United States Gypsum Co.

National Labor Relations Board - Board Decisions

Feb 7, 1951

93 N.L.R.B. 91 (N.L.R.B. 1951)

UNITED STATES GYPSUM COMPANY 91
UNITED STATES GYPSUM COMPANY and LopAL No. 278, UNITED GAS,
COKE AND CHEMICAL WORKERS OF AMERICA, CIO, PETITIONER.
Case No. 13-RC-1445. February 7, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Martin H. Schneid, hearing
officer. 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 a three-mem-
ber panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved' claims to represent employees of
the Employer.
3. No 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, for the following
reasons:
The Petitioner seeks certification for a group of employees 2 pre-
viously excluded from a unit for which it is currently the certified
bargaining representative.8
As previously indicated, the Employer opposes the unit on the
ground, among others, that the employees sought by the Petitioner
are supervisors within the meaning of the Act. As basis for its con-
tention the Employer asserts : That they responsibly direct and may
effectively recommend changes in status for their subordinates; that
each of these employees has been informed of his supervisory author-
ity ; that the Employer looks to these employees for effectuating and
exercising supervisory authority over the employees under their su-
' The hearing officer referred to the Board for ruling the Employer ' s motion to dismiss
the petition on the grounds : (1) That the employees involved are supervisors within the
meaning of the Act ; and (2 ) that the Union, under the Biaggs-Indiana Corporation doctrine
(63 NLRB 1270) had waived its right to represent these employees by agreeing to their'
exclusion in United States Gypsum Company , Case No. 13-RC-1257 ( unpublished , issued
July 10, 1950 ). In view of our findings herein, we shall grant the Employer ' s motion to
dismiss with respect to its first ground ; Accordingly , we find it unnecessary to consider
the second ground urged by the Employer as basis for its motion to dismiss.
2 The employees now sought are in the following categories : Lead mechanic , perlite tube
operators, board machine operators , board kiln operators, board head take-off men, grain
board machine operators , board asphalt emulsion operators , shingle wet machine operators,
shingle hydro -press operators , shingle punch press operators , shingle glatex machine
operators , shingle glatex kiln operators , and shingle glatex dip and bundle operators
8 The Petitioner was certified on October 5. 1950, in Case No 13-RC-1257:
93 NLRB No. 18.
J2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pervision; and that while the employees concerned are hourly paid
as distinguished from the salaried supervisors admitted to be such,
all the employees in the aforementioned categories receive the same
privileges that are accorded the other supervisors, including a higher
rate than that enjoyed by the employees under their direction.
The Employer is engaged in the manufacture of gypsum wallboard,
asbestos cement shingles, asphalt emulsion, and at times roofing, at its
East Chicago, Indiana, plant. Basically, the plant consists of 5
buildings which are divided into 4 main categories, namely, the mill
and packing department, the board plant, the asbestos cement shingle
plant, and the maintenance department. There are approximately
ZOO employees in the entire operation, and approximately 40 persons
employed in the 13 afore-mentioned job classifications now in dispute.
The supervisory hierarchy of the plant stems from the superintend-
ent,' and proceeds in descending order through the general foreman
and the shift foreman to the operators here in dispute.
In a decision involving this plant 5 and preceding the Board's de-
'eision in Case No. 13-RC-1257, the Board excluded employees in cer-
tain of the classifications here sought to be represented,6 among others,
,under the supervisory term "gang leaders." There is nothing in the
present record to indicate any change in the duties or authority of
these employees since that decision.
So far as the present group as a whole is concerned, in recent United
States Gypsum Company cases 7 the Board has had occasion to con-
sider the supervisory status of similar categories of employees. In
those cases the Board rejected the Employer's contention that certain
categories of employees were supervisors, where there was no evidence
that those employees had ever been told that they possessed the power
of effective recommendation, and, in fact, had never exercised such
power. In the instant case, however, there is substantial and uncon-
tradicted evidences that the employees were informed by the Em-
ployer of their supervisory authority; that in 9 of the 13 disputed
4 There are two superintendents , one for the shingle plant and one for the board plant.
B United States Gypsum Company, 79 NLRB 194,
Excluded as such were three head take -off men and one specialty board operator (now
classified as grain board machine operator ) in the board plant, three dip and bundling
operators in the shingle plant (now classified as shingle glatex dip and bindle operators) ;
and three AA mechanics ( now classified as lead mechanics ) in the maintenance department.
' See United States Gypsum Company , 92 NLRB 18 ; 91 NLRB No 33; 85 NLRB 162.
$ Although there is some conflict in the record with respect to the actual exercise of
such supervisory authority by some of the persons here involved , particularly the shingle
Blatex operators , we do not regard as controlling the failure or refusal to exercise this
authority by some of these employees . For as the Board said in the American Finishing
Company case, 86 NLRB 412 , 417, "the fact that they [assistant foremen] have not
exercised supervisory authority does not destroy their supervisory status " See also
Wasatch Oil Refining Company, 76 NLRB 417; The Hamilton Tool Company, 58 NLRB 257.
UNITED STATES GYPSUM COMPANY 93
categories, the power of effective recommendation had been exercised
by at least one of the individuals in these categories who was present
on the shift at that time; and that the Employer, acting upon their
recommendation, had either discharged or transferred the employees
concerned. The record shows that each 'of the individuals in the dis-
puted categories is responsible for the operation of his particular
machine, including the entire manufacturing process under his juris-
diction, as well as the personnel whom he directs. These comprise,
except for the shingle kiln operator who directs only one employee,,"
in each instance at least 2 or more employees. Furthermore, the evi-
dence supports the Employer's contentions that each of the employees,
in the disputed categories receives a substantially higher wage rate
than his subordinates, and is accorded the same privileges that are
accorded the salaried supervisors.
In view of the foregoing, the Board concludes that the individuals
in each of the categories whom the Petitioner now seeks constitutes
an essential part of the supervisory hierarchy in the Employer's
operations; and that the incumbent employees are working super-
visors who responsibly direct and may effectively recommend changes
in status for their subordlnates.10 Accordingly, the Board finds that
they are supervisors within the meaning of the Act.ii Because the
Act specifically forbids finding appropriate a unit of supervisors, the
Board finds that the unit here sought is inappropriate. Accordingly,
we will dismiss the petition herein.
Order
IT IS I IEREBY ORDERED that the petition for investigation and certifica-
tion filed herein by Local 278, United Gas, Coke and Chemical
Workers of America, CIO, be, and it hereby is, dismissed.
0 The Board has, on occasion, found to be nonsupeivisory, employees who direct the activi-
ties of a single employee and whose authority with respect thereto exists only to the extent
that such supervision is exercised by experienced employees over those who are less skilled.
See Gellman Manufacturing Company, 87 NLRB 292 However, the Board has also,
recognized that where true supervisory authority exists, the right to supervise - single
employee is sufficient to constitute the holder of such right a supervisor within the meaning
of the act Keystone Printing Serzice-Waukegan News-Sun, 85 NLRB 157
10 While the Board notes that the ratio of supervisors to employees is one to five, that
factor is but one of the indicia to be considered in determining the supervisory status of
employees In this case it is not sufficiently conclusive to offset the other indicia of super-
visory authority which are present, and which in similar situations have been found
controlling See Unsted States Gypsum Company, 91 NLRB 902
11 Section 2 (11) of the Act defines a supervisor as any individual having authority,
in the interest of the employer , to hire, transfer , suspend, lay off , recall , promote, dis-
charge, assign, reward , or discipline other employees or responsibily 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 "