Continental Can Co.

In the Matter of CONTINENTAL CAN COMPANY, EMPLOYER and, INTER- NATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 9, PETITIONER Case No.14-R-1715.-Decided February 11, 1948 Messrs. C. E. Sponsler, J. L. Rothrock, and G. E. Johnson, all of St. Louis, Mo., and Mr. W. B. Jones, of Chicago, Ill., for the Employer. Mr. W. C. Riley, of St. Louis, Mo., for the Petitioner. Mr. Fred O. Often, of St. Louis, Mo., for the Intervenor. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at St. Louis, Missouri, before Harry G. Carlson, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. - Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Continental Can Company, a New York corporation, is engaged in the manufacture of metal containers. Its, principal office is located in New York City, and it has branches located in all principal cities of the United States. The Employer's plant located at 7140 North Broad- way, St. Louis, Missouri, known as Plant No. 73, is the only one herein involved. During the year 1946, the Employer purchased, for use at Plant No. 73, raw materials consisting chiefly of tin plate, black plate, solder, end seam compounds, paint coatings, and cartons, valued in excess of $500,000, of which approximately 75 percent was shipped to this plant from points outside the State of Missouri. During the same period, the Employer sold finished products valued in excess of $500,000, of which approximately 50 percent was shipped from Plant No. 73 to points outside the State of Missouri. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. 76N L.R.B,No 18. 131 781902-48-vol. 76-10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED The Petitioner is an unaffiliated labor organization, claiming to repre- sent employees of the Employer. United Steelworkers of America, Local 1120, CIO, herein called the Intervenor, is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Intervenor has represented the Employer's employees in a plant- wide unit since 1938. Recognition was first granted to it by the Em- ployer at its Plant No. 48 in St. Louis, Missouri. In July 1946, when the Employer transferred its operations and employees to Plant No. 73 in the same city, the then current contract, which was dated June 10, 1945, and contained a 30-day automatic renewal clause, was trans- ferred by a supplement thereto dated August 1, 1946. In September 1946 all the employees in the machine shop signed authorization cards to the Petitioner, whereupon the Petitioner filed- a petition seeking representation of the machinists, which was dis- missed by the Regional Director because of the Employer's then cur- rent contract with the Intervenor. All the machinists again executed authorization cards to the Petitioner, which were dated March or April 1947. On March 10, 1947, the Petitioner notified the Employer in writing of its claim to represent the employees in the machine shop. The Employer replied that it had a contract with the Intervenor. On March 18, 1947, the instant petition was- filed. Thereafter the Em- ployer and the Intervenor completed negotiations on a renewal of their contract, which was ratified on June 4, 1947. This contract pro- vided that it was to become effective on June 10, 19471 the date on which the preceding contract terminated,' to expire on June 10, 1948, and to supersede all previous contracts. The Employer and the Intervenor urge the June 1947 contract as a bar to this proceeding. Inasmuch, however, as the filing of the peti- tion preceded the execution of the June 1947 contract, that instrument ' On June 16, 1947, all the machinists notified the Employer and the Intervenor that they had withdrawn their membership in the Intervenor , effective as of June 10,' 1947. They had waited until expiration of the contract to do so in view of the maintenance-of- membership clause therein . The Employer questioned the effectiveness of these with- drawals on the ground that they occurred after the effective date of the new contract, and on the further ground that the machinists had participated in the Intervenor meeting at which the new contract had been ratified We find these questions to be irrelevant, however , with regard to the issue of whether or not a question concerning representation exists, in view of the fact that the machinists had designated the Petitioner as their representative, the Petitioner had duly notified the Employer thereof, and the petition herein had been timely filed. CONTINENTAL CAN COMPANY 133 cannot, under well established principles of the Board, constitute a_ bar to this proceeding.2 The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer in the unit sought by the Petitioner until the Petitioner has been certified by the Board in an appropriate unit. 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 to represent the seven machinists in the ma- chine shop who build, repair, and maintain machinery. These em- ployees are all highly skilled, have served an apprenticeship, and are able to do die work. They have separate working quarters and sepa- rate immediate supervision. They sometimes make repair on equip- ment in the production departments, but even at such times work under the supervision of the machine-shop foreman. Their hourly pay rate is about 60 cents an hour higher than that of the production employees and about 20 cents an hour higher than that of the millwrights.' The Employer and the Intervenor admit that the group sought by the Petitioner constitutes an appropriate unit, but they oppose sever- ance of this group on the ground that it had been part of the plant unit in all their collective bargaining contracts since 1938. While it appears that plant-wide bargaining, including the machine- shop employees, has existed since 1938, no issue was raised on the occasion of the establishment of the plant-wide unit as to the propriety of a separate craft unit for machine shop employees. Although these employees have maintained their membership in the Intervenor, this was due in part at least to the maintenance-of-membership clause in the contracts, and also to the Employer's check-off of dues for the Intervenor. These employees have endeavored to establish their iden- tity as a separate unit for more than a year, and are still unanimous in their desire for separate representation 4 They have at no time been afforded an opportunity in a separate election formally to ex- 3 Matter of Southern Advance Bag & Paper Co., Inc., 75 N L R B 614; Matter of Consolidated Steel Corporation of Texas, 74 N. L. R. B. 204 ; Matter of Gordon W. Callender, et at., d/b/a Kohlman Bros. if Sugarman Company, 74 N. L. R. B. 381. 3 The millwrights do building maintenance work. They are skilled employees , but not to the same degree as the machinists . They are not required to serve an apprenticeship, as are the machinists, and they work in a different shop, although they occasionally go into the machine shop to use equipment there. The Petitioner does not seek their inclusion in the craft unit. ' One of the machinists testified that if a grievance arose in the machine shop , it would be taken up directly with their foreman, and not processed through the Intervenor. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD press their desire for or against representation apart from the plant- wide unit. Furthermore, this group consists of craft employees whom the Board has, in numerous instances, established as a separate unit for purposes of collective bargaining in this industry and, indeed, in this very company 5 Under these circumstances, we are of the opinion that the employees in the group sought by the Petitioner may at this time constitute a separate appropriate unit if they so desire. However, we shall make no unit determination pending the outcome of the election directed hereinafter. If, in this election, the employees select the Petitioner, they will be taken to have indicated their desire to constitute a sepa- rate bargaining unit. We shall not place the Intervenor's name on the ballot, inasmuch as it has not complied with Section 9 (f) and (h) of the amended Act.6 The group sought by the Petitioner was described in the petition as "Tool and die makers, machinists, their helpers, specialists, and apprentices, including lead men, except for all other employees of the Company." At the hearing the Petitioner described lead men as "men who are assigned to instruct or act in a minor supervisory capacity, where they work with their tools at the same time," and stated that it was willing to omit this category from the unit if the Employer had no employees so classified. The Employer has na employees classified as lead men, and did not indicate whether or not it intended to hire employees in that capacity. In view of these facts, we shall not include lead men in the unit. The Employer has no employees classified as specialists, and stated at the hearing that it was doubtful whether any employees in that classification would be employed. There is no, evidence as to the type of work done by the specialists sought by the Petitioner, or their degree of skill. Under these circumstances, we shall not include specialists in the unit. The Employer also has no helpers or apprentices at present, but plans to institute the practice of hiring apprentices as the plant expands, and indicated that it may also hire helpers. We shall therefore include these classifications in the unit. Accordingly, we shall direct an election among all tool and die makers, machinists, their helpers and apprentices, excluding all super- visors, at the Employer's Plant No. 73 in St. Louis, Missouri. 5 See Matter of Continental Can Company, Inc., 13-R-1703 ( consent election ) ; Matter of Continental Can Company, 53 N. L R. B. 180 , Matter of Continental Can Company, Inc, 19-R-1780 (cross-check) ; Matter of American Can Company, 57 N. L. It. B. 104; and Matter of Continental Can Company, Inc., 73 N. L. It . B. 1375. 1 See Matter of Rite-Form Corset Company, 75 N. L. It. B, 174. CONTINENTAL CAN COMPANY DIRECTION OF ELECTION 135 As part of.the investigation to ascertain representatives for the purposes of collective bargaining with Continental Can Company, St. Louis, Missouri, 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 Di- rector for the Fourteenth Region and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations- 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 rein- stated prior to the date of the election, to determine whether or not they desire to be represented by International Association of Machin- ists, District No. 9, for the purposes of collective bargaining.