United States Gypsum Co.

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Krafft-Murphy Company, 2302 Wisconsin Avenue NW., Washington, D. C. A & P Construction Company, Kensington, Md. Alpo Plastering Company, Washington, D. C. James Kane & Sons, Alexandria, Va. Michael's Plastering Company, Alexandria, Va. Lloyd E. Mitchell Company, Baltimore, Md. Charles F. O'Brian, Arlington, Va. United States Gypsum Company and United Papermakers and Paperworkers, AFL-CIO, Petitioner. Case No. 1-RC-4661. June 5, 195' 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 George A. Sweeney, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 employees of the Employer. 3. A question affecting commerce exists 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. The Employer moved to dismiss the petition because the authoriza- tion cards the Petitioner submitted to support the petition bear- the designation "American Federation of Labor and Congress of In- 'The Petitioner objected to the hearing officer's refusal to admit into the record certain letters the Employer had distributed among its employees at the time of the organiza- tional campaign and certain documentary material pertaining to the bargaining unit place- ment . of employees working for other employers engaged in business operations similar to the Employer's. We find the hearing officer's rulings were not prejudicial, because, if admitted, the proffered evidence would not affect our ultimate findings in this case. 2 The Industrial Union Department, AFL-CIO, requested permission, after the close of the hearing, to appear as an amious curiae. The request is hereby granted. The Petitioner and the amicus requested oral argument . The request is hereby denied as the record and the briefs adequately present the issues and the positions of the parties. 118 NLRB No. 4. UNITED STATES GYPSUM COMPANY 21 dustrial Organizations and All Affiliated Organizations" and were obtained in an organizational drive by representaives of the Textile Workers Union of America, AFL-CIO. Showing of interest is an administrative matter not litigable by the parties to a representation proceeding. Moreover, the Board is satisfied that the designation of a parent labor organization is-for the purpose of determining the sufficiency of a petitioner's showing of interest-a valid designation of a petitioner-affiliate.3 The authorization cards signed by the Em- ployer's employees designated the AFL-CIO, the parent organization of the Petitioner. Accordingly, the Employer's motion to dismiss the petition i5 hereby denied. 4. The Petitioner seeks to represent a unit of production and main- tenance employees at the Employer's Lisbon Falls, Maine, insulation products plant. There are about 160 employees in the plant, of whom approximately 40 are salaried and not in dispute. The remaining personnel are hourly paid, and the Employer asserts, contrary to the Petitioner, that about 30 of them should be excluded from the unit-20 of them as supervisors. This decision deals initially with the unit placement of those alleged supervisors. The classifications the Employer asserts should be excluded from the unit as supervisors are key operators, relief key operator, hourly paid relief foremen, loading leader, woodyard scaler, maintenance leaders, and chief tester. Key operators: The key operators work in the fabrication depart- ment which fabricates and shapes insulation board into acoustical and insulation products and does some packaging. The department has 5 .salaried supervisors (superintendent, fabrication engineer, and 3 shift foremen) and about 60 hourly paid people working on 3 shifts. Twenty of the hourly paid personnel work on each shift. Every shift has a salaried shift foreman, 4 disputed key operators (trimmer opera- tor, tile machine operator, small machine operator, and driller op- erator), a painter operator, a slotter operator, a truckdriver, a saw filer, a grader, and 11 finishers. Each key operator is in charge of a machine. The tile machine operates 40 to 50 percent of the workweek and is run by the operator and, most of the time, by 11 crewmen; the operator spends an ad- ditional 45 percent of his time setting the machine for operation. The trimmer machine runs virtually continuously, with the operator and about three other men. The driller operates 60 to 65 percent of the time with the operator and 5 others; the driller operator spends 20 to 25 percent of his remaining time adjusting his machine. The small machine runs 25 percent.of the workweek with the operator and 3 General Shoe Corporation. 113 NLRB 905, 906. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a crew of about 6 others.' As the machines often do not run simul- taneously, the men on the crews shift to different machines during the course of a workweek. A key operator in charge of a machine that is temporarily shut down shifts to another machine as an ordinary crewman. If the key operators are assumed to be supervisors, the ratio of supervisors to employees in the Employer's fabrication department is 17 to 48,5 or 1 supervisor to less than 3 employees. The record shows that the ratio of supervisors to employees for other comparable em- ployers in the insulation board industry is about 1 to 20 6 If the op- erators are deemed employees, there are 5 supervisors to 60 employees in the department-a proportion of 1 to 12, which is much more in keeping with the normal ratio in the industry. The Employer asserts that comparison of the total number of supervisors to the total number of employees is not the proper yardstick for computing the supervisor- employee ratio in its fabrication department because the various crewmen work on different machines as needed-with the exception of the men on the trimmer machine, which has a fixed crew. The Employer claims, in substance, that the supervisor to employee ratio for the fabrication department should be computed on a machine-by- machine basis. The 4 machines run by the key operators have the operators and, respectively, about 11, 6, 5, and 3 crewmen.. The re- sulting ratios are still grossly disproportionate for the Employer's industry and become even more so when the 5 salaried supervisors in the fabrication department are included in the computations. The rates of pay of the 20 hourly paid people on each work shift are: finishers $1.30 to $1.36; truckdriver $1.36; grader $1.38; painter operator $1.43; slotter operator $1.43; small machine operator $1.46; driller operator $1.51; trimmer operator $1.58 ; saw filer $1.59; and tile machine operator $1.63. Among the 60 hourly paid workers in the fabrication department is a utility man who, at the times the Em- ployer operates on more than a 5-day workweek, acts as a relief fore- man; at the time of the hearing this worker was not serving as a relief foreman and his pay was $1.67 per hour? Some key operators actually receive less pay than some of the crewmen they allegedly supervise. * The percentages were supplied by the Employer 's witnesses. They are not entirely accurate because collation of the numbers of employees on the different machines with the highest estimates of time that the machines operate does not account for all the employees' time. However , even though the work crews may shift among the machines less often than the Employer avers, the record does, at least, establish the shifting method of operation. 6 There are 5 undisputed salaried supervisors and 60 hourly paid personnel , of the latter, 12 are key operators. 0 The supervisor -employee ratio for other employers was established by the testimony of the Petitioner's director of research and education . The Employer failed to contradict that testimony as well as the director 's claim that the Employer's business operation is like that of other producers of insulation board products. 7 The utility man's unit placement is also in dispute and will be considered separately hereafter. UNITED STATES GYPSUM COMPANY 23 For instance, under the Employer's operational scheme, a small ma- chine operator receiving $1.46 an hour may have one of the other, higher paid key operators working on his machine as a crewman. The record shows definite differences between the working conditions of the salaried supervisors and all the hourly paid employees. Among other things, the salaried workers receive paid sick leave whereas the hourly paid do not; the two groups have different vacation schedules; and the hourly paid workers do not attend the foremen meetings of the salaried supervisors. The benefits and general working conditions of the key operators are those of the other hourly paid employees, not those of the salaried supervisors. The shift foremen, not the key operators, assign employees to particular machines at the start of work shifts and during the course of work shifts when one type of machine stops operating and another begins. In the event of absence of one of the employees regularly as- signed to the trimmer machine, which operates continuously, the shift foreman substitutes another employee. The salaried supervisor, not a key operator, gives employees permission to take time off. The employees working on a particular machine, other than key operators, change positions on the machine because the individual jobs have varying fatigue factors. In some instances the employees change positions after obtaining permission from the key operator, in others the workers shift on .their own initiative. When running some prod- ucts the employees on a machine take rests every 2 hours; the record details one incident of a crew telling their operator they were taking a break and then walking away from the machine, and the operator then followed. On occasion key operators mention to shift foremen that particular finishers are doing good work. The report then goes to the department superintendent who investigates the recommendation and decides whether to give the finisher a pay raise. As there are only 3 job grades for finishers and promotion from third to second class finisher is prac- tically automatic after 3 or 4 weeks of job indoctrination, the operators have 1 raise to suggest for each finisher. But even the effectiveness of that one suggestion is highly questionable because the plant works manager testified, in substance, that he did not known how effective an operator's recommendation would be absent a shift foreman's ap- praisal thereof. One operator, a witness called by the Employer, stated he did not believe that he could independently promote a finisher. In addition to such general testimony on the operator's authority to change the job status and tenure of finishers there is detailed evi-: dente of wage raises, reprimands, transfers, and layoffs of named em- ployees. The Employer's witnesses asserted that the various changes were the result of initial recommendations by key operators. On the 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other hand, there is evidence of the Employer's failure to promote or transfer named employees notwithstanding operators' recommenda- tions. One operator, testifying as an Employer witness, stated that his recommendations were followed "most of the time." The Employer's works manager stated that the key operators have the authority to settle grievances, and one operator testified that he had been told to handle grievances. But other witnesses testified that employees take complaints directly to the shift foremen. More reveal- ing and helpful than this testimony, however, is the Employer's "Plant Practices" bulletin setting forth the plant grievance procedure. The bulletin states that the first step for a complaining employee is dis- cussion with his "immediate foreman or superior"; the next step is for the foreman to arrange a meeting between the complainant and the department superintendent. Thus the Employer's formal grievance procedure does not envisage the key operators as management repre- sentatives expected to deal with employee complainants, because the one supervisory official between the superintendent and complaining employees is the shift foreman. The works manager testified that the key operators recommend dis- ciplinary action against, and themselves reprimand, employees violat- ing safety rules. However, the fabrication department superin- tendent admitted that rank-and-file employees also report safety rules violations, and an operator testified that his obligation with respect to safety is no different from that of employees generally. Another operator stated that, if a problem is serious, be "wouldn't attempt to" reprimand or correct his crew. There is also an account in the record of the processing of a safety rule violation. In that case the operator reported the incident to an employee safety committee; the committee recommended that the operator suggest disciplinary action to the shift foreman; the foreman thereafter passed along the operator's sug- gestion to the department superintendent; and the superintendent eventually suspended the rule violator for 5 days. In that instance the employees, not the. key operator, instigated the suggestion that reached the superintendent, and the operator took no part in deciding. the discipline imposed. The key operators' work at their machine is primarily a manual op- eration. Indeed, they actually help the crewmen in the cleanup work around their machines when safety requires that work be done. The Employer argues that such facts establish that the key op- erators responsibly direct the efforts of work crews, are responsible for the crews' safety, instruct and correct their men, occasionally repri- mand them, adjust some of their grievances, and effectively recom- mend disciplinary action, promotions, and transfers. The Employer claims further that the crewmen obey the operators, that the operators receive substantially higher wages than their crewmen "for added UNITED STATES GYPSUM COMPANY 25 responsibility and higher skill," 11 and that the operators' duties and responsibilities have not changed since the Board excluded them from a production and maintenance unit in 19511 The Employer would have the Board find that the key operators should be excluded from the production and maintenance unit sought by the Petitioner because "they regularly and responsibly direct the work of their crews and make effective recommendations concerning changes in the status of their men." The question whether particular individuals in a given case are supervisors within the meaning of Section 2 (11) 11 of the Act must be resolved upon examination of all the evidence in the case. Con- clusory statements that the individuals can "effectively recommend" changes in the status of employees and that they "exercise independent judgment" and do not establish supervisory authority. Such expres- sions are words of art reflecting legal conclusions, but they are not evi- dence which assists in the resolution of disputed supervisory authority. It is also necessary to note that Congress, in defining the term "super- visor," did not include "employees with minor supervisory duties." Congress "distinguished between straw bosses, lead men, set-up men, and other minor supervisory employees, on the one hand, and the super- visor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with re- spect to such acts." 11 8 The Employer's witnesses could not assign the portions of the operators' pay differ- ential attributable, respectively, to "added responsibility" and to "higher skill." The Employer draws no distinction between the alleged supervisory responsibility of the small machine operator receiving $1.46 per hour and the other, higher paid operators. The Employer attributes the pay differences among the four operators to the types of products their machines produce, the differing sizes of the crews, and the various speeds of their machines, 9In Case No, 1-RC-2336, issued October 4, 1951, not reported in the printed volumes of Board Decisions and Orders. 10 "The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing exercise of such authority is not of a merely routine or clerical nature, but requires the use of inde- pendent judgment." 11 Sen. Rep. No. 105, 80th Cong., 1st Sess. 4 (1947). . . . the committee has not been unmindful of the fact that certain employees with minor supervisory duties have problems which may justify their inclusion in that Act. It has therefore distinguished between straw bosses, lead men, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such acts. In other words, the committee has adopted the test which the Board itself has made in numerous cases when it has permitted certain categories of supervisory em- ployees to be included in the same bargaining unit with rank and file. (Bethlehem Steel Company, Sparrows Point Division, 65 NLRB 284 (expediters) ; Pittsburgh Equitable Dieter Company, 61 NLRB 880 (group leaders with authority to give instructions and to lay out the work) ; The Richards Chemical Works, Inc., 65 NLRB 14 (supervisors who are mere conduits for transmitting orders) ; Endicott Johnson Corporation, 67 NLRB 1342, 1347 (persons having the title foreman and assistant foreman but with no authority other than to keep production moving).)" Southern Bleachery and Print Works, Inc., 115 NLRB 787. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All the evidence in this case points to the fact that the method of payment represents the true dividing line between the Employer's supervisors and its nonsupervisory employees. Thus, for example, if the hourly paid key operators are assumed to be supervisors, the ratio of supervisors to nonsupervisors in the Employer's fabrication depart- ment is grossly disproportionate. The key operators enjoy the working conditions and benefits of the admitted nonsupervisory em- ployees, not those of the admitted salaried supervisors. The op- erators' wages are not markedly higher than those of the employees they are supposed to supervise. The differences in wages that do exist are accounted for by the greater experience, skill and training of the key operators. Significantly, the Employer's witnesses were unable to identify the portion of the operators' wage rates attribut- able to the exercise of alleged supervisory authority. The operators' suggestions relative to the job status of their crewmen are closely scrutinized by the true supervisors and are acted upon only after the latter's independent investigation; indeed, the suggestions of the key operators are often enough rejected. Contrary to the Employer's claim, the operators do not settle grievances ; they are not even men- tioned as participants in the grievance settlement plan. In sum, the key operators are merely conduits between the true supervisors and the crewmen. Whatever authority they exercise with respect to the employees comprising their crews is routine in nature and does not require the exercise of independent judgment. Accordingly, we find that the key operators are not supervisors within the statutory defi- nition, and we include them in the unit." We have considered the 1951 decision wherein the Board found that the key operators were supervisors and excluded them from a production and maintenance unit. However, there was no subsequent bargaining history because the petitioning union lost the election and the evidence in that 1951 proceeding on the duties and responsibilities of the key operators was not nearly as detailed as that in the present case. Under the circumstances we do not consider the earlier decision dispositive of the status of the key operators.13 Hourly paid relief foremen: As noted above, the utility man in the fabrication department has also been designated as an hourly paid relief foreman. He has served in the past as a part-time shift fore- man when the Employer operated on a 6- or 7-day workweek schedule. However, for some time before the hearing in this case the Employer had been operating on a 5-day workweek basis, and its return to a 6- or 7-day week depends upon increased ' business volume, an un- certain factor. The Board's practice is to include in bargaining units 13 We also include in the unit the relief trimmer operator whose status was disputed. 13 Lindsay Newspapers, Inc., d/ b/a Sarasota Herald Tribune and Journal, 112 NLRB 1206, 1208-1209 (Cheesie Hargis). - UNITED STATES GYPSUM COMPANY 27 workers who may perform supervisory functions at some indetermi- nate future date.14 As the utility man's future duty as a part-time supervisor is speculative, we include him in the unit. The circum stances that apply to the utility man-hourly paid relief foreman in the fabrication department are equally applicable to an hourly paid relief foreman in the manufacturing department. Accordingly, we also include in the unit the manufacturing department hourly paid relief foreman.15 Loading leader: The loading leader works in the warehouse and loading department, which handles warehousing, receiving, and shipping operations. The superintendent is the one salaried super- visor in the department. In addition to the hourly paid loading leader there are six hourly paid loaders.ls The loading leader receives $1.52 per hour; 5 of the loaders receive $1.30 to $1.40 per hour; and the relief loading receives $1.47 per hour. The department works on a two-shift basis. The loading leader works on the second shift with two loaders, and the superintendent is on duty for only a portion of that shift. In the past there has also been a first shift loading leader but, at the time of the hearing, the department was operating with- out a first shift leader. The leader spends the greater portion of his time doing the same manual work as the loaders. The loading leader informs the two loaders on his shift of the jobs they are to perform after consulting a weekly work schedule prepared by the superintendent. The leader keeps the loaders' timecards. The department superintendent testified that the loading leader can send home a loader who refuses to follow instructions; but the superin- tendent otherwise stated that the leader cannot discharge an employee and that personnel action involving the loaders is taken only after his independent investigation. The superintendent also stated that the loading leader's on-the-job decisions are not routine; as an example he cited the fact that the leader decides how freight cars are to be loaded. The superintendent admitted, however, that a rank-and-file loader independently decides how to load a freight car when the leader is not present to make the decision. The superintendent re- ported the details. of various changes in employees' job status, which actions loading leaders had originated. In the Board's 1951 decision involving this plant the Board found the Employer's loading leaders were not supervisors and included them in a production and maintenance unit. . Since that time, one level of authority between the department superintendent and the 11 The Peai Manufacturing Company, 80 NLRB 827, 829. is We note that, in the event the Employer again operates on a 6- or 7-day workweek basis and the relief foremen substitute for salaried supervisors, the Petitioner agreed that the relief foremen should, at that time, be excluded from the 'Unit. is The Employer agreed to include in the unit one of the loaders who is also designated a relief loading leader . There is also one salaried clerk in the department whom the parties agreed to exclude from the unit. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loading leader has been eliminated ; however, the superintendent testified there has been little change in the duties of the loading leader and that his authority has remained the same. In support of its contention that the loading leader is a supervisor the Employer makes much of the fact that the superintendent is not at work during most of the second shift when the leader is on duty. However, this fact loses the significance the Employer assigns to it in view of the added fact that, even during the first shift, the super- intendent spends most of his time in his office and the loaders on that shift were, at the time of the hearing, doing their jobs without any alleged guidance and control from a loading leader. Even assuming, as the Employer contends , that the loading leader gives instructions to, and lays out work for, the loaders , such an exercise of authority is routine in nature." Indeed, the loading leaders exercise of such limited authority is apparently gratuitous and unnecessary to the Employer 's operations , in view of the loaders' independent de- cisions on how to do their work if the loading leader is not present. The leader's lack of power effectively to recommend changes in the loaders' job status is shown by the department superintendent 's testi- mony that his independent investigation is a condition precedent to any personnel action involving loaders. We find that the loading leader is not a supervisor and include him in the unit. Woodyard scaler: The scaler works in the manufacturing depart- ment which receives raw materials and processes them into insulation board. The receiving portion of the department is the Woodyard and the processing section is the board mill. There are 5 undisputed salaried supervisors (superintendent, general foreman, and 3 shift foremen) and 21 others in the department. The Woodyard scaler works on the day shift along with the superintendent , general fore- man, a shift foreman, 5 employees in the board mill, and 5 employees in the Woodyard. The average of the foremen 's salaries is 38 percent higher than the scaler's pay. Of the Woodyard personnel, the scaler. receives $1.46 per hour, the chainman $1.42, the truck-tractor driver $1.38, the chipper $1.35, and the woodhandlers $1.30. One of the undisputed hourly paid employees in the board mill, the board forming machine operator, receives $1.77 an hour. The scaler selects the shifts the various Woodyard employees are to work, initials their timesheets , and attends the board mill super- visors' meetings ; however, rank-and-file employees can also attend those meetings. The scaler measures pulpwood upon its arrival, gauges its quality, and checks the amount received . He punches a time clock. Particularly pertinent to the issue of the scaler 's alleged supervisory status is the fact that the second shift Woodyard crew works without any alleged supervisory direction by a scaler. During 17 See note 14, supra. UNITED STATES GYPSUM COMPANY 29 the second shift the manufacturing department operates with a shift foreman, 3 employees in the board mill, and 3 men in the woodyard. Any suggestions the scaler may advance with respect to production ,and maintenance workers are subject to the independent investigation of salaried supervisors. Thus the scaler does not effectively recom- mend changes in the status of woodyard employees. The extreme dif- ferences between his income and that of the salaried supervisors indicates that the Employer does not really treat or consider the scaler as a supervisor. Also indicative of the scaler's employee status is the fact that another employee in the manufacturing department, whose inclusion in the production and maintenance unit sought by the Petitioner is not disputed, actually receives 31 cents more an hour than does the scaler. The Employer's second shift operates with but 1 salaried foreman and 6 employees-3 of them in the woodyard. This circumstance further indicates that the scaler does not serve as a supervisory direc- tor of personnel on the first shift which has 3 salaried supervisors for only 11 employees including the scaler. Upon the above-detailed factors and the record as a whole we find that the scaler is not a supervisor. We therefore include him in the unit. Maintenance leaders : The maintenance leaders work in the en- gineering department which handles plant maintenance and includes the boilerhouse. There are 6 salaried personnel in the department- engineering superintendent, maintenance engineer, authority and con- struction supervisor, engineering assistant, project engineer, and en- gineer trainee. All 6 have supervisory authority over the maintenance crews, although the authority of 2 of them appears to be limited. Three hourly paid maintenance leaders were working in the engineer- ing department at the time of the hearing, with nine admitted rank- and-file maintenance mechanics. The leader assigned to work in the fabrication department has 3 mechanics working with him; the leader for the manufacturing department has 1 mechanic working with him; and the leader for electrical maintenance has 1 mechanic working on the same shift with him-2 other electrical mechanics work on separate shifts.18 The leaders' pay averages 30 percent less than that of the 2 lowest paid salaried supervisors and 13 percent more than the mechanics'. They do manual labor 75 to 85 percent of their time. The leaders determine the maintenance jobs to be done each day after consulting a master schedule listing all pending maintenance work. They assign mechanics to those jobs; but the engineering superintendent termed the making of such assignments "routine." Upon promotion to the "A machinist and a painter, who both generally work alone, were stipulated in the unit, They work with the manufacturing department maintenance leader on "down days," which occur once every 4 weeks. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job a leader is instructed to "supervise" the mechanics and settle their grievances, and leaders are responsible for the mechanics' obser- vation of safety rules. On the other hand, the superintendent testi- fied that, in practice, the mechanics have brought their grievances directly to him, and one maintenance leader has never settled a griev- ance because "they've been too big." Although leaders suggest pay increases for mechanics, no mechanic receives a raise without the engineering superintendent's approval. Although one leader testified he would give time off to the mechanic working with him, the record otherwise shows that the leaders first check with the salaried supervisors before granting mechanics time off. Once a month the leaders confer with the mechanics, and prepare one-page appraisal sheets on the mechanics' job performance and safety rules observation; however, the significance of such appraisal sheets does not appear to be particularly great in view of the number of mechanics who do not work with leaders and therefore do not have the leaders prepare appraisals on them. In particular instances the leaders have instituted changes in the job status of mechanics, but the suggestions were apparently independently investigated by salaried personnel. If the leaders are assumed to be supervisors, the supervisor to employee ratio in the Employer's engineering department is highly disproportionate. Adoption of the Employer's contention that the leaders are supervisors results in having 9 supervisors for 9 mechanics and 6 powerhouse employees. As noted above, the leaders do not make effective, independent recommendations that result in changed con- ditions for employees. Moreover, the directions the maintenance leaders give to the mechanics derive from their greater skill and only "incidentally direct the movements and operations of less skilled" mechanics.19 We find therefore that the maintenance leaders are not supervisors and we include them in the unit.21 Chief tester: The Employer contends that the chief tester should be excluded from the unit on either of two grounds-as a supervisor or as a technical employee. The chief tester works in the Employer's quality department which has six quality inspectors-admitted non- supervisory employees. The Employer's brief states that the quality inspectors report to a quality assistant, one of the salaried supervisors in the quality department. It therefore appears unlikely that the chief inspector has any rank-and-file employees to supervise in the 11 Southern Bleachery and Print Works, Inc., supra, 791. 20 One maintenance leader and several mechanics from the Employer's engineering department were temporarily assigned to plant construction work at the time of the hearing. The parties agreed to include the mechanics in the unit and to have the Board's decision on the status of the maintenance leaders remaining in the engineering depart- ment govern the unit placement of the maintenance leader assigned to construction work. Accordingly, we include in the unit the maintenance leader and the mechanics assigned temporarily to plant construction work. UNITED STATES GYPSUM COMPANY 31 quality department. However, the record material pertaining to the chief inspector is incomplete, both as to evidence on his functioning as an alleged supervisor and as to the details of his job as an alleged technical employee. In view of such insufficiency of evidence for resolving the disputed status of the chief inspector, we shall permit him to vote subject to challenge 21 There remain for consideration three categories of disputed em- ployees that the Employer would exclude from the unit, whereas the Petitioner would include them. Quality inspectors (testers) : The Employer would exclude its 6 testers as technical employees : of the 6, 3 are dry end testers and the other 3 are wet end testers. The record shows the dry end testers test processed board at least three times daily. The record does not, however, show conclusively the proportions of worktime that the dry end testers spend performing their various duties. According to the Employer's works manager the dry end testers spend 60 percent of their time in the Employer's main laboratory, 10 to 15 percent of their time collecting samples, and 25 to 30 percent checking finished board.22 The wet end testers, once an hour, test the liquid mixtures in which insulation board is processed and spend two-thirds of their time in the laboratory. The works manager testified that the training of a tester requires 2 to 3 months.23 The testers repeatedly perform the same tests and only occasionally run a special test. Moreover, some of the operators in the fabrication department perform some of the same tests as the dry end testers. The works manager reported that the Employer prefers newly hired testers to have high school educations ; however, the background of one tester, at the time he was hired by the Employer, consisted of but 1 year of high school education and no chemical train- ing. On the "down days" that occur once every 4 weeks the testers do not perform their usual duties; instead they assist the other pro- duction and maintenance employees. These facts and the entire record show that the tests performed by the Employer's testers are highly repetitive and routine. The job classification requires no special training or educational background. The time the testers require to learn their duties is very short and em- phasizes the simplicity of their functions. We find therefore that the quality inspectors (testers) are not technical employees, but rather that they are production and maintenance workers, and we include them in the unit. ai The chief tester was excluded from a production and maintenance unit of the Employer's employees in 1951, by stipulation of the parties to that proceeding. How- ever, such action by the parties to that 1951 proceeding is not determinative of his unit placement in this case. as One tester testified that he spends only one-third of his time in the laboratory. m A tester averred that, although he was a third-class tester for 6 months, his initial training period was merely 3 weeks. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boilerhouse operators serving as part-time guards : Four of the Em- ployer's six boilerhouse operators work weekends ; each of the 4 men works 3 out of every 4 weekends and divides each 8-hour shift between 4 hours of boilerhouse duties and 4 hours of watchman work. Some weekends a boilerhouse operator works 1 shift and others he works 2 shifts; thus, during the weekends they are on duty, 4 of the Em- ployer's boilerhouse operators spend 4 or 8 hours as watchmen. On the occasions the boilerhouse operators act as watchmen they perform the same duties as the Employer's full-time watchman whose primary function is to protect the Employer's plant and property from out- siders and employees. As some of the Employer's boilerhouse operators spend some, part of their working time performing guard duties, we find, they are guards within the meaning of the.Act.24 Therefore, in accordance with the Employer's request, we exclude front the unit the four boiler- house operators who also act as part-time guards. Construction workers permanently transferred from the plant pro- duction sta ff : At the time of the hearing, the Employer was construct- ing new plant facilities. The construction work was under the control of its Chicago office. As noted above, the Employer temporarily transferred some of its regular, maintenance employees to that con- struction project, and, by agreement of the parties, those temporary transferees are included within the scope of the production and main- tenance unit herein found appropriate. The Employer also trans- ferred to the construction job about five employees who were about to be laid oft' from production work. The Employer has no intention of rehiring those five employees as production workers. The Petitioner would include in the unit sought the five permanent transferees as well as the temporarily transferred maintenance work- ers, even though the Petitioner does not wish to represent any other employees working on the construction project. As the five perma- nent transferees have no likelihood of rehire for production work in the Lisbon Falls plant,25 we grant the Employer's request and exclude them from the unit. Accordingly, we find that all production and maintenance employees at the Employer's Lisbon Falls, Maine, plant including key operators (trimmer operators, tile machine operators, small machine operators, driller operators), relief trimmer operator, hourly paid relief fore- men, loading leader, woodyard scaler, maintenance leaders and quality inspectors (testers), but excluding office clerical and plant clerical employees, woodyard employees, woodyard truckdrivers,26 21 Wa.lterboro Manufacturing Corporation, 106 NLRB 1383. 25 Indeed , these five disputed workers may no longer be employees of the Employer in any capacity, because, by the Employer 's estimate, the construction project was to have been completed in April i957. 20 The parties agreed to exclude the woodyard employees. THE SEYMOUR MANUFACTURING COMPANY 33. boilerhouse operators serving as part-time guards, guards, profes- sional employees, and 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 Election omitted from publication.] MEMBER RODGERS took no part in the consideration of the above Decision and Direction of Election. The Seymour Manufacturing Company and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-AFL-CIO), Petitioner. Case No. 1-IBC-4847. June 6,1957 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 Joseph Lepie, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial 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-member panel [Chairman Leedom and Members Murdock and Bean]. 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. The Employer moved to dismiss the petition on the ground that the Petitioner agreed to "bar" itself from representing the employees here sought under a contract due to expire on November 15, 1958. In 1945 the Petitioner was designated as collective-bargaining repre- sentative for the Employer's production and maintenance employees, excluding employees in the laboratory department. On November 15, 1955, the parties executed a 3-year agreement including all hourly rated production and maintenance employees, but excluding, inter alia, laboratory department employees. The Employer contends that the Petitioner's agreement to exclude laboratory department employees from the contractual unit constituted a waiver of its right to represent these employees for the term of the existing contract. In Briggs Indiana Corporation,' the Board established a policy of refusing to direct an election at the insistence of a petitioner who had contractually waived the right to represent the employees sought. 163 NLRB 1.270. 118 NLRB No. 1. 450553-58-vol. 118-4