National Gypsum Co.

National Labor Relations Board - Board Decisions

Nov 13, 1962

139 N.L.R.B. 916 (N.L.R.B. 1962)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become , remain , or refrain from becoming or re-
maining members of any labor organization , except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a)(3) of the Act.
MEYERS & SON MANUFACTURING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of her right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis 4, Indiana , Telephone Number,
Melrose 3-8921 , if they have any question concerning this notice or compliance with
its provisions.
National Gypsum Company and William Neville and Local 30,
30A, 30B and 30C, International Union of Operating Engineers,
AFL-CIO, Party in Interest. Case No. 2-CA-7791-4. Novem-
ber 13, 1962
SUPPLEMENTAL DECISION AND ORDER
On August 1, 1962, Trial Examiner Owsley Vose issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent had not engaged in the alleged unfair labor practices and
recommending that the amended complaint herein be dismissed in its
entirety, as set forth in the attached Intermediate Report. Thereafter,
the General Counsel and the Party in Interest filed exceptions to the
Intermediate Report. The General Counsel also filed a supporting
brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On April 1 , 1961, William Neville , an individual , filed charges against National
Gypsum Company , the Respondent herein , and a number of other employers having
collective-bargaining contracts with Local 30 , 30A, 30B and 30C , International Union
of Operating Engineers , AFL-CIO, herein called the Union , alleging the commis-
sion of unfair labor practices within the meaning of Section 8(a)(1) and (2)
139 NLRB No. 73.
NATIONAL GYPSUM COMPANY 917
of the National Labor Relations Act. Thereafter these cases were consolidated
by order of the Regional Director of the Second Region, and a consolidated com-
plaint was issued on May 5, 1961, against various of the employers named in the
charges. At the hearing on the consolidated complaint on June 6, 1961, Trial
Examiner Whittemore denied a motion to sever the consolidated cases, but granted
a motion to dismiss all the cases on the ground that the consolidated complaint did
not state a cause of action. Upon review, the Board on January 15, 1962, reversed
both the foregoing rulings, granting the motion to sever, and remanding the cases
for separate hearings on the merits. Banner Yarn Dyeing Corporation, et al., 135
NLRB 298. Thereafter, the General Counsel on January 25, 1962, issued an
amended complaint against the above-named Respondent. After the filing of answers
by the Respondent and the Union, the Party in Interest, the matter came on for
hearing before Trial Examiner Owsley Vose on April 4 and May 7 and 8, 1962.
The Respondent and the Union were represented by counsel, and were afforded op-
portunity to adduce evidence on the issues herein and to present oral argument.
After the close of the hearing helpful briefs were filed by the parties. Upon these
proceedings, and the record therein made, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent operates a plant in the Borough of the Bronx in New York City
where it is engaged in the manufacture, sale, and distribution of gypsum products,
primarily, wallboard, plaster, and building blocks. During 1961, the Respondent
shipped to out-of-State destinations in excess of $50,000 worth of its manufactured
products. Upon these facts, I find that the Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Local 30, 30A, 30B, and 30C, International Union of Operating Engineers, AFL-
CIO, has 3,400 members employed as stationary engineers , and junior and apprentice
stationary engineers within New York City and Westchester, Nassau, and Suffolk
Counties in New York State. The Union has collective-bargaining contracts with
425 different employers in this area, including the Respondent herein, covering the
terms and conditions of employment of its members. The Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issue involved
The amended complaint against the Respondent alleges, among other things, that
the Respondent interfered with the administration of the Union and rendered unlaw-
ful assistance and support to it, in violation of Section 8(a)(2) and (1) of the Act.
The sole basis for the Respondent's violations of the Act, according to the amended
complaint, is the Respondent's conduct in "permitting" its chief engineer, John
Raleigh, whom the amended complaint avers to be a supervisor within the meaning
of Section 2(11) of the Act, "to attend and participate in meetings of the Union, to
vote in elections conducted by the Union among its members, and to hold office in
the Union and to serve on its executive board." Parenthetically, it should be stated
that the amended complaint also avers that the Union is the exclusive bargaining
representative of the chief engineer as well as the other operating engineers and
maintenance mechanics employed by the Respondent.
B. The alleged unfair labor practices
1. Raleigh's supervisory status
The General Counsel's principal witness with regard to the question of Raleigh's
supervisory status was John B. Proctor, the manager of the Respondent's Bronx
plant. Proctor is the top official at the Respondent's plant and is responsible not only
for the Respondent's manufacturing operations which are carried on in four main
departments-mill, plaster, board plant, and block plant-but also for the running
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the other departments, the staff department, which includes the office and quality
control branches, and the maintenance department.
Over a year prior to the hearing Plant Manager Proctor gave a sworn statement
to a Board agent concerning the setup at the plant and Raleigh's duties and re-
sponsibilities. This statement was received in evidence as an admission of a party.
By and large Proctor's testimony was consistent with the statements in his affidavit.
However, on the stand Proctor was more guarded in his testimony than he was in
the statements contained in his affidavit; i.e., his testimony tends to minimize
Raleigh's supervisory responsibilities. Considering the admissions in Proctor's state-
ment together with his testimony on the stand, the following facts emerge:
Raleigh is the chief engineer of the Respondent's boilerhouse which is a single-
story building located approximately in the middle of the Respondent's 10-acre plant
area. The Respondent's operations are carried on in about 20 separate buildings.
Over 300 rank-and-file employees are employed at the Respondent's plant.
The boilerhouse is the source of the steam, compressed air, and oil used in the
Respondent's manufacturing operations, and contains two steam boilers, two air
compressors, oil heaters, and the necessary controls, valves, piping, and pumps to
deliver and to regulate the flow of steam, compressed air, and oil to the various build-
ings in which the manufacturing of the Respondent's products is carried on.
The crew in the boilerhouse consists of the chief engineer, four operating engineers,
and three apprentice engineers. The operating engineers serve primarily as watch
engineers, one of them being on duty each shift throughout the week. The apprentices
primarily attend to the oil heaters in the block plant.
The boilerhouse is a part of the maintenance department which is headed by R.
Spitz, the plant engineer. Spitz has little direct contact with Raleigh, but is available
in the event Raleigh needs help. Rather, Raleigh's contact with higher management
is ordinarily through Proctor, the plant manager. The various department heads
also contact Raleigh directly concerning matters within the jurisdiction of the boiler-
house which extends to all steam, compressed air, or oil heating installations through-
out the entire plant. In carrying out his responsibilities outside the boilerhouse,
Raleigh has two maintenance department employees (not operating engineers)
regularly assigned to him whom he directs in the performance of pipe maintenance
work.
Raleigh spends over half his time going throughout the plant premises for the
purpose of checking water, steam, compressed air, and oil heating lines and systems
for leaks and other indications of malfunctioning. After consulting with Plant
Manager Proctor or the appropriate department head, Raleigh takes charge of the
repairs found to be necessary on his tours of inspection. Raleigh not only directs
the maintenance department employees in the performance of these repair operations
outside the boilerhouse proper, but frequently has to teach them how various
operations are to be performed. Complaints from the department heads about the
performance of this repair work are registered either with Raleigh or with Plant
Manager Proctor.
Inside the boilerhouse many of the operations are routine and the operating
engineers are competent to perform these duties without much instruction from
anyone. However, as Plant Manager Proctor testified, it is Raleigh's responsibility
to oversee and organize the operation of the boilerhouse. When questioned at the
hearing about Raleigh's duties in connection with giving orders to engineers,
Proctor answered as follows:
The chief engineer is my expert, is my contact with the boilerhouse and
his recommendations to me are usually accepted and I tell him to go ahead
with it and to me he is the man who gets things done . occasionally
questions do come up in the boilerhouse like on oil heaters, what should we
do or what shouldn't we do, location of valves on pumps, that there are things
that I will gat into the boilerhouse in a discussion with and we will talk them
out. I have never stayed to see any work done in the boilerhouse. To me the
chief engineer is my contact. I will say to him, let's put the valve there. You
see that it gets done. Now, the boilerhouse staff does the work. My contact
is the chief engineer. How he handles it, I'm not just sure in the individual
case, but to me, he is my contact.
Plant Manager Proctor further testified in effect that a part of Raleigh's duties
"is to maintain order in the boilerhouse." Elaborating on this, Proctor stated that
"for everything that goes on in the boilerhouse, Mr. Raleigh is the man I deal with
and who carries out anything I ask him to do." When asked whether Raleigh had
NATIONAL GYPSUM COMPANY 919
anything to do with examining the work of the employees in the boilerhouse area,
Proctor stated that it was his duty to "see that the operating procedures are all main-
tained, that everything is in correct order." Proctor then added that Raleigh was re-
sponsible for breaking in new operating engineers, showing them the equipment, and
the way the Respondent wanted it operated.
Raleigh has the power to recommend the disciplining or the discharge of engineers
and apprentices, both for misconduct and for failure to perform their work properly,
Plant Manager Proctor gives weight to such recommendations. In the past 2 years,
recommendations for the discharge of boilerhouse employees were made by Raleigh
in two instances. In both instances the employees were discharged.'
Raleigh is covered by the Respondent's collective-bargaining contract with the
Union covering the wages and working conditions of the operating engineers and
apprentices. This is in accordance with the Union's practice going back considerably
more than 20 years of including chief engineers in the same bargaining unit with the
operating engineers. Raleigh is paid an hourly wage like the Respondent's non-
supervsory employees and receives the overtime pay prescribed in the contract
when he works overtime. Raleigh punches a timeclock.
The Respondent's supervisors as a whole are on a salaried basis and receive
no overtime pay. They do not punch a timeclock. Under the contract, which
provides that the base pay of the chief engineer shall not be less than 125 percent
of the base pay of the operating engineer, Raleigh receives approximately $4 an hour.
Raleigh does not attend meetings of the Respondent's supervisors. Raleigh has
nothing to do either with the adjustment of grievances or the negotiation of the
contract with the Union.
2. Raleigh's activities in the Union
Raleigh attended approximately three union meetings in the period involved in this
case. No union elections of officers were held during this period. In none of these
meetings did Raleigh vote either for delegates to International conventions or upon
resolutions placed before the membership.
Raleigh's only other activity in the Union was serving as one of the three union
auditors. The record does not disclose actually what Raleigh did as an auditor in
the Union. However, information as to the nature of the duties of a local union
auditor is provided by the constitution of the international, which was received in
evidence. The constitution, in the section entitled "Government of Local Unions,"
first provides for the office of president, vice president, recording-corresponding
secretary, financial secretary, treasurer, and three trustees. After providing for these
officers, who are referred to as the "constitutional officers" of local unions, the
constitution then provides for the election by the membership of local unions of
three auditors whose duties are to make quarterly audits of the books and accounts
of the recording-corresponding secretary, financial secretary, treasurer, and any other
local union officer or representative holding union funds, and to make reports thereon
to the membership at union meetings.
Only one collective-bargaining contract was negotiated between the Respondent
and the Union in the period involved in this case. Raleigh neither took any part in
the preliminary discussions among the union members at the Respondent's plant at
which the Union's contract demands on the Respondent were formulated, nor did
he participate in any way in the negotiation of the contract.
Although the Respondent had no knowledge of Raleigh's activities in the Union
at the time of the filing of the charge herein, later on, a Board agent, in the course
of his investigation of the charges, advised Plant Manager Proctor that Raleigh was
an auditor in the Union. Thereafter the Respondent admittedly took no steps to
restrict Raleigh's activities in the Union.
3. Conclusions concerning the alleged unfair labor practices
a. Raleigh was a supervisor within the meaning of Section 2(11) of the Act
Section 2(11) of the Act provides as follows:
The term "supervisor" means any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
I Raleigh's recommendations were not the only recommendations on the basis of which
Plant Manager Proctor acted in these instances, however.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the exercise of such authority is not of a merely
routine or clerical nature , but requires the use of independent judgment.
The Respondent and the Union contend that Raleigh acts in the capacity of a
leadman, who works with and leads a group of employees, but who is not called
upon to exercise independent judgment in dealing with the boilerhouse crew. In my
opinion, however, the record supports the contrary view that Raleigh acted in a
supervisory capacity in his relations with the boilerhouse crew and with the two
pipe maintenance men who are regularly assigned to repair work under him in
other parts of the plant.
The Respondent's boilerhouse occupies a building of its own separate from the
various other buildings which constitute the Respondent's plant. The boilerhouse
serves a crucial function in the Respondent's operations, the supplying of the water,
steam, compressed air, oil, and heat which are essential in the Respondent's manu-
facturing processes. Eight employees, including the chief engineer, comprise the
boilerroom crew. In addition, as indicated above, two maintenance men are as-
signed to assist the chief engineer in pipe maintenance operations and related work
in the various manufacturing departments. Acceptance of the contention of the
Respondent and the Union that Raleigh is not a supervisor would mean that all
these employees who are engaged in operations so essential to the Respondent's
continued function are without any responsible day-to-day supervision other than
that furnished by the plant manager. As found above, the plant manager, aside
from his administrative responsibilities, is responsible for the operation of four large
manufacturing departments in which over 300 employees are employed in 20 different
buildings scattered throughout the plant premises. I cannot believe that the Re-
spondent would entrust such vital operations to a mere "leadman" without any
authority to exercise his independent judgment in connection with this responsible
work.
The record establishes that Chief Engineer Raleigh is the man to whom Plant
Manager Proctor looks to get jobs done within the boilerhouse and also to direct
the two maintenance department employees in the repair work on water, steam,
compressed air, and oil lines and related equipment which is continually going on
throughout the plant. If such repair jobs are not done to the satisfaction of the
department heads involved, complaints are made to Raleigh or to Plant Manager
Proctor. The record further shows that Raleigh has exercised the power to recom-
mend the discharge of members of the boilerhouse crew. Proctor necessarily gives
weight to Raleigh's recommendations concerning boilerhouse crew members because
of Raleigh's intimate knowledge of their work and their conduct on the job and
because of his own lack of information in this regard.
Under all the circumstances, I conclude that Chief Engineer Raleigh had the
authority on behalf of the Respondent effectively to recommend the disciplining or
the discharge of employees, and responsibly to direct employees, and that the use
of independent judgment was involved in the carrying out of these responsibilities.
Accordingly, I find that Raleigh was a supervisor within the meaning of Section 2(11)
of the Act.
b. Raleigh's activities in the Union were not such as to implicate the Respondent
in unfair labor practices
Section 14(a) of the Act, which provides in part that "Nothing herein shall
prohibit any individual employed as a supervisor from becoming or remaining a
member of a labor organization," obviously contemplates that supervisors may par-
ticipate to some extent in the affairs of labor organizations without involving their
employers in violations of Section 8(a)(1) and (2) of the Act.
in Nassau & Suffolk Contractors' Association, Inc., and its members, 118 NLRB
174, the Board recognized that where, as here, by long tradition the supervisor is
included in the bargaining unit with the employees supervised by him, responsibility
for the supervisor's actions in the union of which they are all members may not be
automatically attributed to his employer Involved in the Nassau case was the
question, among others, of the responsibility of the employers for certain activities
in the union there involved of master mechanics, who were included in the rank-and-
file employees' bargaining unit. The Board in its decision in Nassau pointed out
NATIONAL GYPSUM COMPANY 921
that the master mechanics occupied positions comparable to those of foremen and
that they were not executives or officers of the employers (118 NLRB 174, 182).
The Board concluded in Nassau with respect to such minor supervisors who were
included in the same bargaining unit with the employees under them that the
employer could not be deemed responsible for their participation in "the internal
affairs of the Union" unless it was shown that the employers instigated or ratified
their conduct, or led the employees reasonably to believe that they were acting on
behalf of management. The particular union activity involved in the Nassau case,
from which the Board absolved the employers from responsibility, was voting in
union elections. However, the Board indicated in its opinion that even where minor
supervisors in the bargaining unit act as "union officers," this is not enough to involve
the employer in unfair labor practices, absent proof of employer encouragement
of authorization (118 NLRB 174, 186). In the Nassau case the Board did find,
however, employer interference with the administration of the labor union there
involved by reason of the participation of two of the master mechanics as union
representatives in the bargaining negotiations with the employers.
It is true that the Board subsequently, in Anchorage Businessmen's Association,
Drugstore Unit, and its Member Employers etc., 124 NLRB 662, a decision also
involving supervisors who were included in the bargaining unit with their nonsuper-
visory subordinates, held the employers to have violated Section 8(a)(2) and (1)
of the Act because they acquiesced in the supervisors voting at union meetings and
serving on the union's negotiating committee. In this case the Board indicated that
such supervisors, by serving as union officers and committeemen, might also involve
the employers in violations of Section 8(a)(2) and (1) of the Act. It is to be
noted, however, that the supervisors involved in the Anchorage case were higher
level supervisors having "managerial functions," as the Board pointed out (124
NLRB 662, 666, footnote 5). Another feature distinguishing the Anchorage case
is the fact that the supervisors in question were active in setting up a brand new
union which naturally did not have a long history of independence of the employers,
as was the case in Nassau.
In view of these differences between Anchorage and Nassau and the fact that the
Board in its Anchorage decision gave express recognition to the rule of the Nassau
case (124 NLRB 662, 665), I conclude that the Board did not intend in Anchorage
to modify the Nassau rule. I find the Nassau case controlling here and that it re-
quires the dismissal of the amended complaint. And, in any even, as shown below,
even if the Anchorage decision were intended to modify the Nassau rule governing
the participation of minor supervisors who are members of the bargaining unit with
their rank-and-file subordinates in the intraunion affairs of their union, Raleigh's
activities in the Union were not such as to render the Respondent guilty of violating
Section 8(a)(2) and (1) of the Act under the Anchorage decision.
In the instant case Raleigh played no part in the bargaining negotiations. His
participation in union affairs was confied to attending union meetings and serving
as one of three auditors in the Union. I do not regard Raleigh's serving as an
auditor as holding an office in the Union in the sense that term is used in the
Anchorage decision. As the International's constitution indicates, the position of
auditor is not one of the constitutional offices in the Union. It is the constitutional
officers of the Union who are members of the executive board of the Union, which
is the policy-making tribunal of the Union. Unlike the constitutional officers, audi-
tors are not members of the executive board and have no policy-making functions.
The periodic auditing of the financial records and reports of various union officers
involves purely ministerial actions unrelated to the Union's relations with the Re-
spondent. In this connection it should be borne in mind that the Union has collective
bargaining contracts with 425 separate employers. It represents 3,400 members,
only a handful of whom work for the Respondent. Particularly in these circum-
stances, the possibility of the Respondent's improperly influencing the administration
of the Union by reason of Raleigh's serving as one of the Union's three auditors
seems extremely remote.
Under all the circumstances I conclude that Raleigh's activities in the Union were
confined to those which the Act permits in the case of minor supervisors who are
included by custom and tradition in the bargaining unit with the employees supervised
by them.
For the reasons stated above, I conclude that the complaint should be dismissed
in its entirety.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAW
1. National Gypsum Company has not violated Section 8 (a) (1) and (2) of the
Act as alleged in amended complaint.
RECOMMENDED ORDER
It is ordered that the amended complaint herein be, and it is hereby, dismissed.
Spears-Dehner, Inc. and Local 297, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of
America. Case No. AO-47. November 13, 1962
ADVISORY OPINION
This is a petition filed by Local 297, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
herein called the Petitioner, for an Advisory Opinion in conformity
with Sections 102.98 and 102.99 of the Board's Rules and Regulations,
Series 8, as amended. Thereafter, Spears-Dehner, Inc., herein called
the Employer, filed a "Response to Petition for Advisory Opinion."
In pertinent part, the petition and response allege as follows:
1. There is presently pending in the Whitley Circuit Court, Whitley
County, Columbia City, Indiana, herein called the State Court, an
injunction proceeding docketed as Case No. 17681 filed on Septem-
ber 15, 1962, by the Employer seeking a temporary and permanent in-
junction to enjoin the Petitioner and other individual defendants
from picketing the Employer's construction site on U.S. Highway
No. 30 (U.S. 30) in Whitley County, Indiana,' and from picketing
for the purposes of a secondary boycott. After hearing, the State
court on September 17, 1962, issued a temporary injunction enjoining
any and all picketing at or about the Employer's construction site
on U.S. 30 bypass north of Columbia City, Whitley County, Indiana.
2. The Employer, a corporation doing business in Indiana, is
engaged in the general road construction business, constructing not
only interstate highways but also intrastate highways and performing
other types of construction work. On September 17, 1962, at the
time of the hearing in the State court for a temporary injunction,
the Employer was engaged in highway construction work on U.S. 30
and on the United States Interstate Highway No. 69 (U.S. 69). The
value of the construction work on U.S. 30, in which the Employer was
' U.S. 30 runs from Chicago , Illinois, in and through Indiana and Ohio to the eastern
part of the United States.
139 NLRB No. 76.