Cordiano Can Co., Inc.

National Labor Relations Board - Board Decisions

Feb 3, 1942

38 N.L.R.B. 905 (N.L.R.B. 1942)

In the Matter Of CORDIANO CAN Co., INC. and UNITED WIRE &
METAL WORKERS UNION, LOCAL 36 or THE UNITED PAPER NOVELTY
& Toy WORKERS INTERNATIONAL UNION, C. I. O.
Case No. B-3413.-Decided February 3, 1912
Jurisdiction : tin and fibre can manufacturing industry.
Investigation and Certification of Representatives : existence of, question: re-
fusal to accord union recognition ; conflicting claims of rival representatives :
'contract, not asserted as a bar, no bar to; in view of this contract by which
Company agreed to hire members of contracting union or persons who be-
came members within two days after their employment, eligibility determined
on basis of pay roll.requested by petitioner which precedes the execution of
such contract; election necessary.
Unit Appropriate for Collective Bargaining : all employees of the. Company,
exluding sales, clerical, and supervisory employees, and chauffeurs ; agree-
ment as to ; production employee owning only $500 worth of stock in the
Company, who is paid by the hour and does not occupy a supervisory posi-
tion, included notwithstanding the contention of one of the unions that he
,should be excluded on the ground that he has an interest in the Company.
Mr. Richard J. Hickey, Jr., for the Board.
Mr. Abraham Hirschman, of Brooklyn, N. Y., for the Company.
Mr. Henry Brickman, of New York City; for the C. I. O.
Mr. Jacques Buitenkanit, of New York City 'for the A. F. of L.
Mr. Herman J. DeKoven, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT - OF THE CASE
On September 3 and October 24, 1941, respectively, United Wire
& Metal Workers Union, Local 36 of the United 'Paper Novelty &
Toy Workers International Union, C. I. 0., herein called the C. I.'O.,
'filed with the Regional Director for the Second Region (New York
City) a petition and an amended petition' alleging that a question
affecting commerce had arisen: concerning the representation of em-
ployees of Cordiano -Can Co., Inc., Brooklyn, New York, herein
called' the Company, and requesting an investigation and certifica-
38 N. L. R. B., No. 162. '
905
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On No-
vember 29, 1941, 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 Regu-
lations-Series 2, as amended, ordered an investigation and author-
ized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
Pursuant to notice, a hearing was held on December 18, 1941, at
New York City, before Josef L. Hektoen, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the Company,
the C. I. 0., and Federal Labor Union, Local 20734, affiliated with
the American Federation of Labor, herein called the A. F. of L.,
a labor organization claiming to represent employees directly affected
by the investigation, were represented by counsel or other official
representatives and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses,' and to intro-
duce evidence bearing on the issues was afforded all parties.
During the course of the hearing the A. F. of L. moved
to dismiss the petition, as amended, on the ground that
the C. I. O. does not represent a substantial number of employees.
The Trial Examiner reserved ruling thereon. This motion is hereby
denied. During the course of the hearing the Trial Examiner made
several rulings on motions and on objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FAOr
1. THE BUSINESS OF THE COMPANY
Cordiano Can Co., Inc., is a New York corporation, with its
factory and principal place of business in Brooklyn, New York.
It is engaged in the manufacture, sale, and distribution of tin, fibre
cans, and related products.
During the period from April 1 to September 30, 1941, raw ma-
terials valued at $200,000, constituting approximately 80 percent of
the total amount purchased by the Company, were shipped to its
plant from points outside the State of New York. During the same
period, manufactured products valued at $50,000, constituting ap-
proximately 10 percent of the total amount manufactured by the
Company, were shipped by it to States other than New York.
The Company admits that it is engaged in commerce within the
meaning of the Act.
CORDIANO CAN CO., INC.
H. THE ORGANIZATIONS INVOLVED
907
United Wire & Metal Workers Union, Local 36 of the United
Paper Novelty & Toy Workers International Union, is a labor or-
ganization affiliated with the Congress of Industrial Organizations.
It admits to membership employees of the Company.
Federal Labor Union, Local 20734, is a labor organization affiliated
with the American Federation of Labor. It admits to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The C. I. O. began to organize employees of the Company during
the latter part of July 1941, and the A. F. of L. commenced such
activities during the early part of August 1941. On or about August
13, 1941, the A. F. of L. commenced negotiations with the Company
for a contract. On August 26, 1941, the C. I. O. advised the Com-
pany that it represented a majority of the employees and that it
wished to negotiate for a contract. On August 27, 1941,1 the Com-
pany and the A. F. of L. entered into a contract, effective until De-
cember 31, 1943, in which the Company recognized the A. F. of L.
as the exclusive bargaining agent of all employees other than sales-
men and office and supervisory employees, and agreed to employ
only members of the A. F. of L. or persons who became members
thereof within 2 days after their employment. A representative of
the A. F. of L. testified that when the contract was signed, the
A. F. of L. claimed to represent a majority of the employees but
had only "about 45 signed up." A representative of the Company
testified that the membership application cards which were presented
to him by the A. F. of L. when the contract was signed "by weight
seemed like a majority" but that he did not know "whether there was
a majority." The parties stipulated that only 26 of the membership
application cards submitted by the A. F. of L. to counsel for the
Board are dated August 27, 1941, or prior thereto. The record dis-
closes that the Company had approximately 135 employees on August
15, 1941, and approximately 139 employees on December 13, 1941,
and that all but approximately 12 to 15 of the employees of the
Company are in the unit covered by the A. F. of L. contract and
in the unit hereinafter found to be appropriate.
None of the parties asserted that the A. F. of L. contract is a bar
to a present determination of representatives. It does not appear
that when this contract was entered into, the A. F. of L. had been
designated as bargaining representative by a majority of the em-
' The contract itself gives August 25, 1941, as the date on which it was entered into ;
however, the parties agreed that it was actually signed on August 27, 1941.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the unit covered by the contract or in the unit hereinafter
found to be appropriate. Further, the Company had knowledge of
the C. I. O.'s claim of representation prior to the execution of such
contract. Under these circumstances, we find that such contract is
not a bar to a present determination of representatives.2
A statement of the Regional Director introduced in evidence, and
a report at the hearing by counsel for the Board,'disclose that the
C. I. O. and the A. F. of L. each represents a substantial number of
employees in the unit hereinafter found to be appropriate.3
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESE NTATION,
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection' with the operations of the Company'
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce. -
V., THE APPROPRIATE UNIT
Except for the status of one person discussed below, the parties
agree that the appropriate unit should, consist of all employees of
the Company, excluding sales, clerical ,4' and 'supervisory employees,
and chauffeurs. - -
The C. I. O. wishes to exclude J. Cordiano from the appropriate
unit on the ground that he has an interest-in the! Company. - The
2 See Matter of Buffalo Pipe d Foundry Corporation and The Independent Sanitary Iron
Moulders Union , 26 N L. R B. 848'; Matter of Southern Chemical Cotton Company
and Textile Workers Organizing Committee, 3 N. L. R. B 869 ; Matter of National Dis-
tillers Products Corporation and United Distillery Workers Local Industrial Union No. 758,
C I. O., 28 N . L. R B 1260 -
3 The Regional Director reported that the C . I O. presented 27 membership application
cards , all of which bore apparently genuine signatures ; that 24 of such cards bore the
signatures of persons appearing on the Company 's pay roll of September 17, on which there
were 135 employees ; and that 24 of the 27 cards were dated August 6 or 7, 1941, and 3
were undated At the hearing the A . F. of L. produced 121 membership application cards,
and all the parties ' stipulated to the report by counsel for the Board that 115 of such
cards bore the signatures of persons appearing on the Company 's pay roll of September IT,
and that of the 121 cards, 26 were variously dated between August 21 and August 27,
1941, 14 were undated, and the remainder were dated after August 27, 1941.
' The oral stipulation on the appropriate unit which was finally entered into by the
parties at the hearing makes no express mention of clerical employees . However, it
appears that such omission was inadvertent and that the parties intend that such.em-
ployees be excluded from the unit. Clerical employees were expressly excluded from the
unit described by counsel for the Board at the hearing as the one to which he understood
the parties would stipulate , and in the discussion on the proposed stipulation which fol-
lowed, no question was raised, regarding the exclusion of such employees Also, clerical
employees are in the amended petition expressly excluded by the C. I. O. from the unit
claimed by it to be appiopiiate
CORDIANO CAN CO., INC:' 9'09
A. F. of 'L: and the Company apparently do not desire to have him
excluded. He holds only' $500 worth of the Company's stock. ' He
is listed on the Company's pay roll as a "Production-imprint" em-
ployee, is paid by the,hour, and does not occupy a supervisory posi-
tion. Under these circumstances, we shall include him in the
appropriate unit.
We find that all employees of the Company, excluding sales, cler-
ical,' and supervisory 5 employees, and chauffeurs, constitute a unit
,appropriate for the purposes of collective bargaining, and that said
unit will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and otherwise
will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning represen-
tation can best be resolved by, and we shall accordingly direct, an
election by secret ballot.
The C. I. 0. urges that in view of the existence of the A. F. of L.
contract which was entered into on August 27, 1941, the pay roll of
of August 15, 1941, which is one of the pay rolls submitted by the
Company to the Regional Director, should be used for the purpose
of determining eligibility to vote. The A. F. of L. requests a more
recent pay roll, such as the one immediately preceding the date of
the Direction of Election. The Company suggests the use of the
pay roll of December 13, 1941, which is one of the pay rolls sub-
mitted by it to the Regional Director. In view of the existence of
the aforementioned A. F. of L. contract, which we have held not to
be a bar to this proceeding, we believe that eligibility to vote should
be determined on the basis of the pay roll of August 15, 1941.8
Accordingly, we shall direct that the: employees eligible to vote in
the election shall be those, in the appropriate unit who were em-
ployed during the pay-roll period ending August 15, 1941, subject
to the limitations and additions set forth in the Direction.7
51n ,accordance with the agreement of the parties, officers of the Company and "non-
working foremen" are included within the term "supervisory employees "
"Cf. Matter of W. C. Armbruster, doing business as R H Armbruster Manufaeturinq
Company and Congress of Industrial Organizations , 30 N. L R B 457, and Matter of
General Dry Batteries, Inc. and Battery Workers' Federal Labor Union, No. 22516, A F. of L.,
29N L . R.B 1017 '
"The Company and the A. F. of L. urged that those employees who are in the army
should not be permitted to vote since they have no interest in the election. In accord-
ance with our declared policy, we shall include, among those eligible to vote, employees
who did not work during the pay-roll period selected as determinative of eligibility because
they were in the active military service or training of the United States See Matter of
The Cudahy Packing Company and Local 55, United Packinghouse Workers of America, of
Packinghouse Workers Organizing Committee, C . 1 0 , 29 N. L R B 830, and Matter of
Wilson and Co, Inc., and Packinghouse Workers Organizing Committee , Local No. 20
affiliated with the C. I. 0 , 37 N. L. R B. 944
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Cordiano Can Co., Inc., Brooklyn, New
York, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All employees of the Company, excluding sales , clerical, and
supervisory employees, and chauffeurs, constitute a unit appropriate
for the purposes of collective bargaining, within the meaning of Sec-
tion 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to, the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
DImcTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Cordiano Can Co., Inc., Brooklyn, New York, an election by
secret ballot shall be conducted as, early as possible, but not later
than thirty (30) days from the date of this Direction of Election,
under the direction and supervision of the Regional Director for the
Second Region, acting in this matter as agent for the National Labor
Relations Board and subject to Article III, Section 9, of said Rules
and Regulations, among all employees of the Company who were
employed during the pay-roll period ending August 15, 1941, in-
cluding employees who did not work during such pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but exclud-
ing sales, clerical, and supervisory employees, chauffeurs, and em-
ployees who have since quit or been discharged for cause, to deter-
mine whether or not they desire to be represented by United Wire
& Metal Workers Union, Local 36 of the United Paper Novelty &
Toy Workers International Union, affiliated with the Congress of
Industrial Organizations, or by Federal Labor Union, Local 20734,
affiliated with the American Federation of Labor, for the purposes
of collective bargaining, or by neither.