Container Corp. of America

it'i 'k_ In the Matter of CONTAINER CORPORATION of AMERICA, EMPLOYER and INTERNATIONAL UNION OF OPERATING ENGINEERS , I4OCAL 89, A. F. of L., PETITIONER Case No. 9-RC-346.-Decided May 9,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing in this case was held before William Naimark, hearing officer. The hearing officer's rulings made at a hearing are free from prejudicial error and are hereby affirmed. The motion of the Employer and District 50, United Mine Workers of America, herein called the Intervenor, to dismiss the petition is hereby denied for the reasons stated in paragraphs 3 and 4 hereinafter. 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 Reynolds and Gray]. 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 Petitioner and the Intervenor are labor organizations claim- ing to represent employees of the Employer. 3. The question concerning representation : The Intervenor and the Employer contend that a contract in effect between them covering the employees involved in the petition is a bar to this proceeding. This contract is dated March 8, 1948, expiring by its terms on February 15, 1949, but subject to automatic renewal for yearly periods thereafter in the absence of notice given by either party to the other 60 days before the expiration date. On December 13, 1948, the Intervenor served notice upon the Employer requesting a conference to negotiate changes in the terms of the contract. On December 20, 1948, the Petitioner filed its original petition in this case. On February 10, 1949, the Intervenor and the Employer exe- cuted an agreement extending the terms of the contract from February 15, 1949, its expiration date, to May 15, 1949. As automatic renewal of the 1948 contract was forestalled by the Intervenor's timely notice, and as the petition herein was filed before the execution of the exten- sion agreement of February 10, 1949, neither the contract as originally 83 N. L. R. B., No. 65. 424 CONTAINER CORPORATION OF AMERICA' 425 executed nor as amended by the extension agreement may serve as:a bar to this proceeding.' . . 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. 4. The appropriate unit : The Petitioner seeks a unit consisting of all'powerhouse employees, including engineers, firemen, and the coalman and ashman, at the Em- ployer's Circleville, Ohio, plant, excluding all other classification, and guards and supervisors as defined in the Act 2 The Intervenor and the Employer contend that only the existing plant-wide, unit is appropriate. The Employer manufactures corrugated paper from straw by a chemical process, requiring a large amount of steam and heat. The steam and electrical generating equipment, together with various types of auxiliary equipment, is located in a separate large room of the plant building. The' plant is operated on a three shift, 24-hour day, and 7-day week basis. Normally, one engineer and one fireman are in charge of the power equipment on each shift. They are skilled employees, licensed by the State of Ohio. A coal and ashman brings in the coal which is used for firing the boilers, and cleans out the ashes. These employees are under the direct supervision of the "tour" foreman who is in charge of operations throughout the entire plant. The Employer and the' Intervenor contend that because of the in- tegration of the steam and electrical generating equipment with the Employer's production operations, and the community of supervision and various conditions of employment between the employees sought by the Petitioner and the other employees in the plant, these em- ployees should not be severed from the existing plant-wide unit. It is clear, however, that these employees compose a distinct, homoge- neous and functionally coherent group of a type to which we have granted the opportunity for separate representation in other plants in this industry, despite their previous inclusion in a broader unit .3 We shall direct that an election be held among all the powerhouse employees, including engineers, firemen, and the coal and ashman, 1 Matter of Best Motor Lines, 80 N. L. R. B. 314 ; Matter of Murlin Manufacturing Com. pang, 80 N. L. R. B . 309; Matter of Aluminum Co. of America (Harvard Plant, Cleveland), 80 N. L. R. B. 1342. 9 The Intervenor moved to dismiss the petition on the ground of a variance between the original and amended petitions . The original petition contained a request for a unit of "power plant employees, 4 engineers and 4 firemen." In the amended petition the unit was described as "All powerhouse employees , including engineers, firemen and coal and ashman." This does not appear to constitute a substantial variation of the unit description. The motion to dismiss is denied. s Matter of West Virginia Pulp and Paper Company, 81 N. L. R. B. 261 ; Matter of Collins Manufacturing Company, 81 N. L. R. B. 267. See also Matter of Alderwood Products Corporation, 81 N. L. R. B. 186. 426 DECISIONS OF.NATIONAL : =LABOR :RELATIONS BOARD excluding all other classifications, pr'ofessiolial^ employees, guards, and supervisors as defined in the Act. In view -of the. fact, however, that these employees are presently a part of a plant-wide unit, we 'shall make no final unit determination at this time, but shall first ascertain the desires of these: employees as expressed •in the election hereinafter directed. If a majority vote for the Petitioner, they will be taken to' have indicated' their desire to constitute a separate bargaining unit. • 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 Ninth Region, and sub- ject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series •5, as amended, among the employees in the voting group described in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, 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 re- instated prior to the date of the election, and also excluding employees on strike who are not entitled to'^reinstatement,'to determine whether or'not they desire to be represented, for purposes of collective bar- gaining, by International Union of- Operating Engineers, Local 89, A. F. of L. , ., s The Intervenor will not be accorded a place on the ballot in the election herein directed, because it is not in compliance with the filing requirements of Section 9 (f), (g), and (h) of the Act. r.,.