Continental Can Co., Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1943

50 N.L.R.B. 488 (N.L.R.B. 1943)

In the Matter of CONTINENTAL; CAN COMPANY, INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE 818
In the Matter of CONTINENTAL CAN COMPANY, PLANT #22, WHEELING,
W. VA. and DISTRICT 50, UNITED MINE WORKERS OF AMERICA '
Cases Nos. R-5368 and R-5369, respectively.Decided June 14, 1943
Messrs. Ray J. Humes and J. F. Dooley, of Wheeling, W. Va., and
-Mr. E. A. Holtz, of Glendale, W. Va., for the Company.
Mr. Van B. Carter, of Huntington, W. Va., for the I. A. W.
Mr. Stanley Denlinger, of Akron, Ohio, and Messrs. W. 0. D, ona-
hue and Joseph DeStefano, of Bellaire, Ohio, for District 50.
Messrs. Philip M. Curran and Ernest G. Nassar, of Pittsburgh,
Pa., for the Steelworkers.
-Mrs. Myrtle Smith and Mr. Earl L. Milbaugh, of Wheeling, W.
Va., for the Independent.
Mr. William R. Cameron, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petitions severally filed by International Association of Ma-
chinists, Lodge 818, herein' called the I. A. M., and District 50, United
Mine Workers of America, herein,-called District 50, alleging that
questions affecting commerce had arisen concerning the representa-
tion of employees of Continental Can Company, Inc., Wheeling, West
Virginia, herein called the Company, the National Labor Relations
Board provided for an appropriate consolidated hearing upon due
notice before S. Craig Carnes, Trial Examiner. Said hearing was
held at Wheeling, West Virginia, on May 14, 1943. The Company,
the I. A. M., District 50, United Steelworkers of America, District
23, -herein called the' Steelworkers, and - Can Workers Independent
Union of the Continental Can Company, Plant #22, herein called
the Independent, appeared, participated, and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and
50 N L. R B., No 77. - ,
488
CONTINENTAL CAN COMPANY, INC. 489.
to introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Continental Can Company, Inc., a New York corporation, is engaged
in the manufacture of metal containers and metal stampings, and has
plants in about 20 of the States of the United States. We are here
concerned only with its Plant #22, located at 48th Street in Wheeling,
West Virginia. The raw materials purchased by the Company for its
48th Street Plant, Wheeling, West Virginia, consisting principally of
tin plate and black plate, amounted, during the year 1942, to more than
$1,000,000, of which approximately 60 percent was obtained from
points outside the State of West Virginia. During the year 1942 the
Company's sales of finished products amounted in value to more than
$1,500,000, of which approximately 78 percent was shipped to places
outside the State of West Virginia. The Company employs, at its
48th Street Plant, Wheeling, West Virginia, approximately 361 em-
ployee^. The Company concedes that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Lodge 818, is a labor organ-
ization admitting to membership employees of the Company."
District 50, United Mine Workers of America, is a labor organiza-
tion admitting to membership employees of the Company.
United Steelworkers of America, District 23, is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to
membership employees of the Company.
Can Workers Independent Union of the Continental Can Company,
Plant #22, is an unaffiliated labor organization admitting to member-
ship employees-of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Independent has, since its organization in. August of 1941,
represented the production and maintenance employees of the Com-
pany as exclusive'bargaining agent, and on October 8, 1941, on behalf
' We take notice of the fact that since the hearing the I. A. M. has withdrawn its
affiliation from the American Federation of Labor.
490 DEC'wsaa0N- J OF NiATTOi!V'AL LABOR , RELATIONS BOL 1Ri1
of the employees,'ente'red into a-contract-with the Company, which
expired on October 8,1942. The-Independent has, since the expiration
of this contract, continued to represent the employees in the adjust-
ment of grievances, and: to conduct collective bargaining negotiations
with the Company. These negotiations have not,,however, resulted in
agreement upon the terms of a ' new' contract.
The I. A. M., by letter dated March 10, 1943, notified the' Company
that it represented a ,majority-of the machinists', maintenance me-
chanics, die makers and die setters, and their helpers and apprentices,
in the Company's 48th Street Plant ,'aild requested a bargaining con-_
ft rence. The Company, .by; letter of March 17, 1943, refused the
request and referred the I. 'A. M. to the Board: District 50, on April
13,1913, filed its'petition claiming as appropriate a general production
and maintenance unit, and oil April 19, 1943, the I. A. M. filed a second
amended petition alleging as appropriate the unit of skilled `workers
above-mehtioned'for which it claims representation.
A statement of the Acting Regional Director, introduced in evi-
dence at the hearing, indicates that the I. A. M., District 50, the Steel-
workers, and the Independent, each represents a 'substantial number
of employees in the unit which it alleges to be appropriate?
We find that a question affecting commerce has arisen concerning
the representation of employees of the` Company within the meaning
of Section 9 (c), and Section 2 (6) and (7)' of the Act.
IV. THE APPROPRIATE UNIT
District 50 and the Steelworkers are in accord in that each seeks
a- unit composed 'of all production and maintenance employees of the
The Acting Regional Director reported that the respective labor organizations sub-
mitted the following evidence in support of their claims of representation :
The I . A. M. submitted 15 authorization caress, all of which are dated In March, 1943,
and bear the apparently genuine original signatures of persons whose names are on the
Company's pay roll of April 8 , 1943 , containing the names of 22 employees within the
unit claimed by the I. A. M. to be appropriate.
District 50 submitted 155 membership cards, most of them bearing dates from January
to April 1943, of which 138 bear the apparently genuine original signatures of persons
whose names are on the Company's pay roll of April 8, 1943, containing the names of
353 employees in the unit claimed by District 50 to be appropriate . District 50 submitted
6 membership cards, 4 being dated in February 1943, and 2 undated, all bearing ap-
parently genuine original signatures of persons whose names are on the above -mentioned
pay roll in the unit claimed by the I. A. M.
The Steelworkers submitted 24 membership cards , 23 being dated in March 1943 and
1 in April 1943, all of which appear to bear genuine original signatures of persons whose
names are on the above -mentioned pa' toll in the unit claimed by the Steelworkers and
by District 50 to be appropriate. The Steelworkers submitted 1 membership card bearing
the apparently genuine original signature of a person whose name is on the above-
mentioned payroll in the unit claimed by the I A. M to be appropriate
The Independent submitted 262 inemheiship cards , 73 being dated in September and
October 1941 , and 189 undated, of which 142 bear the apparently genuine original signa-
tures of persons whose names are on the above -mentioned pay toll in the unit claimed
by District 50 to be appropriate . The Independent submitted 12 membership cards, 6
being dated in September 1941 and 6 undated, all of which bear the apparently genuine
original signatures of persons whose names are on the above-mentioned pay roll in the
unit claimed by the I . A M. to be appropriate.
CONTINENTAL CAN COMPANT, INC. 491
Company at its Plant #22, exglusive of guards and supervisory and
clerical employees. The I. A. M. seeks a unit composed of the
machinists, tool and die makers, maintenance mechanics, their appren-
tices and helpers, and die setters at Plant #22, excluding all other
employees. The Independent urges,a unit of production and main-,
tenance employees with the exclusions sought by the Steelworkers
and District 50; it would also exclude the employees claimed by the
I. A. M. The Company takes no position with resepect to the unit.
Of the 22 employees on the Company's pay roll in the unit claimed
by the I. A. M., 12 are machinists and tool and die makers who work
in the Company's machine shop, which is separate from the rest of
the plant, and spend the greater, part: of their time in the machine
shop, although they go out into the plant when needed to repair
machinery. These employees are under the, supervision of a machine-
shop foreman. Also sought by the I. A. M. are a pipe fitter, carpenter,
sheet metal worker, electrician, millwright, millwright helper, and 4 die
setters. As to this latter group of, employees, it appears that the die
setters work out in the plant and are supervised by production fore-
men, and that the others spend most of their time out in the plant and
are under the supervision of the foreman of the maintenance-depart-
ment. _ It does not appear that the interests of the die setters and the
others above-mentioned are sufficiently similar to those of the machin-
ists to constitute, with the machinists, a homogeneous, related group.
We shall therefore exclude them from the proposed machinists' unit.
At the hearing question arose concerning a draftsman whose name
appears on the company's pay roll as an employee in the machine
shop. He has had some technical training and works in the foreman's,
office adjoining the machine shop. We find that he is a technical em-
ployee and, in'accordance with the agreement of the parties to exclude
technical-employees, we shall exclude him from each of the proposed
units.
All watchmen employed by the Company at its Plant #22 are being
trained to bear arms and have been sworn in as members of the auxili-
ary military police. In accordance with the agreement of the parties,
and with our established practice of excluding armed or militarized
guards from a production unit, we shall exclude them' from each of
the units sought in this proceeding.
The circumstances presented are such-that the desires of the machin-
ists, including the tool and die makers, is the. principal factor in de-
termining whether they shall function as a separate unit or as part
of a larger industrial unit. Accordingly, we shall direct that separate
elections be held; one, among all machinists and tool and die makers
'of the Company at its Plant #22, to determine whether they desire to
be represented by the I. A. M., District 50, or the Steelworkers, for
the purposes of collective bargaining, or by none; and another, among
1
492 DECIISIIONIS OF NIAT1110N"AL LABOR RELATIONS BOARI)
the remaining production and.maintenance employees of the Company
at its Plant #22, exclusive of supervisory, clerical, technical, and plant-
protection employees, to determine whether they desire to be repre-
sented by District '50, the Steelworkers, or the Independent, for the
purposes of collective bargaining, or by none. The appropriate unit or
.units will depend in part upon the results of these elections. If the
machinists and tool and die makers select a bargaining representative
other than the representative selected by the remainder of the produc-
tion and maintenance employees, they will constitute a separate and
distinct appropriate unit. If they select the same representative as,
that selected by the remainder of the production and maintenance
employees, they will be combined with the latter into a single industrial
unit.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by separate elections by secret ballot among
the employees within the above-described categories, who were em-
ployed during the pay-roll period immediately preceding the date of
the Direction of Elections herein, 'subject to the limitations and addi-
tions set forth in the Direction.3
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations.
-,Board Rules and Regulations-Series 2, as amended, it is hereby
'DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Continental Can
Company, Inc., at its plant #22, Wheeling, West Virginia, elections
by secret ballot shall be conducted as early as possible, but not later
than thirty (30) days from the date of this Direction of Elections,
under the direction and supervision of the Regional Director for the
Sixth Region,,acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Section 10, of said Rules
and Regulations, among the employees within the categories set forth
below, who were employed by the Company during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during such pay-roll period because they were ill
or on vacation or temporarily laid off, and including employees in
the armed forces of the United States who present themselves in per-
3 The parties respectively requested that their names appear on the ballot as follows :
International Association of Machinists, Lodge 818; Local No. 12664, District 50, United
Mine Workers of America ; United Steelworkers of America, affiliated with the C. I. 0
and Can Workers Independent Union. The requests are hereby granted.
CONTINENTAL CAN COMPANY, INC. 493
son at &- polls, but excluding any who have since quit or been dis-
charged for cause:
(1) All machinists, tool and die makers, and their apprentices and
helpers, employed by the Company at its Plant #22, excluding
supervisory employees and draftsmen, to determine whether ' they
desire to -be represented by International Association of Machinists,
Lodge 818, by Local No,. 12664, District 50, United Mine Workers of
America, or by the United Steelworkers of America, affiliated with
the C. I. 0., for the purposes of collective bargaining, or by none of
said organizations;
(2) All production and maintenance employees of the Company
at its Plant #22, excluding machinists, tool and die makers, their ap-
prentices and helpers, draftsmen, and supervisory, clerical, technical,
and plant-protection employees, to determine whether they desire
to be represented by Local No. 12664, District 50, United Mine Work-
ers of America, by United Steelworkers of America, affiliated with
the C. I. 0., or by Can Workers Independent Union, fof the purposes
of collective bargaining, or by none of said organizations.
i