Shell Development Co., Inc.

In the Matter of SHELL DEVELOPMENT, COMPANY, INC. and INTERNA- TIONALFEDERATION OF ARCHITECTS , ENGINEERS, CHEMISTS AND TECH- NICIANS, C. I. O. Case No. R-4791.-Decided February 13, 1943 'Jurisdiction : petroleum research industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord exclusive recognition because employees in prior election voted not to be represented by union ; prior election conducted pursuant to Board Decision and Direction of Election more than a year ago in which no repre- sentative was selected held no bar to a present determination of representatives, when union represented a substantial number of company's employees at present time; election necessary. , Unit Appropriate for Collective Bargaining : all chemists, junior chemists, physicists, junior physicists, engineers, and junior engineers at Emeryville laboratories of company, provisionally including assistants to the manager, but with specified exclusions, held an appropriate unit. McOutchen, Olney, Mannon cu Greene, by Mr. F. F. Thomas, Jr., and Mr. Sherrill Halbert, of San Francisco, Calif., for the Company. Gladstein, Grommer, Margolis cC Sawyer, by Mr. Bertram Edises, of Oakland, Calif., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition and amended petition duly filed by International Federation of Architects, Engineers, Chemists and Technicians, C. 1. 0., herein called the Union, alleging that a question affecting com- merce had arisen concerning the representation of employees of Shell Development Company, Inc., Emeryville, California, herein called the Company, the National Labor Relations Board provided for-an appropriate hearing upon due notice before LeRoy Marceau, Trial Examiner. Said hearing was held at San Francisco, California, on January 18, 1943. The Union and the Company appeared, partic- ipated, and were afforded full opportunity to be heard, to examine 47 N. L.R.B,No 71. 507 508 DE,CISS-6\'s OF NATIONAL LABOR _ RELATIONS BOARD and cross-examine witnesses, and to introduce evidence bearing on the issues. At the commencement of the hearing; counsel for the Company moved to dismiss the petition. The Trial Examiner reserved ruling. The motion is hereby' denied. The Trial Examniner's rulings made at the hearing,are free from, prejudicial error and are hereby affirmed. On January 27 and 28, 1943, respectively; the Company and the Union filed briefs which the Board has considered. . Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Shell Development Company, Inc., is a Delaware corporation en- gaged in research at Emeryville, California, on new and improved- methods of producing oil, petroleum products, and chemicals. Dur- ing 1942, the Company used approximately 3,000,000 pounds of ma- terials, approximately 50,000 pounds of which were shipped to it from ,points outside the State of California, and equipment valued at about $88,000, of which about $15,000 worth was shipped to it from. points outside the State of California. During the, same period, the Com- ,,pany produced approximately 399,000 pounds • of mnaterials, about 300,000 pounds of which were shipped to points outside,the State of California. , , IT. THE ORGANIZATION INVOLVED , ,International Federation of Architects, Engineers, Chemists and Technicians is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION During November 1942, the Union requested the Company to recog- nize it as the exclusive representative of certain of the Company's employees. The Company refused this request. On-February 11, 1942, the employees involved lierein.voted, pursuant to a Decision and Direction of Election of'the Board," not to be 'rep- resenited by the Union. The Company contends that the employees are not likely to have changed their minds with respect to union affilia- tion since the date of the election, and that, therefore, the petition in the instant proceeding should be dismissed. A year has elapsed since the ordered election. The record discloses that the Union 'rep- resents a substantial number of the Company's employees in the unit 1 38 N. L. R. B. 192. SHELL DEVELOPMENT COTMPANIY; INC., 509 hereinafter found to be appropriate.'- Since no collective bargaining representative was chosen as a result of the prior election, and in view of the fact that a' substantial number of the Company's employees in the appropriate unit appear to desire representation by the Union, we believe that the policies of the-Act will-best be effectuated by con- ducting an election on'the present petition, as amended .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 National Labor Re- lations Act. IV. THE APPROPRIATE UNIT The Union contends that all chemists, junior chemists, physicists, junior physicists, engineers, and junior engineers at the Emeryville laboratories of the Company, excluding executives, the manager, asso- ciate directors, department heads, and assistant department heads who may be classified as chemists, junior chemists, physicists, junior physicists, engineers or junior engineers, constitute an, appropriate bargaining unit. The only controversy with respect to the unit con- cerns assistants to the manager and three -named alleged assistant department heads. The Company employs three persons classified by it as assistants to 'the manager. At the time of the previous election, alluded to above, these employees were designated as assistants to the assistant director and ' were included in the unit. The Union urges that they be ex- cluded -from the unit and the Company that they be included. The record does not indicate that there has been any change in the au- thority or functions of these employees. We shall include the assist- ants to the manager in the unit, subject, to their being challenged in the election to be directed below if it is shown that their duties have changed siiice our last decision. - The Union urges that Isitt, Ballard, and Marple 'be excluded from' the unit and, the Company that they be included. -Isitt is classified by the Company as an engineer and Ballard and Marple' as group leaders. Representatives of the Company conceded that Isitt's duties' are equivalent to those - of an assistant department head. 'The latter classification of employees is excluded from the unit by 'agreement of the parties. , Ballard has 6 research teams, composed of 17 employees, working under his supervision, and he occupies a private office. Marple has 4 research teams, composed ' A statement of a Field Exaininer of the Board , introduced into evidence at the hearing, shows that the Union presented a certified list of members containing the names of 117 persons who appear on the Company's pay roll of December 29, 1942. There are 227 employees in the appropriate unit. 8 See Hatter of Detroit Nut Company and Local 174, United Automobile, Airciaft cC Agri- cultural Implement lWoikers of Amet ice, C. 1. 0., 39 X. L R 13.739. 510 DECISIONS OF NATIONAL LABOR RELATTONS BOARD of 19 employees, working under, him.- Neither Ballard nor Marple performs any laboratory work in, connection with the research teams. The head of the laboratory testified that Ballard and Mar- ple would, be consulted in the matter of the discharge of any per- son working under them. Under the circumstances, we shall ex- clude Isitt, Ballard, and Marple from the unit. - We find that all chemists, junior chemists, physicists, junior phys- icists,' engineers, and junior, engineers at the Emeryville labora- tories of the Company, provisionally including assistants to the manager, but excluding executives, the manager, associate -directors, department heads, assistant department heads who may be classified as chemists, junior chemists, physicists, junior physicists, engineers or junior engineers, and Isitt, Ballard, and Marple,; 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 We find that the question concerning representation which has arisen can best be'resolved`by means of an election by secret ballot. The Union urges that the pay roll of January 15, 1943, be used to determine eligibility to vote. The Company contends that a cur- rent, pay roll should be used for that purpose. Inasmuch as no ` reason appears why we should depart from our usual practice, we shall direct that' the employees eligible to vote shall be those in the appropriate unit who were employed during the pay-roll period im- mediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested, in the National Labor: Relations, Board k by Section 9, (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, , as amended, it is- hereby - DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Shell Develop- ment Company, Inc., Emeryville, California, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direc- tion and supervision of the Regional Director for the Twentieth Region, acting in this matter as agent for the National Labor Re- lations Board, and subject to Article III; Section 10, of said Rules and Regulations, among the employees in the unit found appropriate SHELL DEVELOPMENT COMPANIT, INC. 511 in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including any such employees who did not work during said pay-roll period because they wore ill or on vacation or temporarily laid off, and including employees in the armed forces.of the United States- who present themselves in person, at the polls, but. excluding any who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Federation of Architects, Engineers, Chemists and_ Technicians, affiliated with the C. I. 0., for the purposes of collective bargaining.