Continental Can Co., Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1950

91 N.L.R.B. 500 (N.L.R.B. 1950)

In the Matter of CONTINENTAL CAN COMPANY, INC., EMPLOYER and
UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER
In the Matter Of CONTINENTAL CAN COMPANY, INC., EMPLOYER and
AMALGAMATED LITHOGRAPHERS OF AMERICA, LOCAL 5, CIO9
PETITIONER
Cases Nos . 14-RC-944 and 14-RC-1082.-Decided September 26,1950
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a consolidated hearing was held before Glenn L.
Meller, hearing officer. The hearing officer's rulings made at the hear-
ing 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 meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. On December 31, 1948, the International Association of Machin-
ists, District No. 9, herein called the IA-M, was certified by the Board
as the exclusive bargaining representative of all production and main-
tenance employees, including pressmen, apprentice pressmen, and
press feeders.' Thereafter, the Employer and the IAM entered into a
contract to be effective from December 23, 1949, to May 1, 1951. The
contract provided for the specific exclusion of pressmen, apprentice
pressmen and press feeders.2
The United Steelworkers of America, CIO, herein called the Steel-
workers, contends that the foregoing contract between the Employer
and the IAM cannot operate as a bar to this proceeding because by its
terms certain employees have been excluded in defiance of the certifica-
tion issued by the Board.
' Case No. 14-RC-270.
2 These employees are currently represented by the Amalgamated Lithographers of
America , Local 5, CIO , herein called the Amalgamated . Without any prior determination
by the Board , the Employer voluntarily agreed to recognize the Amalgamated in December
1949.
91 NLRB No. 66.
500
CON'TIN'ENTAL CAN COMPANY, INC. 501
Inasmuch as the parties to the contract have departed from the
certified unit as to a substantial group of employees, we find, apart
from other considerations,3 that the contract is not a ba.r to a new de-
termination of representatives.4
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 appropriate units :
The Amalgamated, the IAM, and the Employer are in agreement
that all pressmen, apprentice pressmen, and press feeders constitute
a skilled group and should be represented in a separate unit. While
the Steelworkers does not deny the craft characteristics of the fore-
going employees, it contends that the production and maintenance
unit previously certified by the Board is appropriate. It further
contends that the unit sought by the Amalgamated is not appropriate
because it does not include other employees having similar duties,
such as coating operators and oven strippers. With respect to the
remaining production and maintenance employees, the Steelworkers,
the IAM, and the Employer are in agreement that such employees,
excluding outside truck drivers, clericals, office employees, guards,
watchmeri, professional, and supervisory employees constitute an
appropriate unit for the purposes of collective bargaining.
The Employer is engaged in the manufacture of metal and fibre
containers at its St. Louis, Missouri, plant, the only one involved in
this' proceeding. It operates a decorating department which is
divided into a printing section and a coating section, each having
separate supervision. The function of the coating section is to
apply lacquer or varnish to bare sheetmetal and then place the coated
metal in an oven to be dried. The sheetmetal is removed from the
oven by oven strippers. If these sheets are to be lithographed, they
are moved to the printing section where printed matter of one or two
colors are applied by press feeders, apprentice pressmen, and press-
men. The printing section also employs oven strippers.
The record is clear that the work performed by the coating opera-
tors, who learn their job in 2 to 4 weeks, and the oven strippers, who
learn their job in 2 days, are not skilled, do not serve an apprentice-
ship, which is required of the press feeders and pressmen, and re-
ceive wages substantially less than the group of employees sought
by the Amalgamated. It is also evident that neither these nor the
As we find that the contract is not a bar , for the reasons stated above , we deem it
unnecessary to consider the other issues raised by the Steelworkers.
4 Calaveras Cement Company, 89 NLRB 378 ; Savannah Electric and Power Co., 48
NLRB RR
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees in the decorating department are engaged primarily
in the lithographic process so as to warrant their inclusion in the
lithographic pressmen's group.
Accordingly, we find that all press feeders, apprentice pressmen,
and pressmen constitute an identifiable, homogeneous highly skilled
group, clearly distinguishable from the Employer's other production
workers, which may constitute an appropriate unit.' However, we
shall make no final unit determination at this time, but shall first
ascertain the desires of the employees in the election hereinafter
directed.
We shall direct. separate elections by secret ballot among the em-
ployees in the voting groups described below :
1. All press feeders, apprentice pressmen, and pressmen at the
Employer's St. Louis, Missouri, plant, excluding all other employees
and supervisors as defined in the Act.
2. All production and maintenance employees at the Employer's
St. Louis, Missouri, plant, excluding press feeders, apprentice
pressmen, pressmen, outside truck drivers, clericals, office employees,
guards, watchmen, professional, and supervisors as defined in the
Act.
If a majority of the employees in voting group 1 select the Amal-
gamated, they will have indicated a desire to form a separate unit.
[Text of Direction of Elections omitted from publication in this
volume.]
'CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Elections.
MEMBER MURDOCK, dissenting in part :
I disagree with the majority's finding that the Savannah Electric
and Power principle is dispositive of the contract-bar issue in this case.
In my opinion the majority has blindly applied a principle without
considering the practicalities of the,situation or the impact of their de-
cision on industrial stability. Assuming, arguendo, that the Savannah
principle is broad enough to cover the situation present in this case,',
0 The Heekin Can Company, 89 NLRB 717; Bond Crown & Cork Co., 83 NLRB 638.
6 The principle was enunciated by the Board in the Savannah case as follows :
The Board as a general rule does not entertain representation proceedings where
an active labor organization has a collective bargaining contract with a reasonable
period to ran. But the rule assumes that the unit of employees covered by the con-
tract is appropriate. In the present case, there is doubt as to the appropriateness of
the unit covered by the contract between the Company and the Independent. Where
the parties contract on the basis of a unit materially different from that found by the
Board, even though the contract unit might also be deemed appropriate, their agree-
ment is subject to any subsequent determination the Board may make, in a proper
proceeding with respect to the appropriateness of the unit or units.
CONTINENTAL CAN COMPANTI, INC. 503
I am of the view that it was promulgated solely for the purpose of dis-
couraging a certificate holder from arbitrarily changing the scope of
the certified unit without regard to the Board's criteria of appropriate-
ness or the desires of the employees involved. Such was the situation
in the Savannah and Calaveras cases, but not in this case. In the
Savannah case the contracting parties, without first ascertaining the
desires of the employees involved, increased the scope of the unit found
appropriate by the Board by adding a group of employees specifically
excluded from the certified unit. In the Calaveras case the contract-
ing parties arbitrarily excluded a nonseverable group of. employees
from the certified unit. The appropriateness of the resulting contract
units in both of those cases were therefore open to question, not only
because they were materially different from the units found appropri-
ate by the Board but also because they were arbitrarily established
without regard to the desires of the employees involved.
On the other hand, in this case, as found herein by the majority, both
the excluded -group and the IAM's contract unit clearly meet the
Board's standards of appropriateness as one consists of a recognized
craft group and the other of all remaining production and mainten-
ance employees. Moreover, the craft employees were excluded by
agreement of the parties only after they had overwhelmingly ex-
pressed their desires for separate representation in a secret ballot
election. Because, however, this amicable settlement of a representa-
tion question lacked the imprimatur of the Board, my colleagues
have set it aside as being a usurpation of the Board's functions by the
parties. I experience no such reaction and in the interest of promot-
ing industrial stability would sanction the action taken by the con-
tracting parties by finding that the IAM's contract, which was entered
,into during the certification year, is a bar to the petition for an over-
all unit in Case No. 14-RC-944. Accordingly, I would dismiss that
petition. The Amalgamated may have filed its petition for a craft
unit in Case No. 14-RC-1082 only to protect its position in the event
the Board directed an election on the previously filed petition for the
over-all unit. If the latter petition is dismissed as I believe it should
be, the Amalgamated might.not wish to proceed to an election on its
own petition. If it does, however, it is entitled to an election in its
craft unit.