Aurora Gasoline Co.

AURORA GASOLINE COMPANY 37 discipline and transfer, following which the superintendent conducts a separate investigation. On these facts and the record as a whole we find that the unit foremen do not possess supervisory authority within the meaning of the Act, and therefore include them in the unit.' The payroll clerk, Arlene Morris, takes care of the production pay- roll only. Her work area is on the production floor, whereas the payroll clerk for the salaried payroll works in the general office. We find that she is a plant clerical employee and include her in the unit. Charles Still works in the plant where he gathers up the shrinkage and seconds. He reports information pertaining thereto to the plant payroll clerk. We include him in the unit. We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act : All production and maintenance employees at the Employer's War- ren, Pennsylvania, plant, including cafeteria employees, quality con- trol employees, outside truckdrivers, unit foremen or crew leaders, and the shrinkage and seconds man, but excluding office clerical em- ployees, the mail clerk, professional employees, guards, and supervi- sors as defined in the Act. [Text of Direction of Election omitted from publication.] 7 Lampcraft Industries, Inc., et at., 127 NLRB 92. The parties stipulated at the hearing that unit foreman Frank Arnold is a supervisor as he substitutes for the plant superintendent when the latter is absent from the plant , we exclude him. Aurora Gasoline Company and Cylinder, Gas, Chemical, Petro- leum and Accessory Drivers , Helpers and Inside Employees, Local Union No. 283, of the International Brotherhood of Teamsters, Ind., Petitioner. Case No. 7-RC-4354. July 12, 1960 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Alfred J. Morad, 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 [Chairman Leedom and Members Rodgers and Jenkins]. 1 The hearing officer 's ruling, rejecting as evidence past contracts between the Employer and the Intervenor, is affirmed for the reasons stated in paragraph numbered 3, infra. 128 NLRB No. 3. 577684-61-vol 128-4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 organizations involved claim to represent certain employees of the Employer.2 3. The Employer and the Intervenor moved to dismiss the petition on the ground that their current contract is a bar to an election at this time. The Petitioner contends that the contract contains an invalid union-security clause which does not expressly grant old nonmember employees the required statutory 30-day grace period, and the contract therefore cannot operate as a bar. The Employer and the Intervenor oppose this contention, asserting that all their previous contracts con- tained valid union-security clauses, with the result that all old em- ployees were members of the Union on the effective date of the current agreement, and therefore were not entitled to any additional 30-day grace period under the rule announced in the Charles A. Krause Mill- ing Co. case.' Section 4 of the current contract reads as follows : As a condition of continuing employment with the Company, all employees covered by this agreement shall have to be and remain members in good standing of the Union, except that new em- ployees shall have to become members of the Union no later than immediately after the completion of their first thirty (30) calen- dar days of employment with the Company. In Keystone Coat, Apron & Towel Supply Company, et al.,4 the Board held that contracts whose union-'security clauses do not ex- pressly grant old, nonmember employees the statutory 30-day grace period within which they are not required to join the Union will no longer be treated as bars to elections .5 It is clear that the union- security clause herein does not expressly grant old, nonmember em- ployees the required 30-day grace period. Further, the Board also decided that no extrinsic evidence will be admissible in a representa- tion proceeding for the purpose of determining the validity of a union- security clause that does not on its face conform to the statutory re- quirements.6 As no extrinsic, or external, evidence can be used, as urged by the Employer, to show that the union-security clause herein does, in fact, conform to the requirements of the Act, we deny the Employer's motion to reopen the record for the purpose of receiving 1011, Chemical and Atomic Workers, International Union, AFL-CIO, and its Local No. 11-456, herein called the Intervenor , intervened at the hearing on the basis of a contract interest 3 97 NLRB 536. 4121 NLRB 880 5 Jbid, at page 884 The Krause case, relied upon by the Employer and the Intervenor, was thereby overruled. 6 Ibid, at page 886. AURORA GASOLINE COMPANY 39 the prior agreements in evidence. Accordingly, we find that the cur- rent contract between the Employer and the Intervenor is no bar to an election at this time, and deny the motions to dismiss. 4. The Petitioner seeks a unit composed of the production, process, and maintenance employees employed at the Employer's Detroit, Michigan, refinery, excluding professional, technical, administrative, secretarial, and clerical employees, guards, and supervisors. Al- though the parties are in general agreement as to the unit description, the Employer would exclude the laboratory employees, consisting of approximately 6 chemists and 17 technicians. The Employer would exclude the chemists as professional employees, and the technicians as technical employees. Although the terms of the unit description in the current contract and in prior contracts, purport to exclude both professional and technical employees from the unit, the parties concede that the laboratory employees have been bargained for by the Inter- venor and are covered by the present agreement, and the Petitioner would include them in its requested unit. The laboratory employees work in a building located apart from the production area, punch a separate timeclock, and use a separate park- ing lot. In all other respects, their working conditions and benefits are the same as those of production employees. The chemists are required to have at least a bachelor of science degree in chemistry. They spend the major portion of their time in- vestigating and analyzing the content of unknown materials and in de- veloping quality tests used by the technicians. They rely heavily on their own discretion and judgment in the performance of their duties. As the work and the educational requirements of the chemists fall with- in the definition of "professional employee," as set forth in Section 2(12) (a) of the Act, we find that they are professional employees.' The Employer now requires that applicants being hired as tech- nicians must have completed at least 2 years of college training or its equivalent with particular emphasis upon their training or experience in the field of chemistry. Although the Employer has several em- ployees who do not meet the foregoing educational requirements, the record shows that these employees, who have been employed as tech- nicians since the 1940's, possess equivalent training. The technicians spend the major portion of their time in the laboratory running tests on the Employer's products and catalysts. The individual tests are developed and standardized by the chemists, and range from the simple "cook book" type to very complex ones. The technicians con- duct these tests without any immediate supervision, take their own readings, and compute the results. When deviations from the estab- lished norms occur, they refer the results to either the chemists, the 4 See Western Electric Company, Incorporated , 126 NLRB 1346 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production foreman, or the production operators involved, depending upon the extent of deviation and the possible damage or loss that may result if production continues where the desired production quality is not achieved. In performing the tests, the technicians utilize equip- ment that varies from simple to highly complex designs. On the basis of all the foregoing, we find that the record affirmatively supports a finding that all the laboratory employees are technical employees, and we so find.' As the Employer objects to the inclusion of the technical employees, including the professionals, in the production and maintenance unit, we shall, in accord with well-established Board policy, exclude them from the production and maintenance unit hereinafter found appropriate.' We find that all production, process, and maintenance employees, employed at the Employer's Detroit, Michigan, refinery, excluding all professional employees, technical employees, administrative em- ployees, secretarial and office clerical employees, guards, and super- visors as defined in the Act, constitute a unit appropriate for the pur- pose of collective bargaining within the meaning of Section 9 (b) of the Act. However, as the laboratory employees have been bargained for in the past, and, as technicals, are entitled to separate representation,'° we shall therefore make no unit determination with respect to these employees at this time, but shall first ascertain their desires as ex- pressed in the elections hereinafter directed. As Section 9(b) (1) of the Act precludes the Board from including in a single bargaining unit professional and nonprofessional em- ployees, without according to the former an opportunity of separately expressing their desires respecting such inclusion, we shall place the professional employees in a separate voting group. We shall also direct separate elections in the following voting groups: (a) All professional employees employed at the Employer's labora- tory located at its Detroit, Michigan, refinery, excluding all other employees and supervisors as defined in the Act. (b) All technicians employed at the Employer's laboratory located at its Detroit, Michigan, refinery, excluding all professional employees and all other employees and supervisors as defined in the Act.ll 8 Humble Ott & Refining Company, 115 NLRB 1485, 1488 ; United States Gypsum Com- pany, 114 NLRB 1285, 1290 9 Humble Oil & Refining Company, supra, at page 1487. See also , Litton Industries of Maryland, Incorporated, 125 NLRB 722 10 Ciba Products Corporation, 109 NLRB 873 "The record does not indicate that the Employer employs any other technical em- ployees. Further, although the Petitioner desires to appear on any ballot involving these employees we have not been administratively advised as to the sufficiency of the Peti- tioner's showing of interest among the employees in each voting group , or whether the- AURORA GASOLINE COMPANY 41 The professional employees in voting group (a) will be asked two questions on their ballot : (1) Do you desire to be included with the nonprofessional em- ployees in a unit composed of all laboratory employees at the Employer's Detroit, Michigan, refinery? (2) Do you desire to be represented by Cylinder Gas, Chemical, Petroleum and Accessory Drivers, Helpers and Inside Employees, Local Union No. 238, of the International Brotherhood of Team- sters, Ind. ; or by Oil, Chemical and Atomic Workers, Interna- tional Union, AFL-CIO and its Local 11-456; or by neither? If a majority of the professional employees in voting group (a) vote "Yes" to the first question indicating their wish to be included in a unit with the nonprofessional technical employees they will be so included. Their votes on the second question will then be counted together with the votes of the nonprofessional voting group (b) to decide their representative for the whole unit. If, on the other hand, a majority of the professional employees in voting group (a) vote against inclusion, they will not be included with the nonprofessional employees in voting group (b). Their votes on the second question will then be counted separately to decide which union, if either, they want to represent them in a separate professional unit. Our unit determination respecting the laboratory or technical em- ployees, is based in part, then, upon the results of the elections. How- ever, we now make the following findings : (1) If a majority of the professional laboratory employees vote for inclusion in a unit with the nonprofessional laboratory employees, and a majority of employees in voting groups (a) and (b) vote for representation, we find that the following employees will constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All professional and nonprofessional employees employed at the Employer's laboratory located at its Detroit, Michigan, refinery, ex- cluding all other employees and supervisors as defined in the Act. (2) If a majority of the professional employees do not vote for inclusion in the unit with the nonprofessional employees, but vote for representation and, if a majority of the nonprofessional employees Intervenor desires to represent them in separate units . Accordingly, we shall instruct the Regional Director not to proceed with the elections directed in these voting groups until be shall have first determined that the Petitioner has made an adequate showing of interest among the eligible employees in each voting group, or that the Intervenor desires to represent them in separate units. In the event the Petitioner does not have an ade- quate showing of interest among these employees , and the Intervenor fails to notify the Regional Director , within 10 days from the date of this Direction, whether it desires to represent them separately, we shall vacate the Direction of Elections as to these groups. In the event the Petitioner has a sufficient showing of interest among these employees, and the Intervenor fails to notify the Regional Director within 10 days from this Direction that it desires to appear on the ballot in the elections , the Regional Director is instructed to proceed with the elections with only the name of the Petitioner appearing on the ballots. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vote for representation, we find that the following will constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: (a) All professional employees employed at the Employer's lab- oratory located at its Detroit, Michigan, refinery, excluding all other employees and supervisors as defined in the Act. (b) All nonprofessional employees employed at the Employer's laboratory located at its Detroit, Michigan, refinery, excluding all other employees and supervisors as defined in the Act. (3) In the event a majority of the professional employees do not vote for inclusion in the unit with the nonprofessional employees and vote against representation we find that the following employees will constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All nonprofessional employees employed at the Employer's lab- oratory located at its Detroit, Michigan, refinery excluding all other employees and supervisors as defined in the Act. (4) In all other circumstances, the Employer's laboratory em- ployees, professional and nonprofessional, shall remain unrepresented. [Text of Direction of Elections omitted from publication.] Lenox Plastics of P.R., Inc. and Juana Rodriguez de Garcia and Angelina Rivera de Pereira . Cases Nos. 24-CA-1124 and 24-CA- 1127. July 13, 1960 DECISION AND ORDER On March 10, 1960, Trial Examiner David London issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that such allega- tions be dismissed. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' 1 we find no merit in the Respondent's exceptions to the Trial Examiner 's finding that Union de Empleados de Productos Plasticos y otros Similares de P.R ., Independiente, is a labor organization . The record shows that the aforesaid union was at all times mate- rial herein a labor organization within the meaning of Section 2 (5) of the Act. The General Counsel filed no exception to the Trial Examiner's recommendation that the complaint be dismissed insofar as it alleged that Respondent discriminated against Angelina Rivera de Pereira in violation of Section 8(a)(3) and (1). 128 NLRB No. 2.