National Gypsum Co.

National Labor Relations Board - Board Decisions

Oct 11, 1945

64 N.L.R.B. 59 (N.L.R.B. 1945)

In-the Matter of NATIONAL GYPSUM COMPANY and UNITED GAS, COKE
.AND CIIEMIC AL WORKERS OF AMERICA, Loc, IL UNION .247, CIO
Case No.'3-RD91.Decided October 11, 1945
Mr. Douglas C. Jeffrey, of Akron, N. Y., and Mr. William M. North,,
of Buffalo , N. Y., for the Company.
Mr. Charles A. Doyle, of Niagara Falls, N. Y., for the CIO.
Mr. Tony Gallo, of Chicago, Ill., 11r: Samuel R. Diskan, of Phila-
delphia, Pa., and Mr. Neil Cunningham, of Buffalo , N. Y., for_
the AFL.
Mr. Joseph D. Manders, of counsel to the Board. -
DECISION ..
AND'
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Gas, Coke and Chemical
Workers of America, Local Union 247, CIO, herein called the CIO,
alleging that a question affecting-commerce 'had arisen concerning
the representation of employees of National Gypsum Company; Clar-
ence Center, New York, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon
due notice before Eugene von Wellsheim, Trial Examiner. The hear-
, ing was held at Buffalo, New, York, on June 11,-1945. The Com-
pany, the CIO, and United Cement, Lime and Gypsum Workers.of
America, Local Union 105, AFL, herein called the UCLGW, ap-
peared and participated. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnes'ses,'and to introduce
evidence bearing on the issues. ' At the hearing, the AFL moved for
dismissal of the petition. , For reasons set forth in Section III, infra,
the motion is denied. The Trial E' xa1niner's rulings made at the hear-
ing are free from prejudicial error ' aild are hereby affirmed., All
parties were afforded an opportunity to file briefs with the'Board.
6-4 N. L. R B., No. 12.
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DECISIONS',OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, ,the Board makes the following
FINDINGS OF FACT I
I. THE BUSINESS OF THE COMPANY
National Gypsum Company, a Delaware corpoi ation, is engaged,
in the manufacture of wall plaster and wallboard. These products
require the use ofgypsum which is mined at'the Company's Clarence
Center, New York, plant, the sole plant involved in the present pro-
ceeding: During the fiscal year ending April 30, 1945, the Company,
used raw materials at its Clarence Center plant valued in excess of
$100,000, approximately 25 percent' of which is shipped to this plant
from points outside the State of New York. During the same fiscal
period, the, Company manufactured 'finished -products at the Clar-
ence, Center plant valued in excess of $300,000, approximately 60 per-
cent of which was shipped to points outside the State of New York.
The Company admits that its operations at the Clarence Center
plant affect commerce within the meaning of the National Labor Rela-
tions Act, and' we so find.
II. THE ORGANIZATIONS INVOLVED
United Gas, Coke and Chemical Workers of America, Local Union
247, affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
United Cement,, Lime and Gypsum Workers, Local Union 105, affil-
iated through' its international,'with the, American "Federation of
Labor, is a' labor, organization admitting to' membership employees, of
the Company. „
III: THE_ QUESTION CONCERNING REPRESENTATION
In a letter- dated' April 12, 1945, the CIO notified the Company of
its desire to be recognized as the exclusive bargaining representative
'of the, Company's employees. ' The Company refused to • ecognize it.
At the hearing the UCLGW moved for dismissal of the petition
herein, contending that the CIO's notice was not timely; ' and that
its-current agreement, allegedly renewed on April 1, 1945, is a bar to a'
direction of election at this time. The Company takes a'neutral posi-
tion in the matter. '
The UCLGW has been the exclusive bargaining representative of
the Company's employees at the Clarence Center plant since 1939.
In 1939 and each year thereafter, the Company and the UCLGW
entered into a written collective bargaining agreement. The last
agreement between these parties, executed on April 2, 1944, provides
NATIONAL GYPSUM COMPANY 61
that it shall "continue in effect until May 1, 1945, and , each ,year there-
after unless thirty ( 30) days' notice is given in writing by either party
prior to any expiration date." ' Neither the Company nor the UCLGW
gave written notice prior to this 30 -day, period . However, on or about
March 1, 1945 , an official of the UCLGW's international advised the
-local to notify the Company of the "matters the membership desires to
become part of, the 1945-46 agreement '. . . in compliance with the
terms of the present agreement." • On March 28 , 1945, a meeting was
held in the offices of the Company between representatives of the
UCLGW, and the Company . At this'meeting the parties negotiated
with respect to' a general wage increase , wage increments for shift, dif-
ferentials ,' - Christmas , bonuses, and , vacation schedules ; employee
grievances , wei'e ' also discussed . . ' Neither Christmas .bonuses. nor shift
differentials were ' provided for in 'the 1944 contract;' and it is. evident
that an agreement 'as to these subjects,- as well as the wage issues dis-
cussed at the March 28 meeting , would have resulted in material addi-
tions 'and modifications of the contract . The plant. manager , who was
the sole signatory for the Company on the April 2, 1944, contract,
attended the March 28 meeting , and at the hearing testified that- he
interpreted the meeting as the initial ' step toward the execution 'of a
new contract . In the past , similar negotiations , commenced prior to
the renewal date without formal notice of • any type , have resulted
in the execution of new contracts : . ' , -
The CIO contends that the , Company and the UCLGW , by com-
mencing the negotiation of a new contract at their March 28 confer-
ence, in effect agreed to terminate the 1944 contract without the for-
mality of written notice. We are persuaded that this contention is
correct, considering all the circumstances : the past practice of the con-
tracting parties, the Company's understanding that the old contract
was'to be permitted to expire , the fact that the UCLGW local had been
advised by its international office to propose terms for the "1945-46
agreement ," and, particularly , the fact that the negotiating conference
was held 3 days prior to the date when the 1944 contract would have
renewed in the- absence of notice given by either of the contracting
parties. ' We note the UCLGW's contention that the meeting , of
March 28 did not serve as mutual notice to terminate the 1944 contract,
in view of a clause in that contract which provides that the Com-
pany shall meet with the UCLGW at any time for the purpose of dis-
cussing wages , hours, and working conditions "with the object of
reaching a satisfactory agreement ." 2 We do not, however, regard
I Cf. Matter of Marvel-Schebler Division, Borg Warner Corporation , 56 N. L. R. B. 105,
at p. 108.
z The clause referred to by the UCLGW reads as follows :
The company is at all times willing to meet with any of its employees or representa-
tives of any of its employees not connected with competitive companies for the pur-
pose of discussing wages, hours and working conditions , with the object of reaching a
satisfactory agreement. . . .
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'62 , DECISIONS- OF•''NATIONAIL 'LABOR RELATIONS BOARD
this-general-"provision as sufficient to negate, the .inference -that the
contracting parties, by discussing'basic changes and additions to -their
agreement just prior to the' date fixed for rene`val or-termination of
"that:agreement, intended•to make a new contract and thus bring the
'old one to•an end.3 ' ..
'%\r find that the negotiations on' March 28 were equivalent to sea-
sonable, mutual notice of termination, and that the contract of April
,2,. 1944, is, therefore, no bar to. a 'present ,determina'tion `of repre-
sentatives.4: - '
•' On April 11, .1945, the •UCLGW local unanimously voted to dis-
'affiliate from its, international and to affiliate with -the Congress of
'Industrial; Organizations. Shortly thereafter, the members 'of the
local 'requested and received a CIO -charter. The CIO now contends
,that; "Local Union 105" is a defunct labor organization, and, there-
fore; its collective bargaining agreement with the Company, allegedly
' -rel e`ded on April 1; 1945, ;cannot operate, as a bar to an immediate
,determination of representatives'under any.,circumstances. In view
,of our-finding that'the'contract was terminated, we need not consider
this contention.
A statement of a,Board agent,,introdneed into evidence at the hear-
ing, indicates that,the CIO represents a substantial number. of em-
;plQyees'in the unit hereinafter found appropriate.5 . I
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.,
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IT. THE APPROPRIATE UNIT
The parties are in substantial. agreement that the appropriate unit
:should consist 'of all.prbduction and maintenance* employees' of the
Company-at the Clarence Center'plant, including watchmen, but ex-
cludiligoffice and clerical employees and all supervisory employees.
The parties disagree, however, as to the following category of em-
ployees :
Laboratory employees: The Company employs two laboratory work-
ei•s.' These two employees test various items which are ultimately dis-
4ributed 'assamples 'to the Company's customers. ' The production
Oct, Matter of Green Bay Dmop Forge Company, 57 N L R B 1417; Matter of Story and
Clark Piano Company, 61 N, L R B 614; Matter of Douglas Public Serozoe Coup, 62
N L R B 651
See Matter of Hudson Sharp i1facliine,Co., 62 N L R B - 799 ; Matter of General Metals
Corporatron , 59 N L' R B 1252
^,Th'e Field -Examiner reported that .the CIO submitted 98 authorization cards, all of
which bore apparently - genuine original signatures of persons appearing on the Company's
pay roll of April 22, 1945 , which contained the names of 125 employees in the appropriate
unit, and that the cards were dated in April 1945
'The UCLGW submitted its current contract as evidence of its representation in the
alleged appiopriate unit
NATIONAL GYPSUM COMPANY 63.
Workers 'receive an hourly rate of pair, but the laboratory` employees
receive a salary. A company witness testified that laboratory employ=
ees have always been-considered to be a part-of the-office force'-and-
have been excluded' from previous bargaining units. The ,CIO and'
the `AFL desire their inclusion inAhe proposed, unit; the Company,
urges their exclusion. Since the testers in the laboratory, have been
excluded-from previous bargaining units and do•not•have the-identical
interests and working conditions to those of the production workers,
we shall exclude them from the'unit hereinafter found appropriate.
We find that all production and maintenance employees' of `tlie-Cbm=
pany at the Clarence Center plant, including watchmen, but exclud-
ing the testers in the laboratory, office and, clerical employees, and all or
any supervisory employees with authority 'to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which,
has arisen be resolved by an election by secret ballot among the employ-
ees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject tb the limitations and additions set forth in the Direc-
tion.
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 Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part, of the investigation to ascertain representa-
tives for the purposes of collective bargaining with National Gypsum
Company, Clarence Center, New York, an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)
clays from the date of this Direction, under the direction and supervi-
sion of the Regional Director for the Third Region, acting in this
matter as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction,-including employees who did not work during
said pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
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64 DECISIONS OF , NATIONAL LABOR RELATIONS BOARD
States who present themselves in person at the polls, but excluding
those employees who have since quit or been discharged. for cause, and
have not' been rehired or reinstated prior to the date,-of- the election,
to determinb whether they desire to be represented by United Gas, Coke
and Chemical Workers of America, Local Union 247, CIO, or .by
United Cement, Lime and Gypsum Workers of America, Local Union
105, AFL, for the purposes of collective bargaining, or by. neither.
MR. GERARD D. RErLLY took no part in the consideration, of the above
Decision and Direction of Election.., , . '
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