United States Gypsum Co.

National Labor Relations Board - Board Decisions

May 20, 1957

117 N.L.R.B. 1677 (N.L.R.B. 1957)

UNITED STATES GYPSUM COMPANY 1677
traffic, and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has violated Section 8 (b) (4) (A) and (B)
of the Act, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies -of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case considered as a whole, the Trial Examiner makes the following;
CoNcLusioNs of LAW
1. Local 175, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By inducing or encouraging employees of B & G Olsen Company, Darin &
Armstrong, Inc., The Airolite Company, Howard P. Foley Co., and Surface Combus-
tion Corp., to engage in a strike or concerted refusal in the course of their employ-
ment to perform any services, where an object thereof was: (a) forcing or requir-
ing B & G Olsen Company, Darin & Armstrong, Inc., The Airolite Company, Howard
P. Foley Co., and Surface Combustion Corp. to cease using the services of Wetz
or to cease doing business with Wetz; (b) forcing or requiring Wetz to recognize
or bargain with Local 175 as the representative of its employees when Local 175
had not been certified as the representative of such employees under the provisions of
Section 9 of the Act; Respondent Local 175 thereby violated Section 8 (b) (4) (A)
and (B) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section '2 (6) and (7) .of the Act.
[Recommendations omitted from publication.]
Acme Construction Company
died Structural Steel
Automatic Sprinkler Company
Bour Electric Company
B & G Olsen Company
Brewer & Company
Chas. Floor Co.
,C. H. Heist Co.
Conditioned Air, Inc.
Darin & Armstrong, Inc.
General Construction Co.
General Glass Co.
Graves Tank & Mfg. Co.
Gustav Hirsch Org. Inc.
Hampshire Corp.
u erman Co.
H.-C. Edwards Co.
Henry 1. KaisenConstruction Co.
APPENDIX A
Hieble Co.
Howard P. Foley Co.
Howard Steel
Howard Steel Erectors
Hunt. Hearing & Supply
Kawneer Co.
Limbach Co.
Patterson-Emerson-Comstock
Pittsburgh Plate Glass
Ross Concrete & Mortar, Inc.
Shoolfield-Harvey Elect. Co.
Southeastern Construction Company
Surface Combustion Corp.
Tri State Roofing Co.
United Sheet Metal Co.
Westinghouse Electric Corporation
W. Q. Watters Co.
United States Gypsum Company, Petitioner and International
Brotherhood of Paper Makers and its Local Union 624, AFL-
CIO. Case No. 6-EM-138. May 20,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Joseph C. Thackery, hearing
,officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed:
1171 NLRB No. 216.
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOAR]
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-member panel [Chairman Leedom and Members
Bean and Jenkins].
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 organization named below claims to represent certain
employees of the Employer.
3. The Union contends that no question concerning representation
exists because a current collective-bargaining agreement is a bar to this
petition. The Employer asserts that this collective-bargaining agree-
ment specifically reserves the question of representation created by the
filing of the petition and therefore is not a bar.
Since its certification by the Board on May 6, 1952,' as collective-
bargaining representative of the employees, the Union has had succes-
sive bargaining agreements with the Employer-Petitioner, the last of
which expired on February 20, 1957. On December 19, 1956, in ac-
cordance with the 60-day notice provisions of the last-named contract,
the Union notified the Employer-Petitioner of its desire to start nego-
tiations for a new agreement. The Employer-Petitioner replied on
February 1, 1957, that it doubted the majority status of the Union and
would require a Board determination of representation, pending which
negotiations for a conditional contract could proceed. On February 5,
1957, the Employer-Petitioner filed the instant petition. Subsequently,
the parties met in a series of bargaining sessions, and on February 20,
1957, entered into a collective-bargaining agreement effective until
February 1958.
This contract contains the following provisions :
SECTION 1. The employer has filed a petition for an election
which is now pending with the National Labor Relations Board.
If this petition results in an election and the Union loses the elec-
tion, this contract becomes null and void. If the Union wins the
election, then this contract shall continue in effect for its full term
and shall be applicable to whatever appropriate unit the Board cer-
tifies. If the Board finally dismisses the petition for any reason so
that no election is held, then this contract shall continue in effect on
the basis of the 1952 certification for its negotiated term.
The Company, on this condition, recognizes the Union as the
sole collective bargaining agency for all employees in the Bargain-
ing Unit shown in Section 2, of the Company's Oakmont Plant
with respect to rates of pay, wages, hours and other conditions of
employment. All employees in the Unit shall be bound by the
terms of this Agreement.
'Case No. (3-RC-953, not reported in printed volumes of Board Decisions and Orders.
UNITED STATES GYPSUM COMPANY 1679
SEC. 2. Subject to the determination of the Board as stated
in Section 1 for the purposes of this agreement, the term "Em-
ployee" shall be deemed to mean the following-: All production and
maintenance employees employed at the Company's Oakmont,
Pennsylvania Plant, including head beatermen, head loaders,
bottomer operators, tuber operators, machine tenders and inspec-
tors, but excluding office and clerical employees, testers and all
supervisors and persons acting in an executive capacity in behalf
of the Company.
The Union now moves to dismiss the petition contending that the,
Employer-Petitioner's participation in collective-bargaining negotia-
tions and its entering into the current collective-bargaining agreement
is inconsistent with its attempt herein to establish that a question con-
cerning representation presently exists. We do not agree with this
contention.
The language of the contract's recognition clause is clear and un-
ambiguous : that the Employer-Petitioner recognized the Union only
conditionally, subject to a final disposition by the Board of the instant
petition. The Employer-Petitioner thereby, with the consent of the
Union, clearly reserved the question of representation. We see no^
reason under these circumstances why the Employer-Petitioner, not-
withstanding its further pursuit of the instant proceeding, should not
have engaged in collective-bargaining negotiations, so as not to leave a
gap between the contract which expired on February 20, 1957, and a
new contract that might have to be negotiated, if the Union should win,
the election in this case. Accordingly, we find no inconsistency in the
Employer's position. As the current contract is conditioned upon the
results of an election that the Board might direct in this case, we find
that it is not a bar. The Union's motion to dismiss, therefore, is denied?'
We find that a question affecting commerce exists concerning the,
representation of certain employees of the Employer-Petitioner within
the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The parties are substantially in agreement as to the composition of
the unit except for the following disputed categories :
Quality inspectors : Contrary to the Union, the Employer-Petitioner
would exclude quality inspectors as technical employees. The primary
duty of these employees is to inspect the quality of bags coming off
the production line. In addition, they physically remove bags from,
a Cf. Un ited States Gypsum Company, 116 NLRB 1771 In that case the Board found'
the Employer's petition inconsistent with a prior collective-bargaining agieement which.
contained the following clause
The unit is subject to any changes made by the Board in its final decision in the
current representation case
This clause obviously referred only to a question of unit composition and not to the
question of representation Accordingly, the Board dismissed the petition, but treated
it as a motion to amend a prior certification and proceeded to determine the status of
certain diaputed employee categories
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conveyor belts and sometimes substitute for production employees
who are sick or on vacation.
In the performance of their inspection duties, which are repetitive
and of a routine character, they check the printing on the bags, check
the tubes and the paste, and inspect the finished bags and their bun-
dling and stacking. They conduct hydrometer, tension, and perfora-
tion tests which are simple manipulations capable of being learned in
a few days. Only 1 of the 4 employees involved is a high school
graduate. Their training requires 2 weeks by which time they are
able to perform their duties satisfactorily. They are separately su-
pervised by the quality superintendent, but work in the production
area and share the working conditions and benefits of production
employees. Under prior Board certifications 3 and collective-bargain-
ing agreements, the quality inspectors have been included in the pro-
duction and maintenance unit. We find that they are not technical
employees. Accordingly, we shall include them in the unit.
Testers : Contrary to the Employer-Petitioner, the Union contends
that these employees should be included in the unit. Under prior
Board certifications 4 and collective-bargaining agreements these em-
ployees have been excluded from the production and maintenance unit
as technical employees. The testers work in the plant's laboratory
under the supervision of the quality superintendent. They are sepa-
rated from the production and maintenance employees and do not
come in contact with the latter in the ordinary course of their duties.
They regularly perform the following types of tests : Bursting
strengths, porosity, smoothness, tensile strengths, tear strengths, mois-
ture, acidity of water, and thickness of paper. In addition, they check
the rate of water flow (Freeman test) and conduct tests to measure
waste and pulp that goes into the sewer. In the performance of
these functions, they use a variety of machinery and testing equipment.
The testers are high school graduates and are required to have a
knowledge of mathematics. Although their training does not require
extended periods of time, they clearly possess skills and education,
and perform work of a technical nature, that set them apart from the
production and maintenance employees. We find that they are tech-
nical employees and shall exclude them from the unit.
We find that the following employees of the Employer-Petitioner
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act : All production and
maintenance employees at the Employer's Oakmont, Pennsylvania,
plant, including head beaterman, head loaders, bottomer operators,
3 U. S. Gypsum Company, 81 NLRB 310, 312, as amended by 85 NLRB 162; and U. S
Gypsum Company, Case No. G-RC-953, not reported in printed volumes of Board Decisions
and Orders.
4 See footnote 3
COMMERCIAL CASTINGS COMPANY 1681
tuber operators, machine tenders, and quality inspectors, but excluding
office and clerical employees, administrative and professional em-
ployees, testers, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Commercial Castings Company, Engineering Division 1 and Con-
tract Tool Engineers , Local 179, American Federation of Tech-
nical Engineers, AFL-CIO, Petitioner. Case No. 21-RC-4543.
May 01, 1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Norman H. Greer, hearing
officer. 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Murdock and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. No 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, for the following
reasons:
The Employer, with offices at 8855 Santa Monica Boulevard, Los
Angeles, California, is engaged in rendering contract drafting and
engineering services to other concerns primarily in the airframe and
guided missile field. The Employer maintains its own premises for
the performance of such contract work at the Santa Monica Boulevard
location in Los Angeles, at 2 locations in Culver City, at 1 location in
Burbank, all within Los Angeles County, and at Tucson, Arizona. In
addition, employees of the Employer are assigned to work at the plant
locations of various companies who have contracted for such service.2
1 Edwaid Reaume and Charles Davis are partners registered under the name appearing
in the caption as amended at the hearing.
2 Included among such customer locations are the plants of Magnavox, Fletcher Aviation,
Marquardt Aircraft , Benson-Leacliner , Santa Anita Engineering, Hughes Aircraft , Northrop
Aircraft ( both Hawthorne and Anaheim plants ), Applied Physics , Hiller Aircraft , Parsons
Engineering , Thompson Products , and Dlenasco Manufacturing , all in Los Angeles County,
and those of Beech Aircraft at Wichita, Kansas, Grand Central Rocket at Redlands,
California , and A. C Sparkplug in Milwaukee , Wisconsin.
117 NLRB No. 218.
423784-57-vol. 117 -10 7