National Can Co.

National Labor Relations Board - Board Decisions

Jul 29, 1939

13 N.L.R.B. 1242 (N.L.R.B. 1939)

In the Matter of -NATIONAL CAN Co . and STEEL WORKERS ORGANIZING
COMMITTEE LODGE No. 1670
In the Matter of NATIONAL CAN COMPANY and DISTRICT No. 15,
INTERNATIONAL ASSOCIATION OF MACHINISTS
Cases Nos. R-1354 and R-1355, respectively. Decided July 29, 1939
Tin Can Manufacturing Industry-Investigation of Representatives : contro-
versy concerning representation of employees: controversy concerning appro-
priate unit ; rival organizations ; contract for members only, no bar to-Unit
Appropriate for Collective Bargaining : separate unit of pattern workers; sepa-
rate unit of electricians ; separate unit of machinists if election shows that
these employees desire it ; unit composed of all other employees , excluding
lithographers , chauffeurs, supervisors, watchmen , and clerical and salaried
employees-Representatives: proof of choice : stipulation as to membership-
Certiftcation of Representatives : upon proof of majority representation in pat-
tern maker and electrician units-Election Ordered : among machinists ; certifi-
cation in industrial unit, based on stipulation as to majority, to issue after
exclusion or inclusion of machinists is determined by election among them.
Mr. Will Maslow and Mrs. Hilda Shea, for the Board.
Mr. H. L. Bwschman, of Maspeth, Long Island, N. Y., for the
Company.
Liebman, Robbins, Pressman c0 Leider, by Mr. Harold I. Cammler,
of New York City, for the S. W. O. C.
Mr. S. L. Newman, of New York City, for the I. A. M.
Mr. Harold Ware, of New York City, for the Pattern Makers.
Mr. John K. Lapham, of New York City, for the I. B. E. W.
Mr. Louis Cokin, of counsel to the Board.
DECISION
CERTIFICATIONS OF REPRESENTATIVES
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 16, 1938, and January 23, 1939, respectively, Lodge
1670 of the Steel Workers Organizing Committee," herein called the
"Incorrectly designated " Steel Workers Organizing Committee Lodge No. 1670" in the
formal papers. This was corrected by motion at the hearing.
13 N. L. R. B., No. 124.
1242
NATIONAL CAN COMPANY 1243
S. W. O. C., and District No. 15, International Association of Ma-
chinists, herein called the I. A. M., filed with the Regional Director
for the Second Region (New York City) separate petitions alleging
that questions affecting commerce had arisen concerning the repre-
sentation of employees of National Can Corporation,2 Maspeth, Long
Island, 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. On February 2, 1939, 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 investiga-
tion and authorized the Regional Director to conduct it and to pro-
vide for an appropriate hearing upon due notice, and, acting pursu-
ant to Article III, Section 10 (c) (2), of said Rules and Regulations,
ordered that the two cases be consolidated for all purposes.
On February 3, 1939, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
the S. W. O. C., and upon the I. 4. M. On February 7 and 18, and
March 23, 1939, the Regional Director issued notices of postponement
of hearing, copies of which were duly served upon the same parties.
On April 3 and 7, 1939, respectively, the Regional Director issued a
notice of continuance of hearing and a notice of postponement of
hearing, copies of which were also served upon the afore-mentioned
parties. Pursuant to the fourth notice of postponement of hearing,
a hearing was held on April 17, 18, and 19, 1939, at New York City,
before A. Bruce Hunt,, the Trial Examiner duly designated by the
Board. Shortly after the commencement of the hearing, the Re-
gional Director served a notice of hearing upon the International
Brotherhood of Electrical Workers, Local No. 3, herein called the
I. B. E. W. and upon the Pattern Makers Association of New York
and Vicinity, herein called the Pattern Makers, organizations claim-
ing to represent employees directly affected by the investigation.
Counsel for the Board moved that the I. B. E. W. and the Pattern
Makers be allowed to participate in the proceedings. The motion
was granted.
The Board and the S. W. O. C. were represented by counsel, and
the Company, the I. A. M., the I. B. E. W., and the Pattern Makers by
their representatives; all participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
,introduce evidence bearing on the issues was afforded all parties. At
2 Incorrectly designated "National Can Co" and "National Can Company" in the formal
papers. This was corrected by motion at the hearing.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the close of the hearing, counsel for the S. W. O. C. moved to dismiss
the petitions of the Pattern Makers and the I. B. E. W. for interven-
tion on the ground that their motions to intervene were not in writ-
ing as required by the Rules and Regulations of the Board. The mo-
tion was denied on the ground that the Pattern Makers and the I. B.
E. W. were not intervenors but duly served parties claiming to repre-
sent employees directly affected by the investigation. During the
course of the hearing, the Trial Examiner made several rulings on
other motions and on objections to the admission of evidence. The
Board has reviewed all the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. The representative of the I. B. E. W. failed to enter an ap-
pearance on the second day of the hearing. The Trial Examiner
notified him by telegram of the continuance of the hearing for a third
day and when he failed to enter an appearance after this notice,
allowed the I. B. E. W. 14 days in which to file a motion with the
Board to reopen the proceedings should it desire to introduce any evi-
dence or examine any of the witnesses who testified during the second
day of the hearing. No witnesses testified the third day of the hear-
ing. No motion to reopen the proceedings was filed by the I. B. E. W.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COD¢PANY
The Company owns and operates a plant at Maspeth, Long Island,
New York, where it is engaged in the business of manufacturing and
processing tin cans, steel pails, and related products. It also main-
tains plants at Chicago, Illinois; Baltimore, Maryland; Boston, Mas-
sachusetts; Hamilton, Ohio; and Detroit, Michigan. This proceed-
ing is concerned only with the plant at Maspeth.
The principal raw materials used by the Company are tin plate
and solder. In the 6-month period preceding April 17, 1939, the Mas-
peth plant expended approximately $750,000 for the purchase of raw
materials which were shipped to it from points outside the State of
New York. Such purchases amounted to approximately 90 per cent
of the total of raw materials purchased by the Company during this
period. During this same period, approximately 20 per cent of the
products manufactured at the Maspeth plant were shipped to points
outside the State of New York. The Company employs approxi-
mately 775 employees at its Maspeth plant. The Company admits
the jurisdiction of the Board.
NATIONAL CAN COMPANY
H. THE ORGANIZATIONS INVOLVED
1245
Lodge 1670 of the Steel Workers Organizing Committee is a labor
organization affiliated with the Congress of Industrial Organizations.
It admits to membership all the production employees of the Com-
pany excluding supervisors, lithographers, chauffeurs, watchmen, and
clerical and salaried employees.
District No. 15, International Association of Machinists is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to its membership the machinists, their apprentices, and their
helpers employed by the company, excluding supervisors.
International Brotherhood of Electrical Workers, Local No. 3, is a
labor organization affiliated with the American Federation of Labor.
It admits to membership all the electrical workers of the Company.
Pattern Makers Association of New York and Vicinity, affiliated
with the Pattern Makers League of North America, is a labor organ-
ization affiliated with the American Federation of Labor. It admits
to membership the pattern makers and pattern makers' apprentices
employed by the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On April 28, 1937, the S. W. O. C. entered into a contract with the
Company on behalf of its members in the Company's Maspeth plant.
This agreement expired on February 28, 1938, on which date a new
contract was entered into between the parties for a term of 1 year
with an automatic renewal clause terminable upon 30 days' notice of
either party thereto. This contract also provided that the S. W. O. C.
was the representative of its members only. Under the terms of the
afore-mentioned contracts, all the employees in the plant, including
machinists, pattern makers, and electricians, received blanket wage
increases.
In March 1938 the I. A. M., claiming to represent a majority of
the machinists, requested the Company to bargain with it as exclusive
representative of all the machinists in the Maspeth plant. The Com-
pany denied this request stating that they were negotiating with the
S. W. O. C. In November 1938, the I. A. M. again requested a con-
ference for the purposes of collective bargaining and submitted a
proposed contract. The Company denied this request stating it was
in no position to negotiate due to the existence of the February 28,
1938, contract with the S. W. O. C. In view of the filing of the peti-
tions herein, and in view of the fact that the contract recognizes the
S. W. O. C. as representative of its members only, the Board is not
precluded by the contract from investigating or certifying bargain-
ing representatives for the purposes of collective bargaining.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the first day of the hearing all the parties except the Pattern
Makers and the I. B. E. W. stipulated that no question concerning rep-
resentation existed except as to the machinists. Later in the hearing,
the S. W. O. C. sought certification as the exclusive representative of,
the employees in the unit claimed by it to be appropriate. Apparently,
the S. W. O. C. abandoned its earlier stipulation that no question
existed. Due to this fact and the fact that the Pattern Makers and
the I. B. E. W. came into the proceedings subsequent to the stipula-
tion, we find that a question has arisen as to the representation of em-
ployees in all the units sought.
We find that a question has arisen concerning representation of em-
ployees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question of 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 UNITS
The S. W. O. C. contends that all the Company's employees at Mas-
peth, excluding lithographers, chauffeurs, supervisors, watchmen, and
clerical and salaried employees, constitute a unit appropriate for the
purpose of collective bargaining. As hereinafter indicated, the
I. A. M., the Pattern Makers, and the I. B. E. W. oppose the inclusion
of certain classes of employees within such a company-wide unit and
seek the establishment of separate units. The Company takes a neu-
tral position as to what should constitute the appropriate unit or
units.
Pattern Makers. The Pattern Makers contends that the two pat-
tern makers in the Company's Maspeth plant should be designated as
a separate bargaining unit. The pattern makers are a well-estab-
lished craft and the Pattern Makers is strictly a craft organization.
On the other hand, evidence was introduced to show the appropri-
ateness of an industrial unit including the pattern makers. As stated
hereinbefore, the previous contracts between the S. W. O. C. and
the Company provided for blanket increases covering all employees,
including the pattern makers.
Under the circumstances we are of the opinion that the pattern
makers might properly constitute a separate bargaining unit, or
NATIONAL CAN COMPANY 1247
they might be merged into the industrial unit claimed by the
S. W. O. C. We believe that the determining factor should be the
desire of the employees involved.3 Since all the parties stipulated
that the two pattern makers in the plant belong to the Pattern
Makers, we shall hold that they constitute an appropriate unit.
We find that the pattern makers in the Company's Maspeth plant
constitute a unit appropriate for the purposes of collective bargain-
ing 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 will otherwise effectuate the policies of the Act.
Electricians. The I. B. E. W. contends that the two electricians
in the Company's Maspeth plant should be designated as a separate
bargaining unit. Electricians are a well-established craft. At the
hearing, considerable evidence was introduced to show the appropri-
ateness of an industrial unit including these workers. The Board
could, therefore, properly find that the unit claimed by the S. W.
O. C. is appropriate.
• Since the electricians could function either as a separate unit or
as part of a single industrial unit, we hold, as in the case of the
pattern makers, that the determining factor is the desire of the
employees themselves.4 All the parties stipulated that the two
electricians in the plant belonged to the I. B. E. W. It is, therefore,
unnecessary to await the results of an election to determine their
wishes.
We find that the electricians in the Company's Maspeth plant
constitute a unit appropriate for the purposes of collective bargain-
ing and that said unit will insure to employees of the Company the
full benefit of their right to self-organization and to collective bar-
gaining and otherwise effectuate the policies of the Act.
Machinists. The I. A. M. urges that all the machinists in the
Company's plant at Maspeth constitute a separate appropriate unit
for collective bargaining. The machinists are highly skilled workers,
and the machine shop is physically separated from the rest of the
plant.
On the other hand, considerable evidence was introduced to show
the appropriateness of an industrial unit including the machinists.
The Board could, therefore, properly find that the unit claimed by
the S. W. O. C. is appropriate.
Since the machinists could function either as a separate unit or
as part of a single industrial unit, we will follow our ruling as to
the pattern makers and electricians and hold that the determining
3 Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. 3;
International Association of Machinists, District No. 54 , Federal Labor Union 18788, and
United Automobile Workers of America, 3 N. L. R B . 294, and subsequent cases
A See footnote 3 supra.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factor is the desire of the employees themselves.5 Although the
I. A. M. introduced documentary evidence of membership, it was
not sufficient for the purpose of certification, as stated in Section VI,
below. An election will be held among the machinists to determine
whether they wish to be represented by the I. A. M. or the S. W. O. C.
On the results of this election will depend the appropriate unit. If
these employees choose the I. A. M., they will constitute a separate
and distinct appropriate unit. If they choose the S. W. O. C., they
will be merged into the Company-wide industrial unit.
We find that all employees of the Company at Maspeth, Long
Island, New York, excluding lithographers, chauffeurs, supervisors,
watchmen, clerical and salaried employees, pattern makers, and elec-
tricians, may properly constitute a unit appropriate for the pur-
poses of collective bargaining which would insure to employees of
the Company the full benefit of their right to self-organization and
to collective bargaining and otherwise effectuate the policies of the
Act. As indicated above, the machinists may also properly be in-
cluded within such unit. We shall therefore make no final deter-
mination of the appropriate unit pending the election we shall direct
to be conducted among the machinists.
VI. THE DETERMINATION OF REPRESENTATIVES
During the hearing, as noted above, all the parties stipulated
that the Pattern Makers has as members all the pattern makers and
the I. B. E. W. has as members all the electicians in the Company's
Maspeth plant.
We, therefore, find that the Pattern Makers has been designated
and selected by a majority of the pattern makers as their representa-
tive for the purposes of collective bargaining. It is, therefore, the
exclusive representative of all employees in such unit for the pur-
poses of collective bargaining, and we will so certify.
We also find that the I. B. E. W. has been designated and selected
by a majority of the electricians as their representative for the pur-
poses of collective bargaining. It is, therefore, the exclusive rep-
resentative of all employees in such unit for the purposes of collective
bargaining, and we will so certify.
There was introduced in evidence at the hearing the Company's
pay roll for the period ending March 14, 1939, bearing the names
of 95 machinists. In support of its claim to majority representation
of the machinists, the I. A. M. introduced in evidence a petition
signed on March 22, 1939, designating the I. A. M. as the collective
bargaining representative of the signers. A comparison of the
names on the petition with the afore-mentioned pay roll tends to
'Bee footnote 8 supra.
NATIONAL, CAN COMPANY 1249
show that the I. A. M. represents 54 of the machinists. All the names
on the petition were signed and witnessed in the presence of an
organizer for the I. A. M. The S. W. 0. C. alleged that several of
the signatures on the petition were in the same handwriting and
objected to the use of the petition as a basis for certifying repre-
sentatives. The S. W. 0. C. claimed that it had members among
the machinists and stated that it desired to be on the ballot in the
event an election was held among the machinists. We find that an
election by secret ballot is necessary to resolve the question concern-
ing representation of the machinists."
At the hearing all the parties stipulated that the S. W. 0. C.
represented a majority of the employees in the unit claimed by it
to be appropriate. Accordingly, no election is necessary among
the employees in the industrial unit, and we will certify the
S. W. 0. C. as the exclusive representative of all the employees
in the industrial unit as soon as the inclusion or exclusion of the.
machinists is determined by the election among them.7
The I. A. M. requests that in the event an election is directed
among the machinists, the pay roll nearest the date of the filing
of its petition be used to determine eligibility to participate therein
The S. W. 0. C. stated that any pay roll would be agreeable to it.
In view of the length of time that has elapsed since the filing of
the petition herein by the I. A. M., we will direct that the employees
eligible to vote in the election will be those employees who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election, including employees who did not work
during such pay-roll period because they were ill or on vacation
and employees who were then or have since been laid off only
temporarily, but excluding those who have since quit or been dis-
charged for cause.
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 rep-
resentation of employees of National Can Corporation, Maspeth,
6 Matter o f The Cudahy Packing Company and United Packinghouse Workers of America,
Local No 21, of The Packinghouse Workers Organizing Committee , affiliated with the Con-
gress of Industrial Organizations , 13 N. L. R. B. 526.
7 The stipulation only refers to a majority in the unit sought by the S . W. 0 C. How-
ever, since the S W. O. C. is agreed to have a majority of a unit inclusive of the craft
groups, and since those groups are being excluded only if the craft organizations repre-
sent a majority of the craft employees, it necessarily follows that the S. W O. C.
represents a majority in the remainder of the industrial unit should the crafts be excluded.
As noted above , we have already excluded the pattern makers and electricians ; the inclu-
sion or exclusion of the machinists depends upon the results of the election to be held
among them.
J250 DECISIONS OF NATIONAL L4BOR RELATIONS BOARD
Long Island, New York, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. All the pattern makers employed by the Company at its Maspeth
plant constitute a unit appropriate for the purposes of collective
-bargaining, within the meaning of Section 9 (b) of the National
Labor Relations Act.
3. All the electricians employed by the company at its Maspeth
plant constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the National
Labor Relations Act.
, 4. Pattern Makers Association of New York and Vicinity is the
exclusive representative of all the employees in the unit designated
,in paragraph 2 above, for the purposes of collective bargaining,
.within' the meaning of Section 9 (a) of the National Labor Rela-
tions Act.
5. International Brotherhood of Electrical Workers, Local No. 3,
is the exclusive representative of all the employees in the unit
designated in paragraph 3 above, for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the National
Labor Relations Act.
CERTIFICATIONS OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
'Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8
and 9, of National Labor Relations Board Rules and Regulations-
Series 2,
IT IS HEREBY CERTIFIED that Pattern Makers Association of New
York and' Vicinity has been designated and selected by a majority
of the pattern makers of National Can Corporation, Maspeth, Long
Island, New York, as their representative for the purposes of col-
lective bargaining: and that, pursuant to the provisions of Section
9 (a) of the Act, Pattern Makers Association of New York and
Vicinity is the exclusive representative of all such employees for
the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment;
IT IS HEREBY CERTIFIED that International Brotherhood of Electrical
Workers, Local No. 3, has been designated and selected by a majority
of the electricians of National Can Corporation, Maspeth, Long
Island, New York, as their representative for the purposes of col-
lective bargaining and that, pursuant to the provisions of Section
9 (a) of the Act, International Brotherhood of Electrical Workers,
Local No. 3, is the exclusive representative of all such employees for
the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
NATIONAL CAN COMPANY 1251
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
Relations Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, it is hereby
DmEcTED that, as part of the investigation directed by the Board
to ascertain representatives for the purposes of collective bargain-
ing with National Can Corporation, Maspeth, Long Island, New
York, an election by secret ballot shall be conducted within fifteen
(15) days from the date of this Direction, 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 the machinists of the company at its Maspeth
plant, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did
not work during such pay-roll period because they were ill or on
vacation and employees who were then or have since been laid off
only temporarily, but excluding employees who have since quit or
been discharged for cause, to determine whether they desire to be
represented by District No. 15, International Association of Machin-
ists, affiliated with the American Federation of Labor, or by Lodge
1670 of the Steel Workers Organizing Committee, affiliated with the
Congress of Industrial Organizations, for the purposes of collective
bargaining, or by neither.
MR. WILLIAM M. LEIsERSON, concurring :
While I do not agree with the reasoning of the foregoing opinion,
I concur in the result reached in this case.
MR. EDWIN S . Siurrn , dissenting :
I see no warrant in granting the craft groups the privilege of split-
ting themselves off from the industrial unit in this case. There is a
complete absence of any bargaining history between the crafts and
the Company, and there have been plant-wide contracts between the
Company and the S. W. O. C. since 1937. It was stipulated at the
hearing that the S. W. O. C. represents a majority of the employees
in the plant-wide unit. The craft groups, along with the other em-
ployees, have benefited from blanket wage increases secured by the
industrial organization during this period.- I think the reasoning in
my dissents in the Allis-Clutlnners s and subsequent cases is here ap-
plicable.
sMatter of Allis'-Chalmers Manufacturing Company and International Union, United
Automobile Workers of America, Local 248, 4 N. L. R. B. 159, 175.