Atlas Imperial Diesel Engine Co.

National Labor Relations Board - Board Decisions

Apr 12, 1950

89 N.L.R.B. 372 (N.L.R.B. 1950)

In the Matter of ATLAS IMPERIAL DIESEL ENGINE CO. AND HUNT
FOODS, INC., EMPLOYERS and INTERNATIONAL ASSOCIATION OF
MACHINISTS, DISTRICT LODGE No. 115, PETITIONER
Case No. 20-RC-708.-Decided April 12, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Nathan R.
Berke, 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 [Chairman Herzog and Members
Houston and Styles].
Upon the entire record in this case, the Board finds: 1
1. The Employers, Atlas Imperial Diesel Engine Co., herein called
Atlas, and Hunt Foods, Inc., herein called Hunt, are engaged in com-
merce within the meaning of the National Labor Relations Act.
2. The labor organizations involved claim to represent certain
employees of the Employers.
3. A question affecting commerce exists concerning the representa-
tion 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 production and maintenance
employees at the can manufacturing plant at Hayward, California,
excluding all other employees of Hunt's cannery, office and clerical
employees, and supervisors. It contends that the employees in the
can manufacturing plant are employees of Atlas, and are not covered
by any collective bargaining agreement. The United Steelworkers of
America, CIO, herein called the Steelworkers, takes the same position
as that of the Petitioner. The Employers and Cannery Warehouse-
After the conclusion of the hearing, the Employers requested that the record be re-
opened for the purpose of rebutting the testimony of a witness at the hearing. Inasmuch
as this rebuttal evidence would be cumulative, and is unnecessary for a decision of the
issues, this request is hereby denied.
89 NLRB No. 42.
372
ATLAS IMPERIAL DIESEL ENGINE CO . 373
.men, Food Processors, Drivers and Helpers Union No. 768, affiliated
with the International Brotherhood of Teamsters and Chauffeurs,
AFL, and California State Council of Cannery Unions, herein called
the Cannery Union, contend that the unit' requested by the Petitioner
is inappropriate, and that the only appropriate unit is one composed
of employees in both the can manufacturing and food processing
plants.2 They further contend that the employees in the can manu-
facturing plant are employees of Hunt, and that a contract between
California Processors and Growers, Inc., herein called C P & G,3
and California State Council of Cannery Unions, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
AFL, herein called the Council, has been extended to cover these em-
ployees 4
Hunt is engaged in the business of processing and canning fruits
and 'vegetables. It owns and operates plants in California, Oregon,
and Washington. Only Plant No. 1 in Hayward, California, is in-
volved in this proceeding.' Atlas is engaged in the manufacture
of glass containers, sanitary tin cans, can making machinery, and
Diesel engines and parts. Only the can manufacturing operations at
Hayward, California, is involved in this proceeding.6 '
The control of the two corporations is vested in Norton Simon,
chairman of the board of Hunt, and his associates, who own the
controlling stock in both Atlas and Hunt. Simon personally has
working control of Atlas, and Hunt owns $500,000 worth of preferred
stock in Atlas.
In May 1947, Atlas installed a pilot plant for the manufacture of
cans in Hunt's Plant No. 1. Production of cans did not actually start
until 1948, and full production was not reached until 1949. The Atlas
executives in charge of the can manufacturing operations consist of
a vice president in charge of operations, a division manager, a plant
2 The Employer and the Cannery Union allege that the requested unit is Inappropriate
because of the history of collective bargaining for these employees ; the integrated nature
of operations of the can manufacturing and food processing plants ; the community of in-
terest and interchangeability of employees In both operations ; and the common labor rela-
tions policies governing both operations.
8 C P & G is an organization of approximately 42 companies who are engaged in the
processing of fruits and vegetables . Its primary function is to handle collective bargaining
matters for the member companies on an industry -wide basis . Atlas is not a member of
C P & G.
4 None of the parties contend that this contract Is a bar to the present proceeding. The
Cannery Union and Hunt are parties to this contract . Atlas is not a party to the contract.
' Hunt operates another plant in Hayward , called Plant No. 3, Located one block away
from Plant No. 1. No cans are manufactured in Plant No . 3, but Atlas operates a glass
factory in a building leased from Hunt at its No. 3 plant . Fifty percent of the output of
the glass plant is purchased by Hunt ' s Plant No. 3.
9 Atlas operates a can manufacturing plant in Fullerton, California , which is located in a
separate building owned by Hunt , and whose output is taken by Hunt 's cannery at Fuller-
ton. Atlas also operates a can manufacturing plant in Oakland , California , which is near
Hayward.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager, an assistant plant manager, and a can shop foreman. They
are hired and paid by Atlas, and are not responsible to any Hunt
officials., They have offices, separate from those of the Hunt execu-
tive offices, in Plant No. 1.
The can manufacturing operations are conducted pursuant to an
agreement between Atlas and Hunt,7 whereby Atlas leases space within
Hunt's Plant No. 1 to house machinery and equipment to make cans
which are used by Hunt to pack its products." The agreement pro-
vides that Atlas is to operate a can plant at Hayward for 10 years,
during which time it will furnish all of Hunt's requirements at
Hayward.9
The parties have a detailed agreement concerning the payment for
services to be rendered by Hunt for the benefit of Atlas in connection
with can manufacturing operations carried on in Plant No. 1, in
Hayward. Under this agreement, Hunt's personnel department hires
all hourly paid employees for the can manufacturing operations Y0
Supervisory personnel, including can manufacturing foremen, are
hired by Atlas officials.11 The foremen recommend dismissal of em-
ployees in can manufacturing operations 12 Hunt's personnel director
personally handles all layoffs of employees.
Hunt's payroll department maintains the payroll for all hourly
paid employees in can manufacturing, and they are paid by Hunt
checks 13 Until January 1950, these checks were a different color and
bore different serial numbers from those used to pay employees in
Hunt's food processing plant 14 Hunt pays the withholding and social
security taxes for employees in can manufacturing 15
Vacations, rates of pay, and other conditions of employment are
essentially the same for employees in can manufacturing and in the
food processing plant. Vacations are granted to all employees on the
same basis, and are scheduled by Hunt's personnel office. Work in
both can manufacturing and in the food processing plant is considered
° This agreement also covers the Fullerton plant.
8 The machinery and equipment used to make cans are owned by Atlas.
9 Hunt buys the entire output of cans manufactured at Plant. No. 1.
10 The foremen in can manufacturing send written requisitions for labor , as it is required,
to Hunt's personnel department , which then hires the necessary number of employees.
Sometimes , the, can , manufacturing foremen interview and pass upon applicants before they
.are finally hired.
11 Can manufacturing foremen are generally upgraded from rank -and-file employees, and
are not hired from the outside.
13 Before final action is taken, this recommendation is investigated by Hunt's personnel
director or his staff . The foremen's recommendations , however, have always been effectuated.
13 There is a single payroll for all hourly paid employees in Plant No. 1. Up until Janu-
ary 1950, can manufacturing employees received their checks at a separate window which
was marked "Atlas Can" or "Can Department."
11 Since January 1950, there has been a one-number identification system for employees in
can manufacturing and food processing.
1' Hunt is reimbursed for these payments by Atlas, under the agreement between the
Employers...
ATLAS .IMPERIAL DIESEL ENGINE CO. 375-
in determining vacation benefits of employees. Can manufacturing
employees work a 40-hour week, and receive time and a half after
40 hours. Certain employees in Hunt's food processing plant work a
48-hour week during an exempt period permitted by .the Fair Labor
Standards Act. During the nonexempt period, employees in the food
processing plant receive time and a half after 40 hours, on the same
basis as do employees in can manufacturing.
There is frequent interchange of personnel between can manufac-
turing and the food processing plant,16 especially during slack seasons
in either of the operations.17 When. such transfers take place, there is.
no loss of seniority. Seniority is plant wide, and is based upon the
provisions of the contract between C P & G and the Council.", There
is no interchange of supervisory personnel.
There have been transfers of employees from the can manufacturing
operations in Hayward to the Atlas plants in Fullerton and Oakland.
Atlas' plant or division managers arrange for such transfers, and
Atlas pays the employees' salaries and expenses while they go from
one plant to another.
Job classifications and rates of pay for can manufacturing em-
ployees are determined under the provisions of the contract between
C P & G. and the Council 19 The provisions of this agreement are
applied to employees in can manufacturing as well as to those in the
food processing plant.20 Atlas does not participate in any collective
bargaining relating to wages, hours, and other conditions of employ-
ment for employees in can manufacturing. Nor does Atlas handle
the processing of any grievances for can manufacturing employees.
All of these matters are taken care of by Hunt. There have been a'
number of grievances involving can manufacturing employees which
have been presented through the grievance procedures set up under
the contract.21 These grievances have been treated in exactly the same
manner as those for employees in the food processing department..
Under all the circumstances, including the contractual relationship
between Atlas and Hunt, and the interchange of employees, we find
" Some of the maintenance employees do work for both can manufacturing and the food
processing plant. Employees in the same job classifications do substantially the same work
and are required to have like skills.
11 Hunt 's director of personnel testified that he personally handles layoffs for all em-
ployees working in Plant No. 1 , so that he may utilize the services of these employees in
other parts of the plant where there is a vacancy.
18 The last seniority list that was posted in 1949 was broken down to show the can manu-
facturing employees on a separate section of the seniority list.
11 When the can manufacturing plant was started in 1947, the Council made a demand
on C P & G that the contract be extended to apply to can manufacturing employees.
20 Can manufacturing employees have served on the negotiating committee of the Cannery
Union.
21 Some of these grievances have been settled at the plant level by Hunt officials. Other
grievances were considered by the Central Adjustment Board , the last step in the grievance
procedure.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, as to the can manufacturing employees, Atlas and Hunt together
constitute a single Employer within the meaning of Section 2 (2) of
the Act.
Accordingly, we find that all production and maintenance employees
of the can manufacturing plant at Hayward, California, excluding all
other employees of Hunt's cannery, office and clerical employees, and
supervisors, constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act.
5. The Employers, C P & G, and the Cannery Union urge that any
election directed should be held at the peak of employment, which is
about the last week in August. The press department of can lnanu-
facturing operates from 11 to 111/2 months producing lids, and the body
making department operates from 10 to 11 months'a year.22 During
1949, there were from 350 to 400 employees working during the last
week in August. After this, employment began to taper off, and there
were only about 50 employees working in December and January.
Under these circumstances, we shall direct,that the election be. held
at or near the peak of employment 23 We shall, therefore, direct that
the election be held on a date to be determined by the Regional Direc-
tor among the employees in the unit described above, who are employed
during the payroll period immediately preceding the date of issuance
of the Notice of Election.
- DIRECTION OF ELECTION 24
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 on a date to be selected by the Regional
Director, subject to the instructions set forth in paragraph numbered
5, above, under the direction and supervision of the Regional Director
for the Region in which this case was heard, and subject to Sections
203.61 and 203.62 of National Labor Relations Board Rules and
Regulations, among the employees in the unit found appropriate in
paragraph numbered 4, above, who were employed during the pay-
roll period immediately preceding the date of issuance of Notice of
Election by the Regional Director, 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
22 The food processing plant operates 7 to 8 months a year , starting approximately about
April 1.
ms The Sanger Winery Association, 88 NLRB 852 ; California Walnut Growers Associ-
ation, 86 NLRB 28.
24 Any 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.
ATLAS IMPERIAL DIESEL ENGINE CO. 377
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 Association of Machinists, District Lodge
No. 115, or by Cannery Warehousemen, Food Processors, Drivers &
Helpers Union No. 768, affiliated with the International Brotherhood
of Teamsters and Chauffeurs, AFL, and California State Council of
Cannery Unions,25 or by United Steelworkers of America, CIO, or by
none of these organizations.
2' The compliance status of Cannery Warehousemen, Food Processors, Drivers & Helpers
Union No. 768, affiliated with the International Brotherhood of Teamsters and Chauffeurs,
AFL, and California State Council of Cannery Unions, has lapsed since the hearing in this
case. In the event it fails to renew its compliance with Section 9 (f), (g), and (h) within
2 weeks from the date of this Direction, the Regional Director is instructed not to accord
it a place on the ballot in the election directed herein.