American Can Co.

National Labor Relations Board - Board Decisions

Jul 29, 1939

13 N.L.R.B. 1252 (N.L.R.B. 1939)

In the Matter of AMERICAN CAN Co. and ENGINEERS LOCAL No. 30
FIREMEN & OILERS LOCAL No. 56
In the Matter of AMERICAN CAN CO. and LOCAL UNION No. 3,
I. B. E. W.
Cases Nos. R-1177 and R-1178, respectively. Decided July 09, 1939
Tin, Fibre, and other Containers Manufacturing Industry-Iwvestigation of
Representatives : petitions for dismissed where no question concerning the repre-
sentation of employees in an appropriate unit has arisen.
Mr. Millard L. Midonick, for the Board.
Simpson, Thatcher cfi Bartlett, by Mr. Morgan J. Callahan, of New
York City, for the Company.
Liebman, Robbins, Pressman & Leider, by Mr. Harold I. Canrumer,
of New York City, for the S. W. O. C.
Mr. Peter McKillop, of New York City, for the Firemen & Oilers.
Mr. John J. Sullivan, of New York City, for the I. B. E. W.
Mr. Joseph Munte f Bring, of New York City, for the Engineers.
Mr. S. G. Lippman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On September 22, 1938, Operating Engineers Local No. 30, herein
called the Engineers, and Firemen & Oilers Local No. 56, herein
called the Firemen & Oilers, both affiliated with the American Fed-
eration of Labor, filed with the Regional Director for the Second
Region (New York City) a joint petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of American Can Company, Brooklyn, New York, herein
called the Company, and requesting an investigation and certification
of representatives pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Thereafter Inter-
national Brotherhood of Electrical Workers Local Union No. 3,
13 N. L. IL B., No. 126.
1252
AMERICAN CAN COMPANY 1253
affiliated with the American Federation of Labor, herein called the
I. B. E. W., also filed a petition with the same Regional Director
alleging that a question affecting commerce had arisen concerning
the representation of employees of the Company. On November 7,
1938, the National Labor Relations Board, herein called the Board,
acting pursuant to Section 9 (c) of the Act, and Article III, Section 3,
of National Labor Relations Board Rules and Regulations-Series 1,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
and further ordered, in accordance with Article III, Section 10 (c)
(2), of the above-mentioned Rules and Regulations, that the joint
petitions filed by the Engineers and Firemen & Oilers and the peti-
tion filed by the I. B. E. W. should be consolidated for the purpose
of hearing.
On December 30, 1938, the Regional Director issued a notice of
hearing, copies of which were duly served on the Company, the
Engineers, the Firemen & Oilers, the I. B. E. W., and Steel Workers
Organizing Committee, Lodge No. 2067, affiliated with the Congress
of Industrial Organizations, herein called the S. W. O. C., a labor
organization claiming to represent employees directly affected by
the investigation.
Pursuant to the notice, a hearing was held on January 9, 1939, at
Brooklyn, New York, before Peter F. Ward, the Trial Examiner
duly designated by the Board. At the opening of the hearing the
S. W. O. C. filed a petition to intervene which the Trial Examiner
granted. The Board, the Company, and the S. W. O. C. were rep-
resented by counsel, the Engineers, Firemen & Oilers, and the
I. B. E. W. were represented by their duly authorized representatives,
and all participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all parties. During the course
of the hearing the Trial Examiner made several rulings on motions
and objections to the admission of evidence. The Board has re-
viewed the rulings of the Trial Examiner and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed.
At the request of the S. W. O. C. and pursuant to notice, a hear-
ing for the purpose of oral argument was held before the Board at
Washington, D. C., on February 7, 1939. The Company, the En-
gineers, the Firemen & Oilers, the I. B. E. W., and the S. W. O. C.
were represented at the oral argument. The Company filed a brief
which we have considered.
187930-39-vol. 13-80
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE COMPANY AND ITS BUSINESS
The Company is a New Jersey corporation engaged in the manu-
facture of tin, fibre, and other containers, and in the manufacture
of machinery and parts used in the production of containers. It
owns and controls the American Can Corporation of Massachusetts
and American Can Company Southern, and has offices in 23 States
and territories of the United States, and in foreign countries. This
proceeding only concerns the Company's Brooklyn plant, which is
engaged exclusively in the manufacture of tin containers.
The principal raw materials used by the Company at its Brooklyn.
plant are tin plate, solder, and lithographing material. In 1938 all
of the Brooklyn plant's tin plate, valued at $3,988,000, as well as 5
per cent of its solder and 10 per cent of its lithographing material,
valued at about $40,000, came from outside the State of New York.
During that same year the Company, at its Brooklyn plant, manu-
factured products valued at $8,400,000, 30 per cent of which were
shipped outside the State of New York.
II. THE ORGANIZATIONS INVOLVED
Operating Engineers Local No. 30, affiliated with the American
Federation of Labor, is a labor organization which admits to its
membership engineers employed by the Company.
Firemen & Oilers Local No. 56, affiliated with the American Fed-
eration of Labor, is a labor organization which admits to its mem-
bership foremen and oilers employed by the Company.
International Brotherhood of Electrical Workers Local No. 3, affil-
iated with the American Federation of Labor, is a labor organiza-
tion which admits • to its membership electricians and helpers em-
ployed by the Company.
Steel Workers Organizing Committee, Lodge No. 2067, affiliated
with the Congress of Industrial Organizations, is a labor organiza-
tion admitting to its membership all production and maintenance
employees employed by the Company, excluding lithographers, and
supervisory and clerical employees.
III. THE APPROPRIATE UNIT
The Company normally employs at its Brooklyn plant about 891
production and maintenance employees, about 135 of whom com-
prise skilled craftsmen, such as machinists, electricians, engineers,
AMERICAN CAN COMPANY 1255
firemen, oilers, plumbers, carpenters, and tool and die makers. The
Engineers and Firemen & Oilers allege in their joint petition that
the four oilers and firemen and the four engineers employed by the
Company at its Brooklyn plant should be an appropriate bargaining
unit.' The I. B. E. W., in its petition, alleges that the 12 electricians
employed at the Brooklyn plant should likewise constitute an ap-
propriate bargaining unit. The S. W. O. C. and the Company assert
that the unit established by a contract of August 18, 1937, consisting
of the production and maintenance employees, excluding lithog-
raphers,2 truckler, executives, and supervisory and salaried clerical
employees, should not be disturbed.
In May 1937, the S. W. O. C. commenced to organize the employees
of the Brooklyn plant and on July 15, 1937, a consent election was
held under the supervision of the Regional Director for the Second
Region, participated in by the production and maintenance em-
ployees, excluding lithographers, truckmen, executives, a,nd super-
visory and salaried, clerical employees. These employees were asked
to determine whether or not they wished to be represented by the
S. W. O. C. for purposes of collective bargaining. Out of 883 em-
ployees eligible to vote, 816 ballots were validly cast, 693 of which
were cast in favor of the S. W. O. C. Thereafter, on August 18,
1937, the S. W. O. C. and the Company entered into an exclusive
bargaining contract covering all factory employees, excluding lithog-
raphers, and supervisory and salaried clerical employees. In addition
to granting a wage increase the contract set up machinery for the
handling of grievances and dealt with hours of work and other con-
ditions of employment. The contract was to continue for at least 1
year from the date of its execution and longer unless terminated or
modified, provided that either party desiring a termination or modi-
fication of the contract should give 30 days' notice in writing to the
other party of such intention.
On about August 11, 1938, the S. W. O. C. and the Company were
engaged in negotiating a renewal of the 1937 contract. On August
12 the parties reached an agreement on the material terms of the
contract. However, it was not formally consummated until August
30, 1938, for the reason that it first was necessary for the S. W. O. C.
to secure the approval of its membership. The 1938 contract main-
tained the existing wage scale and otherwise was substantially similar
to the 1937 contract. This contract by its terms was to remain in
effect until August 18, 1939, and thereafter from year to year unless
3 The Engineers and Firemen & Oilers stated at the hearing ,that they were not averse
to having separate bergaining units for the engineers, and the oilers and firemen,
respectively.
2 The lithographers are covered by a separate contract with an organization affiliated
with the American Federation of Labor.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
written notice of a contrary intention was given by either party 30
days prior to the expiration of any yearly period.
Although the Engineers and the I. B. E. W. claimed to have had
members at the Brooklyn plant for a number of years, it was not
until August 16 and 17, 1938, that they attempted to bargain on be-
half of their members. On August 16, 1938, Joseph Muntefering,
a representative of the Engineers, and Peter McKillop, a representa-
tive of the Firemen & Oilers, called on Spencer S. Haynes, superin-
tendent of the Company's Brooklyn plant, and advised him that they
represented the eight engineers, firemen, and oilers at the Brooklyn
plant and requested a bargaining conference.8 Haynes replied that
he would take the matter under consideration. On August 17, 1938,
John J. Sullivan, a representative of the I. B. E. W., called on
Haynes and advised him that the I. B. E. W. represented the elec-
tricians and helpers at the Brooklyn plant and that it desired to ne-
gotiate a closed-shop contract.' Haynes also told Sullivan that he
would take his proposal under consideration. On about September
6, Haynes notified representatives of the Engineers, Firemen & Oilers,
and the I. B. E. W. that the Company had renewed its contract with
the S . W. O. C.
The evidence is thus undisputed that since August 1937, engineers,
firemen, and electrical workers have been • represented by the
S. W. O. C. under valid contracts which fixed the bargaining unit as
covering all factory employees except lithographers, supervisors, and
salaried clerical employees. Under these contracts the S. W. O. C.
has been recognized as the exclusive representative of all the em-
ployees included in the unit in accordance with the provisions of the
National Labor Relations Act. The 4 engineers, 4 foremen and
oilers, and 12 electrical workers are therefore but small portions of
the appropriate unit consisting of 891 employees established by col-
lective bargaining through duly designated and authorized repre-
sentatives, as provided by the Act.
We are of the opinion that the Board is not authorized by the
Act to split the appropriate unit thus established by collective bar-
gaining and embodied in a valid, exclusive bargaining contract. In
any appropriate unit it is to be presumed that there will be dissatis-
fied groups from time to time. To permit such small groups to
break up an appropriate unit established and maintained by a bona
fide collective bargaining contract against the will of the majority
of the employees who are bound by the contract would make sta-
8 The Engineers and Firemen & Oilers introduced into evidence cards tending to indicate
that they represented a majority of these employees.
* Sullivan admitted that the I. B. E. W. did not at this time represent a majority of the
electricians . However , Sullivan furnished documentary proof tending to Indicate that
thereafter the I. B. E. W. represented a majority of the electricians and helpers employed
at the Brooklyn plant.
AMERICAN CAN COMPANY 1257
bility and responsibility in collective bargaining impossible. Neither
craft, plant, nor industrial units could maintain any unity in bar-
gaining if any subordinate parts of established appropriate units
were free to disregard contractual obligations and claim separate
representation with separate contracts.
If the Board certified separate representatives for the three small
groups of employees in the present case, it would not only be setting
aside a provision of a valid contract, but it would be substituting its
own preferences for the preferences of the employees and the em-
ployer as to the appropriateness of a bargaining unit that they have
voluntarily agreed in a contract is best for their purposes. We are
of the opinion that the Board must look to established custom and
practice as embodied in collective bargaining agreements for the ap-
propriate units, and not to theoretical principles that appeal to the
members of the Board as being fair.
We therefore find that the separate bargaining units sought to be
established by the Engineers, the Firemen & Oilers, and the
I. B. E. W. in the present case are not appropriate for the purposes
of collective bargaining.
IV. THE QUESTION CONCERNING REPRESENTATION
Since, as pointed out in Section III above, the bargaining units
sought to be established by the petitions are inappropriate for the
purposes of collective bargaining at the Company's Brooklyn plant,
we find that no question has been raised concerning the representa-
tion of employees in an appropriate bargaining unit.
On the basis of the above findings of fact and upon the entire rec-
ord in the case, the Board makes the following :
CONCLUSION OF LAW
No question concerning the representation of employees at the
Brooklyn plant of the American Can Company in a unit which is
appropriate for the purposes of collective bargaining has arisen
within the meaning of Section 9 (c) of the National Labor Relations
Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion of
law, the National Labor Relations Board hereby orders that the
joint petition for investigation and certification filed by Operating
Engineers Local No. 30 and Firemen & Oilers Local No. 56 and the
petition filed by the International Brotherhood of Electrical Workers
Local No. 3, be, and they hereby are, dismissed.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. EDWIN S. SMITH , concurring :
For reasons stated in my dissent in Matter of Allis-Chalmers
Manufacturing Company,6 I concur in the decision in this case.
There is no evidence in the record of any separate bargaining history
by the craft groups prior to the advent of the S. W. 0. C. and the
securing by the S. W. 0. C. of an agreement covering all factory
employees. I therefore see no justification for weakening the bar-
gaining strength of the employees as a whole by permitting the craft
groups to split off from the main bargaining unit.
I do not agree with the foregoing opinion, however, that the Board
"is not authorized by the Act" to find a different bargaining unit
from that which has previously been embodied in an exclusive bar-
gaining contract. I think the past history of collective bargaining
in a plant, particularly as evidenced by an exclusive bargaining con-
tract, is an important and persuasive factor in the determination of
the appropriate bargaining unit. But I do not believe that the
Board is precluded by anything in the Act from finding a different
unit to be appropriate; nor do I believe that, where all the circum-
stances warrant it, the Board should refrain from exercising its
power to find a different unit.
I cannot agree, also, with the foregoing opinion in so far as it
states that a certification of separate representatives for the craft
groups would make the craft groups "free to disregard contractual
obligations" and would constitute "setting aside a provision of a
valid contract." The contract with the S. W. 0. C., entered into
August 30, 1938, was to run until August 18, 1939, and thereafter from
year to year unless written notice of termination was given 30 days
before the expiration of any yearly period. This contract was exe-
cuted, however, in the face of claims by the craft unions that such
unions represented a majority in their respective craft groups and
were entitled to bargain in behalf of the craft employees. The con-
tract therefore must be considered as subject to any determination
the Board may make with respect to the rights of the craft unions .6
Furthermore, the petitions of the craft unions were filed long prior
to the date upon which the contract would become automatically re-
newed for another yearly period beginning August 18, 1939, and,
consequently, the contract would in no event bar the Board from
certifying representatives to negotiate a new contract upon the ex-
piration of the initial yearly period.7 Indeed, I do not understand
the contention to be that the contract of August 30, 1938, constitutes
e 4 N. L. R B. 159, 175
E See e. g., Matter of Colonie Fibre Company , Inc. and Co hoes Knit Goods Workers
Union No 21514, A. F. of L., 9 N L R B. 658.
T See e . g., Matter of American -West African Ltine, Inc. and National Marine Engineers'
Beneficial Association, 4 N. L. R . B. 1086.
AMERICAN CAN COMPANY 1259
a bar to the,certification of representatives in this proceeding. The
argument rather seems to be that the contract, once made and re-
gardless of whether it is still legally in force, fixes the bargaining
unit which the Board may find to be appropriate, so that any subse-
quent deviation from that unit would "disregard contractual obli-
gations" and constitute the "setting aside" of a contract provision.
I do not agree with this reasoning. The unit established by a pre-
vious contract is, as I have said, a significant factor in the deter-
mination of the appropriate unit in a subsequent proceeding under
the Act. But I cannot see wherein a finding by the Board, fixing a
different appropriate unit from that embodied in a previous contract
which admittedly is no bar to a certification of representatives, in-
volves any issue of contractual obligations or the setting aside of con-
tractual provisions.
CHAIRMAN MADDEN, dissenting :
I am unable to concur in this decision.
In every case hitherto decided by the Board, in which a union
that has historically bargained on a craft basis has shown substan-
tial membership among a group of craft employees and has re-
quested the establishment of a craft unit, the Board has, except
under unusual circumstances not here relevant," either established
the craft group as a separate unit or permitted the craft employees
to vote separately as to whether they wished to be represented by
the craft union in a separate unit or to merge with the other em-
ployees in a broader units I believe that this doctrine, which has
come to be known as the "Globe Doctrine," should be applied in the
present case.
. Under the decision of the majority in this case the craft form of
organization is, for all practical purposes, denied the right to exist
in the plant of, the Company. If the petitions of the craft unions
are denied outright, without the opportunity for the craft employees
to vote separately for their own representatives, it means that the
International Union of Operating Engineers, the International
Brotherhood of Firemen and Oilers, and the International Brother-
hood of Electrical Workers can, as a practical matter, no longer
hope to keep alive their organizations in the plant of the Company.
By reason of their restricted jurisdiction, these Unions cannot com-
pete with the S. W. O. C. or with any other union on a plant-wide
basis. The consequence is that so long as the S. W. O. C. or any
other union maintains a majority of all the employees in the plant,
8 See, e. g., Matter of The Serrick Corporation and International Union, United Auto-
mobile Workers of America, Local 1159. 8 N. L. R. B. 621.
'Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. 3,
et at., 3 N. L. R. B. 294, and subsequent cases.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the doctrine of the majority makes it legally impossible for the
craftsmen to be represented by a craft union.
The only distinction between this case and the other cases in which
the Globe Doctrine has been applied seems to be that in the present
case the industrial union has achieved an exclusive bargaining con-
tract with the Company whereas in the other cases the industrial
union had not succeeded in obtaining such a contract. This attempted
distinction seems to me unsound for the following reasons :
In the first place it rests the decision upon a fortuitous circum-
stance which should not, in my opinion, be made the decisive factor.
Whether or not an industrial union obtains an exclusive bargaining
contract in a particular plant may be due to one or more of several
accidental factors. The diligence of the Union, the availability of
organizers, the resistance of the Company are among these factors.
The outcome of this first attempt at organization and collective bar-
gaining does not prove that the employees have deliberately and
finally fixed upon a unit which should under no circumstances be
disturbed.
In the second place, the principle enunciated by the majority in
this case will result in a wide diversity of bargaining units within
a particular type of industry. Although I think the history of col-
lective bargaining for a considerable period of time throughout a
well-defined industry his an important factor in determining the ap-
propriate unit, the effect of making a brief practice of collective bar-
gaining within a particular plant the decisive factor is to create a
situation where no uniformity in bargaining relations throughout an
industry can exist. The development of the proper unit for collec-
tive bargaining is an evolutionary process, and the period between
August 1937, when the S. W. 0. C. obtained an exclusive bargaining
contract, and August 1938, when the craft unions began to seek sepa-
rate representation, is not sufficiently long to justify a conclusion
that the process was completed, even in this plant.
Thirdly, I think the proposed distinction works out unfairly in
practical effect. It means that where a craft union obtains an ex-
clusive bargaining contract the industrial union may nevertheless, by
taking away the membership of the craft union, merge the craft unit
with the industrial unit. If the industrial union fails in its first
attempts it may nevertheless continue its efforts. But once the indus-
trial union has obtained an exclusive contract on a plant-wide basis,
either by organizing before the advent of the craft union or by cap-
turing the craft union's majority in a later election, thereafter the
craft employees are irrevocably part of the industrial unit. The
effect is, therefore, to crystallize the industrial form of organization
and prevent the craft employees from ever thereafter changing their
minds.
AMERICAN CAN COMPANY 1261
Finally, I agree with the comments of Mr. Edwin S. Smith re-
lating to the argument that the Board is not "authorized by the
Act" to find a different bargaining unit from that embodied in the
contract, and the argument that the establishment of separate craft
units would make the craft groups "free to disregard contractual
obligations" and would constitute "setting aside a provision of a
valid contract."
For these reasons I would not dismiss the petition but would per-
mit the engineers, the firemen and oilers, and the electricians to vote
separately as to whether they wished to be represented, in separate
collective bargaining, by the Engineers, the Firemen and Oilers, and
the I. B. E. W., respectively, or to be merged with the industrial
unit.