United States Gypsum Co.

National Labor Relations Board - Board Decisions

Sep 17, 1954

109 N.L.R.B. 1402 (N.L.R.B. 1954)

1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing, his findings in the Intermediate Report, and the record
as a whole we find that the Trial Examiner's conduct of the hearing
was substantially prejudicial to the General Counsel and that a new
hearing is warranted. It is noted, inter alia, that the Trial Examiner
refused to permit the General Counsel to present evidence intended to
show the Company's knowledge of and attitude toward union activ-
ity prior to the layoff of December 26, 1951. His rulings were based
on the fact that the evidence was related to events occurring more
than 6 months before charges were filed and on other improper rea-
sons. Such evidence was properly admissible.' We believe it essen-
tial that a Trial Examiner guard against limiting any party in the
full development of its case, not only avoiding actual partiality or
prejudgment but also avoiding even the appearance of unfairness.2
In accordance with the foregoing, we shall set aside the Intermedi-
ate Report and the hearing and shall remand this proceeding to the
Regional Director for rehearing upon the complaint herein, or for
such other disposition as the Regional Director may determine to be
advisable under present conditions.
[The Board set aside the Intermediate Report and the hearing and
remanded this proceeding to the Regional Director for a rehearing
upon the complaint.]
MEMBERS MURDOCK and RODGERS took no part in the consideration
of the above Decision and Order Remanding Case to Regional Di-
rector.
1 N. L R. B. v Fredrica Clausen, d/b/a Luzerne Hide & kTallow, 188 F. 2d 439 (C A 3),
enfg. 89 NLRB 989, cert. denied 342 U S. 868 ; see N. L R. B v. Ozark Dam Constructors
and Flappen Materials Co, 203 F 2d 139, at 145-146 (C. A. 8), enfg as modified 99 NLRB
1031.
2Indianapolis Glove Company , 88 NLRB 986, 987.
UNITED STATES GYPSUM COMPANY and UNITED GAS, COKE AND CI3EMI-
CAL WORKERS, CIO, PETITIONER. Case No. 18-RC-2289. Septem-
ber 17, 1954
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 Clarence A. Meter, 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.
After the hearing, the Employer filed a motion to correct the
transcript of the record. The Petitioner opposes the motion. In-
109 NLRB No. 202.
UNITED STATES GYPSUM COMPANY 1403
asmuch as the proposed changes in the transcript would not alter our
determination of the issues of this case, we find it unnecessary to pass
upon the Employer's motion.'
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization involved herein claims to represent the
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer, an Illinois corporation, is engaged at Fort Dodge,
Iowa, in the quarrying of gypsum rock and the processing and manu-
facturing of gypsum board, lath, plasters and block, hydrocal, and
perlite. There are approximately 358 production and maintenance
employees located in 6 production departments, namely : quarry, mill,
hydrocal, packing and perlite, board, and block. In addition to these,
there are four administrative departments : office, personnel, plant
engineering, and quality. A departmental superintendent is in charge
of each department.
The Employer and the Petitioner agree that a production and main-
tenance unit is an appropriate unit. They stipulated at the hearing
that the following categories are supervisors : mechanical group
leaders, electrical group leader, Bates crew leader, night packing crew
leader, quarry stripping crew leader, hydrocal finish group leader,
board machine men, board cascade tenders, and grain board operator.
However, the Petitioner in its brief filed subsequent to the hearing,
urges that board cascade tenders and board machine men are not
supervisors and should be included in the production and main-
tenance unit. The Board generally considers binding upon the par-
ties an agreement relative to unit composition.2 Nevertheless, in this
instance, where the parties are in fact in disagreement as to the unit
placement of certain categories whose status is a matter of statutory
definition, the Board will not follow the stipulation.3 The two cate-
gories were only mentioned incidentally at the hearing and the record
contains insufficient facts concerning their duties and responsibilities
to determine their status. The Board will therefore not determine
their unit placement at this time but will permit the board machine
men and the board cascade tenders to vote subject to challenge.
The parties disagree as to whether office janitors, board inspectors,
and perlite expander operators should be included in the unit. We
shall consider each of the classifications separately.
0
See Parsons Corporation, 86 NLRB 74.
Oliver Machinery Company, 93 NLRB 731, 732; cf. Clarostat Mfg. Co., Inc., 105
NLRB 20
8 Cf. Worth Food Market Stores, Inc., d/b/a Worth Food Markets , 103 NLRB 259, 260.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D ffice janitors : The Employer urges the exclusion of the office
janitors from the production and maintenance unit, contending that
their work is confined to the office of the Employer and that they have
opportunity to read and have access to confidential information that
may be left on the various desks of management representatives, or
in personnel files which may occasionally be left un]o ked.
There are two office janitors who work immediately under the office
superintendent. The male janitor punches a time clock in the Mill
locker room. He reports at 3 p. in. and has locker facilities located
in the basement of the office building. He spends most of his time
cleaning the office building. The female janitor does not punch a
clock, but works approximately from 3 p. m. to 8 p. in. and is paid
at the rate of $1 per hour. The personnel department maintains a
record of the hours she works. She cleans the safety building, the
personnel building, and the offices of the plant engineer and the mill
superintendent.
Two other janitors or miscellaneous men are employed in the block
department and in the board department.. Each is paid the base rate
for production and maintenance employees, $1.34 per hour, and the
Employer does not contest their inclusion in the unit. Although the
office janitors have not been specifically excluded from the produc-
tion and maintenance unit in the past, it appears that they have been
treated as excluded. As the nature of the work performed by the
office janitors allies them with production and maintenance employees,
and we find no confidential relationship existing between the office
janitors and the Employer, we shall include them in the unit.'
Board inspectors: The Employer contends that the job of board
inspector requires considerable technical information, training, and
knowledge of various testing devices and techniques, and that the in-
spector is management's final representative to insure the correct
quality of the finished product being prepared for shipment. The
Employer would exclude the board inspectors from the unit. The
board inspectors inspect the finished boards as they come from the
board machine, and it is their responsibility to cull any board that does
not meet the Employer's prescribed standards. They perform var-
ious physical tests on the boards as the boards come from the kiln in
addition to the visual inspections they make. Several of the inspec-
tors were formerly testers for the Employer and use the training
and knowledge acquired as a tester in performing the physical tests.
They use micrometers and hardness gauges and make moist meter
and pitch hardness tests. When a board is culled due to faulty pro-
4 See Downingtown Manufacturing Company, 107 NLRB No 288, at p 3 (not reported
in printed volumes of Board Decisions and Orders ) , Palmer Manufacturing Corporation,
103 NLRB 336, at p 339.
UNITED STATES GYPSUM COMPANY 1405
duction, the inspector is usually able to determine at what point in the
process the fault lies, and notifies the foreman who has charge of that
operation.
The Employer offered testimony that because of new methods of
testing and newer machines with greater speeds, instead of having a
takeoff man acting as an inspector in addition to his production duties,
as was the situation 3 or 4 years ago, the Employer has found it neces-
sary to employ and train full-time insepectors and give them greater
responsibilities as the quality requirements increased. An inspector
receives primarily the same technical training as is given testers, and
the duties are very similar except that the tester does most of his
testing at the wet end of the processing operation, and the inspector
performs his duties at the dry end of the operation.
The Employer, in many cases before the Board over a number of
years, has urged the exclusion of inspectors from the production and
maintenance units in its various plants. The Board has frequently
held that the inspectors are not supervisory employees,' and in one
case, has found that the authority to reject or report defective work
did not constitute managerial authority.' In none of the cases deal-
ing with this Employer has the Board considered the contention that
the inspectors are technical employees. Moreover, the facts relating
to inspectors in former cases did not disclose that the duties and
training of inspectors are similar to those of testers who have been,
excluded by the Board from the production and maintenance units as
technical employees.'
We believe from the facts disclosed by this record that the inspec-
tors are technical employees. Inasmuch as their interest as techni-
cal employees are separate and distinct from those of the production
and maintenance employees, we shall exclude inspectors from the unit
hereinafter found appropriate.
Perlite expander operators: The perlite plant is operated as a por-
tion of the packing and perlite department under the direct super-
vision of a departmental superintendent. There are approximately
33 hourly paid employees in the packing portion of this department.
The perlite portion of the department is a relatively new operation,
begun in 1951, involving the unloading of perlite ore which is ex-
panded in a tube machine and other machinery to form a light weight
aggregate. Under the superintendent are a foreman and eight hourly
paid employees engaged in the perlite operation. The hourly paid
employees are divided into 2 crews, each crew composed of 1 expander
5 United States Gypsum Company, 65 NLRB 575, 577; 66 NLRB 619, 622; 81 NLRB
310; of 81 NLRB 344; 86 NLRB 200.
9 Untited States Gypsum Company, 78 NLRB 849, 850.
7 Unsted States Gypsum Company , 65 NLRB 575, 577; 72 NLRB 863, 864; 79 NLRB 1059;
79 NLRB 869 ; 91 NLRB 404.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operator, 1 hyster operator, and 2 baggers. A crew is assigned to
each of the two shifts.
The foreman works from approximately 8 a. m. until 4 p. m. The
2 shifts operate from 7 a. m. until 3 p. m. and from 3 p. m. until 11
p. m. On each shift, the expander operator is in charge of his crew.
and he alternates shifts with the other expander operator each week.
Thus, each operator serves at times on the last shift. The operator on
the late shift is the only person in the plant responsible for the quality
of the product and the production of the department from 4 p. m.
until 11 p. m. The expander operator does not have authority to dis-
charge an employee nor does the foreman ; discharge authority being
vested in the departmental superintendent. However, the record
discloses an instance where an expander operator recommended a
transfer of a member of his crew, and the recommended action was
taken by the superintendent. The superintendent testified that serious
consideration was given the recommendations of the expander
operators.
Approximately one-half of the expander operator's time is spent in
manual labor and the other half is spent in making quality checks and
directing the unloading, loading, and bagging of perlite. Much of
the maintenance work for the perlite portion of the department is done
on the 3 p. m. to 11 p. m. shift, and the expander operator assigns
maintenance duties to the crew members.
In view of the above circumstances, we find that expander operators
are supervisors within the meaning of the Act, and shall exclude them
from the unit.'
Upon the entire record in this case, we find that the following em-
ployees of the Employer at its operation located at Fort Dodge, Iowa,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act: All production and
maintenance employees including the office janitors, but excluding
board inspectors, office and plant clerical employees, professional and
administrative employees, watchmen, guards, mechanical group lea d-
ers, electrical group leaders, Bates crew leader, night packing crew
leader, quarry stripping crew leader, hydrocal finish group leader,
grain board operator, perlite expander operators, and supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Direction of Election.
8 See United States Gypsum Company, 93 NLRB 91, 93; cf. United States Gypsum Com-
pany, 105 NLRB 931, and 107 NLRB 122