Continental Can Co., Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1947

74 N.L.R.B. 351 (N.L.R.B. 1947)

In the Matter of CONTINENTAL CAN COMPANY, INC. ( MONO CONTAINER
DIVISION), EMPLOYER and INTERNATIONAL ASSOCIATION OF MA-
CHINISTS, PETITIONER
In the Matter of CONTINENTAL CAN COMPANY, INC. ( MONO CONTAINER
DIVISION), EMPLOYER and UNITED CONSTRUCTION WORKERS, UNITED
MINE WORKERS OF AMERICA, A. F. L., PETITIONER
In the Matter of CONTINENTAL CAN COMPANY, INC. (MONO CONTAINER
DIVISION), EMPLOYER and ESSEX COUNTY PRINTING PRESSMEN AND
ASSISTANTS' UNION, INTERNATIONAL PRINTING PRESSMEN AND AS-
SISTANTS' UNION, A. F. L., PETITIONER
Cases Nos. R-R-7S35,'-R-7564 and 0-B-7580, respectively. Decided
June 03) 1947
Messrs. William E. Bennett, Jr., and Warren A. Lacke, both of New
Yok City, for the Employer.
Mr. Carl S. Carlson, of New York City, for the IAM.
Mr. Bernard Cherny, of Jersey City, N. J., and Mr. Thomas Wilson,
of Newark, N. J., for the Construction Workers.
Mr. Harry Wendrich, of Newark, N. J., for the Pressmen's Union.
Rothbard, Harris ct Ox f eld, by Mr. Samuel L. Rothbard, of Newark,
N. J., for the CIO.
Messrs. Joseph P. Dallanegra and James Graf, both of Newark,
N. J., for the Independent.
Mr. Benjamin B. Lipton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions 1 duly filed, a consolidated hearing in these
cases was held at New York City, on April 17, 1947, before Jerome I.
Macht, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
1 The respective petitions herein and other formal papers were amended at the hearing
to show the correct name of the Employer.
74 N. L. R. B., No. 59. 351
755420-48-vol 74-24
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Continental Can Company, Inc., a New York corporation, is en-
gaged in the manufacture, sale, and distribution of cans and con-
tainers at its various plants located in several States. The sole plant
involved herein is located in Newark, New Jersey.' During the past
year, the Employer purchased for use at this plant raw materials
valued in excess of $1,000,000, of which 75 percent was received from
points outside the State of New Jersey. During the same period, the
value of the finished products from this plant exceeded $1,000,000, of
which 75 percent represented shipments to points outside the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
IT. THE ORGANIZATIONS INVOLVED
The Petitioners, (1) International Association of Machinists, un-
affiliated, herein called the IAM, (2) United Construction Workers,
United Mine Workers of America, affiliated with the American Fed-
eration of Labor, herein called the Construction Workers, and (3)
Essex County Printing Pressmen and Assistants' Union, Interna-
tional Printing Pressmen and Assistants' Union, affiliated with the
American Federation of Labor, herein called the Pressmen's Union,
are labor organizations claiming to represent employees of the
Employer.
The Intervenors, (1) United'Steelworkers of America, affiliated
with the Congress of Industrial Organizations, herein called the CIO,
and (2) Independent Kup Workers Union, Inc., herein called the
Independent, are labor organizations claiming to represent employees
of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the respective Petitioners as the
exclusive bargaining representatives of employees of the Employer
until the said Petitioners have been certified by the Board in an appro-
priate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
Of Section 9 (c) And Section 2 (6) and (7) of the Act.
2 Referred to as the Mono Container Division.
CONTINENTAL CAN COMPANY, INC. 353
IV. THE APPROPRIATE UNIT ; THE DETERMINATION OF REPRESENTATIVES
The Pressmen's Union seeks a unit of all printing pressmen and as-
sistants, excluding the pressroom foremen. The IAM seeks a unit of
all tool, die and gauge makers, millwrights, construction millwrights,
and tool crib attendant, excluding the machine shop manager and the
plant engineers. The Construction Workers seeks a unit of all produc-
tion, maintenance, and shipping employees, including drivers, but ex-
cluding the respective units sought by the afore-named petitioning
unions; however, it desires to be placed on the ballot in any unit in
which an election is directed. The position of the Independent is the
same as that of the Construction Workers, described above; both agree
that the alleged craft groups should be permitted to express their
desire for separate representation. The CIO and the Employer con-
tend that a plant-wide unit, including the alleged craft units separately
sought herein, is established by a 7-year collective bargaining history 3
and is therefore appropriate.
The Independent has had contracts with the Employer on a plant-
wide basis since September 1940, when it was designated as majority
representative in a consent card check conducted by the Board's Re-
gional Director. The last such contract expired on March 31, 1947,
but was extended indefinitely pending the outcome of this proceeding.4
Organizational activities by the other labor organizations involved
herein commenced at about the end of 1946.
As noted above, the contracting labor organization as well as the
Petitioner requesting a plant-wide unit do not oppose a severance of the
printing pressmen and the machinists in question from the more com-
prehensive bargaining units Furthermore, the record shows that
neither of these two groups has had a prior opportunity to express a
desire for separate representation, that they constitute traditional craft
groups, and that similar groups are established either in other plants
of the Employer or in the industry generally.6 In view of the fore-
going, and on the whole record, we believe that the two separate craft
groups should be given the opportunity to indicate whether they desire
to be represented in a separate craft unit or in a plant-wide unit, inas-
much as either unit may be appropriate. Accordingly, we shall make
no final unit determination at the present time, but shall permit the
3 The contract unit during this bargaining history covered "all factory employees, in-
cluding maintenance men, watchmen , firemen , porters, machine cleaneis , production
mechanics , shipping department employees , truck drivers , printers , machinists , factory
clerks, but excluding general office employees and supervisory employees and executives"
4 This contract is not alleged as a bar to the present proceeding
e See Matter of The Babcock it Wilcox Compauit, 72 N. L R B 1256
0 See Matter of E. I du Pont de Neneours it Co , Inc, 73 N L R. B 439, Matter of The
Ttooli Union Company , 73 N. L R B. 709.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scope of the bargaining unit or units to be determined in part by the
results of separate elections among the employees in the voting groups
hereinafter set forth.
The composition of the voting groups, described below, were agreed
upon by the parties at the hearing except with respect to the inclusion
of the following employees in the printing pressmen 's group :
Printing department manager and assistant : The manager is in
entire charge of the department ; he hires and discharges , grants merit
increases and promotions , is responsible for quality and costs , and sees
that the Employer 's policies are carried out. The assistant manager
assists in the general supervision of the department and substitutes for
the manager in the latter 's absence . We are of the opinion that both of
these employees possess supervisory powers sufficiently extensive to
be considered managerial ; 7 we shall exclude them.
Printing press foremen : In view of the well-recognized printing
trades custom of including such supervisors in the bargaining unit of
rank and file employees, we shall include these foremen in the appro-
priate unit ."
There remains for consideration the question of the eligibility of the
probationary employees to vote in the elections hereinafter directed.
The Employer requires new employees to serve a 2-month probationary
period during which time the Employer maintains the right to dis-
charge these employees without recourse to any grievance procedure
in force . The record shows that there is a large turn -over among
these probationers and that only an insubstantial proportion of them
remain with the Employer at the end of the probationary period. Ac-
cordingly , we find that they do not have a sufficient expectancy of
permanent employment with the Employer , and, therefore , we shall
not permit them to vote in the elections.9
We shall direct that separate elections be held among the employees
in the following voting groups, excluding all other supervisory em-
ployees with authority to hire, promote , discharge , discipline , or other-
wise effect changes in the status of employees or effectively recommend
such action :
(1) All printing pressmen and assistants ,10 including the printing
press foremen, but excluding the manager and the assistant manager
of the printing department.
?Matter of The Lord Baltimore Press, Inc , 73 N L R. B 811 , Matter of Country Life
Press Corporation, 51 N. L. R. B. 1362.
8 INd.
See Matter of Crosley Corporation, 56 N. L R B. 1722.
10 Kidder Pressman A, Kidder Pressman B, Chamban Pressman A, Chamban Pressman B,
L P. W. Operator , L. P. W. Pressman , Gordon Press Feeder A , Gordon Press Feeder B,
Job Press Pressman , T. M. S . Pressman A, Auto Platen Press Operator , Ludlow Operator,
Stock Clerk, and Proof Press Operator.
CONTINENTAL CAN COMPANY, INC. 355
(2) All tool, die and guage makers, machinists A, B, and C, mill-
wrights A and B, construction millwrights, and tool crib attendant,
excluding the machine shop manager and plant engineers.
(3) All production, maintenance, and shipping employees, includ-
ing drivers, but excluding all office and clerical employees and the em-
ployees in voting groups (1) and (2) above.
DIRECTION OF ELECTIONS"
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Continental Can Company, Inc.-
(Mono Container Division), Newark, New Jersey, 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 su-
pervision of the Regional Director for the Second Region, acting in
this matter as agent for the National Labor Relations Board, and sub-
ject to Sections 203.55 and 203.56, of National Labor Relations Board
Rules and Regulations-Series 4, among the employees in the voting
groups listed in Section IV, above, who were employed during the pay-'
roll period immediately preceding the date of this Direction, includ-
ing employees who did not work during said pay-roll period because
they were ill or on vacation or temporarily laid off, and including em-
ployees in the armed forces of the United States who present them-
selves 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 whether :
(1) The employees in group (1) desire to be represented by Essex
County Printing Pressmen and Assistants' Union, International Print-
ing Pressmen and Assistants' Union, A. F. L., or by Independent Kup
Workers Union, Inc., or by United Construction Workers, United Mine
Workers of America, A. F. L., or by United Steelworkers of America,
C. I. 0., for the purposes of collective bargaining, or by none.
(2) The employees in group (2) desire to be represented by Inter-
national Association of Machinists, or by Independent Kup Workers
Union, Inc., or by United Construction Workers, United Mine
Workers of America, A. F. L., or by United Steelworkers of America,
C. 1. 0., or by none.
(3) The employees in group (3) desire to be represented by United
Construction Workers, United Mine Workers of America, A. F. L., or
by Independent Kup Workers Union, Inc., or by United Steelworkers
of America, C. I. O., or by none.
[See, infra, Order Amending Decision and Direction of Elections,
74 N. L. R. B. 506.]
11 Any participant in the elections herein may, upon its prompt request to and approval
thereof by the Regional Director, have its name removed from the ballot.