American Can Co.

National Labor Relations Board - Board Decisions

May 8, 1950

89 N.L.R.B. 1220 (N.L.R.B. 1950)

In the Matter of AMERICAN CAN COMPANY, EMPLOYER and INTERNA-
TIONAL BROTHERHOOD OF BLACKSMITHS , DROP FORGERS AND HELPERS
AFL, LOCAL 168, PETITIONER
Case No. 20-RC-702.-Decided May 8, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Harry Baln-
ford, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.,
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-member panel [Members Reynolds, Murdock, and
=Styles].
Upon the entire record in this case, the Board finds : 2
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Intervenor, and the California Metal Trades Association,
herein called the Association, have been parties to successive collective
bargaining agreements since 1938.3 One of the Association's func-
tions is to negotiate with labor organizations collective bargaining
contracts on behalf of its member firms. The Employer has been
a member of the Association for some time prior to this proceeding.
However, during the 1949 contract negotiations between the Inter-
venor and the Association, the Employer withheld the power of
attorney designating the Association as its collective bargaining agent
1 International Association of Machinists , and its Local 68, herein called the Intervenor,
was permitted to intervene on the basis of an alleged contractual interest.
2 The hearing officer referred to the Board the Intervenor 's motion to dismiss the peti-
tion on the ground that a contract is a bar to this proceeding . Such motion will be
considered hereinafter.
3 For a more comprehensive history of collective bargaining between the Intervenor
:and the Association, see California Metal Trades Association , et al., 72 NLRB 624.
89 NLRB No. 126.
1220
AMERICAN CAN COMPANY 1221
because of disagreement with regard to a proposed insurance plan
which the parties were negotiating.
In April 1949, during the period of the Employer's withdrawal,
the Association and the Intervenor executed a master agreement, which
'expires on July 1, 1950. In August 1949, the Employer executed
and forwarded its power of attorney designating the Association as
its collective bargaining agent. The contract lists all of the Asso-
ciation members except that of the Employer. The record indicates
that upon receipt of the Employer's power of attorney, the Association
notified and gave a copy thereof to the Intervenor. However, the
parties did not subsequently supplement the master agreement to
include the Employer therein. We therefore find that the contract,
insofar as it applies to the Employer, is at best an oral argeement,
which cannot operate as a bar to a present determination of repre-
sentatives.4 Accordingly, the Intervenor's motion to dismiss the peti-
tion on this ground is denied.5
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.
4. The Petitioner seeks. a unit of all employees in the blacksmith
and heat treating departments. The Intervenor contends that these
departments should not be severed from the over-all unit. The Em-
ployer contends that the departments should either be joined in a
single unit or be included in the over-all unit.
- The blacksmith and heat treating departments consist in the one
case of a hammerman, and in the other of a heat-treater, together with
their respective helpers.6 In the process of manufacturing the various
tools, dies, and machine parts required by the Employer, castings re
ceived from an outside manufacturer are brought into the blacksmith
department where they are placed on the steam hammer and forged
into parts to be used by the production department. Tolerances of
from one-eighth of an inch plus to one-eighth of an inch minus are re-
quired. The hammerman operates the steam hammer and is con-
sidered by all of the parties to be a highly skilled machine operator
requiring from 'approximately 11/2 years to 2 years' training to be-
come. proficient in the hammer operation. From the blacksmith shop
4 See The Association of Motion Picture Producers, Inc., et at., 87 NLRB 657 ; Eicor, Inc.,
46 NLRB 1035.
1In view of our finding herein, we deem it unnecessary to pass upon whether the con-
tract would operate as a bar, where as here, the classifications of employees sought have
not been listed in the agreement and do not appear to be covered by it.
0 Both helpers jobs call for aptitude rather than skill or training, and, in the course
of their work, the helpers each acquire the skills and experience of their respective
superior.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the castings are then removed to the adjacent heat treating depart-
ment and there subjected to an annealing process by the heat-treater.
The record discloses that from the point of view of skills, the heat-
treater is considered even more highly skilled than the hammermen,.
requiring at least 4 years of training to become proficient in his work.
Both the hammerman and the heat-treater receive rates of pay equiva-
lent to that of the journeymen machinists in the plant, and the
helpers receive the same pay as machinists' helpers. It further ap-
pears that there is no interchange of employees in these departments.
with those of other departments.
From the foregoing facts, we are of the opinion that the hammer-
man and the heat-treater and their helpers have skills and functions-
within the traditional craft of blacksmiths. As a recognized craft
group, they may constitute a separate appropriate unit.? However,
as the inclusion of the blacksmith department and the heat-treating-
department employees in the existing production and maintenance
unit is also clearly appropriate, we shall not make any final unit deter-
mination at this time, but shall first ascertain the desires of these em-
ployees as expressed in the election hereinafter directed. If thee
majority vote for the Petitioner, they will be taken to have indicated'
their desire to constitute a separate appropriate unit.
In accordance with the foregoing, we shall direct that an election
be held among all hammermen, heat-treaters, and their helpers in the-
blacksmith and heat treating departments at the Employer's San
Francisco, California, plant, excluding guards, professional employ-
ees, supervisors, and all other employees.
DIRECTION OF ELECTION 8
As part of the investigation to ascertain representatives for the•
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case wasp
heard, and subject to Sections 203.61 and 203.62 of National Labor-
Relations Board Rules and Regulations, among the employees in the,
voting group described in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not
work during said 'payroll period because they were ill or on vaca-
tion or temporarily laid off, but excluding those employees who have
7 Plomb Tool Company, J. P. Danielson Division, 87 NLRB 134; Merck cG Co., Inc., 88
NLRB 975.
$ Either participant in the election directed herein may , upon its prompt request to, and
approval thereof by , the Regional Director , have its name removed from : the ballot.
AMERICAN CAN COMPANY 1223
: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 they desire to be represented, for purposes of collective bar-
gaining, by International Brotherhood of Blacksmiths, Drop Forgers
.and Helpers, AFL, Local 168, or by International Association of
Machinists, Local 68, or by neither.