American Can Co.

National Labor Relations Board - Board Decisions

Sep 10, 1954

109 N.L.R.B. 1284 (N.L.R.B. 1954)

1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMERICAN CAN COMPANY and AMALGAMATED LITHOGRAPHERS OF
AMERICA, LOCAL #17, CIO, PETITIONER and UNITED STEELWORKERS
OF AMERICA, CIO, AND ITS LOCAL UNION No. 4689. Case No.
2O-RC-2422. September 10, 1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Natalie Allen, 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 this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. At the hearing on this petition, the Petitioner sought (1)
a unit of lithographic production employees at the Employer's litho-
graphing and enameling plant at Oakland, California, otherwise
called Plant 199-A, or, if such a unit be found inappropriate, (2) a
unit of all employees at that plant paid on an hourly rate basis. How-
ever, in its brief filed after the hearing, the Petitioner changed its
position and now seeks at Plant 199-A, as its first choice, the unit of
hourly rated employees described above, or, failing that, the unit of
lithographic production employees. The Intervenor asserts that
neither of the requested units is appropriate, on the ground that the
appropriate unit for the employees sought by the Petitioner is a multi-
plant unit, consisting of employees at some 37 plants of the Employer,
including Plant 199-A, which are currently covered by the Steel-
workers' master agreement. The Intervenor moves to dismiss the
petition on this ground. If the Board should find the proposed multi-
plant unit inappropriate, the Intervenor contends, in the alternative,
that the appropriate unit is the unit of hourly rated employees at
Plant 199-A proposed by the Petitioner. The Employer contends
that only this last unit is appropriate.
The Employer is a New Jersey corporation with its principal office
at New York City. It is engaged in the manufacture of metal and
1 At the hearing, United Steelworkers of America, CIO, hereinafter called the Steel-
workers, and its Local Union No. 4689, hereinafter called Local 4689, which jointly repre-
sent employees sought herein by the Petitioner, moved to intervene. The hearing officer
properly overruled the Employer's objection to such intervention and granted the motion.
Bethlehem Steel Company, Shipbuilding Division, 97 NLRB 1072 at 1073.
The Intervenor's motion to dismiss the petition is denied for reasons stated below.
109 NLRB No. 160.
AMERICAN CAN COMPANY 1285
fiber containers, and has some 85 factories, warehouses, and other
establishments in 25 States, the Hawaiian Islands, and Canada. At
Oakland, the employer operates its Plants 99-A and 199-A, under a
single manager. At the former plant, the Employer is engaged in
the manufacture of containers. At the latter plant, where operations
began about August 1951, it is engaged in the lithographing and
enameling of tinplate for about 5 of the Employer's can manufactur-
ing plants in California.2 The employees sought by the Petitioner
work at Plant 199-A.
The Intervenor contends that Plant 199-A has been effectively
merged with 36 other plants in the same and other localities so as to
form together with such other plants a single multiplant unit, which
is alone apppropriate under Section 9 (b) of the Act.' We turn,
therefore, to a consideration of the factors bearing on the question of
whether or not the 37 plants covered by the Steelworkers' contract
.constitute a single appropriate bargaining unit.
The bargaining history: The Employer and the Steelworkers have
had a bargaining relationship since 1937, when they entered into a
contract covering employees at a single plant. Thereafter, until 1950,
the parties entered into separate contracts covering employees at about
28 plants. On or about March 13, 1950, representatives of the Em-
ployer and of the Steelworkers and about 25 of its local unions exe-
cuted a Basic Agreement. The preamble of this agreement recited
that it had been made and entered into by the Employer "on behalf of
itself and each of its respective local operating units identified in Ap-
pendix A hereto attached" and by the Steelworkers "on behalf of itself
and each of its respective local unions" similarly identified. The
Basic Agreement covered approximately 26 plants of the Employer
and identified the local unions and the local bargaining units at these
plants, and stated that the Employer recognized the Steelworkers as
the exclusive collective bargaining agent for all employees covered by
the agreement. The agreement and subsequent amendments and sup-
plements thereto covered in considerable detail wages, hours, and other
working conditions. Among other things, they provided for wages
to be paid according to job groups and base rates; for the execution of
"Local Agreement";' for the incorporation in such local agreements,
2 These plants are located at Sacramento , Stockton , San Jose , San Francisco , and Oak-
land (Plant 99-A). Of the total work done at Plant 199-A, only a comparatively small
percentage is done for Plant 99-A
3 Section 9 (b), insofar as here pertinent, provides :
The Board shall decide in each case whether, in order to assure to employees the fullest
freedom in exercising the rights guaranteed by this Act , the unit appropriate for the
purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or
subdivision thereof. . .
4 The Basic Agreement reads in part :
Local Agreements shall be executed with respect only to those matters which are
specifically designated in this Basic Agreement for incorporation in Local Agreements
and within the limits specified in this Basic Agreement.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the term of the Basic Agreement, of the scale of wage and salary
rates established at each plant; for regular pay on 5 specified holidays
and on an additional holiday of national, State, or local importance, "as
now established at each location," to be specified in local agreements;
for the approval by local management and local unions of changes in
established starting or stopping times; and for the adjustment of
grievances under a four-stage procedure. Although the contract pro-
visions covering this last matter are not entirely clear, it appears that
grievances were handled solely at the local plant level until the fourth
stage, at which point international representatives of the Steelworkers
participated. Grievances not settled at that stage were sent to arbitra-
tion. The Basic Agreement as amended and supplemented contained
a number of provisions relating to seniority, including a provision for
a joint study of seniority practices and problems at all places covered
by the Basic Agreement. Pending the negotiation of a comprehensive,
uniform seniority plan based on, such study, the Basic, Agreement pro-
vided that local seniority practices would continue in effect.
On November 19, 1951, following a consent election in Case No. 20-
RC-1605,' the Regional Director certified the Steelworkers (no local)
as the exclusive collective-bargaining representative of all employees
at Plant 199-A G paid on an hourly rate basis. On December 5, 1951,
the Employer and the Steelworkers executed a supplement to the 1950
Basic Agreement, adding to the coverage thereof a unit of hourly rated
employees at Plant 199-A and identifying Local 4689 as the local union
at the plant.' On May 21, 1953, the manager of Plant 199-A and
representatives of the "Union" executed an agreement. This agree-
ment recited that it had been made by the Employer with respect only
to its Plant 199-A and by the Steelworkers on behalf of Local 4689,
.'hereinafter referred to as the Union." The agreement, which stated
that it was in accordance with provisions of the Basic Agreement, pro-
vided, inter alia, for wage rates and for plant and job seniority, and
designated Memorial Day as the sixth paid holiday.
On January 12, 1954, following negotiations at New York and Pitts-
burgh, representatives of the Employer and the Steelworkers and of
about 35 of its local unions, including Local 4689, executed a new con-
tract, which was still in effect at the time of the hearing. This agree-
ment recites that it has been made by the Employer and the Steel-
workers, and that it covers employees of the Employer "represented
by the United Steelworkers of America at the respective local operat-
ing units as identified in Appendix A attached hereto and incorporated
by reference herein." Appendix A sets forth approximately 45 local
5 Not reported in printed volumes of the Board's Decisions and Orders.
6 As noted above, operations began at this plant about August 1951.
7 The Basic Agreement indicates that the parties also executed several other supplements
relating to other single plants.
AMERICAN CAN COMPANY 1287
bargaining units at some 37 plants," and identifies the local union as-
signed to each unit. With respect to Plant 199-A, the contract de-
scribes the unit as consisting of hourly rated employees and names
local 4689 as its local union .9 Of the Employer's remaining 48 plants,
employees at about 36 are represented by labor organizations other
than the Steelworkers or its locals in various types of units, and em-
ployees at about 12 are not represented for bargaining purposes.
The recognition and grievance clauses of the 1954 contract are simi-
lar to those of the 1950 Basic Agreement. The 1954 contract specifies
that it supersedes all previous written local agreements executed under
provisions of the 1950 Basic Agreement, but provides for the continu-
ation of present local customs and practices and for the execution of
future local agreements." It also provides for agreement between
local management and local unions as to changes in established start-
ing times; for wages to be paid according to job groups, base rates,
and plant locations; and for general seniority rules and the negotia-
tion of local seniority plans. With respect to such plans, the contract
states, inter alia, that the Employer and the Steelworkers have agreed
that negotiations shall be undertaken at each location to review exist-
ing local seniority rules and procedures and to bring such provisions
into conformity with the agreement; that such negotiations are to be
conducted at the local plant level; and that each local seniority plan
thus agreed on shall be submitted for review and approval by repre-
8 Of the 45 units , about 37 were established in Board proceedings . In about 31 of these
proceedings , the Board certified the Steelworkers and in the remainder , its locals or dis-
tricts. Of the 37 plants , 4 are located at Chicago , Illinois ; 3 at MayNrood , Illinois ; 3 at
Baltimore , Maryland ; 2 at Oakland , California ; and 1 at each of the following places :
Vancouver , British Columbia ; Indianapolis , Indiana ; Brooklyn , New York ; Newark, New
Jersey, Tampa , Florida ; Houston , Texas ; Cincinnati, Ohio ; Milwaukee , Wisconsin ; Fair-
field, Alabama ; Terre Haute , Indiana , Austin, Indiana ; Joliet, Illinois ; St. Paul, Minne-
sota ; St. Louis , Missouri ; Fort Smith , Arkansas , Portland, Oregon ; Ogden, Utah ; and
Sacramento , San Francisco , San Jose, Los Angeles, Pacific Grove, Wilmington, San Diego,
and Stockton , all in California.
8 As noted above, the Employer also operates its Plant 99-A at Oakland . The current
contract includes a general unit at this plant and its local union, the Steelworkers' Local
No. 4468. The Steelworkers ' Local No. 1304 bargains separately for machinists, their
helpers, and tool- and die -makers at Plant 99-A. This is the only unit at any of the Em-
ployer 's plants which is represented by the Steelworkers or by one of its locals that is not
included in the current contract.
io The contract reads in part :
16 2 Presently effective local customs or practices , written or oral, which are not
specifically covered by provisions of this agreement and are not in conflict with its
provisions shall remain in effect during the term of this agreement.
16.3 Presently effective local customs or practices written or oral which provide
benefits in excess of the specific benefits provided for through the provisions of this
agreement shall be continued for the team of this agreement unless eliminated by
mutual agreement.
16.4 Local customs or practices which may hereafter be established by mutual
agreement shall , insofar as practicable , be reduced to writing. Any practice or custom
hereafter established by mutual agreement or otherwise found to be in violation of
the provisions of this agreement shall not be enforceable to the extent that it conflicts
with the terms of this agreement unless allowed to continue by mutual agreement be-
tween the international union and the general offices of the company.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives of the Steelworkers and the general offices of the Employer."
The agreement stipulates that local seniority lists shall be posted on
plant bulletin boards and shall be revised at least once every 6 months.
At the hearing on this petition, on February 17, 1954, a representa-
tive of the Employer indicated that the contracting parties intended
to negotiate another local agreement covering employees at Plant
199-A. However, discussions on the subject had not yet started.
We find in the contracts described above no clear indication as to
whether or not the parties to this course of collective bargaining
actually intended to effect a consolidation of the local plant units,
thereby destroying the separate identity of each one. The basic or
master agreements contain features which were present in other cases
where the Board found that an appropriate multiplant unit had been
established by collective bargaining between an employer and a union
representing employees in many of the employer's plants.12 On the
other hand, these same master agreements are also consistent with
the preservation of the local plant units as separate and distinct bar-
gaining entities.13 For all that appears in this case, the Employer and
the Steelworkers and its locals adopted the practice of executing
"master" or "basic" agreements simply because it was convenient to
bargain in one instrument concerning the wages, hours, and other
working conditions of employees in all the separate units that were
represented, for the time being, by these labor organizations. There
is no unequivocal manifestation of an intent to extinguish the right
of employees in each of the individual plant units to select and change
their bargaining representatives, at appropriate intervals, in plant-
wide elections. Under these circumstances, we need not determine
whether the intent of the contracting parties as to the scope of the
bargaining unit would be controlling if it were clearly expressed.
We find that the history of collective bargaining alone is not decisive
of the unit issue in this case.14
Other tests of appropriateness: Apart from the fact that they have
a common employer and a common bargaining representative, the
employees in the 37 plants covered by the Steelworkers' current agree-
ment appear to have no special community of interest that sets them
apart from all other employees of the Employer in its other 48 plants.
Although there was some transfer of personnel from Plant 99-A to
Plant 199-A when the latter plant began operations in 1951, there does
" If local negotiations do not result in agreement , the issues in dispute are to be re-
ferred to these general representatives "in conjunction with the local representatives of
the parties."
"West Virginia Pulp d Paper Co., 53 NLRB 814; Bethlehem Fairfield Shipyard, Incorpo-
rated, 58 NLRB 579 ; P . Lorillard Company , Louisville Plant, 58 NLRB 1112; Standard
Brands, Incorporated, 75 NLRB 394 ; Robert Gair Company, Inc., 77 NLRB 649.
is Aluminum Company o f America and Carolina Aluminum Company, 61 NLRB 245,
Aluminum Company of America , 61 NLRB 251.
14 Hygrade Food Products Corporation, 85 NLRB 841.
AMERICAN CAN COMPANY 1289
not appear to be any substantial transfer or interchange of employees
among any of the Employer's plants at this time. The current agree-
ment provides for the posting of local seniority lists, and for local
variations in wage rates. The 37 plants under this contract do not
form any functional, administrative, or geographical segment of the
Employer's organization. On the contrary, they are located in about
29 cities or towns in Canada and in 16 States of the United States as
widely separated as California, New York, Texas, and Florida. The
Board has consistently declined to find appropriate a multiplant unit
which does not conform to any functional, administrative, or geogra-
phic segment of the employer's operations, where, as here, there is
no controlling history of bargaining on the basis of such a unit.15
Considering all these factors, we find that the single plant unit
sought by the Petitioner is appropriate.'s
Upon the entire record in this case, we find that the following
employees of the Employer at its lithographing and enameling plant
at Oakland, California, otherwise known as Plant 199-A, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act : All employees paid on an
hourly rate basis, excluding all other employees and supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN FARMER and MEMBER PETERSON, dissenting :
We disagree with the conclusion of our colleagues that a single
plant unit is appropriate in this case. They base their opinion upon
the Board's decision in the Hygrade case 14 wherein the principle was
enunciated for the first time that there must be an unmistakable in-
dication that parties to a master contract mutually intended to ex-
tinguish the right of employees to be represented in separate plant
units before the Board would determine that a multiplant unit had
been established. This appeared to constitute a significant departure
from the past Board practice of ascertaining the intent of parties
in cases of this type by looking to the terms of the agreement and
their conduct with respect thereto. Thus the shape of the bargaining
unit will be fashioned on the basis of a purely artificial test. More-
over, a review of subsequent decisions discloses that this change which
Hygrade appeared to make has been more illusory than real. Thus,
15 Hygrade Food Products Corp., supra; Vita Food Products , Inc., 103 NLRB 495, 497 ;
Frost Lumber Industries, 101 NLRB 659, 661 ; Gulf Oil Corp., 100 NLRB 1007, 1009;
Armour & Company, 101 NLRB 1072, 1078.
10 As noted above, this is the alternative unit proposed by the Intervenor and the only
unit proposed by the Employer.
Because we grant the Petitioner 's primary unit request, we find it unnecessary to con-
sider its alternative request for a lithographic unit.
17 Hy grade Food Products Corporation, footnote 14, supra.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except in isolated instances,18 the Board has not adhered to the Hygrade
rule with respect to ascertaining the intent of parties to master agree-
ments. On the contrary, the Board has continued to hold that a
multiplant unit has been established where the parties have had a sub-
stantial bargaining history based upon a series of master contracts
covering specifically named plants and where the terms of the agree-
ment and the conduct of the parties with respect thereto has been
consistent with a conclusion that they intended to create such a unit.19
Considering the instant case in light of these criteria, it is our opinion
that the labor relations history from 1944 to 1954 clearly reflects an
intention by the parties to bargain on a multiplant basis,20 as mani-
fested by : (1) The master or basic agreements which contain extensive
provisions covering all the substantive terms usual to collective-bar-
gaining agreements: 21 (2) the provision in the basic agreement that
the local supplements shall be executed only with respect to those
matters which are specifically designated in the basic agreement for
incorporation in local supplements and within the limits specified in
the basic agreement; 22 (3) the joint participation by an International
representative of the Steelworkers and a local union representative
from each of the plants in which the Steelworkers had bargaining
rights in the negotiation and execution of the 1950 Basic Agreement
and the 1954 master contract entered into with officials of the Em-
ployer; 23 (4) the provision in the 1950 Basic Agreement for a joint
study by a -seniority plan committee consisting of equal representa-
tion by members appointed by the Steelworkers and the general man-
agement of the Employer for the purpose of negotiating a compre-
hensive, uniform seniority plan; (5) the provision in the 1954 master
contract that any local practice or custom found to be violative of the
provisions of that agreement would be unenforceable to the extent
that it conflicted with the terms of the master contract, unless allowed
to continue by mutual consent of the Steelworkers international and the
18 Armour & Company , 101 NLRB 1072.
10 The Goodyear Tire and Rubber Company, 105 NLRB 674; The Firestone Tire and
Rubber Company, 103 NLRB 1749; International Paper Company, Southern Kraft Divi-
sion, 101 NLRB 759; Underwood Corporation, 101 NLRB 25; Kaiser Aluminum & Chemi-
cal Corporation , 100 NLRB 107; Underwood Corporation ( Pacific District ), 99 NLRB 416;
St. Regis Paper Company , 97 NLRB 1051; International Paper Company, Tonawanda Mill,
97 NLRB 764; Pioneer Mercantile Company, 95 NLRB 274.
20 We note that the Employer and the Steelworkers entered into a master contract for
all the Employer's California plants in 1944; that this contract was renewed in 1947;
that the Basic Agreement covering some 26 plants , including all those in California, was
executed in 1950 , that the plant involved herein was included in the coverage of the
Basic Agreement by a supplementary agreement in 1951 ; and, that another master contract
covering some 37 plants, including the one with which we are here concerned , was executed
in 1954.
21 Lever Brothers Company, 97 NLRB 1240, 1242.
22 The Goodyear Tire and Rubber Company, 105 NLRB 674; The Firestone Tire & Rub-
ber Company , 103 NLRB 1749 , 1750; Hazel-Atlas Glass Company, 59 NLRB 706, 708.
23International Paper Company , Tonawanda Mill, 97 NLRB 764, 766; St Regis Paper
Company, 97 NLRB 1051 ; The Firestone Tire & Rubber Company, footnote 21, supra.
RAYTHEON MANUFACTURING COMPANY 1291
general "offices" of the Employer ; and, (6) the relegation to the Em
ployer and the Steelworkers international of the right to effectuate
changes in the basic or master agreements.24
If the majority decision herein presages, as we think it does, a
reversion to the Hygrade principle, we regard it as unfortunate, as it
is tantamount to making parties specifically state in their agreement,
or otherwise affirmatively express the fact, that they are bargaining
on a multiplant basis. While requiring a more explicit statement
by the parties in their contract as to the type of unit they are creating
would greatly facilitate Board determination as to their intent, we be-
lieve that it would have the concomitant effect of making the presence
or absence of such a statement a sine qua non for finding the existence
of a multiplant unit in derogation of the other equally-if not more
important criteria previously given considerable weight by the Board.
In view of the foregoing, and consistent with well-established Board
precedent, we would find that where, as here, there has been a sub-
stantial bargaining history on a multiplant basis, a unit limited to
employees of one plant is not appropriate for purposes of collective
bargaining.25 Accordingly, we would dismiss the petition herein.
94 The Goodyear 'Tire and Rubber Company, footnote 22, supra.
Owens-Illinois Glass Company, 108 NLRB 947; Buckeye Oil Company, Chemical Pulp
Division, 101 NLRB 30, 31; Hanovia Chemical and Manufacturing Company, 90 NLRB
650, 651 and cases cited therein.
RAYTHEON MANUFACTURING COMPANY and INDEPENDENT UNION OF
PLANT PROTECTION EMPLOYEES IN THE ELECTRICAL & MACHINE
INDUSTRY , PETITIONER . Case No. 1-RC-3587. September 10, 1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before George A. Sweeney,
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 this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent as a separate appropriate unit
all guards within the Employer's receiving tube division at its plants
100 NLRB No. 176.