The Heekin Can Co.

National Labor Relations Board - Board Decisions

Feb 17, 1950

88 N.L.R.B. 726 (N.L.R.B. 1950)

In the Matter of THE HEEKIN CAN COMPANY, EMPLOYER and LooAIG
729, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE
WORKERS, C. I. 0., PETITIONER
Case No. 9-RC-689.-Decided February 17, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Harold V.
Carey, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organizations involved :
The Petitioner is composed of employees of the Employer who were
formerly members of Local 729, United Electrical, Radio and Machine
Workers of America. At the Petitioner's first meeting, on November
10, 1949, its members unanimously instructed the duly elected officers
to apply for a charter from International Union of Electrical, Radio
and Machine Workers, C. I. 0., herein called the I. U. E. After issu-
ance of the charter, the Petitioner, as an affiliate of the I. U. E., com-
plied with the filing requirements of the Act, and filed the petition
herein. In view of the foregoing facts, we find no merit in the Inter-
venor's contention that the Petitioner is not a labor organization
within the meaning of the Act. The Intervenor's motion to dismiss
the petitioner on this ground is therefore denied. '
We find that the Petitioner and United Electrical, Radio and Ma-
chine Workers of America, herein called the Intervenor, are labor
organizations claiming to represent certain employees of the
Employer.
88 NLRB No. 146.
726
THE HEEKIN CAN COMPANY 727
3. The question concerning representation :
The Intervenor contends that a collective bargaining agreement be-
tween the Employer and the Intervenor "in behalf of and in conjunc-
tion with" its Local 729, executed on April 19, 1948, constitutes a bar
to this proceeding. By its terms the contract was to remain in effect
until March 31, 1950, and from year to year thereafter, unless either
party gave written notice of its desire to terminate the contract 60
days before the end of any contract year. The instant petition was
filed on November 30, 1949.
As the petition was filed before the automatic renewal date set forth
in the contract and as the contract will terminate in less than 2 months,
we find that the 1948 agreement is not a bar to this petition.,
We find, therefore, that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
We find, in accordance with the agreement of the parties, that all
production and maintenance employees at the Employer's Norwood,
Ohio, plant, excluding office and clerical employees, guards, profes-
sional employees, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.'
5. Determination of representatives :
The Intervenor contends that seasonal employees hired by the Em-
ployer between March and September of each year should be eligible
to vote in any election in this proceeding. The Petitioner does not
seek to represent these employees, and the Employer takes no position
as to their eligibility.
The Employer's can manufacturing operations are seasonal, with
peak employment reached during July and August, when farm crops
are available for canning. All such employment is terminated by
the end of September. Between March and September 1949, the Em-
ployer hired approximately 150 seasonal employees , primarily stu-
dents from nearby universities. These seasonal employees average 8
to 10 weeks of employment during each season , and although approxi-
mately 25 percent of them are rehired a second year, very few return
thereafter. Generally, they do not possess the same degree of skills
as the permanent employees, but they perform the same type of work.
1 Continental Bus System, Inc., 84 NLRB 670.
9 Included in the stipulated unit are group leaders and the watch engineer , who were
included in past contracts and who , as shown by the record , spend a smallportion of their
time allocating work to others but neither responsibly direct fellow employees nor exercise
any supervisory authority . Chrysler Corporation, 84 NLRB 516.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They do not accumulate seniority rights and have no assurance of re-
employment. The Employer anticipates that only about 100 such
employees will be hired during the 1950 season, as plant operations
have been curtailed.
We believe that the tenure of these seasonal employees is not suffi-
ciently regular and substantial to entitle them to participate in the
selection of a bargaining representative, and we find therefore that
they are ineligible to vote in the election hereinafter directed.3
The Petitioner and the Intervenor contend that certain groups of
regular employees laid off during November and December 1949
should be eligible to vote. The Employer asserts that they have been
permanently discharged and should therefore be declared ineligible.
The Employer made substantial cut-backs among its regular em-
ployees during November and December 1949. It is clear on the
record that this action resulted from a lack of work at the Norwood
plant. The Employer recently added a new plant in Arkansas, which
now performs some of the work formerly done at Norwood. It also
appears that the Employer's business in general has decreased because
of various economic problems. The laid-off employees were advised
to seek employment elsewhere because the curtailment of operations
would continue indefinitely. Although they have departmental sen-
iority and would be reemployed as seasonal employees during the 1950
peak season if they so desired, such seasonal work would, at best, be
of very short duration.
On the basis of the record before us, we are not satisfied that the
employees laid off during November and December 1949 have any
reasonable expectation of recall in the foreseeable future. We find,
therefore, as we have previously concluded under similar circum-
stances, that they are ineligible to vote in the election hereinafter
directed.4
DIRECTION OF ELECTION 5
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and
supervision of the Regional Director for the Region in which this
case was heard, and subject to Sections 203.61 and 203.62 of National
8 F. W. Woolworth Company, 83 NLRB 439.
'Warner Brothers Company, 83 NLRB 191.
Any participant in the election directed herein may, upon its prompt request to, and
approval thereof by, the Regional Director, have its name removed from the ballot.
THE HEEKIN CAN COMPANY 729
Labor Relations Board Rules and Regulations, among the employees
in the unit found appropriate in paragraph numbered 4, above, who
were employed during the payroll period immediately preceding the
date of this Direction of Election, including employees who did not
work during said payroll period because they were ill or on vacation
or temporarily laid off , but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election , and also excluding employees
on strike who are not entitled to reinstatement , to determine whether
they desire to be represented , for purposes of collective bargaining, by
Local 729, International Union of Electrical, Radio and Machine
Workers, C. I. 0., of by United Electrical , Radio and Machine
Workers of America, or by neither.