United States Gypsum Co.

UNITED STATES GYPSUM COMPANY United States Gypsum Company and Local 627, International Union of Operating Engineers, AFL-CIO, Petitioner. Case 16-RC-4998 August 14, 1969 DECISION ON REVIEW BY MEMBERS FANNING, BROWN, AND ZAGORIA On October 28, 1968, the Regional Director for Region 16 issued a Decision and Direction of Election, attached hereto, in which he found appropriate a unit of all production and maintenance employees at the Employer's Southard, Oklahoma, plant and quarry operation, including, inter alia, several classifications of employees generally referred to as hourly supervisors. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed with the National Labor Relations Board a timely request for review of said Decision, contending that all the hourly supervisors are supervisors as defined in the National Labor Relations Act and that, therefore, they should be excluded from the unit found appropriate. The Petitioner filed opposition to the request for review. By telegraphic order dated November 20, 1968, the Board granted the request for review and stayed the election pending decision on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has carefully reviewed the entire record in this case with respect to the issues under review, and hereby affirms the Regional Director's Decision.' Accordingly, the case is remanded to the Regional Director for Region 16 for the purpose of holding an election pursuant to his Decision and Direction of Election, except that the payroll period for determining eligibility shall be that immediately preceding the date below.' 'The case of United States Gypsum Company. 127 NLRB 134, to the extent that it is inconsistent with our Decision herein , is hereby overruled. With respect to the hourly supervisors (as well as the elevator man) who the Employer alleges are relief foremen who substitute for admitted supervisors for a substantial portion of their working time , we affirm the Regional Director's reliance on The Great Western Sugar Company, 137 NLRB 551, as a basis for including them in the unit for the periods of time when they are not relieving foremen . See also Shell Oil Co., 173 NLRB No. 148. 'In order to insure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc., 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Company. 394 U.S. 759. Accordingly, it is directed that a corrected eligibility list, containing the names and addresses of all the eligible voters must be filed by the Employer with the Regional Director for Region 16 within 7 days of the date of this Decision on Review . The Regional Director shall make the list available to all parties to the election . No extension of time to file 85 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. 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 a hearing officer of the National Labor Relations Board. 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 Act, the Board has delegated its powers in connection with this case to the undersigned Regional Director. Upon the entire record in this case, the Regional Director finds('" 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. 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' '16oth parties filed briefs which have been duly considered. 'The Employer, a Delaware Corporation, is engaged in the building materials and related industries throughout the United States and abroad. At its Southard, Oklahoma, plant, the only plant involved in this proceeding, the Employer mines gypsum rock and produces gypsum board, plaster and industrial fillers. There are approximately 200 employees in the unit sought by Petitioner . The Southard operation consists of a plant and a quarry. The latter is located about three miles south of the plant area and is approximately 6 by 2 miles in dimensions, covering some 3,000 acres. The plant is organized on a departmental basis with four operating departments and four staff departments. Two of the four staff departments, office and personnel , are not sought by Petitioner, but quality and plant engineering are. The four operating departments sought by Petitioner are as follows: quarry, which is responsible for mining and quarrying the rock; the mill, which is responsible for kiln operations; the board plant, which produces finished gypsum board ; and packing, which handles the other products produced. The works manager is in charge of the Southard operations . There are eight department heads which report directly to him. They are responsible for individual safety and production in their departments. Beneath the department head or superintendent in some there is the general operating foreman and in others the next level of supervision is foreman . The parties are in agreement that supervisors at this level, who are salaried , should be excluded . Below them the Employer maintains its first line of supervision referred to in the record as hourly supervisors (approximately 36). The Petitioner seeks to include the hourly supervisors in the unit as nonsupervisory employees, while the Employer opposes their inclusion on the basis that they are actual supervisors. Both parties agreed to exclude as supervisors Joseph Hart and Dale Moore although they were hourly paid because they were working as supervisors. Both parties agreed to the inclusion in the unit of the janitor (Bartel) in the engineering department and the technicians in the quality department. The Quarry Department Under the superintendent are four foremen as follows: one drill and blaster rock preparation foreman (drill foreman); one service and maintenance foreman; and two load and haul !foremen (two shifts). The hourly supervisor under the drill foreman isiireferred to as crew leader and 178 NLRB No. 14 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees at the Employer's Southard, Oklahoma, plant and quarry, including testers, janitor, and hourly paid supervisors (crew leaders, head service men, calciners, chief operators, keener operators, quarry department miscellaneous crew leaders, packing department miscellaneous crew leaders, machine men, dry end leadmen, and head maintenance men), as drill and blasting hourly supervisor The hourly supervisors under the service and maintenance foreman are referred to as head service men (and sometimes as head maintenance men). The hourly supervisors under the load and haul foreman are referred to as crew chiefs (and sometimes as crew leaders, load and haul crew leaders , and load and haul hourly supervisors) The drill foreman has a crew of 10 employees including the crew leader. In the quarry they are responsible for cleaning , drilling and helping in the blasting of the rock . The drill foreman is normally in charge and during his absence the crew leader takes over. The service and maintenance foreman has three head servicemen and five or six men. The early and late shifts are each worked by a head serviceman and a crew member, and the day shift by a head serviceman and three or four crew members The three head service men rotate shifts every 2 weeks. The service and maintenance foreman and his crews are responsible for repairs and maintenance to the mechanical equipment in the quarry so that it remains serviceable. A load and haul foreman is over the morning shift and another, over the afternoon shift. Each has a crew chief with one crew member . The crew may be increased in case of a big job by borrowing men from the quarry shop They are responsible for loading and hauling the rock from the quarry to the crusher mill and for crushing and cleaning up around the crusher. The hourly supervisors receive II to 17 cents an hour more than the next highest paid man beneath them and as much as 74 cents, above the lowest paid level They receive overtime after 40 hours When they substitute in the foreman's absence, they may receive an increase in their hourly wages of about 30 cents. In the summer during vacation leave such substitution is substantial among the load and haul supervisors who may put in as high as 50 percent of their time . However, the sporadic or temporary exercise of supervisory powers does not change an employee's status. Green Brothers Lumber Corp., 158 NLRB 1642, 1644 . Also see The Great Western Sugar Company, 137 NLRB 551, pertaining to seasonal supervisors who are regarded as employees during the off season when not serving as supervisors. The hourly supervisors submit reports on their work or production, "man-hour reports," equipment reports, "safety contacts " reports, and safety and improvement recommendations . They have access to a foreman's desk for such purposes They attend monthly safety meetings along with supervisors and management and the annual safety dinner and production meeting But neither they nor their foremen attend the supervisory meetings restricted to superintendents. The duties of the hourly supervisors in the quarry department involving directing the work and filling jobs appear to be routine and do not involve the exercise of independent judgment requiring discretion The head servicemen appear in the relationship of journeymen to apprentices None of them appear to be involved in duties which are of the type which require close supervision All of the hourly supervisors physically work, giving priority to any necessary direction of the employees working along with them . The record does not contain a satisfactory percentagewise comparison of time In fact, the relationship of an hourly supervisor to his crew members appears to be derived from the former's greater experience obtained in the particular type of work being done; and to be direction of the efforts of the men under them rathern than the execution of supervisory authority . Bugle Coat, Apron & Linen Service, 132 NLRB 1098, 1100. Although on occasions they may require the men to re-do their work , there is no indication that this in any way affects their rate of pay. Requests of the men for time off are referred to the foreman In case of an emergency , an hourly supervisor could act, but he would be expected to get in touch if possible or later to , report it immediately to his foreman. Although oral and written reprimands are referred to in the record as being made by hourly supervisors, they do not appear significant The instances related mostly involved intoxication on the job and safety matters As for intoxication , it is the Employer's policy that all men be sent home who are found in this state . Further, it is the Employer's safety practice to do so As for hourly supervisors cautioning crew members about their safety, this works both ways. Whenever a reprimand is reduced to writing, it has to be written up and signed by the foreman and the superintendent before becoming part of the Employer's records There is no set rule as to any number of reprimands leading to a discharge or other disciplinary action by the Employer As to working overtime, it is the Employer's policy that when such work is necessary that it be distributed as evenly as possible There is no indication in the record that any of the hourly supervisors violate this policy In respect to recommendations for wage increases , promotions, and transfers , there are but a few instances related in the record In none of these is it shown how the hourly supervisor effectively brought about the raise and/or the promotion Whenever a recommendation has to be concurred in on the basis of an independent investigation or is dependent upon the judgment of another, the making of such a recommendation is not regarded as the exercise of effective authority Yellow Cab, Inc , 131 NLRB 239 Although hourly supervisors were stated to have authority to handle complaints and grievances , no actual use of such authority was recited West Virginia Pulp and Paper Co, 122 NLRB 738 Thus we see there are five supervisors and five hourly supervisors with about 18 nonsupervisory employees If the hourly supervisors were regarded as supervisors, the ratio of supervisors to employees would be better than one to two . Considering that one crew has nine of these 18 employees then as to the remaining five crews the ratio approaches one to one This is considered an inordinately high ratio of supervisors to employees, particularly where the nature of the work does not require such a degree of supervision Since the Employer regards all of the hourly supervisors as being in one category as to supervisory authority it follows that no exception need be considered for the crew leader over the crew of nine (drill and blasting hourly supervisor) Because of the resulting high ratio of supervisors to employees if hourly supervisors were to be regarded as supervisors, this is an additional reason for finding them to be non-supervisory Welsh Farms Ice Cream , 161 NLRB 1667; West Virginia Pulp and Paper Co, 122 NLRB 738. Thus, the hourly supervisors in the quarry department do not exercise any single aspect of the authority of supervisors nor do they possess any indicia of supervisors Accordingly, we find that the hourly supervisors working in the quarry department are nonsupervisory, and therefore, we shall include them in the unit as production and maintenance workers The Milling Department The milling superintendent has under him one general foreman and three foremen . There are II hourly supervisors A foreman and three hourly supervisors are assigned to each of the three shifts The normal shift will have about 5 non-supervisory employees The total non-supervisory employees will range from 16 to 20, depending upon the production schedule During the busy season, they may be as high as 30 Three operations conducted in separate areas of the plant are handled on each shift as follows ( 1) calcine, (2) Hydrocal, and (3) keenes . The hourly supervisors for each of these operations are designated , respectively: (1) calciner, (2) chief operator, and (3) keenes operator "Calcine" is a term used to describe , the heat-treatment in kilns of material taken from the quarry by which water and/or carbon dioxide are driven off or evaporated Material which is calcined is used to produce normal calcine plaster and to supply the material for making gypsum wallboard The Hydrocal process (a trade-mark name ) involves heat-treatment of the material in such a way as to produce an end product which is "essentially a high-strength controlled set, controlled plaster" which is used for industrial molds and molding By the keenes process the heat-treatment produces material which is used for industrial fillers or as extenders in industrial products , including such use as in toothpaste. The general responsibilities and duties set forth above in discussing the hourly supervisors in the quarry department are equally applicable on this record to the hourly supervisors in the milling department. Although the hourly supervisors in the milling department work with different machinery and under different conditions, we find that the duties, responsibilities, authority, recommendations, etc are no more or greater than those detailed above for the hourly supervisors in the quarry department; and therefore, we will not burden this decision with a discussion of such matters If the hourly supervisors are considered as supervisory employees, then the ratio of supervisory employees to nonsupervisory employees, if anything, is even greater than in the milling department If I1 hourly supervisors are added to the 3 foremen , general foremen and superintendent there would be 16 supervisors , to 16 nonsupervisory employees, or 20 or 30, whichever of these numbers may be required by the production schedule. Therefore, we find that the hourly supervisors in the milling department designated as calciners , chief operators and keenes operators are nonsupervisory employees, and we shall include them in the unit as production employees The Board Plant Gypsum wallboard is produced in the board plant which is under the UNITED STATES GYPSUM COMPANY but excluding office clerical employees , professional employees, guards, salaried foremen, and supervisors as defined in the Act. [Direction of Election" omitted from publication.] supervision of the board plant superintendent Under him is a general foreman and two loading foremen Under the general foreman are three shift foremen , one for each of three shifts Under each shift foreman are two hourly supervisors , a machine man (also called a wet end supervisor) and a dry end leadman (sometimes called a dry end operator) for a total of six hourly supervisors for the three shifts Under the loading foremen on production there are two hourly supervisors called miscellaneous crew leaders (One was identified in the record by name, Lawbuck, and the other remained unidentified .) If we count the eight hourly supervisors as supervisors, the total supervisory staff in the board plant would be 15 This many supervisors to 31 nonsupervisory employees would appear to be an inordinately high ratio of supervisory to non-supervisory employees for work and skills not requiring such a degree of supervision. The crew of a machineman consists of a mixer man, a raw material supply man and a knife man. Their part of the plant board operations covers the formulation and formation of the sheetrock qypsum wallboard from raw materials through the first two zones of the dry kiln The crew of a dry end leadman consists of a bundle operator, a stacker operator, and a forklift operator (the latter classification is required only on the last two shifts) Their operations are to remove the wallboard from the production line, bundle it, stack it , and then remove it from the area We find that the duties , responsibilities , authority , recommendations, etc of the machine men and the dry end leadmen are no more or greater than those previously detailed above for the hourly supervisors in the quarry department and the milling department , and without elaborating upon them in detail , we have catagorized them, as the Employer has suggested that all hourly supervisors should be, and found the machine men and the dry end leadmen to be nonsupervisory employees, and we include them in the unit as production employees We are further persuaded as to the merit of our unit placement of these employees, as already pointed out above , because not to find them to be nonsupervisory employees would establish a ratio of supervisory nonsupervisory non-supervisory employees of approximately two to one, which in our opinion is an inordinately high number where nothing in the record warrants the need for such a degree of supervision We will consider now the two miscellaneous crew leaders under the two loading foremen who work the same shift and draw their necessary help or crews from a common labor pool of eight men. The number of the crew depends upon the requirements for the task at hand Their duties include the unloading of raw materials brought into the plant for production purposes and the warehousing of the finished products and their removal and loading into flat cars , box cars, and motor trucks in filling the incoming orders they keep track of the current warehouse inventory and communicate with the production or order section of the plant to assure that adequate supplies will be on hand to fill these orders We will not go into detail on the duties and responsibilities of the board plant miscellaneous crew leaders because the record is incomplete There are two who are not identified as to job (one is named Lawbuck) One of the miscellaneous crew leaders spends none of his time in physical work according to the testimony in the record The other one, spends an unspecified amount of time in nonphysical work Although the Employer in the record has repeatedly catagorized all hourly supervisors as having the same degree of supervision , authority and indicia of supervisory authority, we find that there may be a possible exception to this broad catagorization in respect to one or both of the two board plant miscellaneous crew leaders whom we shall vote by a challenged ballot Considering there are possibly 36 hourly supervisors covered by the general catagorization of status as employees or supervisors we do not regard the possible exception of two as necessarily detracting from the remamdei described by generalization of testimony in the record to the effect that they have identical status whether it is regarded as supervisory or nonsupervisory Plant Engineering Department The plant engineering department , a staff department, is also known as the maintenance department It is headed up by the plant engineering superintendent who has under him the general engineering foreman who is over three salaried foremen and a substitute foreman (Dale Moore) The parties are in agreement that the substitute foreman, Dale Moore , should be excluded as a foreman even though he is hourly paid . Under each foreman are two head maintenance men (hourly supervisors ) except that one of them is the substitute foreman, leaving an actual total at the time of the hearing of seven head maintenance men There are four areas in maintenance with a foreman in charge of each area with two head 87 maintenance men There are about 40 nonsupervisory employees . All work on the same shift except the so-called janitor-watchman combination employee . The nonsupervisory employees are distributed as follows by groups Group 1, 8, Group 2, 6, Group 3, 13, and Group 4, 11 Each group has a man who specializes in the electrical part and one , in the mechanical part The parties have stipulated that the supervisory responsibilities of the head maintenance men in the engineering department are the same as the supervisory responsibilities of hourly supervisors in the quarry , mill and board plant departments Since the hourly supervisors in the quarry, milling, and board plant have been included as nonsupervisory employees in the unit (with one exception as noted above), we shall also include the head maintenance men in the unit as nonsupervisory employees Both parties are in agreement to include the janitor -watchman (N Bartel ) Bartel performs janitor work approximately 6 1/2 hours a day Between I 1 p.m and 12 30 a.m he makes a fire watch tour and turns the key clock at the designated stations At this particular time, the people are away from the plant . His main duties are janitorial work In case of a break-in or the discovery of fire, he is instructed to telephone one of three persons the works manager, plant engineering superintendent, or the general engineering foreman Since it does not appear that Bartel is armed or enforces rules against people, we find in accordance with established Board precedent that he is not a guard or watchman within the meaning of the Act and we shall, therefore, include the janitor in the unit as a maintenance employees Thunderbird Hotel Co., 144 NLRB No 19, Heck's inc., 156 NLRB No 73, and New England Tank Cleaning Co., 161 NLRB No 134 Packing Department This department is headed up by a superintendent who has under him two foremen , three hourly supervisors (miscellaneous crew leaders) and 32 non-supervisory employees One foreman is in charge of the main packing (tube mill and keenes packing area ). He has working under him two miscellaneous crew leaders who are in charge of 19 nonsupervisory employees The other foreman is over the hydrocal packing area and has one miscellaneous crew leader who works over 13 nonsupervisory employees . The packing department operates on one shift Two of the miscellaneous crew leaders at this particular time were serving as relief foremen one day a week for which they are compensated an additional 36 cents an hour In respect to the supervisory responsibilities of the miscellaneous crew leaders in the packing department the parties have stipulated that they are equal to those of the wet-end supervisors (or machine men) and the dry -end supervisors (or dry-end leadmen) in the board plant department Since the latter were included in the unit as nonsupervisory employees , therefore, we shall include the packing department miscellaneous crew leaders in the unit as nonsupervisory employees Quality Department The Employer withdrew its objections to the Petitioner 's request to include the employees in this department upon the basis that it no longer regarded them as technical employees . This department, a staff operation, is headed up by a superintendent To him a quality supervisor and a field representative report directly . By agreement of the parties , all are excluded as supervisors There are no hourly supervisors as such in the quality department Under the above two supervisors there are seven testers or technicians with four of them working in the main laboratory and the balance manning six satellite laboratories stationed throughout the plant Their tests are more or less routine and for the purpose of checking raw materials , maintaining quality control and meeting manufacturing specifications. Certain specific or sophisticated testing is required for certain products to meet Food and Drug requirements Both chemical and physical analyses are made They also make tests on competitors' products No special education or training is required as a job qualification Many are recruited from the production employees They spend some of their time in the production area and gather their own samples In accordance with the agreement of the parties, we shall include the testers or so-called technicians in the unit as production and maintenance employees with whom they share a strong community of interest The Sheffield Corporation , 134 NLRB 1101. There being no classification of technical employee on the Employer ' s payroll, no unit placement is made 'An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director within seven (7) days of the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election In order to be timely filed, such list must be received in the Regional Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, on or before November 4, 1968 Under Board directives, no extension of time to file this list may be granted except in extraordinary circumstances , nor shall the filing of a request for review operate to stay the filing of such list . 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