United States Gysum Co.

National Labor Relations Board - Board Decisions

Oct 12, 1964

148 N.L.R.B. 1640 (N.L.R.B. 1964)

1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the formula set forth in the amended specifications , as amended, and on
the record as a whole, I find that the discriminatees are entitled to the following
amounts of backpay , less such tax withholding as may be required by Federal or
State law, if any; and, in addition, interest at the rate of 6 percent per annum.
Richard A. Alt--------------------------------------------- $87.32
James Buddelmeyer----------------------------------------- 80.24
Harold Donaldson------------------------------------------ 68.95
James Gerding--------------------------------------------- 1,785.50
Elias Hernandez-------------------------------------------- 67.02
Joseph W. Morman----------------------------------------- 75.52
Gerald Meyer---------------------------------------------- 290.51
Harold Potts-----------------------------------------------. 87.32
Norman E. Schroeder--------------------------------------- 87.32
Glen Sayer------------------------------------------------ 171.20
It is recommended that the Board adopt the foregoing findings and conclusions.
United States Gypsum Company and International Union of
Electrical , Radio & Machine Workers, AFL-CIO, Petitioner.
Case No. 8-RC-5571. October 12, 1964
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 Hearing Officer
Nora Friel. 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-mem-
ber panel [Chairman McCulloch and Members Fanning 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 certain em-
ployees of the Employer.
3. A question affecting-commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Sec-
tions 9(c) (1) and 2(6) and (7) of the Act.
4. The appropriate unit.
The Petitioner seeks a unit of "all production and maintenance
employees at the Employer's Phoenix Road plant in Warren, Ohio,
excluding all office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act."
The employees sought as part of the production and maintenance
unit herein are assigned to the Employer's quality department, engi-
neering department, building steel products division, and industrial
steel products division. The entire operation at the Employer's
Phoenix Road plant is under the overall direction of the works mana-
148 NLRB No. 154.
UNITED STATES GYPSUM COMPANY 1641
ger. Under him are superintendents, one in each of the departments
and/or divisions involved herein. In the building steel products divi-
sion and the industrial steel products division there are three produc-
tion foremen, one for each shift, and a shipping foreman, under the
superintendent and over the department operators. In the engineer-
ing department there is a master mechanic under the superintendent
and over the head mechanic, head machinist and storekeeper. The
quality department is made up of only the superintendent, a quality
engineer (not sought), and a-sample department operator (who has
one helper). With the exception of the head mechanic and head
machinist, both of whom may authorize overtime work, the works
manager is the only person who can hire, fire, promote, grant pay
increases, handle serious grievances, or authorize overtime work.
The parties are agreed that a production and maintenance unit is
appropriate, and that the works manager, the operating superintend-
ents, production foremen, shipping foreman, and master mechanic are
supervisors, and should be excluded. However, the Employer would
exclude as supervisors the head mechanic and head machinist in the
engineering department, the sample department operator in the qual-
ity department, 27 department operators in the building steel prod-
ucts, and 16 department operators in the industrial steel products
divisions. It would also exclude the storekeeper, assigned to the
engineering department, as a technical, managerial, and/or security
employee. The Petitioner would include these employees.
If the Board were to find the department operators to be super-
visors, the ratio of supervisors to employees in the unit would be one
supervisor to less than two employees. On the other hand, if the
department operators are found to be employees, the ratio would be
1 supervisor to 17 employees in the building steel products division,
and 1 supervisor to 11 employees in the industrial steel products
division?
Department operators: The unit placement of the one department
operator in the quality department, called a sample department oper-
ator, shall be handled separately below. In the industrial steel prod-
ucts division, there are 2 shipping department operators, 1 packing
department operator, and 13 production department operators. In
the building steel products division, there are 2 shipping department
operators, and 25 production department operators.
The duties and responsibilities of all the production department
operators are substantially similar. Each of the department opera-
tors is in charge of one machine, or in some few cases two machines.
1 In addition to the department operators , there are 39 production employees in the in-
dustrial steel products division, and 50 production employees in the building steel products
division. I .
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The number of employees assigned as helpers to each machine varies
from one to six. Of the 38 production department operators, 22 have
1 helper assigned to them, 6 have 2, 2 have 3, 5 have 4, 3 have 5, and
1 has 6 helpers assigned to them. These helpers are known as catch-
ers, shearmen, feeders, bundlers, etc.
It is contended by the Employer that the department operators
have been told that they are supervisors, that the helpers have also
been told the department operators are their supervisors, and that
these department operators responsibly direct the work of their help-
ers, discipline them, and effectively recommend transfer, retention,
and/or discharge of employees assigned to them. It is further con-
tended that department operators handle all minor grievances which
may arise in their respective departments, exercise independent judg-
ment as to the operation of their departments, and assist management
in the analysis of cost and production factors with regard to their
own departments.
Department operators for the most part are skilled employees who
have had longer experience with the Company. They are paid on an
hourly basis, as are their helpers, but they do not punch a clock, and
they are paid from 23 to 85 cents more per hour. The Employer
stated that they were taken off the timeclock about 2 years ago "to
enhance their status" and "to establish in the department operator's
mind a feeling of being a part of management." However, there is
no uniformity in the rate differentials between department operators
and helpers, and the Employer could offer no explanation as to what
portion of department operators' wage rates are attributable to the
exercise of alleged supervisory authority.
Hourly paid employees, including department operators, receive no
sick leave, while salaried employees receive up to 10 days per year.
Salaried employees receive longer vacations during the first 5 years
of service than do the hourly paid employees. Hospitalization bene-
fits are the same for all employees, while life insurance for all is
based upon earnings.
Although the Employer contends that the department operators
exercise independent judgment in the operation of their respective
departments, the record shows that, in reality, they are operating
only under instruction from their foremen. The foremen set up
operating schedules which the department operators pick up at the
start of their shift. These schedules direct what jobs are to be run
on the machine or machines during the shift. The department opera-
tors then set up'the machines, pass on any instructions necessary to
the helpers, and then see to the proper operation of the machines.
When the machines need to be set up again, the department operators
see to that task. If a machine is "running bad," the department
UNITED STATES GYPSUM COMPANY 1643
operators may decide whether to shut it down. This is also character-
ized by the Employer as independent judgment. However, record
testimony indicates that often the foreman will overrule a department
operator's decision if he needs the material badly enough to take a
chance on some part of the job running bad. The foremen, not the
department operators, reassign the helpers, or instruct the department
operators as to what job shall be run in place of one closed down.
The foremen make rounds of the departments, observing the work of
the crews, and checking on quality and on safety factors. The fore-
men keep the official records of time worked by the crews as reported
by the department operators.
The Employer contends that department operators can effectively
recommend transfer, retention, and/or discharge. Although it elic-
ited some testimony concerning cases in which recommendations
were followed, the record falls short of demonstrating that the recom-
mendations were followed without an independent investigation by
.their superiors. Moreover, the Union elicited testimony from some
department operators which shows that such recommendations are not
frequently solicited, that often enough they are not followed, and
that in many cases department operators are instructed by their fore-
men to sign performance-rating forms with regard to employees with
whose work they are quite unfamiliar, since the Company's system
requires the signature of a department operator.
The Employer's works manager stated that the department opera-
tors have the authority to settle grievances. However, its production
manager of the industrial steel products division stated that depart-
ment operators have the authority to handle only minor grievances.
The Employer does not have any formal grievance procedure. Cer-
tain department operators testifying for the Employer gave instances
of grievances which they have handled ; all of the examples cited con-
cerned very minor problems. The department operators who testified
for the Union stated that they did not doubt that they could settle
minor problems which may arise as to working conditions, but
doubted that they would be allowed to settle anything of significance.
They could not remember having been called upon to settle any dis-
putes, but did recall having referred some problems to their foremen.
Although the Employer states that it instructed its department oper-
ators that they had such -authority, as contended, some of the depart-
ment operators could not recall ever having been so instructed.
The works manager also testified that department operators can
and do reprimand or recommend disciplinary action against em-
ployees for infractions of plant safety rules. However, in support of
this conclusionary testimony, the record shows only that department
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-operators remind employees about safety rules. Furthermore, the
Employer's booklet entitled "Safety Rules" states that infractions
shall be reported to the foremen.
The department operators' work is primarily manual, and, al-
though they have some time between setups, they nevertheless do not
leave their machines for any period of time without having someone
stand in for them. They are responsible for the cleanliness of the
area around their machines, and-this often requires that the depart-
ment operators themselves sweep up the area.
On the basis of the above factors, we find that the production
department operators do not effectively recommend disciplinary ac-
tion, and that the production department operators' direction of the
work of the employees comprising their crews is routine in nature,
and does not require the exercise of independent judgment. While it
is true that the department operators perform certain recordkeeping
-functions, serve as conduits for the instructions of foremen to other
members of the crew, are paid higher wages in keeping with their
greater skill and experience, and are looked upon by the Employer as
leaders of the crew, we find, under all the circumstances of the case,
including the fact that to find the department operators to be super-
visors would result in a wholly disproportionate ratio of supervisors
to employees, that the department operators are in the nature of lead-
men such as the Board has consistently found to be employees.-'
-Accordingly, we find that the production department operators are
not supervisors within the meaning of the Act, and we shall include
them in the unit herein found appropriate .3
Shipping department and packing department operators: The
-building steel products and industrial steel products divisions have
their own shipping departments, and the latter division has a pack-
ing department. The shipping department operators are primarily
traffic managers. The shipping foremen schedule, route, and secure
'carriers for goods to be shipped from the plant by common carriers.
The shipping department operators see that the materials are prop-
erly plotted, routed, and loaded on the carriers, or unloaded, checked,
and warehoused, according to the schedules and orders given them by
.the shipping foremen ; they direct the loaders and helpers in carrying
out the schedules, deciding who shall operate the loading machinery,
how a truck shall be stacked, etc. The packing department operator,
with the aid of his helpers, makes special types of packaging used
by the Employer-boxes, skids, and cartons. - "
2 See United States Gypsum Company, 118 NLRB 20 ; Plastics Industrial Products, 139
NLRB 1066; Lamperaft Industries, Inc., and Leslie China, Inc., 127 NLRB 92; Head-
Atlanta Paper Company, 123 NLRB 306 , 309-310.
8 United States Gypsum Company, supra; United States Gypsum Company, 119 NLRB
1415; and cases cited above. In our opinion , the cases cited by the Employer do not
dictate a contrary result herein.
UNITED STATES GYPSUM COMPANY 1645
In the building steel products division, the shipping department
operator on the first shift has three loaders assisting him, the after-
noon shift operator has six. In the industrial steel products division,
the first and afternoon shift operators have two loaders and one
loader, respectively, assisting them. The packing department oper-
ator directs the work of two packer-craters. Testimony as to the
alleged supervisory authority of the shipping department operators
and the packing department operator shows that these individuals
possess authority almost identical to that possessed by production
department operators. If anything, the direction or supervision
exercised by these individuals is less extensive than that exercised
by the production department operators.
On the basis of the entire record in this case, we find, as we did
with regard to the production department operators, that the ship-
ping department operators and the packing department operator are
not supervisors within the meaning of the Act, and we shall include
them in the unit.
Sample department operator: This employee works in an area
which is physically separated from both the production and ship-
ping areas. The sample department prepares , packages , labels, and
ships samples of all metal products that are sold by Employer and
made at the Warren plant, and some which are made at other plants
also. The sample department operator has been with the Employer
for about 40 years , and has been sample department operator for
about 6 years. There is one other employee in the sample depart-
ment, classified as a helper. The Employer contends that the sample
department operator is a supervisor , or, if the Board should disagree
as to his alleged supervisory status, that the work of sample making
is not closely enough allied with production , work to include the
department in the unit.
Although the sample department operator is relatively free from
direct supervision, his job calls for very little independent judgment.
He receives orders for samples of particular Employer-made or
Employer-sold products , and proceeds to prepare , package , label, 'and
ship those samples to their destinations . Although, the Employer
states that this employee has the authority to reprimand and to ef-
fectively recommend transfer or discharge of a • helper , no specific
instances of the exercise of such authority by the sample department
operator were placed in the record . His job is solely to fill the sam-
ple orders , and, in the performance .of that duty, both he and his
helper use production-type machinery and equipment to cut or make
samples. He sets up the schedule in the sense that he, decides which
orders to fill first , but his ' instructions to the , helper are - r`outine in
nature. „ Indeed, it •,wasstated -that ,, due to a physical ' handicap,= this
employee misses more than an average number of days from the, job;
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he is absent, his helper takes complete charge of the sample de-
partment and does an acceptable job. Despite the fact that the
operator has been with the Employer for 40 years, he receives only
30 cents more per hour than does the helper.
In view of all these facts we find that the sample department op-
erator is not a supervisor within the meaning of the Act. The au-
thority, that he exercises with respect to his helper is routine in
nature, and does not require the exercise of independent judgment.
Nor do we agree with the Employer that the work of the sample,
department operator is so different from production work that this
employee should be excluded from the unit sought herein. The sam-
ple department operator uses production-type machines and equip-
ment, and enjoys the same conditions of employment as the depart-
ment operators in the production departments. Moreover, the
Employer stipulated to include the sample department operator's-
helper, whose duties we find to be substantially similar. Accord-
ingly, we shall include the sample department operator in the unit.
Head machinist: The head machinist has been with the Employer
about 17 years. He is in complete charge of five or more employees;
(die makers, machinists, and grinders). This man schedules all'
work for the men in his shop, decides how repairs shall be done, and'
how best to make new parts. He reads and interprets blueprints,,
makes necessary changes, and instructs his men in how to set up for
the making of the new parts. He has the authority to determine who.
shall work overtime, and has exercised this authority. He also has'
effectively recommended disciplinary measures and discharge of em-
ployees under him. He exercises independent judgment also in the-
implementation of safety rules in his department, and in deciding-
how machine parts or processes must be changed in order to achieve,
the tolerances called for on a particular job. He is paid about 20.'
cents more per hour than the most highly skilled man under him, and
about 80 cents more than the least skilled.
In view of all these factors, and especially in view of the fact that
this employee exercises independent judgment in the running of his
department (i.e., the setting-of schedules, assignment of work, grant-
ing of overtime, etc.), we find the head machinist to be a supervisor
within the meaning of the Act, and shall accordingly exclude him,
from the unit.
Head mechanic: This employee has been employed by the Em-
ployer for about 16 years, and is in, complete charge of five or more
employees. Whereas, it was the responsibility of'the head machinist
to-decide how'to make repairs on machines or machine parts, it is the
responsibility of the head mechanic to decide which machines ' are in
need of repair, and how to repair such machines after the machinists-
have produced the necessary -repair on parts. ' The head -rriechanic, `as:'
UNITED STATES GYPSUM COMPANY 1647
he is informed that machines throughout the plant are in need of
repair, assigns his mechanics to those areas to determine what needs
to be done to the faulty machine. He helps these mechanics analyze
repair problems and instructs them in their jobs. The decision as to
what jobs take precedence is solely his, and he has the sole authority
to assign or transfer his mechanics to other jobs. The head mechanic
exercises the same authority as does, the head machinist with regard
to recommending discipline and discharge. He also is paid a sub-
stantial differential compared to the mechanics under him. The head
mechanic has the identical authority which resides in the mainte-
nance foreman, who was stipulated to be a supervisor. These two em-'
ployees alternate shifts from week to week.
In view of all these factors, we find, as we did with regard to the
head machinist, that the head mechanic is a supervisor within the
meaning of the Act, and we shall exclude him from the unit.
The storekeeper: This employee works on the first shift, and is in
charge of the storeroom at the Employer's Phoenix Road plant. He
keeps an inventory of all materials, equipment, and repairs. He
requisitions parts and equipment needed in the plant, and issues parts
and equipment to employees who have properly authorized requisi-
tions. On the second and third shifts some of the foremen carry a
key to the storeroom, and one of the men in the machine shop is
assigned as keeper of the storeroom when one is needed.
Although the storekeeper is a graduate engineer, it is'admitted by
the Employer that this background is not necessary to his job. He
did not receive any specialized training for the job. He is admittedly
not a supervisor, and does not take part in managerial decisions.
Nor is he responsible for the enforcement of plant-protection rules.
On the basis of the foregoing factors, and on the record as a whole,
we find that the storekeeper is not a technical or managerial em-
ployee, nor a guard, within the meaning of the Act. 'Rather, we find
him to be a plant clerical employee, and shall include him in the
production and maintenance unit herein found appropriate.
Accordingly, we find that all production and maintenance em-
ployees at the Employer's Warren, Ohio, plant on Phoenix Road,
including the sample department operator, storekeeper, all shipping
department operators, the packing department, operator, and all pro-
duction department operators, but excluding all office clerical eui- -
ployees, guards, professional employees, the works manager, super-.
intendents, .foremen,,,head machinist, head mechanic. and all other
supervisors, as defined in,the Act, constitute a unit appropriate, for
the purposes. of, collective bargaining within the meaning of Section
9,(b) of the Act
[Text 'of' Direction of +'1'ectiori' omitted from p`ublication.]