American Can Co.

National Labor Relations Board - Board Decisions

Apr 15, 1952

98 N.L.R.B. 1190 (N.L.R.B. 1952)

1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, it appears that these officers possessed
at least apparent authority to bind the union. In these circum-
stances, we do not look behind this apparent authority, and find that
the supplemental agreement became effective upon its execution .5
As to the Petitioner's second contention regarding lack of knowl-
edge of the amendment by the employees, we find that as the supple-
mental agreement was in writing and signed by the Employer and
the Intervenor, acting as the collective bargaining representative of
the employees, there was no need, so far as the contract bar issue is
concerned, that the employees be directly advised of the amendment 6
We therefore find that the current contract between the Associa-
tion and the Intervenor is and was, at the time of the filing of the
petition, entirely lawful on its face. As the contract has a substantial
period yet to run, we find that it is a bar to this proceeding. Ac-
cordingly, we shall dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
c See Avco Manufacturing Corporation, 97 NLRB 645 ; Alaska Salmon , Industry, Inc.,
89 NLRB 1379.
e See Canada Dry Ginger Ale, Incorporated , 97 NLRB 597 , and cases cited therein.
AMERICAN CAN COMPANY and LOCAL 79, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL, PETITIONER. Case No. 10-RC-1694. April 15,
1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Morgan C. Stanford, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Intervenor, United Steelworkers of America, CIO, con-
tends that its contract of March 17, 1951, covering the production
98 NLRB No. 175.
AMERICAN CAN COMPANY 1191
and maintenance employees at the Employer's Tampa, Florida, plant,
bars this proceeding. However, the employees sought in this pro-
ceeding work at the Employer's warehouse in Auburndale, Florida.
Moreover, the contract was executed before the Auburndale ware-
house operation began and does not purport to cover the Auburndale
employees. Thus, the contract cannot bar a present determination
of representatives.' Accordingly, we find that a question affecting
commerce exists 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.
4. The Petitioner seeks a unit of all employees employed in the
Employer's Auburndale, Florida, warehouse, with the customary
exclusions. The Intervenor asserts that there is no basis for a sepa-
rate unit of Auburndale employees, and urges that they be added to
the existing production, maintenance, and warehouse unit at the
Employer's Tampa plant. The Employer takes no position with
regard to the unit.
The Auburndale warehouse began operations in November 1951.
None of the employees in this warehouse was previously employed at
Tampa, and none had participated in the consent election held there
almost a year earlier. The Auburndale warehouse is located about 50
miles from Tampa. It handles large numbers of cans, most of which
are produced at Tampa. It sells the cans directly to major citrus
processors in and near Auburndale. Although most of the cans han-
dled at the warehouse are manufactured in the Employer's Tampa
plant, it is in no sense a storage or overflow warehouse for Tampa's
excess inventory. All cans sent to Auburndale are shipped to it
against purchase orders executed by local canners and filed in Tampa.
Employees in the Auburndale warehouse are hired by the warehouse
foreman, who has complete authority as to all hiring, discharges, and
layoffs. There is virtually complete autonomy as to working hours
and most other working conditions. There is no employee interchange
between Tampa and Auburndale. The summer slack period results
in mere seasonal reduction in the Tampa work force, but is expected
to result in a complete shut-down at Auburndale. From these facts,
it appears that the Auburndale employees are sufficiently distinguish-
able from the Tampa employees to constitute a separate unit, if they
so desire.
On the other hand, these employees are subject to the Employer's
general personnel policies, receive the same wages, and have the same
functions to perform as employees in similar classifications at Tampa.
In addition, the Auburndale and Tampa operations are integrated, as
the warehouse is largely an extension of the Tampa plant's marketing
I Reynolds Metals Company, 82 NLRB 1414.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facilities. Therefore, we find that the Auburndale employees may, if
they wish, join the existing unit of Tampa employees currently repre-
sented by the Intervenor.2
Accordingly, we shall make no final unit determination at this time,
but shall first ascertain the desire of the Auburndale employees as
expressed in the election to be directed herein, in the following voting
group :
All employees at the Employer's Auburndale, Florida, warehouse,
excluding office-clerical employees, professional and administrative
employees, guards, and all supervisors as defined in the Act.
If a majority vote for the Petitioner, they will be taken to have
indicated their desire to constitute a separate appropriate unit, and
the Regional Director conducting the election directed herein is in-
structed to issue a certification of representatives to the Petitioner for
the unit described in paragraph numbered 4, which the Board, under
such circumstances, finds to be appropriate for purposes of collective
bargaining. If a majority vote for the Intervenor, the organization
may bargain for such employees as part of the Tampa production,
maintenance, and warehouse unit that it now represents, and the
Regional Director will issue a certificate of results of election to such
effect.
[Text of Direction of Election omitted from publication in this
volume.]
2 Thatcher Glass Manufacturing Company, 97 NLRB 238.
FITZPATRICK AND WELLER, INC. and UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA, AFL, PETITIONER . Case No.
3-RC-814. April 15, 1950
Supplemental Decision and Direction
On February 25, 1952, pursuant to a Decision and Direction of
Election issued by the Board,' an election by secret ballot was con-
ducted under the direction and supervision of the Regional Director
for the Third Region among the employees in the appropriate unit.
Upon completion of the election, a tally of ballots was issued and duly
served upon the parties, which showed that of the 94 ballots cast, 47
were for and 26 against the Petitioner, 20 were challenged, and 1 was
void.
On February 29, 1952, the Employer filed timely objections to
election. Thereafter, the Regional Director conducted an investiga-
tion and, on March 21, 1952, issued and duly served upon the parties.
1 Not reported in printed volumes of Board decisions.
98 NLRB No. 177.