United States Gypsum Co.

National Labor Relations Board - Board Decisions

Mar 12, 1946

66 N.L.R.B. 619 (N.L.R.B. 1946)

In the Matter Of UNITED STATES GYPSUM COMPANY and UNITED GAS,
COKE & CHEMICAL WORKERS UNION , C. I. 0., LOCAL 268
Case No. 13-B-3319.-Decided March 12, 1946
Scott, McLeish ct Falk, by Mr. Harold D. Burgess , of Chicago, Ill.,
Mr. George D. King, of Chicago , Ill., and Mr. J. W. Bostwick, of
East Chicago, Ind., for the Company.
Mr. Howard M. Jones, of Chicago, Ill ., and Mr. Walter Golarz, of
Calumet City, Ind., for the Chemical Workers.
Mr. Louis Piani, of Chicago , Ill., for District 50.
Mr. Ednriund Dale Robinson , of Hammond , Ind., for the Associa-
tion.
Mr. Harry W. Clayton, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by United Gas, Coke & Chemical Work-
ers Union, C. I. 0., Local 268,1 herein called the Chemical Workers,
alleging that a question affecting commerce had arisen concerning the
representation of employees of United States Gypsum Company, East
Chicago, Indiana, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due
notice before Benjamin B. Salvaty, Jr., Trial Examiner. The hearing
Was held at East Chicago, Indiana, on January 15, 1946. The Com-
pany, the Chemical Workers, District 50, United Mine Workers of
America, Local Union No. 13014, herein called District 50,2 and
United States Gypsum Employees Association, herein called the
Association, 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 Examin-
1 Formal papers were amended at the hearing, without objection , to show the correct
name of the Chemical Workers.
2 Formal papers were amended at the hearing, without objection , to show the correct
name of District 50.
66 N. L . R. B., No. 86.
619
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. All parties were afforded opportunity to file
briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
United States Gypsum Company, an Illinois corporation, with its
main office in Chicago, Illinois, operates plants and warehouses
throughout the United States. At its plant at East Chicago, Indiana,
the only establishment involved in this proceeding, the Company
manufactures and sells gypsum products and asbestos cement siding.
The principal raw materials there used by the Company are gypsum
rock, cement, and asbestos, of which it purchased more than $100,000
worth in 1945. Seventy-five percent of this material was shipped to
the Company from points outside the State of Indiana. During the
same period sales of the East Chicago plant were in excess of $100,000,
of which more than 50 percent was shipped by the Company to points
outside the State of Indiana.
The Company admits that is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Gas, Coke & Chemical Workers Union, Local 268, is a labor
organization, affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the Company.
District 50, United Mine Workers of America, Local Union No.
13014, is a labor organization admitting to membership employees of
the Company.
United States Gypsum Employees Association is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Since before 1937 the Company has recognized and bargained with
labor organizations at the East Chicago plant. Its last contract en-
tered into on February 19, 1944, with District 50, expired on August
15, 1945.3 By letter dated October 18, 1945, the Chemical Workers
requested that the Company cease to recognize District 50 until the
a The Company and District 50 continued negotiations until September 15, 1945, when
the Company reduced its proposals to writing and submitted them to District 50, which,
however, did not sign the agreement. All parties stipulated that the proposed agreement
did not constitute a bar to this proceeding.
UNITED STATES GYPSUM COMPANY 621
question of representation has been determined by the Board. The
Association, by letter dated October 27, 1945, requested that the
Company recognize it as the exclusive bargaining representative of
the Company's employees. The Company did not reply to either
letter.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Chemical Workers represents a substantial
number of employees in the unit hereinafter found appropriate.4
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.
IV. THE APPROPRIATE UNIT; THE DETERMINATION
OF REPRESENTATIVES
The parties agreed that all production and maintenance employees
at the East Chicago plant, including group leaders, should be in-
cluded in the appropriate unit and that the office and clerical employ-
ees, executives, superintendents, foremen, and all other supervisory
employees within the Board's usual definition should be excluded.
The Company, District 50, and the Association would exclude watch-
men ; the Chemical Workers would include them. The Chemical
Workers, District 50, and the Association would include testers and
inspectors; the Company would exclude them.
Watchmen: The Company at its East Chicago plant employs four
watchmen who are under the supervision of the personnel manager.
They do not use the same facilities as the production employees but
have a gate house in which they keep their records and clothes. They
punch the same time clocks as the laboratory employees and are hourly
rated at pay approximately equal to that of the production employ-
ees. Some of the men employed as watchmen previously did produc-
tion work in the plant. The watchmen are not deputized or mili-
tarized nor do they wear uniforms, and they are unarmed except for
clubs, which they do not carry continually. They have no disciplinary
authority and their -primary duty is to check trucks and persons
coming into and leaving the plant. Occasionally they are assigned to
watch certain areas, where production has been shut down, to detect
and prevent theft. Approximately 25 percent of the watchmen's time
is spent keeping an assigned outside area clean by shoveling snow,
clipping hedges, mowing grass, and picking up papers. It is our
* The Field Examiner reported that the Chemical Workers submitted 176 cards bearing
the names of 164 employees listed on the Company's pay roll of January 11, 1946, and
that the Association submitted a petition bearing the names of 39 employees, of which
31 were listed on the Company's pay roll of January 11, 1946
There are approximately 270 employees in the unit sought.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
usual practice to include such employees in production and mainte-
nance units.5 However, inasmuch as watchmen were not included in
the unit established under previous contracts, we shall conduct a
separate election among these employees to determine their wishes in
this matter.6
Testers : The testers, of whom there are eight, perform tests on
incoming raw materials, materials in process of production, finished
products, and competitive products. The principal equipment used
in performing these tests consists of scales, thermometers, and screens.
There is a laboratory located in each of the three production build-
ings and a main one in a separate structure. The testers secure sam-
ples from the production lines and test them in the plant laboratories;
they also spend part of their time conducting tests in the main labo-
ratory. The testers do not have the same supervisors as the produc-
tion employees. Some of them are paid on hourly rates, and some are
salaried. The Company has set high school graduation as a require-
ment for these jobs but, because of the shortage of persons meeting
the qualifications, has waived this requirement in some cases. The
testimony indicated that a period of from 6 months to 1 year is
required for training before the employee can master all phases of the
job. The record does not show that testers were either included in or
excluded from previous contract units. In a recent similar case7 in-
volving the Company's plant at Heath, Montana, at which it manu-
factures wallboard, wall plaster, and agricultural gypsum, we found
that testers should be excluded from a production and maintenance
unit. In this case , also, we shall exclude the testers from the unit.
Inspectors: The five inspectors, who are hourly rated, work at the
end of the production lines 100 percent of the time.8 Their duties
consist of inspecting the finished products visually or with hands or
pocket-knife to determine whether they comply with the Company's
standards. They also make reports regarding the types of defects.
We conclude that the inspectors have interests, duties, and working
conditions, which closely ally them to production and maintenance
workers.9 The record does not show that they were excluded from
previous contract units. Accordingly, we shall include inspectors
in the unit.
8 Matter of Pacific Mills , 60 N. L. R. B. 467; see Matter of Chscago Rawhid e Manu-
facturing Company , 59 N. L . R. B. 1234.
6 See Matter of Pittsburgh Equitable Meter Company , 61 N. L. R. B. 880
4 See Matter of United States Gypsum Company, 65 N L. R B 575.
8 They are former production employees , share the same washroom facilities, and punch
the same time clocks as do the production employees
Y See Matter of Chrysler Corporation, Airtemp Division, Indianapolis Plant, 61 N L.
R. B. 953 , Matter of Ideal Roller & Manufacturing Company, Inc ., 60 N. L. R B. 1105.
See also Matter of General Cigar Co., Inc, 64 N. L. R. B. 300, and Matter of Brad Foote
Gear Works, Inc., 60 N. L. R. B. 97.
UNITED STATES GYPSUM COMPANY 623
Inasmuch as we shall conduct a separate election for the watchmen,
we. shall make no finding with respect to the appropriate unit pend-
ing the outcome of the elections.
We shall direct that the question concerning representation which
has arisen be resolved by separate elections by secret ballot among
employees in the separate voting groups described below, who were
employed during the pay-roll period immediately preceding the date
of the Direction of Elections10 herein, subject to the limitation and
additions set forth in the Direction:
1. All production and maintenance employees at the Company's
East Chicago, Indiana, plant, including gang leaders, inspectors,
and truck drivers,1' but excluding testers, watchmen, office and clerical
employees, master mechanic, quality supervisor, superintendents, as-
sistant superintendents, general foremen, foremen, and all other su-
pervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action; and
2. All watchmen, excluding supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action.
Inasmuch as neither District 50 nor the Association sought to
represent the watchmen in a production and maintenance unit, these
unions shall not be designated on the ballot to be used by the watch-
men. However, if one or both organizations notify the Regional
Director, within 10 days of the date of this Decision and Direction
of Elections, of a desire to appear on the ballot, the request will be
granted.
The Company urges that its employees now in the armed forces
and the Merchant Marine12 should be permitted to vote by mail.
District 50 and the Association agree, and the Chemical Workers
states that it is not opposed to mail ballots provided that it is given
a list of names to whom the ballots are to be sent. At the time of the
:o The Chemical Workers requested that the eligibility date be January 1, the end of
the pay-roll period immediately before the hearing, on the ground that all three unions
Involved had consented to an immediate election. The Company contended that the pay
roll for eligibility purposes should be the last pay roll preceding the election. (The
Company seems to have been misinformed that its contention followed our usual prac-
tice ) We find no reason for departing from our customary procedure of using the last
pay roll preceding the Direction of Election rather than the election itself.
u The Company's outside hauling is done by a trucking company. It does employ
intraplant truck drivers who also haul waste from the plant to the city dump and make
occasional pick-ups outside the plant. The parties agreed that such truck drivers should
be included.
i Members of the Merchant Marine are treated in the same manner as members of
the armed forces for voting purposes since their rights to civilian reemployment are
substantially the same, the former deriving their rights under Civilian Reemployment of
Members of Merchant Marine, 50 App. Sec. 1472 of United States Code, and the latter
under Selective Training and Service Act of 1940, 50 App. See. 308 of United States
Code.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing there were approximately 150 employees in the armed forces
and the Merchant Marine who would be in the unit. As stated in
footnote 4, supra, there are about 270 employees in the unit sought.13
In accordance with recent decisions,14 we shall grant the Company's
request subject to the provisions set forth below.
In this case, the Regional Director shall mail ballots to employees
within the categories described above who are on military leave or
who went directly from the Company's employ into the Merchant
Marine, provided one or more of the parties hereto, within seven (7)
days after receipt of the Direction of Elections, files with the Re-
gional Director a list containing the names, most recent addresses,
and work classifications of such employees. The Regional Director
shall open and count the ballots cast by mail by employees on military
leave or who went directly into the Merchant Marine from the Com-
pany's employ, provided that such ballots must be returned to and
received at the Regional Office within thirty (30) days from the date
they are mailed to the employees by the Regional Director.l5
DIRECTION OF ELECTIONS
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, 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 United States
Gypsum Company, East Chicago, Indiana, separate elections by
secret ballots shall be conducted as early as possible, but not later than
forty-five (45) days from the date of this Direction, under the direc-
tion and supervision of the Regional Director for the Thirteenth
Region, acting in this matter as agent for the National Labor Rela-
"The Company stated at the hearing that it has no reconversion problems inasmuch
as it will continue the same operations as it did during the war, that of 40 employees
who have returned from the services 36 are now employed by it, that it could not hire
more than 25 or 30 additional employees at present , and that it has a list of employees
who went into the services from the Company 's employ containing their addresses.
14 See Matter of United States Gypsum, 65. N. L . R. B. 575 ( the Company 's plant at
Heath, Montana) and South West Pennsylvania Pipelines, 64 N. L. R. B. 1384.
15A free interchange between the interested parties of information on the addresses
and job classifications of the employees to be voted by mail will be necessary in order
to avoid challenges and post -election objections . Accordingly , the Board will make
available to all interested parties any information of this nature furnished it by any
other party. In the event the parties should send the absentee voters any information
or literature bearing directly or indirectly on the pending election , copies of all such
documents should be simultaneously filed with the Regional Office for inspection by or
transmittal to the other parties. However , acceptance or transmittal of such literature
by the Board 's office is not to be construed as conferring immunity on the filing party
in the event that objections are later interposed concerning its content ; the usual prin-
ciples will apply.
UNITED STATES GYPSUM COMPANY 625
tions Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, among employees in the groups described 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 or the Merchant Marine of the United States, but ex-
cluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
elections, to determine (1) for the employees in group 1 described in
Section IV, above, whether they desire to be represented by United
Gas, Coke & Chemical Workers Union, Local 268, affiliated with the
Congress of Industrial Organizations , or by District 50, United Mine
Workers of America, Local Union No. 13014, or by the United States
Gypsum Employees Association, for the purposes of collective bar-
gaining, or by none, (2) for the employees in group 2 described in
Section IV, above, whether or not they desire to be represented by
United Gas, Coke & Chemical Workers Union, Local 268, affiliated
with the Congress of Industrial Organizations, for the purposes of
collective bargaining.
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