Continental Can Co., Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1954

110 N.L.R.B. 1042 (N.L.R.B. 1954)

1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act." As the Petitioner does not
wish to participate in an election in the larger unit, we shall dismiss
the petition.
[The Board dismissed the petition.]
19 The Board has held that the mere establishment of a new plant does not of itself
justify holding a separate election among the employees of such plant to determine their
bargaining representative . Saco-Lowell Shops, 107 NLRB 590 ; Birdsboro .4rmorcast, Inc.,
101 NLRB 22, 24.
CONTINENTAL CAN COMPANY , INC., PLANT No. 11 and AMALGAMATED
LITHOGRAPHERS OF AMERICA , LOCAL 22, CIO, PETITIONER. Case
No. 21-RC-3362 . November 24, 1954
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 Floyd C. Brewer,
hearing officer. The hearing officer's rulings made at the hearing 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 organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer operates a large number of plants scattered
throughout the United States, Canada, and Cuba. Although princi-
pally engaged in the production of metal containers decorated by
lithography,' not all its plants have employees engaged in the litho-
graphic process.'
The Petitioner, Amalgamated Lithographers of America, Local 22,
CIO, hereafter called Lithographers, seeks to represent a group of
employees in the Employer's plant #11, Los Angeles, California, en-
gaged in the lithographic process, namely pressmen, pressfeeders,
their respective apprentices, and the plate checker and repairman,
excluding all other employees in the lithographic department and in
the plant. These employees and all other production and mainte-
nance employees at plant #11 have been represented since December
1 At an undisclosed number of plants the Employer apparently produces only fiber
containers
2 The record , however, discloses neither the total number of plants operated by the
Employer nor the total number having employees engaged in the lithographic process.
110 NLRB No. 161.
CONTINENTAL CAN COMPANY, INC. 1043
1949 by the Intervenor, United Steelworkers of America, CIO, here-
inafter called Steelworkers, under master contracts covering diverse
groups of employees in many but not all plants of the Employer.
There has never been an election in plant #11.
The Steelworkers contends that the only appropriate unit is one
comprising all employees of the Employer covered by its master con-
tract, for two reasons :
(1) The centralization of the Employer's management control.
(2) A history of collective bargaining in a multiplant unit. The
Steelworkers alternatively asserts that, if the Board rejects the con-
tention that such a multiplant unit is the only appropriate one, no unit
less comprehensive than a plantwide unit of all production and main-
tenance employees at plant #11 can be appropriate. The Steelwork-
ers also asserted alternatively at the hearing that the appropriate
unit should at least be coextensive with the entire lithographic de-
partment. The Employer prefers its present bargaining arrange-
ments with the Steelworkers but it takes no position as to the appro-
priateness of the unit sought by the Lithographers.
We shall consider first the Steelworkers' contention that the em-
ployees in plant #11 have been effectively merged with employees
whom it represents in 33 of the Employer's other plants in a multi-
plant unit which is alone appropriate under Section 9 (b) of the Act.
To determine whether such a unit does in fact exist we turn to an
analysis of the bargaining relationship under the master contract and
its relation to the general pattern of the Employer's bargaining with
regard to employees in the lithographic classifications in question.
The Bargaining History
In 1949 the Steelworkers was the recognized representative of em-
ployees in 24 of the Employer's plants. The Steelworkers urged
exploration of the feasibility of negotiating for these employees at
a single time and place to obviate, as far as possible, the negotiation
of separate contracts for each plant at which the Steelworkers and
one of its locals served as representative. The Employer agreed and
negotiations commenced between two teams representing the parties.
The Steelworkers' team consisted of a top officer as chairman and
the presidents of each of the Steelworkers' locals in plants which had
previously been covered by individual contracts. The Employer was
represented by its general manager of industrial relations from the
New York headquarters and the various managers of industrial re-
lations on the divisional level. The ensuing master agreement exe-
cuted in December 1949, , and subsequent master agreements all
negotiated in the same manner, recite that they are entered into on
behalf of the Steelworkers "for itself and in behalf of" the listed
locals.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The master contracts have defined the bargaining unit in the fol-
lowing terms "The bargaining unit includes all production and main-
tenance employees now included in the bargaining unit in the
following plants.... Employees covered by other agreements are
excluded." The December 1949 contract listed 24 plants, the contract
of January 1951 listed 25, and the contract of August 1952 listed 33
plants as covered by the master agreement. In the current contract
entered into January 15, 1954, the following definition is used. "The
bargaining unit includes all employees included in the respective
local bargaining units 3 outlined in Appendix A which is attached to
this Agreement." Appendix A lists 30 local bargaining units com-
prising 33 plants in which the unit consists of all production and
maintenance employees except those specifically set forth as excluded.
However, the Steelworkers represents the lithographic classifications
in question in only 6 of these plants,' the Lithographers represents
them in 11,5 and the record does not show whether there are any litho-
graphic classifications in the remaining 16 plants covered by the
master contract.'
The master agreement provides in detail for such matters as union
security, checkoff, pensions, vacations, and uniform grievance pro-
cedure. It defines the basic workday and workweek. It provides,
however, for local negotiations to allow for plant differences on such
vital subjects as installation or discontinuance of incentive plans,
seniority, rates of pay with respect to transfer from higher to lower
rated jobs or vice versa, shifts and work schedules, the workweek
for certain types of employees, and local selection of 1 of the 5 holi-
days provided in the master agreement. It also contains a general
provision that "Any written local agreement covering a custom or
practice which is not in conflict with the specific provisions of the
Master Agreement, as amended, will remain in effect unless the Local
Management and the Local Union agree to modify it or discon-
tinue it."
Although the basic wage scales appear only in the local supple-
mental agreements 7 the Employer asserts that they are negotiated
8 Emphasis supplied.
4 Plant #11 , Los Angeles , California ( the plant concerned in the instant case ) ; plant
#4, Birmingham , Alabama; plant # 5, Clearing , Chicago, Illinois ; plant #37, Harvey,
Louisiana ; plant #38, Houston , Texas ; and plant #89, Los Angeles, California.
5 Plant #30, Passaic, New Jersey ; plant #45, Pittsburgh, Pennsylvania ; plant #46,
Clearing, Chicago, Illinois ; plant #48, Paterson, New Jersey ; plant #51, Chicago, Illi-
nois ; plant # 72, Pittsburgh , Pennsylvania ; plant ##73, St . Louis, Missouri ; plants #77
and #80, Milwaukee , Wisconsin ; and apparently also plants #9 and #16, Baltimore,
Maryland
O The Lithographers also represents the lithographic classifications in question at eight
plants not covered by the Steelworkers ' master contract. Plant #2 in Baltimore, Mary-
land ; plants # 5, #46, #51, ## 64, and #68, Chicago , Illinois ; and plants at Portland,
Oregon; Oakland , California ; and Toronto , Ontario, Canada ( plant numbers not stated).
7 The supplemental agreement , however, contains a provision that the basic wage scale
set forth shall ye deemed a part of the master agreement . The master agreement itself
sets forth the centrally negotiated overall wage increases to be applied to the basic scales.
CONTINENTAL CAN COMPANY, INC. 1045
not locally but centrally . However after 5 years of such negotiation
the record shows that the basic wage scales vary from plant to plant.
Such local negotiations are conducted separately for each plant
concerned, the manager of the individual plant and representative of
the Employer 's industrial relations department on the regional level
acting on behalf of the Employer . The resulting agreements, de-
scribed as supplements to the master agreement , are formal written
agreements between the Employer , the Steelworkers , and whichever
of its locals represents the local unit.s
We find in the contracts described above no clear indication that
the parties to the course of bargaining intended to effect such a con-
solidation of preexisting separate plant units as to destroy the identity
of such separate units. Whatever the ultimate purpose of the parties,
it is clear that the identity of these preexisting plant units has not
only been preserved but important rights have been reserved to them.
As the Board very recently held in the American Can cases ,9 in such
a situation the bargaining history is not alone dispositive of the unit
issue and cannot be held to have extinguished the rights of employees
in each of the individual plant units to select and change their bargain-
ing representatives , at appropriate intervals in plantwide elections.
Our dissenting colleagues accuse us of basing our unit determination
in this case on "unexpressed inclination " rather than upon "sober
factual appraisal ." Moreover, they expressed the "fear" that as a
result of our decision all multiplant and multiemployer units are
placed in jeopardy. As to their " fear," we do not view our decision
as either jeopardizing bargaining units which are in fact shown to
exist, or as pioneering a new Board principle. What we do here is
merely to apply the well-established principle that an equivocal bar-
gaining history will not be given controlling weight by the Board
in its unit determination . That the Employer and the Steelworkers
took some measures tending towards the establishment of a multiplant
unit cannot be denied; however, in our opinion , these measures were
more than neutralized by, among other things, their continued recog-
nition of the existence of local bargaining units and their expressed
agreement to continue to negotiate on the local, single-plant level.
We are sorry , indeed, that our colleagues do not evaluate the Employ-
er's bargaining history as we do; but we entertain no belief that their
view results from anything other than an honest appraisal of the
factual situation in this case , which is the basis of our own action.
8 Supplemental agreements are executed on behalf of the Employer only by the plant
manager and regional representative The record does not show who signs on behalf of
the Union.
D American Can Company, 109 NLRB 1284, in which Chairman Farmer and Member
Peterson dissented ; American Can Company, 110 NLRB 3 , which they signed deeming
themselves bound by the earlier case
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other Tests of Appropriateness
As to the Intervenor's contention that the centralized character of
the Employer's organization is such as to render appropriate only a
unit coextensive with the coverage of the master agreement, we note
that the plants covered do not follow any functional, administrative,
or geographical segment of the Employer's organization. They are
scattered throughout the United States- at widely separated points.
Transfer of personnel between them is negligible and occurs princi-
pally at the request of employees for reasons of their personal con-
venience. The master agreement covers lithographic employees at a
few plants, but excludes them at a greater number. At some plants
it excludes other groups such as machinists, and at a few plants it
covers not only production and maintenance employees but also office
clerical employees. It is clear that the present multiplant coverage of
the Intervenor's contract constitutes a heterogeneous grouping of em-
ployees without any special community of interest that can set them
apart from other employees of the Employer.
In these circumstances, assuming that the Employer's organization
exhibits a substantial degree of centralized operational and policy
control, this fact cannot in itself and apart from a persuasive bargain-
ing history serve to establish the plants joined under the master con-
tract as the only appropriate grouping.
We turn now to the alternative contention that no unit less extensive
than a plantwide unit of production and maintenance employees at
plant #11 can be appropriate. Such a unit now exists and obviously
may be appropriate. However, the Board has frequently considered
the skills and techniques incident to the lithographic process and has
held that all employees engaged in the lithographic process form a
cohesive unit appropriate for purposes of collective bargaining despite
a history of collective bargaining on a broader basis.'0 Moreover, we
have recently held in Fey Publishing Company 11 that severance of
a lithographic process unit is in accordance with our policy enunciated
in the American Potash case.12
The lithographic equipment in plant #11 does not differ from that
employed in the industry generally. The skills and duties of the
pressmen, pressfeeders, and their apprentices are similar to those of
employees in those classifications in other plants in the industry where
we have held such classifications to be engaged in the lithographic
process and in which we have excluded from the unit other classifica-
tions in the lithographic departments, similar to those which the Lith-
10 Continental Can Company , Inc., 105 NLRB 210, 91 NLRB 500; The Heekin Can
Company, 97 NLRB 783, 89 NLRB 717; Bond Crown & Cork Co., 83 NLRB 638.
11 Fey Publishing Company, 108 NLRB 1078
11 Amerocan Potash d Chemical Corporation , 107 NLRB 1418.
CONTINENTAL CAN COMPANY, INC. 1047
ographers would exclude here, namely, coater operator, paint mixers,
oven strippers, oven maintenance man, and janitor.l$
In the face of the precedents cited, the Intervenor's only argument
in support of its alternative contention that no unit less extensive
than a plantwide unit can be appropriate is the fact that there is evi-
dence that some of the employees sought have spent some time on work
in the lithographic department pertaining to classifications outside
the unit sought, for example in operating the coating machines,"
and indeed to some work outside the department." The Intervenor
contends that this "tends to prove the integration of the plant as a
whole as a manufacturing unit." As we indicated in American
Potash," it is our policy that members of a group otherwise entitled
to severance should not be denied separate representation merely
because they are employed in an industry which involves highly inte-
grated production processes.
At the hearing, although not in its briefs, the Intervenor urged the
further alternative that no unit less extensive than the entire litho-
graphic department could be appropriate. In support of this position
it pointed only to the work performed by the employees outside of
their classification, already alluded to, together with the fact that
some employees in the department not ordinarily engaged in the litho-
graphic process occasionally have performed the work of a press-
feeder. It was conceded, however, that no such employee ever per-
formed any of the functions of a pressman. We do not believe, how-
ever, that this transfer of work is of such a nature, or sufficiently exten-
sive, as to negate the separate interests of the employees engaged in
lithographic work.
In view of the foregoing we find that the employees engaged in the
lithographic process at plant #11 may constitute a separate appro-
priate unit if they so desire. We shall not, however, make a final unit
determination at this time, but shall direct that the question concern-
ing representation which exists with regard to these employees be
resolved by an election by secret ballot among the employees in the
following voting group : All lithographic process employees at the
13 See cases cited, supra, footnote 10. Note that in the cited cases although none of
the lithographic process units specifically include the remaining classification here sought
by the Lithographers-the plate checker and repairman-they do include transfer men
or platemakers where such a classification exists in the plant concerned In such plants
a part of the platemaker 's function is the performance of the duties assigned in plant
#11-where plates are not made-to the plate checker and repairman , namely checking
the plate for registration , design , and color separation, and restoring a blind plate to
usability by rubbing it up These duties are clearly a part of the lithographic process.
1* Such work out of classification is apparently mainly relief work or due to occasional
slack periods. We note that when performing such work the employees in the unit
sought are paid at the rate for their regular classifications.
15 The records of the 5 pressmen , for example , show no work outside the department
during 1953 by the 2 pressmen hired during 1953. The records submitted for the remain-
ing 3 cover a period of 31/2 years, during which period they spent respectively 52 hours,
411/ hours , and 24 hours on work in other departments.
16 American Potash & Chemical Corporation, supra.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's plant #11, Los Angeles, California, including pressmen,
pressfeeders, their respective apprentices, and platechecker and
repairman, but excluding all other employees, guards, and supervisors
as defined in the Act.
If the majority of the employees in the voting group vote for the
Petitioner, they will be taken to have indicated their desire to consti-
tute a separate appropriate unit, and the Regional Director conducting
the election herein is instructed to certify the Petitioner as represent-
ative for the unit described in the voting group above, which the
Board finds to be appropriate for purposes of collective bargaining.
On the other hand, if a majority vote for the Intervenor, the Board
finds the existing unit to be appropriate and the Regional Director
will issue a certification of results of election to such effect.
[Text of Direction of Election omitted from publication.]
CHAIRMAN FARMER and MEMBER PETERSON, dissenting :
We dissent from the decision of our colleagues directing an election
among the lithographic employees in a single plant which, in common
with a number of other plants of this Employer, is covered by a mas-
ter contract between the Employer and the Intervenor. Although
here, as in the recent American Can case," the parties have not in the
current contract, or in their previous multiplant contracts, precisely
defined the unit for which they have been bargaining, it is neverthe-
less clearly apparent that in each instance they have negotiated and
executed, at one time and in a single document, a contract embodying
essentially all the usual substantive contractural terms and covering
the production and maintenance employees in a substantial number
of the Employer's plants. Although certain matters of primarily
local concern have been left for settlement at the local plant level,
even these, where conflicting with the results of multiplant bargain-
ing, have been made expressly subordinate to the master agreement.
In the light of the history of negotiation and execution of multi-
plant contracts, it seems to us that it is unrealistic and constitutes an
undue adherence to technicality to refuse to recognize the multiplant
unit thus actually created, merely because such unit has not been
spelled out in precise contractural language. That the principle of
the Hygrade case," to which the decision of the majority has re-
verted, is both unrealistic and impractical is shown by the fact that
the Board, after enunciating the principle, immediately and for all
practical purposes abandoned it.19 Upon all the circumstances, we
cannot but conclude that the failure to recognize the existence of a
multiplant bargaining history here reflects less of a sober factual
17 American Can Company, footnote 9, supra.
18 Hygrade Food Products Corporation, 85 NLRB 841.
19 See cases cited in footnote 19 of our dissent in American Can, supra.
R. D. WERNER CO., INC. 1049
appraisal than it does an unexpressed inclination toward permitting
the splitting off of a single-plant from an historically established
multiplant unit. If this is the direction in which our colleagues in
the majority are headed, and we fear that it is, it can only mean that
multiplant and multiemployer units which have heretofore been rec-
ognized by the Board will hereafter be subjected to continuing jeop-
ardy. We would deny the request for severance and dismiss the
petition.
R. D. WERNER CO., INC.' and DISTRICT LODGE 83, INTERNATIONAL As-
SOCIATION OF MACHINISTS, AFL, PETITIONER and LOCAL UNION
3713, UNITED STEELWORKERS OF AMERICA, CIO . Case No. 6-RC-
1480. November 24,1954
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 Sidney Lawrence,
hearing officer. The hearing officer's rulings made at the hearing 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. A question affecting commerce exists concerning the representa-
tion 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 to sever from the established bargaining
unit of production and maintenance employees at the Employer's
Greenville, Pennsylvania, plants a unit consisting of all toolmakers,
diemakers, machinists, setup men, die filers, die repairmen, heat treat-
ers, apprentices, and maintenance machinists. The Intervenor and
the Employer contend that the unit requested by the Petitioner is in-
appropriate as it is not a true craft unit consisting of a distinct and
homogeneous group of skilled journeymen and craftsmen, or a func-
tionally distinct and separate departmental group.
The Employer's operations at Greenville, Pennsylvania, are divided
between two physically separated plants which are located at Sugar
Grove Township and Pymatuning Township. The Sugar Grove plant
produces aluminum extrusions and stainless steel and aluminum rolled
products. The Pymatuning plant manufactures aluminum ladders.
These plants are operated by the Employer as a single entity and they
jointly employ 261 production and maintenance workers. The Inter-
1 The name of the Employer appears as amended at the hearing.
110 NLRB No. 166.