United States Gypsum Co.

UNITED STATES GYPSUM COMPANY 601 United States Gypsum Company, Employer-Petitioner and Local Union No. 5674, United Steelworkers of America, AFL-CIO, and United Steelworkers of America , AFL-CIO. Case 10-RM- 441. October 28, 1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(v) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer H. Carlton Bryan, Jr. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby aflirlried. Thereafter, the Employer-Petitioner and Union filed briefs. The Employer-Petitioner also submitted a motion requesting permission to file a supplemental brief, and the Union filed a response thereto. The motion of the Employer-Petitioner is hereby granted, and its supplemental brief has been considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. Upon the entire record in this case, the Board finds : 1. The Employer-Petitioner is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. (a) We are here concerned with a representation petition filed by an employer, pursuant to Section 9(c) (1) (B) of the Act, seeking an election to determine the representative status of a labor organiza- tion previously certified by the Board as collective-bargaining repre- sensative of the production and maintenance workers.' In petitioning for such an election, an employer under present Board practice "must demonstrate by objective considerations that it has some reasonable grounds for believing that the union has lost its majority status since its certification." 2 The Regional Director processed the petition in this case after administratively determining that the Employer had made a prima facie showing of such grounds. Thereafter, the 'The factual matters which are properly before the Board in the instant case were pre- viously considered in an earlier decision involving the same parties and are reported at 157 NLRB 652. a United States Gypsum Company, 157 NLRB 652. 161 NLRB No. 61. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer and Union, both at the hearing and before the Board,, raised various objections to the Regional Director 's action in resolv- ing that particular issue administratively without permitting them to litigate the facts underlying his determination . We approve the pro- cedure followed by the Regional Director ; for, in our judgment; such approach is most compatible with effective administration of this phase of the Boards election processes . Thus the determination by administrative action protects the confidentiality of data submitted in support of the petition , and also permits an expeditious resolution of issues concerning employee choice of a bargaining representative, whenever an election for such purposes is otherwise timely. Such pro- cedure is particularly appropriate where, as in the instant matter, an election is sought to determine the course of an existing collective- bargaining relationship. Accordingly, since the Regional Director has administratively determined that the requisite prima facie showing has been made herein,' and as the parties are not entitled to litigate this particular aspect of the representation proceeding , we are administratively satis- fied that the Employer has met this requirement for processing the instant petition. (b) The Union contends that its contract with the Employyer's• predecessor constitutes a bar to an election . Although the Employer was not a signatory to that agreement and did not assume the agree- ment on purchasing the plant, the Union urges that Wiled cPc Sons, Inc. v. Livingston, 376 U.S . 543, compels us to hold that said agree- ment is binding upon the Employer , and hence that the Employer's, petition was untimely filed under the Board 's contract bar rules. However, we deem it unnecessary for purposes of this case to deter- mine the continuing viability of the contract, for, irrespectiVe -Of 'the Employer 's obligations , if any, with respect thereto, we are persuaded by the instant record that the purposes of the Act will best be effec- tuated by the direction of an immediate election herein. 4. The parties agree, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (c) of the Act: All production and maintenance employees at the Fmployer's' Montevallo plant, excluding office clerical employees , profes- We wish to make clear, however, that as the Regional Director's determination is based' solely upon an employer's prima facie showing, and is not litigable at any stage of the representation proceeding, his finding is not to be regarded as determinative of an em- ployer's obligation to engage in further bargaining, or necessarily dispositive of a related' refusal-to-bargain charge filed by an incumbent collective-bargaining representative. THRIFTOWN, INC. 603 sional employees, watchmen, guards, and all supervisors as defined in the Act.4 [Text of Direction of Election omitted from publication.]5 * The Employer would exclude, and the Union would include, the bulldozer operator 1, the bulldozer operator 2, and four kiln operators. The Employer concedes that all three classifications were within the unit historically represented by the Union and that their duties are unchanged, but contends that, following its purchase of the plant, the respon- sibilities of those occupying these classifications have been redefined in a manner establish- ing supervisory status. The record shows that the employees occupying these positions are engaged essentially in rank-and-file work and it is clear that while they exercise lead authority over other employees of lesser skill and experience, their duties neither entail the exercise of independent judgment nor reflect any other attributes of supervisory status sufficient to warrant their exclusion. Accordingly, we find they are not supervisors and include them in the unit herein. 5 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 10, within 7 days after the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236. Thriftown, Inc., d/b/a Value Village, E & L Distributors, Inc., and Astra Shoe Company and Retail Clerks International As- sociation, AFL-CIO, Petitioner Thriftown, Inc., d/b/a Value Village, Employer-Petitioner and Retail Clerks International Association AFL-CIO, Local Union No. 445.' Cases 25-RC-2761 and 25-RM-169. October 28, 1966 DECISION ON REVIEW On March 30, 1965, the Regional Director for Region 25 issued a Decision and Direction of Election in the above-entitled proceeding in which he rejected as inappropriate the unit requested by the Peti- tioner in Case 25-RC-2761, comprising employees of Thriftown, Inc., and its licensees, E & L Distributors, Inc., and Astra Shoe Company (hereinafter referred to as Astra). Instead, he found 'appropriate a unit limited to the employees of Thriftown as sought by the Em- ployer, and additional separate units of employees of Astra and E & L Distributors, Inc., respectively. Thereafter, in accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Retail Clerks filed a timely request for review of the 'The names of the parties are designated in the caption in accord with the record evidence. Retail Clerks International Association, AFL-CIO, and Retail Clerks Interna- tional Association, AFL-CIO, Local Union No. 445, are hereinafter referred to collectively as the Retail Clerks. 161 NLRB No. 42.