United States Gypsum Co.

National Labor Relations Board - Board Decisions

Jul 13, 1949

85 N.L.R.B. 162 (N.L.R.B. 1949)

In the Matter Of UNITED STATES GYPSUM COMPANY, EMPLOYER and
UNITED PAPER WORKERS OF AMERICA, CIO, PETITIONER
Case No. 6-RC-193
AMENDED DECISION
ORDER
AND
SECOND DIRECTION OF ELECTION
July 13, 1949
On January 26, 1949, the Board issued its Decision and Direction
of Election in the above -entitled case.' Thereafter , on February 10,
1949, the Petitioner filed a Motion for Reconsideration of the Board's
Decision and Direction of Election with respect to the exclusion from
the appropriate unit, as supervisors , of the head beatermen, head
loaders, bottomer operators, tuber operators, and machine tenders
employed at the Employer 's Oakmont , Pennsylvania , plant. On Feb-
ruary 11, 1949 , International . Brotherhood of Paper Makers, AFL,
although not a party to the proceeding , also urged reconsideration
of the Board 's Decision , and moved at the same time to intervene
herein. ` On February 21, 1949, the Employer filed a Statement in
Opposition to Petitioner 's Motion for Reconsideration ; and Motion
of Employer to Strike . On February 21, 1949, the Board issued its
Order granting the Petitioner 's Motion,' reopening the record, and
remanding the case to the Regional Director for further hearing on
the question of the supervisory status of the individuals in the dis-
puted categories.
Pursuant to the Board's Order, a hearing was held before Erwin
Lerten, hearing officer. The hearing officer's rulings made at the
181 N. L. R. B. 310.
s The Employer ' s statement and Motion was received by the Board on the same day that
it issued its Order . The Statement contained no new matter not already considered by
the Board . The Motion was directed at allegations made in the Petitioner 's Memorandum
in support of its Motion for Reconsideration. As these particular allegations had no
relevance to the issues in this proceeding , the Board has not considered them, and the
Employer has not been prejudiced thereby . The Employer ' s Motion is therefore denied.
85 N. L. R. B,, No. 30.
162
UNITED STATES GYPSUM COMPANY 163
-hearing are free from prejudicial error and are hereby affirmed.' The
requests of the Petitioner and of International Brotherhood of Paper
Makers, AFL, for oral argument are hereby denied, as the entire
record of the original 4 and of the reopened hearing, and the briefs 6'
in our opinion, adequately present the issues and the positions of the
parties.
. Upon reconsideration of this case, and upon the entire record herein,,
the Board makes the following supplemental findings of fact:
The appropriate unit:
The Petitioner seeks a unit composed of all the production and
maintenance employees at the Employer's Oakmont, Pennsylvania,.
plant, excluding office clerical employees, professional employees,.
guards, and supervisors as defined in the Act. The parties are in
general agreement as to the composition of the unit.' The Petitioner,.
however, would include head beatermen, head loaders, bottomer oper-
ators, tuber operators, and machine tenders, whereas the Employer
-would exclude them on the ground that they are supervisors within
the :meaning of the amended Act. These categories were excluded
,from the unit in our original Decision on the basis of the uncontra-
dieted testimony of the Employer's works manager. The entire record,.
however, as further developed at the reopened hearing, shows the
situation as to the disputed categories to be as follows :
Head beaterm.en: There are three head beatermen in the Employer's
plant, one on each shift. Each head beaterman has two helpers. The
works manager of the plant here involved, presented as a witness by
the Employer at the original hearing herein, testified that 50 percent
of the time of a head beaterman is spent in supervision, and that the
remainder of his time is devoted to manual labor along with his
helpers; that a head beaterma.n is consulted about promotions; and that
he has the responsibility to recommend discipline or discharge of his
helpers. On the other hand, a witness for the Petitioner at the re-
opened hearing, who had worked as a head beaterman' in this plant
.for 2 years, testified that he spent "in eight hours about ten minutes"'
telling other people in the beater room what to do. This witness
further testified that, although he was asked "once in awhile" for his
opinion regarding new employees in the beater room, he had never-
been instructed, and did not consider it one of his duties, to recommend
3 In its Order of February 21, 1949 , the Board did not pass upon the request to intervene
by International Brotherhood of Paper Makers , AFL. At the reopened hearing, a motion'
to intervene by this organization was denied by the hearing officer because no showing of
interest had been made by it. The hearing officer ' s ruling is hereby affirmed.
4 Our original Decision remains in force except to the extent herein indicated.
5 Counsel for the Petitioner filed a brief on behalf of the Petitioner as well as , a brief
amicus curiae on behalf of International Brotherhood of Paper Makers, AFL.
857829-50-vol. 85-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees for discipline or discharge; that promotions and demo-
tions had been made in the beater _ room without consultation with
the head beaterman; that he had never complained to the tour boss
with respect to any of the men working under him; and that he did
not attend the foremen's meetings.
Head loaders: There are two head loaders in the bag plant and one
in the paper mill. The paper mill head loader and the head loader
on the :day shift in the bag plant each have one helper. The head
loader on the afternoon shift in the bag plant has no helper and alter-
nates weekly as helper on the day shift. The plant manager testified
that the head loaders spend from 60 to 70 percent of their time in
physical work along with their helpers; the remainder of their time
being spent in supervision. In contradiction to this testimony, the
Petitioner's witness, a head loader for 3 years, testified that, even
with an inexperienced man as his helper, he would spend no more
than half an hour of an 8-hour shift in directing the helper. He
further testified that he had been asked to volunteer his opinion re-
garding new employees, but that he had never been told that it was one
of his duties to make recommendations; that he did not attend the
foremen's meetings; and that the helpers did not present grievances
to him for adjustment.
Bottomer operators: There are six bottomer operators in the Em-
ployer's bag plant, three on each of two shifts. Each operator has six
helpers on his machine. The plant manager testified that the work of
the bottomer operators requires judgment and discretion, and that
they have authority to reprimand employees and to make recommenda-
tions for promotion, transfer, and discharge. A witness for the Peti-
tioner at the reopened hearing, who had been a bottomer operator for
6 years, testified that he had not been told that one of his duties was to
make recommendations with respect to employees working on his
machine, that none of the employees working on his machine took up
grievances with him; that he attended safety meetings but did not
attend the foremen's meetings; that no more than 5 percent of his
time was spent in directing other employees on the machine; and that
the only directions given by him were of a routine nature. He has
been asked his opinion concerning new people working on the machine
with him, but he testified that other workers assisting him on the
machine were also asked their opinions.
Tuber operators: There are four tuber operators in the bag plant,
two on each of two shifts. Each tuber operator has three helpers.
The plant manager testified that each tuber operator devotes 60 percent
of his time to supervising these assistants, the remainder of his time
being spent in physical labor. The Petitioner's witness, a head loader
UNITED STATES GYPSUM COMPANY 165
who had previously worked on a tuber machine in this plant, testified
that he had never been disciplined by the tuber operator while working
on the machine, and that he remembered. only one instance in which a
tuber operator had reprimanded, but had not discharged, another
employee for slow work. He further testified that, with an inexperi-
enced man on the crew, a tuber operator would spend up to 1 hour
of an 8-hour day in directing the crew, but that, with an experienced
crew, the tuber operator would spend very little time in directing the
men.
Machine tenders : There are three machine tenders in the Em-
ployer's paper mill, one on each shift. Each machine tender has
three helpers. The Petitioner's witness, a machine tender for the
Employer for 4 years, testified-in contradiction of the works man-
ager's testimony that 70 percent of a machine tender's time is spent
in supervision-that with "a normal crew of relatively experienced
men" he would not spend more than half an hour a day in telling
them what to do. He testified further that grievances were not pre-
sented to him; that he did not attend the foremen's meetings; that
he did not consider it one of his duties to make recommendations or
reports with respect to men working on the crew with him ; and that,
in fact, he never reported any man for poor work. He further testified
that the opinions of the other workers on the machine, as well as his
own opinions, were sought in the event that promotions were being
considered.
It thus appears, from the entire record, that the individuals in the
disputed categories do not possess supervisory authority within the
meaning of the amended Act. They have never been told that they
have, and they do not in fact exercise, authority effectively to recom-
mend the discipline or discharge of employees working with them.6
Much, if not most, of their work is identical with that done by their
helpers. The Petitioner claims that at least 95 percent of their time
is spent in physical labor, and the Employer admits that from 30 per-
cent to as much as 70 percent of their time is thus spent. To the extent
that they direct their helpers, such direction is in the nature of the
supervision generally exercised by an experienced employee over those
who are less skilled.
The Employer's organizational chart does not list these disputed
categories as part of its supervisory hierarchy. These categories
were included in the unit in the several collective bargaining contracts
9 Although the plant manager testified generally that these individuals possess authority
to make such effective recommendations , he gave no instances of the exercise of this
authority.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consummated by the Petitioner's Local Union No. 70 and the Em-
ployer. All those in the disputed categories are hourly paid, whereas.
all the admitted supervisors are salaried. Furthermore, on July 18,.
1948, following the expiration of its most recent contract with Peti-
tioner's Local Union No. 70, the Employer posted its "Plant Practices.
for Hourly Employees," in which it set forth wage scales and regula-
tions which covered all the disputed categories, but did not cover-
supervisors.
Moreover, the record shows that there are approximately 107 em-
ployees doing production and maintenance work. By agreement of
the parties, 14 individuals were excluded from the unit as supervisors.'
To find the 19 individuals in the disputed categories also to be super-
visors would be to say that there are at the Employer's plant 29 super-
visors to 88 rank and file employees, or a ratio of one supervisor to,
every 3 employees. This would constitute a set-up at sharp variance
from the usual practice in the paper industry."
In view of the foregoing, and upon the entire record herein, we-
find that all the production and maintenance employees at the Em-
ployer's Oakmont, Pennsylvania, plant, including inspectors, head-,
beiitermen, head loaders, bottomer operators, tuber operators, and
machine tenders, but excluding testers, office clerical employees, pro-
fessional employees, guards, and supervisors, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning-
of Section 9 (b) of the Act."
We shall set aside the original Direction of Election issued herein,..
and direct that an election be held among the employees in the unit
found appropriate above who were employed during the pay-roll'-
period immediately preceding the date of this Second Direction.
ORDER
IT IS HEREBY ORDERED that the Direction of Election issued herein on,
January 26, 1949, be, and it hereby is, vacated and set aside.
SECOND DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
-purposes of collective bargaining with the Employer, an election by
T The record shows that , although not all of these 14 individuals supervise the production-
and maintenance unit, at least 10 of them do.
.8 The Petitioner introduced evidence that the normal ratio of supervisors to employees-
in the paper industry is approximately one supervisor to every 12 or 15 employees.
I For the reasons stated in our original Decision , the part-time watchmen and inspectors:
are being included in, and the testers excluded from, the production and maintenance unit-
herein found appropriate.
UNITED STATES GYPSUM COMPANY 167
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 super-
vision of the Regional Director for the Sixth Region, and subject to
Sections 203.61 and 203.62 of National Labor Relations Board Rules
and Regulations-Series 5, as amended, among the employees in the
unit found appropriate above, who were employed during the pay-roll
period immediately preceding the date of this Second Direction of
Election, 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 reinstated prior to the date of the
election, and also excluding employees on strike who are not entitled to
reinstatement, to determine whether or not they desire to be repre-
sented, for purposes of collective bargaining, by United Paper Work-
ers of America, CIO.