Ball Brothers Co. of California, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1948

80 N.L.R.B. 1316 (N.L.R.B. 1948)

In the Matter of BALL BROTHERS COMPANY OF CALIFORNIA , INC., EM-
PLOYER and FEDERATION OF GLASS , CERAMIC AND SILICA SAND WORK-
ERS, CIO1 PETITIONER
In the Matter of BALL BROTHERS COMPANY OF CALIFORNIA , INC., EM-
PLOYER and AMERICAN FLINT GLASS WORKERS' UNION OF NORTH
AMERICA, AFL, PETITIONER
Cases Nos. 21-RC-481 and 21-RC-489, respectively .Decided
December 16, 1948
DECISION
AND
DIRECTION OF ELECTIONS
Upon petitions duly filed, a consolidated hearing was held before
a hearing officer of the National Labor Relations Board. The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. At the hearing, the Employer and Glass
Bottle Blowers Association of the United States and Canada, AFL,
herein called the Intervenor, moved to dismiss the petitions, contend-
ing that an existing contract between the Employer and the Intervenor
is a bar to this proceeding, and further that, in Case No. 21-RC-489,
the unit sought is inappropriate.' For the reasons stated infra, the
motions are hereby denied.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. Federation of Glass, Ceramic and Silica Sand Workers, CIO,
herein called the Federation; American Flint Glass Workers' Union
1 In its brief, the Intervenor also urges that the petition in Case No. 21-RC-481 be dis-
missed because the Federation did not ask the Employer for recognition before filing its
petition . In view of the fact that the parties stipulated at the hearing that the Employer
refused to recognize the Federation , we find the Intervenor's contention to be without
merit. See Matter of Advance Pattern Company, opinion on reconsideration, 80 N. L. It. B.
29.
" Chairman Herzog and Members Reynolds and Gray.
80 N. L. R. B., No. 201.
1316
BALL BROTHERS COMPANY OF CALIFORNIA, INC. 1317
of North America, AFL, herein called the Flint Glass Workers ; and
Glass Bottle Blowers Association of the United States and Canada,
AFL, are labor organizations claiming to represent employees of the
Employer.
3. Questions affecting commerce exist concerning the representation
of employees of the Employer, within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
The Employer and the Intervenor contend that an existing contract
is a bar to this proceeding. Toward the end of 1945, the Employer
began building a plant for the manufacture of metal caps for glass
jars. In July 1946, 2 months before production began in that plant,
it also decided to build a plant for the manufacture of glass jars. In
September 1946, when production of caps began, the Employer em-
ployed about 20 employees. In March 1947, the Employer and the
Intervenor signed an agreement recognizing the Intervenor as sole
bargaining agent for the approximately 20 hourly paid employees
then on the pay roll. The agreement contained a proviso that within
30 days after the beginning of glass production a complete contract
would be executed covering "work rules, rates of pay, and other con-
ditions of employment." On August 18, 1947, the 2 parties signed
a union-shop contract which was to terminate on September 1, 1949.
The contract set forth all terms and conditions of employment except
wages. It provided for negotiation of "wages and vacations under
this agreement" 30 days after the Employer should begin glass pro-
duction. When the contract was signed, the Employer employed about
47 hourly paid employees.
Glass production began on September 22, 1947, with a complement
of about 170 hourly paid employees. Thereafter, on December 4,
1947, the parties adopted a wage schedule in accordance with the
requirement in the August 1947 contract. On August 9 and 11, 1948,
the Federation and the Flint Glass Workers filed their petitions
with the Board.
The wage schedule adopted in December 1947 was clearly intended
to be part of the contract signed on August 18, 1947, and not a new
agreement. This August 18, 1947, contract is for a 2-year term and
will not terminate until September 1, 1949. Normally, a contract for a
2-year period bars a new determination of representatives during
its entire term. However, at the time the contract was signed, the
Employer had in its employ only a small fraction of the expected
full complement of employees under its planned and imminent ex-
pansion program. We have held that a contract executed in such
circumstances is not a bar.2
Matter of United Parcel Service of New York, Inc., 74 N. L. R. B. 888.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover , the contract contains a presently unlawful union-shop
clause. The Intervenor has not been certified by the Board under
Section 9 (e) (1) of the Act, as being authorized to make a union-shop
agreement . As the contract was executed between the date of enact-
ment and the effective date of the Labor Management Relations Act,
1947, the union-security provision was clearly not lawful after its
first anniversary date, August 18, 1948.3 The now invalid union-
security provision operates to remove the contract bar which might,
in other circumstances , have been set up.4
Accordingly, we find that the contract is not a bar, in either case,
to a present determination of representatives.
4. In Case No . 21-KC-481, the Federation , the Intervenor and the
Employer are in substantial agreement that the appropriate unit
should consist of all miscellaneous employees , including mold polishers
but excluding machine operators and apprentices , upkeep men, office
and clerical employees , and supervisors; the Employer and the Inter-
venor would also include mold repairmen . In Case No. 91-RC-489,
the Flint Glass Workers seeks to represent a unit of mold repairmen
and mold polishers . The Employer and the Intervenor contend that
such a unit is inappropriate ; they would include the mold repairmen
and mold polishers in the plant-wide unit, because they are not
craftsmen in a sense sufficient to warrant their severance from the
miscellaneous unit.
The Employer manufactures glass jars and jar caps . In the glass
container manufacturing industry , of which the Employer is a part,
mold makers and their apprentices are generally represented in sepa-
rate bargaining units. An "Agreement between the Glass Container
Manufacturers of the United States and the American Flint Glass
Workers' Union of North America," dated in 1947 , provides :
The following work shall be classed as mold making, and union
mold makers or apprentices shall be engaged to perform this
class of work.
Planing, joining, pinning , venting, letter cutting , filing, scrap-
ing in the construction of new cast figured molds, turning and chip-
ping of molds and keeping the same in repair , master forms for
molds, blanks, and bottom plate cavities . Making neck rings,
baffle plates and funnels.
That agreement is signed by Ball Brothers Company of Muncie, In-
diana, the parent corporation , but not by the Employer herein, Ball
Brothers Company of California, Inc.
Section 102, Labor Management Relations Act, 1947. There is no need for us to con-
sider the validity of the union-security provision during the first year of the contract.
4 See Matter of C. Hager d Sons Hinge Manufacturing Company, 80 N. L. R. B. 163.
BALL BROTHERS COMPANY OF CALIFORNIA, INC . 1319
The Employer does not make new molds and does not employ any
mold makers. However, the mold repairmen are skilled workers 5
who in the course of repairing molds perform virtually all the opera-
tions of mold making described in the quoted agreement. The mold
polishers are unskilled laborers.
The mold repairmen appear to be properly a part of the mold makers
craft as customarily defined in the collective bargaining agreements
within the glass container manufacturing industry. They may, there-
fore, even in the absence of mold makers, constitute a separate ap-
propriate unit. The mold polishers, however, as unskilled laborers,
properly belong in the same unit with other miscellaneous employees.
We shall include them in the voting group with such employees.
As previously stated, we believe that the mold repairmen may, if
they so desire, constitute a separate unit. On the other hand, they may
also be included in a plant-wide unit. In these circumstances, we shall
make no final determination at this time, but shall be guided in part
by the desires of these employees as expressed in the elections directed
hereinafter. If a majority of the employees in voting Group (2) vote
for the Flint Glass Workers, they will be taken to have indicated their
desire to constitute a separate unit.
We shall direct that separate elections by secret ballot be held among
the employees in the following voting groups :
(1) All miscellaneous employees, including mold polishers, but
excluding mold repairmen, machine operators and apprentices, upkeep
men, office and clerical employees, and supervisors as defined in the
Act.
(2) All mold repairmen, excluding supervisors as defined in the
Act.
DIRECTION OF ELECTIONS a
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, separate elec-
tions by secret ballot shall be conducted as early as possible, but not
later than 30 days from the date of this Direction, under the direc-
tion and supervision of the Regional Director for the Twenty-first
Region, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees in the voting groups described in paragraph numbered
The mold repairmen together with the machine repairmen are the highest paid hourly
rated employees in the Employer 's plant . Their starting rate of pay is only slightly
below the minimum rate for mold makers prescribed in the collective bargaining agree-
ment between the Flint Glass Workers and the Glass Container Manufacturers ' Association
referred to above.
9 Any participant in the elections directed herein may, upon its prompt request to, and
approval thereof by, the Regional Director , have its name removed from the ballot
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4, above , who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the elections, and also excluding employees
on strike who are not entitled to reinstatement, to determine :
(1) Whether the employees in Group 1 desire to be represented, for
purposes of collective bargaining, by Federation of Glass, Ceramic and
Silica Sand Workers, CIO, or by Glass Bottle Blowers Association
of the United States and Canada, AFL, or by neither;
(2) Whether the employees in Group 2 desire to be represented, for
purposes of collective bargaining, by American Flint Glass Workers'
Union of North America, AFL, or by Federation of Glass, Ceramic
and Silica Sand Workers, CIO, or by Glass Bottle Blowers Associa-
tion of the United States and Canada, AFL, or by none.