American Can Co.

National Labor Relations Board - Board Decisions

May 18, 1944

56 N.L.R.B. 657 (N.L.R.B. 1944)

In the Matter of AMERICAN CAN COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS , A. F. OF L.
Case No. 3-R-780.=Decided May 18, 1944
Mr. Morgan J. Callahan, Jr., of New York City, for the Company.
Mr. Daniel J. Omer and Mr. Stephen M. Estey, for the Union.
Mr. William Strong, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by -International Association of Machin-
ists, A. F. of L., herein called the Union, alleging that a question af-
fecting commerce had arisen concerning the representation of
employees of American Can Company, Geneva, New York, herein
called the Company, the National Labor Relations Board provided for,
an appropriate hearing upon due notice before Milton A. Nixon, Trial
Examiner. Said hearing was- held at Geneva, New York, on April
17, 1944. The Company and the Union appeared and participated.
All parties 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. All parties were af-
forded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FTNDTNOS OF FACT
T. THE RTTSTNFSS nF THE COMPANY
American Can Company operates a plant at Geneva, New, York,
-where it is engaged in the manufacture of Army ordnance materiel.
Between April 1, 1943 and April 1, 1944, the Company used raw ma-
terials valued in excess of $100,000, 75 percent of which was transported
to Geneva from points outside the State of New York, and manufac-
tured finished products valued in excess of $100,000, 75 percent of which
.,was shipped to points outside the State of New York.
56 N. L R B., No. 127. -
587784-45-vol. 56-43 657
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
11. THE ORGANIZATION INVOLVED
International Association of Machinists, affiliated,with the'Ameri-
can Federation of Labor, is a labor organization admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition'to the Union as the
exclusive bargaining representative of certain of the Company's em-
ployees until the Union has been certified by the Board in an appro-
priate unit. `
A statement of a Board agent; introduced into evidence at the hear-I,,
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter- found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company,_withln the meaning
,of Section 9 (c) and Section'2 (6) and (7) of the Act.,
IV. THE APPROPRIATE UNIT
The Union seeks a unit composed of all production and maintenance
'employees of the Company, excluding, office and clerical employees,
;Uniformed plant guards, drafting and designing department em-
ployees; the powerhouse stationary engineer, foremen, assistant fore-
men, and all other supervisory employees. The Company agrees with
the.Union, except that, it would limit the unit to all hourly paid
production and maintenance employees; and would exclude watchmen.
The Company now employs only hourly paid production and main-
tenance employees; and states that it has no present ihtention of chang-
ing the remuneration of. any of these employees from an hourly to a
salary basis. The Union asserts, and the Company concedes, that the
Company could alter the constituency of an hourly paid unit by plat-,
ing individuals,in it on a salary basis.
No cogent reason appears for limiting the unit sought by the Union
in the manner desired by the Company. The method of remuneration
is, but one of the 'factors considered in determining an appropriate
unit; it is not necessarily the decisive factor. The Union desires to
represent all employees engaged in production and maintenance work.
Since the Union is the sole labor organization involved in this pro-
The Field Examiner reported that the-Union submitted 365 authorization cards, all of
which bore apparently genuine original signatures, and that about 563 employees are in
the appropriate unit.
AMERICAN CAN COMPANY 659
ceeding, and no persuasive considerations are present compelling the
exclusion, • from the' unit of production and maintenance employees -
who in the future might be changed from an hourly to a salary basis,
'remaining, however, production, or maintenance employees in non-
supervisory classifications, we shall include all production and' main-
tenance employees in the unit. There are no watchmen employed by
the Company; it does, however, employ uniformed plant, guards. We
shall not'_niake any findings as to nonexistent-categories of employees.
We find that all production and maintenance employees of the
Company at its Geneva, New York, plant, excluding office and clerical,
employees, uniformed plant guards, drafting and designing depart-
ment' employees, the powerhouse stationary engineer, .foremen, as-
sistant foremen,and any other supervisory employees with authority
to hire, promote, discharge, discipline or otherwise effect changes in
the status of employees., or effectively recommend such action, con-
stitute 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,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 9, of National ,Labor Rela-
tions Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as'part of the investigation to-ascertain representa-
tives for the purposes of collective bargaining with American Can
Company, Geneva, New York, 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 Third Region,-acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, 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, including employees who did not work during
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the said pay-roll period because they were ill or on vacation or tempo-
rarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether or not they desire to be represented by
International Association of Machinists, affiliated with the American
Federation of Labor, for the purposes of collective bargaining.