American Can Co.

National Labor Relations Board - Board Decisions

Aug 31, 1942

43 N.L.R.B. 838 (N.L.R.B. 1942)

In the Matter of AMERICAN CAN COMPANY, SOUTHERN, NEW ORLEANS
FACTORY, NEW ORLEANS, LOUISIANA and AMALGAMATED LITHOGRA-
PHERS OF AMERICA, LOCAL 53, AFFILIATED WITH A. F. OF L.
Case No. R-4065.-Decided August 31,1942
Jurisdiction : can manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal,to accord union recognition; election necessary.
Unit Appropriate for Collective Bargaining : employees of the Lithograph and
Coating Departments, excluding those in a supervisory capacity other than
the set-up man in the Coating Department.
Mr. Morgan J. Callahan, Jr., of New York City, for the Company.
Messrs. Walter M. Robinson, of Atlanta, Ga., and C. J. Todhunter,
of New Orleans, La., for the Union.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Amalgamated Lithographers of Amer-
ica, Local 53, affiliated with the A. F. of L., herein called the Union,
alleging that a question affecting commerce had arisen concerning the
representation of employees of American Can Company, Southern,
New Orleans Factory, New Orleans, Louisiana, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before C. Paul Barker, Trial Exam-
iner. Said hearing was held at New Orleans, Louisiana, on July 21,
1942. The Company and the Union appeared, participated, 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 affirmed. Both the Company and
the Union filed briefs which the Board" has considered.
Upon the entire record in the case, the Board makes the,following:
43 N. L. It. B, No. 135.
838 -
AMERICAN CAN COMPANY, SOUTHERN
FINDINGS OF FACT
I . THE BUSINESS OF THE COMPANY
839
American Can Company, Southern, is a Delaware corporation, a
wholly owned subsidiary of American Can Company, a New Jersey
corporation, with a principal place of business in -New York: The
parent corporation, American Can Company, through its subsidiaries,
including the Company, operates plants throughout the United States.'
The only plant involved in this proceeding is located at New Orleans,
Louisiana, and is operated by the Company for the manufacture,
sale, and, distribution of metal containers of various shapes and sizes.'
The Company annually purchases for use at its New Orleans factory
raw material amounting to more than $100,000 in value, all of which
is obtained from sources outside the State of Louisiana. The Com-
pany's annual sales amount to more than $200,000 in value, of which
65 percent is sold outside the State of Louisiana. The Company
admits that it is engaged in commerce within the meaning of the
National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Amalgamated Lithographers of America, Local 53, is a labor organ=
ization affiliated with the American Federation of Labor, admitting
to membership.employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION -
- In the fall of 1941 prior- to the filing of the present petition, the
Union, claiming to represent the employees in the Lithograph and
Coating departments, requested that the Company bargain collec-
tively. The Company declined to bargain with the Union as the
representative of, both the Lithograph and Coating departments upon
the ground that the two departments did not constitute an appropri--,
ate bargaining unit.
A statement of the Regional Director, introduced in evidence at the
hearing, shows that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.'
1 The Regional Director reported that the Union had submitted a petition bearing nine
signatures designating it as baigaining agent of the signers , that the ' signatw es on the
petition were examined and appeared to be genuine original signatures ; that the petition
is undated but is alleged to have been signed between October 1941 and April 1 , 1942:
The Regional Director further reported that a comparison of the signatures on the peti-
tion with the names . on a pay roll of the Company for the week of June 13 , 1942, dis-
closes that of a total of nine employees in the Lithograph and Coating departments , 'three
of five employees in the Lithograph department , one of the to employees in the Coating
department , and two of the strippers ( department not stated ) had designated the Union
as-bargaining representative.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find'that a question affecting commerce has arisen' concerning
the employees of the Company, within the meaning of Section 9 (c)
and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
- The Union contends that the appropriate unit should -consist of
all` employees in the Lithograph and Coating departments of the
Company, exclusive of those in a supervisory capacity other than
the set-up man, the extent of whose supervisory duties does not ap-
pear in the record and who is regarded as a specialty man in the
Coating department. The Company takes the position that the unit
should be limited to the skilled employees in the Lithograph depart-
. ment upon the ground that their interests' differ from those of the
relatively unskilled workers in the Coating department. .
It appears that these departments occupy adjacent space on the
same floor' and are under the direction of a single supervisor. They
also comprise a single seniority unit within which employees may be
transferred from one job to another ' without loss of seniority rights.
The employees, in both, departments work the same hours and re-
ceive the same pay for corresponding! types of work, except for the
pressmen, whose rate of pay is higher than that of the other em-
ployees. ' There are occasional transfers of employees between the
two departments.
The Lithograph and Coating department employees were included
with other production employees under a contract since expired be-
tween the Company and Federal Labor Union No., 22454. Subse-
quently, Federal Labor Union No. 22454 agreed with the Union to
waive its claim to represent the Lithograph and Coating departments.
Thereafter, a renewal of the contract between the Company and
Federal Labor Union No. 22454 contained a provision that the con-
tract should not apply to "employees carried on the hourly rate pay
'roll of the Lithograph and Coating departments if such employeesI 17
are considered a separate bargaining unit by the National Labor
Relations Board."
While-it appears that they have in the past been part of a larger
bargaining unit, we are of the opinion and find that the employees
of the- Company's Lithograph and Coating departments, excluding
those in a supervisory capacity other than the set-up man in the
Coating, department, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section.9 (b) of the
Act. '
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. The
AMERICAN CAN COM'PANY, SOUTHERN 941,
Company contends that by reason of a, curtailment of operations due
to wartime restrictions and shortages, the hourly rate employees now
employed in the Lithograph and Coating departments do not con-
stitute a representative group, and that 'an election should therefore
be deferred until the Company resumes normal operations. How-
ever, since it appears that the resumption of normal operations at the
Company's plant may be delayed indefinitely, we shall not for this
reason defer holding an election. Accordingly, we shall direct an
immediate election, in which the employees of the Company eligible
to vote shall be those in the appropriate unit who were employed
during the pay-roll period immediately preceding the date of the
Direction of Election herein, subject to the limitations and addi-
tions set, forth in the Direction.
'DIRECTION OF ELECTION
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, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that,' as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with American Can Company, Southern, New Orleans, Louisiana, 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 Fifteenth
Region, acting in this matter as agent for the National Labor Relations
Board, and subject to Article III, Section 9, of said Rules and Regular
tions, among the employees in the unit found appropriate in Section
IV, above, who were employed at the Company's New Orleans, Louisi-
ana, plant, during the pay-roll period immediately preceding the date
of this Direction, including any such employees who did not work
during said pay-roll period because they were ill or on vacation or in
the active military service or training of the United States, or tempo-
rarily laid off, but excluding any who have since quit or been dis-
charged for cause, to determine whether or not they desire to be rep-
resented by Amalgamated Lithographers of America, Local 53, affili-
ated with the A. F. of L., for the purposes of collective bargaining.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election. I
2 See Matter of International Shoe Company and United Rubber Workers, Local No. 198,
affiliated with C. I. 0., 40 N. L. R. B. 1211. ,