145 N.L.R.B. 1427 (N.L.R.B. 1964)

Continental Can Co., Inc.

National Labor Relations Board - Board DecisionsJan 31, 1964

145 N.L.R.B. 1427 (N.L.R.B. 1964)

CONTINENTAL CAN COMPANY, INC., PLANT 142, ETC. 1427 SCHEDULE C-Continued Quarter With Budd On layoff Percent on layoff 1958-4------------------------ 9-21-60 to 2-15-61____________ 2-15-61 to 4 -3-61_____________ 100 1959-1------------------------ 4-3-61 to 6-2-61______________ 6-2-61 to 7-24-61 _____________ 100 1959-2------------------------ 7-24-61 to 1-19-62____________ 1-19-62 to 2-26-62_________--_ 100 1959-3------------------------ 2-26-62 to 5-11-62____________ 5-11-62 to 5-17-62____________ 643*i 1959-4------------------------ 5-17-62 to 6-15-62____________ 6-15-62 to 7-2-62_____________ 60 1960-1------------------------ 7-2-62 to 7-20-62 _____________ 7-20-62 to 8-20-62____________ No claim 1960-2------------------------ 8-20-62 to date_______________ ------------------------------ 633 1960-3------------------------ ------------------------------ ------------------------------ 70 1960-4------------------------ ------------------------------ ------------------------------ No claim 1961-1------------------------ ------------------------------ ------------------------------ 50 1961-2------------------------ ------------------------------ ------------------------------ 33;3 1961-3------------------------ ------------------------------ ------------------------------ 25 1961-4------------------------ ------------------------------ ------------------------------ 100 1962-1------------------------ ------------------------------ ------------------------------ No claim Continental Can Company , Inc., Plant 142, Plastic Container Division and Dixie & Schulman, Attorneys for Individual Employees , Petitioner. Case No. 03-RD-116. January 31, 1961.E DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before I-Tearing Officer B. F. Mueller. The Hearing Officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner asserts that Glass Bottle Blowers Association of the United States and Canada and its Local Union No. 125, AFL-CIO, the currently recognized bargaining representative of the employees involved herein, is no longer their representative as defined in Section 9 (a) of the Act. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. In 1959, following the development of a new type of plastic called linear polyethylene, Continental Can Company, the Employer herein, created a Plastic Container Division to manufacture plastic packages. At present there are seven plants in the division, one each in Houston, Texas; Cincinnati and Cleveland, Ohio; Baltimore, Maryland; and South Gate, California; and two in Chicago, Illinois. The first four of these plants manufacture packages exclusively of linear polyeth-, ylene whereas the latter three plants manufacture other plastic prod- 145 NLRB No. 133. 1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ucts as well. Although the entire division is controlled and managed from the Employer's headquarters in Chicago, each of the plants is autonomous in its day-to-day operations. The instant proceeding in- volves the employees at the Houston plant. Prior to June 5, 19621 the employees in each plant in the Plastic Con- tainer Division were represented in separate units. Production and maintenance employees of the Baltimore, Cincinnati, Cleveland, and Houston plants were represented by different locals of the Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, sometimes referred to herein as the Union. The Houston plant had begun operations in the fall of 1961. On October 12, 1961, the Em- ployer granted recognition to Local 125 of the Glass Bottle Blowers Association on the basis of a card check and entered into a contract covering these employees, effective from October 12, 1961, to Octo- ber 12, 1963. On June 3, 1962, pursuant to negotiations requested by the Glass Bottle Blowers Association, a 3-year multiplant contract was entered into between the Employer and the Union, encompassing the Employer's employees at the Baltimore, Cincinnati, Cleveland, and Houston plants, the contract to terminate on June 1, 1965. On July 12, 1963, the instant decertification petition was filed, seek- ing a decertification election among the production and maintenance employees at the Houston plant, presently approximating 80 in number. The Employer and the Union maintain that the petition should be dismissed on the grounds that (1) the present multiplant contract, which expires in June 1965 and which covers, inter alia, employees at the Houston plant, constitutes a bar to the present petition; and (2) the only appropriate unit is the multiplant unit. We find no merit in these contentions. The Board has held that a collective-bargaining contract entered into during the term of an existing agreement and with a later ter- minal date will not bar a petition filed at a time which would have been timely with regard to the earlier agreement, even where, as here, there is an entirely new agreement entered into in good faith between the parties which provides substantial benefits to employees.' The premature-extension rule was found necessary in order to afford em- ployees an opportunity to make a change in their bargaining repre- sentatives at opportune times a Here, as noted, the original single- plant contract was to terminate on October 12, 1963. On June 3, 1962, at a time when a petition would not have been timely with respect to the original single-plant contract, the Employer and the Union entered into a multiplant contract with a later terminal date ' See Auburn Rubber Company, Inc, 140 NLRB 919, and cases cited therein ( Chairman McCulloch dissenting because of special circumstances not present in the instant case). Wichita Unnon Stockyards Company, 40 NLRB 369, 372 ; Auburn Rubber Company, Inc., supra. CONTINENTAL CAN COMPANY, INC., PLANT 142, ETC. 1429 than that of the original contract, namely, June 1, 1965. The petition was filed on July 12, 1963. As the multiplant contract constituted a premature extension of the single-plant contract, and as the peti- tion was timely filed with respect to the single-plant contract,' we find that the multiplant contract does not bar the petition herein.' We accordingly find that the premature-extension rule should be applied in this case and therefore that the multiplant contract does not bar the present petition.-' 4. As noted above, the Petitioner seeks an election in a single-plant unit whereas the Employer and the Union contend that only a multi- plant unit is appropriate. Contrary to the Employer and the Union, we find that the single-plant unit is appropriate. Although, as noted above, the Employer's Plastic Container Division is controlled and managed from its headquarters in Chicago, there are a number of other significant factors supporting the appropriateness of a unit limited to the Houston plant. Thus, the four plants are widely sep- arated geographically, each plant manager has substantial authority in the daily operations of his plant, there is little or no interchange of employees among the plants, and each plant is a self-contained operating unit.' Further, a single-plant unit is, by express language of the statute, presumptively appropriate.' The Employer and the Union contend, however, that, in view of their 13-month multiplant bargaining history, only the multiplant unit is appropriate. We find no merit in this contention. As this multiplant bargaining his- tory commenced prior to the expiration of the single-plant contract, and resulted in the execution of the multiplant contract which we have found to be a premature extension of the single-plant contract, we do not believe that such bargaining history is entitled to con- trolling weight for the purpose of determining the appropriate unit.8 3 The Employer and the Union also contend that the petition should be dismissed because it was untimely filed 92 days before the expiration date of the Houston single-plant con- tract However, the Board has held that a petition will not be dismissed even though prematurely filed if, as in the present case , a hearing is nevertheless held and the Board's decision will issue on or after the 90th day preceding the expiration date of the contract. See Deluxe Metal Furniture Company, 121 NLRB 995 , 999 ; Mason & Hanger-Silas Mason Company, 142 NLRB 699. 4 Sefton Fibre Can Company, 109 NLRB 360, upon which the Employer and the Union rely to support their argument that the premature- extension doctrine should not be applied is distinguishable . In that case, the doctrine was not applied because the alleged pre- maturely extended contract "was intended solely to implement their long-considered determination to join in multiemployer bargaining and was accomplished when the time was ripe for joining in the group bargaining " See Auburn Rubber Company , Inc., 14G NLRB 919, 921. In view of the foregoing , we find it unnecessary to consider the contentions of the Petitioner that the multiplant contract is not a bar because it contains various illegal provisions. 8 American Linen Supply Co., Inc., 129 NLRB 993 ; Thompson Raino Wooldridge, Inc., 128 NLRB 236. 7Temco Aircraft Corporation, 121 NLRB 1085, 1088, and cases cited therein. 8 See U.S. Pillow Corporation , 137 NLRB 584 (Member Leedom concurring on other grounds). 1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A contrary holding would, in our view, subvert the purpose of the premature-extension rule since, by engaging in "premature" multi- plant bargaining fora considerable period, the parties to a single- plant contract could effectively prevent the employees covered by the original contract from making a change in their bargaining repre- sentatives at an appropriate time. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees of the Employer at its Silsby Street plant in Houston, Texas, excluding all other employees, office clerical employees, professional employees, guards, and super- visors as defined by the Act. [Text of Direction of Election omitted from publication.] MEMBERS BROWN and JENKINS took no part in the consideration of the above Decision and Direction of Election. Kenneth Wong, Henry Lim, Harry Lim, Fook Lim, and Robert Lim, Co-partners d/b/a Capitol Market No. 1; Capitol Grocery, Inc. d/b/a Capitol Market No. 2, Petitioner i and Retail Clerks Union Local 770, affiliated with Retail Clerks International Association, AFL-CIO. Case No. 21-RM-937. January 31,1964 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) (1) (B) of the Na- tional Labor Relations Act, a hearing was held before Hearing Officer Floyd E. Folven. The Hearing Officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Union is a labor organization within the meaning of the Act. 3. The Employer seeks an election in a unit of food clerks employed at its two retail food stores in Los Angeles, California. The Union contends that the petition should be dismissed because ithas disclaimed any present interest in representing the employees who are the subject of the petition, and that, therefore, no question concerning representa- tion exists. 1 As amended at the hearing. 145 NLRB No. 135.