Fein's Tin Can Co., Inc.

National Labor Relations Board - Board Decisions

May 19, 1945

61 N.L.R.B. 1325 (N.L.R.B. 1945)

In the Matter of•FEIN'S TIN CAN CO., INC., AND ATLAS CAN CORPORATION
and UNITED STEELWORKERS OF AMERICA, C. I. O.
Case No. 2-R-5-332.-Decided May 19, 1945
Mr. Malvin B. Mariash, of Brooklyn, N. Y., for the Companies.
Rothard cC Talisman, by 111r. Clarence Talisman, of Newark, N. J.,
and Mr. Angelo Bottonne, of New York City, for the CIO.
Boudin, Cohn cC Glickstein, by Miss Belle Seligman, of New York
City, for the Teamsters.
Miss Ruth E. Blie field, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE.
Upon a petition duly filed by United Steelworkers of America,
C. I. 0., herein called the CIO, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Fein's
Tin Can Co., Inc., New York City, and Atlas Can Corporation, New
York City, hereinafter collectively referred to as the Companies, and
singularly as Fein's and Atlas, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Jerome I.
Macht, Trial Examiner. Said hearing was held at New-York City, on
March 19 and 20, 1945. The Companies, the CIO, and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Truck Drivers and Chauffeurs, Local Union No. 807,
A. F. L., herein called the Teamsters, appeared and participated., All
parties 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.
' The Teamsters moved to intervene on the morning of the second day of the hearing
The Trial Examiner granted the motion to intervene without objection . The Companies
were not present during the last afternoon of the 2 -day hearing
61 N. L R. B., No. 214.
1325
639678-45-vol. 61-85
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
Fein's Tin Can Co ., Inc., is a New York corporation engaged at
New York City in the manufacture , sale, and distribution of round
cans and steel pails . Atlas Can Corporation,is a New York corpo-
ration engaged at New York City in the manufacture , sale, and dis-
tribution of square cans. The annual value of the raw materials
used by the Companies , which consists principally of steel, cartons.
and twine , exceeds $1 ,000,000, in excess 'of 75 percent of which is
shipped to them from points outside the State of New York. The
annual value of their sales of finished products exceeds $1 ,000,000,
over 33 percent of which represents shipments to points outside the
State of New York 2
Each of the Companies admits, and we find, that each is engaged
in commerce within the meaning of the National Labor Relations
Act.
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America, affiliated with the Congress of
Industrial Organizations, and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Truck
Drivers and Chauffeurs, Local Union No. 807, affiliated with the Amer-
ican Federation of Labor, are labor organizations admitting to
membership employees of the Companies.
III. THE QUESTION CONCERNING REPRESENTATION
On February 12, 1945, and again on the first day of the hearing,
the CIO requested recognition as the exclusive bargaining represent-
ative of the Companies' production, maintenance and shipping em-
ployees. The Companies refused to accord the CIO such recognition
unless and until it is certified by the Board.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the CIO represents a substantial number of
employees in the unit it claims to be appropriate.3
2 Although the figures submitted by the Companies as to inflow of raw materials and
outflow of finished products were not broken down to show the quantum attributable
to each company, it appears that the amount of inflow and outflow with respect to each
company is substantial
3 The Field Examiner reported that the CIO submitted 194 application -authorization
cards, 89 of which were those of employees at Fein 's and 105 were those of employees
of Atlas ; that there are 203 employees at Fein 's and 201 at Atlas, making a total of
404 employees in the Unit sought by the CIO; and that 6 cards were dated during 1943
and 1944, 148 cards were dated during 1945, and 40 cards were undated.
The Teamsters submitted four application cards, all of which bore the names of per-
sons appearing on the combined pay roll submitted by the Companies . There are approxi-
mately five employees in the unit requested by the Teamsters.
FEIN'S TIN CAN CO., INC. 1327
We find that a question affecting commerce has arisen concerning
the representation of employees of the Companies within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
While the CIO contends that the appropriate unit should be com-
prised of all production, maintenance and shipping room employees
of the Companies, including guards and watchmen, but excluding the
chauffeur, office and clerical employees, and supervisory employees,
and while the Teamsters desires a unit composed of all platform men
in the shipping room of the Companies consisting of loaders and un-
loaders,' both unions have stipulated that the platform men may them-
selves constitute an appropriate unit or form part of the unit of
production, maintenance and shipping room employees depending,
in part, upon the desires of the platform men. The Companies are
in general agreement as to the composition of the unit sought by the
CIO, but take no position as to the scope of the unit requested by
either party. '
The parties stipulated that the appropriate unit, or units, should
consist of the employees of both Companies. It appears that Mr.
Hyman Fein, who owns 55 percent of the stock in Fein's, is the presi-
dent of both Companies, although he apparently does not hold any
stock in Atlas. His two sons, Irving and George Fein, hold the re-
mainder of stock in Fein's, and the entire stock of Atlas. Both Com-
panies share the same building; Atlas occupies the sixth and part of
the first, third, and fifth floors, while Fein's occupies the fourth and
part of the fifth and first floors. The second floor is not being used at
present, but will be occupied by both Companies. The office for both
Companies is located on the, third floor. Although separate books,
records and pay rolls are kept for both Companies, all the employees
of both Companies are under the supervision, control, and manage-
ment of Irving Fein. In view of the foregoing circumstances, and in
the light of the stipulation of the parties, we are of the opinion that
Fein's and Atlas constitute a single employer within the meaning of
Section 2 (2) of the Act and that the employees of the Companies
together constitute an appropriate unit.
Both Companies share the same shipping room, which is located on
the first floor of the Companies' building. Of the approximately 13
employees attached to this department at the time of the hearing, ap-
proximately 5 are classified as platform men, 5 or 6 are classified as
helpers, and 2 are designated as shipping room employees. The plat-
form men work under the supervision of the shipping room foremen.
4 All the trucking for the Companies is done by Advance Trucking, Inc. The Teamsters
has a contract with that Company covering all of its drivers and platform helpers.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They load the Companies' finished products from, the platform onto
trucks, and unload empty cases from the trucks onto the platform,
working in close contact with the truck drivers and helpers of the in-
dependent contractor who does the Companies' trucking work. Oc-
casionally, when there is no loading or unloading to do, they help
with the stock in the shipping room, and, on rare occasions, assist in
moving stock on other floors of the building. The 2 shipping room
employees work in the shipping room proper; they are engaged in
putting covers on cans and in taking cans off a conveyor belt, and do
not assist the platform men in their work. The helpers work on
temporary assignment. for a short period in the shipping room, assist-
ing the platform men, until such time as they are either placed in regu-
lar production jobs, or their services are terminated.
On all the facts, andD in accordance with the stipulation of both
unions, we are of the opinion that the platform men, or loaders and
unloaders, comprise an identifiable group of employees having simi-
lar duties and interests which would permit them to function for the
purposes of collective bargaining either as a separate group, or as part
of the larger unit of production, maintenance and shipping room
employees sought by the CIO.5 In this situation our determination of
the unit issue with respect to these employees will depend, in part,
upon their own desires as expressed in the elections hereinafter directed
among them. We shall direct that the question concerning repre-
sentation which has arisen be resolved by separate elections by secret
ballot among the employees in the voting groups described below who
were employed during the pay-roll period immediately preceding the
date of the Direction of Elections herein, subject to the limitations and
additions set forth in the Direction :
Group 1. All platform men, or loaders and unloaders, employed by
the Companies, excluding all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, to determine
whether they desire to be represented by the Teamsters or by the CIO
for the purposes of collective bargaining, or by neither s
Group 2. All other production, maintenance and shipping employees
of the Companies, including guards and watchmen,7 but excluding all
office and clerical employees, the chauffeur, working foremen," assist-
6 In a prior complaint case proceeding before the Board involving the petitioner herein
and only the Fein's Tin Can Company (Matter of Fein's Tin Can Co, Inc, 23 N L. R. B
1330), the Board found appropriate a unit of all production, maintenance, shipping, and
receiving employees However, no collective bargaining resulted
6 At the hearing the Teamsters and' the CIO requested that their names appear on the
ballot as hereinafter set forth in the Direction of Elections
? The guards and watchmen employed by the Companies are neither uniformed,
militarized , nor deputized.
S It was stipulated that "working foremen " employed by the Companies are supervisory
employees within the Board's usual definition . However, the parties stipulated that the
x'F,IN'S TIN CAN CO., INC. 1329
ant foremen, foremen, assistant superintendents, and superintendents,
and all or any other supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, to determine
whether or not they desire to be represented by the CIO for the pur-
poses of collective bargaining.
Upon the results of these elections will depend in part our determi-
nation of the appropriate unit, or units. If a majority of the plat-
form loaders select the Teamsters as their representative, they will
constitute a separate unit. If a majority of the employees in both vot-
ing groups select the CIO as their representative, the groups will to-
gether constitute a single unit.
As indicated above, the Companies employ a group of helpers in
the shipping room who assist the platform men in the loading and
unloading of the trucks. The CIO contends that these helpers are
eligible to vote and should be included in the voting group of produc-
tion and maintenance employees in the elections directed herein. Al-
though the record is not too clear, it appears that some of the helpers
are temporary employees and others are employees who work for a
short time in the shipping room until they are placed in one of the other
departments of the Companies. It was testified that the composition
of this group of helpers changes from day to day. Since the employ-
ment of the temporary employees is casual in nature, we are of the
opinion that their interests in the conditions of employment is insub-
stantial and we hold, therefore, that such employees are not eligible
to participate in the elections. Helpers in the shipping room who
work there only until a regular .position in one of the other departments
is obtained for them, have, however, a substantial interest in the con-
ditions of employment. We therefore find that all helpers in the ship-
ping room who are employed with the expectancy of permanent em-
ployment with the Companies, but not including temporary employees,
shall be eligible to participate in the election among the employees in
Group 2.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
title was a misnomer as applied to certain employees , and that the following so-called
working foremen are not supervisors : Edward BohofskT Thomas Ucciardi , Dominick
Simonelli , Gaetano Favillo , Stanley Sovkowski , Louis Palestino , Hyman Spiegelman, Frank
Curberlo , and Ralph Valenti We shall , therefore , include these named employees in the
unit.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c
DIMMED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Fein's Tin Can
Co., Inc., New York City, and Atlas Can Corporation, New York City,
separate elections by secret ballot shall be conducted as early as pos-
sible, but not later than thirty ( 30) days from the date of this Direc-
tion, under the direction and supervision of the Regional Director
for the Second 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 following groups of em-
ployees of the Companies , who were employed during the pay-roll
period immediately preceding the date of this Direction, including
employees who did not work during the said pay -roll period because
they were ill or on vacation or temporarily laid off, and including
employees in the armed forces of the United States who present them-
selves in person at the polls , but excluding any who have since quit or
been discharged' for cause , and have not been rehired or reinstated
prior to the date of the elections :
1. All employees described in Group 1 of Section IV, above, to de-
termine whether they desire to be represented by International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen and Helpers, Local
807, A. F. of L., or by United Steelworkers of America, CIO, for the
purposes of collective bargaining, or by neither.
2. All employees described in Group 2 , of Section IV, above, to de-
termine whether or not they desire to be represented by United Steel-
workers of America, CIO , for the purposes of collective bargaining.
MR. JOHN M. HousTON took no part in the consideration of the above
Decision and Direction of Elections.