National Gypsum Co.

NATIONAL GYPSUM COMPANY 315 gaining. In the event a majority do not vote for the Petitioner, these employees shall remain a part of the existing unit and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of Election omitted from publication.] National Gypsum Company and District 50, United Mine Work- ers of America, Petitioner National Gypsum Company and United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Petitioner. Cases Nos. 8-RC-3798 and 8-RC-3801. July 25, 1960 DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a hearing was held before Harold A. Ross, hearing officer. 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-member panel [Chairman Leedom and Members Rodgers 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 organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act.2 4. The Petitioners seek a unit of all production and maintenance employees at the Employer's Lorain, Ohio, plant, excluding office clerical employees, professional employees, guards, and all supervisors as defined in the Act. The Employer, in opposition to the Petitioners, would exclude from this unit a janitor, the repair parts clerk, four 'The Employer Is a Delaware corporation with principal offices located in Buffalo, New York, and doing business in various states of the United States. It is engaged in the production of building materials such as wallboard and plasterboard at some 40 plants including the plant at Lorain, Ohio, involved herein. Although this plant has been in operation only since March 14, 1960, it has already received from the Company's mine in northern Michigan rock ore valued in excess of $50,000. The parties do not contest the Board's jurisdiction. 2 The Employer moved to dismiss the petitions on the ground that they were pre- maturely filed in view of the fact that the plant has been In operation only since March 14, 1960, and readjustments and reassignments of work tasks are currently being made. For the reasons stated In section 5 , infra, the Employer's motion is hereby denied. 128 NLRB No. 38. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laboratory testers, the plaster leadman, three wet end leaders, and three dry end leaders 3 Janitor: The duties of the janitor include cleaning the offices, cut- ting the lawn, shoveling snow, and washing windows. Another em- ployee classified as a cleanup man does janitorial work in the shop and cleans the lockers. It is agreed that the cleanup man is a part of the appropriate unit. In its brief, the Employer opposes the inclusion of the office janitor alleging that he has no common interest with the production and maintenance employees. As janitors are customarily included with production and maintenance employees because of their community of interest and no persuasive reason has been given for the exclusion of the janitor involved here, we find that he is appro- priately a part of the production and maintenance unit.4 Repair parts clerk: The Employer contends that the repair parts clerk should be regarded as an office clerical employee because of the clerical nature of his work and because his duties bring him in contact with the office manager and other office employees. The repair parts clerk is located in the tool and repair parts section of the maintenance department. He issues parts and tools to maintenance employees and is responsible for the inventory of repair parts and supplies. He keeps the appropriate records and is responsible for balancing out this account at the end of each month. We find that his duties are those of a plant clerical, and in accord with our usual policy we shall in- clude the repair parts clerk in the production and maintenance unit.' Laboratory testers : There are presently four laboratory testers working at the plant. The Employer urges their exclusion on the ground that they are technical employees., Testers are high school graduates with some education in chemistry and physics or with prac- tical work experience in these fields. The testers take hourly samples of the product at various stages of production and check with appro- priate instruments for the maintenance of quality specifications. The types of tests taken are specific and repetitive and include purity and size of the ground gypsum, measurement of the water capacity, and size and dryness of the finished product. Some of these tests are made at laboratories located near the board machine calcine mill. On the basis of these facts and the entire record, we find that the laboratory testers are not technical employees. Accordingly, we shall include them in the unit.' Wet end leaders, dry end leaders, and plaster leadman: A foreman is in charge of operations on each shift in the Employer's board plant 9 During the course of the hearing the Employer withdrew its objection to the inclu- sion of Raymond-tube mill operators and kiln operators In its brief the Employer withdrew its objection to the inclusion of Holo-flite operators 4 Phillips Petroleum Company, etc., 122 NLRB 1348, 1350 ; Kentucky Royal Electric Cooperative Corporation, 127 NLRB 887 5 Mead-Atlanta Paper Company, 123 NLRB 306 0 See United States Gypsum Company, 118 NLRB 20, 31. NATIONAL GYPSUM COMPANY 317 which is over 600 feet long. At the wet end the gypsum mix is in a wet stage where paper and plaster is applied to make plasterboard. The crew at the wet end includes in addition to the leader, two edge- men, two papermen, two mixers, and ane man who prepares the fibering of pulp. The wet end leader observes and checks the work of these seven employees. The work assignment may change from day to day and the production schedules and plans of operation given by the foreman are carried out by the leader. The dry end leader is at the other end of the board plant where the boards come out of the kiln and where the plasterboard is cut, bundled, and piled. In the crew at the dry end are a panel operator, a bundle operator, and four takeoff employees. The dry end leader sees that this operation is carried on in accordance with the instructions given by the foreman. A telephone is located near the end stations where the leaders may receive from the foreman information as to what assignments and instructions should be given to the crew in the course of operation. Both wet end leaders and dry end leaders are hourly paid employees who receive between 15 and 20 cents more per hour than other indi- viduals in their respective crews. The one plaster leadman on the day shift is in charge of the mixing and packing of the plaster under the supervision of the mill superin- tendent. The crew, consisting of a mixer, a packer, and a fork-truck driver, may vary in size according to demand. The plant manager testified that the plaster leadman is authorized to issue instructions as to what bags to use, where to put the bags, and what cars should be loaded with the finished product. The plaster leadman receives written orders from the mill superintendent as to the customer orders to be filled and checks the weights on such orders. He receives ap- proximately 20 cents an hour more than other employees in the crew. The record discloses that the three wet end leaders, three dry end leaders, and the plaster leadman are new employees who are presently being trained. Each is engaged in learning the duties and how to perform the work of each job classification in his respective crew. Supervisory personnel from other plants of the Employer are pres- ently giving this on-the-job training and performing the leadman duties. None of the designated leaders has taken over his work assign- ment. Only one leader in each position is required on each shift and the Employer is presently operating the board plant with only two shifts. Thus, an extra leader is being trained for each end of the board plant. The Employer's witnesses testified that the wet end leaders, dry end leaders, and plaster leadmen were notified that they had the authority to effectively recommend the hiring, firing, promotion, and work assignments of men within their respective crews. However, it was admitted that such instructions were not given by the witnesses 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but were reportedly given by the leaders' respective foremen, and the witnesses were unable to testify specifically whether all, how many, or which individual leader-in-training had been so informed. As the leaders have not assumed the duties for which they are being trained, they have not as yet had occasion to direct the work of the crew or to make any recommendations. The testimony further indicated that any such recommendations, would not necessarily be followed, but would be given consideration commensurate with the individual leader's experience, and that at this stage any recommendation would be of questionable weight. It also appears that the plant superintendent determines what the production run will be and transmits this information to the shift foreman who decides the movement of employees in accordance with this plan. A wet end or dry end leader may only make requests for employees to the shift foreman. Moreover, it was indicated that al- though the leaders-in-training have been selected for such classifica- tions, the Employer, as a result of further working experience, could change its decision in which event they may be assigned to work any- where in the plant, as is true of all plant employees at this stage. It also appears that all plant supervisors, other than the leaders, are paid a salary rather than an hourly rate, and that the leaders have not been included with the group attending the frequent supervisory meetings. The issue as to whether particular individuals in a given case are supervisors within the meaning of Section 2(11) must be resolved upon examination of all the evidence in the case. Conclusionary statements that the individuals can "effectively recommend" changes in the status of employees do not establish supervisory authority. Such expressions are words of art reflecting legal conclusions, but they are not evidence which assist in the resolution of disputed super- visory authority.? The evidence here does not support a finding that these leaders would be supervisors within the meaning of the Act once their training is successfully completed. On the contrary, all the evidence in this case points to the fact that any authority which the leaders may have, either now or in the reasonable future, is minor in degree and relates to routine matters, and that any recommenda- tions they may make would be of questionable effectiveness. There- fore, it is clear on the basis of this record, not only that the wet end leaders, dry end leaders, and the plaster leadmen are not presently supervisors within the meaning of the Act, but also that the jobs for which they are being trained are not supervisory in nature. Ac- cordingly, we shall include them in the unit.' T United States Gypsum Company, 118 NLRB 20, 25. 8 United States Gypsum Company, 124 NLRB 416. NATIONAL GYPSUM COMPANY 319 We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's Lorain, Ohio, plant, including janitors, repair parts clerk, laboratory testers, plaster leadman, wet end leaders, and dry end leaders, but excluding all office clerical employees, professional employees, guards, and all supervisors as defined in the Act. 5. As noted above, the Employer moved for the dismissal of the petitions herein on the ground that an election at this time would be premature. The Employer's motion is based on the fact that the newly constructed plant involved herein began operation on March 14,1960, and at the date of the hearing herein employed approximately 85 hourly rated employees working in two shifts. Not all of these em- ployees have been classified and a substantial amount of shifting from one classification to another is still in process. The employees gen- erally were not hired into specific classifications, but have been arbi- trarily assigned to jobs and then moved from job to job as experience is gained. The determination of where an employee will be eventually assigned depends upon his proven aptitude on the basis of his job performance. Thus the majority of these employees are still engaged in a training program. In addition, many of them have not yet been completely processed by the personnel department, i.e., examination of X-ray results and reference verifications have not been completed. Thus, there may be a greater than normal turnover in the employee complement. In addition, the Employer anticipates placing the plant on a 3-shift basis at some indefinite date depending upon demand for its product in the area. This would require an increase of approxi- mately 25 percent in the number of employees. On the other hand, the employees, most of whom were hired during the latter part of February and early March 1960, before the official opening date, were hired on a permanent basis subject to reference checks and physical examination reports, and a substantial portion of this type of proc- essing has been completed. Moreover, the operations of the plant, the departmental structure, and the overall work classifications of employees will not be changed by the permanent assignment of in- dividual employees within the established classifications, or by addi- tion of a third shift. As the current work force and operations are substantial and representative, we find no reason for departing from our usual practice of directing an immediate election.9 [Text of Direction of Election omitted from publication.] 9 Royal McBee Corporation, 127 NLRB 896.