Continental Can Co., Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1958

119 N.L.R.B. 1851 (N.L.R.B. 1958)

CONTINENTAL CAN COMPANY, INC. 1851
that the janitor has interests closely allied to those of the production
and maintenance employees and shall include him in such unit.'°
Accordingly, we find that the following employees at the Em-
ployer's Morristown, Tennessee, furniture manufacturing plant, con-
stitute units appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act.
A. All over-the-road truckdrivers including extra drivers, but ex.
cluding the hostler, local drivers, all other employees, office clerical
employees, guards, and supervisors as defined in the Act.
B. All production and maintenance employees including local
drivers, the hostler, firemen, the janitor, plant clerical employees, and
subforemen, but excluding over-the-road drivers, extra drivers, office
clerical employees, professional employees, technical employees,
watchmen, guards, foremen, and other supervisors as defined in the
Act.
[Text of Direction of Elections omitted from publication.]
10 Jones -Dabney Company, 116 NLRB 1556, at 1558.
Continental Can Company, Inc. and United Steelworkers of
America, AFL-CIO and Lodge 162, District 34, International
Association of Machinists , AFL-CIO and Amalgamated Li-
thographers of America Local No. 8, AFL-CIO, Petitioners.
Cases Nos. 9-RC-3P29, 9-RC-3P37, and 9-RC-3269. February 28,
1958
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a consolidated hearing was held in
Cases Nos. 9-RC-3229 and 3237 before Clifford L. Hardy, hearing
officer. A hearing on Case No. 9-RC-3269 was held before Harold V.
Williams, hearing officer. At the second hearing the Amalgamated
Lithographers of America, Local No. 8, the Petitioner, moved that
the three cases be consolidated. The motion, which was referred
by the hearing officer to the Board, is hereby granted. The hearing
officers' rulings made at the hearings are free from prejudicial error
and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
1 The hearing officer's denial of the motion to intervene in Case No. 3269 by United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 2578, on the ground
that the Carpenters had made no showing of interest in the unit petitioned for in that
case is hereby affirmed.
119 NLRB No. 234.
1852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Lithographers' petition in Case No. 9-RC-3269 concerns
employees involved in Case No. 9-RC-3229. The Board is adminis-
tratively advised that the Lithographers has made an adequate
showing of interest which antedates the first hearing. As the Lithog-
raphers received no notice of the prior hearing and has made a proper
showing of interest, the Board under established policy, will entertain
its petition. Ford Motor Company, 100 NLRB 813.
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. The Employer and the Intervenor, United Construction `Yorkers,
Division of District 50, UMVVA, and its Local Union No. 371, contend
that their existing contract is a bar to these proceedings. The Peti-
tioners contend that the contract was a premature extension of a prior
agreement and therefore cannot serve as a bar.
On October 28, 1955, a contract was entered into between the
Employer and the Intervenor for plant No. 15 at Norwood, Ohio, and
warehouse department No. 69 at Norwood for a production and main-
tenance unit. The contract provided that it "shall become effective
November 1,1955, . . . and shall continue in full force and effect until
midnight October 31, 1957." It also contains a 60-day automatic
renewal clause. The contract further provided that, if the opera-
tions at plant 15 were transferred to a new plant, the Intervenor
would continue to be recognized as bargaining representative for
employees in similar classifications. New classifications, such as
lithographic classifications, were not to be automatically included in
the unit at such new plant except by mutual consent of the parties.
The contract also provided for the transfer of employees at the old
plant to the new one.
In November 1955 the Employer bought land for the new plant,
plant 15-A, at Sharonville, Ohio, about 12 miles from the old plant.
The Employer started moving from plant 15 at Norwood to plant
15-A at Sharonville in July 1957. At the time of the hearings the
Employer expected to complete its move by the end of 1957 and to
close down its Norwood plant; the warehouse department had already
been discontinued.
After about 3 months' negotiations, on August 6, 1957, the Em-
ployer and Intervenor signed a "Memorandum of Agreement"
amending the contract of October 28, 1955, in many respects, including
by its terms the new plant at Sharonville, and extending its duration
to October 31, 1960.
The Steelworkers filed its petition on August 27, 1957, the I. A. M.
on September 6, 1957, and the Lithographers on October 21, 1957.
1
CONTINENTAL CAN COMPANY, INC. 1853
The Steelworkers' petition for a production and maintenance unit
was, therefore, filed before the automatic renewal date of original con-
tract which was prematurely extended, and under the Board's pre-
mature-extension rule was timely filed so as to remove the new contract
as a bar.
The Employer and Intervenor contend, however, that under the
Board's decision in Sefton Fibre Can Co., 109 NLRB 360, such cir-
cumstances exist as would warrant an exception to the premature-
extension rule. They urge that it was necessary to enter into the new
agreement because of the anticipated transfer from the old plant to
the new one, that there were many new classifications of employees
upon which agreement should be negotiated, and that, in order to
stabilize costs, it was necessary to know what the wage rate would
be for a period of the next three years.
We find no merit in the position of the Employer and Intervenor.
(Worthington Corporation (Holyoke Works), 109 NLRB 1306, and
American Steel & Wire Division, etc., 109 NLRB 373.) The Sefton
Fibre Can case dealt with the implementation at an appropriate time
of the long-considered determination of the parties to join in multi-
employer bargaining and not with the factors urged by the Employer
and Intervenor. The purpose of the premature-extension rule is to
permit employees to change their bargaining agent, if they so desire,
at reasonable and clearly predictable intervals. To extend the limited
exception of the Sefton Fibre Can case to the circumstances of this
case would defeat that purpose.
The Employer and Intervenor further contend that the petition
filed by the Lithographers was untimely as it was filed after the
automatic renewal date of the old contract and after the hearing on
the petitions filed by the Steelworkers and I. A. M. It is clear that
the Steelworkers' petition was timely filed and raised a question con-
cerning representation which was unresolved when the Lithographers
petition was filed. As the Lithographers' petition was filed during
the pendency of the Steelworkers' timely petition involving, in part,
the same employees, it is timely filed. (See Ocoma Foods Company,
115 NLRB 1035, and General Dyestuff Corporation, 100 NLRB 72,
and cases cited therein.)
As the current contract in these cases is a premature extension of
the prior agreement, and as the petitions were timely filed with respect
to the prior agreement, we find that no bar exists to a present election.
Accordingly we find that a question affecting commerce exists con-
cerning 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 appropriate unit :
The Steelworkers seeks to represent all the production and main-
tenance employees at both plants ; the I. A. M. seeks to represent all
1854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine shop employees ; and the Lithographers seeks a unit of litho-
graphic production employees. The Employer contends that the unit
sought by the I. A. M. is inappropriate and that the lithographic
storeroom attendant should be excluded from the unit sought by the
Lithographers.
'The record shows that the machine shop is separated from the rest
of the plant, that the machine shop employees' are under separate
supervision, that they do no production work, that they possess the
skills of journeymen machinists, and that they are required to and do
operate the usual machines of the craft. A witness for the I. A. M.
testified that only machine shop employees use the machines located
in the machine shop. The plant manager testified that "maintainers"
who work on production also use these machines. Although the record
is sparse on the skills and duties of the "maintainers," it does appear
that they "manufacture cans," and, if they do use the shop machines,
they operate only the simpler type and do not possess the skills of the
machine shop employees. The machine shop employees consist of
tool- and die-makers, machinists, and a leadman. The parties agree
that the leadman is not a supervisor. We find that the tool- and die-
,makers, machinists, and the machine shop leadmen are an identifiable
craft group of the type which the Board customarily permits to bar-
gain as a separate unit, if they so desire. We further find that the
I. A. M. is a labor organization which has traditionally served the
special interests of such employees.
There are no lithographic employees at the Norwood plant. The
parties stipulated that the lithographic equipment in the Sharonville
plant is standard lithographic equipment employing the basic litho-
graphic principles used in the industry; that the pressmen and press-
feeders have the usual standard skills of pressmen and pressfeeders
in metal decorating and have the same skills, duties, and functions
as the other pressmen and pressfeeders employed by the Employer
in other plants in the metal container division where the Petitioner
Lithographers is the representative of such employees; that in this
plant the lithographic employees are regularly assigned to litho-
graphic equipment and are not interchanged with any nonlithographic
employees in the plant; that the supervision of the lithographic de-
partment is separate, and the lithographic equipment is located in a
separate department; that the Lithographers traditionally organizes
and represents lithographic employees only, and that the operation
of the press is the only lithographic operation in the plant.
The only dispute as to the lithographic unit is with respect to the
inclusion of a lithographic storeroom attendant. The Lithographers
would include him, and the Employer would exclude him. At the time
of the hearing he had not yet been transferred to this job, but he
will be employed full time in checking lithographic materials in and
J
CONTINENTAL CAN COMPANY, IN. ,1855 -
out for use in the lithographic operation and will handle the storage
of lithographic plates. All his work will relate to the lithographic
operations, and the lithographic storeroom is an integral part of these
operations. We find that the lithographic storeroom attendant has
sufficient community of interest with the other employees engaged in
the lithographic process to be included in the lithographic production
unit. (See Union Steam Pump Company, 118 NLRB 669; American
Can Company, 114 NLRB 1547.) We further find that the employees
engaged in the lithographic process may, if they so desire, constitute
a separate appropriate unit.
In view of our determination that the machine shop employees and
the employees engaged in the lithographic process may constitute
separate units appropriate for purposes of collective bargaining, we
shall make no final unit determination at this time, but shall direct
separate elections by secret ballot among the following employees at
the Employer's Norwood, Ohio, plant (plant 15) and Sharonville,
Ohio, plant (plant 15-A) for groups (a) and (b) and at the Sharon-
Ville, Ohio, plant (plant 15-A) for group (c) :
(a) All production, shipping, and maintenance employees, watch-
men, group leaders, working supervisors, boiler and equipment room
attendants, and shipping clerks, excluding all executives, chief in-
spectors, office and factory clerical employees,' nurses, technical em-
ployees, storekeeper, foremen, assistant foremen, all machine shop
employees, all employees engaged in the lithographic process, guards,
and all supervisors as defined in the Act.
(b) All tool- and die-makers, machinists, and machine shop lead-
man, excluding all office clerical employees, plant clerical employees,
guards, professional employees, and supervisors as defined in the Act,
and all other employees.
(c) All employees engaged in the lithographic process including
the lithographic storeroom attendant, but excluding guards, pro-
fessional employees, and supervisors as defined in the Act, and all
other employees.
If a majority of the employees in voting groups (b) and (c) vote
for the I. A. M. and the Lithographers respectively, those employees
will be taken to have indicated their desire to constitute separate
bargaining units, and the Regional Director conducting the elections
is hereby instructed to issue certifications of representatives to the
I. A. M. and Lithographers for such units, which the Board under the
circumstances finds to be appropriate for purposes of collective bar-
gaining. If, in those circumstances, a majority of the employees in
voting group (a) elect to be represented by the Steelworkers, then
the Regional Director is instructed to issue a certification of repre-
2 The Steelworkers represent the office clerical employees and the plant clerical employees
in separate units under Board certification dated August 6, 1957.
1856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives to the Steelworkers for a separate unit of production and
maintenance employees, which the Board under the circumstances
finds to be appropriate for purposes of collective bargaining.
However, if a majority of the employees in voting groups (b)
and/or (c) do not vote for the I. A. M. or Lithographers, as the case
may be, such group or groups will appropriately be included in the
same unit with the employees in voting group (a) and their votes will
be polled with those in voting group (a).' The Regional Director
conducting the elections is instructed to issue a certification of repre-
sentatives to the Steelworkers if selected by a majority of the em-
ployees in the pooled group, which the Board in such circumstances
finds to be appropriate for purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
3 Westinghouse Electric Corporation , 108 NLRB 556, 561 , footnote 14. Pooled votes
shall be tallied as follows • Votes for the I. A. M. and Lithographers, which seek separate
units only , shall be counted among the valid votes , but neither for nor against the
Steelworkers All other votes are to be accorded their face value, whether for representa-
tion by the Steelworkers or for no union.
Marsh Foodliners, Incorporated (Yorktown , Indiana ) and Retail
Clerks International Association , Local No. 1441 , AFL-CIO,
Petitioner. Case No. 35-RC-1468. February 28, 1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
On August 2, 1957, pursuant to a stipulation for certification upon
consent-election, an election was conducted under the direction and
supervision of the Regional Director for the Ninth Region among the
employees in the agreed-upon unit. Following the election, the
Regional Director served upon the parties a tally of ballots which
showed that of approximately 135 eligible voters,' 115 cast ballots, of
which 63 were for, and 50 were against, the Petitioner. Two ballots
were challenged.
On August 8, 1957, the Employer timely filed objections to conduct
affecting the results of the election. In its objections, the Employer
alleged that the Petitioner circulated a newsletter to the employees
prior to the election which the Employer urges misled the employees
as to the effect of not voting and caused employees who opposed the
Petitioner to abstain from casting a ballot. It therefore contends
that the election should be set aside and a new election conducted.
The Regional Director investigated the objections and, on December
1 The Regional Director corrected the number of eligible voters shown on the original
tally of ballots to reflect that 135, rather than 134, employees were eligible to vote. No
opposition was filed to his action in doing so We therefore adopt the correction
119 NLRB No. 231.
A