Continental Can Co., Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1952

98 N.L.R.B. 1252 (N.L.R.B. 1952)

1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONTINENTAL CAN COMPANY, INC.' and DISTRICT No. 9, INTER-
NATIONAL ASSOCIATION OF MACHINISTS, A. F. L., PETITIONER
CONTINENTAL CAN COMPANY, INC. and LOCAL No. 1, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L., PETITIONER. Cases
Nos. 14-RC-1643 and 14-RC-1666. April £3.,1952
Decision and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Milton 0. Talent, 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 Murdock and Styles].
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
employees of the Employer.
3. The Employer and the Intervenor, United Steelworkers of
America, C. I. 0., herein called the Steelworkers, contend that a con-
tract between them constitutes a bar to this proceeding. The Petition-
ers, herein called, respectively, the Machinists and the Electricians,
contend that the contract contains an illegal union-security provision,
and therefore cannot operate as a bar.
The contract, which covers all production and maintenance em-
ployees, except those covered by other agreements, at certain desig-
nated plants of the Employer, including Plant No. 73, involved here-
in, was executed on January 24, 1951, to remain in effect until April
15, 1953, with provision for automatic renewal thereafter. The union-
security provision, insofar as here relevant, is as follows :
Sec. 1-Present Members.
All employees in the bargaining unit who are members of the
Union in good standing on the effective date of this Agreement
must, as a condition of employment, maintain their membership
in good standing for the life of this Agreement.
Sec. 2-New Members.
Any employee who is not a member of the Union and any em-
ployee who is hired on oi after the effective date of this Agree-
ment must join the Union within thirty (30) days of active
work following the effective date of this Agreement or follow-
1 The name of the Employer appears as corrected at the healing
98 NLRB No. 200.
CONTINENTAL CAN COMPANY, INC. 1253
ing his date of employment, whichever is the later and must main-
tain his membership in good standing for the life of this Agree-
ment.
Sec. 3-Definition of Good Standing.
To keep his membership in the Union in good standing, an
employee must pay the required membership dues and Inter-
national and Local Union Assessments uniformly required of all
members.
The contention of the Machinists and the Electricians is that, under
the Board's decision in the International Harvester Company case,2
this provision is unlawful because it requires as a condition of con-
tinuing employment the payment of assessments levied by the Steel-
workers. The Steelworkers contends that the International Harvester
case is inapplicable, because of certain differences in the nature of
t lie assessments involved in the two cases. However, we find nothing
to indicate that the Steelworkers' assessments contain the elements
of regularity or periodicity necessary to bring them within the mean-
ing of the term "periodic dues," as used in the second proviso to Sec-
tion 8 (a) (3) of the Act. We therefore find, for the reasons set
forth in the International Harvester case, that the provision quoted
above goes beyond the permissive language of Section 8 (a) (3).
As the contract contains an illegal union-security clause, we find that
it cannot constitute a bar to these proceedings .-3 Accordingly, we
find that a question affecting commerce exists concerning the repre-
sentation of employees of the Employer, within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit:
The Machinists seeks a unit of all tool and die makers, machinists,
and their apprentices at the Employer's Plant No. 73. The Elec-
tricians seeks a unit of all maintenance electricians, apprentices, and
electrician helpers at the same plant. The Steelworkers contends that
only the existing multiplant production and maintenance unit covered
by its current contract with the Employer is appropriate. The Em-
ployer takes no position on the unit question.
The Employer is engaged at its Plant No. 73, located at St. Louis,
Missouri, in the manufacture and fabrication of metal containers.
There are approximately 666 employees in the plant, 21 of whom are
in the group sought by the Machinists and 8 in the group sought by
the Electricians.
There has been a varied history of bargaining at the plant. Thus,
from 1938 to 1948, all production and maintenance employees were
represented by the Steelworkers. On March 26, 1948, the Machinists
s International Harvester Company Foundry Division ( Louisville Works), 95 NLRB 730
C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163.
998666-vol . 98-53-80
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was certified by the Board as the representative of the same group
it now seeks ,4 and on December 31, 1948, as the representative of a
separate unit of all other production and maintenance employees.5
Thereafter, however, the Employer, the Machinists, and Local 5,
Amalgamated Lithographers of America, C. I. 0., agreed that the
journeymen pressmen, apprentice pressmen, and feeders in the litho-
graphic department, who had been included in the production and
maintenance unit, should be represented by the Lithographers. In
1950, the, Steelworkers was certified as the representative of a pro-
duction and maintenance unit, including the machinists, and the
Lithographers was certified for the unit it represented .r. On Jan-
uary 24, 1951, the Employer and the Steelworkers, who had pre-
viously, on December 1, 1949,,entered into a master contract covering
production and maintenance employees at a number of the Employer's
plants, amended that contract to include, among others, the production
and maintenance unit at Plant No. 73. This contract expressly pro-
=vides for the exclusion from the unit of employees covered by other
agreements.
The employees whom the Machinists now seeks to represent are
.classified by the Employer as general machinists, tool and die makers,
.and tool and die maker leadman. The general machinists maintain,
repair, and overhaul the can making equipment. The tool and die
-makers repair and overhaul the dies used in the can making operation,
.and occasionally make tools and dies. The duties of the tool and die
maker leadman are essentially the same as those of the tool ,and. die
makers, but because he has had more experience, he is qualified to
-act as instructor. These employees have their headquarters-in the
-machine shop, which is physically separated from the rest of the
plant by a wire enclosure, and are supervised by the machine shop
foreman.' In the performance of their duties, they use the usual
machine shop tools, such as shapers, millers, heat treating equipment,
drills, grinders, lathes, and saws. No other employees use these tools
. or perform similar work. Although the machinists.and tool and.die
makers frequently work outside the machine shop, they do no pro-
duction work. In hiring machinists and tool and die makers, the
Employer normally looks for journeymen machinists, or persons.who
- have had several years' experience at the machinists' trade." The
rate of pay of these employees is in general higher than that of the
production workers.
* Case No. 14-R-1715.
Case No. 14-RC-270.
° Cases Nos 14-RC-944 and 14-RC-1082
Several other employees , including a• janitor , stenographer, general work order clerk,
timekeeper , storeroom attendant , and draftsman, are located in the machine shop, but
are under different supervision. The Machinists does not seek to include them in • its unit.
8 The Employer formerly had an apprenticeship program for machinists , but there were
no apprentices employed at the time of the hearing.
CONTINENTAL CAN COMPANY, INC. 1255
The employees whom the Electricians seeks to represent are classi-
fied by the Employer as electrician A, electrician B, and electrician
leadman. They perform electrical maintenance work in the plant,
maintaining and repairing the electrical controls used in the can
-making equipment. Electricians A and B have the same skills and
are both required to have the ability to repair and maintain the elec-
trical controls. The only difference is that an electrician B does not
have the experience of an electrician A, or the same familiarity with
the controls. The electricians are under the supervision of the plant
engineer, who also supervises other building maintenance employees.
The electrical workshop, which is used exclusively by the electricians,
is separated from the rest of the plant by a wire enclosure. Occa-
sionally, in an emergency, the electricians perform the duties of other
maintenance employees, but no other employees do electrical work.
Electricians are either trained at the plant ° or hired from outside.
'Those hired from outside are required to have some familiarity with
the type of controls used in the plant. The rate of pay of the elec-
tricians is slightly lower than that of the machinists, but generally
'higher than that of the production workers.
From the foregoing and on the record as a whole, it appears that
both the machinists and tool and die makers and the electricians con-
stitute homogeneous identifiable craft groups. We therefore find that
they may, if they so desire, constitute separate bargaining units,
despite the history of bargaining on a more inclusive basis.10 Accord-
:ingly, we shall direct separate elections among the employees of the
Employer at its Plant No. 73 at St. Louis, Missouri,"" in the voting
groups set forth below.
1. All tool and die makers, machinists, and their apprentices, ex-
cluding office and clerical employees, watchmen, guards, professional
•employees, all other employees, and supervisors as defined in the Act.
2. All maintenance electricians, apprentices, and electrician helpers,
excluding all other employees, office and clerical employees, guards,
professional employees, and supervisors as defined in the Act.
If a majority of the employees in either group vote for the Petitioner
seeking to represent such group, they will be taken to have indicated
their desire to constitute a separate bargaining unit, and the Regional
Director conducting the elections directed herein is instructed to issue
a certification of representatives to, the Petitioner for such unit, which
The Employer has no regular apprenticeship program . for electricians
'" Armstrong Cork Company ( Lancaster Floor and Closure Plants ), 97 NLRB 1057.
"Where there is a substantial history of successful bargaining on a multiplant basis,
the Board will not ordinarily permit the severance of craft employees at a single plant
Western Electric Company, Incorporated , 74 NLRB 1029 . In our opinion , however, the
pattern of multiplant bargaining in this case is not so well established as to preclude
- severance of these single plant units.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board, under such circumstances, finds to be appropriate for pur-
poses of collective bargaining. In the event a majority in either group
vote for the Intervenor, the Intervenor may continue to bargain for
such group as part of the existing unit and the Regional Director will
issue a certificate of results of election to such effect.
[Text of Direction of Elections omitted from publication in this
volume.]
FOUNDRY MANUFACTURERS NEGOTIATING COMMITTEE and METAL &
MACHINERY WORKERS OF AMERICA, INDEPENDENT, PETITIONER
CRUCIBLE STEEL CASTINGS COMPANY and METAL & MACHINERY WORK-
ERS OF AMERICA, INDEPENDENT, PETITIONER
FULTON FOUNDRY & MACHINE COMPANY, INC. and METAL & MACHIN-
ERY WORKERS of AMERICA, INDEPENDENT, PETITIONER
STANDARD ALLOY COMPANY, INC. and METAL & MACHINERY WORKERS
OF AMERICA, INDEPENDENT, PETITIONER
MADISON FOUNDRY COMPANY and METAL & MACHINERY WORKERS OF
AMERICA, INDEPENDENT, PETITIONER. C a s e s Nos. 8-RC-1388,
8-RC-1399, 8-RC-1400, 8-RC-1401, and 8-RC-1479. April 23,
1952
Decision , Order, and Direction of Election
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Carroll L. Martin, 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 these cases to a three-mem-
ber panel [Chairman Herzog and Members ITouston and Murdock].
Upon the entire record in these cases, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employers.2
' The motions of the Employers and International Molders & Foundry Workers Union
of North America, Local .218, A. F. L., herein called the Molders, to dismiss the petition
in Case No. 8-RC-1388 on various grounds, are denied for reasons stated hereinafter.
Similar motions to dismiss the petitions in Cases Nos. 8-RC-1399, 8-RC-1.400, 8-RC-1401,
and 8-RC-1479 are granted for the reasons stated in paragraph 4.
2 The Employers contend that the Petitioner is not a labor organization within the mean-
ing of the Act. We find no merit in this contention. The record clearly shows that the
Petitioner exists for the purpose of bargaining collectively with employers with respect
to wages, hours, and conditions of work. R. J. Reynolds Tobacco Company, 88 NLRB 600,
and cases cited therein.
98 NLRB No. 187.