National Gypsum Co.

National Labor Relations Board - Board Decisions

Jun 21, 1941

32 N.L.R.B. 976 (N.L.R.B. 1941)

In the Matter of NATIONAL GYPSUM COMPANY and DISTRICT 50, UNITED
MINE WORKERS OF AMERICA, C. I. O.
Case No. R-3569.-Decided June ,21, 1941
Jurisdiction : wall and ceiling material manufacturing industry.
Investigation and Certification of Representatives : existence of question: Com-
pany will not recognize petitioning labor organization before certification by
Board ; current pay roll-, election necessary.
Unit Appropriate for Collective Bargaining : all production, maintenance and
shipping employees, including trucking employees, but excluding stationary
and hoisting engineers, clerical and supervisory employees, executives, tech-
nicians and longshoremen; trucking' employees included over the objection
of one of the labor organizations desiring their exclusion.
Mr. L. R. Sanderson, of New York City, for the Company.
Mr. Alexander E. Racolin., of New York City, for the Mine Workers.
Mr. Maximillian L: Bleic, of New York City, for the Building
Maintenance Craftsmen.
Mr. Michael Gentile , of New York City, for the Sand and Gravel
Workers.
Mr. Michael P. Connors, of New York City, for the Operating
Engineers.
Mr. Bertram Diamond, of counsel. to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 20, 1941, District 50, United Mine Workers of America,
affiliated with the Congress of Industrial Organizations, herein called
the Mine Workers, filed with the Regional Director for the Second
Region (New York City) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
National Gypsum Company, New York City, herein called the Com-
pany, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On May 7, 1941, the National
Labor Relations Board, herein called the Board, acting pursuant to
Section 9 (c) of the Act and Article III, Section 3, of National Labor
32 N. L. R. B., No. 155.
976
NATIONAL GYPSUM COMPANY 977
Relations Board Rules and Regulations-Series 2, as amended, ordered
an investigation and authorized the Regional Director to conduct it
and to provide for an appropriate hearing upon due notice.
On May 9, 1941 , the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company , the Mine
Workers, International Sand, Gravel, Crushed Stone, Ashes and Mate-
rial Yard Workers, Local 1175 , of New York, Nassau and Suffolk
Counties , affiliated with the American Federation of Labor, herein
called the Sand and Gravel Workers , and Building Maintenance
Craftsmen , Building and Construction Trades Council of Greater New
York, Long Island and Vicinity, affiliated with the American Federa-
tion of Labor, herein called the Building Maintenance Craftsmen,
labor organizations claiming to represent employees directly affected
by the investigation. Pursuant to notice, the hearing was held on
May 19, 1941 , at New York City , before Daniel Baker, the Trial
Examiner duly designated by the Chief Trial Examiner. At the
hearing International Union of Operating Engineers, Locals 30, 30 A
and 30 B, affiliated with the American Federation of Labor, herein
called the Operating Engineers , entered an appearance , were treated
as, and we find that they . became, party to the proceedings . All par-
ties were represented by counsel or official representative and partici-
pated in the hearing. Full opportunity to be heard , to examine and
cross-examine witnesses , and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing the
Trial Examiner made several rulings on motions and on objections to
the admission of evidence . The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TILL BUSINESS OF THE CO âIl'.,NY
National Gypsum Company is a Delaware corporation engaged in
the manufacture of wall and ceiling materials , consisting of gypsum
plaster, wallboard , and casein paints. The only one of its plants in-
volved in this proceeding is located in the Borough of the Bronx, New
York City.
During the past 6 months , 75,000 tons of gypsum block and 500,000
gallons of oil , comprising 90 per cent of the total raw materials used
by the Company in the manufacture of its finished products , have been
shipped to the Bronx plant from points outside the State of New
York. In the same period the Company has shipped approximately
25 per cent in volume and value of the commodities manufactured by it
at its Bronx plant to points outside the State of New York. V
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, is a labor organiza-
tion affiliated with the Congress of Industrial Organizations.
Building Maintenance Craftsmen, Building and Construction Trades
Council of Greater New York, Long Island and Vicinity, is a labor
organization affiliated with the American Federation of Labor.
International Sand, Gravel, Crushed Stone, Ashes and Material
Yard Workers, Local 1175, of New York, Nassau and Suffolk Counties,
is a labor organization affiliated with the American Federation of
Labor.
International Union of Operating Engineers, Locals 30, 30A and
30B, are labor organizations affiliated with the American Federation
of Labor.
All the organizations listed above admit to membership employees
of the company at its Bronx plant.
III. THE QUESTION CONCERNING REPRESENTATION
From August 8, 1938, to August 8, 1940, the Company had with
the Sand and Gravel Workers a closed-shop contract regulating wages,
hours, and working conditions. Following the filing of petitions by
the Mine Workers, a consent election was held in July 1940. The only
unions on the ballot in that election were the Mine Workers and the
Sand and Gravel Workers. The election was won by the Sand and
Gravel Workers. Thereafter, however, the Company entered into no
further contracts with the Sand and Gravel Workers, and at the hear-
ing that organization announced that it had no interest in the present
proceedings. The only outstanding contract which the Company has
with any union is one with the Operating Engineers; it is a closed-
shop contract covering the engineers, who are not involved in this
proceeding.
The Mine Workers has requested the Company to recognize it as
the exclusive bargaining representative of the employees in the unit
claimed by it to be appropriate. The Company has taken the position
that the Mine Workers must be certified by the Board before recogni-
tion would be granted to that organization.
As stated above, the Sand and Gravel Workers have renounced any
interest in the present proceedings because they no longer have a sub-
stantial membership among the employees of the Company. It also
appears that the Operating Engineers, who are affiliated with the
Building Maintenance Craftsmen, have some members among main-
tenance employees, who are within the claimed appropriate unit ; with
the consent of a committee of these maintenance men the Operating
Engineers have announced their willingness to have such members
NATIONAL GYPSUM COMPANY 979
represented by the Building Maintenance Craftsmen and have thus
renounced any interest of their own in these proceedings.
There were introduced in evidence statements by the Regional Di-
rector and the Trial Examiner showing that the remaining organiza-
tions involved, namely the Mine Workers and the Building Mainte-
nance Craftsmen, represented a substantial number of employees in
the unit herein found appropriate.,
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I, above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
All the parties agree that all production, maintenance, and shipping
employees, excluding stationary and hoisting engineers, clerical and
supervisory employees, executives, technicians, and longshoremen,
should be included within the appro., ,riate unit. The only controversy
as to the unit concerns the trucking employees. The Mine Workers
request the inclusion of such employees within the unit and the Build-
ing Maintenance Craftsmen request their exclusion. The Company
apparently takes no position. The reason advanced by the Building
Maintenance Craftsmen for their position is that the trucking em-
ployees fall within the jurisdiction of the American Federation of
Labor Teamsters Union. Ordinarily there are on the Company's pay
roll about four such employees. On trucking employee is engaged, in
making small deliveries by truck. The other three employees are
engaged principally in driving the refuse truck to the dump. They
also spend approximately 2 or 3 hours daily in the plant collecting
refuse and loading it on the refuse truck. In addition, like shipping
'According to the statements , the Company ' s pay roll for March 22, 1941 , showed
about 153 employees in the appropriate unit.
The Mine workers submitted 97 applications for membership dated between January 20,
1941 , and March 26, 1941, and bearing approximately 84 apparently genuine original
signatures of persons on the pay roll for March 22, 1941.
The Building Maintenance Craftsmen submitted 15 authorization cards dated between
April 4 and May 14, 1941 , and bearing what appeared to be genuine original signatures.
Of the names on these cards 14 appear on the pay roll for March 22, 1941. In addition,
19 application cards were turned over by the Operating Engineers to the Building Main-
tenance Craftsmen ; these cards were dated from August 1939 to March 1941 and bear
the apparently genuine signatures of 19 persons on the pay roll for March 22. 1941.
448692-42-vol. 32--63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, they load trucks other than the refuse truck. The trucking
employees work under the supervision of the loading foreman, who
has other production employees under his jurisdiction. The driver of
the delivery truck was the only trucking employee of the Company at
the time of the consent election in July 1940. Pursuant to the agree-
ment, he was included within the appropriate unit at that time and
voted in the election. One of the dump truck drivers testified without
contradiction that he had been at one time a member of the Sand and
Gravel Workers, that he was at the time of the hearing a member of
the Mine Workers, and that the other dump-truck drivers were also
members of the Mine Workers. In view of the foregoing facts, we
shall include trucking employees within the appropriate unit.
We find that all production, maintenance, and shipping employees
of the Company at its Bronx plant, including trucking employees,
but excluding stationary and hoisting engineers, clerical and super-
visory employees, executives, technicians, and longshoremen, consti-
tute a unit appropriate for the purposes of collective bargaining
and that such unit will insure to the employees of the Company the
full benefit of their right to self-organization and to collective
bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The question concerning representation which has arisen can best
be resolved, and we shall accordingly direct, an election by secret
ballot.
We shall direct that those eligible to vote in the election shall be
the employees in the appropriate unit who are employed by the
Company during the pay-roll period immediately preceding the
date of our Direction of Election herein, subject to such additions
and limitations as are set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of National Gypsum Company, New York
City, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. All production, maintenance, and shipping employees of the
Company at its Bronx plant, including trucking employees, but
excluding stationary and hoisting engineers, clerical and supervisory
employees, executives, technicians, and longshoremen, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
NATIONAL GYPSUM COMPANY 981
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
Dnmcrio that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with National Gypsum Company, New York City, an election by
secret ballot shall be conducted as early as possible, but not later
than thirty (30) days from the date of this Direction of Election,
under the direction and supervision of the Regional Director for
the Second Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Section 9, of
said Rules and Regulations, among all production, maintenance, and
shipping employees employeed by the Company at its Bronx plant
during the pay-roll period immediately preceding the date of this
Direction of Election, including trucking employees and employees
who did not work during such pay-roll period because they were ill
or on vacation, or in the active military service or training of the
United States, or temporarily laid off, but excluding stationary and
hoisting engineers, clerical and supervisory employees, executives,
technicians, and longshoremen, and those who have since quit or
been discharged for cause, to determine whether they desire to be
represented by District 50, United Mine Workers of America, affili-
ated with the Congress of Industrial Organizations, or by Building
Maintenance Craftsmen, Building and Construction Trades Council
of Greater New York, Long Island and Vicinity, affiliated with the
American Federation of Labor, for the purposes of collective bar-
gaining, or by neither.