United States Gypsum Co.

National Labor Relations Board - Board Decisions

Nov 23, 1948

80 N.L.R.B. 779 (N.L.R.B. 1948)

In the Matter of UNITED STATES GYPSUM COMPANY, EMPLOYER and
UNITED GAS, COKE AND CHEMICAL WORKERS OF AMERICA, C. I. O.,
PETITIONER
Case No. 17-RC-107.-Decided November 23, 1948
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, a hearing was held before a hearing of-
ficer of the National Labor Relations Board. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations named below claim to represent employ-
ees of the Employer.2
1 In its brief , the Employer contends that the hearing officer should not have permitted
the intervention of International Union of Operating Engineers , Local No. 6 and 6A, herein
called Intervenor. It alleges that the Intervenor did not have the necessary " interest in
the proceeding" as required by Section 203.57 (b) of the Board' s Rules and Regulations.
The Intervenor established its interest administratively. Accordingly , it was properly
permitted to intervene. Matter of Hurley Machine Division of Electric Household Utilities
Corp ., 73 N. L. R. B. 500.
* Chairman Herzog and Members Reynolds and Gray.
2 At the hearing, the Employer moved to dismiss the petition, on the ground that the
Petitioner is not qualified to act as bargaining representative of its employees . The hear-
ing officer referred the motion to the Board . Local 150 of United Gas, Coke and Chemi-
cal Workers of America has been the bargaining representative of the Employer's pro-
duction and maintenance employees since 1943. On May 26, 1948, Local 150 notified
the Regional Director that it was in agreement with the Petitioner 's filing the present peti-
tion, and that it was withdrawing any claim as bargaining agent of these employees. Local
150 and the Petitioner are both in compliance with Section 9 ( f), (g), and (h) of the Act.
The Employer contends that, because Article XVI of the Petitioner 's constitution provides
that "all contracts shall be in the name of the Local Union , and shall be signed by the
Local Union Committee," the Petitioner would be unable to serve as a bargaining representa-
tive. We will not inquire into a labor organization 's constitution in the absence of proof
80 X. L. R. B., No. 122.
779
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate units; the determination of representatives :
The Petitioner seeks to represent a unit of all production and main-
tenance employees at the Employer's plant in North Kansas City,
Missouri, including power department employees, but excluding office
and clerical employees, and all supervisors as defined in the Act. The
Intervenor seeks to represent a unit of engineers and firemen in the
power department. The Petitioner and the Employer contend that
the engineers and the firemen should continue to be included in the
production and maintenance unit.
There are four engineers and four firemen in the power department,
which is under the direct supervision of the power engineer. The
power department is not in a separate building, but is part of the
plant proper. It consists of a boiler room and an adjoining engine
room. The engineers and the firemen operate and maintain the boilers
and other machinery in those rooms. Engineers and firemen comprise
a group which the Board has frequently recognized may constitute
a separate unit, or may be represented as part of a plant-wide unit.3
In these circumstances, we shall consider the desire of the employees
involved before making any unit determination.
There remains to be considered the job classifications set out below,
which the Employer would exclude from the production and mainte-
nance unit, but which the Petitioner would include.
Tester: There are four testers employed by the Employer. They
perform the usual duties of such employees. In accordance with
previous decisions concerning similar employees in other plants of the
Employer, we shall exclude them from the unit."
Storekeeper: There is one storekeeper at the plant. He orders sup-
plies for the storeroom, issues materials and supplies as called for, and
keeps the usual records of such an employee. He is under the super-
vision of the office manager. As he is primarily a clerical employee, a
that it will not accord effective representation . Matter of Baldwin Locomotive Works,
76 N. L. R. B. 922 ; cf. Matter of United States Gypsum Co., 77 N. L. R. B. 1098; Matter
of Lane-Wells Co., 77 N. L R. B 1051.
The Employer further offered to prove that one of the Petitioner 's officers was, or is, a
Communist . The hearing officer properly refused to permit such evidence to be introduced.
Legislative history makes it clear that it is not the purpose of the Act to require the Board
to investigate the authenticity or truth of affidavits which have been filed in accordance with
Section 9 (h) of the Act Matter of Craddock-Terra Shoe Corp., 76 N. L. It. B. 842.
3 Matter of General Motors Corp., 74 N. L. It. B . 18 ; Matter of Goodyear Tire and Rubber
Co., 65 N. L. R. B. 532.
4 Matter of United States Gypsum Co., 78 N. L. R. B . 849; 72 N. L. R. B. 863; 66
N. L. R. B. 619; 65 N. L. R. B. 575.
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UNITED STATES GYPSUM COMPANY 781
category which the parties agreed to exclude, we shall exclude him
from the unit.5
Head Warehouseman: The head warehouseman has eight or nine
employees under him. He may effectively recommend the hiring and
discharge of these employees. We shall exclude the head warehouse-
man as a supervisor.
Back Tender: There are four employees classified as back tenders.
Each back tender has three employees working with him. The back
tender is in charge of the dry end of the paper machine by which the
paper is dried, smoothed, cut into various widths, and bound into rolls.
The back tenders do not have authority to hire, discharge, or discipline
other employees, nor do they possess other supervisory powers. We
shall, therefore, include the back tenders in the unit.
Beater Engineer: There are four beater engineers, each of whom is
in charge of four employees engaged in the preparation of stock for
the paper machine. The beater engineers do not appear to possess
any real supervisory authority. We shall include the beater engineers
in the unit.
We shall direct that separate elections be held among the employees
in the voting groups described below, excluding all supervisors as de-
fined in the Act. However, we shall make no final unit determination
at this time, but shall be guided in part by the desires of the employees
as expressed in the elections hereinafter directed. If a majority of
those voting in the election held in group (1) vote for the Intervenor,
they will be taken to have indicated their desire to constitute a sep-
arate appropriate unit.
1. All engineers and firemen in the power department.
2. All production and maintenance employees, including the
back tenders and the beater engineers, but excluding office and
clerical employees, testers, the storekeeper, the head warehouse-
man, and guards.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, separate elec-
tions by secret ballot shall be conducted as early as possible, but not
later than 30 days from the date of this Direction, under the direction
and supervision of the Regional Director for the Seventeenth Region,
and subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations-Series 5, as amended, among the em-
ployees in the voting groups listed in paragraph 4, above, who were
5 Matter of Solvay Process Division , Allied Chemical and Dye Corp ., 77 N. L. R. B. 1151.
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782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to the
date of the elections, and also excluding employees on strike who are
not entitled to reinstatement, to determine :
Whether the employees in group (1) desire to be represented, for
purposes of collective bargaining, by International Union of Operat-
ing Engineers, Local No. 6 and 6A, or by United Gas, Coke and
Chemical Workers of America, C. I. 0., or by neither ;
Whether or not the employees in group (2) desire to be represented,
for purposes of collective bargaining, by United Gas, Coke and Chem-
ical Workers of America, C. 1. 0.