United States Gypsum Co.

National Labor Relations Board - Board Decisions

Dec 16, 1942

46 N.L.R.B. 23 (N.L.R.B. 1942)

In the Matter Of UNITED STATES GYPSUM COMPANY and GENERAL WARE-
HOUSEMEN'S UNION, LOCAL 598, A. F. or L.
In the Matter of UNITED STATES Gypsum COMPANY and UNITED MINE
WORKERS OF AMERICA, DISTRICT 50
Cases Nos. B-414189 and R-4490, respectively .Decided December 16,
1942
Jurisdiction : roofing products manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-'
fusal to accord recognition because of alleged existing contract and because of
representation claims of rival organization; contract which expired no bar;
election necessary.
Unit Appropriate for, Collective - Bargaining : all production and maintenance
employees, including truck drivers, but excluding salaried supervisors, shift
foremen, and machine tender tow bosses with the right to hire and discharge,
and clerical and technical employees.
Practice and Procedure : existence of jurisdictional dispute between two affiliates
of same parent held not to bar proceeding when a third organization not a party
to the jurisdictional dispute sought to represent the same employees.
Mr. F. W. Adams and Mr. C. B. Pooler, of South'Gate, Calif., for
the Company.
-Mr. Frank Merhab, of Los Angeles, Calif., for Local 598.
Mr. Wm. E. Parks and Mr. H. A. Hennes, of Los Angeles, Calif., for
District 50.
Mr. Howard Morrison, of Long Beach, Calif., for Local 166.
Miss Viola James, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petitions filed respectively by General Warehousemen's
Union, Local 598, affiliated with the American Federation of Labor,
herein called Local '598, and United Mine Workers of America, Dis-
trict 50, herein called District 50, alleging that questions affecting
commerce had arisen concerning the representation of employees of
United States Gypsum Company , South Gate , California, herein
46 N. L . R. B., No. 4.
23
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Company, the National Labor Relations Board provided
for an appropriate consolidated hearing upon due notice before
Charles M. Ryan, Trial Examiner. ' Said hearing was held at Los
Angeles, California, on November 2, 1942. The Company, Local 598,
District 50, and United Cement, Lime and Gypsum Workers' Inter-
national Union, Local 166, affiliated with the American Federation
of Labor, herein called Local 166, appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and- to introduce evidence bearing on the
issues. The Trial Examiner's rulings are free from prejudicial error
and are hereby affirmed.
Upon the entire record in the case, the Board snakes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
United States Gypsum Company is an Illinois corporation, engaged
in the manufacture of paper and roofing products at South Gate,
California. During the last fiscal year, the Company purchased raw
materials consisting of asphalt, granules, ground limestone, waste -
paper, waste rags, and containers, valued in excess of $100,000. Over
25 percent of this amount represented purchases of materials which'
were shipped to the South Gate plant from points outside the State of
California. During tho same period, the Company sold products
from its South Gate plant valued in excess of $100,000, over 25 percent
of which represented sales to purchasers outside the State of Cali-
fornia. The Company admits that it is engaged in commerce within
the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
General Warehousemen's Union, Local 598, and United Cement, Lime
and Gypsum Workers' International Union, Lod d 166, both affiliated
with the American Federation of Labor, and United Mine Workers
of. America, District 50, are labor organizations, each admitting to
membership employees of the Company.
1
III. THE QUESTIONS CONCERNING REPRESENTATION
About the middle of July 1942,, Local 598 requested recognition as.
the bargaining agent for the employees of the Company. The Com-
pany refused because of an existing contract 1 with Local 166, and
because District 50 was also claiming to represent a majority, of the
Company's employees. t I . .
I This contract expired August 25, 1942.
UNITED STATES GYPSUM COMPANY 25
A statement of the Acting Regional Director, introduced in evi-
dence at the hearing, indicates that Local 598, District 50, and Local
166, each represents a substantial number of employees in the unit
hereinafter found to be appropriate?
We find that questions affecting commerce have 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
The parties agreed that all production and maintenance employees,
excluding salaried supervisors with the right to hire and, discharge,
and clerical workers, constitute an appropriate unit. - The Unions
desire to include supervisory employees, classified as working shift
foremen and machine tender tow bosses. The Company stated that it
preferred to have their inclusion or exclusion decided by the Board.
District 50 and Local 166 would also include' truck drivers, whom
Local 598 would exclude.' The Company took, no position on this
issue, but desires 'to exclude technical employees.
Since 1937, the Company has had three successive bargaining con-
tracts with different 'labor organizations. From August 1937 to
March 1941, the' contract was with International Brotherhood of Pa-
permakers, Local 399, A. F. of L., covering all production and main-
tenance employees, excluding supervisory, clerical, and technical em-
ployees. From March to June 1941, Chemical Workers' Union, Local
No. 12190, United Mine Workers, had a contract, covering the salve
classes of employees who had been represented by the Papermakers.
Thereafter the Company entered into a 1-year contract, which expired
on August 25, 1942, with Local 166, the intervenor hereilr, covering
all hourly paid employees of the Company. The labor relations
manager for the Company testified that these hourly paid employees
were the same types of employees covered, by the two prior contracts,
and that truck drivers had been included and technical employees
excluded.
2 The Acting Regional Director reported that Local 598 submitted 75 authorization
cards, all but 4 being dated in July 1942 ; that all 74 bore apparently genuine original
signatures ; and that 54 cards bore the names of persons on the Company's pay roll of
September 2, 1942. District 50 submitted 73 application cards, 1 dated in 1940, 17 dated
in 1941, and 55 dated in 1942, all bearing apparently genuine original signatures, and
63 of which cards bore the names of persons on the Company's pay roll of September 2,
1942 In addition to claiming its recent contract with the Company as establishing its
interest, Local 166 submitted 62 application cards, all bearing apparently genuine original_
signatures with 57 being dated in 1941 and 5 being dated in 1942, and 31 of 'ehich cards
bore the names of persons on the Company's pay roll of September 2, 1942. The Com-
pany 's pay roll of September 2, 1942, lists the names of 168 employees in the unit claimed
to be appropriate.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- There • is only one truck driver at the present time. He is an
hourly paid employee, and he was covered by the prior contracts. We
shall include him in the unit.
It is not clear from the record whether the Unions desire to include
the technicians in the unit. The Company maintains that they are
not a part of the production department and therefore should be
excluded. It appears that • they spend a part of their time in the
plant, but that their headquarters are in a laboratory. In view of
the nature of their work and the fact that they were excluded in
the prior bargaining contracts, we shall exclude them from the unit..
Supervisors: There are approximately four salaried supervisors
who have the'right to hire and discharge. They are the superintendent
and assistant superintendent of the roofing and paper mill departments,
respectively. The parties agreed to exclude these supervisors, and we'
shall exclude'them.' The supervisory employees in dispute are shift
foremen in the roofing plant and machine tender tow bosses in the.
paper mill. These shift foremen and machine tender tow bosses have
the power to recommend hiring and discharging and recently have,
been given the absolute power to hire and, discharge in cases of emer-
gency. We shall exclude them from the unit.
We find that all production and maintenance employees in the
Company's South Gate plant, including truck drivers, but excluding
salaried, supervisors, shift foremen, and machine tender tow bosses
with the right to hire and discharge, and clerical and technical em-
ployees, 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
The fact that both Local 598 and Local 166, affiliates of the same
parent body, claim to represent the employees here involved, presents
a jurisdictional conflict. - The Board has consistently dismissed pro-
ceedings involving a jurisdictional dispute between two unions subject
to the discipline of the same parent organization. However, where
another organization, not a party to the dispute, is involved, we have
resolved the question of representation irrespective of the collateral
dispute over jurisdiction .3 Accordingly since District 50 is not a
party to this conflict, we shall direct that the question concerning
representation which has arisen be resolved by an election by secret
ballot among the employees in the appropriate unit who were employed
during the pay-roll period immediately preceding the date of the
.
e See Matter of -Truscon Steel Company and Local 487, International Association of
Bridge, Structural and Ornamental Iron Workers (AFL), 33 N.' L. R. B. 61, 'and cases
therein cited.
UNITED STATES GYPSUM COMPANY 27
Direction of Election herein, subject to the limitations and additions
set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and, pursuant to the power vested in the Nation Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section' 9, of National Labor Rela-
tions 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 United States
Gypsum Company, South Gate, California, 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, under the direction and super-
vision of the Regional Director for the Twenty-first 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 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 States who present themselves in person at the polls,
but excluding any who have since quit or been discharged for cause,
to determine whether they desire to be represented by General Ware-
housemen's Union, Local 598, affiliated with the American Federation
of Labor, or by United Cement, Lime and Gypsum Workers' Inter-
national Union, Local 166, affiliated with the American Federation of
Labor, or by United Mine Workers of America, District 50, for the
purposes of collective bargaining, or by none of said organizations.