United States Gypsum Co.

In the Matter of UNITED STATES GYPSUM COMPANY, EMPLOYER and WAREHOUSE EMPLOYEES UNION, LOCAL No. 503 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELP- ERS OF AMERICA, A. F. OF L., PETITIONER In the Matter of UNITED STATES GYPSUM COMPANY and LOCAL No. 36, INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. OF L. Cases Nos.18-RC-86 and 18-RC-117, respectively.Decided January .7,1949 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed, hearings in the above consolidated cases were held on May 24 and August 5, 1948, before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearings 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. The Petitioner in Case No. 18-RC-86, herein called the Team- sters, and the Petitioner in Case No. 18-RC-117, herein called the Operating Engineers, are labor organizations claiming to represent employees of the Employer. I At the hearing on August 5, 1948, the Operating Engineers, the Petitioner in Case No. 18-RC-117, moved to sever case No 18-RC-117 from Case No. 18-RC-8G on the ground that all evidence in Case No. 18-RC-117 had already been presented , that the hearing of August 5 would elicit testimony relating only to Case No 18-RC-86 , and that the further presence of its attorney and officers should not be required . The hearing officer referred this motion to the Board As the cases were properly consolidated for the purposes of hearing and no sufficient reason exists for severing them, the motion is denied. * Chairman Herzog and Members Reynolds and Gray. 81 N. L. R. B., No. 60. 344 UNITED STATES GYPSUM COMPANY 345 3. Questions affecting commerce exist 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 units : The Teamsters seeks to represent a unit composed of all production, shipping room, and car loading and unloading employees at the Employer's St. Paul, Minnesota, plant, including testers, the unload- ing checker, inspectors, and the watchmen, but excluding office em- ployees, salesmen, truck drivers, engineers, firemen, guards, and super- visors as defined in the Act. The Operating Engineers seeks to represent a unit of the firemen, including the head fireman, in the boiler room at this plant. The Employer opposes the establishment of a separate unit of firemen, and would exclude testers, the unload- ing checker, inspectors, and the watchman from the production unit sought by the Teamsters. Bargaining history : In August 1944, following an election con- ducted by the State of Minnesota, Division of Conciliation, Local 48, International Brotherhood of Firemen and Oilers, AFL, herein called the Firemen and Oilers, was certified as the representative of the fire- men at the St. Paul plant. In September 1944, the same labor organiza- tion was also certified as the representative of the production employees at the same plant, including testers, the unloading checker, inspectors, and the watchman. Thereafter, in December 1944, the Firemen and Oilers and the Employer entered into a separate collective bar- gaining contract for each unit. In 1946, the Operating Engineers was certified as the bargaining representative for the firemen and entered into a contract on their behalf which expired April 30, 1948. The Firemen and Oilers continued to represent the Employer's pro- duction employees until its contract expired on April 30, 1948. In March 1948, the Teamsters demanded recognition as representative of the production employees. The Employer thereupon declined further to recognize either of the contracting unions until they had been certified by the Board.2 The Employer contends that its firemen should be included in the production unit because, in addition to their duties in the plant boiler room, they also tend asphalt stills located in the plant yard. The Operating Engineers contend that these employees constitute a traditional craft classification which the Board has held to constitute an appropriate unit. The Teamsters does not seek to represent them. 2 The Firemen and Oilers appeared at the hearing and sought to intervene. As the Fire- men and Oilers did not claim to represent any of the employees involved in this proceeding, its intervention was properly denied. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record discloses that these employees operate steam boilers, tend asphalt stills, and maintain steam and oil driven equipment. They have been represented in a separate unit for 4 years. They are licensed engineers physically separated from, and not interchanged with, pro- duction employees. For these reasons, and because of the bargaining history in this plant and because no other organization is here seeking to represent them in a broader unit, we find that the firemen 3 consti- tute a separate appropriate unit.' There remain for consideration the employees whom the Teamsters would include in, and the Employer exclude from, the unit of produc- tion employees whom the Teamsters seeks to represent. Testers: There are two testers employed by the Employer. They perform the usual duties of such employees. In accordance with pre- vious decisions concerning similar employees in other plants of this Employer, we shall exclude them from the unit.' Inspectors: The record discloses that these two men supervise 12-15 men in a separate room in the plant. They assign the men to tasks and discipline them ; and although they may neither hire nor discharge employees, they may reject new employees and effectively recommend discharge of men under their supervision. We find that they are supervisors as defined in the Act, and shall exclude them from the unit. Unloading checker: The Employer contends that this employee should be excluded from the unit on the ground that he is a supervisor. The record discloses that he spends the greater part of his time in routine clerical work either in the warehouse or in the unloading areas checking incoming raw material. He is in nominal charge of a crew of 11 men. However, the testimony discloses that his sole responsi- bility is to convey to the crew the decision of the warehouse superin- tendent as to which car will be unloaded first and where its contents will be placed. He has no authority to hire, discharge, or discipline, or effectively to recommend such action. We find that he is not a supervisor and shall include him in the unit. Watchman: The record discloses that the watchman spends equal amounts of time in maintenance and plant-protection functions. As he does not spend more than 50 percent of his time as a watchman, we shall include him, as a maintenance employee, in.the units 3 The parties agree, and the record discloses, that the head fireman is not a supervisor within the definition contained in the Act. We shall therefore include him in the unit of firemen 4 Matter of Illinois Division, Bendix Aviation Corporation, 54 N. L R. B. 1051. Matter of U. S. Gypsum, 80 N. L. R. B. 779; 79 N. L. K. B. 48; 78 N. L. R. B. 849. Matter of Sampsel Time Control, Inc, 80 N L R. B 1250 While Board Member Gray if of a contrary view, as stated in footnote 3 of the Sampsel Time Control case, he deems himself bound by the holding of the majority in that case UNITED STATES GYPSUM COMPANY 347 We find that the following constitute units appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act: (a) All production, shipping room, and car loading and unloading employees, at the Employer's St. Paul, Minnesota, plant, including the unloading checker and the watchman, but excluding testers, in- spectors, office employees, salesmen, truck drivers, engineers, firemen, and supervisors as defined in the Act. (b) All firemen in the boiler room, at the Employer's St. Paul, Minnesota, plant, including the head fireman, but excluding all super- visors as defined in the Act. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, separate elections 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 supervision of the Regional Director for the Eighteenth Region, and subject to Sections 203.61 and 203.62, of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the em- ployees in the units found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this direction, 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 rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not the employees in the unit found appropriate in Case No. 18- RC-86 desire to be represented by Warehouse Employees Union, Local No. 503, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, A. F. of L., for the purposes of collective bargaining; and to determine whether or not the employees in the unit found appropriate in Case No. 18-RC-117 desire to be represented by Local No. 36, International Union of Operating En- gineers, A. F. of L., for the purposes of collective bargaining.