American Can Co.

National Labor Relations Board - Board Decisions

May 30, 1975

218 N.L.R.B. 102 (N.L.R.B. 1975)

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Can Company and Local One, Amalgamat-
ed Lithographers of America , International Typo-
graphical Union, AFL-CIO and United Steelwork-
ers of America, AFL-CIO, Party to the Contract.
American Can Company and United Steelworkers of
America, AFL-CIO, Petitioner. Cases 22-CA-
5619,22-CA-5803, and 22-RC-5853
May 30, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 23, 1974, Administrative Law Judge
Milton Janus issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party, Local One, Amalgamated Lithogra-
phers of America, International Typographical
Union, AFL-CIO, herein the ALA, filed exceptions
and supporting briefs; Respondent filed cross-excep-
tions and a brief in support of its cross-exceptions
and in answer to the exceptions filed by the General
Counsel and the ALA; United Steelworkers of
America, AFL-CIO, herein the Steelworkers, filed a
brief in support of the Administrative Law Judge's
Decision; and the ALA filed a brief in opposition to
Respondent's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and to the extent indicated hereinafter finds
merit in certain of the exceptions of the General
Counsel and the ALA. Accordingly, it adopts the
Administrative Law Judge's findings, conclusions,
and recommendations only to the extent that they
are consistent with this Decision.
1. We agree with the Administrative Law Judge's
finding, and for the reasons stated by him, that
Respondent did not violate Section 8(a)(5) and (1) of
the Act by refusing to recognize and bargain
collectively with the ALA as exclusive bargaining
representative of lithographic production employees
at the Regency plant and by refusing to bargain with
the ALA concerning the effects on Hudson employ-
ees of that plant's closing.
2. We disagree with the Administrative Law
Judge's finding that Respondent did not violate
Section 8(a)(2) and (1) of the Act by entering into a
collective-bargaining contract with the Steelworkers
which provided that lithographic production employ-
ees at the Regency plant be included in the
218 NLRB No. 17
production and maintenance unit represented by
that labor organization.
For about 30 years prior to 1974, Respondent
operated a large metal container manufacturing
plant in Jersey City, New Jersey, known as the
Hudson plant. Production and maintenance employ-
ees at this plant were represented by the Steelwork-
ers, and the lithographic production workers by the
ALA. In 1972, Respondent announced to the
employees that it intended to shut down the Hudson
plant in about a year and to open a new, smaller
plant about 26 miles away, the Regency plant. It
invited employees who wished to be employed at the
new plant to file applications. When ALA officials
learned from employees of the contemplated shut-
down of the Hudson plant and the opening of the
new Regency plant, they contacted Respondent and
asked if Respondent was considering applying the
ALA collective-bargaining contract covering litho-
graphic production workers at the Hudson plant to
similar workers expected to be employed at the
Regency plant. Respondent replied in the negative,
stating that Regency was a new plant, that Respon-
dent hoped that it would be unorganized, and that if
it were organized Respondent preferred that there be
a single production and maintenance unit, including
lithographic production employees. A few days later
the ALA wrote Respondent that a majority of the
lithographic production employees at the Hudson
plant desired to work at the Regency plant and to
continue to be separately represented by the ALA.
Each of the parties subsequently reiterated its
position about representation rights for lithographic
production employees at the Regency plant without
convincing the other.
On July 7, 1973, canmaking operations began at
the Regency plant. On August 23, 1973, the Steel-
workers filed a representation petition seeking to
represent all production and maintenance employees
at the Regency plant, including lithographic production
employees. At that time, of the expected full comple-
ment of 250 employees, there were only 64 employees
at work in 16 of the expected 26 eventual job
classifications; there were no lithographic production
employees. Neither the Steelworkers nor Respondent
informed the Regional Director of the ALA's
possible interest in representing lithographic pro-
duction employees in a separate unit. Accordingly,
on September 10, 1973, the Regional Director
approved a stipulation by Respondent and the
Steelworkers for the holding of a consent election in
a unit of production and maintenance employees at
the Regency plant. The phrase "including lithogra-
phers" was omitted from the unit description in the
stipulated unit at the suggestion of a Board repre-
sentative on the assurance of Respondent that no
AMERICAN CAN COMPANY 103
lithographic employees were then employed at the
new plant. The election was scheduled for September
21. A few days earlier the ALA learned from
employees of the prospective election. On September
20, the ALA hand-delivered a letter to the Regional
Director objecting to the inclusion of lithographers in
the scheduled plantwide unit election. A Board agent
telephoned a company representative and asked if he
knew of any interest which the ALA had in the
election. The representative answered in the negative.
The election proceeded as scheduled with only the
Steelworkers on the ballot. The Steelworkers won the
election by a vote of 84 to 0; no lithographer voted as
none was yet employed. On October 1, the Regional
Director certified the Steelworkers as bargaining
representative of a unit of production and mainte-
nance employees at the Regency plant. By the terms
of a national collective-bargaining agreement be-
tween Respondent and the Steelworkers employees
in the newly certified unit were automatically
included within its coverage; lithographic production
employees were also included.
On October 5, Respondent offered five of the
Hudson plant lithographers similar jobs at the
Regency plant, but on the condition that they join
the Steelworkers pursuant to the union-security
clause in the Steelworkers contract with Respondent,
and with certain less advantageous wages and other
conditions of employment. The employees rejected
the offer on those terms.
The Regency plant hired its first lithographic
production employees in December 1973, and
lithographic production began there in February
1974. As of the time of the hearing before the
Administrative Law Judge, there were 24 lithogra-
phers employed at the Hudson plant and 7 at the
Regency plant; the Hudson plant was expected to be
completely shut down in July 1974.
The General Counsel contends that, under the
principle enunciated in Midwest Piping & Supply Co.,
Inc., 63 NLRB 1060 (1945), Respondent violated
Section 8(a)(2) and (1) of the Act by including
lithographic production employees at the Regency
plant in the production and maintenance unit
represented by the Steelworkers, notwithstanding the
pendency of a real question concerning the represen-
tation of the lithographic production employees and
its awareness that the ALA was claiming to represent
such employees.
The Administrative Law Judge held that Respon-
dent did not by its contract violate Section 8(a)(2)
because the ALA did not have even a colorable claim
i Playskool, Inc., a Division of Milton Bradley Company, 195 NLRB 560
(1972), enforcement denied 477 F.2d 66 (C.A. 7, 1973); cf American Bread
Company, 170 NLRB 85 (1968), cert denied 411 F.2d 147 (C.A. 6, 1969).
2 The Boy's Markets, Inc., 156 NLRB 105, 107 (1965)
to represent the Regency lithographic employees
inasmuch as Respondent had no obligation to
transfer the ALA's bargaining status from the
Hudson plant to the Regency plant or to recognize it
as bargaining representative of lithographic pro-
duction employees at the Regency plant.
The Administrative Law Judge has confused the
existence of a question concerning representation
with its resolution and thereby misapplied the
doctrine of Midwest Piping. "[T]he sole requirement
necessary to raise a question concerning representa-
tion within the meaning of the Midwest Piping
doctrine, as modified by the Board, is that the claim
of the rival union must not be clearly unsupportable
and lacking in substance."' There is no requirement
under this doctrine that the rival claim must in fact
be valid and that the employer is required to bargain
with the rival union. It is enough that the rival claim
to representation is not "clearly unsupportable or
specious, or otherwise not a colorable claim." 2 An
employer faced with conflicting claims of rival
unions which give rise to a real question concerning
representation may not recognize or enter into a
contract with one of these unions until the represen-
tation question has been settled under the special
procedures of the Act.3 If the employer acts in
derogation of this principle it violates Section 8(a)(2)
and (1) of the Act.4
Here Respondent was faced with a real question
concerning which Union, the Steelworkers or the
ALA, was entitled to represent lithographic pro-
duction employees at the new Regency plant. For
many years the ALA had represented the lithograph-
ic production employees at the Hudson plant which
was expected to be phased out and replaced in part
by the Regency plant. Respondent had invited
employee applications,- including applications' from
lithographic production employees, for transfer to
the new plant. It was also planning to transfer and
did transfer some of the lithographic equipment from
the Hudson plant to the Regency plant. There is no
evidence that the work and skills of lithographic
production employees at the two plants were expect-
ed to be significantly different. And from the time
that the ALA learned of the contemplated change in
operations it made known to Respondent its claim to
represent lithographic production employees at the
Regency plant. Although we have found that
Respondent was not required as a matter of law to
bargain with the ALA for the Regency plant
lithographic production employees, this does not
mean that the Respondent's claim did not raise a real
3 N.L.RB v Hudson Berlind Corporation, 494 F.2d 1200 (C.A. 2, 1974),
enfg 203 NLRB 421 (1973); The Boy's Markets, Inc., supra.
4 Ibid.
1U4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question of representation. On the contrary, we find
that on the basis of the ALA's long history of
bargaining for lithographic production employees in
a separate unit at the Hudson plant the transfer of
part of the operations at the Hudson plant to the
Regency plant, including some of the lithographic
production work, the transfer of some of the
lithographic equipment from the Hudson plant to the
Regency plant, and the expected offer of employ-
ment at the Regency plant to some of the lithogra-
phers employed at the Hudson plant, together with
the ALA's repeated claim to represent lithographic
production employees at the Regency plant, created
a real, substantial question concerning the represen-
tation of these employees.5 Instead of submitting to
the Board the question of which Union was entitled
to represent the Regency plant lithographic pro-
duction employees, Respondent sought to resolve the
question itself with the cooperation of the Steelwork-
ers by utilizing the Board's processes while withhold-
ing vital information from the Regional Office
personnel. Undoubtedly, if Respondent had reported
the ALA's interest and claim, as it was dutybound to
do,6 no election would have been held and , no
certification would have issued until the unit place-
ment of lithographic production employees at the
Regency plant had been resolved. Apparently it was
to avoid this very possibility that information as to
the ALA's claim of representation was withheld.
Accordingly, we fmd that, by entering into a
collective-bargaining contract with the Steelworkers
which included lithographic production employees
together with other production and maintenance
employees at the Regency plant, while a real
question concerning representation of the lithograph-
ic production employees existed, Respondent unlaw-
fully assisted the Steelworkers in violation of Section
8(a)(2) and (1) of the Act.7
3. The complaint further alleged that Respondent
violated Section 8(a)(1), (2), and (3) of the Act, by
conditioning the transfer of certain lithographic
production employees from the Hudson plant to the
Regency plant upon their joining the Steelworkers
pursuant to the union-security clause in the collec-
tive-bargaining contract between Respondent and
the Steelworkers. The Administrative Law Judge
recommended dismissing this allegation in view of
his fording that Respondent had not given illegal
support to the Steelworkers in violation of Section
8(a)(2). As we have found that Respondent did
render unlawful support to the Steelworkers with
respect to lithographic production employees, the
attempt to, enforce the union-security clause of the
NLRB. v. Hudson Berlind Corporation, supra.
8 U. S. Chaircraf, Inc., 132 NLRB 922 (1961).
contract as to these employees violated Section
8(a)(1), (2), and (3) of the Acts We so find.
4. The General Counsel has requested that the
certification issued to the Steelworkers in Case 22-
RC-5853 be amended to exclude lithographic pro-
duction employees at the Regency plant. We fmd
merit in this request on two grounds. First, because
Respondent violated its duty to inform the Regional
Director of the ALA's claim to represent lithographic
production employees; and, second, because the
amendment is consistent with our remedial Order
requiring Respondent to withhold recognition from
the Steelworkers unless and until it is certified by the
Board.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Having found that Respondent violated the Act by
recognizing and bargaining with the Steelworkers as
the representative of lithographic production em-
ployees at the Regency plant, and by applying to
such employees the union-security clause in the
Steelworkers contract covering production and main-
tenance employees, we shall order Respondent to
withdraw and withhold recognition from the Steel-
workers as the representative of the lithographic
production employees at the Regency plant unless
and until the Board shall certify it as such representa-
tive. We shall also order Respondent to cease giving
effect to the collective-bargaining contract covering
production and maintenance employees between the
Steelworkers and Respondent insofar as it is applica-
ble to lithographic production employees at the
Regency plant, or to any modification, extension,
renewal, or supplement thereof. However, this order
shall not be construed to require Respondent to vary
any of the substantive terms, conditions, and benefits
for employees currently in effect.
Having found that Respondent unlawfully assisted
the Steelworkers by entering into a collective-bar-
gaining contract which included lithographic pro-
duction workers at the Regency plant, and that the
union-security clause in that contract insofar as it
applies to such employees was unlawful, we shall
order Respondent to reimburse all past and present
lithographic production employees at the Regency
plant for all initiation fees, dues, or other moneys
paid or checked off pursuant to the unlawful union-
security agreement or any extensions, renewals,
7 N.L.RB. v. Hudson Berlind Corporation, supra, Playskool, Inc, supra.
8 Ibid
AMERICAN CAN COMPANY 105
modifications , or supplements thereof, or any su-
perseding agreement.
Additionally, the amounts of reimbursement shall
carry interest at the rate of 6 percent per annum.9
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local One, Amalgamated Lithographers of
America, International Typographical Union, AFL-
CIO, and United Steelworkers of America, AFL-
CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
3. By entering into a collective-bargaining con-
tract with the Steelworkers which included litho-
graphic production employees together with other
production and maintenance employees at the
Regency plant, while a real question concerning
representation of the lithographic production work-
ers existed, Respondent violated Section 8(a)(2) and
(1) of the Act.
4. By attempting to enforce as to lithographic
production employees the union-security clause in
the collective-bargaining contract between Respon-
dent and the Steelworkers, Respondent violated
Section 8(a)(1), (2), and (3) of the Act.
5. By the foregoing conduct, Respondent has
interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed by Section 7 of
the Act, and -thereby has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
American Can Company, Greenwich, Connecticut,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Giving unlawful assistance or support to United
Steelworkers of America, AFL-CIO, or any other
labor organization.
(b) Recognizing the above-named ]Labor organiza-
tion as representative of lithographic production
employees at the Regency plant, unless and until it
has been certified as such representative by the
Board.
(c) Giving any force or effect to its collective-
bargaining contract with the above-named labor
organization insofar as it applies to lithographic
production employees at the Regency plant, unless
and until the said labor organization has been
certified as bargaining representative of such em-
ployees by the Board, provided, however, that
nothing herein shall require Respondent to vary or
abandon any of the substantive terms, conditions,
and benefits for employees currently in effect.
(d) Encouraging membership in the above-named
labor organization by attempting to enforce, as to the
lithographic production employees at the Regency
plant, the union-security clause in the collective-
bargaining contract with the above-named labor
organization.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
United Steelworkers of America, AFL-CIO, as
bargaining representative of lithographic production
employees at the Regency plant, unless and until the
Board shall certify it as such representative.
(b) ' Reimburse all present and former lithographic
production employees at the Regency plant for all
initiation fees, dues, and other moneys paid by or
withheld from them pursuant to the unlawful union-
secprity clause, in the manner provided in the
Remedy section of this Decision.
(c) Post at its Regency plant, Edison Township,
New Jersey, copies of the attached notice marked
"Appendix." 10 Copies of said notice, on forms
provided by the Regional Director for Region 22,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS HEREBY FURTHER ORDERED that the certifica-
tion issued to United Steelworkers of America, AFL-
CIO, in Case 22-RC-5853, be, and it hereby is,
amended to exclude lithographic production employ-
ees.
9 Hudson Berlind Corporation, supra
'° In the event that this Order is enforced by a Judgment of a Umted
States Court of Appeals, the words m the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize United Steelworkers of
America, AFL-CIO, as the representative of
lithographic production workers at our Regency
plant, unless and until it has been certified as such
representative by the National Labor Relations
Board.
WE WILL NOT give any force or effect to the
collective-bargaining contract with United Steel-
workers of, America, AFL-CIO, insofar as it
applies to lithographic production employees at
our Regency plant, unless and until that Union
has been certified as such representative by the
National Labor Relations Board.
WE WILL NOT encourage membership in United
Steelworkers of America, AFL-CIO, by attempt-
ing to enforce as to lithographic production
employees at our Regency plant the union-securi-
ty clause in our collective-bargaining contract
with United Steelworkers of America, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed in Section 7 of the
Act.
WE WILL withdraw and withhold all recogni-
tion from United Steelworkers of America, AFL-
CIO, as bargaining representative of lithographic
production employees at our Regency plant,
unless and until the National Labor Relations
Board shall certify the Steelworkers as such
representative.
WE WILL reimburse all present and former
lithographic production employees at our Regen-
cy plant for all initiation fees, dues, and other
moneys paid by or withheld from them pursuant
to the unlawful union-security clause applicable
to them, with interest at 6 percent per annum.
AMERICAN CAN COMPANY
DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge: The General
Counsel issued his complaint iii this proceeding on March
25, 1974, after charges filed on September 28, 1973, in Case
22-CA-5619, and on March 5, 1974, in Case 22-CA-5803,
by Local One, Amalgamated Lithographers of America,
International Typographical Union, AFL-CIO (ALA). On
March 26,' 1974, the Regional Director for Region 22
issued a Notice to Show Cause requesting American Can
Company (Company or Respondent) and United Steel-
workers of America, AFL-CIO (Steelworkers), the parties
in Case 22-RC-5853, to show cause why the certification
issued in that case should not be amended specifically to
exclude all lithographic production employees and why
that matter should not be consolidated with Cases 22-CA-
5619 and 22-CA-5803 for hearing. Thereafter, both the
Company and the Steelworkers filed responses opposing
amendment of the certification. The Regional Director
nevertheless concluded that there were substantial and
material issues concerning the amendment of the certifica-
tion and issued an order, on April 21, 1974, consolidating
Case 22-RC-5853 with the unfair labor practice proceed-
ing on which complaint had already been issued. The
complaint alleges violations of Section 8(axl), (2),(3), and
(5) of the Act.
I held a hearing on these consolidated matters on May
29-31, 1974, at Newark, New Jersey, at which all parties
were, represented. Briefs have since been received from the
General Counsel, Respondent, ALA, and Steelworkers,
which I have fully considered.
Upon the entire record in the case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a New Jersey corporation with its
principal office at Greenwich, Connecticut, which is
engaged in the manufacture, sale, and distribution of metal
cans and related products at its various plants in the
United States and Canada. Among these are one at Jersey
City, New Jersey (known as the Hudson plant), where
production was being phased out in 1973 and 1974, and
one at Edison Township, New Jersey (known as the
Regency plant), which began operations in 1973.
In the course of its operations during a recent representa-
tive period, Respondent caused to be purchased and
delivered to its Regency plant goods and materials valued
in excess of $50,000 from points outside New Jersey.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The charging party, ALA, and the party to the contract,
Steelworkers, are both labor organizations within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
THE FACTS
Briefly, this case revolves around the fact that ALA,
which had represented a separate unit of- lithographic
production employees at the Hudson plant for 30 years
(where Steelworkers had represented a production and
maintenance unit) now finds itself frozen out from any
representation at the new Regency plant, where Steelwork-
ers has been certified for an overall production and
AMERICAN CAN COMPANY 107
maintenance unit, including lithographic employees. How
this came about is detailed below. Because there is virtually
no dispute as to the facts, the parties reserve the weight of
their arguments to the formulation of the legal issues and
their resolution.
The Company's Hudson plant at Jersey City, which has
been operating for at least 30 years, comprised eight
buildings with over a million square feet of space. Its peak
employment in the last few years was about 1,800
employees , represented by five labor organizations : Steel-
workers for a production and maintenance unit comprising
the vast bulk of the employees; ALA for a lithographic unit
of about 44 employees at the beginning of 1973, and 24 at
the end of that year; and Teamsters, Operating Engineers,
and Office Workers for other small units, none of which is
involved in this case. The Company also operates two
other plants in New Jersey, at Hillside and Hoboken, both
of them fairly close to Jersey City. ALA also represented
units at these plants, and the three units were covered by a
single contract.
On August 8, 1972, the Hudson plant manager, Marifjer-
en, informed all employees that the Company intended to
shut down nine, of its canmaking plants, including Hudson,
within the next year and a half. On December 20, 1972, he
informed the Hudson employees that the Company would
be opening a new can manufacturing plant in Edison
Township (which is about 26 miles from the Hudson
plant), that the new plant would employ about 250 people
at full production, and that Hudson would be shut down
by the end of.August 1973. Marifjeren invited Hudson
employees who wished'to be considered for employment at
the new plant to apply through the employee relations
department at Hudson. Eventually, over 300 Hudson
employees applied for employment at the new plant, 216
were offered employment there, but only 95 accepted such
offers.
Shortly after the December 20 notice was posted,
Campione, ALA steward at Hudson, got in touch with
Hansen, executive vice president of ALA, to tell him that
Hudson was to be shut down. Hansen then called Leser, an
industrial relations official of the Company, on January 16,
1973, to find out what was happening and to express his
concern about the lithographic employees losing their jobs.
Hansen asked Leser whether the Company was consider-
ing applying the ALA contract to the Edison plant, but
Leser told him that it would be a new plant, that the
Company hoped that it be unorganized, but if it were
organized, it preferred a "wall to wall" unit, that is, a single
production and maintenance unit including lithographic
production employees.
A few days later, Hansen wrote Marifjeren regarding the
December 20 notice about opening a new plant at Edison
(with a copy to Leser), in which he said:
As an overwhelming majority of the employees whom
we represent have signified to us their desire to work at
the Edison plant and to continue to be represented by
us, we will expect you to continue to recognize Local
One as the collective bargaining agent of your
lithographic employees.
We are taken aback that you did not see fit to advise us
of this development and give us the opportunity to
discuss it with you.
About January 20, ALA Steward, Campione, sent
Marifjeren a petition signed by the lithographic employees,
advising him that they all desired to work at the Edison
plant and continue to be represented by ALA. Marifjeren
turned the petition over to the Hudson plant's supervisor
for employee relations, Ries. On January 30, Cooper, an
employee relations counsel at company headquarters wrote
Hansen, in response to Hansen's letter of the January 19,
saying that he (Cooper) had concluded that the Company
was not obliged to recognize ALA as the representative of
any lithographic employees it might employ at its new
plant, and that the present contract covering the Hudson
lithographic employees did not have to be applied there.
Hansen did not reply to Cooper's letter until March 7,
1973, and his response makes the following points : (1) the
failure of the Company to bargain with ALA regarding the
projected shutdown of Hudson and the move to Edison
violated the Company's bargaining obligation, since its
members would be drastically affected by the move; (2)
nothing more was involved than the transfer of existing
lithographic operations and skills already employed at
Hudson to another plant; and (3) ALA expected the
Company to take to the new plant as many of the Hudson
lithographic employees as wished to go, and that it would
continue to represent such a unit there. Finally, Hansen
said he expected to negotiate a new contract to replace the
one expiring May 1, 1973 (covering Hudson, Hillside, and
Hoboken).
Cooper immediately responded on March - 9 to this
effect: (1) The Company has no,duty to bargain with ALA
as to closing the Hudson plant or opening the new plant;
(2) it had satisfied, for the period of their present
agreement, any, duty it might have to bargain over the
effects of closing Hudson on the lithographic employees,
but would bargain for a new agreement covering Hudson;
(3) ALA had not, established any right to represent
employees of the new Regency plant at Edison, which was
not yet opened; and (4) the Company, would consider for
employment at Regency all applicants on a nondiscrimina-
tory basis, but would not automatically hire for the new
plant every lithographic employee at Hudson who wished
to transfer.
In mid-April Hansen met with Leser, and they negotiat-
ed a new 3-year agreement for lithographic employees at
Hudson, Hillside, and Hoboken. The agreement, in
evidence as General Counsel's Exhibit 7, makes no
provision for the transfer of Hudson lithographic employ-
ees to Hillside, Hoboken, or Regency even though
everyone knew that Hudson would be closed down in late
1973 or 1974, and that Regency would be operating then.
Hansen admitted that there was no discussion at the
bargaining sessions about the Regency plant, and ex-
plained that he did not raise a question about it because of
the advice of ALA counsel that since no lithographic
employees were then employed at Regency the question of
their representation was premature. In any event , the ALA
position that its Hudson contract should be applied at
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regency had, in Hansen's opinion, been made clear to the
Company by their previous correspondence.
A month later, at Hansen's request, he met with Leser
and Buly, the Company's employee relations director.
Among other matters, Hansen raised the Hudson closing
and the Regency opening, and asked if the Company had
changed its position on employing lithographic employees
from Hudson at Regency, and on his union representing
them. Buly replied that it was still their position that
Regency was a new plant, that they would like it to stay
unorganized, but if it were to be organized they preferred a
single plantwide unit. Between this meeting in mid-May,
and mid-September, there were no contacts or discussions
between ALA and company officials regarding any aspect
of closing down Hudson and opening Regency.
On July 7, 1973, canmaking operations began at
Regency. Since this date is a turning point in the recital of
events, it seems appropriate to break in here to' describe the
differences in operations between Hudson and Regency.
Sheeted plate in either its plain, coated, and/or decorated
form (a trade term for lithographic punting) is slit into can
heights and diameters which are then formed into can
cylinders and soldered. A top or bottom is seamed on, and
it is then ready for shipment to the customer who fills it
and seams on the other end.
Until 1972, Hudson produced a wide variety in sizes and
shapes of metal containers for coffee, shortening, beer,
carbonated beverages, motor oil, and other products. In
that year Hudson ceased manufacturing containers for
some of these product lines which were shifted to other
company plants. Hudson also made aerosol cans, and
Regency's production is devoted exclusively to that type of
container. Some of the camnaking equipment for, Regency
came from company plants, including Hudson, while other
equipment was purchased. The lithographic presses and
ovens now in use at Regency are all from Hudson, but
other presses and equipment used in the lithographic
process at Hudson have been shifted to other plants or will
be scrapped. Some lithographic work previously done at
Hudson has been transferred to Hillside, and additional
lithographic employees have been hired there, none of
whom came from Hudson.
At the time of this hearing, in May 1974, Regency had
about 200 employees, while its projected full complement
will be about 255, in 26 different job classifications. When
Regency was being manned, Hudson's employment was
down to about 500, from a peak of 1,800. As has been
already noted, only 216 Hudson employees were offered
jobs at Regency, on the basis of merit and skill rather than
seniority, and only 95 accepted employment there. Some
supervisors at Hudson were transferred to Regency, but
many others were assigned to other company facilities.
However, all the, lithographic supervisors at Regency came
from Hudson.
Continuing the recital of events after Regency opened in
July 1973, the next significant date is August 23, 1973,
when Steelworkers filed a representation petition (Case 22-
RC-5853) for a unit of "all production and maintenance
employees including lithographers" at Regency. Of the 64
employees who then constituted the total complement at
Regency, there were no lithographic workers. These 64
occupied 16 job classifications, of the 26 to be eventually
filled. On or about September 10, the Regional Director for
Region 22 approved a Stipulation for Certification upon
Consent Election, signed by the Company and Steelwork-
ers, for an election in a unit described as "All hourly rate
production and maintenance employees employed by the
Employer at its Regency plant .... (with the customary
exclusions of office clericals, supervisors, guards, etc.).
Lithographic employees were neither specifically included
nor excluded. The phrase "including lithographers" con-
tained in the petition was onutted from the unit description
in the stipulation, at the suggestion of the Board agent on
the assurance of the Company that no lithographic
employees were then employed at Regency. The Board
agent was apparently not informed that ALA was
interested in transferring its unit employees at Hudson to
Regency.
The election was scheduled to be held on Friday,
September 21. On September 19, or a few days earlier,
ALA steward Campione learned of the pending election
from a Hudson employee and had the information
confirmed by Ries, a company employee relations official.
Campione then called the 'union office and spoke to
Olmstead, its director of organizing, urging him to take
some action about the election. Olmstead prepared a letter
and had it delivered by hand to the Regional Office about
3 p.m. on September 20. It is addressed' to the Acting
Regional Director and reads as follows:
Just learned of representation election scheduled for
September 21st at American Can, Pierson Avenue,
Edison New Jersey. We object to any inclusion of
lithographic workers in whom we have an interest and
who do not properly belong in plant wide unit.
/s/ A: Olmstead
Director of Organizing- Financial Secretary
The letter was immediately turned over to Phyllis
Schectman, the Board agent assigned to the representation
case. She called Ries at the Hudson plant, and asked him if
he knew of any interest that ALA had in the election.
Schectman did not testify at the hearing, but Ries says he
told her that he knew of no interest of the ALA, but that
she could call Company headquarters at Greenwich, where
the matter was being handled. Ries admitted that he had
seen and had sent on to Greenwich,' the letter of January
19, 1973, from Hansen of ALA to Plant Manager
Marifjeren which indicated his Union's desire to continue
to represent at the new plant in Edison the employees in its
unit at Hudson. Ries also admitted that he had seen the
petition which the Hudson lithographic employees had
sent to Marifjeren about the same time, expressing their
interest in working at the new plant and being represented
by ALA. There is nothing in the record to indicate whether
Schectman tried to call Cooper, who had signed to
Stipulation for Certification on behalf of the-Company, at
his office in Greenwich.
She did, however, call Olmstead at the Union's office,
but he was out. She left a message for him to call her,
which he got the next morning, the day of the election.
Instead, Olmstead called the Union's attorney, but was
AMERICAN CAN COMPANY 109
unable to reach him. So far as the record shows, Olmstead
did nothing further to alert the Regional Office that ALA
had a present or potential interest in representing anyone
at Regency.
The election proceeded that day without objection by the
Board agent. The 'ballots were opened and counted, and
Steelworkers won by a vote of 84 to 0. No lithographic
workers voted as there were none yet employed at
Regency.
Sometime in the next week, Mr. Gill, attorney for ALA,
called the Regional Office presumably to protest the
holding of the election, although. there is no direct
testimony on the point. In any event, on Friday, September
28, a week after the election, ALA filed unfair labor
practice charges against the Company and Steelworkers.
(The charge against the Steelworkers was later withdrawn.)
The charge against the Company alleged (1) a refusal to
bargain from December 20, 1972, with ALA' as the
bargaining representative of the lithographic production
employees at both Hudson and Regency; and (2) unlawful
assistance to Steelworkers in becoming the collective-
bargaining representative of lithographic employees at
Regency to the exclusion of ALA, their rightful representa-
tive.
The following Monday, October 1, 1973, the Regional
Director issued a Certification of Representative, certifying
that Steelworkers was the exclusive representative of the
production and maintenance unit at Regency. Under a
national agreement between the Company and Steelwork-
ers, the certified unit was added thereunder, and the union-
security clause in that agreement became immediately
effective. Those already employed had 30 days in which to
Join Steelworkers, while new employees had 30 days after
the date of their employement to join. There were then
about 90 employees in, the unit, or more than 30 percent of
the expected full complement of 255, occupying 16 of the
26 expected job classifications, or more than 50 percent of
such classifications. The contract bar rule of General
Extrusion Company, Inc., 121 NLRB 1165 (1958), had been
satisfied.
On October 12, Marifjeren and Ries interviewed five
lithographic employees at Hudson (Rizzardi, Grupe,
Lemke, Amorese, and Posnanski) and offered them
employment at Regency. They were told that they would
have to join Steelworkers, pursuant to the union-security
provision of the contract covering Regency, that the hourly
rates under that contract were less than they were presently
receiving under the ALA contract at Hudson, that their
prior service with the Company would count toward their
pension , but not for seniority at Regency, and that their
work week would be 40 hours instead of 32.5 hours as at
Hudson. They were given time to consider the offer. A few
days later, they all advised a company representative that
they would not accept the offer unless their employment
would be under ALA jurisdiction. Undoubtedly, one of the
factors in their collective decision not to accept employ-
ment at Regency under the Steelworkers contract was their
covet age under the ALA pension plan by which they were
credited for years of service prior to their employment with
American Can, with other employers under contract with
their union.
Regency hired its first lithographic employees in Decem-
ber 1973, and lithographic production began there in
February 1974. As of the time of the hearing, the end of
May 1974, there were 24 lithographic employees still at
Hudson and 7 at Regency. The latest estimate as to when
Hudson would completely shut down was July 1974.
For the next 5 months, presumably while its September
28 charge was being investigated by the Regional Office,
ALA made no attempt to contact the Company as to its
claims for representation at Regency. Then, on March 4,
1974, Gill, counsel for ALA, advised the Company that it
was adhering to its position that the contract currently in
effect for lithographic employees at Hudson also covered
the same type of employee at Regency, and requesting the
Company to recognize it as the bargaining, representative
for the four lithographic employees then employed there.
The next day, ALA filed its charge in Case 22-CA-5803,
alleging a violation of Section 8(a)(3), by conditioning the
hire of the five employees who had been offered jobs at
Regency on their joining Steelworkers, and a violation of
Section 8(a)(5) by wrongfully refusing to recognize it, on or
about March 4, 1974, as the bargaining representative for
the lithographic employees at Regency.. The same day,
March 5, ALA withdrew the 8(a)(5) portion of its first
charge, to the effect that the Company had refused to
bargain with it from December 20, 1972, for the lithograph-
ic employees both at Hudson and at Regency. The
Regional Director approved the withdrawal of this portion
of the first charge on March 6, 1974.
Thereafter, as I have previously noted in the "Statement
of the Case" the Regional Director issued a consolidated
complaint alleging violations of Section 8(a)(1), (2), , (3),
and (5), and later, a Notice to Show Cause why the
Certification of Representative in Case 22-RC-5853
should not be amended to exclude all lithographic
production employees (at Regency) from the appropriate
bargaininay g unit.
On M 21, 1974, almost 2 months after issuance of the
complaint, and about a week before the start of this
hearing, counsel for ALA requested the Company to
bargain about the effects of the impending phase-out of
lithographic operations at Hudson. A few days later, the
Company responded that although no phaseout date had
yet been announced, it was imminent, and that it was
willing to discuss the matter with' ALA at a mutually
convenient time. If such bargaining has in fact occurred,
either, before or after the hearing, I have not been made
aware of it.
The Allegations of the Complaint and the
Contentions of the Parties
From this welter of facts, frustrated hopes, possible
errors, oversights and sharp practices, the General Counsel
has constructed a complaint alleging violations of Section
8(a)(1), (2), (3), and (5). From the allegations of the
complaint and his brief, it appears that the General
Counsel's theory of the case is as follows: Respondent,
although aware that ALA was demanding recognition for
the lithographic production employees at Regency, and
while there was a pending question concerning representa-
tion over that unit, nevertheless entered into an agreement
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Steelworkers which provided that the lithographic
employees be included in the production and maintenance
unit, and thereafter applied the union-security and check-
off provisions to them; Respondent urged and solicited the
lithographic employees at ` Hudson to join Steelworkers,
and required them to do so as a condition of being
transferred to Regency; the certification in Case 22-RC-
5853 should be amended to exclude the lithographic
production'' employees at Regency because the Company
knew at the time the Stipulation for Certification was
entered into that ALA had raised a valid question
concerning representation, and was under a duty to inform
the Regional Director of all such claims of which it was
aware; and Respondent 'refused to bargain with ALA as
the exclusive bargaining representative of the lithographic
employees at Regency.
The two basic propositions relied on to support the
General Counsel's theory of the case are, it seems to me,
(1) that ALA's representation of the lithographic unit at
Hudson and its claim that 'all lithographic employees hired
at Regency would continue to be represented by it, raised a
timely question concerning representation which Respon-
dent ignored at its peril (and from which the alleged
violations of Section 8(a)(2) and (3) flow); and (2) that
Respondent was obligated to recognize and bargain with
ALA at Regency because the transfer of lithographic
operations from Hudson to Regency was a "mere reloca-
tion" of such operations. (The 8(a)(5) allegations.)
ALA, the Charging Union, concentrates in its brief on
the argument, identical with that of the General Counsel,
that the lithographic operations at Regency were trans-
ferred without substantial change from Hudson, so that
ALA remained the representative of the 'lithographic
employees at Regency. The conclusions it draws from 'that
argument are that' the Company should be ordered to
abide by the terms of the Hudson bargaining agreement' for
all lithographic employees now at Regency, and that the
Company should be ordered to reinstate and make whole
the lithographic employees at Hudson who were terminat-
ed by virtue of its unlawful' conduct.
The Company argues that Regency is a new facility, not
a relocation of Hudson,'but whether it is or not, the fact
that there has been no accompanying transfer of a large
proportion of Hudson employees to Regency means ' that
no union which represented employees at Hudson was
entitled to carry over bargaining rights to the new plant.
The Company stresses that ALA never requested it to
bargain over the effects on Hudson employees of that
plant's phasing out (including the transfer of such
employees to Regency) before issuance of the complaint.
In any event, the Company argues that even if the move to
Regency was a relocation, neither ALA nor the Hudson
employees had an absolute-or automatic right to transfer to
the new plant. As for the Notice to Show Cause why the
Steelworkers certification should not be amended to
exclude a lithographic unit, the Company argues that no
amendment should be ordered because ALA waived, any
rights it may have had at Regency by its failure to assert its
claim, and that the Regional Director was on notice that
the lithographic process employees were to be included in
the production and maintenance unit at Regency. Finally,
the Company contends that the 8(a)(5) allegations of the
complaint are barred under Section 10(b), since they relate
to matters occurring more than 6 months prior to the filing
of any pending charge.
Steelworkers urges that Regency was not a relocation of
the Hudson plant, pointing out, as does the Company in its
brief, that the new plant is limited to just one of the many
product lines manufactured at Hudson, that the machinery
at Regency did not all come from Hudson, and that the
total number of employees at Regency is a,small fraction of
those previously employed at Hudson. Furthermore, even
if Regency were considered, a relocation of Hudson, the
Company was still under no obligation, to bargain with
ALA for a lithographic unit since ALA never represented a
majority of the lithographic employees at Regency, nor was
its lack of majority due to unfair labor practices committed
by the Company. Steelworkers also urges that the allega-
tion of the complaint to the effect that the Company has
refused to recognize and bargain with ALA since January
19, 1973 (when the lithographic employees at Hudson first
indicated their interest in transferring to, the new plant with
their existing ALA representation), 'is not sustainable by
the ALA charge of March 5, 1974, which is the only charge
currently related to an 8(a)(5) violation. It also argues that
its certification for the production and maintenance unit at
Regency, issued on October 1, 1973, should' not be
amended' to exclude lithographic employees because the
Company was under no obligation to recognize ALA for
any employees at Regency. It points out that its petition for
the Regency production and maintenance unit specifically
included lithographic employees, and that if ALA failed to
intervene in time it was its own fault or that of the
Regional Director, but not the fault of the Company.
Steelworkers also points out that the Company recognized
it before' Regency had any lithographic employees, and
that the election was properly held' since the General
Extrusion rule as to percentage of employees and job
classifications had been met., It takes the position that the
lithographic employees at Regency, all of whom were hired
after its certification, are a proper accretion to its
production and maintenance unit.
Analysis and Conclusions
Although the briefs of the General Counsel and the
Respondent, the two major proponents here, touch on all
the issues raised by the facts in this case, they do so from
different perspectives and with varying emphases.
The General Counsel starts with the proposition that
Respondent failed to satisfy the Board's Midwest Piping
doctrine (63 NLRB 1060) by not maintaining strict
neutrality between the competing claims of ALA and
Steelworkers to represent its lithographic employees at the
new Regency plant. Based on its failure to maintain such
neutrality, the General Counsel argues that Respondent
also violated Section '8(a)(2) by agreeing to extend the
coverage of its national agreement with Steelworkers to the
Regency plant's lithographic employees. It then follows,
according to the General Counsel, that Respondent further
violated Section 8(a)(2), as well as (3), by applying the
union-security and checkoff provisions of that agreement
to the Regency lithographic employees, and by informing
AMERICAN CAN COMPANY
five lithographic employees at Hudson that they would be
transferred to Regency only if they agreed to join
Steelworkers.
Finally, the General Counsel contends that Respondent
violated Section 8(a)(5) by refusing to recognize and
bargain with ALA for a unit of lithographic employees at
Regency. The contention is based on the following points:
the lithographic operation at Regency was a mere
relocation of the one at Hudson; Respondent was required
to negotiate the basis and conditions on which the Hudson
lithographic employees would be allowed to transfer to
Regency, but failed to do so; and, although ALA did not
represent a majority of the lithographic employees at
Regency, it would probably have had such a majority but
for Respondent's refusal to bargain and its violations of
Section 8(a)(2) and (3), since the ALA employees at
Hudson had indicated a desire to transfer with continued
ALA representation, and would have done so since the two
plants were only 26 miles apart.
It should be noted that the General Counsel unlike ALA,
does not contend that the ALA contract for Hudson is
already applicable to the lithographic employees at
Regency.
The Respondent's arguments are addressed to points
which are either unraised by General Counsel or barely
considered by him. They are the following: there has been
no violation of Section 8(a)(5) because the allegations of
the complaint pertaining to that Section are barred by
Section 10(b), since the basis of the complaint is an act
which occurred on January 19, 1973 (ALA's first demand
that all Hudson lithographic employees be transferred to
the new plant with their representation intact) more than
14 months before the filing of the only extant charge
referring to Section 8(a)(5); the complaint seeks to bestow
on ALA a status as the representative of lithographic
employees at Regency, which it could acquire only by
showing that it had been designated as such by the
Regency employees; and that ALA waived its rights to
bargain about how a transfer of some unit employees from
Hudson to Regency might be effectuated by its insistence
that the Company had no other option than to transfer all
the lithographic employees from Hudson to Regency.
Respondent contends that Regency was a new plant and
that it had a right to hire whom- it wanted there, subject
only to its admitted obligation to bargain with ALA, if
requested to do so, about the terms and conditions on
which the Hudson lithographic employees would be
offered jobs at Regency, if offered jobs at all.
As to the' alleged violations of Section 8(a)(2) and (3),
Respondent points out that it entered into a collective-
bargaining agreement containing a union-security clause
with Steelworkers, only after the Regional Director
certified Steelworkers as the representative of a production
i There is also another possible alternative- that the existing contract
provides, by its terms, that it shall apply to the relocated operation. See
Helrose Bindery, Inc, 204 NLRB 499 (1973), and The Rittling Corporation,
203 NLRB 355 (1973).1 find, in the instant case , that neither the expired nor
the new contract between Respondent and ALA for the Hudson plant
contains such a provision. A related but separate question, whether ALA's
bargaining rights for the Hudson unit (irrespective of any contract
provision) are transferable to similar work performed at Regency, is
discussed hereafter.
2 See Regal Aluminum, Inc, 190 NLRB 468, and McLoughlin Manufac-
111
and maintenance unit at Regency, despite the fact that a
charge filed by ALA, alleging a violation of Section 8(a)(2)
was then pending in the Regional Office. Respondent does
not consider the argument made by the General Counsel
that its failure to inform the Regional Office that ALA was
claiming representational rights at Regency constituted
illegal assistance to the Steelworkers.
Section 8(a)(5): Certain bargaining obligations flow from
an employer's decision based on economic considerations
to relocate all or part of his operations. There is, first, the
obligation to inform the representatives of his employees of
his decision, and to afford them an opportunity to present
their views. If the employer cannot be persuaded to retract
his decision to relocate, he is still obligated to bargain, on
demand, as to the effects of the relocation on the
employees at the old plant, that is, who will be employed at
the new plant, under what terms and conditions of
employment, and who will be terminated, with what
severance rights and benefits.'
Here, the Company, with 60 plants throughout the
country, decided in 1972 to close down 9 plants; including
Hudson, and to realign its operations by moving, purchas-
mg, and scrapping equipment, transferring supervisors,
and generally modernizing its business. As part of these
efforts it built a new plant, Regency, limiting its production
there to the manufacture of aerosol cans, one of the many
product lines previously manufactured at Hudson. Litho-
graphic work on other product lines was transferred
elsewhere, but all the lithographic work on aerosol cans
formerly done at Hudson was transferred without change
to Regency. The employee complement at Regency was
drastically reduced from that at Hudson both for can
production and for lithographic work.
Although the Company did not formally notify ALA
(nor Steelworkers either, apparently) of its intention to
close Hudson down, it did give all its employees ample
notice and kept them informed as to its timetable for
phasing out Hudson and opening Regency. As a practical
matter, ALA was immediately made aware of the Compa-
ny's decision to close Hudson down, but never seriously
sought to persuade it to do otherwise. The complaint does
not allege that the Company's failure to notify ALA of its
intentions as to -Hudson is an independent violation of
Section 8(a)(5), nor does the General Counsel argue that, if
it is a violation, it should be remedied in any particular
manner.2 Under these circumstances, I make no finding as
to whether the Company's failure to notify ALA of its
decision to close Hudson down was in violation of Section
8(a)(5).
It is well-established, from the "plant relocation" cases
cited below3 that a union representing employees at a
plant whose operations are partially or completely termi-
nated and relocated elsewhere is entitled to negotiate the
turfing Corporation, 182 NLRB 958, enf d as mod., ,rub nom. International
Ladies Garment Workers Union v. N.L.R.B, 463 F.2d 907 (C.A.D C), where
the Board awarded backpay to the affected employees because of the
employer's failure to notify the bargaining representative of its intention to
relocate its operations
3 Fraser & Johnston Company, 189 NLRB 142, enfd in part 469 F.2d
1259 (C.A. 9), The Pierce Governor Company, Inc., 164 NLRB 97, aff d 394
F 2d 757 (C.A.D.C.), Cooper Thermometer Conpany, 160 NLRB 1902, enf d
in part 376 F.2d 684 (CA. 2), and Die Supply Corporation, 160 NLRB 1326,
enf'd 393 F.2d 462 (CA. 1).
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
base's and conditions on which the employees affected by
the termination may transfer to the new plant and thereby
continue to be employed. If, on the basis of such
bargaining, the employees at the closed-down plant
constitute a majority at the new, then their bargaining
representative is unaffected by the move. But if the
employer has refused to bargain about the effects of the
relocation on its employees, the Board will infer, if the old
and new plants are not too distant, and if the new is a
continuation of the old in terms of production and
equipment, etc., that the employees would have transferred
but for the employer's illegal action, so that their union at
the old plant continues to be their majority representative
at the new.
A recent Board case exemplifying these principles is
Fraser & Johnston Company, 189 NLRB 142 (1971), and
since all the parties recognize its pertinency to the case
here, I will summarize its facts and holdings in some detail.
The Company (Fraser) was a wholly-owned subsidiary
of Westinghouse. Fraser was engaged in its San Francisco
plant in the manufacture of heating and cooling equip-
ment, while Westinghouse operated a plant at San
Lorenzo, 26 miles away, where it manufactured switch-
board panels for the electrical industry. The employees at
the Fraser plant were represented by three unions in what
was substantially a production and maintenance unit,
while the Westinghouse employees were represented by
another union, IBEW. Fraser employed over 300 hourly
rated employees at San Francisco, while Westinghouse had
about 85 employees at San Lorenzo.
Fraser notified the San Francisco unions in July 1968
that it was considering moving to Westinghouse's San
Lorenzo plant because of the inadequacy of its present
location. In April 1969, Fraser began to move its inventory
and machinery to San Lorenzo, and full production began
there in August. The San Francisco plant had been shut
down, in July, and all the hourly rated employees were
terminated. All requests by the San Francisco unions and
the employees there for transfer to San Lorenzo with the
retention of existu}g rights were rejected. In the meantime,
Fraser had negotiated with IBEW at San 'Lorenzo on
changes in the latter's contract,with Westinghouse regard-
ing new job classifications for the influx of new employees
who had been hired to perform the work done at San
Francisco.
With the new employees hired at San Lorenzo, IBEW
represented more than twice as many employees as it had
previously represented, in a variety of new job classifica-
tions . In the meantime , Westinghouse had relocated its San
Lorenzo operations to another plant 200 miles away. Thus,
Fraser was established at San Lorenzo, carrying out the
same operations with the same machinery, operating
methods and supervisors that it had used at San Francisco,
but with another union.
Fraser's asserted reason for not considering the request
of the San Francisco unions for transfer of their unit
employees to San Lorenzo with their bargaining rights and
existing contracts, was that it was legally obligated to apply
the existing IBEW contract at San Lorenzo to its relocated
operation there. It offered the unions only an agreement
for severance pay coupled with the final termination of the
represented employees and the extinguishment of their
contractual and recogmtional rights.
The Board rejected the Company's contention that it
could not be held,tQ have violated Section 8(a)(5) by not
bargaining over transferring the San Francisco employees
to San Lorenzo because it was legally committed to
recognize IBEW as the representative of all employees at
San Lorenzo, holding instead that bargaining over the
transfer of the San Francisco employees was obligatory,
and that the Company had failed to do so.
The essential element in finding that Fraser "refused to
bargain" with the San Francisco unions was its refusal to
consider their request that their unit employees be
transferred to San Lorenzo, based on its alleged commit-
ment to IBEW. As the majority opinion in that decision
put it (189 NLRB at 143):
Respondent was, of course, not free to make this
commitment to the IBEW, and its commitment was
itself an unfair labor practice. But it is that commit-
ment which `led Respondent to refuse even to consider
the proposals of the San Francisco unions that San
Francisco employees be permitted to follow their jobs
to San Lorenzo. Had Respondent bargained in good
faith concerning these proposals, that is to say without
regard to its commitment to the IBEW, it is highly
unlikely that it would have refused to permit those San
Francisco employees who wished to transfer to do so,
for a majority of the employees of each of the San
Francisco units had indicated a desire to transfer to
San Lorenzo. These employees were experienced and
skilled in the necessary work tasks and they could have
worked in San Lorenzo - only 25 miles from San
Francisco - without moving their homes.
Thus, the vice in Fraser's violation of Section 8(a)(5) was in
imposing an illegal condition to consideration of the
unions' proposals, not in refusing to grant them. As
Chairman Miller said in his opinion, concurring in part
and dissenting in part: (fn. 5, p. 144)
The violation found is based on Respondent's refusal
to bargain in good faith over the transfer rights of the
San Francisco employees after shutdown of that
location. We do not hold that Respondent was required
to transfer any San Francisco employees, only that
Respondent was required, but failed, to bargain over
that issue. We are not at liberty to. presume that good-
faith bargaining would have produced any agreement
to require transfer of San Francisco employees. See H.
K Porter Co. v. N.L.R.B., 397 U.S. 99.
Cooper Thermometer Company, 160 NLRB 1902 (1966), is
another plant relocation case where the old and new plants
were also about 25 miles apart, a distance considered to
make it likely that employees at the shut-down plant would
have transferred if given the opportunity. Here, too, as in
Fraser & Johnston Company, supra, independent violations
of Section 8(aX5) by the company (refusing to furnish
information on changes in classifications, rates, and
schedules, and dealing individually with employees in
derogation of their bargaining representative) negated its
AMERICAN CAN COMPANY
claim that it had bargained in good faith with the union
over conditions of transfer to the new plant.
I find there are significant differences between this case
and Fraser & Johnston, Cooper Thermometer, and Die
Supply, supra In those cases the Board found violations of
Section 8(a)(5) in the respondents' refusal to recognize and
bargain at the new plants with the unions which represent-
ed employees at the old plant, partially on the ground that
the new plant was no more than the old plant in a different
location. Machinery, manufacturing processes, and super-
vision were transferred practically intact from one to the
other facility with nothing changed but the site. In Die
Supply Corporation, 160 NLRB 1326 at 1341 (1966), the
Trial Examiner found that there had been no change in
anything except location and the termination of senior
employees; in Cooper Thermometer Company, 160 NLRB
1902 at 1912 (1966), the Trial Examiner held that the new
plant was not established as an additional facility, but was
instead a 'transposition or removal of the employer's
business from one location to another; while in Fraser &
Johnston Company, 189 NLRB 142 (1971) (fn. 3), the Board
found that the employer's operation at San Lorenzo was a
continuation of the operations at its former plant at San
Francisco, while the court of appeals, in enforcing -the
Board's order in part, observed that "In all material
respects - company name, products, machinery, opera-
tional methods and supervision - the Company's opera-
tions in San Lorenzo were a continuation of the operations
it had formerly conducted in San 'Francisco." 469 F.2d
1269 (C.A. 9, 1972).
In this case, the Regency plant was not a simple removal
of Hudson to a new location. Where Hudson had been the
site for the manufacture of a wide range of products,
Regency is limited to the manufacture of a single product
line. It is of course true that the Company's business
nationwide is the manufacture of metal containers, and
that their size or what they are filled with may be
considered to be irrelevant to its basic processes. However,
manufacturing processes undoubtedly vary with the size or
shape of the product, and the reduction of many product
lines to a single line represents a much more substantial
change in the Company's business and production than
occurred in the other "relocation" cases mentioned above.
Furthermore, much of the supervisory staff employed at
Hudson was no longer needed at Regency and was
transferred elsewhere, while only, part of the machinery at
Hudson was ,physically moved to Regency. These are the
expected consequences of a substantial diminution in the
number of production and maintenance workers needed at
Regency. Employment at Hudson was about 500 when the
decision was reached to close it down, while the maximum
employment at Regency will , be just half that. So
substantial a reduction in force is incompatible with a
conclusion that Regency was nothing more than a
continuation of Hudson,
I am aware that the General Counsel and ALA do not
deny that Regency is' something more than Hudson at a
remove of 25' miles. They argue that even if Regency is not
a continuation of Hudson, yet the lithographic department
at the new plant is exactly the same as at the old, with
employees exercising the same skills on the identical
113
machinery. Even that, however, is only partially true. Here
too, employment in the Regency lithographic department
will be about half of what it was at Hudson, and although
all the lithographic equipment now at Regency came from
Hudson, other equipment no longer needed at Regency has
been scrapped or sent to still other plants. I find, therefore,
that neither the lithographic department at Regency nor
the entire plant is a "mere relocation" or continuation of
the business and processes formerly conducted at Hudson.
An employer who opens an additional plant by transfer-
ring machinery from a number of his other plants,
including one which is being shut down, is not obligated to
hire at the new facility those employees who manned the
machinery being transferred. Neither jobs nor representa-
tion rights adhere to specific pieces of machinery or
manufacturing processes , and flexibility in meeting a
changing economic situation requires flexibility in the right
to hire and fire. Changes and adjustments of the magnitude
present here necessitate a freer hand in adjusting employ-
ment to new conditions than if the employer was merely
moving an existing facility to a new site. I therefore
conclude that the Company was correct in asserting that it
had no absolute or automatic obligation to recognize ALA
as the bargaining representative of lithographic employees
at Regency, merely because it had represented such
employees at Hudson. It did, however, have an obligation
to bargain with ALA, if requested to do so, about the
effects of closing down Hudson on the employees whom it
represented there.
The first communication between ALA.and the Compa-
ny after it learned that a new can manufacturing plant
would be opened 26 miles from Hudson was a call from
Hansen, executive vice president of ALA, to Leser, an
industrial relations official of the Company, on January 16,
193. After expressing concern about lithographic employ-
ees, losing their jobs, Hansen asked Leser whether the
Company was considering applying the current contract at
Hudson to the new plant. Leser told him in effect that none
of the contracts at Hudson would be carried over to the
new plant. A few days later Hansen wrote the Hudson
plant manager', and Leser that ALA expected to be
represented at the Edison Township plant.
Hansen again wrote to the Company about a month
later, March 7, 1973, repeating his claim that ALA should
continue to represent a lithographic unit consisting of as
many Hudson employees as wanted to transfer to the new
plant. He also protested the Company's failure to bargain
about the projected shutdown of Hudson, since ALA
members were affected by the move. The Company
responded a few days later that it had no duty to bargain
about closing Hudson or opening the new plant,'that any
duty it might have to bargain over the effects of closing
Hudson was covered by its existing contract , and that it
would bargain for a new agreement to be applied to
Hudson. It also' advised Hansen that the Company would
consider for employment at Regency all applicants on a
nondiscriminatory basis, but would not automatically hire
there every lithographic employee who wished to transfer.
A month later, Hansen met with Leser and negotiated a
new 3-year agreement covering the three New Jersey
plants, including Hudson, where it was the bargaining
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative. Hansen did not ask for any special benefits
for employees who might be terminated because of
Hudson's closing, nor did he request separate negotiations
on the effects of such closing on Hudson lithographic
employees. A month later, Hansen met with Leser and his
superior, Buly, and again Hansen limited himself to
discussing whether the Company would consider employ-
ing Hudson lithographic employees at Regency, with his
union representing them. Buly reiterated the Company's
claim that Regency was a new plant and, in effect, that
neither employees nor bargaining obligations at Hudson
would be brought over to Regency. Hansen did not, as an
alternative, 'request' bargaining over any other aspects of
the move.
There was no attempt by the Company to conceal the
fact that production would begin at Regency in July 1973,
and that inevitably all -lithographic work at Hudson would
be transferred there. Nevertheless, ALA made no attempt
to negotiate with the Company about the effects of the
closing of Hudson on its members employed there. In late
September 1973, when ALA filed its first charge with the
Board, it again claimed representation rights at Regency,
but not that the Company had refused to bargain with it
over the effects of the closing or the conditions on which
applications for employment at Regency would be consid-
ered. After another 5 months, ALA filed a second charge
which again alleged only a wrongful refusal to recognize it
as the bargaining representative for lithographic employees
at Regency.
Thus, from January 1973 to March 1974, ALA consist-
ently claimed that its bargaining status at Hudson entitled
it to represent all lithographic employees to be hired at
Regency. Not until May 21, 1974, 2 months after issuance
of the complaint, did ALA request the Company to
bargain with it about the effect on its members of the final
closing of Hudson. The Company replied immediately that
it was willing to discuss the matter.
I see no need to engage in an extended discussion about
the ALA requests for bargaining: I am satisfied that they
were limited to the demand that only ALA-represented
employees be hired at Regency, and that ALA continue to
represent them there. I have already found that Regency
was not a continuation of Hudson, and that ALA had no
inherent right to represent whomever the Company hired
for its lithographic operations at Regency. I now find that
at no time before the issuance of the complaint did ALA
request 'bargaining on what it was entitled to - meeting
and negotiating with the Company on such matters as
severance benefits for employees terminated at Hudson or
the factors to be used by the Company in deciding whom
to hire at Regency., The Company need not have agreed to
whatever demands of this sort ALA might present, but
ALA never even put it to the test. I conclude that ALA has
waived its rights to bargain about the effects on Hudson
employees of that plant's closing .4
Two further, points need to be cleared up before I
conclude my discussion of the 8(a)(5) aspects of the case.
1. In Fraser & Johnston and Cooper Thermometer, supra,
the Board held that the operations of the relocated plant
were sufficiently similar to those of the closed plant so that
the representative status of the unions there should be
transferred to the relocated plant. Part of the consideration
for the Board's findings in those 'cases was that the
employers had committed independent violations of
Section 8(a)(5), either by insisting on an illegal condition to
bargaining (in Fraser & Johnston) or by refusing to furnish
pertinent job data (in Cooper Thermometer), and that these
violations had frustrated the unions"attempts to bargain
about the effects on their members of the plant relocation.
If the Board should disagree with me that Regency was
not a continuation of Hudson but rather a quite different
operation, I hereby observe that the Company did nothing
to frustrate the course of bargaining by committing the
kinds of violations noted above. In my opinion then, Fraser
& Johnston and Cooper Thermometer are distinguishable
from this case, even if the Board fords that Regency, or its
lithographic department, is only a continuation of its
Hudson counterpart. In any event, my finding that ALA
waived its right to bargain over "effects" is further support
for the conclusion, which I hereby reach, that the
allegations of the complaint with respect to Section 8(a)(5)
should be dismissed.
2. The Company and Steelworkers argue forcefully that
10(b) bars the refusal-to-bargain allegations because the
only charge dealing with that matter is dated March 5,
1974, or 14 months after ALA first asserted its claim that
its status at Hudson carried over to Regency. I find no
merit in the contention, since ALA continued to put its
claim forward well within 6 months of its March 1974
charge.5
Section 8(a)(2) and (3): When Steelworkers filed its
petition on August 23, 1973, to represent a production and
maintenance unit, including lithographers, at Regency, the
plant had been in operation little more than a month. No
lithographic workers had yet been employed, nor were
there any on September 10, when the Regional Director
approved the Stipulation for Certification upon Consent
Election, on September 21, when the election was held, or
on October 1, when the certification was issued. No
lithographic workers were employed at Regency before
December.
The General Counsel contends that the Company
granted illegal support to Steelworkers when it agreed to
extend their nationwide contract to the Regency plant,
following the certification to Steelworkers on October 1.
The basis of the contention is that the ALA claim to be
recognized at Regency raised a question concerning
representation which the Company ignored, and that it
deliberately, concealed the ALA claim from the Regional
Director when he approved the Stipulation for Certifica-
tion. What is to be regarded as a "real" question
concerning representation, or when a rival union's claim is
not clearly unsupportable and lacking in substances must,
of course, turn on the specific facts of each case. Here, it is
true, the Company did not inform the Regional Office that
n U.S Lmgerje Corporation, 170 NLRB 750 (1968), and Montgomery Pierce Governor Company, Inc., 164 NLRB 97, 101 (1967), and Cooper
Ward & Co., 137 NLRB 418 (1962). Thermometer Company, 160 NLRB 1902, 1915 (1966).
5 Fraser & Johnston Company, 189 NLRB 142, 151, In. 51 (1970); The 6 Playskool, Inc., 195 NLRB 560 (1972). 1
AMERICAN CAN COMPANY
ALA was asserting a claim that it should be recognized as
the representative for all lithographic employees who
would eventually be hired at Regency, but company
official, Ries, did tell Board agent Schectman, when she
asked him if he knew of any ALA interest at Regency, that
she could call company headquarters where Cooper, the
company official who had signed the stipulation was
located. Schectman apparently was satisfied that ALA had
no supportable claim to participate in the election because
there were no lithographic workers then employed at
Regency.
The Company had rejected the ALA claim on the
ground that it was entitled to hire at Regency without
regard to the bargaining rights of any of the unions at
Hudson. It seems to me that this was a legal position which
the Company maintained at its peril - if in fact, ALA had
even a colorable claim to represent lithographic employees
at Regency, based on its status at Hudson, then the
Company would have violated Section 8(a)(2) by failing to
inform the Regional Office of such claim, once the petition
was filed . But since I have previously found that the
Company had no obligation to transfer ALA's bargaining
status from Hudson to Regency or to recognize it at
Regency, it follows that the Company's position was in fact
correct. Moreover, it is clear that the Regional Office had
been alerted to a possible representation claim by ALA at
Regency, when it filed its opposition to holding the election
in its letter of September 20, and in its charge of an 8(a)(2)
violation, filed after the election but before certification of
the Steelworkers. If there were negligence on the part of the
Regional Office, although I make no such finding, there is
no more reason to penalize the Steelworkers and the
Company, who acted pursuant to the certification, than the
ALA.
I therefore hold that the Company's position that ALA
was not entitled to assert any bargaining rights at Regency,
before or after the election, was in fact correct, and that the
Company has not given Steelworkers illegal support by
entering into a contract with it, following the certification,
nor violated Section 8(a)(3) by advising the ALA members
from Hudson, to whom it offered jobs at Regency, that
they would be subject to the union-security provisions of
the Steelworkers contract if they accepted its offer. I shall
115
therefore recommend dismissal of the Section 8(a)(2) and
(3) allegations of the complaint.
On March 26, 1974, the Regional Director issued to the
Company and Steelworkers a Notice to Show Cause why
the certification to Steelworkers in Case 22-RC-5853
should not be amended specifically to exclude all litho-
graphic production employees. The parties objected to
amending the certification, but the Regional Director, on
April 12, 1974, believing that substantial and material
issues had been raised which could best be determined by
the taking of record testimony, consolidated that matter
with the instant unfair labor practice case.
I have considered the question whether the certification
should be amended and have decided that it should not be.
I have found that the Company has not committed any
unfair labor practices, particularly with reference to
granting Steelworkers unlawful assistance in seeking and
gaining certification . I also note that Regency employed a
representative complement of employees, as measured by
its satisfying the General Extrusion case standards when
Steelworkers was certified for a production and mainte-
nance unit. Although lithographic production employees
were separately represented at Hudson, and could properly
have been so represented at Regency, there is no Board
policy against the inclusion of such workers in a pro-
duction and maintenance unit. I therefore find that once
lithographic employees were hired at Regency they were
properly added to the overall production and maintenance
unit as an accretion.
Pursuant to the Regional Director's Order of April 12,
1974, I hereby transfer Case 22-RC-5853 to the Board for
such action as it sees fit to take.
CONCLUSIONS OF LAW
1. American Can Company is an employer engaged in
commerce and in activities affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local One, Amalgamated Lithographers of America,
International Typographical Union, AFL-CIO, and Unit-
ed Steelworkers of America, AFL-CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. The Respondent has not , engaged in any unfair labor
practices alleged in the complaint.
[Recommended Order omitted from publication.]