American Can Co.

National Labor Relations Board - Board Decisions

Jan 27, 1948

75 N.L.R.B. 1127 (N.L.R.B. 1948)

In the Matter of AMERICAN CAN COMPANY, EMPLOYER and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, LODGE 304, PETITIONER
Case No. 2-R-7652.-Decided January 27,19418
Sirwon , Thacher c€ Bartlett, by Messrs. Edward L. Coffey and
Howard B. Ross, of New York City , for the Employer.
Mr. Carl S. Carlson , of New York City , for the Petitioner.
111r. Clarence Talisman, of Newark, N. J., for the Federal.
Mr. Nathan Witt, of New York City , for the Steelworkers.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed,' a hearing in this case was held at New
York City on May 27 and June 11, 1947, before George Turitz, hearing
officer, During the course of the hearing on May 27, 1947, the Em-
ployer moved for a continuance of this proceeding on the ground that
the Petitioner's amendment with respect to the appropriate unit neces-
sitated additional time to prepare for the new issues raised. The
Federal likewise moved fora continuance on the ground that the Peti-
tioner's amendment to the unit required a new investigation of the
Petitioner's representation among employees in the amended unit.
The hearing officer denied these motions, but on June 11, 1947, the
second day of the hearing, he reversed his ruling and referred the
motions to the National Labor Relations Board. The motion of the
Employer is hereby denied inasmuch as the 2-week interim between
the first and second days of the hearing afforded the Employer ade-
quate opportunity for preparation. The motion of the Federal is
likewise denied inasmuch as any investigation of the Petitioner's pre-
liminary showing of substantial interest in a unit found to be appro-
priate is a matter that lies within the discretion of the Board.2 The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
1 The petition and other formal papers were amended at the hearing to show the correct
name of the petitioner
2 Mattei of 0. D Jennings d Company, 68 N L R. B. 516.
75 N L. R B., No 128.
1127
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
American Can Company, a New Jersey corporation with its main
office at New York City, is engaged in the manufacture, sale, and
distribution of metal and fibre containers. It operates plants in
numerous States of the United States, including one located at Jersey
City, New Jersey, known as the Hudson Plant, which is the only plant
involved in this proceeding. During the past year, the Employer, at
its Hudson Plant, used materials valued at more than $1,000,000, ap-
proximately 75 percent of which came from points outside the State
of New Jersey. During the same period, at its Hudson Plant the
Employer sold finished products valued at more than $1,000,000,
approximately 66 percent of which represents shipments to points
outside the State of New Jersey.
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is an unaffiliated labor organization, claiming to
represent employees of the Employer.
Federal Labor Union 23393, herein called the Federal, is a labor
organization affiliated with the American Federation of Labor, claim-
ing to represent employees of the Employer.
United Steelworkers of America, herein called the Steelworkers,
is a labor organization affiliated with the Congress of Industrial
Organizations.3
III. THE QUESTION CONCERNING REPRESENTATION
The Employer and the Federal executed a contract on April 11, 1946,
covering production and maintenance employees at the Employer's
Hudson Plant, including machinists and tool and die makers. This
*Houston , Reynolds , and Gray.
3 The Steelworkers ' participation was limited , by its own volition , to stating its position
as to the unit, it does not wish to appear on the ballot in the election hereinafter directed.
AMERICAN CAN COMPANY 1129
contract was to expire on April 11, 1947, subject to a 30-day automatic
renewal clause. On March 3 , 1947 , the Petitioner advised the Em-
ployer of its claim of majority representation of the machinists and
tool and die makers at this plant , and requested recognition as their
collective bargaining representative . The Employer refused to grant
such recognition , alleging that these employees were already covered
by a contract with the Federal. Thereupon, the Petitioner filed its
petition on March 5, 1947, prior to the operative date of the automatic
renewal clause contained in the contract between the Employer and the
Federal.
Subsequently on March 7, 1947, the Federal notified the Employer
that it did not wish to renew the current contract , but desired to enter
into negotiations for a new agreement . On March 26 , 1947, the Federal
and the Employer by a supplemental agreement extended their old
contract , pending the negotiations of a new contract . The Petitioner
filed an amended petition on March 24,1947.
Inasmuch as the original petition was filed prior to the operative
date of the automatic renewal clause of the old contract , neither the old
contract nor the supplemental agreement operates as a bar to a current
determination of representatives.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer , within the meaning of
Section 9 ( c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Petitioner seeks a unit of tool and die makers , their helpers and
apprentices , and machinists , their helpers and apprentices at the Em-
ployer's Hudson Plant. The Employer , the Federal , and the Steel-
workers contend , however, that the only appropriate unit for these
employees is the existing production and maintenance unit, presently
represented by the Federal.
The Employer classifies machinists as shop, maintenance , and pro-
duction machinists . The shop and maintenance machinists report to
the machine shop, and are under the supervision of the machine shop
foreman. Production machinists are under separate supervision and
are located in departments throughout the plant. Tool and die makers
are similarly classified and assigned . The tool and die makers and
machinists in the proposed unit constitute a traditionally recognized
craft which the Board has established as a separate unit for the pur=
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses of collective bargaining in this industry;4 and which, in fact,
presently exists in many plants of the Employer.5
The Federal has represented the employees in the proposed unit
since March 1943, when it was selected as their bargaining representa-
tive in a consent election in Case No. 2-R-3866. Since that time, these
employees have been included in a production and maintenance unit in
four successive bargaining contracts between the Employer and the
Federal. They have actively participated in activities of, and settled
their grievances through, the Federal. The operations of the Employer
are integrated, requiring these employees to work in close conj unction
with other plant employees, with whom they share the same or equal
facilities and other benefits.
The tool and die workers and the machinists at the Hudson Plant,
however, have never had an opportunity in an election to express their
desire for separate representations The circumstance that collective
bargaining on a more comprehensive basis has existed at this plant
for several years is not sufficient in itself to deny the employees in the
craft group the opportunity of deciding at the present time whether
they desire to continue to be represented as part of the production
and maintenance unit, or to bargain as a separate unit.
Inasmuch as the tool and die makers and machinists constitute a
traditionally recognized craft, and similar craft units have been estab-
lished in other plants of the Employer, and in the industry generally,
we are of the opinion that the tool and die makers and machinists at
the plant may at this time constitute a separate unit, if they so desire.
The Petitioner would include tool crib attendants in the proposed
unit; the Employer and the Federal apparently would exclude them.
There are four attendants in one tool crib in the large machine shop
and three attendants in another tool crib adjoining Department 34, in
which a small machine shop is located. These attendants do not
confine their services to any particular group of employees but serve the
entire plant, dispensing tools and miscellaneous items, such as gloves,
brushes, lamps, nails, screws, pipe fittings, and other materials. Their
work requires no skill. Their interests and duties are not confined to,
4 Matter of Continental Can Company, Inc., 73 N L R B 1375, and cases cited therein.
3 The Employer has 79 plants throughout the United States At 22 of them there is no
labor organization , at 10 of them, it has separate contracts covering machinists' units , at
7 of them, it has separate contracts with crafts other than machinists ; and at 40 of them,
it has contracts coveiing production and maintenance units, including the machinists
0In December 1942, the Petitioner, then affiliated with the Federal, was attempting to
organize these employees At the time, the Federal was attempting to organize a produc-
tion and maintenance unit, including these employees A conference was held in March
1943, by representatives of the organizing committee, the Petitioner, and the Federal, at
which it was decided that a production and maintenance unit would be more expedient at
that time Consequently the Petitioner withdrew and did not appear on the ballot in the
subsequent election in which the Federal was selected as bargaining representative
AMERICAN CAN COMPANY 1131
or so closely allied with, those of machinists and tool and die makers
to warrant their inclusion in a craft unit. We shall therefore exclude
them.'
Under the circumstances , we shall make no unit determination pend-
ing the outcome of the election hereinafter directed . If, in this elec-
tion, the employees select the Petitioner, they will be taken to have
indicated their desire to constitute a separate bargaining unit. We
shall not place the name of the Federal on the ballot , inasmuch as it
has not complied with Section 9 (f), (g), and (h) of the Act, as
amended."
In accordance with the foregoing, we shall direct that an election
be held among all tool and die makers, their helpers, and their ap-
prentices , and machinists , their helpers , and their apprentices at the
Employer's Hudson Plant, excluding tool crib attendants and super-
visors, as defined in the amended Act.
DIRECTION OF ELECTION
As part of the, investigation to ascertain representatives for the
purposes of collective bargaining with American Can Company (Hud-
son Plant), Jersey City, New Jersey, 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 Second Region, and subject to Sections
203.61 and 203.62, of National Labor Relations Board Rules and Regu-
lations-Series 5, among the employees in the voting group described
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 said pay-roll period because they were ill or
on vacation or temporarily laid off , but excluding 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, and also excluding em-
ployees on strike who are not entitled to reinstatement , to determine
whether or not they desire to be represented by International Associa-
tion of Machinists , for the purposes of collective bargaining.
T Matter of Sunbeam Corporation, 74 N. L R. B. 976 ; Matter of Argus Manufacturing
Company, 63 N. L. R. B 1159.
8 Matter of Wilson Transit Company, 75 N. L. R. B. 181.