United States Gypsum Co.

National Labor Relations Board - Board Decisions

Jan 22, 1946

65 N.L.R.B. 575 (N.L.R.B. 1946)

In the Matter Of UNITED STATES Gypsum COMPANY and UNITED MINE
WORKERS OF AMERICA, DISTRICT 50
Case No. 19-,R-1639.-Decided January 22, 1946
Mr. Vernon,-E. Coffman, of Heath, Mont., for the Company.
Mr. W. A. Boyle, of Billings, Mont., for the Union.
Mr. Philip Licari, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Mine Workers of America,
District 50, herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
United States Gypsum Company,' Heath, Montana, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Erwin A. Peterson, Trial Exam-
iner. The hearing was held at Lewistown, Montana, on November 27,
1945. The Company and the Union appeared and participated. All
parties were afforded opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.2
The Trial Examiner's rulings made at the hearing are free from pre-
judicial 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:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
United States Gypsum Company, an Illinois corporation with its
principal place of business at Chicago, Illinois, is engaged in the
1 The parties stipulated that all formal papers herein be amended to show the name
of the Company as indicated in the caption and body of the decision.
2 United Cement , Lime and Gypsum Workers International Union, Local 156, AFL,
was served with Notice of Hearing , but did not enter appearance at the hearing
65 N. L. R. B., No 97.
575
679100-46-vol 65-38
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufacture of wall board, wall plaster, and agricultural gypsum at
its plant in Heath, Montana, which is the only plant involved in this
proceeding. During 1945, the Company purchased raw material for
its Heath, Montana, plant valued in excess of $20,000, all of which was
shipped to it from points outside the State of Montana. During the
same period the Company produced goods valued in excess of $100,000,
of which in excess of 90 percent was shipped to points outside the State
of Montana.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Mine Workers of America, District 50, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company refuses to recognize the Union as the exclusive collec-
tive bargaining representative of its employees until the Union is
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.3
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 seeks a unit of all production and maintenance em-
ployees at the Company's Heath, Montana, plant, excluding all
clerical, supervisory, and confidential personnel. The Company con-
tends that the night mine foreman, the packing foreman, the board
loading foreman, the assistant board loading. foreman, board shift
foremen, the assistant master mechanic, the plant electrician, all of
whom the Union would include, should be excluded from the unit
because they are supervisory employees. Also, the Company would
exclude testers and inspectors, contending that their interests and
working conditions are different from those of the production and
maintenance employees, whereas the Union would include these
employees in the unit.
The Field Examiner reported that the Union submitted 93 authorization cards, and
that there are approximately 108 employees in the alleged appropriate unit.
UNITED STATES GYPSUM COMPANY 577
Night mine foreman, packing foreman 14 board loading foreman,
assistant board loading foreman, and board shift foremen, the assist-
ant master mechanic, and plant electrician
These employees supervise the work of from 1 to 15 persons. They
train and instruct new employees and may make recommendations
to the superintendent concerning the workers under their supervision.
In addition, their rate of pay is higher than that of their subordinates.
As indicated above, there are about 108 employees in the unit sought.
Yet, were we to include the 7 disputed categories, this would indicate
that only 3 employees, the superintendent, the works manager, and
the master mechanic are supervisory. Considering the size of the
unit, and the other circumstances of the case, we are of the opinion
that the 7 disputed categories are vested with sufficient indicia of
supervisory authority to warrant their exclusion. We shall exclude
them.
Inspectors : Inspectors evaluate the quality of the products
manufactured. They have authority to reject substandard materials.
However, they do not possess the authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employ-
ees, or effectively recommend such action. They perform their work
in close proximity to that of the production workers. They also
spend a portion of their time doing similar work to that performed
by the production employees. They, too, are hourly paid. We con-
clude that the inspectors have interests, duties, and working condi-
tions which closely ally them with the hourly rated production and
maintenance workers. Accordingly, we shall include the inspectors
in the unit.5
Testers : The testers perform physical and chemical tests on all
of the Company's products. They work in the laboratory which is
separate and removed from where the production and maintenance
employees work, and are under separate supervision. There is no
interchange of employees between the laboratory and the production
and maintenance departments. Moreover, it appears that these
employees' functions are of a technical nature. We shall exclude them
from the unit.
We find that all production and maintenance employees at the
Company's Heath, Montana, plant, including inspectors, but exclud-
ing testers, clerical and office employees, confidential personnel, mine
4 This position was temporarily vacant at the time of the hearing . The Company's
manager testified, however , as to the duties of this job , and stated that this position would
be filled in the near future.
5 See Matter of Westinghouse Electric and Manufacturing Company, 50 N. L. R B. 427,
Matter of Snead and company, 55 N. L R B 1206; and Matter of Brad Foote Gear
Works, Inc., 60 N. L. R. B. 97. -
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
superintendent, mill superintendent, board superintendent, master
mechanic, night mine foreman, packing foreman, board loading fore-
man, assistant board loading foreman, board shift foremen, assistant
master mechanic, plant electrician, and all other supervisory employ-
ees with authority to hire, promote, discharge, discipline, or otherwise
effect changes it 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 urges that its employees presently in the armed forces
should be permitted to vote by mail. The record indicates that at
the time of the hearing there were 65 employees on military leave. As
noted in footnote 3, supra, there are about 108 employees in the unit
herein found appropriate. We are of the opinion that the facts in
this case do not differ substantially from those in Matter of South
West Pennsylvania Pipe Lines." Accordingly, we shall grant the
Company's request, subject to the provisions hereinafter mentioned.
We will direct that the question concerning representation be re-
solved by an election by secret ballot among employees in the appro-
priate 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 Direction. In this case,
the Regional Director shall mail ballots to employees within the appro-
priate unit on military leave, provided one or more of the parties
hereto, within seven (7) days from the issuance of the Direction of
Election, files with the Regional Director a list containing 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 re-
turned to and received at the Regional Office within thirty (30) days
from the date they are mailed to the employees by the Regional
Director.7
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labdr
Relations Board by Section 9 (c) of the National Labor Relations
e 64 N L R. B. 1384.
A free interchange bet seen 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 simultaheously 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 objec-
tions are later interposed concerning its content . The usual principles will apply.
UNITED STATES GYPSUM COMPANY 579
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions 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, Heath, Montana, 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 Nineteenth 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 the 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 the said pay -roll period because they were ill or on vaca-
tion or temporarily laid off , and including employees in the armed
forces of the United States, but excluding any 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 United Mine Workers of America , District
50, for the purposes of collective bargaining.