NATIONAL LABOR RELATIONS BOARD

United States Government

Region 2

26 Federal Plaza- Room 3614 New York, New York 10278-0104

Telephone:

Facsimile:

(212) 264-0300 (212) 264-2450

July 16,2010

Medal Container Corporation Attn: Dan Kimutus

130 Bruenig Road.

New Windsor, NY 12553

Re: Metal Container Corporation Case No: 2-RC-23515

Dear Sir/Madam:

You are requested to attend an informal conference in the above-captioned matter, which has been scheduled for July 22,2010 at 10:00 a.m., at this office. The purpose of the conference is to fully explore the possibilities of reaching an election agreement in this matter, in order to obviate the need for a formal hearing. All parties should be prepared to discuss and resolve any issues which might prevent the reaching of an election agreement. If it will be inconvenient for any party to come to this office for the conference, alternative locations will be considered.

In the event an agreement is not reached at the conference, a formal hearing in this matter has been scheduled for July 26, 2010 at 9:30 a.m., at this office. However, the parties are requested to attempt to secure an election agreement prior to the opening of the hearing, and at any appropriate time thereafter, prior to the issuance of any decision in this matter.

In the past, the informal conference and hearing have not always been scheduled for different dates. However, the enormity of the budget crisis facing the NLRB, and all other federal government agencies and departments, requires that we exert substantial efforts to reduce costs where possible. Therefore, with the goal of increasing the number of election agreements, reducing the number of formal hearings, and avoiding the payment of fees resulting from the cancellation of hearings after 2:00 p.m., on the business day prior to the scheduled day of hearing, the above-described procedures wilt take effect immediately.

The efforts of the public and, specifically, the labor bar, will contribute to the lessening of the serious, budgetary problems under which the NLRB presently is operating. Your cooperation is appreciated.

Very truly yours,

~ fl. ?itattbta

Celeste J. Mattina Regional Director

D)[§©rell~l§~
n JUL 1 9 2010
::J Attach:

cc:

International Brotherhood of Electrical Workers, Local Union #363 Attn: Samuel Fratto

67 Commerce Drive South Harriman, NY 10926

I

New York, NY 10278

United States Government

NATIONAL LABOR RELATIONS BOARD

Region 2

26 Federal Plaza, Room 3614

(212)264-0318

FAX (212)264-2450

www.nlrb.gov

July 16,2010

Medal Container Corporation Attn: Dan Kimutus

130 Bruenig Road

New Windsor, NY 12553

Re:

Metal Container Corporation 2-RC-23515

Dear Sir/Madam:

Enclosed is a copy of a Petition, pursuant to the provisions of the National Labor Relations Act, which has been filed with this office, and has been assigned to Stephen L. Berger (212)264-0318 and email address is Stephen.Berger@nlrb.gov.

Also enclosed is a copy of "Parties Involved In a Representation Petition," Form NLRB-4812, explaining the manner in which representation petitions are processed by this Agency.

It is the policy of the Agency that questions concerning representation be resolved promptly.

Because this is an integral part of our mission, these cases are prioritized and resolved as expeditiously as possible.

If the Board has jurisdiction, the parties may execute a standard agreement for an election fixing the date, time and place and the classifications to be included in the appropriate unit. All such elections are conducted by an agent of the Board. Absent unusual circumstances, an election will be conducted within 42 days from the filing of the Petition. Election procedures are outlined in the enclosed pamphlet. In the event there is no agreement for an election, a formal investigatory hearing may be held before a hearing officer of the Board.

Consistent with the Agency's efforts to ensure the expeditious resolution of questions concerning representation, please be advised that in the event it is determined that a formal investigatory hearing is necessary we anticipate conducting that hearing on the scheduled date or as soon after that date as is possible and practicable. A notice of hearing already has been issued or will very shortly be issued in this matter. Requests for the postponement of the hearing will be granted only for good cause and consistent with the requirements set forth in Form NLRB 4338, which is enclosed with this letter.' Requests for postponement which do not conform to these requirements will not be considered. For purposes of Section 102.114(d) of the Board's Rules and Regulations, I am granting advance permission to the parties to file postponement requests with me by facsimile transmission. The hearing, once commenced, will be conducted on consecutive days, until completed, unless the most compelling circumstances warrant otherwise. I am advising the parties of these requirements at this time so that they may begin their preparations for them.

I These requirements include that the request be submitted to the Regional Director in writing and that it set forth the positions of all the other parties regarding the request.

Attention is called to your right, and the right of any party, to be represented by counselor another representative in any proceeding before the National Labor Relations Board. In the event you choose to have a representative appear on your behalf, please have your representative complete "Notice of Appearance," Form NLRB4701. If you desire to designate a representative to receive all documents mailed by this office in this matter, you are requested to complete "Notice of Designation of Representative as Agent for S_ervice of Documents," Form NLRB-4813. Both forms should be returned to this office as soon as possible. In view of OUT policy of processing these cases expeditiously, I anticipate that in the event you exercise yOUT right to be represented by counselor another representative you will do so promptly.

Pnior to conducting a formal hearing, the staff member named above, who has been assigned to this matter, will be in contact with the parties to explore the issues and, if appropriate, to obtain an election agreement. If these contacts do not result in an election agreement, every effort will be made to conduct an informal conference, in person or by telephone, no later than 24 hours before the scheduled formal hearing. At this conference, the Board agent will explore all of the issues raised by the Petition in an effort either to obtain an election agreement or narrow the issues which will be litigated at the hearing. It has been our experience that these informal conferences can be extremely useful in helping us in these regards, and that it is in the mutual interest of all parties, as well as the Agency, to explore fully all potential areas of agreement in order to eliminate or limit, to the extent possible, the significant costs associated with litigation. I encourage the parties to share all available information at this conference. The Board agent or assigned hearing officer will also explore the possibility of reaching an understanding as to the general nature of the evidence to be presented at the hearing if it is necessary, as well as the order of presentation. Please note that it is expected that each party will be responsible for presenting witnesses to testify in support of its position with regard to all issues to be raised at any hearing. Finally, in order to save time and expense should a hearing be necessary, the Board agent will also prepare appropriate written stipulations for execution by the parties with respect to those issues which are not in dispute and which, upon approval by the parties, may either be read into the record during the hearing or introduced as exhibits.

In order to assist us in our investigation of the Petition, please submit the following information immediately:

I. The full and correct names of the Union and the Employer.

2. An alphabetized list of employees described in the Petition together with their job

classifications, for the payroll period immediately preceding the filing date of the Petition. (See Item 5 of Petition.) This list is to be used to resolve possible eligibility and unit questions as well as to determine the adequacy of the Petitioner's showing of interest.

3. Commerce information, which may be furnished on the enclosed "Questionnaire on

Commerce Information," Form NLRB-5081.

4. Copies of correspondence and existing or recently expired contracts, if any, covering

employees in the unit alleged in the Petition. Names of any other labor organization(s) claiming to represent any of the employees in the proposed unit or who have otherwise demonstrated an interest in such representation of their employees within the past two years. Any failure to disclose to this office the existence of a potentially interested party may affect the processing of the Petition to a final conclusion.

5. Your position as to the appropriateness of the unit.

It has been our experience that the exchange of information made possible by providing the list of employees requested in paragraph 2 above to all parties to the case is an excellent aid in resolving many of the eligibility and unit questions that arise during case processing. Accordingly, I encourage you to provide the list as requested in paragraph 2, and to permit me to provide the list to the other parties. This list should

be submitted to this office promptly if the Employer intends to request a check of the sufficiency and validity of the Petitioner's showing of interest. If the Employer does not promptly submit this list, this office will assume the Petitioner's estimate of the unit's size is accurate and that those individuals who signed the Petitioner's showing of interest are unit employees. A late-filed list submitted by the Employer will be considered untimely and no checking of the Petitioner's showing of interest based thereon will be made, absent unusual circumstances. Please state in your return correspondence whether you intend to provide the list and whether I may provide it to the other parties.

Please be advised that in addition to the list of employees requested in paragraph 2 above, in the event an election is agreed to or directed in this case, a list of the full names and addresses of all the eligible voters must be filed by the Employer with the undersigned, who will in tum make it available to all parties to the case. The list must be furnished to the undersigned within seven (7) days of the direction of election or approval of an agreement to conduct an election. I am advising you now of this requirement so that you have ample time to prepare for the eventuality that such list may become necessary.

It has been our experience that by the time a Petition such as this one has been filed, employees may also have questions about what is going on and what may happen. At this stage in the handling of this case, we, of course, do not know what disposition will be made of the Petition, but experience tells us that an explanation of rights, responsibilities and Board procedures can be helpful to your employees. The Board believes that employees should have readily available to them information about their rights and the proper conduct of employee representation elections. At the same time, employers and labor organizations should be apprised of their responsibilities to refrain from conduct which could impede employees' freedom of choice. Accordingly, the Employer is requested to post the enclosed Notice to Employees, Form NLRB- 5492, in conspicuous places in areas where employees such as those described in the enclosed Petition work. Please advise me where in your facility you have posted the notice. Copies of this notice are also being made available to the labor organization(s) involved. In the event an election is not conducted pursuant to this Petition, the Employer is requested to remove the posted notice. In addition, I am enclosing a copy of the pamphlet, "Your Government Conducts an Election" (Spanish version available). Additional copies of the pamphlet for distribution to employees and to supervisory personnel will be furnished upon request.

If the Petition was filed by a labor organization, or an employee or group of employees, the party filing should submit its dated showing of interest or any additional showing of interest it wishes to submit to our office within 48 hours. If the Petition was filed by an employer, it should submit its proof of demand for recognition made by a labor organization(s) or its evidence of objective considerations, whichever pertains, or any additional such proof or evidence it wishes to submit to our office within 48 hours.

Also enclosed is a copy of the Board's rule concerning the Employer's obligation to post the Board's official Notice of Election for three (3) full working days prior to the date of the election, should the processing of this Petition result in an election.

Please be further advised that under the Freedom of Information Act, unfair labor practice charges and petitions of all types are subject to prompt disclosure to members of the public upon request. In this regard, you may have received or may receive a solicitation by organizations or persons who have obtained public information concerning this matter and who seek to represent you before our Agency. You may be assured that no organization or person seeking your business has any "inside knowledge" or favored relationship with the National Labor Relations Board; their information regarding this matter is only that which must be made available to any member of the public,

Customer service standards concerning the processing of representation cases have been published • by our Agency and are available on our Agency's website at www.nlrb.govunder Public Notices.

Very truly yours,

8e/e4te p. ?Itattuta

Celeste J. Mattina Regional Director

Enclosures:

International Brotherhood of Electrical Workers, Local Union #363 Attn: Samuel Fratto

67 Commerce Drive South Harriman, NY 10926

FORM NLRB 4338 (6-90)

UNITED STATES GOVERNMENT

2-RC-23515

The issuance of the notice of formal hearing in this case does not mean that the matter cannot be disposed of by agreement of the parties. On the contrary, it is the policy of this office to encourage voluntary adjustments. The examiner or attorney assigned to the case will be pleased to receive and to act promptly upon your suggestions or comments to this end. An agreement between the parties, approved by the Regional Director, would serve to cancel the hearing.

However, unless otherwise specifically ordered, the hearing will be held at the date, hour, and place indicated. Postponements will not be granted unless good and sufficient grounds are shown and the following requirements are met:

(1) The request must be in writing. An original and two copies must be filed with

the Regional Director when appropriate under 29 CFR 102.16(a) or with the Division of Judges when appropriate under 29 CFR 102. 16(b).

(2) Grounds must be set forth in detail;

(3) Alternative dates for any rescheduled hearing must be given;

(4) The positions of all other parties must be ascertained in advance by the

requesting party and set forth in the request; and

(5) Copies must be simultaneously served on all other parties (listed below), and that

fact must be noted on the request.

Except under the most extreme conditions, no request for postponement will be granted during the three days immediately preceding the date of hearing.

Medal Container Corporation Attn: Dan Kimutus

130 Bruenig Road

New Windsor, NY 12553

International Brotherhood of Electrical Workers, Local Union #363 Attn: Samuel Fratto

67 Commerce Drive South Harriman, NY 10926

FORM EXEMPT UNDER 44 U.S.C.

INTERNET FORM NLRB-502 (2~

UNITED STATES GOVERNMENT NATIONAL LABOR RELATIONS BOARD PETITION

Case No. I Date Fned

2-RC-23515 7/15/10

DO NOT WRITE IN THIS SPACE

Cell No. 8452167023

INSTRUCTIONS: Submit an original of this Petition to the NLRB Regional Office in the Region in which the employer concerned Is located.

The Petitioner alleges that the following circumstances exist and requests that the NLRB proceed under its proper authority pursuant to Section 9 of the NLRA.

1. PURPOSE OF THIS PETITION (if box RC. RM, or RD Is chedced and a charge under SectIon B(b){7) of the Ad. has been filed involving the Employer named herein, the statement following the description of the type of psIition shal nat be deemed made.) (Check One)

o RCCERTlFlCATlON OF REPRESENTA11VE - A substanfiaI number of employees wish to be repJ8Sented for purposes of coUedi\Ie bargaining by PetitiQner and PetiIIoner desires to be certified as represenlalive of the employees.

o RM-REPRESENTA TlON (EMPLOYER PE11TION) - One or more individuals or labor organizations Mve pf8Sented a daim to Peti6onerto be feCOQnized as the

representative of employees of Petitioner.

O RIJ.OECER11FlCAlION (REMOVAL OF REPRESENTA11VE) - A substantial numbar of employ_ assert tilat the certified or eulltllltly reeognlad bargaining representative Is no longer 1fteir representative.

O UDWIlHDRAWAL OF UNION SHOP AUTHORITY (REMOVAL OF OBUGA lION 10 PAY DUES) - Thirty perce!1t (30%) or more of employees in a bargaining ullit covered by an agreement between their employer and a labor organization desire thai sucI1 authority be rescinded.

o UC-UNIT CLARIFICATION- A labor organizalion is cu!TelTlly recognized by Employer. but PetItioner seeks clarification of plaannent of certain employees:

(Check one) 0 In unit not previOUsly certified. 0 In unit previously certified in Case No. _

o AC-AMENDMENT OF CER1IFlCATlON- Petitioner seeks amendment of certi:II<:aIIon issued In case No. _

Attach statement describing the specific amendment sought.

2. Name of Employer I Employer Representative to contact

Metal Container Corporation Mr. Dan Kimutus

• 3. Addressees) of ESlaDiIShmenf(S) inVOlved (street aru:t nwntJer, aty. ~'tate. ZIP code) 130 Bruenig Road, New Windsor, N.Y. 12553

Tel. No.

8455671500

Fax No.

8455671522

4a. Type of Establishment (Factory. mine, wholesaler, etc.) 14b. Identify prfnclpal produd. or servioe

Manufacturing Plant I Metal Cans

Ceil No.

~ail

5. Unit Involved (In UC pelifion, desClitJe pr8$8nt balg-alning unit and attach desctiplion of ptI;IpOIled dalfflca!ion.)

I~W=uction and maintenance employees employed at the New Windsor plant.

Exeluded

All professional employees, guards, office, clerical and managerial employees at the New Wmdsor plant

Sa Number of Employees in Unit

Present 150

Proposed (By UClAC)

16b. Is IhIS ~~1Jy_ ~ormore oftne ~--------~--~----------------~~~---- __ --------~~------------~~~~~r.nY~[JNO

(If )'01,1 have ctrecked boX RC in f above, checIc and complete EITHER llem 7a or 7b, whichever is eppRcable) "N~RM, ut.'i'd AC

7a. 0 Request for recognition as Bargalnlng Representative was made on (Date) ... B~v~th~is~pe~Iitio~· :;.n-=-=::;- Im: .. ~~ _a;-~mploy,_! decli,~!ld

f8C0Qnition on or about (Date) (If nO IBPIY rec:eived. &0 state). ;'J,= ,-- r, -,'

7b. 0 Petilioner is eurrently recognized as Bargaining Representative and desires oertifiealion under the Ad.. -< :_ C) ~ ';":;

Address

Tel. No.

8. Name of Recognized or Certified Barganing Agent (If nOlle, so slate.) Affiliation a

::;0 ;:a::

Date of Recogniti~ Certittdition ......

!..,C-el-,-No.-------I Fax No.

-< 1el¥Jii1 18

9. Expiration Date of Current Contract. If any (Month, Day, Year.!

11a. Is there now a strike or picketi"t!!. the Employe~s establishment(s)

Inwlved? Yes U No III

l' o. If you have ch~ box UD In 1 above. show here the date of exe<:Ulion of agreement granting union shop (Month. Day and Year,!

_1" b. If so. approximately how many employees are participating?

11c. The Employer has been picketed by Dr on behalf of (fnset1Name) ,a labOr

organization, of (Insert Address)

Since (Month, Day, Year)

12. Organizatlom; or individuals other than Petitioner (and other than those named in items 8 and 11C). which have dalmed f8C0Qnition as representatives and other organizalions and individuals known to have a rePfBSBfllalive interast in any employees in unit described in item 5 above. (If none, so stale)

13. FuH name of party filing pelition (If labor organization, give full name, induding local name and number) Intemational Brotherhood of EleClrlcal Workers, Local Union # 363

Cell No.

Name Address Tel. No. Fax No.

e-Mail

14b. Tel. No. EXT

8457833500

14&. Address (street and number, city, slate, and ZIP code) 67 Commerce Drive South, Harriman, N.Y. 10926

14c. Fax No.

8457833555

14&. e-Mail SFralto@ibewtu363.OIll

15. Full name of national Dr intemallonallabor organization of whieh PeIiIIoner is an affiliate Dr oonstiluent (to be ,mad in when petition is filed by a labor organization) Intemational Brotherhood of Elecbical Workers {AFL-Cl0

I declare tilat I have read the above petition and tilat tIl.e statements are bue to tile best of my knowledge and belief.

Name (':"'.EtI I Signature C.1 " /, A .f:I...r

Samuel Fratto Date 7-14-10 J "- 111.,,,, yv TV~

Tille (ifany)

Sr. Asst. Business Manager

Address (street and number; city, state, and ZIP code) 67 Commerce Drive South, Harriman, N.Y. 10926

Tel. No. 845 783 3500

Fax No. 845 783 3555

·019

WILLFUL FALSE STATEMENTS ON THIS PETlllON CAN BE PUNISHED BY FINE AND IMPRISONMENT (U.S. CODE, TITLE 18, SECTION 1001)

eMail v,

PRIVACY ACT STATEMENT

Solicitation of the infonnation on this fonn is authorized by the National Labor Relations Ar;t (NLRA), 29 U.S.C. § 151 et seq. The principal use of the information is to assist the National Labor Relations Board (NLRB) in jlrocessing unfair labor praclice and related pioceecfmgs or litigation. The routine uses for the information are fully set forth in the Federal Register. 71 Fed. R!llj. 74942-43 (Dec. 13, 2006). The NLRB will further explain these uses upon request. Disclosure of this information to the NlRB is voluntary; however, failure to supply the information will cause the NLRB to decline to invoke its processes.