United States Gypsum Co.

National Labor Relations Board - Board Decisions

Aug 14, 1969

178 N.L.R.B. 85 (N.L.R.B. 1969)

UNITED STATES GYPSUM COMPANY
United States Gypsum Company and Local 627,
International Union of Operating Engineers,
AFL-CIO, Petitioner . Case 16-RC-4998
August 14, 1969
DECISION ON REVIEW
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On October 28, 1968, the Regional Director for
Region 16 issued a Decision and Direction of
Election, attached hereto, in which he found
appropriate a unit of all production and
maintenance employees at the Employer's Southard,
Oklahoma, plant and quarry operation, including,
inter alia, several classifications of employees
generally referred to as hourly supervisors.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
filed with the National Labor Relations Board a
timely request for review of said Decision,
contending that all the hourly supervisors are
supervisors as defined in the National Labor
Relations Act and that, therefore, they should be
excluded from the unit found appropriate. The
Petitioner filed opposition to the request for review.
By telegraphic order dated November 20, 1968,
the Board granted the request for review and stayed
the election pending decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has carefully reviewed the entire
record in this case with respect to the issues under
review, and hereby affirms the Regional Director's
Decision.'
Accordingly, the case is remanded to the Regional
Director for Region 16 for the purpose of holding
an election pursuant to his Decision and Direction
of Election, except that the payroll period for
determining eligibility shall be that immediately
preceding the date below.'
'The case of United States Gypsum Company. 127 NLRB 134, to the
extent that it is inconsistent with our Decision herein , is hereby overruled.
With respect to the hourly supervisors (as well as the elevator man) who
the Employer alleges are relief foremen who substitute for admitted
supervisors for a substantial portion of their working time , we affirm the
Regional Director' s reliance on The Great Western Sugar Company, 137
NLRB 551, as a basis for including them in the unit for the periods of
time when they are not relieving foremen . See also Shell Oil Co., 173
NLRB No. 148.
'In order to insure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236; N. L.R.B. v . Wyman-Gordon Company.
394 U.S. 759. Accordingly, it is directed that a corrected eligibility list,
containing the names and addresses of all the eligible voters must be filed
by the Employer with the Regional Director for Region 16 within 7 days
of the date of this Decision on Review . The Regional Director shall make
the list available to all parties to the election . No extension of time to file
85
this list shall be granted by the Regional Director except in extraordinary
circumstances . Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed.
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 a hearing officer 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
Act, the Board has delegated its powers in
connection with this case to the undersigned
Regional Director.
Upon the entire record in this case, the Regional
Director finds('"
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of the Act.
4. The following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act'
'16oth parties filed briefs which have been duly considered.
'The Employer, a Delaware Corporation, is engaged in the building
materials and related industries throughout the United States and abroad.
At its Southard , Oklahoma , plant , the only plant involved in this
proceeding , the Employer mines gypsum rock and produces gypsum board,
plaster and industrial fillers. There are approximately 200 employees in the
unit sought by Petitioner . The Southard operation consists of a plant and a
quarry . The latter is located about three miles south of the plant area and
is approximately 6 by 2 miles in dimensions , covering some 3,000 acres.
The plant is organized on a departmental basis with four operating
departments and four staff departments . Two of the four staff
departments , office and personnel , are not sought by Petitioner , but quality
and plant engineering are. The four operating departments sought by
Petitioner are as follows : quarry, which is responsible for mining and
quarrying the rock; the mill, which is responsible for kiln operations; the
board plant, which produces finished gypsum board ; and packing, which
handles the other products produced.
The works manager is in charge of the Southard operations . There are
eight department heads which report directly to him. They are responsible
for individual safety and production in their departments. Beneath the
department head or superintendent in some there is the general operating
foreman and in others the next level of supervision is foreman . The parties
are in agreement that supervisors at this level, who are salaried , should be
excluded . Below them the Employer maintains its first line of supervision
referred to in the record as hourly supervisors (approximately 36). The
Petitioner seeks to include the hourly supervisors in the unit as
nonsupervisory employees , while the Employer opposes their inclusion on
the basis that they are actual supervisors. Both parties agreed to exclude as
supervisors Joseph Hart and Dale Moore although they were hourly paid
because they were working as supervisors. Both parties agreed to the
inclusion in the unit of the janitor (Bartel) in the engineering department
and the technicians in the quality department.
The Quarry Department
Under the superintendent are four foremen as follows: one drill and
blaster rock preparation foreman (drill foreman); one service and
maintenance foreman ; and two load and haul ! foremen (two shifts). The
hourly supervisor under the drill foreman isiireferred to as crew leader and
178 NLRB No. 14
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees at the
Employer's Southard, Oklahoma, plant and quarry,
including testers, janitor , and hourly paid
supervisors (crew leaders, head service men,
calciners, chief operators, keener operators, quarry
department miscellaneous crew leaders, packing
department miscellaneous crew leaders, machine
men, dry end leadmen, and head maintenance men),
as drill and blasting hourly supervisor The hourly supervisors under the
service and maintenance foreman are referred to as head service men (and
sometimes as head maintenance men). The hourly supervisors under the
load and haul foreman are referred to as crew chiefs (and sometimes as
crew leaders, load and haul crew leaders , and load and haul hourly
supervisors)
The drill foreman has a crew of 10 employees including the crew leader.
In the quarry they are responsible for cleaning , drilling and helping in the
blasting of the rock . The drill foreman is normally in charge and during
his absence the crew leader takes over.
The service and maintenance foreman has three head servicemen and
five or six men. The early and late shifts are each worked by a head
serviceman and a crew member, and the day shift by a head serviceman
and three or four crew members The three head service men rotate shifts
every 2 weeks . The service and maintenance foreman and his crews are
responsible for repairs and maintenance to the mechanical equipment in
the quarry so that it remains serviceable.
A load and haul foreman is over the morning shift and another , over the
afternoon shift . Each has a crew chief with one crew member . The crew
may be increased in case of a big job by borrowing men from the quarry
shop They are responsible for loading and hauling the rock from the
quarry to the crusher mill and for crushing and cleaning up around the
crusher.
The hourly supervisors receive II to 17 cents an hour more than the next
highest paid man beneath them and as much as 74 cents, above the lowest
paid level They receive overtime after 40 hours When they substitute in
the foreman ' s absence, they may receive an increase in their hourly wages
of about 30 cents . In the summer during vacation leave such substitution is
substantial among the load and haul supervisors who may put in as high as
50 percent of their time . However, the sporadic or temporary exercise of
supervisory powers does not change an employee's status. Green Brothers
Lumber Corp ., 158 NLRB 1642, 1644 . Also see The Great Western Sugar
Company, 137 NLRB 551, pertaining to seasonal supervisors who are
regarded as employees during the off season when not serving as
supervisors.
The hourly supervisors submit reports on their work or production,
"man-hour reports ," equipment reports, "safety contacts " reports, and
safety and improvement recommendations . They have access to a
foreman's desk for such purposes They attend monthly safety meetings
along with supervisors and management and the annual safety dinner and
production meeting But neither they nor their foremen attend the
supervisory meetings restricted to superintendents.
The duties of the hourly supervisors in the quarry department involving
directing the work and filling jobs appear to be routine and do not involve
the exercise of independent judgment requiring discretion The head
servicemen appear in the relationship of journeymen to apprentices None
of them appear to be involved in duties which are of the type which require
close supervision All of the hourly supervisors physically work , giving
priority to any necessary direction of the employees working along with
them . The record does not contain a satisfactory percentagewise
comparison of time In fact, the relationship of an hourly supervisor to his
crew members appears to be derived from the former 's greater experience
obtained in the particular type of work being done; and to be direction of
the efforts of the men under them rathern than the execution of
supervisory authority . Bugle Coat , Apron & Linen Service , 132 NLRB
1098, 1100 . Although on occasions they may require the men to re-do their
work , there is no indication that this in any way affects their rate of pay.
Requests of the men for time off are referred to the foreman In case of an
emergency , an hourly supervisor could act, but he would be expected to get
in touch if possible or later to , report it immediately to his foreman.
Although oral and written reprimands are referred to in the record as
being made by hourly supervisors , they do not appear significant The
instances related mostly involved intoxication on the job and safety
matters As for intoxication , it is the Employer's policy that all men be
sent home who are found in this state . Further, it is the Employer's safety
practice to do so As for hourly supervisors cautioning crew members
about their safety , this works both ways. Whenever a reprimand is reduced
to writing , it has to be written up and signed by the foreman and the
superintendent before becoming part of the Employer 's records There is
no set rule as to any number of reprimands leading to a discharge or other
disciplinary action by the Employer As to working overtime, it is the
Employer's policy that when such work is necessary that it be distributed
as evenly as possible There is no indication in the record that any of the
hourly supervisors violate this policy In respect to recommendations for
wage increases , promotions , and transfers , there are but a few instances
related in the record In none of these is it shown how the hourly
supervisor effectively brought about the raise and/or the promotion
Whenever a recommendation has to be concurred in on the basis of an
independent investigation or is dependent upon the judgment of another,
the making of such a recommendation is not regarded as the exercise of
effective authority Yellow Cab, Inc , 131 NLRB 239 Although hourly
supervisors were stated to have authority to handle complaints and
grievances , no actual use of such authority was recited West Virginia Pulp
and Paper Co, 122 NLRB 738
Thus we see there are five supervisors and five hourly supervisors with
about 18 nonsupervisory employees If the hourly supervisors were
regarded as supervisors , the ratio of supervisors to employees would be
better than one to two . Considering that one crew has nine of these 18
employees then as to the remaining five crews the ratio approaches one to
one This is considered an inordinately high ratio of supervisors to
employees, particularly where the nature of the work does not require such
a degree of supervision Since the Employer regards all of the hourly
supervisors as being in one category as to supervisory authority it follows
that no exception need be considered for the crew leader over the crew of
nine (drill and blasting hourly supervisor) Because of the resulting high
ratio of supervisors to employees if hourly supervisors were to be regarded
as supervisors , this is an additional reason for finding them to be
non-supervisory Welsh Farms Ice Cream , 161 NLRB 1667; West Virginia
Pulp and Paper Co, 122 NLRB 738.
Thus, the hourly supervisors in the quarry department do not exercise
any single aspect of the authority of supervisors nor do they possess any
indicia of supervisors Accordingly, we find that the hourly supervisors
working in the quarry department are nonsupervisory , and therefore, we
shall include them in the unit as production and maintenance workers
The Milling Department
The milling superintendent has under him one general foreman and three
foremen . There are II hourly supervisors A foreman and three hourly
supervisors are assigned to each of the three shifts The normal shift will
have about 5 non-supervisory employees The total non -supervisory
employees will range from 16 to 20, depending upon the production
schedule During the busy season , they may be as high as 30
Three operations conducted in separate areas of the plant are handled on
each shift as follows ( 1) calcine, (2) Hydrocal , and (3 ) keenes . The hourly
supervisors for each of these operations are designated , respectively: (1)
calciner, (2) chief operator , and (3) keenes operator "Calcine" is a term
used to describe , the heat-treatment in kilns of material taken from the
quarry by which water and /or carbon dioxide are driven off or evaporated
Material which is calcined is used to produce normal calcine plaster and to
supply the material for making gypsum wallboard The Hydrocal process
(a trade-mark name ) involves heat -treatment of the material in such a way
as to produce an end product which is "essentially a high-strength
controlled set, controlled plaster" which is used for industrial molds and
molding By the keenes process the heat-treatment produces material which
is used for industrial fillers or as extenders in industrial products , including
such use as in toothpaste.
The general responsibilities and duties set forth above in discussing the
hourly supervisors in the quarry department are equally applicable on this
record to the hourly supervisors in the milling department. Although the
hourly supervisors in the milling department work with different machinery
and under different conditions, we find that the duties, responsibilities,
authority , recommendations , etc are no more or greater than those
detailed above for the hourly supervisors in the quarry department; and
therefore , we will not burden this decision with a discussion of such
matters If the hourly supervisors are considered as supervisory employees,
then the ratio of supervisory employees to nonsupervisory employees, if
anything , is even greater than in the milling department If I1 hourly
supervisors are added to the 3 foremen , general foremen and
superintendent there would be 16 supervisors , to 16 nonsupervisory
employees , or 20 or 30, whichever of these numbers may be required by
the production schedule. Therefore , we find that the hourly supervisors in
the milling department designated as calciners , chief operators and keenes
operators are nonsupervisory employees , and we shall include them in the
unit as production employees
The Board Plant
Gypsum wallboard is produced in the board plant which is under the
UNITED STATES GYPSUM COMPANY
but excluding office clerical employees , professional
employees , guards, salaried foremen, and
supervisors as defined in the Act.
[Direction of Election" omitted from publication.]
supervision of the board plant superintendent Under him is a general
foreman and two loading foremen Under the general foreman are three
shift foremen , one for each of three shifts Under each shift foreman are
two hourly supervisors , a machine man (also called a wet end supervisor)
and a dry end leadman (sometimes called a dry end operator) for a total of
six hourly supervisors for the three shifts Under the loading foremen on
production there are two hourly supervisors called miscellaneous crew
leaders (One was identified in the record by name, Lawbuck, and the
other remained unidentified .) If we count the eight hourly supervisors as
supervisors , the total supervisory staff in the board plant would be 15 This
many supervisors to 31 nonsupervisory employees would appear to be an
inordinately high ratio of supervisory to non-supervisory employees for
work and skills not requiring such a degree of supervision.
The crew of a machineman consists of a mixer man, a raw material
supply man and a knife man. Their part of the plant board operations
covers the formulation and formation of the sheetrock qypsum wallboard
from raw materials through the first two zones of the dry kiln The crew of
a dry end leadman consists of a bundle operator, a stacker operator, and a
forklift operator (the latter classification is required only on the last two
shifts) Their operations are to remove the wallboard from the production
line, bundle it, stack it , and then remove it from the area
We find that the duties , responsibilities , authority , recommendations,
etc of the machine men and the dry end leadmen are no more or greater
than those previously detailed above for the hourly supervisors in the
quarry department and the milling department , and without elaborating
upon them in detail , we have catagorized them, as the Employer has
suggested that all hourly supervisors should be, and found the machine
men and the dry end leadmen to be nonsupervisory employees, and we
include them in the unit as production employees We are further
persuaded as to the merit of our unit placement of these employees, as
already pointed out above , because not to find them to be nonsupervisory
employees would establish a ratio of supervisory nonsupervisory
non-supervisory employees of approximately two to one, which in our
opinion is an inordinately high number where nothing in the record
warrants the need for such a degree of supervision
We will consider now the two miscellaneous crew leaders under the two
loading foremen who work the same shift and draw their necessary help or
crews from a common labor pool of eight men. The number of the crew
depends upon the requirements for the task at hand Their duties include
the unloading of raw materials brought into the plant for production
purposes and the warehousing of the finished products and their removal
and loading into flat cars , box cars, and motor trucks in filling the
incoming orders they keep track of the current warehouse inventory and
communicate with the production or order section of the plant to assure
that adequate supplies will be on hand to fill these orders
We will not go into detail on the duties and responsibilities of the board
plant miscellaneous crew leaders because the record is incomplete There
are two who are not identified as to job (one is named Lawbuck) One of
the miscellaneous crew leaders spends none of his time in physical work
according to the testimony in the record The other one, spends an
unspecified amount of time in nonphysical work Although the Employer
in the record has repeatedly catagorized all hourly supervisors as having
the same degree of supervision , authority and indicia of supervisory
authority , we find that there may be a possible exception to this broad
catagorization in respect to one or both of the two board plant
miscellaneous crew leaders whom we shall vote by a challenged ballot
Considering there are possibly 36 hourly supervisors covered by the general
catagorization of status as employees or supervisors we do not regard the
possible exception of two as necessarily detracting from the remamdei
described by generalization of testimony in the record to the effect that
they have identical status whether it is regarded as supervisory or
nonsupervisory
Plant Engineering Department
The plant engineering department , a staff department , is also known as
the maintenance department It is headed up by the plant engineering
superintendent who has under him the general engineering foreman who is
over three salaried foremen and a substitute foreman (Dale Moore) The
parties are in agreement that the substitute foreman, Dale Moore , should
be excluded as a foreman even though he is hourly paid . Under each
foreman are two head maintenance men (hourly supervisors ) except that
one of them is the substitute foreman, leaving an actual total at the time of
the hearing of seven head maintenance men There are four areas in
maintenance with a foreman in charge of each area with two head
87
maintenance men There are about 40 nonsupervisory employees . All work
on the same shift except the so-called janitor-watchman combination
employee . The nonsupervisory employees are distributed as follows by
groups Group 1, 8, Group 2, 6 , Group 3, 13, and Group 4, 11 Each group
has a man who specializes in the electrical part and one , in the mechanical
part The parties have stipulated that the supervisory responsibilities of the
head maintenance men in the engineering department are the same as the
supervisory responsibilities of hourly supervisors in the quarry , mill and
board plant departments Since the hourly supervisors in the quarry,
milling, and board plant have been included as nonsupervisory employees
in the unit (with one exception as noted above ), we shall also include the
head maintenance men in the unit as nonsupervisory employees
Both parties are in agreement to include the janitor -watchman (N
Bartel ) Bartel performs j anitor work approximately 6 1/2 hours a day
Between I 1 p.m and 12 30 a.m he makes a fire watch tour and turns the
key clock at the designated stations At this particular time, the people are
away from the plant . His main duties are janitorial work In case of a
break-in or the discovery of fire, he is instructed to telephone one of three
persons the works manager, plant engineering superintendent, or the
general engineering foreman Since it does not appear that Bartel is armed
or enforces rules against people, we find in accordance with established
Board precedent that he is not a guard or watchman within the meaning of
the Act and we shall, therefore, include the janitor in the unit as a
maintenance employees Thunderbird Hotel Co ., 144 NLRB No 19,
Heck's inc., 156 NLRB No 73, and New England Tank Cleaning Co.,
161 NLRB No 134
Packing Department
This department is headed up by a superintendent who has under him
two foremen , three hourly supervisors (miscellaneous crew leaders) and 32
non-supervisory employees One foreman is in charge of the main packing
(tube mill and keenes packing area ). He has working under him two
miscellaneous crew leaders who are in charge of 19 nonsupervisory
employees The other foreman is over the hydrocal packing area and has
one miscellaneous crew leader who works over 13 nonsupervisory
employees . The packing department operates on one shift Two of the
miscellaneous crew leaders at this particular time were serving as relief
foremen one day a week for which they are compensated an additional 36
cents an hour In respect to the supervisory responsibilities of the
miscellaneous crew leaders in the packing department the parties have
stipulated that they are equal to those of the wet-end supervisors (or
machine men) and the dry -end supervisors (or dry-end leadmen) in the
board plant department Since the latter were included in the unit as
nonsupervisory employees , therefore , we shall include the packing
department miscellaneous crew leaders in the unit as nonsupervisory
employees
Quality Department
The Employer withdrew its objections to the Petitioner 's request to
include the employees in this department upon the basis that it no longer
regarded them as technical employees . This department, a staff operation,
is headed up by a superintendent To him a quality supervisor and a field
representative report directly . By agreement of the parties , all are excluded
as supervisors There are no hourly supervisors as such in the quality
department Under the above two supervisors there are seven testers or
technicians with four of them working in the main laboratory and the
balance manning six satellite laboratories stationed throughout the plant
Their tests are more or less routine and for the purpose of checking raw
materials , maintaining quality control and meeting manufacturing
specifications. Certain specific or sophisticated testing is required for
certain products to meet Food and Drug requirements Both chemical and
physical analyses are made They also make tests on competitors'
products No special education or training is required as a job
qualification Many are recruited from the production employees They
spend some of their time in the production area and gather their own
samples In accordance with the agreement of the parties, we shall include
the testers or so-called technicians in the unit as production and
maintenance employees with whom they share a strong community of
interest The Sheffield Corporation , 134 NLRB 1101. There being no
classification of technical employee on the Employer ' s payroll, no unit
placement is made
'An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
within seven (7) days of the date of this Decision and Direction of Election.
The Regional Director shall make the list available to all parties to the
election In order to be timely filed , such list must be received in the
Regional Office, Room 8A24, Federal Office Building, 819 Taylor Street,
Fort Worth, Texas 76102, on or before November 4, 1968 Under Board
directives , no extension of time to file this list may be granted except in
extraordinary circumstances , nor shall the filing of a request for review
operate to stay the filing of such list . Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed Excelsior Underwear Inc, 156 NLRB 1236