Continental Can Co., Inc.

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that a question affecting commerce ex- ists concerning the representation of employees of the Em- ployers, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.3 4. The parties agree, and we find, that all production and maintenance employees at the Employer's plastic jewelry and novelties manufacturing plant, San Lorenzo, Puerto Rico, in- cluding direct jewelry operators and direct factory workers, but excluding indirect jewelry operators and office employees, watchmen, guards, doll and toy supervisors, direct supervi- sors, 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. [Text of Direction of Election omitted from publication.] 3Because we find the contract no bar for the reason stated, it is not necessary for us to consider other evidence introduced with respect to this isue. CONTINENTAL CAN COMPANY, INC., BETNER DIVISION and UNITED STEELWORKERS OF AMERICA, CIO, Peti- tioner. Case No. 16-RC-1283 . November 10, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, hearings were held on May 6 and on July 30, 1953, before Marvin L. Smith, hearing officer. The hearing officer's rulings made at the respective hearings are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organizations involved claim to represent cer- tain employees of the Employer. 3. The Intervenor contends that its notice to renew its con- tract with the Employer was not timely served on the Employer and that the contract was therefore automatically renewed and is a bar to this proceeding. The Petitioner asserts that the Employer and the Intervenor by their conduct waived any de- fect that there may have been in the service of the notice, and I The hearing officer correctly denied the Petitioner's motion, made at the first hearing, that Paris Printing Specialties and Paper Products Union 574, International Printing Press- men and Assistants' Union of North America, AFL, hereinafter called the Intervenor, be denied a place on the ballot in the election hereinafter directed, on the ground, in substance, that the latter was not currently in compliance with the filing requirements of Section 9 of the Act. The fact of compliance by a labor organization which is required to comply is a matter for administrative determination and is not litigable by the parties. Moreover, we are ad- ministratively satisfied that the Intervenor is in compliance. Swift & Company, 94 NLRB 917. The Intervenor's motion to dismiss the petition on the ground of contract bar is denied for reasons stated below. 107 NLRB No. 3. CONTINENTAL CAN COMPANY, INC., BETNER DIVISION 9 that the contract has therefore terminated and is not a bar. The .Employer takes no position on this issue. On May 12, 1952, following the certification of the Interve- nor's International in Case No. 16-RC-871,2 The Benjamin C. Betner Company, herein called Betner, entered into a contract with the Intervenor, covering production and maintenance em- ployees at Betner's paper and plastic container or bag manu- facturing plant at Paris, Texas. This contract was made effec- tive as of March 31, 1952, for 1 year and from year to year thereafter, in the absence of a 60-day written notice of inten- tion to cancel or alter before any expiration date. The contract also provided, among other things, that, if no agreement were reached on or before any expiration date, the contract would continue for a further period of 30 days and then terminate, un- less extended by mutual consent. On January 30, 1953, which was the automatic renewal date of the contract, Betner received a letter from the Intervenor, notifying Betner of its intention to terminate or modify their existing contract. About this time, the Employer bought the plant from Betner, and took over the business and the employ- ees, assuming the rights and liabilities of Betner, and desig- nating the plant as its Betner Division. An exchange of 5 letters between the Employer and the Intervenor followed, wherein the parties tried to arrange convenient dates for bar- gaining conferences on a contract proposal made by the Inter- venor. On April 13, 1953, the Petitioner filed its petition in the instant case, seeking to represent the production and mainte- nance employees at the Employer's plant. The Employer and the Intervenor thereupon discontinued their efforts to arrange meetings for negotiations. On April 20, 1953, the Intervenor filed with the Regional Director a motion to intervene in this proceeding, expressly stating that it did not assert its contract as a bar to this pro- ceeding . On the same day, the Regional Director denied the motion on the ground that the Intervenor was not then in com- pliance with the filing requirements of Section 9 of the Act, but suggested that the motion for intervention might be renewed at the scheduled hearing on the petition. On May 5, 1953, the Intervenor, for the first time, came into compliance with the filing requirements of Section 9 of the Act. On the next day, at the first hearing, the Intervenor appeared and intervened, for the first time alleging its contract with the Employer as a bar to a present determination of representatives. The Intervenor now contends that its notice of January 30, 1953, did not fore- stall renewal of the contract because served too late. Assuming, without deciding, that such notice was, in fact, late, we nevertheless find that as the Intervenor and Employer after such notice was given treated it as effective to open up the contract for negotiations, they thereby waived any defect in the notice and the Intervenor may not now assert that such 2Not reported in printed volumes of Board Decisions. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defect precluded the notice from effectively forestalling auto- matic renewal of the contract. 9 We find, therefore, that a question exists concerning the rep- resentation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.4 4. We find, in accordance with the agreement of the parties, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's paper and plastic container or bag manufacturing plant at Paris, Texas, known as its Betner Division, excluding office clerical employees, professional employees, technical employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 3Augat Bros., 97 NLRB 993; General Motors Corporation, 85 NLRB 234. 4In view of our finding that the contract is not a bar for the reasons indicated above, it is unnecessary to consider the Petitioner's other allegations relative to this issue. GIANT MARKETS, INC., and MORRIS HODIN and SAM HODIN, Co-Partners , trading as GIANT MARKETS and RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, Petitioner. Case No. 4-RC-1964. November 10, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearings were held before Ramey Donovan, a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in this case the Board finds: 1. Giant Markets, Inc., moved to dismiss the petition on two grounds: lack of jurisdiction in the Board, and contract bar. In support of the first ground it alleged that all of the sales made by its seven retail markets were made in the Commonwealth of Pennsylvania, and that all of its purchases were likewise made in that jurisdiction, "being made from M. L. Hodin and Sam Hodin, trading and doing business as the Giant Markets, a wholesale outlet" with its principal office in Scranton, Pennsylvania. Testimony taken at the original hearing in June 1953 indicates that Morris and Sam Hodin for "many" years operated a grocery warehouse and chain of retail stores in the Scranton area as a partnership, but in the fall of 1952 in- corporated the retail operation as Giant Markets, Inc., with Morris Hodin as president and no apparent change in control. The corporation's offices are located at the warehouse, 107 NLRB No. 4.