Continental Can Co., Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1953

107 N.L.R.B. 8 (N.L.R.B. 1953)

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