The Container Co.

National Labor Relations Board - Board Decisions

Dec 23, 1944

59 N.L.R.B. 1220 (N.L.R.B. 1944)

In the Matter of THE CONTAINER COMPANY, DIVISION OF CONTINENTAL
CAN COMPANY, INC. and UNITED STEELWORKERS OF AMERICA, C. I. O.
Case No. 8-R-1677.-Decided December 23, 1944
Messrs. S. S. Beard, H. A. Eggerss, and Sprague Jones, of Van Wert,
Ohio, for the Company. ,
Mr. Julius Holzberg, of Cincinnati, Ohio, and Mr. Peter P. Haubner,
of Lima, Ohio, for the U. S. A.
Messrs. Charles E. Drury and Don C. Farlow, of Van Wert, Ohio,
for the Association.
Mr. William V. Montague, of Cincinnati, Ohio, for the UAW-AFL.
Mr. Walter E. Maekey, of Toledo, Ohio, and Mr. William, F.
Wydalls, of Van Wert, Ohio, for District 50.
Mr. Louis Cokim, of counsel to the Board.
DECISION
AND
DIRECTION, OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Steelworkers of America, C. I. 0.,
herein called the U. S. A., alleging that a question affecting commerce
had arisen concerning the representation of employees of The Con-
tainer Company, Division of Continental Can Company, Inc., Van
Wert, Ohio, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
William O. Murdock, Trial Examiner. Said hearing was held at
Van Wert, Ohio, on November 18, 1944. At the commencement of
the hearing the Trial Examiner granted motions of United Automobile
Workers of America, A. F. of L., herein called the UAW-AFL, Con-
tainer Company Employees Association, herein called the Association,
and District 50, United' Mine Workers of America, herein called Dis-
trict 50, to intervene. The Company, the U. S. A., the UAW-AFL, the
Association, and District 50, appeared at and participated in the hear-
ing and all parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. At the close of the hearing, the Company and the
59 N. L . R. B., No. 221.
1220
THE CONTAINER COMPANY 1221
' Association ' moved to dismiss the, petition. The Trial Examiner
reserved rulings thereon . The motions are hereby denied. 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
I. THE BUSINESS OF THE COMPANY
The Container Company is an Ohio corporation and a subsidiary
of Continental Can Company , Inc. We are here concerned with its-
plant at Van Wert, Ohio, where it is engaged in the manufacture of
fibre drums and containers . The Company purchases raw materials.
for use at its Van Wert plant valued in excess of $1,000,000 , annually,
over 90 percent of which is shipped to it from points outside the State
of Ohio. During the same period the Company sells products from its.
Van Wert plant valued in excess of $1,000,000, over 90 percent of which,
is shipped to points outside the State of Ohio.
The Company admits, for the purposes of this proceeding , that it is,
engaged in commerce within the meaning of the National Labor Rela-
tions Act.
II. THE ORGANIZATIONS INVOLVED
0
United Steelworkers of America is a labor organization affiliated
with the Congress of Industrial Organizations , admitting to member-
ship employees of the Company.
United Automobile Workers of America is a labor organization af-
filiated with the American Federation of Labor, admitting to member-
ship employees, of the Company.
District 50, United Mine Workers of America, is a labor organiza-
tion, admitting to membership employees of the Company.
Container Company Employees Association is an unaffiliated labor-
organization , admitting to membership employees of the Company._
III. THE QUESTION CONCERNING REPRESENTATION
On September 29, 1944, the U. S. A. requested the Company to recog-
nize it as the exclusive collective bargaining representative of the em-
ployees at the Van Wert plant . The Company refused this request
and contends that the petition should be dismissed because the Asso-
ciation was certified as the exclusive representative less than a year
ago.
On November 3, 1943, the Company and the Association entered
into an exclusive collective bargaining contract . The contract pro-
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vided that it should remain in effect from November 21, 1943, to No-
vember 21, 1944, and thereafter subject to thirty days notice of can-
cellation by either party thereto. 'On December 17, 1943, the Com-
pany, the Association, and District 50, entered into a consent election
agreement. The election was won by the Association on January 27,
1944. On January '28, 1944, the Regional Director certified the Asso-
ciation.
As a general rule, we do not conduct a new election within a year of
a,prior certification. Where a contract for a reasonable term has
been entered into with a certified representative, in the interest of
stability we customarily, refuse to disturb such a contractual rela-
tionship until the initial period of the contract is about to expire.
Here, the certification will be about a year old by the time an election
can be concluded and the Association has enjoyed a contractual rela-
tionship with the Company for over a year. We, therefore, find that
the certification of January 28, 1944, is not an bar. to this proceeding.'
Moreover, since the contract is terminable upon thirty days notice of
either party thereto, it obviously is no bar to a determination of repre-
sentatives at this time.
The Association urges the dismissal of the petition on the ground
that a request for a wage increase is presently pending before the Na-
tional War Labor Board., On November 11, 1944, the Regional War
Labor Board denied the request. At the time of the hearing no appeal
had yet been taken to the National War Labor Board. We have
repeatedly held that the mere submission of a dispute to the War
Labor Board for adjudication does not require this Board to delay or
refuse to proceed to an immediate determination of a collective bar-
gaining representative where,otherwise a valid question concerning
representation exists. The Association has had contractual relations
with the Company for over a year and has obtained for the employees
the benefits of representation throughout that period 2 In this respect
the Association is not in a position of a newly certified representative
which is entitled-to a reasonable opportunity to act as the exclusive
representative and secure for the employees the benefits of representa-
tion.' We conclude that the position of the Association is without
merit.
A statement of a Field Examiner of the Board, introduced into
evidence at the hearing, indicates that the U. S. A. represents a sub-
1 See Matter of McCord Radiator and Manufacturing Company , 58 N L. R. B 715;
and Matter of Thompson Products , Inc, 47 N L R B. 619 , Cf Matter of Aluminum Com-
pany of America, Newark Works; 57 N L. R B 913; Matter of Bohn Aluminum and
Brass Corporation , 57 N L . R B 1684.
2Matter of Diamond Magnesium Company , 57 N L R B 393 and cases cited therein.
3 See Matter of Allis - Chalmers Manufacturing Company, 50 N L R . B. 306.
THE CONTAINER COMPANY 1223
stantial number of employees in the unit hereinafter found to be Ap-
propriate.'
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
We find, in agreement with a stipulation of the parties, that all
production and maintenance employees at the Van Wert plant of
the Company, including group leaders, watchmen, and guards, but
excluding office employees, firemen, and any 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, constitute a unit appropriate for the purposes of collec-
tive 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 means of an election by secret ballot-among
the employees 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.
The Company employs 61 persons on a part-time basis. They work
about 24 hours per week on regular schedules and the Company has
maintained such a practice for 8 or 9 years. They are compensated on
the same basis as the regular employees and enjoy the same privileges
as the latter group. We conclude that they are eligible to,vote in the
election inasmuch as they work a sufficient number of hours to have a
substantial interest in the choice of a bargaining representative.
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 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
DIRECTED that, as part of the investigation to ascertain representa-
4 The Field Examiner reported that the U S A presenter] 199 authorization cards bear-
ing the names of persons who appear on the Company's pay roll of October 14, 1944.
There are approximately 650 employees in the appropriate unit The Field Examiner
further reported that the UAW -AFL and District 50 presented 138 and 81 autborization
cards respectively bearing the names of persons on the October 14 , 1944, pay roll The
Association did not present any evidence of representation but relies upon its contract,
alluded to above as evidence of its interest in the instant proceeding. S
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives for the purposes of collective bargaining with The Container
Company, Division of Continental Can Company, Inc., Van Wert,
Ohio, 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
'Eighth 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 ap-
propriate 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
,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 election, to determine whether they desire to
be represented by United Steelworkers of America, C. I. 0., or by
"United Automobile Workers of America, A. F. of L., or by Con-
tainer Company Employees Association, or by District 50, United
Mine Workers of America, for the purposes of collective bargaining,
,or by none of said organizations.