Phillips Oil Co.

In the Matter of PHILLIPS OIL COMPANY, EMPLOYER and OIL WORKERS INTERNATIONAL UNION, CIO, PETITIONr t Case No. 39-RC-197.Decided September °27, 1950 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 Clifford W. Potter, 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-member panel [Members Reynolds, Murdock, and Styles]. 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 certain em- ployees 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 Petitioner seeks to represent a unit of clerical employees, including traffic department employees, employed at, the Employer's petroleum refinery at Old Ocean, Texas,' but excluding all supervisors as defined in the Act. The petition was amended at the hearing on motion of the Petitioner to exclude the private secretary to the per- sonnel officer. The Petitioner claims that the requested unit is ap- propriate because of the degree of community of interest that exists between the employees in question. However, should the Board find such community of interest insufficient to justify the inclusion of the traffic department employees in the proposed unit, then, in such event, the Petitioner asks for separate units of traffic department employees ' The record indicates that the particular refinery is also known as the Sweeney Refinery, located at Sweeney, Texas . Because it is so frequently referred to as the Sweeney Re- finery , we shall hereinafter use such designation for the purposes of identification in this proceeding. 91 NLRB No. 89. ° 534 PHILLIPS OIL COMPANY 535 and of the other clericals. The Employer's primary position is that the unit should be limited to clerical employees of Phillips Oil Company only; the Employer would therefore exclude the traffic de-. partment employees who, it alleges, are employees of Phillips Pe- troleum Company, of Which the Employer is a wholly owned subsid- iary. In addition, the Employer contends that certain other employees should be excluded because they are either confidential employees 2 or supervisors.3 There is no history of collective bargaining with respect to the employees here involved. Traffic Department Employees The traffic department employees. whom the Petitioner would in- clude in this clerical unit are located at the plant refinery and occupy an unenclosed portion of the general office of the refinery. The record indicates that they are part of the supply and transportation depart- ment of the Phillips Petroleum Company and are not an operational or administrative unit of the Employer. They are on the payroll of Phillips Petroleum Company and receive their pay checks from the Houston office of that company. The traffic department employees are under the separate and distinct supervision of officials of the Phillips Petroleum Company, located at the Houston office, and are independent of any supervision exercised by refinery officials over refinery employees. The principal function of the traffic department employees is the invoicing and billing of materials sold at the refinery, for the account of Phillips Petroleum Company. It appears that for the most part these employees could with almost equal facility perform their particular duties from the Houston office of the parent concern, and, in fact, part of the work of the traffic department em- ployees is performed there. Notwithstanding the fact that traffic de- partment employees enjoy certain terms and conditions of employment similar to those applicable to the refinery employees,4 we believe that the interests of the traffic department employees are more closely allied to the interests of the employees in the Houston office of the parent concern such that their inclusion in the proposed unit would be inappropriate. Moreover, in the absence of any evidence in the 2 The Employer would exclude as confidential employees stenographers to each of the following : The superintendent, the chief chemist, the chief clerk in the general office depart- ment, the resident engineer, and the plant engineer. In addition, the Employer would exclude the PBX and TWX operators as confidential employees. 3 Specifically , the Employer would exclude as supervisors the following : W. L. Burnell, clerk, intermediate , in the payroll section of the personnel department ; the clerk , senior, in the general office department ; the clerk, senior, in the Investment & AFE Records section ; the clerk, senior, in the warehouse office ; and the clerk, senior, storekeeper. A It appears that the terms and conditions referred to are organization -wide rather than limited to employees located at the Sweeney Refinery. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record to indicate that Phillips Oil Company exercises, or has exer- cised, any control over the labor relations of the traffic department employees, there is no basis for their inclusion in a unit of refinery employees.5 Under the circumstances, we find that the traffic department em- ployees are not an appropriate part of the unit of clerical employees requested by the Petitioner; accordingly, we shall exclude them from such unit. Nor can we in the absence of the Phillips Petroleum Com- pany as a party to this proceeding,6 determine the appropriateness of a separate unit of such employees. We shall, therefore, at this time, deny the Petitioner's alternative request for a separate unit of traffic department employees. The Supervisory Clerks O. T. Horne: Horne is classified as clerk, senior,' in the oil account- ing section under the supervision of the chief clerk who is the head of the general office department and admittedly a supervisor. It is stated that Horne has full-time responsibility for the work of the nine clerks employed in the oil accounting section. As part of his responsibili- ties, Horne discusses with the chief clerk problems relating to work procedures and work assignments. He also audits the work of the clerks in the section, and assists them with all problems that arise in the course of their work, a position for which he is qualified by experi- ence and training. In the absence of the chief clerk, Horne assumes full authority in the whole department. The record contains testi- mony, not successfully challenged or controverted by the Petitioner, that Horne has the authority effectively to recommend changes in the employee status of the nine clerks and other employees. Although Horne works under the same terms and conditions of employment as do the nonsupervisory clerks, we find on the basis of the authority regularly exercised by him and upon the entire record, that Horne is a supervisor within the meaning of the Act. Accordingly, we shall exclude him from the unit." W. L. Burnell: This employee is classified as clerk, intermediate, in the payroll section of the personnel department. The section consists of four clerks and is under the supervision of the chief payroll clerk. In addition to his duties as timekeeper, Burnell is responsible for the 6 Truscon Steel Company, 88 NLRB 331. 6 See The Vanta Company, 66 NLRB 912, 913. 4 The Employer states that the classification clerk, senior , and the other classifications used for the employees hereinafter discussed are salary bracket designations and not intended to be descriptive of the duties performed by the individuals in question. $ Southern Alkali Corporation, 84 NLRB 120, 123. PHILLIPS OIL COMPANY 537 preparation of the payrolls and for certain schedules and statistical in- formation necessary to the work of the department. The Employer seeks his exclusion from the unit because of the supervisory authority alleged to be exercised by Burnell at such times as he substitutes for the chief clerk in the latter's absence, at which times, Burnell is said to posssess the authority effectively to recommend changes in the em- ployees' status. There is no estimate of the average time spent by Bur- nell in the exercise of the alleged supervisory authority, nor is there any conclusive evidence in the record to show that Burnell substitutes for the chief clerk with any degree of regularity. Under the circum- stances, we believe that he is not a supervisor within the meaning of the Act and we shall, therefore, include him in the unit .9 D. F. McInnis: This employee is classified as clerk, senior, in the Investment & AFE Records section of the warehouse office, which is part of the maintenance department and under the ultimate super- vision of the plant engineer. The warehouse office is directly super- vised by the warehouse foreman. The chief duties of McInnis are to maintain a complete inventory of plant property and, when new proj- ects are to be constructed or equipment installed, to set up the accounts required for such projects and thereafter to submit periodic reports of expenditures charged against such accounts. Preliminary work on such AFE reports are performed by three clerks in the warehouse of- ficel° Although it is in connection with the performance of these du- ties that McInnis is said to direct the activities of the three clerks, the direction is admittedly of a routine nature. The Employer con- tends that McInnis should be excluded upon .the ground that he is a part-time supervisor with authority, while acting in this capacity, ef- fectively to recommend changes in the status of the three clerical em- ployees. The record, however, is totally devoid of any evidence indi- cating the degree of regularity with which such authority is exercised by McInnis or the amount of time spent in the exercise thereof. In the absence of such evidence and under all the circumstances of the case, we are not persuaded that McInnis is a supervisor within the meaning of the Act." As to the contention that the work performed by him is also of a confidential nature, we find nothing in the record establishing any relationship between his work and the formulation or effectuation of the Employer's general labor policy required to sup- 9 The Ohio Associated Telephone Company, 82, NLRB 974, 975; American Window Glass Company, 77 NLRB 1030, 1033. - 10 The record indicates that these clerks are also under the full-time supervision of A. B. Cahoon, clerk, senior, in the warehouse office. 11 The Ohio Associated Telephone Company, supra; American Window Glass Company, supra. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD port a finding that he is a confidential employee. Accordingly, we shall include him in the unit. A. B. Cahoon: As herein indicated, Cahoon is classified as clerk, sen- ior, in the warehouse office and is employed under the direct super- vision of the warehouse foreman. Essentially, his duties are to main- tain the perpetual inventory of records of supplies in the warehouse. He is assisted in his work by four clerks and typists and it is with re- spect to them that the record establishes without contradiction that he exercises the authority effectively to recommend the hiring and firing of employees. Under the circumstance, we find that Cahoon is a supervisor within the meaning of the Act. We shall, therefore, ex- clude him from the unit.12 J. W. Weishaar: This employee is classified as clerk, senior, store- keeper under the supervision of the warehouse foreman. He is respon- sible for the physical upkeep of the warehouse and outside storage space and for the movement of materials into and out of the ware- house. He directs the activities of four hourly rated warehouse em- ployees and assigns their work. The record shows that he has author- ity effectively to recommend changes in the status of these employees under his direction. Under the circumstances, we find that he is a supervisor within the meaning of the Act and shall, accordingly, ex- clude him from the unit. 3 The Confidential Employees Miss W. J. Hite: Miss Hite is classified as typist-clerk. Her prin- cipal function is to serve as stenographer to the superintendent al- though she is responsible for handling the correspondence of several other department heads. The .record is clear that the superintendent exercises paramount authority at the plant and is the Employer's chief representative at the plant in conducting collective bargaining nego- tiations and in formulating and effectuating the Employer's policies in the field of labor relations. Under the circumstance, because this employee acts in a confidential capacity to an official charged with the handling of the Employer's general labor relations, we find that she is a confidential employee and shall exclude her from the unit. Mrs. A. D. Jones: Mrs. Jones is classified as stenographer, inter- mediate, and serves as stenographer to the chief clerk in the general office department. As part of her duties she maintains the person- nel files of the clerical employees in the general office department who are here sought as part of the Petitioner's clerical unit. It is 12 Southern Alkali Corporation, 84 NLRB 120, 125. 13 The Texas Company, 90 NLRB No. 121. PHILLIPS OIL COMPANY 539 principally because of these latter duties that the Employer claims she is a confidential employee and should be excluded from the unit. Thus, Airs. Jones has access to information relating to wages, pro- posals for wage adjustments, such as salary upgrading and merit increases, job reclassifications and changes, and access to the entire personnel book. Although such information unquestionably would be of importance to management in collective bargaining were a clerical unit established, this information is not of the character that its possession by an employee would constitute that individual a confidential employee within the meaning of the term as used by the Board.14 Moreover, there is nothing in the record to indicate that were a unit of clerical employees established, the chief clerk, for whom Mrs. Jones serves as stenographer, would have any respon- sibility in engaging in collective bargaining or in formulating or effectuating the Employer's general labor policy. We find she is not a confidential employee and shall include her in the unit. Miss B. M. Allen, Miss P. L. O'Brien, and Miss M. V. Brown: Miss Allen is classified as stenographer, junior, and serves as stenog- rapher to the chief chemist who is the head of the laboratory de- partment.. Miss O'Brien, classified as clerk, junior, is stenographer to the resident engineer who is head of the engineering department. Miss Brown, also classified as stenographer, junior, is stenographer to the plant engineer who is head of the maintenance department. The varied work of these clerical employees unquestionably includes the handling of much technical and other information of consid- erable value to competitors and other concerns and, therefore, from the Employer's point of view justifiably considered as confidential. In addition these employees are also concerned with correspondence originating with department heads who handle labor relations mat- ters on a departmental level. However, there is nothing in the record indicating that the respective department heads have any duties or responsibilities with respect to the formulation or effectua- tion of the Employer's general labor policies. We find, therefore, that the work of Misses Allen, O'Brien, and Brown is not of a character which the Board considers confidential. Accordingly, we shall include them in the unit.:'-' The PBX and TtiVX operators: The two employees employed in this capacity are classified as telephone and teletype operators "A." The Employer contends that because it is necessary during frequent col- lective bargaining negotiations to communicate either by telephone 14 Sou'hern Alkali Corporation, 84 NLRB 120, 124. 15 I9=ter-Mountain Telephone Compa sy, 79 NLRB 715; Phillips Chemical Company, 90 NLRB Yo. 7 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or teletype with top company officials relative to bargaining tactics and agreements, and because these communications are handled by these operators in the performance of their duties, the two employees should be excluded as confidential employees. It is well established, however, that the particular duties of such employees do not place them in a confidential statusl6 Accordingly, we shall include the PBX and TWX operators in the unit. We find that all clerical employees of the Employer at its Sweeney, Texas, plant, including W. L. Burnell, clerk intermediate, in the pay- roll section, the clerk, senior, in the Investment & AFE Records section '17 the stenographer to the senior clerk in the general office department,18 the stenographer to the chief chemist,19 the stenog- rapher to the resident engineer,20 the stenographer to the plant en- gineer,21 and .the PBX and TWX operators, but excluding the traffic department employees, the clerk, senior, in the general office de- partment,22 the clerk, senior, in the warehouse office,23 the clerk, sen- ior, storekeeper,24 the private secretary to the personnel officer, the stenographer to the superintendent,25 ' all other employees, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 16 Phillips Chemical Company, suprm; Phillips Petroleum Company, 73 NLRB 236 ; Great Lakes Pipe Line Company, 88 NLRB 1370. 11 D. F. McInnis. 1s Mrs. A. D. Jones. 19 Miss B . M. Allen. 20 Miss P. L. O'Brien. 21 Miss M. D. Brown. 22 O. T. Horne. 23 A. B . Cahoon. 24 J. W. Weishaar. 25 Miss W. J. Hite.