Unites States Gypsum Co.

National Labor Relations Board - Board Decisions

Jan 17, 1949

81 N.L.R.B. 182 (N.L.R.B. 1949)

In the Matter of UNITED STATES GYPSUM COMPANY, EMPLOYER and
UNITED CEMENT, LIME AND GYPSUM WORKERS INTERNATIONAL
UNION, LOCAL UNION No. 63, AFL, PETITIONER
Case No. 21-RC-358.-Decided January 17,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
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. Petitioner claims to represent certain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of all employees at the Employer's
Midland, California, commissary, coffee shop, and automobile service
station, excluding supervisors.' The Employer contends that the
appropriate unit should be composed of all production and mainte-
nance employees, in addition to those employees the Petitioner now
* Chairman Herzog and Members Houston and Gray.
I The Employer is engaged in mining, milling , and smelting gypsum products at its
plant in Midland , California . Because of the plant 's isolated location in the Colorado
desert, the Employer provides housing facilities , a commissary , a coffee shop, and an
automobile service station for the use of its employees.
81 N. L. R. B., No. 25.
182
UNITED STATES GYPSUM COMPANY 183
seeks to represent.2 The parties also disagree as to the following job
classifications : chief cashier, dry goods clerk and cashier, butcher, and
receiving clerk.3 The Petitioner would include these disputed classi-
fications, whereas the Employer would exclude them.
The commissary department is located in buildings separate from
the Employer's production facilities. Within the main commissary
building is a mercantile salesroom, and a grocery, meat, and vegetable
salesroom. In two other rooms of this building are a soda fountain
and a beer parlor. A coffee shop is maintained in another building.
The automobile service station is adjacent to the main commissary
building, and is operated in conjunction therewith.
The Board has previously held that mercantile employees and others
who are not directly engaged in production and maintenance work at
mining plants, constitute a homogeneous group with sufficiently com-
mon interests to function properly together as a unit for the purposes
of collective bargaining.4 Accordingly, we find that a unit confined
to employees in the commissary, coffee shop, and automobile service
station of the Employer's operations is feasible.
There remains for consideration the disposition to be made of the
chief cashier, the dry goods clerk and cashier, the butcher, and the
receiving clerk, all of whom work under the supervision of the com-
missary manager and the assistant commissary manager.
The chief cashier works in the commissary office. She clears the
cash registers of the soda fountain and the mercantile, grocery, meat,
and vegetable departments each day. She counts the money and scrip,
checks them against the cashier's report, consolidates them all into a
daily report, and turns the money and scrip over to the office cashier
for checking and deposit. She also cashes checks, and draws and signs
for all scrip books which are issued to the employees to be used instead
2 The Employer did not begin operation of the commissary until after it entered into a
contract with the Petitioner covering the production and maintenance employees. There
is no history of collective bargaining with respect to the employees involved in the
instant petition. At the hearing, the Petitioner stated that if it won an election for
these employees, it desired to bargain for them as part of the larger production and main-
tenance unit which it represented. However, after the Petitioner's contract with the
Employer, covering the production and maintenance employees, expired on April 15, 1948,
the Employer refused to recognize the Petitioner as representative of the production
and maintenance employees Upon a charge filed by the Petitioner, a complaint has issued
alleging that the Employer has refused to bargain with the Petitioner as the exclusive
representative of the production and maintenance employees in violation of Section 8
(a) (5) of the Act. The Petitioner has filed with the Board a waiver of the refusal
to bargain charge as a basis for objecting to the conduct of the election herein directed.
s The parties agree that cooks, dishwashers, waitresses, clerks, soda fountain clerks,
and bartenders' helpers should be included in any unit found appropriate, and that the
commissary manager, assistant commissary manager, bookkeeper, chef, and the chef's wife,
who is in charge of the waitresses, should be excluded from such unit.
4 Matter of Inland Steel Company, 67 N. L R. B. 1053; Matter of Elk Horn Coal Corpo-
ration, 64 N. L. R. B. 1563. Cf. Matter of Emperor Coal Company, 74 N. L. R. B. 989;
Matter of Consolidation Coal Company, 63 N. L. R. B. 169.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of cash for purchases at the commissary or other service facilities of
the Employer. As she is an office clerical employee, we shall exclude
her from the unit.'
The dry goods clerk and cashier, the only employee in the mercan-
tile department, except on week ends,6 sells merchandise, rings up sales,
checks invoices of merchandise purchased, marks the cost code and
retail prices, and assists in buying by recommending salable items.
She also opens boxes of merchandise, places it on shelves, and helps
in the taking of the inventory.' The major portion of her time is spent
in waiting on trade and ringing up sales in the cash register s
We find, contrary to the Employer's contention, that the dry goods
clerk and cashier is neither a confidential nor a managerial employee
within the meaning of the Act, and shall include her in the unit.s
The butcher, a salaried employee, is in charge of the meat depart-
ment. He requisitions the meat and prices the various cuts so they
will sell at a profit, and sells it to customers. He has a helper, for
1 hour a day and all day Saturday, whom he supervises and whose
discipline and discharge he can effectively recommend. We believe
that the butcher's supervisory duties are not sufficiently great to con-
stitute him a supervisor as defined in the Act 10 We do not agree with
the Employer's contention that the butcher is a confidential and
managerial employee because he knows the cost and selling price of
the merchandiser We shall include him in the unit.
The receiving clerk works in the receiving section of the main com-
missary building. He places orders for groceries and vegetables,
checks them on arrival at the commissary, prices them, and puts them
on display. He moves merchandise from the storeroom to the selling
floor. He has one full-time and one part-time helper whose work he
directs. He can effectively recommend a change in status for these
employees. We shall, therefore, exclude the receiving clerk from
the unit.
5 The only employees working in the commissary office are the commissary manager,
assistant commissary manager, and bookkeeper, all of whom the parties have agreed should
be excluded from the appropriate unit.
c The bookkeeper helps in the mercantile department on Fridays and Saturdays.
7 An inventory is taken every 3 months.
She must be familiar with the State sales tax, and with the Federal excise taxes on
jewelry, cosmetics, and other articles.
9 Cf Matter of Northwestern Bell Telephone Company, 79 N. L R. B 549 ; Matter of
Inter-Mountain Telephone Company, 79 N. L. R. B. 715; Matter of Emperor Coal Company,
74 N L R B. 989
io Matter of Rocky Mountain Pipe Line Company, 79 N. L. R. B 1119; Matter of Magnolia
Petroleum Company, 79 N. L. R B. 1027.
11 The Employer also contends that the butcher should be excluded from the unit be-
cause his work is substantially the same as that of the owner of a small butcher shop,
except that he does not do any buying and works on a salary . We find no merit in this
contention.
UNITED STATES GYPSUM COMPANY 185
We find that all employees at the Employer's Midland, California,
commissary, coffee shop, and automobile service station, including
cooks, dishwashers, waitresses, clerks, soda fountain clerks, bartenders'
helpers, the dry goods Clerk and cashier, butcher, and regular part-
time utility clerks'12 but excluding the chief cashier, bookkeeper, re-
ceiving clerk, casual employees, office, clerical and professional em-
ployees, guards, and supervisors, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by 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 Twenty-first Region, and sub-
ject 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 in paragraph numbered 4, above, who
were employed during the pay-roll period immediately preceding the
date of this 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 re-
instated 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 represented, for purposes of collective bargain-
ing, by United Cement, Lime and Gypsum Workers International
Union, Local Union No. 63, AFL.
12 There are two groups of utility clerks One group consists of the barber who is regu-
larly employed for 41/2 hours every day except Sunday , and the receiving clerk's assistant
who works 11 hours a week during the school year and 46 hours a week during school
vacations Inasmuch as they are regularly employed a substantial number of hours each
week, these employees have a sufficient interest in the conditions of employment to warrant
their inclusion in the unit . In addition to these regular part -time employees , there are
two other clerks , the wife of the commissary manager, and the wife of the assistant
commissary manager, who work for 2 or 3 days every 3 months in the inventory -taking
period . They also work in the mercantile and grocery departments , and at the soda
fountain , in the event of an emergency if some other clerk is unavailable . We find that
these employees are casual rather than part -time employees . We shall, therefore , exclude
them from the unit.