National Gypsum Co.

National Labor Relations Board - Board Decisions

Sep 23, 1975

220 N.L.R.B. 551 (N.L.R.B. 1975)

NATIONAL GYPSUM COMPANY 551
National Gypsum Company and United Cement, Lime
and Gypsum Workers International Union. Case
28-CA-3366
September 23, 1975
All parties have been afforded full opportunity to ap-
pear, to introduce evidence, to examine and cross-examine
witnesses , and to file briefs. Based upon the entire record,
upon the briefs filed on behalf of the parties, and upon my
observation of the demeanor of the witnesses, I make the
following findings of fact and conclusions of law.
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 16, 1975, Administrative Law Judge Wil-
liam J. Pannier III issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record I and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, National Gypsum Com-
pany, Phoenix, Arizona, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
1 Inasmuch as the record herein, as well as the briefs of the parties, ade-
quately present all issues to be decided, Respondent's request to argue oral-
ly before the Board is hereby denied.
DECISION
1. STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge: This
matter was heard by me in Phoenix, Arizona, on March 11,
1975. On January 31, 1975, the Director for Region 27 of
the National Labor Relations Board issued a complaint
and notice of hearing based on an unfair labor practice
charge filed on November 29, 1974,' alleging violations of
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called
the Act.
Unless otherwise stated , all dates occurred in 1974.
II. JURISDICTION
Respondent has been at all times material a corporation
duly organized under and existing by virtue of the laws of
the State of Delaware, has maintained its principal office
and place of business in Buffalo, New York, and has been
engaged in the business of manufacturing home-building
products in facilities located in various States of the United
States, including a plant located at 1414 E. Hadley Street,
Phoenix, Arizona. During the past 12-month period, which
is representative of its annual operations, Respondent, in
the course and conduct of its business operations, sold and
shipped goods and materials valued in excess of $50,000
from its Arizona facilities directly to States of the United
States other than the State of Arizona. During this same
period of time, Respondent purchased goods and materials
valued in excess of $50,000, which were shipped to its Ari-
zona facilities directly from States of the United States
other than the State of Arizona.
Therefore, I find that Respondent is, and has been at all
times material, an employer within the meaning of Section
2(2) of the Act, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
III. THE LABOR ORGANIZATION INVOLVED
United Cement, Lime and Gypsum Workers Interna-
tional, Local Union No. 242, herein called the Union, has
been at all times material herein a labor organization with-
in the meaning of Section 2(5) of the Act.
IV. ISSUES
A. Whether the Union has been the collective-bargain-
ing representative of employees employed in Respondent's
production engineering group?
B. Whether Respondent withdrew recognition from the
Union as the collective-bargaining representative of em-
ployees employed in the production engineering group
and, if so, whether Respondent thereby violated Section
8(a) (5) and (1) of the Act?
V. SEQUENCE OF EVENTS
Respondent occupies a lot at the corner of East Hadley
Street and Fourteenth Place in Phoenix, Arizona, on which
are located a home building products manufacturing plant
and a machine shop. Approximately 120 miles from Phoe-
nix, at a location 9 miles south of Winkleman, Arizona,
Respondent operates a gypsum quarry. These are the facili-
ties which are significant for this proceeding.
In 1959, Respondent purchased the quarry and manu-
facturing plant from United Gypsum. The machine shop
did not exist at that time. In 1965, a decline in work at the
220 NLRB No. 95
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufacturing plant led Respondent to experiment by as-
signing skilled maintenance personnel to manufacture cer-
tain equipment for use in Respondent 's Buffalo, New
York, facility in lieu of laying off these skilled workers.
Pleased with the results of this experiment , Respondent
continued to assign this type of work to these employees
who performed their work in the manufacturing plant until
1968 when , pressed for space in that structure , Respondent
constructed the machine shop. Since 1968, these employ-
ees, known as the production engineering group , have per-
formed most of their duties in the machine shop.
The distance between the two structures on the corner
lot was estimated to be between 100 feet and 75 yards, with
a fence separating them and with each having its own park-
ing lot, locker room, washrooms , and entrances . The ad-
dress of the manufacturing plant is 1414 East Hadley
Street and that of the machine shop is 550 Fourteenth
Place . Operations in the manufacturing plant involve re-
ceipt of gypsum from the quarry followed by either the
preparation and sale of ground gypsum as land plaster or
the calcination and preparation of the gypsum for plasters
and/or use in gypsum lath or wallboard . Operations in the
machine shop involve the design , fabrication , and installa-
tion of specialized equipment and machinery ; originally
for Respondent's facilities , but evolving to the point where
equipment is designed and fabricated for firms in other
industries . Employees in the two structures perform their
duties using their own tools, machinery , and equipment
which differ to the extent that the operations in the two
buildings differ.
There is separate immediate and intermediate supervi-
sion of the employees in the two buildings. Thus , the pro-
duction engineering group is part of Respondent 's engi-
neering operations , whereas the manufacturing plant
employees are part of manufacturing operations , with the
result that the lowest level of common supervision occurs
at the level of Division Vice President J. B. Proctor, to
whom report the vice president of engineering and the vice
president of manufacturing. Shop Manager Leo Merkley
appears to be the immediate supervisor of the production
engineering group and he reports to Chester R. Nowick,
director of engineering for the 3-year period preceding the
hearing, who, in turn, reports to the vice president of engi-
neering . Conversely, Plant Manager John Pitts reports to
the director of manufacturing who, in turn, reports to the
vice president of manufacturing. Similarly, administrative
functions for the two groups of employees are handled sep-
arately as shown by the existence of separate office manag-
ers, payrolls, petty cash funds, pension plans, administra-
tion of workmen's compensation and group insurance
claims, EEOC compliance plans, and OSHA compliance
schedules.
As is obvious from the description of commencement of
machine shop operations, the production engineering
group was initially staffed by employees from the manu-
facturing plant . Since commencement of operations, how-
ever, there has been a separation of the hiring of employees
for the two facilities and an effort has been made to avoid
permanent transfers of employees between the two build-
ings, similar to the arrangement whereby transfers between
the manufacturing plant and the quarry are discouraged.
Nonetheless, the record does disclose that two part-time
employees, who were teachers working only during the
summer months, did originally begin working in the manu-
facturing plant and then worked in the machine shop. Be-
yond this, prior to his retirement in approximately 1972,
cleanup man Zenith Palmer performed his duties in both
buildings. Approximately once a month, for an average to-
tal of approximately 20 hours a year, production engineer-
ing group employees perform work in the manufacturing
plant, either installing equipment which they have designed
and fabricated, or helping out when an emergency has oc-
curred in the plant. When operations are slow in the manu-
facturing plant and busy in the machine shop, employees
from the manufacturing plant have worked in the machine
shop and Nowick testified that somewhat less than 70
hours in 1973 and less than 100 hours in 1974 were spent in
such temporary work by plant employees in the machine
shop.
When Respondent commenced operating the quarry and
manufacturing plant in 1959, the Union was the represen-
tative of the employees in a single overall bargaining unit
encompassing both facilities. Respondent continued to rec-
ognize the Union as the bargaining representative in that
unit ; executing successive collective-bargaining agree-
ments , the latest of which were executed in 1967, 1969,
1971, and, the current agreement, in 1973, having a stated
termination date of March 31, 1975, with provision for an-
nual renewal absent written notice by either party of intent
to alter, modify, or terminate the agreement. Article VIII,
section 2, of the 1967 agreement provided for negotiations
to establish wage rates for new job classifications created
during the term of the agreement and, accordingly, in 1967,
Respondent advised the Union of its intention to relocate
the production engineering group, of its desire to staff the
production engineering group with maintenance employees
represented by the Union, and of its willingness to extend
the coverage of the collective-bargaining agreement to the
production engineering group. Since a collective-bargain-
ing agreement was then in existence , the parties negotiated
wage rates for the classifications that would be newly cre-
ated and these classifications were then included in the
1969 collective-bargaining agreement: "Clean-Up Labor
(Plant and Shop)" in Bracket 2, "Mechanic Trainee
(Shop)" in Bracket 6, "Mechanic 'C' (Shop)" in Bracket 11,
"Mechanic 'B' (Shop)" in Bracket 13, "Mechanic 'A'
(Shop)" in Bracket 17, and "Head Electrician & Mech.
(Shop)" in Bracket 23. These types of classifications were
listed in the two succeeding collective-bargaining agree-
ments, although Nowick characterized them as "a histori-
cal carry over" which continued to be listed in 1973 be-
cause of an oversight. Nonetheless, Plant Manager Pitts
admitted that Respondent considered the Union to be the
representative of the production engineering group em-
ployees in the 1969 and 1971 negotiations. Indeed, the re-
cord discloses that these employees were treated as being
included in the collective-bargaining unit and as being cov-
ered by these two collective-bargaining agreements. Thus,
in late 1969 or early 1970, the Union's then-President Da-
vid B. Hart met initially with Production Superintendent
Hakes and subsequently with then-Director of Engineering
Sptiz concerning various trip expenses of employees in the
NATIONAL GYPSUM COMPANY
production engineering group for periods when they were
on assignment installing equipment fabricated in the ma-
chine shop . Although there was no written grievance con-
cerning this matter , it was resolved at the first step of the
grievance procedure which , under the 1969 collective-bar-
gaining agreement , specified oral presentation of the griev-
ance at the first-step level . A written grievance was, howev-
er, filed in June 1971 concerning the discharge of "B"
mechanic Michael Feist who had been discharged while on
assignment installing machinery at Respondent 's Milton,
Pennsylvania , facility . This matter was ultimately resolved
by Feist's reinstatement . In fact, Hart testified that prior to
cessation of office -holding in the Union , Respondent had
always been willing to meet with him regarding the produc-
tion engineering group and that prior to hiring new em-
ployees for that group , Respondent had always first met
with him . Another illustration of Respondent 's treatment
of the production engineering group as part of the overall
bargaining unit occurred during negotiations for the 1971
agreement when Respondent locked out all of the employ-
ees in the bargaining unit , including the production engi-
neering group.
The genesis of the dispute giving rise to the instant mat-
ter occurred in late 1972 when, following his assignment to
handle upcoming negotiations for the Union, International
Representative Kent Weaver discovered that the former
union members in the production engineering group had
terminated their membership in the Union and that none
of the new employees were joining the Union . Weaver con-
tacted Pitts and, explaining the situation with respect to the
absence of members among the production engineering
group , secured permission to address these employees on
Respondent's premises . On March 7 , 1973, when negotia-
tions opened for a new agreement , Weaver and Joe Cam-
pagna testified that Pitts initiated the meeting by observ-
ing that there were no production engineering group
employees on the Union's employee -committee and by
asking if this meant that the Union did not represent those
employees, to which Weaver replied that this meant only
that none of those employees had been elected to the com-
mittee . Weaver testified that, as the day progressed, he be-
gap ,to be concerned about Pitts' question, which he had
originally taken only lightly, and so, both he and Campag-
na testified , he asked Pitts if there was any question regard-
ing the Union's status as the representative of the produc-
tion engineering group employees and Pitts replied that
there was no problem and that Respondent acknowledged
that the Union represented these employees ; looking as he
said this at Respondent 's industrial relations representa-
tive, Ray Grob, who made no comment.
Both Pitts and Grob appeared as witnesses, with the lat-
ter testifying that at this meeting Pitts initially asserted that
Respondent felt that the Union did not represent the pro-
duction engineering group and that Roy Thieme 3 immedi-
ately retorted that the Union should not have to represent
these employees since none of them were members, but
that Weaver immediately interjected , "We represent all
2 Coordinator for the Industrial Union Department of the AFL-CIO,
assigned to participate in these negotiations.
3 Either president or recording secretary of the Union at that time.
553
employees." Pitts, according to Grob, then inquired why
there were no employees on the employee-committee from
the machine shop and Weaver replied that none had been
elected. Grob testified that he had no recollection of any
more discussion concerning the representation of the ma-
chine shop employees arose but once during the 1973 nego-
tiations and that this occurred when the negotiations com-
menced, as a result of the fact that this was the first time
that the Union had utilized an "extended committee" (one
on which a number of employees sat as members) which
had led him to ask who represented the production engi-
neering group. Pitts testified that Thieme responded, "We
don't," but Weaver immediately said, "But, I do." Pitts
testified that he made no further issue of the fact that
Weaver intended to represent the machine shop employees,
although he subsequently testified that during the meeting
he had said that it was his position that the Union did not
represent the production engineering group to which the
union representatives had made no response. However, he
did not specify precisely at what point he made this com-
ment during the course of the meeting, nor did either Grob
or he deny Weaver and Campagna's testimony that he
(Pitts) had agreed that the Union represented the produc-
tion engineering group in response to Weaver's specific
question concerning the matter. While the agreement that
was ultimately signed made no specific mention of either
the production engineering group or of the machine shop
in the recognition clause, article VIII, Section 1 does pro-
vide: "The wage brackets, job titles and wage rates for all
job classifications within the bargaining unit incorporated in
Exhibit C are made a part of this Agreement." (Underscor-
ing supplied) Listed among the job classifications in Exhib-
it C are the following classifications which are concededly
production engineering group classifications: "Temporary
Labor (Plant and Shop)" in Bracket 1, "Clean Up Labor
(Plant & Shop)" in Bracket 2, "Mechanic Trainee (Shop)"
in Bracket 6, "Mechanic `B' (Shop)" in Bracket 13, "Me-
chanic `A' (Shop)" in Bracket 17, "Mechanic `AA' (Shop)"
in Bracket 21, and "Head Electrician & Mechanic (Shop)"
in Bracket 25.
Pitts did not deny Weaver's testimony that September
25, during a meeting concerning manufacturing plant
grievances , Pitts had asked what effect layoffs in strict se-
niority would have upon the employees in the machine
shop, Weaver had replied that the senior employees had
seniority over junior employees without regard to which
building they were working in, and when Weaver then
asked specifically if Pitts did not recall agreeing during the
1973 negotiations that the production engineering group
was represented by the Union, the latter replied, "Yes, I
did. We agreed to that."
Unable to resolve the grievances at the September meet-
ing, the parties met on November 18 and, during the
course of this meeting, the subject of the production engi-
neering group was raised. Weaver testified that Director of
Engineering Nowick inquired regarding the basis for the
Union's contention that these employees were covered by
the contract and that he had replied that Respondent had
agreed on this during the 1973 negotiations, reciting in re-
sponse to Nowick's further question the substance of his
conversation with Pitts during the March 7, 1973, bargain-
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing session , in which Pitts had agreed that the Union repre-
sented the machine shop employees . Weaver testified that,
when he completed this recitation , he turned to Pitts, ask-
ing if this was not correct and that Pitts replied, "Yes,
that's correct ." Pitts denied specifically that he had agreed
when Weaver asked him this question , testifying that he
had remained silent and had not answered Weaver's ques-
tion, although Pitts did concede that Weaver had correctly
testified concerning the statements which he (Weaver) had
made . Grob testified only that when the discussion of the
grievances of the plant employees had culminated, com-
ments were made relative to other grievances concerning
the right of employees in the manufacturing plant to bump
into the production engineering group and that there had
been a general discussion during which he had told Weaver
that Respondent's position was that the Union did not rep-
resent the employees in the shop , to which Weaver replied
that he intended to file charges with the Board . Nowick
testified that when the subject arose , of manufacturing
plant employees bumping less senior employees in the ma-
chine shop , he had stated that he did not think that the
machine shop was represented by the Union , as he under-
stood that none of those employees were members of the
Union . Nowick further testified that he did not "hear any
member of Management that was represented at that meet-
ing reiterate or agree that the employees in the Production
Engineering Group were covered under the terms of the
labor Agreement."
The meeting ended with Nowick agreeing to notify the
Union of Respondent 's position on the scope of the unit.
Although no such notification was forthcoming , Nowick
testified that Respondent does not recognize the Union as
the representative of the production engineering group.
VI. ANALYSIS
A. Whether the Union Has Been the Collective-Bargaining
Representative of Employees Employed in Respondent's
Production Engineering Group
There is no dispute regarding the fact that the produc-
tion engineering group was staffed initially by employees
from the manufacturing plant whom the Union repre-
sented . Moreover, it is admitted that , as a result of discus-
sions conducted when the machine shop was being erected
and the production engineering group being relocated to
that structure , Respondent agreed to treat the production
engineering group as part of the existing bargaining unit
for which the Union was the bargaining representative.
Thereafter , it is admitted , Respondent treated the Union as
the representative of these employees in both the 1969 and
1971 negotiations and they were covered under the 1969
and 1971 agreements . The effect of this conduct was to
merge the production engineering group into the existing
unit so that by the time that negotiations commenced in
1973 the Union was the bargaining representative for a
single overall unit encompassing the quarry, the manufac-
turing plant , and the production engineering group located
in the machine shop . See W, T. Grant Company, 179 NLRB
670 (1969).
While Respondent asserts that it specifically disavowed
recognition of the Union as the representative of the pro-
duction engineering group at the March 7 , 1973, negotiat-
ing session , I credit the testimonies of Weaver and Cam-
pagna concerning what transpired at that meeting when
the subject of the production engineering group was raised.
Both Weaver and Campagna appeared to be honest indi-
viduals who were relating to the best of their abilities the
conversation that occurred at that meeting . Moreover, the
1973 agreement provides specific wage rates for production
engineering group classifications and I do not credit the
testimony that the inclusion of these wage rates was mere
oversight. That could have happened had the provision
been one which did not change from the previous contract,
but it can hardly be argued that a wage provision listing
changes from the preceding contract rate represents an ov-
ersight. While it is true that the recognition clause of the
1973 agreement makes no mention of the production engi-
neering group or of the machine shop , this is hardly diapo-
sitive of the matter in light of the fact that the recognition
clause of the prior agreements did not provide for this
group of employees even though Respondent conceded
that it had been treating the Union as the representative of
these employees . Finally , the Union would have nothing to
gain by acquiescing in Respondent 's withdrawal of recog-
nition for almost 2 years before making an issue of the
matter by filing a charge . Such a delay would not benefit
the Union and the Union would run the considerable risk
of losing its right to act as the representative of these em-
ployees by such a delay . Conversely, Respondent did have
a motive for withdrawing recognition in November, for at
that time the Union began asserting the right of more se-
nior manufacturing plant employees to displace their less
senior colleagues in the machine shop , thereby potentially
disrupting an operation which was expanding and with
which Respondent appears to have been most pleased. In-
deed , this was the very matter discussed at the November
18 meeting which appears to have precipitated Nowick's
challenge to the Union's representative status for the pro-
duction engineering group . Therefore , I find that Respon-
dent did agree at the March 7, 1973, negotiating session
that the Union was the representative of the employees in
the production engineering group and that Respondent did
continue to treat those employees as included in the overall
bargaining unit represented by the Union . Not until No-
vember did Respondent voice an objection to the Union's
representation of the employees in the machine shop.
Therefore , I find that the production engineering group
has been merged into the same unit as the manufacturing
plant and quarry by virtue of Respondent 's history of bar-
gaining with the Union and, accordingly , that the Union
has been the representative of all employees in that unit,
including those assigned to the production engineering
group.
B. Whether Respondent Withdrew Recognition From the
Union as the Collective -Bargaining Representative of
Employees Employed in the Production Engineering Group
and, if so, Whether Respondent Thereby Violated Section
8(a)(5) and (1) of the Act
I have found above that Respondent did not withdraw
NATIONAL GYPSUM COMPANY 555
recognition from the Union as the representative of the
production engineering group in March 1973 and, further,
that these employees were covered under the collective-
bargaining agreement signed as a result of those negotia-
tions . The stated termination date of that agreement is
March 31, 1975. While Respondent may not have been
observing it in all respects insofar as applying its terms and
conditions of employment to the production engineering
group, it is clear that there was no clear withdrawal of
recognition until November during the grievance meeting
when a dispute arose concerning the right of manufactur-
ing plant employees to displace less senior machine shop
employees. Accordingly, Respondent withdrew recognition
at a time when there was a collective -bargaining agreement
in existence and the Board has stated that, "By virtue of
the existence of the contract, the Union was entitled to
exclusive recognition for at least the term of the contract"
Shamrock Dairy, Inc., 124 NLRB 494, 496, enfd. sub nom.
International Brotherhood of Teamsters, etc., Local Union
No. 310, 280 F.2d 665 (C.A.D.C., 1969), cert. denied 364
U.S. 892. Consequently, by withdrawing recognition from
the Union as the bargaining representative of the produc-
tion engineering group during the term of a collective-bar-
gaining agreement encompassing those employees, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
Even when the contract expires, Respondent would still
violate Section 8(a)(5) and (1) of the Act by withdrawing
recognition for only the machine shop employees, for the
production engineering group had become merged into the
overall bargaining unit which included the employees at
the quarry and in the manufacturing plant. In these cir-
cumstances, a question concerning representation can only
be raised in the overall bargaining unit-not in a segment
of that unit, without regard to the manner in which that
segment may have become a part of the overall bargaining
unit . See Gem International, Inc., 202 NLRB 518 (1973).
Thus, while Respondent has argued that many factors exist
which might support a finding that the production engi-
neering group could constitute a separate appropriate unit,
such an analysis would be applicable only if a determina-
tion of this question were being made de novo. Here, how-
ever, there has been a history of bargaining for these em-
ployees as part of an overall bargaining unit. That history
arose as a result of Respondent's recognition of the Union
as the representative of the production engineering group
at a time when the employees in that group were in fact a
part of the Union's then-existing bargaining unit, and that
history has been of substantial duration; unlike the situa-
tion presented in Westinghouse Electric Corporation v. N.L.
R.B., 506 F.2d 668, (C.A. 4, 1974), cited in Respondent's
brief. Absent evidence of repugnancy to Board policy or of
an effect which hampers employees in fully exercising
rights guaranteed by the Act, the Board will not disturb
units established by collective bargaining . West Virginia
Pulp and Paper Co., 120 NLRB 1281, 1284 (1958). In the
instant case there is no contention that an overall unit of
quarry, manufacturing plant, and machine shop employees
is repugnant to Board policy or that it is so constituted as
to hamper employees in fully exercising rights guaranteed
by the Act. Nor would the record support such conten-
tions, if made. Accordingly, the fact that the production
engineering group might constitute a separate appropriate
unit if there were to be a de novo determination of the
matter does not accord Respondent a right to withdraw
recognition from an incumbent representative for but a
portion of an overall bargaining unit in which there has
been a a history of bargaining. Similarly, the fact that em-
ployees in the machine shop may not have been members
of the Union or may have expressed their desire not to be
represented by the Union does not accord Respondent the
right to sever them from the historical bargaining unit by
the device of withdrawing recognition from their bargain-
ing representative. Any good-faith doubt of majority must
extend to the entire unit and may not be confined to only
a portion of that unit.
Therefore, I find that Respondent did withdraw recogni-
tion from the Union as the collective-bargaining represen-
tative of the employees employed in the production engi-
neering group and thereby violated Section 8(a)(5) and (1)
of the Act.
VII. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above occurring in
connection with the Respondent's operations described in
section II, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States, and tend to lead and have led to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. A unit appropriate for collective bargaining is: All
hourly employees employed at National Gypsum
Company's quarrying operations located near Winkleman,
Arizona, and at its gypsum manufacturing plant and ma-
chine shop located in Phoenix, Arizona; excluding supervi-
sors , office clerical employees, research and technical em-
ployees, watchmen and plant protection employees, and
over-the-road truckdrivers who deliver finished products.
4. At all times material, United Cement, Lime and Gyp-
sum Workers International Union, Local Union No. 242
has been the exclusive collective-bargaining representative
of the employees in the above-described unit within the
meaning of Section 9(a) of the Act.
5. By withdrawing recognition from United Cement,
Lime and Gypsum Workers International Union, Local
Union No. 242 as the representative of a portion of the
employees in that unit during the term of a collective-bar-
gaining agreement , Respondent has committed an unfair
labor practice in violation of Section 8(a)(5) and (1) of the
Act.
6. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent engaged in an unfair la-
bor practice , I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative
action to effectuate the policies of the Act.
Having found that Respondent withdrew recognition
during the term of a collective -bargaining agreement, I
shall recommend that Respondent reimburse employees in
the production engineering group for the loss of any bene-
fits which would have accrued to them under the collec-
tive-bargaining agreement which the Respondent refused
to honor, with interest to be paid at the rate of 6 percent
per annum thereon.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER4
Respondent, National Gypsum Company, Phoenix, Ari-
zona , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Withdrawing recognition from United Cement, Lime
and Gypsum Workers International Union, Local Union
No. 242 as the representative of the employees in the pro-
duction engineering group.
(b) Refusing to recognize and bargain collectively with
United Cement, Lime and Gypsum Workers International
Union, Local Union No. 242 as the collective-bargaining
representative of all employees in the appropriate unit:
All hourly employees employed at National Gypsum
Company's quarrying operations located near Winkle-
man, Arizona , and at its gypsum manufacturing plant
and machine shop located in Phoenix, Arizona; ex-
cluding supervisors , office clerical employees , research
and technical employees, watchmen and plant protec-
tion employees, and over-the-road truckdrivers who
deliver finished products.
(c) Refusing to honor any collective-bargaining agree-
ment in effect with United Cement, Lime and Gypsum
Workers International Union, Local Union No. 242,
which applies to the employees in the aforesaid unit, in-
cluding those employees assigned to the production engi-
neering group.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of any right
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the purposes of the Act:
(a) Honor any collective-bargaining agreement in effect
with United Cement, Lime and Gypsum Workers Interna-
tional Union, Local Union No. 242, for all employees in
the aforesaid appropriate unit; or, if no such agreement is
in effect, bargain collectively upon request with that labor
organization as the exclusive representative of all employ-
ees in the aforesaid appropriate unit, and, if an under-
standing is reached, upon request, embody such under-
standing in a signed agreement.
(b) Make whole all employees in the production engi-
neering group for any loss of benefits which would have
accrued to them under the collective-bargaining agreement
which Respondent refused to honor with regard to them,
with interest to be paid at the rate of 6 percent per annum
thereon.
(c) Post at its Winkleman, Arizona, quarry and at its
Phoenix, Arizona, manufacturing plant and machine shop
copies of the attached notice marked "Appendix." S Copies
of said notice on forms provided by the Regional Director
for Region 28, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 28, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all Purposes.
S In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activity except to
the extent that the employees' bargaining represen-
tative and employer have a collective-bargaining
agreement which imposes a lawful requirement that
employees become union members.
In recognition of these rights, we hereby notify our em-
ployees that:
WE WILL NOT withdraw recognition from United Ce-
ment, Lime and Gypsum Workers International
Union, Local Union No. 242, as the representative of
the employees in the production engineering group.
WE WILL NOT refuse to recognize and bargain collec-
NATIONAL GYPSUM COMPANY
tively with United Cement, Lime and Gypsum Work-
ers International Union, Local Union No. 242, as the
collective -bargaining representative of all employees
in the appropriate unit of:
All hourly employees employed at National Gyp-
sum Company's quarrying operations located near
Winkleman, Arizona, and at its gypsum manufac-
turing plant and machine shop located in Phoenix,
Arizona; excluding supervisors, office clerical em-
ployees, research and technical employees, watch-
men and plant protection employees, and over-the-
road truckdrivers who deliver finished products.
WE WILL NOT refuse to honor any collective-bargain-
ing agreement in effect with United Cement, Lime and
Gypsum Workers International Union, Local Union
No. 242, which applies to the employees in the afore-
said unit, including those employees assigned to the
production engineering group.
WE WILL NOT in any like or related manner interfere
557
with, restrain, or coerce you in the exercise of your
rights under the National Labor Relations Act set
forth above.
WE WILL honor any collective-bargaining agreement
in effect with United Cement, Lime and Gypsum
Workers International Union, Local Union No. 242,
for all employees in the aforesaid unit, or if no such
agreement is currently in effect, we will bargain collec-
tively upon request with that labor organization as the
exclusive representative of all employees in the afore-
said unit and, if an understanding is reached, upon
request, embody such understanding in a signed
agreement.
WE WILL make whole all employees in the produc-
tion engineering group for any loss of benefits which
would have accrued to them under the collective-bar-
gaining agreement which we refused to honor with re-
gard to them, with interest to be paid at the rate of 6
percent per annum thereon.
NATIONAL GYPSUM COMPANY