Shell Development Co., Inc.

In the Matter Of SHELL DEVELOPMENT COMPANY, INC. and INTER- NATIONAL FEDERATION OF ARCHITECTS, ENGINEERS, CHEMISTS AND TECHNICIANS Case No. R-3245.-Decided January 13, 1942 Jurisdiction : petroleum producing and refining research industry. Investigation and Certification of Representatives : existence of question: dis- agreement on the appropriate unit; elections necessary. Units Appropriate for Collective Bargaining : single or separate units comprising: (1) all employees, excluding those in the General Office, Secretaries-Stenog- raphers, Stenographic, Technical Files, and Library Departments, the Kitchen Staff, executives, the Associate Director, the Assistant Directors, department heads, the chemists, junior chemists, physicists, junior physicists, engineers, and junior engineers, the six assistants to the Assistant Directors and the employee classified as "Chemist (Standardization)" in the Administrative Department; (2) all chemists, junior chemists, physicists, junior physicists, engineers, and junior engineers, including the six assistants to the Assistant Directors and the employee classified as "Chemist (Standardization)" in the Administrative Department, but excluding executives, the Associate Director, the Assistant Directors, and department heads who may be classified as chemists, junior chemists, physicists, junior physicists, engineers, or junior engineers; determi- nation of, dependent upon elections. Mr. John T. McTernan, for the. Board. McCutchen, Olney, Mannon d Greene, by Mr. William E. Wright, of San Francisco, Calif., for the Company. Gladstein, Grossman, Margolis & Sawyer, by Mr. Norman Leonard, of San Francisco, Calif., for the Union. Orrick, Dahlquist, Neff & Herrington, by Mr. Justin M. Jacobs, of San Francisco, Calif., for the Intervenors. Mr. Herman J. DeKoven, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On July 7 and August 23, 1941, respectively, International Federa- tion of Architects, Engineers, Chemists and Technicians, herein called the Union, filed with the Regional Director for the Twentieth Region 38 N. L. R. B., No. 50. 192 SHELL DEVELOPMENT COMPANY, INC. 193 (Stn` Francisco, California)' a petition and an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of Shell Development Company, Inc., herein called the Company, at its Laboratories at Emeryville,- Cali-fornia,' herein called the plant, and requesting an investigation and certification 'of' representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 19, 1941, the National Labor Relations Board,'herein called the Board, acting pursuant to Section 9 (c) 'of the Act and Article III, Section 3, of National'L'abor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to'provide for an appropriate hearing upon due notice. Pursuant to notice, a hearing was held from October 27 through November 4, 1941, at San Francisco, California, before C. W. Whitte- more, the Trial Examiner duly designated by the Chief Trial Examiner. A group of 10 employees at the plant, herein called the Intervenors, appeared by counsel and moved to intervene? This motion was granted. - The Board, the Company, the Union, and the Intervenors were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded, all parties. During the course of the hearing the Trial Examiner made several rulings,on other motions and on objections to the admission of evidence The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On December 1, 1941. the Company, the Union, and the Inter- venors filed briefs, which the Board has considered. On December 11, 1941; pursuant to notice, a hearing was held before the Board at Washington, D. C., for the purpose.of oral argument. The Company, the Union, and the Intervenors were represented by counsel and par- ticipated in 'the argument. 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., a Delaware corporation, is engaged in research at Emeryville, California, on new or improved methods of producing oil, petroleum products, and chemicals. I, All the Company's departments at Emeryville , and not merely the research laboratories proper, are included in all references herein to the Company's "Laboratories at Emeryville , California " 2 Eight of the Intervenors are classified as chemists and the other two (Hilmer and Sutherland) are among the seven employees in the Administrative Department discussed infra. 438861-42-vol. 38-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . During 1940, the Company used approximately 3,083,809 pounds of materials, approximately 50,740. pounds of which were shipped to the plant from points outside the State of California, and equipment .valued at approximately $88,630, of which approximately $15,331 worth was shipped to the plant from points outside the State of Cali- fornia. During the same year,, it produced at the plant approxi- mately 399,230 pounds of materials, approximately 300,128 pounds of which, valued at approximately $118,450, were shipped to States other than California From January 1 to September 30, 1941, the Company assembled at the plant. laboratory apparatus and glassware valued at approximately $12,896, of which approximately $11,646 worth was shipped to States other than California II. THE ORGANIZATION INVOLVED International Federation of Architects, Engineers,, Chemists and Technicians is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Union conducted negotiations with the Company in April and ' May 1941 for a collective bargaining agreement. These nego- tiations failed because the parties were unable to agree on the appro- priate unit. A statement of the Regional Director introduced in evidence discloses that the Union represents a substantial number of employees in the unit alleged by it to be appropriate.' We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which, has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 3 It appears that as of July 7, 1941, the Company had approximately 582 employees at the plant, approxi- mately 398 of whom are in the unit alleged by the Union to be appropriate The Regional Director reported that the Union presented 207 membership application cards, all of which bore apparently genuine signatures , that 179 of such cards bore the signatures of persons appearing on the Company 's staff list of 1941 , that one card was dated in 1938, 57 in 1940 , and 113 in 1941, and that 29 were undated SHELL DEVELOPMENT COMPANY, INC. 195 V. THE APPROPRIATE UNIT The Union requests a unit composed of all employees at the plant, excluding the employees in the Administrative Department, Engineer- ing Department, Safety Inspection Department, Photographic De- partment, General Office Department, Secretaries-Stenographci;s Department,, Stenographic Department, Technical Files Department, and Library Department, the Kitchen Staff, executives, the Associate Director, the Assistant Directors, and department heads. The Com- pany agrees that the foregoing unit is appropriate provided that pro- fessional employees be excluded therefrom and that non-professional employees in the Engineering, Safety Inspection, and Photographic Departments be included therein. The Intervenors also urge that professional and non-professional employees should not be merged. A. Professional employees The Company employs at the plant approximately 200 professional employees, including chemists, junior chemists, physicists, junior physicists, engineers, and junior engineers, as distinguished from non- professional employees, such as laboratory assistants, probationary laboratory assistants, laboratory helpers, technicians, engine operators, engine mechanics, experimental plant operators, glass blowers, handy- men, roustabouts, warehousemen, glass washers, and janitors.4 Research projects are assigned to various research groups. Such groups are usually composed of both professional and non-professional employees; sometimes, particularly in the early stages of the work, a group may be composed of professional employees only. The com- position of a given research group may change from time to time, both in number and classification of employees Professional and non- professional employees world together in the laboratory, and the suc- cessful completion of a project depends on the ability, productivity, and cooperative efforts of both classes of employees Each research group usually has a leader, who is generally a chemist, physicist, or -engineer, who is the link between the group and a department head. The leader directs and integrates and is responsible for the work of his group. Members of a research group may seek advice and assist- ance from individuals in other groups and departments All but 24 of the professional employees hold college degrees.5 The 24 who do not hold college degrees are regarded by the Company as having had sufficient training and experience with it to merit a pro- fessional rating. The non-professional employees generally have had + The laboratory assistants , probationary laboratory assistants , laboratory helpers, and technicians number approximately 107. There are about 157 other skilled and unskilled laborers. 5 Approximately 44 hold Doctor of Philosophy degrees , and approximately 132 hold degrees of Bachelor or Master of Arts or Science or corresponding degrees in chemistry , physics, or engineering 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at least a high-school training; some of them have had 1 or 2 years of college or junior college work, but very few hold- college degrees. The non-professional employees usually learn the rudiments of manipu- lative work in the sciences through their general science courses in high school or college, but for the most part their -specialized skill in laboratory work is acquired at the plant. The professional employees, by reason of their wider educational background and experience, by and large are primarily engaged in the theoretical aspects of research, the planning of solutions to the research problems, the correlation of the laboratory data, and the drawing of deductions and conclusions from such data; however, they also frequently do manipulative, mechanical work. The non-pro- fessional employees-by and large are primarily engaged in the manipu- lative, mechanical aspects of the research project (such as-the taking of readings, the doing of distillations and filterings, and the making of laboratory analyses); however, they sometimes contribute to the theoretical aspects of the work, draw conclusions from data, and are at times consulted by the professional employees on the feasiability of conducting certain experiments. The professional employees are generally given their assignments in broad outline and enjoy considerable latitude in performing their functions, while the non-professional employees generally receive detailed instructions. Also, the non-professional employees are more easily transferable from project to project. The weekly laboratory reports, which are compilations of data, may be prepared by a professional or non-professional member of the research group, but the quarterly research progress reports, in which theories are propounded, conclusions drawn, and prognoses made, are generally written by professional employees only. These reports, as well as patents issued, and articles published in scientific journals, bear the names of all employees, professional and non-professional, -who have participated in the laboratory work covered by-the report, patent, or article. Professional and non-professional employees are paid twice a month, their salaries are fixed at a monthly rate, and they, enjoy substantially the same vacation privileges. However, the salaries of professional employees generally are higher than those of non- professional employees. , Also, classes of non-professional employees, unlike professional .employees, generally have fixed minimum and maximum rates of compensation. Upon the entire record, we find that the professional employees might properly be considered either as a separate unit or 'as part of a larger unit composed of professional and non-professional employees. Under such circumstances, we apply the principle that the determin- SHELL DEVELOPMENT COMPANY, INC. 197 ing factor `is the desires of the professional employees.6 We shall therefore direct separate elections in order that we may ascertain the wishes of the professional employees. As noted above, the Union would exclude from its alleged appro- iiriate unit all employees in the Engineering and Administrative Departments. The Engineering Department has approximately seven professional employees. The Union wishes all employees in this department excluded from the unit on the ground that a substantial number of them are subject to the jurisdiction of other unions, both A. IF. of L. and C. I. 0. The Company urges that in the event professional employees are held to constitute a separate unit, the professional employees in this department should be included in such separate unit. The record does not disclose that employees in this depart- ment are members of or hay e been organized by other unions. We see no reasonable basis for not including the professional employees in this department in the group of professional employees among whom a separate election is to be held. We shall accordingly include them in such group. The Administrative Department is composed of one Associate Director, three Assistant Directors, six assistants (Harvey, Scott, Ward, Hilmer, Sutherland, and, Thornhill) to the Assistant Directors, and one employee (Vesper) classified as "Chemist (Standardization)." The Union wishes all these employees excluded from the unit because of their close connection with management. The Company urges that in the event professional employees are held to constitute a separate unit, the six assistants to the Assistant Directors and the employee classified as "Chemist (Standardization)" should be included in such separate unit since they are professional employees engaged in research and do not occupy managerial positions. Three of the employees in question are assistants to an Assistant Director who is in charge of various research departments and who also handles various personnel questions. Their function is to review, summarize, and edit the reports from the research laboratories and distribute them to the proper individuals. They may make recom- mendations and suggestions to the Associate Director or the Assistant Directors regarding further research on the various projects and may comment on whether the research theretofore conducted is satisfac- tory. In order to perform their duties properly they must be familiar with the research carried on throughout the plant. . Three of the employees in question are assistants to an Assistant Director who is in charge of the Market Research Department. Their function is to investigate and develop markets for petroleum products 6 See Matter of The Globe Machine and Stamping Co. and Metal Potishera Union, Local_ No. S, et al ; 3 N. L. R. B. 294, and subsequent cases. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and chemicals. They must be familiar with the nature and progress of the research conducted throughout the plant. They confer from time to time with professional employees in the research laboratories and receive copies of the reports emanating from such laboratories. One of these men testified that he is classified as a chemist, and that since the correspondence he handles is filled with chemical terminology and a knowledge of chemistry is required to determine whether the Company can produce certain products or whether certain products are suitable for certain uses, he could not perform his duties without training in chemistry. The seventh employee in,question, who is classified as "Chemist (Standardization)," is a member of and works with the Shell Stand- ardization Committee, whose function is to standardize analytical methods. His duties consist of gathering together analytical methods for the purpose of standardizing them and advising various people regarding changes in analytical procedures and their effects. We find that the six assistants to the Assistant Directors and the employee- classified as "Chemist (Standardization)" in the Adminis- trative Department are not so identified with management as to warrant their exclusion from any appropriate unit considered herein, and that their work is essentially of a professional nature. We shall accordingly include them in the group of professional employees among whom a separate election is to be held B. Non-professional employees in engineering, safety inspection, and photographic departments As indicated above, the Union wishes all employees in the Engineer- ing Department "excluded from the unit on the ground that a sub- stantial number of them are subject to the jurisdiction of other unions. The Company contends that the non-professional employees in this department should be included in a'unit composed of other non- professional employees. The Drafting Room, which is one of the subdivisions of this depart- ment, designs pilot plants, in which a process is tested on a large scale in order to determine how successfully a given product can be -pro- duced commercially, equipment essential for the operation of such plants, and apparatus and machinery used in the research laboratories. The Machine Shop, which is the other subdivision of this department, constructs the' pilot plants, equipment, apparatus, and machinery designed by the Drafting Room and also performs functions in connec- tion with the- maintenance of buildings" and the installation, repair, and maintenance of equipment and machinery. ' 7 This department is composed of approximately 79 employees, most of whom are skilled.and_unskilled laborers SHELL DEVEI OPME\'T COMPAN , INC. 199, We see no reasonable basis for excluding the 'non-professional employees in the Engineering. Department from a unit composed of other non-professional employees. As"noted above, the record does not disclose that employees in this department are members of or have been organized by other unions We shall accordingly include the non-professional employees in this department in the group of non-professional employees among whom a separate election, is to be held. ' The Union desires the employees in the Safety Inspection and Photographic Departments, all of whom are non-professional employ- ees, excluded from the unit on the ground that they are not engaged in research. In its brief the Union urges their exclusion for the addi- tional reason that it has not organized them. The Company main- tains that the employees in these departments are engaged in research and that they should be included in.a. unit composed of other non- professional employees. The Safety Inspection Department, which is composed of one technician and five monitors, is charged with insuring the safety of the Company's equipment It is engaged primarily in monitorial work, which is performed during the night shift. The monitors' function is to see that the -machinery in the research laboratories runs properly and that no accidents occur. The Photographic Department, which is composed of one photog- rapher and three technicians, takes. and develops photographs of apparatus and equipment which are included in reports, makes photo- static copies of various documents, and photographs and fingerprints new employees. We see no reasonable basis for excluding employees in the Safety Inspection and Photographic Departments from a unit composed of other nonprofessional employees The fact that they may not be engaged in research does not warrant their exclusion Many of the other nonprofessional employees, who are included in the unit which the Union alleges to be appropriate, are clearly not engaged in re- search. Although the Union has not organized the employees in these departments; they form an integral part of the unit of non professional employees herein in question We shall accordingly include employees in these departments in the group of non-profes sional employees among whom a separate election is to be held. We shall order that two elections be held: one among the non- professional employees who tare included in the group, designated .in the Direction of Elections as "Group A," and the other among the professional employees who are included in the group designated in such Direction as "Group B " On the results of these elections will depend the appropriate unit. ^ If both "Group A and "Group B" select the Union as their representative, they will together, constitute. 200, DECISIONS OF NATIONAL LABOR RELATIONS BOARD an appropriate unit. If only one of the two groups. selects the Union as its representative, that group will alone constitute an appropriate unit. If neither group selects the Union as its representative, the petition and amended petition herein will be dismissed. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representa- tion can best be resolved by, and we shall accordingly direct, elections by secret ballot, one to be conducted among the employees in "Group A," and the other among the employees in "Group B," as set forth, above. • I The Union requests that the pay roll of July 7, 1941, which is the pay-roll. or` staff list submitted by the Company to the Regional Director, be used for the purpose of determining eligibility to vote. The Company opposes the selection of that pay roll on the ground that it is not sufficiently recent. The record does not disclose any reason-why we should depart from our usual practice of using a current pay-roll date. Accordingly, we shall direct that the employees, eligible to vote in the elections shall be those in "Group A" and in "Group B" who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein,, subject to the, limitations and additions set forth in the direction. - Upon, the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSION OF LAW A question affecting commerce has arisen concerning the representa- tion of employees of the Company•at its Laboratories at Emeryville,. California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. `DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended,' it is • hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Shell Development Company, Inc., at its Laboratories at Emery- ville, California, elections by secret ballot shall be conducted as early. as'possible, but not later than thirty (30) days from the date of this Direction of Elections, under the direction and_ supervision of the' Regional Director for the Twentieth Region, acting in this matter as SHELL DEVELOPMENT COMPANY, INC. 201 agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations: Group A: Among all employees of the Company at its Laboratories at Emeryville, California, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding the employees in the General Office Department, Secretaries-Stenographers. Depart- ment, Stenographic Department, Technical Files Department, and Library Department, the Kitchen Staff, executives, the Associate Director, the Assistant Directors, department heads,' the chemists, junior chemists, physicists, junior physicists, engineers, and junior engineers, the six assistants to the Assistant Directors and the em- ployee classified as "Chemist (Standardization)" in the Administrative Department, and employees 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 Congress of Industrial Organizations, for the purposes of collective bargaining; and Group B: Among all chemists, junior chemists, physicists, junior physicists, engineers, and junior engineers of the Company at its Laboratories at Emeryville, California, who were employed during the pay-roll period immediately preceding the date of this Direction, including the six assistants to the Assistant Directors and the em- ployee classified as "Chemist (Standardization)" in the Administra- tive Department, and employees who did not work during such pay- roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding executives, the Associate Director, the Assistant Directors, and department heads who may be classified as chemists, junior chemists, physicists, junior physicists, engineers, or junior engineers, and employees 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 Congress of Industrial Organizations, for the pur- poses of collective bargaining. 8 Ingle of the Curator's Department , Luck of the Photographic Department , and Christopher of the Safety Inspection Department are excluded as department heads. The Company and the Union agreed to their exclusion on the ground that , while not technically department heads, they are in charge of their respective departments.