Shell Oil Co.

National Labor Relations Board - Board Decisions

Nov 27, 1968

173 N.L.R.B. 993 (N.L.R.B. 1968)

SHELL OIL CO.
Shell Oil Company and Oil, Chemical and Atomic
Workers International Union, Local No. 4-367.
Case 23-UC-27
November 27, 1968
DECISION AND ORDER DENYING PETITION
TO CLARIFY CERTIFICATION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING,
BROWN, AND JENKINS
Upon a petition of Shell Oil Company for clarifica-
tion of unit duly filed on February 12, 1968, under
Section 9(b) of the National Labor Relations Act, as
amended, a hearing was held on April 9, 10, and 11
and on July 1 and 2, 1968, before Rex H. Reed,
Hearing Officer. On July 11, 1968, the Regional
Director for Region 23 issued an order transferring
the case to the Board. Thereafter, briefs were timely
filed by the Employer and the Union.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds
Employer-Petitioner operates a refinery and a
chemical plant in Deer Park, Texas. Although con-
tiguous, the two plants operate independently of one
another in most respects. In 1939, the Union was
certified as the bargaining representative for "all the
hourly paid employees" of the Employer-Petitioner,
including supervisors! In 1943, the Board amended
its certification by excluding from the certified unit
certain specified foremen and "all other supervisory
employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of
employees or effectively recommend such ac-
tion.... "2
In this proceeding, the Employer-Petitioner is
seeking clarification of the representational rights of a
group of employees known as "relief" foremen. This
group consists of employees who spend part of their
time working in a rank-and-file capacity and part of
their time working as foremen. The need for these
relief foremen arises because the two plants operate
21 shifts per week. Since 4 foremen working 5 days
per week will staff only 20 of these shifts, there is an
odd shift which is covered by a relief forema... In
addition to serving as foreman on the 21st shift, the
relief foremen replace permanent foremen who are ill,
on vacation, on jury leave, etc. The Employer-
Petitioner requests that the Board further amend its
1 Shell Petroleum Corporation, 9 NLRB 831.
2 52 NLRB 313. Collective -bargaining negotiations for the refinery
and the chemical plant have been jointly conducted , and for more than
25 years the parties have been executing single collective agreements
covering employees at both facilities.
3 As noted above, both the refinery and the chemical plant operate
173 NLRB No. 148
993
certification by excluding from the bargaining unit
"any employees from the bargaining unit while they
are temporarily assigned to such supervisory classifica-
tions."
The Employer-Petitioner contends that: (1) bar-
gaining unit employees are supervisors within the
meaning of the Act during such periods as they are
temporarily serving as relief foremen, and (2) the
Union's right to represent such employees is limited
to periods during which they are employed in a
non-supervisory capacity. The Union contends:
(1), bargaining unit employees are not "supervisors"
while serving as relief foremen and, therefore, that
(2) the Union can represent these employees during
such times.
In both the refinery and the chemical plant, there
are two divisions-an operations division and a process
division. In the operation divisions, "first-line" super-
visors are called "shift foremen." In the maintenance
division, "first-line" supervisors are called "main-
tenance foremen." Both the "shift" and the "main-
tenance" foremen are permanent salaried foremen
who spend all or substantially all of their time
working as foremen.
The Union appears to concede that permanent
salaried foremen are supervisors within the meaning
of the Act. It contends, however, that the differences
between the authority of a permanent foreman and
the authority of a relief foreman are so significant as
to preclude a finding that relief foremen are super-
visors. We disagree. The record indicates that tempo-
rarily assigned foremen have the same number of
employees under their supervision as the permanent
foremen whom they are replacing. Like the perma-
nent foremen, relief foremen are the only supervision
in the plant during the night and weekend shifts.'
They "decide when an employee has had enough
training on the job to be qualified"; they transfer
operating personnel to fill unexpected vacancies; they
have authority to adjust "complaints" of employees
or committeemen, and prepare the "Potential Grie-
vance or Complaint Form" if a complaint is not
resolved.4 In testifying about the authority of relief
foremen, higher level supervisors stated that a relief
foreman is "wholly responsible for the operations
while he is acting as relief foreman"; that he performs
"the same duties and assumes the same responsi-
bilities as the permanently classified foreman." In
order to fulfill this function, relief foremen are
trained to perform all jobs in the department where
they may be assigned. Like the permanent foremen,
they receive the various operating instructions and
around-the-clock 7 days per week The higher level supervisors work
only during the day shift hours from Monday through Friday.
4 The collective -bargaining agreement establishes a complaint
procedure , the first step of which requires complaint to the complaining
employee's foreman. Pursuant to this procedure , numerous complaints
have been addressed to relief foremen.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"supervisory bulletins."5 For all of these reasons, we
conclude that relief foremen are supervisors within
tha meaning of the Act during such times as they are
substituting for the permanent salaried foremen.
As noted above, Employer-Petitioner requests that
the Board clarify the Union's certification by ex-
cluding from the unit employees while they are
temporarily working as supervisors. Employer-
5 The Union contends that "relief foremen " are not circularized by
the company with regular "supervisory bulletins " It is true that such
bulletins are not sent to relief foremen by name, primarily because such
employees do not need "operating instructions " while serving in a
rank-and-file capacity . The record clearly establishes , however, that
while an employee is serving as a relief foreman , he receives all of the
bulletins and operating instructions sent to the supervisor for whom he
is substituting.
Petitioner states that it is not seeking to remove any
employee from the bargaining unit. It recognizes that
the Union is entitled to represent such employees
while they are serving in a rank-and-file capacity.
There is no question of eligibility to vote during an
election. We conclude that the unit description in the
existing certification, which explicitly excludes super-
visors, also applies to relief foremen during such times
as they are assigned to supervisory classifications.
Accordingly, we find it unnecessary to amend the
certification as requested by the Employer-
Petitioner.
ORDER
IT IS HEREBY ORDERED that the petition for clari-
fication of the unit be, and it hereby is, dismissed.