United States Gypsum Co.

National Labor Relations Board - Board Decisions

Jan 27, 1949

81 N.L.R.B. 344 (N.L.R.B. 1949)

In the Matter of UNITED STATES GYPSUM COMPANY, EMPLOYER and
WAREHOUSE EMPLOYEES UNION, LOCAL No. 503 INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELP-
ERS OF AMERICA, A. F. OF L., PETITIONER
In the Matter of UNITED STATES GYPSUM COMPANY and LOCAL No.
36, INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. OF L.
Cases Nos.18-RC-86 and 18-RC-117, respectively. Decided January
.7,1949
DECISION
AND
DIRECTION OF ELECTIONS
Upon petitions duly filed, hearings in the above consolidated cases
were held on May 24 and August 5, 1948, before a hearing officer of the
National Labor Relations Board. The hearing officer's rulings made at
the hearings 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 Petitioner in Case No. 18-RC-86, herein called the Team-
sters, and the Petitioner in Case No. 18-RC-117, herein called the
Operating Engineers, are labor organizations claiming to represent
employees of the Employer.
I At the hearing on August 5, 1948, the Operating Engineers, the Petitioner in Case No.
18-RC-117, moved to sever case No 18-RC-117 from Case No. 18-RC-8G on the ground
that all evidence in Case No. 18-RC-117 had already been presented , that the hearing of
August 5 would elicit testimony relating only to Case No 18-RC-86 , and that the further
presence of its attorney and officers should not be required . The hearing officer referred
this motion to the Board As the cases were properly consolidated for the purposes of
hearing and no sufficient reason exists for severing them, the motion is denied.
* Chairman Herzog and Members Reynolds and Gray.
81 N. L. R. B., No. 60.
344
UNITED STATES GYPSUM COMPANY 345
3. Questions affecting commerce exist 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 Teamsters seeks to represent a unit composed of all production,
shipping room, and car loading and unloading employees at the
Employer's St. Paul, Minnesota, plant, including testers, the unload-
ing checker, inspectors, and the watchmen, but excluding office em-
ployees, salesmen, truck drivers, engineers, firemen, guards, and super-
visors as defined in the Act. The Operating Engineers seeks to
represent a unit of the firemen, including the head fireman, in the
boiler room at this plant. The Employer opposes the establishment
of a separate unit of firemen, and would exclude testers, the unload-
ing checker, inspectors, and the watchman from the production unit
sought by the Teamsters.
Bargaining history : In August 1944, following an election con-
ducted by the State of Minnesota, Division of Conciliation, Local 48,
International Brotherhood of Firemen and Oilers, AFL, herein called
the Firemen and Oilers, was certified as the representative of the fire-
men at the St. Paul plant. In September 1944, the same labor organiza-
tion was also certified as the representative of the production employees
at the same plant, including testers, the unloading checker, inspectors,
and the watchman. Thereafter, in December 1944, the Firemen
and Oilers and the Employer entered into a separate collective bar-
gaining contract for each unit. In 1946, the Operating Engineers
was certified as the bargaining representative for the firemen and
entered into a contract on their behalf which expired April 30, 1948.
The Firemen and Oilers continued to represent the Employer's pro-
duction employees until its contract expired on April 30, 1948. In
March 1948, the Teamsters demanded recognition as representative
of the production employees. The Employer thereupon declined
further to recognize either of the contracting unions until they had
been certified by the Board.2
The Employer contends that its firemen should be included in the
production unit because, in addition to their duties in the plant
boiler room, they also tend asphalt stills located in the plant yard.
The Operating Engineers contend that these employees constitute a
traditional craft classification which the Board has held to constitute
an appropriate unit. The Teamsters does not seek to represent them.
2 The Firemen and Oilers appeared at the hearing and sought to intervene. As the Fire-
men and Oilers did not claim to represent any of the employees involved in this proceeding,
its intervention was properly denied.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record discloses that these employees operate steam boilers, tend
asphalt stills, and maintain steam and oil driven equipment. They
have been represented in a separate unit for 4 years. They are licensed
engineers physically separated from, and not interchanged with, pro-
duction employees. For these reasons, and because of the bargaining
history in this plant and because no other organization is here seeking
to represent them in a broader unit, we find that the firemen 3 consti-
tute a separate appropriate unit.'
There remain for consideration the employees whom the Teamsters
would include in, and the Employer exclude from, the unit of produc-
tion employees whom the Teamsters seeks to represent.
Testers: There are two testers employed by the Employer. They
perform the usual duties of such employees. In accordance with pre-
vious decisions concerning similar employees in other plants of this
Employer, we shall exclude them from the unit.'
Inspectors: The record discloses that these two men supervise 12-15
men in a separate room in the plant. They assign the men to tasks
and discipline them ; and although they may neither hire nor discharge
employees, they may reject new employees and effectively recommend
discharge of men under their supervision. We find that they are
supervisors as defined in the Act, and shall exclude them from the
unit.
Unloading checker: The Employer contends that this employee
should be excluded from the unit on the ground that he is a supervisor.
The record discloses that he spends the greater part of his time in
routine clerical work either in the warehouse or in the unloading areas
checking incoming raw material. He is in nominal charge of a crew
of 11 men. However, the testimony discloses that his sole responsi-
bility is to convey to the crew the decision of the warehouse superin-
tendent as to which car will be unloaded first and where its contents
will be placed. He has no authority to hire, discharge, or discipline,
or effectively to recommend such action. We find that he is not a
supervisor and shall include him in the unit.
Watchman: The record discloses that the watchman spends equal
amounts of time in maintenance and plant-protection functions. As
he does not spend more than 50 percent of his time as a watchman, we
shall include him, as a maintenance employee, in.the units
3 The parties agree, and the record discloses , that the head fireman is not a supervisor
within the definition contained in the Act. We shall therefore include him in the unit of
firemen
4 Matter of Illinois Division, Bendix Aviation Corporation , 54 N. L R. B. 1051.
Matter of U. S. Gypsum, 80 N. L. R. B. 779; 79 N. L. K. B. 48; 78 N. L. R. B. 849.
Matter of Sampsel Time Control, Inc, 80 N L R. B 1250 While Board Member
Gray if of a contrary view, as stated in footnote 3 of the Sampsel Time Control case, he
deems himself bound by the holding of the majority in that case
UNITED STATES GYPSUM COMPANY 347
We find that the following constitute units appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act:
(a) All production, shipping room, and car loading and unloading
employees, at the Employer's St. Paul, Minnesota, plant, including
the unloading checker and the watchman, but excluding testers, in-
spectors, office employees, salesmen, truck drivers, engineers, firemen,
and supervisors as defined in the Act.
(b) All firemen in the boiler room, at the Employer's St. Paul,
Minnesota, plant, including the head fireman, but excluding all super-
visors as defined in the Act.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, separate elections
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 Eighteenth 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 units found appropriate in paragraph numbered 4,
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, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not the employees in the unit found appropriate in Case No. 18-
RC-86 desire to be represented by Warehouse Employees Union, Local
No. 503, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, A. F. of L., for the purposes of
collective bargaining; and to determine whether or not the employees
in the unit found appropriate in Case No. 18-RC-117 desire to be
represented by Local No. 36, International Union of Operating En-
gineers, A. F. of L., for the purposes of collective bargaining.