United States Gypsum Co.

National Labor Relations Board - Board Decisions

Jan 28, 1958

119 N.L.R.B. 1415 (N.L.R.B. 1958)

UNITED STATES GYPSUM COMPANY 1415
members, and to the extent possible, it has adjusted grievances. On
the other hand, there is no showing of any activity by the Intervenor.
Although the record contains the October 15 letter indicating a pur-
ported revival of the Intervenor, and it was' purportedly represented
at this hearing, it does not appear to have engaged in any activity, nor
did any member of it testify herein. There is no evidence on this rec-
ord that the Intervenor is ready, willing, or able to administer the
contract. Instead, the Employer has dealt with the dissident group,
which numbers all former officers of the Intervenor and almost all
the employees, but has attempted to treat this group as if it were the
old organization. We do not think that this attempt to perpetuate
this old organization as an entity establishes it to be a functioning
labor organization. Upon the entire record, we are satisfied that no
stabilizing purpose would be served by finding the contract a bar. We
find that the contract between the Intervenor and the Employer does
not bar an election herein and that a question affecting commerce exists
concerning the representation of employees of the Employer within
the meaning of Section 9 (b) of the Act.
4. In accordance with the stipulation of the parties, we find that
the following employees of the Employer at its Wilkes- Barre,
Pennsylvania, plants, 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, excluding office clerical
employees, guards, watchmen, professional employees, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
United States Gypsum Company, Petitioner and United Stone
and Allied Products Workers of America, AFL-CIO, and
Its Local 178.1 Case No. 8--RM 170 Jainuaryj 28, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition- duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John Vincek, 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 Bean and Jenkins].
i The name of the Union appears as corrected at the hearing
119 NLRB No 178
141E DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 certain em-
ployees of the Employer.
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 unit :
The Petitioner and the Union agree that a unit of all production
and maintenance employees at the Employer's Gypsum, Ohio, plant
and mine, including inspectors, powerhouse employees, truckdrivers,
sink float keymen, construction workers, storeroom employees, and
plant clerical employees, guards, and supervisors as defined in the Act,
is appropriate for purposes of collective bargaining? There are about
588 employees in the plant and mine, of whom approximately 95 are
salaried and not in dispute. All the remaining personnel are hourly
paid, and the Employer-Petitioner contends that 63 of them should
be excluded-17 as technical employees, and 46 as supervisors. The
Union would include all the employees in these disputed categories
as regular production and maintenance employees.
Laboratory employees: This category includes 17 testers who are
located either in the main laboratory or in one of the departmental
laboratories. They are responsible to the quality supervisor or to the
supervisors of the department where they work. The only evidence
bearing on the duties of the testers was introduced by the Employer,
whose quality superintendent testified that applicants for jobs as
testers are required to have a high school education, preferably with
some science ; that the difficult nature of the tests requires 6 months'
training before promotion to the position of A-tester; and that testers
perform a large variety of special tests using numerous testing devices.
Contrary to the Union' s assertion , there is no evidence in the record
showing that testers perform simple routine tests which require no
special training or education. In previous decisions involving this
same plant,' the Board found that these testers were technical em-
ployees. As the uncontradicted evidence in this case indicates that
testers perform' complicated tests of a technical nature requiring spe-
cial training, we find that testers are technical employees and exclude
them from the unit.
2In 1955 the Board directed an election at this plant , finding a production and mainte-
nance unit appropriate ( 114 NLRB 1285 ). Thereafter , the instant Union was certified
and entered into a contract with the Employer.
3 United States Gypsum Company, 57 NLRB 1240; 72 NLRB 863; 114 NLRB 1285.
UNITED STATES GYPSUM COMPANY 1417
Alleged Supervisors
In support of its request for exclusion of this large number of em-
ployees as supervisors, the Employer relies strongly on a 1955 decision
of this Board in which all were so excluded.' In this proceeding, how-
ever, the record evidence is more detailed, particularly with regard
to the duties and responsibilities of the alleged supervisors and their
relationship to other production and maintenance employees. Under
the circumstances, we do not consider the earlier decision dispositive
of the issues now raised.
Contrary to the Employer's contention, the record shows that the
employees in dispute do not have power effectively to recommend
changes in the status of other employees. They do not adjust griev-
ances and are not included in the Employer's established formal
grievance procedure. Their benefits and working conditions are simi-
lar to those of the other hourly employees, rather than to the salaried
supervisors. The salaried supervisors also enjoy different vacation
schedules and different methods of compensation for overtime work.
The wages of the alleged supervisors range from $1.891/2 to a maxi-
mum of $2.341/2 per hour, whereas the salaries for the admitted
supervisors start at $475 per month.
In the absence of any of the usual indicia of supervisory status,
there remains for consideration only the question, also raised by the
Employer, whether these employees responsibly direct the work of
other employees. The Employer contends that they do, while the
Union insists that whatever direction of other workmen may appear in
the duties of this group is only routine in nature and does not require
use of independent judgment.
Before commenting on the detailed work of each disputed category,
we note another element in the total picture of this case, which the
Board has consistently deemed highly persuasive in the ultimate deter-
mination of supervisory issues. If we were to exclude the employees
in the disputed categories as supervisors , the ratio of supervisors to
rank and file employees would be highly disproportionate. For
example, in the engineering department there are 5 salaried super-
visors and 60 hourly employees. The Employer would also exclude
7 operating engineers, 1 lead trackman, and 5 lead mechanics, and
there would result an unusually high- ratio of 18 supervisors to 47
employees, or 1 supervisor to less than 3 employees. Similarly, there
are 6 supervisors and 58 hourly employees in the board department.
Here, the Employer would exclude 4 board machine operators, 2 car
checkers, and the head mechanic, thus resulting in a ratio of 13 super-
4 United States Gypsum Company, 114 NLRB 1285.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visors to 51 employees , or 1 supervisor to every 4 employees. In
comparable situations , the Board has found the disputed categories
not to be supervisors.'
Machine operators : This category includes 26 employees located in
various departments and classified as board machine operators , mould-
ing machine operators , automatic finishing machine operators, A-
sanders, A -slitters, cupola operators , and industrial wool machine
operators . Their wages range from $1.891/2 to $2.091/2 per hour,
slightly higher than for the employees with whom they work, but it is
clear from the record as a whole that the difference is based on their
skill and experience, rather than responsible direction of other
employees . The number of employees working on each machine varies.
Of the 26 machine operators , 12 have as few as 2 employees in their
"crew"; and only 8 have more than 4 "crew" members . To some
extent, the machine operators coordinate the operations of these lesser
skilled employees , but for the most part, these workers automatically
shift positions in a routine manner following established operating
procedure.
On these facts and on the entire record, it is clear that the machine
operators are merely conduits between the true supervisors and the
crewmen. Whatever authority they exercise with respect to the
employees comprising their crews is routine in nature and does not
require the exercise of independent judgment. Accordingly, we find
that the machine operators are not supervisors within the meaning of
the statutory definition.
Operating engineers : There are seven licensed engineers in this cate-
gory and the record shows that they are qualified to work without the
constant supervision of the power plant supervisor to whom they are
directly responsible , and from whom they receive their orders. They
are assisted in their work by a crew of 1 to 4 employees who perform
simple routine tasks such as handling ashes, passing coal , obtaining
samples of water , and procuring supplies from the supply room. The
operating engineers , like the machine operators , direct to some extent
the work of their crew , but it is clear from the entire record , that the
control they exercise derives from their skill , their experience, and
their responsibility for the operation and control of the complex
machinery involved . As they do not responsibly direct employees
within the meaning of the Act, we find that the operating engineers
are not supervisors .'
Car checkers , lead trackman , and block head loader : The two car
checkers are responsible to the ' loading foreman whose immediate
supervisors are the general foreman and the board department super -
United States Gypsum Company, 118 NLRB 20 ; 85 NLRB 162 , 164. See, Pervel
Corporation , 119 NLRB 497.
6 See, Southern Bleachery and Print Works, Inc ., 115 NLRB 787
UNITED STATES GYPSUM COMPANY 1419
intendent. The loading foreman receives orders, separates them ac-
cording to the method of transportation to be used, and delivers them
to the truckloading area or to the rail car loading area, where the
checkers fill the orders and see that the trucks or rail cars are loaded
according to prepared diagrams. The checkers receive the same rate
of pay as truck operators with whom they work, and often are paid
less than loaders who are on piece rate.
The lead trackman receives the same rate of pay as the car checkers
and is responsible to the yard superintendent for keeping the tracks
clean during inclement weather and whenever necessary. On oc-
casion, he has a crew of 3 to 5 employees, but normally, and for the 6
months preceding the hearing, his crew has consisted of only 1 man.
The block head loader is responsible to the general foreman who in
turn is responsible to two salaried supervisors. He works with a crew
of 4 to 8 loaders and loads cars and trucks according to a loading
schedule based on orders. He does the same manual work as the
other loaders 60 percent of the time and in addition fills out reports
and makes inventories.
Although the Employer contends that the car checkers, the lead
trackman, and the block head loader responsibly direct the employees
with whom they work, we find that their direction of other employees
is routine in nature and follows closely upon the schedules and orders
of their supervisors. Accordingly, we find that they are not
supervisors.
Head mechanic, maintenance lead mechanic, mechanic keymen, and
lead mechanics : This category includes 9 employees, at least 7 of
whom are classified as mechanic keymen by the Employer. Although
they possess a variety of titles denoting that they are all mechanics,
the record discloses that some are electricians, some are welders, and
others diversified craftsmen. All of them are paid $2.341/2 per hour;
all of them are the highest skilled workers in their respective craft
specialty; and all of them are more skilled than the employees in their
crews. The average size of each crew is four men, not all of whom
are mechanics, although classified as mechanics (A, B, and C) and
mechanic helpers (A and B).
The head mechanic and his crew maintain equipment in the mill
department and are responsible to the general foreman and the de-
partment superintendent. At the beginning of the day shift, the
mechanics are assigned various repair jobs from a list prepared by
the night shift foreman. Although the head mechanic does some re-
pair work himself, most of his time is spent inspecting the equipment.
Records of inspections are prepared by the head mechanic, but time-
cards showing the machines repaired and serviced by the mechanics
are kept by the general foreman. Only the general foreman or the
superintendent can halt production to make major repairs. A witness
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Employer testified that the relationship between the head me-
chanic and his crew is that of a skilled craftsman to others less skilled.
The maintenance lead mechanic and his crew work in the board'
department performing minor repairs, lubricating all the equipment,
changing knives in the machines, and changing oil in the trucks. If
the machine operators notice that a machine needs repairs, they re-
port this to the shift foreman who records this report in a log book
which the maintenance lead mechanic reads as soon as he comes on
duty in the morning. This employee spends a portion of his time.
welding, and although there are seven admitted supervisors in the
department, the record shows that he receives his "instructions" di-
rectly from the superintendent or the assistant superintendent.
There are 2 mechanic keymen, 1 on each shift, working underground
in the mine. According to the Employer's mine superintendent, the,
mechanic keymen are expert tradesmen, do manual work 50 percent
of the time, and are responsible to the shift foreman who in turn is
responsible to the general foreman and the mine superintendent. On
each shift there are about 14 to 17 employees working in the 2 mining
areas, and on the day shift there is an additional crew of 3 to 8 em-
ployees working in the development area. All these employees are
under the immediate supervision of the shift foreman, even though he,
spends 50 percent of his time in the main mining area. Contrary to
the Employer's contention, we find no evidence showing that the me-
chanic keymen responsibly direct other employees while the shift fore-
man is visiting the other areas of the mine. In fact, the record shows
that if the shift foreman is needed in any area, he can be immediately
contacted by telephone.
One of the five lead mechanics, a skilled electrician, is referred to as
the "electrical working foreman." He works 40 percent of the time
mainly troubleshooting, and in addition prepares requisitions and
timesheets. This electrician and the 6 lesser skilled electricians are
immediately responsible to 2 salaried supervisors, namely, the elec-
trical foreman and the general foreman. Another lead mechanic, who
is called the "construction assistant," is a skilled welder and performs
all difficult welding jobs. He spends over 50 percent of his time in the
superintendent's office preparing plant maintenance record sheets and
other paper work. Of the remaining 3 lead mechanics, 1 is a skilled
mechanic, 1 is a skilled pipefitter, and 1 is called the "construction
foreman." They perform manual work at least 40 percent of the
time, and spend the remainder of their time organizing the work of
12 lesser skilled employees, none of whom are assigned to a particular
lead mechanic. All of these employees are directly responsible to the
general maintenance and construction foreman.
On these facts and on the entire record, we find that the relationship
between these alleged supervisors and the employees with whom they
UNITED STATES GYPSUM COMPANY 1421
work is that of a skilled craftsman and his helpers, and whatever
authority they possess as to other employees derives from their work-
ing skill and experience; it is not the type of authority contemplated
in the statutory definition of a supervisor. Accordingly, we find that
the head mechanic, the maintenance lead mechanic, the mechanic key-
men, and the lead mechanics are not supervisors.
As the foregoing employees are not supervisors but regular produc-
tion and maintenance workers, they have a clear community of interest
with the remaining employees and appropriately belong in the same
bargaining unit with them.' However, as they have been excluded
in the past from the present existing bargaining unit and from the
pertinent collective-bargaining agreements, they are now entitled to
:a self-determination election for the purpose of deciding, as a separate
group, whether they wish to be represented by the Union and added to
the existing bargaining unit.8 Accordingly, we shall direct separate
elections in the following groups of employees at the Employer's
Gypsum, Ohio, plant and mine :
A. All production and maintenance employees, including inspec-
tors, powerhouse employees, truckdrivers, sink float keymen, construc-
tion workers, storeroom employees, and all plant clerical employees,
but excluding the acoustone warehouse foreman, professional employ-
ees, all office clerical employees, guards, laboratory employees and all
other technical employees, and all supervisors as defined in the Act .9
B. All board machine operators, automatic finishing machine opera-
tors, moulding machine operators, A-sanders, A-slitters, cupola
operators, industrial wool machine operators, operating engineers,
car checkers, lead trackman, block head loader, head mechanic, main-
tenance lead mechanic, mechanic keymen, lead mechanics, construction
assistant, construction foreman, and the electrical working foreman,
excluding all other employees and all supervisors as defined in the
Act.lo
If a majority of the employees in voting group B vote against the
Union, they will be taken to have indicated their desire to remain
outside the presently recognized unit, and the Regional Director is
instructed to issue a certification of results of election to that effect.
If a majority of the employees in voting group A only, cast their bal-
lots for the Union, they will be deemed to have indicated their desire
to be represented by the Union and the Regional Director is instructed
to issue a certification of representatives to the Union as to this unit,
7 United States Gypsum Company , 118 NLRB 20.
8 The Zia Company, 108 NLRB 1134, as amended 109 NLRB 312.
9 This group is the presently recognized unit. The parties agreed to exclude the
acoustone warehouse foreman as a supervisor , and employees Leggett, Capko, and Holder
as office clerical employees . The category of railroad conductor no longer exists.
70 This group consists of employees entitled to a self-determination election.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which we find to be appropriate for the purposes of collective
bargaining.
On the other hand, if a majority of the employees in voting group B
vote for the Union, that group will appropriately be included in the
presently recognized unit and their votes shall be pooled with those
in voting group A.11 If a majority of employees in the pooled group
select the Union, the Regional Director is instructed to issue a certifica-
tion of representatives to such labor organization for such unit, which
under the circumstances we find to be appropriate for the purposes
of collective bargaining.
[Text of Direction of Elections omitted from publication.]
11 In the event the votes are pooled , they shall be accorded their face value.
Carolina Power and Light Company and Utility Workers Union
of America, AFL-CIO, Petitioner. Case No. 11-RC-980. Jan-
uary 28, 1958
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF ELECTION
On December 12, 1957, the Board issued a Decision and Order in
the above-entitled proceeding,' finding that the primary unit sought
by the Petitioner, namely, a unit of certain regular full-time employees
in the Employer's northern division, was inappropriate, and that the
appropriate unit was one which included all such employees in the
Employer's central service area. Although it appeared that the
Petitioner, in the alternative, would represent any unit which the
Board found to be appropriate, the Board found that the Petitioner's
showing of interest was not sufficient to warrant holding an election
among the employees in the central service area. Accordingly, the
Board dismissed the petition.
On December 20,1957, the Petitioner filed a motion to amend decision
and to direct an election. A copy of this motion was served on the
Employer; the Employer did not file an answer.
It now appears that during the course of the hearing herein, the
Petitioner made the alternate request to represent any unit which the
Board found to be appropriate, and thereafter, submitted additional
cards which it deemed sufficient to meet the 30-percent showing of in-
terest requirement in a unit comprising the employees in the central
service area? The Board's Regional Office acknowledged receipt of
1 119 NLRB 742.
2 At the hearing , the Employer contended that this was the only appropriate unit for
collective-bargaining 'purposes.
119 NLRB No. 177.