United States Gypsum Co.

National Labor Relations Board - Board Decisions

Feb 26, 1946

65 N.L.R.B. 1427 (N.L.R.B. 1946)

In the Matter of UNITED STATES GYPSUM COMPANY and UNITED GAS,
COKE AND CHEMICAL WORKERS OF AMERICA, C. I. O.
Case No. 3-R-1104.-Decided February 26, 1946
Mr. Harold D. Burgess, of Chicago, Ill., for the Company.
Mr. Raymond R. Bloom, of Niagara Falls, N. Y., for the Union.
Mr. Frederick D. Vincent, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Gas, Coke and Chemical
Workers Union, C. I. 0., herein called the Union, alleging that a
question affecting commerce had arisen concerning the representa-
tion of employees of United States Gypsum Company, North Tona-
wanda, New York, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Frank X. Helgesen, Trial Examiner.' The hearing was held
at Buffalo, New York, on November 9, 1945. The Company and the
Union appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. The Company
moved at the hearing that all employees of the Company presently
in military service be afforded an opportunity to vote, either in per-
son, or by mail ballot. The Trial Examiner reserved ruling upon
this motion for the Board. For reasons set forth in Section V, infra,
the motion is granted. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case,' the Board makes the following :
I After the hearing the Company submitted an offer of proof relating to the issue of the
mail balloting of employees in the armed forces. The Union stipulated that this offer
could be treated by the Board as though made during the course of the hearing . We accept
the offer insofar as it represents the claims of the Company concerning the number of
employees on military leave and other pertinent matters.
65 N. L. R. B., No. 236.
1427
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS or FACT
1. THE BUSINESS OF THE COMPANY
United States Gypsum Company, an Illinois corporation, operates
53 plants, mills, and warehouses, located throughout the United States.
The only employees involved in these proceedings are employees of
the Company's plant located at North Tonawanda, New York, where
the Company is engaged in the manufacture of roofing materials.
For the calendar year 1944, the Company purchased raw materials,
valued in excess of $100,000, from places outside the State of New
York, for use at the North Tonawanda plant. This figure represents
50 percent of all raw materials purchased during this period. Fifty
percent of all sales made during the same period was shipped out of
the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act. -
II. THE ORGANIZATION INVOLVED
United Gas, Coke and Chemical Workers of America, is a labor
organization affiliated with the{Congress of Industrial Organizations,
admitting to membership employees of the Company.
In. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of its employees until the Union
has been certified by the Board in an appropriate, unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.2
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union contends that a unit comprised of all production and
maintenance employees , including testers, but excluding office and
clerical employees and supervisory employees , is appropriate. The
Company agrees, but•seeks the exclusion of testers. ,
' 2 The Field Examiner reported that the Union submitted 32 cards bearing the names of
32 employees listed on the Company's pay roll of October 14, 1945, and that the cards are
dated October 1945.
There are approximately 35 employees In the appropriate unit.
UNITED STATES GYPSUM COMPANY 1429
Testers : The testers perform technical tests on the products of the
Company and the products of competitors. The greater part of their
time is spent in a laboratory, and they report directly to the plant
superintendent, whereas the production and maintenance employees
report to the shop foreman. Inasmuch as their interests as technical
employees are separate and distinct from those of the production and
maintenance employees, we shall exclude the testers.3
We find that all production and maintenance employees of the
North Tonawanda plant of the Company, excluding testers, office and
clerical employees, and all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Company requests that its employees absent on military leave
be afforded an opportunity to cast ballots by mail in any election which
the Board may direct. The Union opposes on the ground of delay in
the conduct of the election. It appears that there are about 10 em-
ployees in the armed forces of the United States. As already indi-
cated, the appropriate unit contains approximately 35 employees.
We are of the opinion that the facts in this case do not differ substan-
tially from those in Matter of South West Pennsylvania Pipe Lines 4
Accordingly, subject to the conditions hereinafter mentioned, we shall
grant the Company's request.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the Direc-
tion.5 In this case, the Regional Director shall mail ballots to em-
ployees within the appropriate unit on military leave, provided one
or more of the parties hereto, within seven (7) days after receipt of
the Direction of Election, files with the Regional Director a list con-
taining the names, most recent addresses, and work classifications of
such employees. The Regional Director shall open and count the
ballots cast by mail by employees on military leave, provided that such
ballots must be returned to and received by the Regional Director
8 See Matter of United States Gypsum Company, 65 N. L. R B. 575.
4 64 N L. R B. 1384
8 The Union's request that it be designated on the ballot as its name is set forth in the
Direction is hereby granted.
1430 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
within thirty (30) days from the date they are mailed to such em-
ployees by the Regional Director.,,
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with United States
Gypsum Company, North Tonawanda, New York, an election by secret
ballot shall be conducted as early as possible, but not later than forty-
five (45) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Third Region, acting in
this matter as 'agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces of
the United States, but excluding those employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the election, to determine whether or not they
desire to be represented by Local 277 of the United Gas, Coke and
Chemical Workers of America, C. I. 0., for the purposes of collective
bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
6A free interchange between the Interested parties of Information on the addresses and
work categories of the employees to be voted by mail will be necessary in order to avoid
challenges and post-election objections . Accordingly, the Board will make available to
all interested parties any information of this nature furnished It by any other party. In
the event that the parties should send the absentee voters any Information or literature
bearing directly or indirectly on the pending election , copies of all such documents should
be simultaneously filed with the Regional Office for Inspection by or transmittal to the
other parties. However, acceptance or transmittal of such literature by the Board's
office is not to be construed as conferring immunity on the filing party in the event that
objections are later interposed concerning Its content . The usual principles will apply.