Continental Can Co, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1943

52 N.L.R.B. 710 (N.L.R.B. 1943)

In the Matter of CONTINENTAL CAN COMPANY, INC. and UNITED STEEL-
WORKERS OF AMERICA, C. I. O.
Case No. R-6887.-Decided September 17, 1943
Pope d Ballard, by Mr. John R. Whitman, of Chicago, Ill., for the
Company.
'Mr. John J. Brownlee, of Pittsburgh, Pa., and Mr. Harry Harper,
of Chicago, Ill., for the Steelworkers.
Winston, Strawn & Shaw, by Mr. G. B. Christensen, of Chicago, Ill.,
for the Independent.
Mr. William R. Cameron, of counsel to Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by the United Steelworkers of America,
C. I. 0., herein called the Steelworkers, alleging that a question affect-
ing commerce had arisen concerning, the representation of employees
of Continental Can Company, Inc., Chicago, Illinois, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Lester Asher, Trial Exam-
iner. Said hearing was held at Chicago, Illinois, on August 24, 1943.
The Company, the Steelworkers, and McDonald Plant Independent
Union, herein called the Independent, appeared, participated, and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The' Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Continental Can Company, In., a New York corporation, is engaged
in the business of manufacturing tin can containers and of closing tin
52 N. L. R. B., No. 125.
710
CONTINENTAL CAN COMPANY, INC. 711
can containers. The Company operates 45 plants located in various
States of the Union, including 5 plants in the Chicago, Illinois, area.
We are here solely concerned with 1 of the Company's 3. machine shops,
known as the McDonald Plant, (Plant No. 33), located at 7600 South
Racine Avenue, Chicago, Illinois, and with the divisional unit, located
immediately adjacent thereto, known as the McDonald Ordnance Plant
(Plant No. 77). The main function of the McDonald Plant is the
fabrication of machine parts, supplies, and equipment, which are almost
entirely for use by other plants of the Company in their manufacturing
and closing operations. During the year 1942 the McDonald Plant
received raw materials, including cast iron and steel, amounting in
value to approximately $700,000, of which approximately 70 percent
was obtained from points outside the State of Illinois. During the
same period; the total value of the finished products fabricated at the
McDonald Plant amounted to approximately $1,500,000, of which
approximately 70 percent was shipped to points outside the State of
Illinois. The Company concedes that with respect to the operations
,of its McDonald Plant and McDonald Ordnance Plant it is engaged
in commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company. -
McDonald Plant Independent Union is an unaffiliated labor organ-
ization admitting to membership employees of the Company.
M. THE QUESTION CONCERNING REPRESENTATION
By letter dated June 21, 1943, the Steelworkers notified the Company
that it claimed to represent a majority of the production and mainte-
nance employees of the McDonald Plant, and requested a conference to
establish its contentions. The Company, by letter of June 30, 1943,
informed the Steelworkers that it had a collective bargaining agree-
ment with the Independent and declined to meet the representatives
of the Steelworkers.
Prior to July 11, 1941, the Independent dealt with the Company
under the terms of a verbal agreement relating to terms and conditions
of employment in'the Company's McDonald Plant, No. 33. On that
date the Independent and the Company entered into a contract in
writing which embodied, with certain modifications, the terms of their
previous verbal agreement. This contract contained provisions that it
should continue in effect until July 14, 1942, and from year to year
thereafter in the absence of written notice to amend given by either
party not less than 30 days prior to the expiration date. The Company
and the Independent, on August 24, 1942, entered into a further written
agreement extending to employees of McDonald Ordnance Plant, No.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
77, the provisions of the contract in effect for ' Plant No. 33. The
contract of July 11, 1941, contains the following language, in part:
This agreement is made in order that the general welfare of
the Company and its employees at the Plant may best be served
and their interests more fully protected and advanced by estab-
lishing closer industrial relations between the Company and those
employees who are members of the Union by entering into agree-
ments providing for the necessary means of practical coopera-
tion for their mutual benefit.
The Company agrees to recognize the McDonald Plant Inde-
pendent Union as the sole collective bargaining agency for such
employees covered by this agreement who are members of the
Union, and will not interfere with the rights of its employees to
become members of the Union. During the, duration of the
present agreement, the Company agrees not to bargain with any
other group regarding wages, hours, and working conditions.,
The Company contends that this contract has been understood and
treated by the parties as an exclusive representation contract cover-
ing all production and maintenance employees, and that inasmuch as
no notice of desire to reopen negotiations has been given by either
party, and in the absence of notice of the representation claims of
the Steelworkers prior to the effective date of the automatic renewal
clause, the contract is now extended to July 14, 1944, and constitutes
a bar to a determination of representatives at this time. The Steel-
workers contends that this contract is a "members-only" contract,
rather than one of exclusive representation, and therefore does not
preclude an investigation to determine the representative of all the
Company's employees in an appropriate bargaining unit.
At the hearing, it was testified both on behalf of the Company
and on behalf of the Independent that the contract, at the time it was
drawn, was understood to be a contract for exclusive bargaining rep-
resentation of all Plant No. 33 employees, with certain exclusions.
However, it is not disputed that the Company did not, at the time
of negotiation of this contract, or since, require any evidence by the
Independent of majority representation of employees of the plant.
Although the Independent contends that it has been continually ac-
tive in the handling of grievances for the employees, the record in-
dicates that there is some dispute as to whether the Independent has
been handling grievances for employees in the entire plant. In any
event, the language of the contract itself must first be considered in
determining its construction, and from the language of the contract
as a whole, as well as the sections above quoted, it is apparent that
' Italics supplied.
, CONTINENTAL CAN COMPANY, INC. 713
it is a members-only contract.'- We find, therefore, that it does not
constitute a bar to a determination of representatives' at this time s.
A statement of the Regional Director introduced in evidence, and ai
statement of the Trial Examiner read into the record at the hearing,
indicate that the Steelworkers represents a substantial number of
employees in the unit hereinafter found to be appropriate.'
We find that a' question affecting commerce has, 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. _
IV. THE APPROPRIATE UNIT
The parties agree that all production and maintenance employees;
of the McDonald Plant and McDonald Ordnance Plant, excluding
foremen, office employees, factory clerical employees, watchmen,.
guards, boiler room attendants, matrons, and outside truck drivers,
constitute an appropriate unit. The Independent and the Steelwork-
ers seek also to include 9 employees classified as assistant foremen .5
The Company contends that these are supervisory employees and seeks-
to exclude them. The record discloses that some of these employees
have authority to recommend hiring and discharge. Some, while not
possessing such authority at all times, have authority to recommend
hiring and discharge in the foreman's absence. Each of these men
2 Although in many sections of the contract not here quoted the term "employees" is
used , without specific restrictive reference to union membership, and the contract provides,
in part, that "any employee «ho feels that he has been unjustly treated shall have the-
right to present his case to the Adjustment Committee," yet in specifying the steps which
shall be taken to adjust grievances, the provisions are specifically limited to union members
The Agreement extending this contract to Plant No 77, altho>1gh it contains some
language which might otlierwise indicate a broader interpietation, in substance merely
adopts the teams and provisions of the original contract, and specifies that they shall be
applied to that plant
3Matter of Pennsylvania Greyhound Lines, et al, 3 N L. R B. 622, 646. See also
Matter of McKesson it Robbins, Inc., Blumaner Frank Drug Division, 5 N L 11,11 70, 81,--
Matto, of Piessed Steel Car Company, Inc, 7 N L R B 1099, 1101, 1102 , Matter of Reading
Transportation Company, 10 N. L R B 15, 20; Matter of The Kentucky Fire Brick
Company, 19 N L R B. 532, 534 ; Matter of Tennessee Coal, Iron it Rail, oad Co , Holt Blast
Furnace, 39 N L R B. 402, 404
4 The Regional Director reported that the Steelworkers had submitted 253 designation
cards, of which 231 bole the apparently genuine original signatures of persons whore names
are on the Company's pay roll of June 27, 1943, covering the hourly paid employees at the
McDonald Plant and McDonald Ordnance Plant Of the 231 cards, 1 was undated and the,
others were dated from March through July 1943 The said pay roll contains the names
of 404 employees.
The Regional Director further reported that the Independent had submitted 253 member-
ship application cards, of which 207 bore the apparently genuine signatures of persons
whose names are on the above-mentioned pay roll. Of the 207 cards, 13 were undated, 57'
were dated from January through July 1943, and 137 were dated from 1937 through 1942
The Trial Examiner stated at the hearing that the Steelworkers had submitted 46
additional designation cards, of which 22 bore the apparently genuine original signatures
of persons whose names are on the above-mentioned pay roll Of the 22 cards, 2 were
undated, 4 were dated in July, and 16 in August 1943
"Eight of those named in the recod are Erickson, Lehman, Emil Koch, Lynn, Mikalish,
Babe, Philip Koch , and Haake As to the ninth, Kane and Yates are both mentioned, and
the record is not clear as to \%hich is in the disputed category In any event, each is a
super%isory employee of the rank of assistant foreman or higher, and both are hereby
excluded.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervises from 6 to 15 or more employees, and each spends the major
portion of his time in supervision. We find that they are supervisors
within the meaning of our customary definition and shall exclude
them from the unit.
We find that all production and maintenance employees of the Com-
pany in its McDonald Plant and McDonald Ordnance Plant exclud-
ing office employees, factory clerical employees, watchmen, guards,
boiler room attendants, matrons, outside `truck drivers, 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, consti-
tute 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 question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
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 2, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for'the purposes of collective bargaining with Continental Can
Company, Inc., Chicago, Illinois, an election 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 Thirteenth Region, acting in this
matter 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 unit 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 during said pay-roll period because they were ill or on vaca-
tion or-temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the
polls, but excluding any who have since quit or been discharged for
cause, to determine whether they desire to be represented by United
Steelworkers of America, C. I. 0., or by McDonald Plant Independent
Union, for the purposes of collective bargaining, or by neither.