their bargaining agent; and (3) by the foregoing and other acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.

On December 9, 1940, the respondent filed its answer to the complaint, in which it denied that it had engaged in any unfair labor practices as alleged in the complaint and alleged aiirmatively that it had bargained collectively.2 The respondent, in its answer moved to dismiss the complaint, and also moved that the complaint be made more definite and certain or, in the alternative, that it be furnished with a bill of particulars.

Pursuant to notice, a hearing was held from December 9 through 12, 1940, and January 7 through 21, 1941, at Somerville, New Jersey, before Tilford E. Dudley, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, the Union, and the Independent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and crossexamine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing the respondent urged the formal motions contained in its answer to dismiss the complaint and for a bill of particulars. The Trial Examiner overruled both of said motions. Likewise, at the opening of the hearing, the Independent filed a motion to intervene which was 1The complaint was amended without objection to change the description of the appropriate unit to include therein shipping employees.

a During the course of the hearing, on January 7, 1941, the respondent filed a supplemental answer, in which it alleged that it had failed to come to an agreement with the Union because the Union's demands were unreasonable.

433257-42--VOL. 37-- 18 granted by the Trial Examiner over the objection of the Union.

Thereupon the Independent filed its answer in which it denied that the respondent had warned, urged, or persuaded its employees to join the Independent, and alleged affirmatively that the respondent had permitted its supervisory employees to persuade and warn its employees to become members of the Union and to refrain from becoming or remaining members of the Independent, and that the respondent had refused to bargain collectively with the Independent, which had been designated as the representative for collective bargaining by a majority of the employees in an appropriate unit.

Motions by the Board and the Union to strike the affirmative matter from the Independent's answer were denied by the Trial Examiner.

At the close of the Board's case and again at the close of the hearing, the respondent moved that the complaint be dismissed. The Independent joined in these motions in so far as the complaint pertained to it. These motions were denied by the Trial Examiner.

At the close of the hearing, counsel for the Board moved that the pleadings be conformed to the proof in regard to minor matters and stated that he did not thereby seek to enlarge the complaint. This motion was granted by the Trial Examiner. During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evidence. We have reviewed the rulings of the Trial Examiner and find that no prejudicial errors were committed, The rulings are hereby affirmed.

On February 4, 1941, a stipulation was entered into between counsel for the Board, the respondent, the Union, and the Independent as to certain corrections in the transcript of testimony at the hearing, and on March 10, 1941, an order was issued by the Trial Examiner incorporating the stipulation as part of the record and directing that the corrections be made in the transcript of testimony in accordance with said stipulation.

On May 15, 1941, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent, the Union, and the Independent. The Trial Examiner found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act, and recommended that it cease and desist therefrom and take certain appropriate affirmative action.

On June 7 and June 16, 1941, respectively, the respondent and the,Independent filed exceptions to the Intermediate Report. Pursuant to notice duly served upon all parties, a hearing was held before the Board in Washington, D. C., on August 14, 1941, for the purpose of oral argument. The respondent and the Independent were represented by counsel and participated in the argument.

263 The Board has considered the exceptions of the respondent and the Independent to the Intermediate Report and except in so far as the exceptions are consistent with the findings, conclusions, and order set forth below, finds no merit in them.

Upon the entire record in the case, the Board makes the following:

FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, The Sherwin-Williams Company, is an Ohio corporation with general offices at Cleveland, Ohio. It operates 14 plants in 9 different States in which it manufactures paints, varnishes, enamels, lacquers, insecticides, coal-tar products, disinfectants, cleaners, and related products. It also owns plants in Cuba and Argentina. The present proceeding relates only to the respondent's plant at Bound Brook, New Jersey, at which the respondent manufactures agricultural insecticides, arsenic acids, and disinfectants.

In the year 1939, the Bound Brook plant used approximately 20,000 tons of raw materials, of which 98 percent was shipped to the plant from points outside the State of New Jersey. During the same year, the products of the Bound Brook plant aggregated about 20,000 tons, of which 97 percent was shipped to points outside the State of New Jersey. The respondent employs approximately 210 employees at its Bound Brook plant.

2. THE ORGANIZATIONS INVOLVED Chemical Workers Union No. 22215 is a labor organization affiliated with the American Federation of Labor, herein called the A. F. of L. It admits to membership employees at the respondent's Bound Brook plant.

   The Independent Labor Union of Employees of Sherwin-Williams is an unaffiliated labor organization which admits to membership employees at the respondent's Bound Brook plant.

3. THE UNFAIR LABOR PRACTICES A. The chronology of events (1) Formation of the Union In November 1939 the employees at the respondent's Bound Brook plant began discussing the formation of unions and the increase in wages at nearby plants. Some employees suggested the formation of a union at the respondent's plant. Accordingly, during about the second week of that month, John Malko,' a foreman in the finishing department, together with some other employees, prepared a petition reading as-follows: 'We, the undersigned, hereby give our undivided support to the organization of Insecticide...