Container Corp. of America

National Labor Relations Board - Board Decisions

Dec 29, 1949

87 N.L.R.B. 1345 (N.L.R.B. 1949)

In the Matter of CONTAINER CORPORATION OF AMERICA, EMPLOYER and
INTERNATIONAL BROTI-IERIIOOD OF PAPER MAKERS, AFL, PETITIONER
Case No. 9-RC-604.-Decided December 29,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Alan A.
Bruckner, hearing officer. The hearing officer's rulings made at the
hearing 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 Houston, Reynolds, and
Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner and the Intervenor are labor organizations claim-
ing to represent certain employees of the Employer.
3. The instant petition was filed on August 11, 1949. The Em-
ployer and the Intervenor move its dismissal, urging as a bar to this
proceeding a contract executed on August 8, 1949, which provides
for a term to expire on July 30, 1950, but subject to automatic renewal
for yearly periods thereafter in the absence of 60-day notice. The
Petitioner maintains that the contract is not a bar because the wage
reopening provision, Article IV, Section B, makes the entire contract
terminable by the Intervenor at any time before the expiration date
upon 60-day notice.
Article IV, Section B, provides as follows :
The following clauses shall have no force or effect after July
30,1950.
It is understood and agreed that the Signatory Union may
open this agreement once during its term to discuss changes.
I The Intervenor , District 50 , United Mine Workers of America, was allowed to inter-
vene on the basis of its present contract with the Employer.
87 NLRB No. 145.
1345
877359-50-vol. 87-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the wage schedule . . . by serving a sixty (60) day
written notice on the Company, by registered mail, return
receipt requested.
If no agreement is reached at the end of the sixty (60) days'
period following receipt of such opening notice, then the
union may cancel.this agreement in its entirety by the giving
of a seventy-two (72) hour written notice.'
The Intervenor has not served notice of a desire to discuss altera-
tion of the agreement in accordance with these provisions, and both
contracting parties consider the contract as continuing in effect. How-
ever, by requesting, changes to which it knows the Employer will not
agree, the Intervenor may upon appropriate notice unilaterally cause
the termination of the agreement at any time. Therefore, the agree-
ment is tantamount to a contract terminable at will, and as such it does
not preclude a present determination of representatives.3
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
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's Circle-
ville, Ohio; plant, excluding office and clerical employees, laboratory
attendants, storeroom clerk, powerhouse employees (engineers, fire
men, coal and ash men), and all guards, professional employees, and
supervisors as defined in the Act .5
DIRECTION OF ELECTION 6
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by
2Another provision also permits the Employer to open the contract once during its
term to discuss wag's changes , but the Employer is given no right of termination if the
parties fail to agree on this subject.
s Summermill Tubing Company, . 60 NLRB 896; Goodyear Tire & Tube Company, 55
NLRB 918 ; Mid-Continent Coal 'Corporation, 82 NLRB 261 ; The Broderick Company
( Header-Press Division ), 85 NLRB .708. Cf. Reed Roller Bit Company, 72 NLRB 1353.
4 Some question was also raised concerning a contractual provision unauthorized by a
9 (e) election , namely, the requirement that supervisors who are demoted shall become
members of the Intervenor . Both contracting parties contend that its inclusion in the
contract was a result of an oversight , and that in any event , a severability clause renders
this part of the contract ineffective . In view of our determination with regard to the
wage reopening provision , we find it unnecessary to resolve this matter.
6 This unit was stipulated to by all parties.
e The Intervenor will not be accorded a place on the ballot in the election directed
herein, because it is not in compliance with the filing. requirements of Section 9 (f), (g), and-
(h) of the Act. Container Corporation of America, 83 NLRB 424. -
CONTAINER CORPORATION OF AMERICA 1347
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 was
heard, and subject to Sections 203.61 and 203.62 of National Labor Re-
lations Board Rules and Regulations, among the employees in the unit
found- appropriate. in paragraph numbered 4, above, who were em-
ployed during the pay-roll period immediately preceding the date of
this Direction of Election, including employees who did not work dur-
ing said pay-roll period because they were ill or on vacation or tempo-
rarily 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 employees on strike who
are not entitled -to reinstatement, 'to determine- whether or, not they
desire to be represented, for .purposes of collective bargaining, by In-
ternational Brotherhood of Paper Makers, AFL.