Ball Brothers Co.

National Labor Relations Board - Board Decisions

Feb 18, 1944

54 N.L.R.B. 1512 (N.L.R.B. 1944)

In the Matter of BALL BROTHERS COMPANY and INTERNATIONAL UNION
OF MINE, MILL AND SMELTER WORKERS, ON BEHALF OF THE SCHRAM
CITY GLASS WORRIERS UNION, CIO
In the Matter of BALL BROTHERS COMPANY and INTERNATIONAL UNION
OF MINE, MILL AND SMELTER WORKERS, ON BEHALF OF THE SCHRAM
CITY GLASS WORKERS UNION, CIO
Cases Nos. 14-R-785 and 14-11-818, respectively .Decided February
18,19441
Messrs: Myron H. Gray and A. M. Bracken, both of Muncie, Ind.,
for the Company.
Mr. Joseph Verdu, of East St. Louis, Ill., and Mr. Angelo Verdu,
for the CIO.
Mr. Anthony W. Daly, of Alton, Ill., and Mr. Lee W. Minton, of
Philadelphia, Pa., for the GBBA.
Mr. William Feldesman, of counsel to the Board.
,DECISION
AND'
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon an amended petition and an original petition separately and
duly filed by International Union of Mine, Mill and Smelter Workers,
on behalf of the Schram City Glass Workers Union, CIO, herein
called the CIO, each alleging that a question affecting commerce had
arisen concerning the representation of employees of Ball Brothers
Company, Hillsboro, Illinois, herein called the Company, the National
Labor Relations Board provided for an appropriate consolidated hear-
ing upon due notice before David Karasick, Trial Examiner. Said
hearing was held at Hillsboro, Illinois, on December 2, 1943, and at
St. Louis, Missouri, on December 4, 1943. The Company, the CIO,
and Glass Bottle Blowers Association of the United States and
Canada, AFL, and its Locals, Nos. 217 and 218, herein collectively
called the GBBA, appeared, participated, and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and
54 N. L. R. B., No. 239.
1512
BALL BROTHERS COMPANY 1513
to introduce evidence bearing on the issues.- Although American
Flint Glass Workers' Union of North America, AFL, herein called the
FGW, was not represented at the hearing, it sent a telegram to the
Regional Director in which it asserted an interest in the proceeding
by reason of its contract with the Company covering mold makers:
This contract is discussed below. In the course of the hearing, coun-
sel for the Company moved "to dismiss this Representation case until
the `C' cases are disposed of." The motion is denied. The Trial Ex-
aminer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded an opportunity
to file briefs with the Board. Inasmuch as the Company and the
GBBA have filed briefs which adequately discuss the issues, the
Company's request for oral argument is denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Ball Brothers Company is engaged in the manufacture of glass
products, corrugated straw paper, rolled zinc, and rubber products.
It maintains factories at Muncie, Indiana, Eaton, Indiana, Nobles-
ville, Indiana, Okmulgee, Oklahoma, Huntington, West Virginia, and
Hillsboro, Illinois. Only the recently reconditioned Hillsboro; Il-
linois, factory, herein called the Hillsboro plant, is involved in this
proceeding. Production operations were started at this plant some-
time in early September 1943, and it first produced finished ware on
September 20, 1943. It is engaged in the manufacture of glass con-
tainers. From September 1, 1943, to October 8, 1943, the Company
purchased for use at the Hillsboro plant raw materials valued in
excess of $40,000, of which approximately 50 percent was shipped to
this plant from points outside the State of Illinois. During the same
period the Company sold products finished at the Hillsboro plant in
an amount exceeding $20,000, of which more than 50 percent was
shipped from said plant to points outside the State of Illinois.
The Company admits that it is engaged in commerce, within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill and Smelter Workers, affiliated
with the Congress of Industrial Organizations, and its Local, Schram
International Brotherhood of Electrical Workers, herein called the IBEW, United
Brotherhood of Carpenters and Joiners of America , herein called the Carpenters, and
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, herein called the Teamsters, all affiliated with the American Federation of Labor,
were duly served with notice of the consolidated hearing. During the early stages of the
hearing, the IBEW withdrew from the proceeding , disclaiming any interest therein. At
the same time the Carpenters also withdrew . The Teamsters failed to appear.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
City Glass Workers Union, are labor organizations admitting to mem-
bership employees of the Company.
Glass Bottle Blowers Association of the United States and Canada,
affiliated with' the American Federation of Labor, and its Locals,
Nos. 217 and 218, are labor organizations admitting to membership
employees of the Company.
American Flint Glass Workers' Union of North America, affiliated
with the American Federation of Labor, is a labor organization admit-
ting to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
By letter dated September 14, 1943, the CIO requested recognition
from the Company as the exclusive collective bargaining representa-
tive of all the production and maintenance employees engaged at the
Hillsboro plant. On September 17, 1943, the superintendent of the
Hillsboro plant informed a representative of the CIO that he had no
authority to entertain the request for recognition and referred the
representative to the Company's Muncie office.
In the month of September 1942, the Company and other manufac-
turers in the glass container industry, as an employer group, entered
into a contract with the FGW which covered mold makers. Accord-
ing to its written terms, the contract expired August 31, 1943. The
Company urges that the contract is still operative because of an under-
standing of the contracting parties that it was to remain effective until
the making of a new agreement. Since the parties did not express
their understanding in writing, however, the contract is not a bar to
the present proceeding.2
On September 4, 1943, the Company, in writing, agreed to recognize
the GBBA as the representative of its members among the "miscel-
laneous employees" 3 of the Hillsboro plant. Thereafter, the Com-
pany extended recognition to the GBBA-as' the exclusive collective
bargaining representative of all Hillsboro plant, miscellaneous em-
ployees in an agreement dated September 14, 1943, which failed, to
embody terms and conditions of employment. A complete contract
affecting these employees was executed by the Company and the GBBA
on September 24, 1943. All three instruments are claimed by the
Company and the GBBA to bar a present determination of repre-
sentatives. An agreement which accords recognition to a labor or-
ganization as the representative of its members does not operate as
2 Matter of Eicor, Inc., 46 N. L. it. B. 1035. Even if this understanding were in writing,
the contract would be for an indefinite term and therefore not a bar. Matter of General
Electric Company, 48 N. L. it. B. 1044.
' In general terms, all production and maintenance employees, other than machine
operators, machine tenders (upkeep men), and machine operator apprentices.
BALL BROTHERS COMPANY 1515
a bar,4 nor does one merely providing for the recognition of a union
as an exclusive collective bargaining representative-5 Consequently,
the instruments of September 4 and 14 do not serve to preclude a
present determination of representatives. Moreover, the final contract
of September 24 is not a bar, for it was executed after the Company
had been apprised of the CIO's claim.'
Anticipating the commencement of production operations at the
Hillsboro plant, in the summer of 1943 the Company recruited a num-
ber of men and trained them at its Muncie plant as machine operator
apprentices under an arrangement which called for their subsequent
assignment to the Hillsboro plant. Consistent with an annual prac-
tice inaugurated in 1937, on August 4, 1943, the Company and other
glass container manufacturers bound themselves to a single contract
with the GBBA covering machine operators, machine tenders, and'
machine operator apprentices. While negotiations for this contract
were in progress, a GBBA official advised representatives of the Com-
pany that the GBBA intended to lay claim to the Hillsboro plant em-
ployees in the classifications embraced by the contract.' In September
1943 production operations were started at the Hillsboro plant for the
first time since 1935, and it was then that machine operators, machine
tenders, and machine operator apprentices, workers performing func-
tions relating, to production, were employed there. It is contended by
the Company and the GBBA that the contract of August 4 is it bar
to this proceeding. However, we note that when the contract was
made production operations had not been started at the Hillsboro plant
and no machine operators, machine tenders, or machine operator
apprentices were employed there. We regard these facts as determi-
native of the issue and conclude that the August 4 contract is not a bar.
A statement of the Regional Director, introduced into evidence at
the hearing, indicates that the CIO represents a substantial number
of employees in each of the units hereinafter found appropriate.'
We find that questions affecting commerce have arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
Matter of Pressed Steel Car Company , Inc., 46 N. L. R. B. 262.
Matter of Henry Weiss Manufacturing Company, Incorporated, 49 N. L. R. B. 511.
° Matter of Charlton Company, Inc ., 45 N. L . R. B. 772.
With respect to Case No. 14-R-785 involving the Hillsboro plant miscellaneous em-
ployees, the Regional Director reported that the CIO submitted 75 and the GBBA 101
application for membership cards bearing apparently genuine original signatures of per-
sons listed on the Company 's pay roll for the week ending September 25, 1943, containing
the names of 138 employees in the unit alleged to be appropriate in the amended petition.
Concerning Case No. 14-11-818 dealing with the Hillsboro plant machine operators, machine
tenders, and machine operator apprentices , the Regional Director reported that the CIO
submitted 6 application for membership cards, and the GBBA 1 such card , bearing ap-
parently genuine original signatures of persons listed on the above-mentioned pay roll,
containing- the names of 17 employees in the unit alleged to be appropriate in the original
petition
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNITS
Subject to the Company's contention that two separate units are
appropriate provided one labor organization is the representative
of the employees in both, all parties stipulated that, with agreed
exclusions, the machine operators, machine tenders, and machine
operator apprentices of the Hillsboro plant constitute one appropriate
unit, and, except for disputes concerning the inclusion of two classi=
fications of employees, the miscellaneous employees of the Hillsboro
plant comprise another. Since 1937 the GBBA has negotiated con-
tracts on the basis of such units with numerous employers in the
glass container industry, including the Company. To determine
that such established units are inappropriate solely because dif-
ferent collective bargaining representatives may be designated by
the two groups of workers is tantamount to defeating the rights
guaranteed these employees under Section 7 of the Act." Accord-
ingly, we consider the Company's contention to be without merit.
In substantial accordance with the stipulation of the parties,
we find that all machine operators, machine tenders, and machine
operator apprentices employed by the Company at its Hillsboro'
plant, excluding office and clerical employees, construction employees,
foremen, assistant foremen, and all other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
As noted above, the parties are in agreement in respect to the
composition of the unit of Hillsboro plant miscellaneous employees,
with two exceptions. The CIO desires the inclusion of the three
watchmen and one mold maker engaged at the Hillsboro plant. On
the other hand, the Company asks that they be excluded. The
GBBA requests the exclusion of the mold maker and the inclusion
of the watchmen; in the event, however, that the watchmen are
deputized by the Deputy Sheriff of Montgomery County, Illinois,
the GBBA demands their exclusion.
Each,of the watchmen works a shift of 8 hours. All are paid 5
cents an hour less than the average production or maintenance
employee. Their duties are to protect the property of the Company
and they are responsible to the plant superintendent. They carry
no arms. It is the Company's intention to have them sworn as
deputies by the Deputy Sheriff of Montgomery County, Illinois.
However, since they are not and will not be militarized, they will
be included.
8 See Matter of Ball Brother" Company, 52 N. L. R. B. 775.
BALL BROTHERS COMPANY 1517
The mold maker is a skilled employee engaged in the machine shop.
His work is supervised by the shift foreman of the machine operators.
His duties require him to repair and maintain mold equipment for
the glass forming machines. He receives in excess of $1.05 an hour
while the average production or maintenance worker encompassed
by the unit of miscellaneous employees receives 55 cents an hour.
It is apparent that the mold maker's skill and larger earnings place
him in a category different from that of the production and main-
tenance employees. We shall therefore exclude him.
We find, in substantial agreement with the stipulation of the parties
and our determinations relating to the watchmen and mold maker,
that all employees engaged by the Company at its Hillsboro plant,
including raw material loaders, straw bosses, batch mixers, power-
house engineers, powerhouse firemen, gas makers, ashmen, cranemen,
blacksmiths, mold cleaners, furnace men, cullet wheelers, oilers, lehr
tenders, women sorters, box-room department employees, boxmakers,
paper unloaders, jar cappers, lid sorters, jar loaders, truck drivers,
storeroom employees, janitors, machinists,, spot inspectors, plumbers,
carpenters, electricians, sweepers. and watchmen, excluding machine
operators, machine tenders, machine operator apprentices, office and
clerical employees, "construction employees, mold makers, foremen,
assistant foremen, and all 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 questions concerning representation which
have arisen be resolved by separate elections by secret ballot among
the employees in each of the two appropriate units who were employed
during the pay-roll period immediately preceding the date of the
Direction of Elections herein, subject to the limitations and additions
set forth in the Direction.
The CIO asks to be designated as "International Union of Mine,
Mill & Smelter Workers, for itself and on behalf of Schram City
Glass Workers No. 678, CIO" on the ballot in each election. While
we have previously granted similar requests, it appears upon further
consideration that a certification in such terms might be ambiguous.
The request is accordingly denied, and we shall designate the CIO
on the ballot in each election as "International Union of Mine, Mill
& Smelter Workers, Schram City Glass Workers No. 678, CIO." The
GBBA's request to be designated as "Glass Bottle Blowers Association
of the United States and Canada, affiliated with the American Federa-
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of Labor, Local 217" on the ballot in the election directed among
the employees in the appropriate unit of Hillsboro plant machine
operators, machine tenders, and machine operator apprentices, and
its request to be designated as "Glass Bottle Blowers Association of
the United States and Canada, affiliated with the American Federation
of Labor, Local 218" on the ballot in the election' directed among the
employees in the appropriate unit of Hillsboro plant miscellaneous
employees are hereby granted.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to ,Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain represen-
tatives, for the purposes of collective bargaining with Ball Brothers
Company, Hillsboro, Illinois, separate elections 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 Fourteenth Region, acting in this mat-
ter 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 two units 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 dur-
ing said pay-roll period because they were ill or on, vacation or tem-
porarily laid off, and including employees in the armed forces of
the United States who present themselves, in person at the polls, 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
elections, to determine : (1).whether the employees in the Hillsboro
plant machine operators, machine tenders, and machine operator ap-
prentices unit described in Section IV, above, desire to be represented
by International Union of Mine, Mill & Smelter Workers, Schram
City Glass Workers No. 678, CIO, or by Glass Bottle Blowers Asso-
ciation of the United States and Canada, affiliated with the American
Federation of Labor, Local 217, for the purposes of collective bar-
gaining, or by neither; and (2) whether the employees in the Hills-
boro plant miscellaneous, employees unit described in Section IV,
above, desire to be represented by International Union of Mine, Mill
& Smelter Workers, Schram City Glass Workers, No. 678, CIO, or by
Glass Bottle Blowers Association of the United States and Canada,
affiliated with the American Federation of Labor, Local 218, for the
purposes of collective bargaining, or by neither.