United States Gypsum Co.

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furthermore, that despite the defection in the ranks of the employees, the Independent still remains as a functioning organization, able, ready, and willing to administer the contract. Under these circumstances, we find that there is no confusion as to the identity of the bargaining agent recognized by the Employer. There being no schism or other basis for avoiding the normal consequences of an existing contract, we find that the current contract is a bar to an election at the present time. Accordingly, we shall dismiss the petition. [The Board dismissed the petition.] UNITED STATES GYPSUM COMPANY and LOCAL 278, UNITED GAS, COKE AND CHEMICAL WORKERS OF AMERICA, CIO, Petitioner. Case No. 13-RC-3032. November 20, 1953 SUPPLEMENTAL DECISION AND DIRECTION On July 28, 1953, pursuant to the Board's Decision and Di- rection of Election,' an election bysecretballotwas conducted, under the direction and supervision of the Regional Director for the Thirteenth Region, among the employees in the voting group established by the Board, to determine whether or not the said employees wished the Petitioner to represent them for purposes of collective bargaining. Upon the conclusion of the election, a tally of ballots was furnished the parties, in accordance with the Rules and Regulations of the Board. The tally shows that all of the 26 ballots cast were challenged. 2 Thereafter, on August 6, 1953, the Employer filed objections to the election. On August 19, 1953, after having duly investi- gated the issues raised by such objections and challenges, the Regional Director issued and duly served upon the parties his report on objections and challenges, recommending that the objections be dismissed in their entirety and that all of the challenges be overruled and the ballots be opened and counted. Thereafter, the Employer filed timely exceptions to the Regional Director's report.I 1105 NLRB 931. 2 Of the 15 categories of employees, hereinafter generally referred to as key operators, sought by the Petitioner (all of whom the Employer contended were supervisors), the Board found that the employees in 4 of these classifications were supervisors, and excluded them from the voting group. Of the remaining categories, the perlite tube operators, for reasons discussed below, were permitted to vote subject to challenge, and as to all the other cate- gories of remaining employees sought, hereinafter called key operators, the Board found they were not supervisors and that their interests were similar to those of the production and maintenance employees whom Petitioner presently represents. Accordingly, the Board held that they might appropriately be included in the existing certified production and mainte- nance unit, if a majority of them so desired. sln the absence of exceptions thereto, the Board hereby adopts the findings of the Regional Director that employees Bozak, A Woolard, L. Woolard, and Gibbons, all of whom were challenged by the Board agent, were at the time of the election properly part of the voting group However, the Employer's exceptions with respect to their alleged supervisory status, appear to cover these 4 employees, as well as the 22 whom it challenged. 107 NLRB No. 39. UNITED STATES GYPSUM COMPANY 123 1. The Employer contends generally that the Board's find- ings with respect to the supervisory status of the key operators are erroneous because , among other things , they report "efficiency ratings of their subordinates." The record willnot support a finding, however that these ratings were made on a regular basis; on the contrary the record shows that they were made on only one occasion, in February 1950. Nor will the record support a finding that the Employer gives any weight to these ratings when making personnel changes.4 The foregoing evidence was fully considered by the Board in its original de- termination of the status of the key operators. In the absence of any evidence, not previously considered by the Board, per- taining to the duties of these employees, we find that these employees are not supervisors and were properly included in the voting group. 2. The Employer also specifically challenges the Board's findings as to the board lead mechanic and the perlite tube op- erators. Board lead mechanic: The only evidence adduced at the hearing concerning the board lead mechanic was that he usually directs three employees in maintenance work in the board plant, and that occasionally an unspecified number of additional employees may be assigned to himuponrequest. In the absence of any additional evidence, the Board found that he was not a supervisor. The Employer contends that he and the mill lead mechanic, whom Petitioner conceded and the Board found to be a supervisor, "are obviously of equal authority," and that the only difference between them is that each of them is responsible for maintenance in the mill and board departments, respectively. The Employer requests that the Board either find this employee to be a supervisor or that it reopen the record to adduce further evidence concerning his duties and authority. We do not agree that there is no difference between the mill and the board lead mechanics. The record shows that the mill lead mechanic, unlike the board lead mechanic, responsibly directs other employees. Accordingly, we find no merit in the Em- ployer's contention that the board lead mechanic is a super- visor, and we shall, therefore, overrule the challenge. We shall also deny the Employer's request that the Board reopen the record to adduce further testimony concerning the duties of the board lead mechanic, as there was ample opportunity to litigate this issue at the hearing and no adequate reason is shown for relitigating this issue. Perlite tube operators : In its Decision , the Board, after setting forth the duties of the perlite tube operators, concluded that there was no basis for finding them supervisors, except for the fact that shortly before the hearing one of these op- erators was told that he had the power to recommend changes 4General Telephone Company of California, 106 NLRB 413, cited by the Employer, is distinguishable on its facts. In that case, it is clear that the efficiency ratings were regularly made, that they were thorough and complete, and that they were accorded substantial weight in the Employer's personnel actions. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in status of employees . In view of its doubt as to whether this recent grant of authority was made in good faith or solely to influence the outcome of the case , the Board permitted these operators to vote under challenge . The votes of the perlite tube operators were challenged by the Employer . The Regional Director found that the duties and authority of these operators "have not changed since they were told just prior to the hearing that they had supervisory authority ," and cited statements by these operators that their duties have continued tobe the same since they were made perlite tube operators . He therefore recommended that these challenges be overruled . In its ex- ceptions , the Employer contends that there was no recent grant of supervisory authority to these operators , but rather that they were granted supervisory authority " years ago." As the Employer concedes , in effect, that there has been no sub- stantial change in their duties since they entered on their present duties , and as the Board is satisfied upon the entire record that these duties were not such as to constitute them supervisors , we find that the perlite tube operators are not supervisors and will overrule the challeng.^ s to their ballots. 3. The Employer contends that the Board was not em- powered to direct the election herein because the voting group did not constitute an appropriate unit in itself . Citing Section 9 (a) of the Act which provides that bargaining representatives shall be selected by the "majority of the employees in a unit appropriate for, such purposes ," the Employer contends that this requires that the Board hold elections only in appropriate units. This contention was made in the Great Lakes Pipe case and rejected by the Board. There the Board said: . . . we believe that the Act considered as a whole clearly authorizes the Board to conduct elections among groups of employees , regardless of whether or not they may be found separate appropriate units , whenever it becomes relevant in a Board proceeding to ascertain the desires of the ma- jority in a particular group with respect to the form of representation preferred for purposes of collective bargain- ing. Accordingly, we adopt the Regional Director ' s recommen- dation that this objection be overruled. 4. The Employer contends that the Board may not add the key operators to the existing unit because Petitioner is seeking them only as a separate unit. The record shows that Petitioner made no specific request for a separate unit, but indicated in its brief that the issue before the Board was whether or not the key operators should be included in the existing unit . Moreover, even where only a separate unit of maintenance employees has 5 Great Lakes Pipe Line Company, 92 NLRB 583. Cf. Waterous Company , 92 NLRB 76 UNITED STATES GYPSUM COMPANY 125 been requested, the Board, upon finding the existing unit of production and maintenance employees more appropriate, and that the employees sought might properly be added to such existing unit, has directed a self-determination election for such employees.6 We accordingly, find no merit in this excep- tion. 5. The Employer alleges that the Petitioner, by executing a contract after the hearing began which excluded key operators, had waived its right to repre sent these employees for the dura- tion of the contract. In the Martin Parry and Dingham-Herbrand7 cases, cited by the Regional Director on this point, the Board stated that the exclusion of a group of employees from a contract unit does not constitute a waiver by the union of its claim to represent such employees in the future as part of the contract unit. The Em- ployer seeks to distinguish those cases on the ground that there the petitioner sought to add the formerly excluded employees to the contract unit, whereas here the Petitioner sought only a separate unit and did not seek to add these employees to the existing unit. As already indicated, the instant record does not show any specific request for a separate unit of key opera- tors. Moreover, even if there were such a request, it would not affect our view that there was no waiver here.8 Accordingly, we find no merit in this exception. 6. The Employer contends that there were procedural de- fects in the form of the notice of election. We find, however, that the language of the notice of election conforms with that of the Board's decision, and that it was consistent with the Board''s traditional manner of conducting self-determination elections for fringe groups.' We shall, therefore, adopt the Regional Director's recommendation that this objection be overruled. As we have overrulei the challenges to the ballots of all the employees in the voting group, and as we have overruled all the Employer's objections to conduct affecting the results of the election, we shall direct that all of the ballots cast in the instant election be opened and counted. [The Board directed that the Regional Director for the Thirteenth Region shall, pursuant to the National Labor Re- lationslBoard Rules and Regulations, within ten (10) days from the date of the Direction, open and count these ballots, and serve upon the parties a supplemental tally of ballots.] 6See Kirstein Leather Co., Inc., 100 NLRB 1469, 7Martin Parry Corporation, 95 NLRB 1506; Dingham-Herbrand Corporation, 97 NLRB 65. 8Kirstein Leather Co., Inc. , supra. 9See Baltimore Transit Company, 92 NLRB 688; Armour and Company, 40 NLRB 1333; United States Gypsum Company, 66 NLRB 610; Mack Motor Truck Corporation, 106 NLRB 618; The Post Printing and Publishing Company, 104 NLRB 316; Scrivner Stevens Company, 104 NLRB 506; Truscon Steel Company, 95 NLRB 1005; Foster Wheeler Corporation, 94 NLRB 211. 337593 0 - 55 - 10