Tide Water Associated Oil Co.

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TIDE WATER ASSOCIATED OIL COMPANY and THE EMPLOYEES' AssoclA- TIoN, INC. Case No. 2-RM-361. November %6,196 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Sidney H. Levy, 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 Houston, Styles, and Peterson]. The Employer filed this petition to test the appropriateness of the unit in which the Union was certified by the Board on May 22, 1946, in Tide Water Associated Oil Company, Case No. 2-R-54281 Since that certification the Employer and the Union have been in contractual relationship. The most recent contract is for a 3-year period and was entered into on April 3, 1952. The contract covers virtually the same employees set forth in the Union's certification, but leaves to the Board the question of whether certain employees found to be nonsupervisory in 1946, should now be deemed supervisory and ex- cluded from the contract Unit .2 The Employer contends that since the date of the Board's previous unit determination and because of the amendments to the Act in 1947, certain of the categories of em- ployees which were included in the earlier unit determination are clearly supervisors within the meaning of that term as it is defined in the amended Act. In addition, the Union contends that one em- ployee, because of changed circumstances, is no longer a supervisor and should now be included in the unit. Neither of the parties desires an election at this time. It is thus clear that the only issue raised by the instant proceeding is whether or not a substantial number of individuals heretofore found to be nonsupervisory are now supervisory and, therefore, subject to the disabilities of such individuals under the amended Act. The validity of the outstanding certification in all other respects is unchallenged and the Employer concedes the majority status of the Union as to the nonsupervisory employees in the certified unit. Accordingly, as the petition raises no present question concerning representation of the nonsupervisory employees, we shall dismiss the petition as such, and ' 66 NLRB 380. 2 The current contract so defines the term supervisor that categories the Board had determined were not supervisors, are now considered to be supervisors and are excluded from the contract coverage. iHowever, the parties have further provided that if the Board determines in this proceeding that such classifications are not supervisory , the contract will be amended to cover such classifications. 101 NLRB No. 125. TIDE WATER ASSOCIATED OIL COMPANY 571 shall hereafter treat it as tantamount to a motion by the Employer to amend the certification issued in Case No. 2-R-5428, with respect to certain alleged supervisory employees.-3 The Disputed Categories The Employer urges that working foremen in the labor department and the package and shipping department, "craft" working foremen, shift engineers in the gas plant and the press plant, shift working fore- men in the filter plant, and power plant shift supervisors, all of whom were deemed to have been included in the unit, are clearly supervisors under the amended Act and should now be excluded. The Union argues that the afore-mentioned groups are not supervisory classifi- cations and it would continue to include them in the unit. It would also include the chef, who had been previously excluded. Working foremen in the labor department: The labor department is responsible for such jobs as the repair and installation of under- ground equipment, cleaning tanks, vessels, process equipment, and tubular equipment and cleaning up refinery areas. The working force varies between 50 and 100 employees and at the time of the hear- ing there were approximately 75 employees in this department. The 4 working foremen report each morning to the general foreman of the labor department, who is not only responsible for the labor de- partment but also for the crane and truck groups, and the paint shop. The general foreman distributes the daily work assignments to each of the working foremen. Although the work assignments specify the number of employees to be placed on each assignment, the working foremen select from the laborers' pool the employees to be used on a particular job and direct them to their areas of work and assign them particular tasks. Each working foreman will usually have from 8 to 40 employees working under his direction at many varied jobs and these employees may be working in smaller groups throughout the plant area of more than 200 acres. The working foreman moves from job to job checking on the work of the employees assigned to him. He performs no manual labor except perhaps to illustrate how a particu- lar job is to be performed. In the event that a novel problem arises on the job, the working foreman will contact the labor department zone foremen -1 or the general foreman for instructions. On minor matters and in emergencies the working foreman uses his own discretion. The working foreman directs the employees as to the work to be done, how they are to perform the work, and reports infractions of rules to the general foreman. Although the working foremen make no recom- a Bauach and Lomb Optical Company, 92 NLRB 139. • The record is not clear as to the functions of the zone foreman in the labor department, but he apparently assists the general foreman and is responsible for one of the three zones of operation within the plant area. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mendations or discipline employees assigned to them, they are held responsible for the proper completion of the jobs assigned and for the safety of the employees, and they do direct the men in their work. In addition, it appears that the employees in the labor department look to the working foremen for instructions as to the job to be performed, how and when to perform it, and consider the working foremen the "boss" on the job. Working foremen in the package and shipping department: The package and shipping department is responsible for filling lubricants in various sized packages and shipping these packages to customers. In carrying out these duties, empty packages and cartons are received, inspected, and stored. Such packages and cartons are later filled with various products, properly branded, and either stored or shipped to customers. The package and shipping department usually employs between 100 and 150 employees who work under the supervision of the department foreman and assistant foreman. The 5 working foremen report each morning to the department foreman. The department foreman distributes the daily work assign- ments and instructions to the working foremen. Such assignments and instructions, unlike those given in the labor department, also include the names as well as the number of employees who are assigned to each working foreman. The working foremen usually have from 6 to 20 employees under their direction and they assign such employees to particular areas and jobs within the department .5 In this depart- ment, as in the labor department, the working foremen direct the work of employees in their gang, and do not perform any manual labor. Although the working foremen may not discipline employees for infractions of the Employer's rules, nor grant passes for leave to the employees in their gangs, they are required to report infractions to the department foreman. The working foremen are held responsible for the proper accomplishment of the work assigned to their crews; they are responsible for the rejection of damaged articles coming into their work area; and the employees in their respective crews expect to, and do, take orders from the working foremen. "Craft" working foremen: The "craft" working foremen are as- signed to such departments as the electric shop, carpenter shop, machine shop, welding unit, plate shop, pipe shop, rigger shop, and steam and power department. All perform substantially the same duties within their particular fields and the parties agreed that testi- mony concerning the pipe shop operation and the duties of its working s One working foreman in this department indicated that after be received his orders from the department foreman, be then would assign some of his 10 or 12 man crew to such duties as stacking cartons in the shed , others to placing cartons on conveyors , and others to loading cartons inside box cars . He also reassigns them as one job is complete and the gang moves to another job. TIDE WATER ASSOCIATED OIL COMPANY 573 foremen would be applicable to other "craft" departments and their working foremen. The pipe shop work is performed by approximately 215 employees under the supervision of the general foreman and 3 zone foremen e The 6 working foremen in the pipe shop report to the general foreman- who distributes to each of them their daily assignment sheet. The daily assignment sheet contains a brief general description of the jobs to be performed, their priority, and the employees to be assigned to the various jobs. The working foremen then dispatch the pipe fitters and other employees to their various job assignments throughout the entire plant. Each working foreman usually directs the work of from 16 to 30 men .7 The working foremen perform no manual labor except to show an employee how to perform a job or in the event of an emer- gency. They spend the remainder of the day going from job to job overseeing the work of each gang and seeing that work assigned is properly performed. They report infractions of the Employer's rules to the pipe shop foreman. Although they make no recommendations as to discipline and have no authority to issue passes to their men, they do use their discretion on minor matters," are responsible for the proper accomplishment of the jobs assigned, and are the "boss" of the gangs assigned to them each day. In addition, the gangs expect to, and do, receive orders from the working foremen .9 Salaried shift supervisors: The shift engineers in the gas plant and the press plant, the shift working foremen in the filter plant, and the power plant shift supervisors comprise the group here involved. Unlike the working foremen already discussed, these classifications work on rotating shifts and are paid on a salary basis. Their respec- tive departments continue to operate 24 hours per day, 7 days per week. On the day shift, the salaried shift supervisors report to the super- visors of the gas plant, press plant, filter plant, and power plant, respectively. However, on the second and third shifts they are in 6 Although the record is not clear as to the exact duties of the zone foreman, it does appear that the entire plant area is divided into three zones. In the event repairs are needed in a particular area, the operating personnel will report such information to one of the zone foremen , who, in turn , estimates roughly the requirements of the craft for that zone and job. The estimate is in turn submitted to the planning office which assembles all job requests. In addition , it appears that certain working foremen may report job progress within a zone to the zone foreman responsible for that area . Working foremen may also seek advice or instructions from the zone foremen during the course of the day. T A working foreman in the pipe shop testified that at times he may have 30 gangs work- ing under him. Each gang is composed of 2 men. 8 A pipe fitter, second-class, illustrating how a "craft" working foreman uses his discre- tion, testified that he was assigned to perform a special job on certain foam lines, but while he was waiting for the carpenters to tear out some planking, the working foreman assigned him to repair a steam leak nearby. i A pipe shop working foreman testified : Q. And they expect to receive their orders from you, and they accept them when you give them to them , do they not? A. They have to, naturally, because I was assigned those men and I am responsible for them as part of the job. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complete control of their respective departments subject only to the nominal supervison of the night superintendent of the refinery, whq exercises general supervision over the entire refinery operation. The salaried shift supervisors each direct the work of approximately 7 to 18 employees," and perform some manual work, such as testing water and reading gauges 11 They are responsible for the effective operation of their respective departments on all 3 shifts; and a breakdown or a failure in these departments may very well force a shutdown of the entire refinery. The shift supervisors see that the men on their shift carry out their duties properly and safely in coordinating the operations of their respective departments. They frequently instruct their crews to change the operation of their equipment to meet certain requirements and to maintain the proper balance. In emergencies it may be neces- sary that they shift members of their crews to other jobs. Although they do not discipline employees for infractions of the Employer's rules, they do make reports of such infractions to their department supervisors or the night superintendent 12 On the second and third shifts, the shift supervisors report only to the night superintendent of the refinery, who appears to have little knowledge of the actual opera- tion of these departments. In sum, it appears that on minor problems which arise, the shift supervisors either use their own judgment in solving such matters, or consult the night superintendent as they deem proper.13 At other times the night superintendent may call upon the shift supervisors for advice as to the course of action to be taken in their respective departments. In the case of an emergency, however, the shift supervisors appear to take the necessary action and later report to the night superintendent. Chef: The chef is the head cook in the Employer's restaurant and in the cafeteria. Since 1949, the chef has been under the direct super- vision of a personnel assistant, who daily visits the restaurant in the morning and during the lunch period.14 The chef plans the 10 For the most part these employees are permanently assigned to specific stations. 11 In the earlier Tide Water case, the Board found that the power plant shift supervisors spend approximately 80 percent of their time performing manual labor . This record shows that the power plant shift supervisors spend approximately 20 percent of their time per- forming manual labor. In addition , the record shows that the shift engineers in the gas plant may spend 50 to 70 percent of their time performing such work as taking samples and readings , making tests, and opening and closing valves. 32 The shift engineer in the gas plant testified that he had occasion to give a member of his crew instructions which were not followed . He reported this failure to his supervisor. The department supervisor then told the employee that he should follow the shift engineer's instructions unless such instructions violated safety regulations. 11 The shift engineer in the press plant testified that on the night shift he had to make his own decisions as to certain changes within the department . A shift foreman in the filter department testified that many problems arise at night on which he must use his own Judgment and he seldom bothers the night superintendent. 14 Prior to 1949, the chef planned all the menus and ordered all the food . However, it does appear that even during this period , be was under the supervision of a personnel assistant. TIDE WATER ASSOCIATED OIL COMPANY 575 restaurant menus in collaboration with his supervisor, and orders the daily requirements of meat and other perishables. He assigns, di- rects, and is responsible for the work of an assistant cook and seven helpers. Although it does not appear that the chef disciplines em- ployees for infractions of the Employer's rules, he does report such infractions, and he also issues passes to the restaurant and cafeteria employees.15 Conclusions In the earlier Tide Water case, the parties raised an issue only with respect to four shift supervisors, having apparently agreed to include shift engineers and shift working foremen's The Board, in deter- mining that the shift supervisors were not supervisors was guided in great part by the fact that the record showed that such classifications performed manual work at least 80 percent of the time, and also per- formed similar duties to those of the shift engineers and shift work- ing foremen whom the parties had agreed to include. Now, how- ever, the record shows that the shift supervisors no longer spend 80 percent of their time performing manual labor; it further shows in great detail the duties of all the classifications hereinbefore discussed. In addition, the amended Act sets forth in its definition of "super- visor" criteria for ascertaining supervisory status which vary in cer- tain respects from those applied by the Board in the earlier case.17 The present record in this case shows that the working foremen in the labor department and the package and shipping department, "craft" working foremen, and salaried shift supervisors, assign, direct, and are held responsible for the proper accomplishment of the work of from 3 to 40 employees. In addition, the salaried shift supervisors are the only ones on the second and third shift who are equipped to resolve emergency situations and other technical questions. Also the respon- sibility of the working foremen in the labor department and "craft" working foremen is increased by virtue of the fact that they operate over widely scattered areas away from the zone foremen and other acknowledged supervisory personnel. It appears that they use inde- pendent judgment in their direction of employees under them and do little or no manual labor, themselves. In addition, the employees con- lc The assistant cook also issues such passes in the absence of the chef. 11 The unit placement of working foremen in the labor department , the package and shipping department, and various "craft" departments was not put in issue. ,17 Before the amendment to the Act in 1947, the Board applied the following standards to determine supervisory issues : "authority to hire , promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action." Section 2 (11) of the amended Act provides: "The term ' supervisor' means any indi- vidual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign , reward, or discipline other employees, or responsibly 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." 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sider them as their "boss" on the job and look to them for orders and direction in their work. On the basis of these factors, and upon the entire record in this case, it is clear that the working foremen in the labor department and the package and shipping department, "craft" working foremen, and salaried shift supervisors responsibly direct their subordinates within the statutory definition of supervisors. As to the chef, it is clear, in view of his responsible direction of eight employees, that he is a supervisor within the meaning of the amended Act as he was deemed to be under the Board's old standards. As the instant proceeding is tantamount to a request by the Em- ployer to amend the existing certification to the extent only that it contravenes Board-settled principles and the amended Act with respect to supervisory personnel, and as the amendment to the certificate herein to exclude the aforementioned categories will have that effect, and as there is no question concerning representation as to the non- supervisory employees in the unit, we are of the opinion that this relief should be granted 18 Accordingly, we find that the working foremen in the labor department and the package and shipping department, "craft" working foremen, shift engineers in the gas plant and the press plant, shift working foremen in the filter plant, and power plant shift supervisors are clearly supervisors within the meaning of the amended Act and do not constitute part of the appropriate unit. We further find, contrary to the Union, that the chef is a supervisor within the meaning of the amended Act. We shall amend our certification of representatives issued in Case No. 2-R-5428, on May 22, 1946, in accordance with these findings. Order IT IS HEREBY ORDERED that the certification of representatives, issued in Case No. 2-R-5428, on May 22, 1946, be, and it hereby is, amended so that the unit for which Employees' Association, Inc., was certified shall exclude the classifications of all working foremen in the labor department and the package and shipping department, "craft" work- ing foremen, shift engineers in the gas plant and the press plant, shift working foremen in the filter plant, power plant shift supervisors, and chef.19 AND IT IS FURTHER ORDERED that the petion filed in this case be, and it hereby is, dismissed. '8 Shell Petroleum Corporation, 52 NLRB 313. ' This is not to be construed as a recertification.