Ball Brothers Co.

In the Mattel ' of BALL BROTHERS COMPANY and FEDERATION OF GLASS, •CERAIIIIC & SILICA SAND WORKERS OF AMERICA, CIO Case No. 8=5853 SUPPLEMENTAL DECISION AND AMENDMENT TO CERTIFICATION AND ORDER -July 6, 194 On September 21, '1943, the National Labor Relations Board issued its Decision and Direction of Election in the above-styled proceeding." Thereafter, on October 15, 1943, an election was held under the direc- tion and supervision of the Regional Director for the Ninth Region. On October 29, 1943, following the election, in which a majority of the participants selected the Federation of Glass, Ceramic & Silica Sand Workers of America, CIO, herein called the CIO, as their col- lective bargaining representative, the Board certified the CIO as the exclusive bargaining representative in the appropriate unit. On March 29, 1944, Glass Bottle Blowers Association, Operators Local #147, AFL, herein called Local 147, filed a petition for clarifica- tion of the Board's decision.2 On April 28, 1944, having duly consid- ered the petition of Local 147, the Board issued an Order reopening the record and directing a further hearing with respect to, the matters contained in said petition. Said hearing was held at Muncie, Indiana, on May 17, 1944, -after due notice, before Thomas E. Shroyer, Trial Examiner. The Company, the CIO, and Local 147 appeared, partici- pated, 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 affirmdd. In our previous decision we found appropriate a unit consisting generally of all miscellaneous employees, but excluded from the unit 1 52 N. L. R. B. 775. 2 The Association is hereinafter referred to as the GBBA. 57 N. L. R. B., No. 16. I 85 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operators, among others, on the ground that they had always been represented separately from'other employees, iii a separate bargaining unit. Local 147, which is the recognized bargaining agent for the operators, now contends in its petition for clarification of the Board's decision, that the term `-`operators" as used in the Board's decision,. includes lehr tenders, oilers, and cold repairmen.- The CIO stren- uously objects to such interpretation of the term operators and con- tends that lehr tenders, oilers, and cold repairmen do not come withiiii, the meaning of the term "operators." . As our earlier decision pointed out, the unit pattern at the Com, pany's plant has been created by'years of collective bargaining.. Local. 147 has always "represented the operators and machine tenders, while several so-called miscellaneous locals of the GBBA have jointly repre- sented most of the remaining employees.3 The GBBA has bargained on an industry-wide basis on behalf of the operators and annual con- tracts have been executed for many years on an industry-wide basis. Local 147 has functioned and still functions under the provisions cf these industry-wide contracts. On the other hand, the miscellaneous locals-have bargained on a single-plant basis. The record establishes, without contradiction, that Lehr tenders, who operate the lehrs orcool- ing furnaces through which the glass products pass immediately after being formed; have always been represented by the miscellaneous•local,• not by Local 147; and that oilers also have been represented by the miscellaneous local, since at least 1940. While it is true that the oilers and lehr tenders must work in close cooperation with the operators, ald under other circumstances, might appropriately be included'in the same unit with operators, it is equally true that the miscellaneous locals and Local 147, by their bargaining over a period of more than 8 years, have themselves established the separate unit for operators. It is, significant that all of the membership cards of lehr tenders and t oilers, which were submitted in the instant proceeding were dated- after the Board's Decision and Direction of Election in this case. 4Cold repairmen, who make the necessary repairs on the glass mould- ing machines, present a more difficult problem. It appears that some of the cold repairmen are,former operators who have retained their membership in Local 147. Pursuant to an oral agreement between Local 147 and the Company, the former operators who are members of Local 147 have retained their membership in that Local and their wage scales have been orally agreed upon by the Company and that Local. On the other hand, other cold repairmen have never been operators and were represented by the miscellaneous local, their wage scales having been fixed by the annual plant-wide contracts. Their 8 The employees formerly represented by the GBBA miscellaneous locals are those em- braced in the unit found appropriate in our previous Decision. BALL BROTHERS COMPANY -87, work, however, is apparently the same as that of those who were formerly operators and there seems to be no basis for distinction among them other than the fact that, they have been represented, by different unions. Obviously, employee membership in separate labor organizations, absent other factors distinguishing employees from- each-other, is insufficient basis for placing such 'employees in separate bargaining units.4' The cold repairmen lnust, therefore, be treated alike, either as part of the miscellaneous unit or as part of the oper- ator's unit. In our previous Decision we found that they were part of the miscellaneous unit. They are not operators and are not part of th© industry-wide contract unit, of which the operators of the Com- pany are a part. We therefore see no justification either on the basis of their function, or the informal dealings on their behalf by Local 147, for changing our prior disposition of the category of cold repair- men. Under -the circumstances in this case,,we are of the opinion that ,Oilers , lehr tenders, and cold repairmen do not properly fall within the meaning of the term operators, as that term is used in our descrip- tion of the appropriate bargaining unit and they have been and should remain part of the miscellaneous unit presently represented by the CIO.' As we have posited out above, the GBBA has itself fashioned the pattern of collective bargaining units ' at this plant and we are reluctant to alter a pattern of such long duration. The record in this case has shown clearly, however, that there is an extremely close func- tional relationship between many of the miscellaneous employees and the employees presently represented by Local 147: In the absence of a history of bargaining on behalf of the operators in, a separate unit, we would have been constrained to find appropriate a single unit including the operators. In the course of considering the petition of Local 147, we have noticed that our original unit finding failed to mention, as an excluded category, machine tenders. In order to correct this oversight, the description of the appropriate unit set forth in the certification liere- ,tofore issued is HEREBY AMENDED by adding to the list of excluded categories, machine tenders. -ORDER, 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, Sections 9 and 10, of National Labor Relations Board Rules and Regulations-Series 3, i * It is to be noted that apprentice operators , whose wage rates and other conditions of employment are fixed by the industry -wide contract under which Local 147 operates, are recruited from among several different categories of miscellaneous workers, not only from among the categories here in dispute. - 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS HEREBY ORDERED that the petition for clarification of the Board's Decision, filed by,Glass Bottle Blowers Association, Local 147, AFL, be, and it hereby is, dismissed., MR. GERARD D. REILLY took no part in,the consideration of the above Supplemental Decision and Amendment to Certification and Order.