American Can Co.

In the Matter of AMERICAN CAN COMPANY, EMPLOYER and INTERNA- TIONAL ASSOCIATION OF MACHINISTS, LODGE 304, PETITIONER Case No. 2-R-7652.-Decided January 27,19418 Sirwon, Thacher c€ Bartlett, by Messrs. Edward L. Coffey and Howard B. Ross, of New York City, for the Employer. Mr. Carl S. Carlson, of New York City, for the Petitioner. 111r. Clarence Talisman, of Newark, N. J., for the Federal. Mr. Nathan Witt, of New York City , for the Steelworkers. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed,' a hearing in this case was held at New York City on May 27 and June 11, 1947, before George Turitz, hearing officer, During the course of the hearing on May 27, 1947, the Em- ployer moved for a continuance of this proceeding on the ground that the Petitioner's amendment with respect to the appropriate unit neces- sitated additional time to prepare for the new issues raised. The Federal likewise moved fora continuance on the ground that the Peti- tioner's amendment to the unit required a new investigation of the Petitioner's representation among employees in the amended unit. The hearing officer denied these motions, but on June 11, 1947, the second day of the hearing, he reversed his ruling and referred the motions to the National Labor Relations Board. The motion of the Employer is hereby denied inasmuch as the 2-week interim between the first and second days of the hearing afforded the Employer ade- quate opportunity for preparation. The motion of the Federal is likewise denied inasmuch as any investigation of the Petitioner's pre- liminary showing of substantial interest in a unit found to be appro- priate is a matter that lies within the discretion of the Board.2 The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1 The petition and other formal papers were amended at the hearing to show the correct name of the petitioner 2 Mattei of 0. D Jennings d Company, 68 N L R. B. 516. 75 N L. R B., No 128. 1127 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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-man panel consisting of the undersigned Board Members.* Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER American Can Company, a New Jersey corporation with its main office at New York City, is engaged in the manufacture, sale, and distribution of metal and fibre containers. It operates plants in numerous States of the United States, including one located at Jersey City, New Jersey, known as the Hudson Plant, which is the only plant involved in this proceeding. During the past year, the Employer, at its Hudson Plant, used materials valued at more than $1,000,000, ap- proximately 75 percent of which came from points outside the State of New Jersey. During the same period, at its Hudson Plant the Employer sold finished products valued at more than $1,000,000, approximately 66 percent of which represents shipments to points outside the State of New Jersey. The Employer admits, and we find, that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is an unaffiliated labor organization, claiming to represent employees of the Employer. Federal Labor Union 23393, herein called the Federal, is a labor organization affiliated with the American Federation of Labor, claim- ing to represent employees of the Employer. United Steelworkers of America, herein called the Steelworkers, is a labor organization affiliated with the Congress of Industrial Organizations.3 III. THE QUESTION CONCERNING REPRESENTATION The Employer and the Federal executed a contract on April 11, 1946, covering production and maintenance employees at the Employer's Hudson Plant, including machinists and tool and die makers. This *Houston , Reynolds , and Gray. 3 The Steelworkers ' participation was limited , by its own volition , to stating its position as to the unit, it does not wish to appear on the ballot in the election hereinafter directed. AMERICAN CAN COMPANY 1129 contract was to expire on April 11, 1947, subject to a 30-day automatic renewal clause. On March 3 , 1947, the Petitioner advised the Em- ployer of its claim of majority representation of the machinists and tool and die makers at this plant , and requested recognition as their collective bargaining representative . The Employer refused to grant such recognition, alleging that these employees were already covered by a contract with the Federal. Thereupon, the Petitioner filed its petition on March 5, 1947, prior to the operative date of the automatic renewal clause contained in the contract between the Employer and the Federal. Subsequently on March 7, 1947, the Federal notified the Employer that it did not wish to renew the current contract , but desired to enter into negotiations for a new agreement. On March 26 , 1947, the Federal and the Employer by a supplemental agreement extended their old contract, pending the negotiations of a new contract . The Petitioner filed an amended petition on March 24,1947. Inasmuch as the original petition was filed prior to the operative date of the automatic renewal clause of the old contract , neither the old contract nor the supplemental agreement operates as a bar to a current determination of representatives. We find that a question affecting commerce exists concerning the representation of employees of the Employer , within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES The Petitioner seeks a unit of tool and die makers, their helpers and apprentices , and machinists , their helpers and apprentices at the Em- ployer's Hudson Plant. The Employer , the Federal, and the Steel- workers contend , however, that the only appropriate unit for these employees is the existing production and maintenance unit, presently represented by the Federal. The Employer classifies machinists as shop, maintenance , and pro- duction machinists. The shop and maintenance machinists report to the machine shop, and are under the supervision of the machine shop foreman. Production machinists are under separate supervision and are located in departments throughout the plant. Tool and die makers are similarly classified and assigned . The tool and die makers and machinists in the proposed unit constitute a traditionally recognized craft which the Board has established as a separate unit for the pur= 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD poses of collective bargaining in this industry;4 and which, in fact, presently exists in many plants of the Employer.5 The Federal has represented the employees in the proposed unit since March 1943, when it was selected as their bargaining representa- tive in a consent election in Case No. 2-R-3866. Since that time, these employees have been included in a production and maintenance unit in four successive bargaining contracts between the Employer and the Federal. They have actively participated in activities of, and settled their grievances through, the Federal. The operations of the Employer are integrated, requiring these employees to work in close conj unction with other plant employees, with whom they share the same or equal facilities and other benefits. The tool and die workers and the machinists at the Hudson Plant, however, have never had an opportunity in an election to express their desire for separate representations The circumstance that collective bargaining on a more comprehensive basis has existed at this plant for several years is not sufficient in itself to deny the employees in the craft group the opportunity of deciding at the present time whether they desire to continue to be represented as part of the production and maintenance unit, or to bargain as a separate unit. Inasmuch as the tool and die makers and machinists constitute a traditionally recognized craft, and similar craft units have been estab- lished in other plants of the Employer, and in the industry generally, we are of the opinion that the tool and die makers and machinists at the plant may at this time constitute a separate unit, if they so desire. The Petitioner would include tool crib attendants in the proposed unit; the Employer and the Federal apparently would exclude them. There are four attendants in one tool crib in the large machine shop and three attendants in another tool crib adjoining Department 34, in which a small machine shop is located. These attendants do not confine their services to any particular group of employees but serve the entire plant, dispensing tools and miscellaneous items, such as gloves, brushes, lamps, nails, screws, pipe fittings, and other materials. Their work requires no skill. Their interests and duties are not confined to, 4 Matter of Continental Can Company, Inc., 73 N L R B 1375, and cases cited therein. 3 The Employer has 79 plants throughout the United States At 22 of them there is no labor organization , at 10 of them, it has separate contracts covering machinists' units , at 7 of them, it has separate contracts with crafts other than machinists ; and at 40 of them, it has contracts coveiing production and maintenance units, including the machinists 0In December 1942, the Petitioner, then affiliated with the Federal, was attempting to organize these employees At the time, the Federal was attempting to organize a produc- tion and maintenance unit, including these employees A conference was held in March 1943, by representatives of the organizing committee, the Petitioner, and the Federal, at which it was decided that a production and maintenance unit would be more expedient at that time Consequently the Petitioner withdrew and did not appear on the ballot in the subsequent election in which the Federal was selected as bargaining representative AMERICAN CAN COMPANY 1131 or so closely allied with, those of machinists and tool and die makers to warrant their inclusion in a craft unit. We shall therefore exclude them.' Under the circumstances , we shall make no unit determination pend- ing the outcome of the election hereinafter directed . If, in this elec- tion, the employees select the Petitioner, they will be taken to have indicated their desire to constitute a separate bargaining unit. We shall not place the name of the Federal on the ballot , inasmuch as it has not complied with Section 9 (f), (g), and (h) of the Act, as amended." In accordance with the foregoing, we shall direct that an election be held among all tool and die makers, their helpers, and their ap- prentices , and machinists, their helpers , and their apprentices at the Employer's Hudson Plant, excluding tool crib attendants and super- visors, as defined in the amended Act. DIRECTION OF ELECTION As part of the, investigation to ascertain representatives for the purposes of collective bargaining with American Can Company (Hud- son Plant), Jersey City, New Jersey, 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 Second Region, and subject to Sections 203.61 and 203.62, of National Labor Relations Board Rules and Regu- lations-Series 5, among the employees in the voting group described in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll 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 reinstated prior to the date of the election, and also excluding em- ployees on strike who are not entitled to reinstatement , to determine whether or not they desire to be represented by International Associa- tion of Machinists , for the purposes of collective bargaining. T Matter of Sunbeam Corporation, 74 N. L R. B. 976 ; Matter of Argus Manufacturing Company, 63 N. L. R. B 1159. 8 Matter of Wilson Transit Company, 75 N. L. R. B. 181.