Texaco Port Arthur Works

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 828 (N.L.R.B. 1994)

828
315 NLRB No. 121
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1993 unless otherwise indicated.
2 Respondent is a Federal Credit Union insured and regulated by
NCUA. It has about $127 million in assets and has as members em-
ployees from about 100 organizations.
3 Ferrett commenced working for Respondent in January 1993. He
is answerable to Respondent’s board of directors and considers
Chairman Johnson of the board his superior.
4 Ferrett did not know how long Taylor had the authority to ap-
prove loans. There was no evidence concerning how long she held
Texaco Port Arthur Works Employees Federal
Credit Union and Office and Professional Em-
ployees International Union Local No. 66,
AFL–CIO. Case 16–CA–16449
December 16, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On July 7, 1994, Administrative Law Judge Joan
Wieder issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Texaco Port Arthur Works
Employees Federal Credit Union, Port Arthur, Texas,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Robert G. Levy II, Esq., for the General Counsel.
John J. Durkay, Esq. (Mehaffy & Weber), of Beaumont,
Texas, for the Respondent.
Patrick M. Flynn, Esq., of Houston, Texas, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case was
tried March 24, 1994,1 in Port Arthur, Texas. The charge
was filed by the Office and Professional Employees Inter-
national Union Local No. 66, AFL–CIO (the Charging Party
or Union) on December 15, against Texaco Port Arthur
Works Employees Federal Credit Union (Respondent). On
February 15, 1994, the Regional Director for Region 16 of
the National Labor Relations Board, issued a complaint and
notice of hearing alleging Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act.
The principal claim raised in the complaint is Respondent
repudiated its collective-bargaining agreement, as modified
on November 22, by refusing to recognize the Union as the
collective-bargaining representative of the employees holding
the newly created position of loan officer and refusing to
meet and bargain with the Union concerning the wages,
hours and other terms and conditions of employment of these
individuals.
Respondent’s timely filed answer to the complaint admits
certain allegations, denies others, and denies any wrong-
doing, claiming the loan officers were ‘‘professional employ-
ees’’ who did not vote to be included in the unit.
All parties were given full opportunity to appeal and intro-
duce evidence, to examine and cross-examine witnesses, to
argue orally, and to file briefs.
Based on the entire record, including my observation of
the demeanor of the witnesses, and having considered the
briefs, I make the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Based on Respondent’s answer to the complaint, I find it
meets one of the Board’s jurisdictional standards and is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. It is also admitted and I
find the Union is a statutory labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The facts are not in dispute. Respondent and the Union
have a longstanding collective-bargaining relationship. The
most recent agreement runs from May 1, 1992, through April
30, 1995. As here pertinent, the agreement provides it covers
‘‘hourly paid office employees of TEXACO PAW F.C.U.’’
Another provision of the agreement declares: ‘‘It is under-
stood that this agreement applies only to nonexempt employ-
ees. Nonexempt employees as used herein mean employees
who are subject to the overtime provisions of the Fair Labor
Standards Act.’’ The duration portion of the agreement also
provides that supplementary agreements entered into by Re-
spondent and the Union ‘‘shall become a part of this agree-
ment.’’
Excluding the loan officer position, Respondent has about
35 employees covered by the collective-bargaining agree-
ment. The classifications of these employees are in the agree-
ment. Respondent has not determined if loan officers are ex-
empt or nonexempt employees under the Fair Labor Stand-
ards Act. Respondent admitted it never inquired whether loan
officers are exempt or nonexempt employees under the Fair
Labor Standards Act.
In the operation of the credit union,2 Respondent makes
loans to its members. The initial processing of loan applica-
tions was generally handled by five to six employees called
loan interviewers. According to Respondent’s president and
Chief executive officer William Ferrett,3 the loan interview-
ers interview the applicant, fill out the application, obtain
credit reports, calculate the applicant’s debt ratio, and present
the papers to a supervisor. The supervisor determined if the
loan application was approved. At the time Ferrett com-
menced his employment with Respondent, one loan inter-
viewer, a Ms. Taylor, had the authority to approve loans.4
829TEXACO PORT ARTHUR WORKS
this authority. Respondent never claimed, prior to November 29, that
Taylor was not a member of an appropriate unit nor that any of her
duties were not appropriately assigned to unit members.
5 Ferrett conceded Taylor, while a loan interviewer who had au-
thority to approve loans, was not considered to be a manager. This
concession was made despite his testimony he considered loan offi-
cers to be ‘‘mid-management’’ based on his long experience in the
banking field. Ferrett’s sole reason for considering loan officers
midmanagement was their authority to approve loans. He failed to
distinguish why Taylor’s authority to approve loans as a loan inter-
viewer was any different than that of the holder’s newly created po-
sition of loan officer. Ferrett admitted there was no difference be-
tween the loan officers duties and Taylor’s when she was a loan
interviewer authorized to approve loans.
6 The current employees who were made loan officers were paid
$25,000 a year, and the new hire was paid $24,000 a year.
7 When the loan interviewers were interviewed by Ferrett for the
loan officer position, they were informed they were not obligated to
take the loan officer position, that the position would be salaried;
thus they would not be eligible for overtime, and they would not be
in the bargaining unit.
8 I find Ferrett was not a convincing witness, and I do not credit
his testimony where it is at odds with other evidence. This conclu-
sion is based on his demeanor, which was not open and forthright.
I also note he appeared to be tailoring his testimony, on occasion,
to support Respondent’s litigation theories. For example, he initially
testified the parties did not reach an agreement on the loan officer
matter on November 22; only after counsel for General Counsel pur-
sued the matter exhaustively, did Ferrett admit Respondent agreed to
return the positions to the unit. Ferrett also displayed poor recall,
and much of his testimony under examination by Respondent’s
counsel was elicited by leading questions.
Taylor was compensated $5 a day more for this added duty.
The loan interviewers were historically members of the unit.
There was no question Taylor was a member of the unit.5
Shortly after Ferrett commenced his employment with Re-
spondent he decided to create the position of loan officer.
Ferrett did not inform nor consult with the Union concerning
the establishment of this new position. In or about February,
Respondent offered three loan interviewers, including Taylor,
the position of loan officer. They accepted. Respondent also
hired an individual as a loan officer who was ‘‘from out-
side.’’ Loan officers were paid salaries.6 Unlike the loan
interviewers, loan officers were not considered by Respond-
ent as eligible for overtime pay.7
Employees who were promoted to the position of loan
interviewer were selected on the basis of seniority. When
Ferrett chose the three loan interviewers who became loan
officers, they were the three most senior loan interviewers
but were selected based on his assessment of their capabili-
ties and not on their seniority. Ferrett believed they had the
training and background to perform the job of loan officer.
The Union filed a written complaint concerning the cre-
ation of the new position and transfer of employees to the
position of loan officer. The Union requested ‘‘the job duties
of loan interviewer be restored and returned to employees
who have historically performed these duties under’’ the col-
lective-bargaining agreement. The Union also objected to Re-
spondent’s failure to follow seniority in filling the loan offi-
cer positions. The Union considered the transfer to a loan of-
ficer position a promotion. On November 22, the parties met
and discussed, among other matters, the loan officer issue.
The minutes of the November 22 meeting, which were
signed by representatives of both the Union and Respondent,
indicate the Union informed Texaco the preponderance of the
job duties of the loan officer were being performed by the
loan interviewer ‘‘except for signing checks and approving
loans.’’ One loan interviewer had been performing the job
duties of a loan officer. Union Representative Herbert said
‘‘management could not simply create positions and assign
the duties . . . to them and call them something else such
as loan officers . . . if that were so, all of the union posi-
tions could be replaced by management with exempt posi-
tions.’’ The Union informed Respondent it was ready to
strike the panel and proceed to arbitration over the matter.
Ferrett informed the Union he was not ready to ‘‘strike the
panel’’ and proceed to arbitration.
The executed notes then provided, Johnson informed the
Union:
[M]anagement was going to reinstate the four posi-
tions in the loan department. [Johnson] asked if the cur-
rent loan officer position being filled by an outsider
could be excluded. Mr. Herbert [for the Union] stated
that it could not because the duties that were being per-
formed under that position were board-certified. He
stated that the union employee with the next lowest se-
niority must be offered the job. He stated that if no em-
ployee wanted the position, management could fill it
from the outside or force the position on the lowest em-
ployee in the seniority line to avoid having to hire new
staff.
Mr. Johnson stated that management needed to meet
with the union to open the contract to negotiate the sal-
ary and duties of the loan officer positions. He asked
if the union could meet the first part of the next week.
It was jointly agreeable to meet.
While Ferrett conceded, reticently,8 that Respondent
agreed to return loan officers to the unit, he proceeded to
refer the matter to Respondent’s counsel. Moreover, he testi-
fied:
Q. But did you view Ms. Taylor as a person who
was a management person as a loan interviewer?
A. No, sir.
Q. Well, what was the difference between what Ms.
Taylor did and the loan officer?
A. Not that much difference.
JUDGE WIEDER: What, if anything?
THE WITNESS: None, Your Honor.
Respondent’s attorney, durkay, informed Ferrett the loan
officers may be professional employees and ‘‘[i]t would go
to the Board and get their opinion.’’ Respondent and the
Union met again, but Ferrett could not recall when, only that
it was not on the scheduled date of November 29. Respond-
ent did not check with the U.S. Department of Labor, which
administers the Fair Labor Standards Act, the statute referred
to in the collective-bargaining agreement as the determinant
of whether the employees are nonexempt employees who are
entitled to overtime and thus are included in the unit. Durkay
attended the meeting and informed the union representatives
he was not sure if the loan officers are professionals or are
eligible for inclusion in the unit. Ferrett admitted he did not
consider Taylor a professional when she was a loan inter-
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Sec. 9(b) of the Act provides, as here pertinent:
(b) The Board shall decide in each case whether, in order to
assure to employees the fullest freedom in exercising the rights
guaranteed by this Act, the unit appropriate for the purposes of
collective bargaining shall be the employer unit, craft unit, or
subdivision thereof: Provided, That the Board shall not (1) de-
cide that any unit is appropriate for such purposes if such unit
includes both profession employees and employees who are not
professional employees unless a majority of such professional
employees vote for inclusion in such unit.
viewer who had the authority to grant loans and bind Re-
spondent.
Respondent then prepared a new bargaining offer entitled,
‘‘Proposal to settle ‘Loan Officer’ dispute.’’ This proposal
would exempt the loan officer position from application of
the collective-bargaining agreement, make it a salaried posi-
tion that is not entitled to overtime, and selection of loan of-
ficers would be pursuant to seniority except Respondent
would have the right to deny promotion based on its deter-
mination of the skill and ability of the individuals to perform
the duties of the loan officer position.
In sum, it is uncontroverted Respondent created the loan
officer position and transferred three loan interviewers who
were unit employees into the new positions, hired a new em-
ployee as a loan officer, and failed to replace the loan inter-
viewers, without informing and bargaining with the Union.
Respondent, when confronted by the Union, initially agreed
to ‘‘reinstate the four positions in the loan department.’’ Sub-
sequently, Respondent informed the Union they would not
comply with Johnson’s commitment to return the loan offi-
cers to the unit based on their attorney’s advice the loan offi-
cers may be professionals. Respondent also filed a UC peti-
tion with the Board. As noted in Respondent’s brief, it re-
fused to bargain concerning the newly created position of
loan officer which resulted in the Union filing the charge
here under consideration. With the filing of the charge, the
UC petition was dismissed.
General Counsel, joined by Charging Party, argue the
‘‘Proposal to settle ‘Loan Officer’ dispute’’ was an attempt
by Respondent to undo the grievance settlement. Ferrett testi-
fied:
Q. All right, sir. Do you agree, then, that you did
agree to return the people to the unit, you agreed to
recognize the Union, and deal with the Union regarding
the salaries and the duties of the loan officer positions?
Is that not true, sir?
A. Yes. I guess so. Yes, sir.
As alleged in the complaint and admitted in the answer,
on or about November 29, and continuing to date, Respond-
ent withdrew recognition from the Union concerning employ-
ees who were loan officers and refused to meet and bargain
with the Union regarding these employees. Respondent
claims the loan officers are professional employees as de-
fined in Sections 9(b) and 2(12) of the Act. As professionals,
according to Respondent, the loan officers have the right
under Section 9(b)9 of the Act to a consent election prior to
their inclusion in a nonprofessional or mixed unit. Further,
Respondent claims the loan officers did not waive their Sec-
tion 9(b) rights. Respondent argues this is an accretion issue
and prior to accreting the loan officers to the unit they must
be afforded the opportunity to express whether they wish to
be a part of the unit by a vote.
B. Loan Officers—Are They Professionals?
Respondent has the burden of proving inclusion of the
loan officers in the unit is inappropriate. Seven-Up/Canada
Dry Bottling Co., 281 NLRB 943 (1986). In Bay Shipbuild-
ing Corp., 263 NLRB 1133, 1140 (1982), enfd. 721 F.2d 187
(7th Cir. 1983); the applicable precedent was expressed as
follows:
In practical effect, there is a heavy burden on a party
seeking to prove ‘‘accretion’’ to show that the group
sought to be added to an existing unit is an ‘‘accretion’’
within the meaning of the Board’s longstanding use of
that term, whether it be a union claiming that group
. . . or an employer seeking to justify its recognition
of that group. . . . When, as here, a employer attempts
to justify removing a particular group or groups from
the coverage of a collective-bargaining agreement or re-
lationship, it has the burden of showing that the group
is sufficiently dissimilar from the remainder of the unit
so as to warrant that removal. [Citing Rice Food Mar-
kets, 255 NLRB 884, 887 (1981.)]
The decision in Seven-Up/Canada Dry Bottling Co., found
at 947,
Administrative Law Judge Melvin J. Wells observed
in that case that ‘‘accretion’’ principals . . . have pe-
ripheral rather than direct application. . . .’’ [Rice
Food Markets, 255 NLRB 884 (1981)], at 886. In find-
ing that the change was insufficient to warrant the em-
ployer’s unilateral exclusion of these employees from
the established bargaining unit, Judge Wells cautioned
that a ‘‘spinoff’’ of personnel had to be distinguished
from cases involving ‘‘additions to’’ an existing unit.
He reasoned that in the former, a departure from the
traditional, restrictive approach in accretion cases is
warranted.
Here, there is no question the loan officers and loan inter-
viewers are performing similar work. Loan officers have only
one responsibility not given most loan interviewers, that of
approving the loans. There is no claim the loan officers’
work is ‘‘sufficiently dissimilar from the remainder of the
unit so as to warrant [their] removal.’’ (Emphasis added.)
Bay Shipbuilding Corp., supra, enfd. 721 F.2d 187 at 190
(7th Cir. 1983); Newspaper Printing Corp. v. NLRB, 625
F.2d 956, 964 (10th Cir. 1980), cert. denied 450 U.S. 911
(1981); Metromedia, Inc., KMBC-TV v. NLRB, 586 F.2d
1182, 1192 (8th Cir. 1978).
Respondent avers loan officers are excluded from the
agreement. I find this argument is not persuasive. Taylor was
the Union steward at the time she was a loan interviewer
with authority to approve loans, and she signed the collec-
tive-bargaining agreement as a union committee person.
There is no claim this arrangement was contrary to the terms
to the collective-bargaining agreement. There was no bar-
gaining history presented that refutes or alters the evidence
Respondent agreed to pay a union steward and committee
person more to be a loan interviewer with the authority to
approve loans under the current collective-bargaining agree-
831TEXACO PORT ARTHUR WORKS
10 Respondent failed to adduce any evidence the collective-bargain-
ing history demonstrated an intent to exclude loan officers from the
unit regardless of subsequent changes in operations or supplemental
agreements. On the contrary, the agreement clearly establishes they
intended to incorporate midterm agreements. 11 Sonotone Corp., 90 NLRB 1236 (1950).
ment. Under these circumstances, I find Respondent agreed
to include in the unit individuals who performed the duties
of loan interviewers and also had the authority to approve
loans. As Respondent admitted, Taylor, the union steward,
was performing all the duties subsequently assigned the loan
officers, yet agreed she was included in the unit. Con-
sequently, any construction the recognition or other clause of
the agreement excludes loan officers is ‘‘immaterial,’’ for
there was a clear revision of the terms implemented by Re-
spondent and the Union. Gratiot Community Hospital, 312
NLRB 1075 (1993).10
The next question is whether Respondent established the
loan officers are professionals. Section 2(12) of the Act de-
fines professional as:
(a) any employee engaged in work (i) predominantly
intellectual and varied in character as opposed to rou-
tine mental, manual, mechanical or physical work; (ii)
involving the consistent exercise of discretion and judg-
ment in its performance; (iii) of such a character that
the output produced or the result accomplished cannot
be standardized in relation to a given period of time;
(iv) requiring knowledge of an advanced type in a field
of science or learning customarily acquired by a pro-
longed course of specialized intellectual instruction and
study in an institution of higher learning or a hospital,
as distinguished from a general academic education or
from an apprenticeship or from training in the perform-
ance of routine mental, manual, or physical processes;
(b) any employee, who (i) has completed the courses
of specialized intellectual instruction and study de-
scribed in clause (iv) of paragraph (a), and (ii) is per-
forming related work under the supervision of a profes-
sional person to qualify himself to become a profes-
sional employee as defined in paragraph (a).
Prior to February, when Ferrett established the position of
loan officer, except for Taylor, the loan interviewers per-
formed all the work now performed by the loan officers ex-
cept approving the loans. As noted above, Taylor could ap-
prove loans as a loan interviewer. The other loan interview-
ers had to get approval from either Marla Crippen, a super-
visor, or Kermit Landry, a senior vice president.
The Board devised the test for determining professional
status in Western Electric Co., 126 NLRB 1346 (1960). The
validity of this test was recently affirmed by the Board in
Avco Corp., 313 NLRB 1357 (1994) which held, citing West-
ern Electric:
Section 2(12)(a) ‘‘defines a professional employee in
terms of the work he performs,’’ not in terms of indi-
vidual qualifications. Id. at 1348. Thus, if an employee
performs work of a predominantly intellectual and var-
ied character involving the consistent exercise of discre-
tion and judgment, and requiring knowledge of an ad-
vanced type in a field of science or learning customar-
ily acquired by a prolonged course of specialized intel-
lectual instruction and study in an institution of higher
learning or a hospital, then that employee qualifies as
a professional.
In addition, although educational background does
not control, the Board examines educational background
‘‘for the purpose of deciding whether the work of the
group satisfies the knowledge of an advanced type re-
quirement of Section 2(12)(a).’’ Id. at 1348–1349. If a
group of employees consists primarily of individuals
with professional degrees, the Board may presume that
the work requires ‘‘knowledge of an advanced type.’’
Id. at 1349. Conversely, if few in the group possess the
appropriate degree, it logically follows that the work
does not require the use of advanced knowledge. Id.
Respondent attempted to establish its loan officers are pro-
fessionals through the testimony of Felix Legere who cur-
rently works for the Goodrich Federal Employees Credit
Union as a loan supervisor. Legere has worked 48 years in
banks and more than 6 years at a credit union. Legere opined
loan officers are professionals because they are salaried and
have the authority to approve loans. Admittedly, Legere was
not familiar with Respondent’s operations; he did not visit
Respondent’s offices, did not review any of the guidelines
the loan interviewers and loan officers must follow, and was
completely unfamiliar with Respondent’s operation.
Legere also did not know what criteria either banks or
credit unions use in hiring loan officers. He acknowledged
loan officers did not have to have college degrees although
a local university did offer courses related to banking in con-
junction with the American Institute of Banking, which is the
educational branch of the American Bankers Association.
While Legere knew of individuals from other employers who
took courses through the American Institute of Banking, Re-
spondent admitted none of the individuals working as loan
officers at its facility have college degrees and none have
taken any of these or other training courses for their position.
Respondent is not a sponsor of the American Institute of
Banking, and there is no evidence it or any of its agents are
members of the American Bankers Association. The record
is also silent concerning how long the individuals selected
for loan officer held the position of loan interviewer and
what, if any, experience they had that would qualify them for
the position of loan officer.
I find that the record does not establish that the work of
the loan officer’s at Respondent’s meets the criteria found in
Section 2(12) of the Act or are otherwise entitled to a the
benefit of a Sonotone election to determine if they wish to
be included in the unit.11 Initially, Respondent failed to dem-
onstrate the loan officer’s work is ‘‘predominantly intellec-
tual and varied in character as opposed to routine mental,
manual, mechanical, or physical work.’’ There was no evi-
dence concerning the specific details of the loan interview-
ers’ and loan officers’ daily duties. Assuming the authority
to approve loans is intellectual work, there was no evidence
how much time the loan officers spend to make the decision
as opposed to performing the work of the loan interviewers
which is the gathering of the information, upon which the
approval decision is made. If any of the loan officers’ work
is intellectual and requires the exercise of discretion and
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See Western Electric Co., supra.
13 While Ferrett claims it intends to offer training, he admitted Re-
spondent is planning training for all departments. There was no
showing the training being contemplated for the loan officers is of
a nature that would qualify these employees as professionals under
the Act.
14 Respondent also argues Taylor’s inclusion in the unit is not de-
monstrative of Respondent’s acquiescence to her inclusion in the
unit for she could not chose, as a unit of one, to vote for inclusion
in the unit. As noted herein, the employer is not limited by the pro-
visions of Sec. 9(b) of the Act; and there is no bar cited by Re-
spondent either in the statute or in case law to having the one em-
ployee vote on the question of their inclusion in the unit.
judgment, there is no recitation of whether such duties com-
prised a major portion of their work. Twin City Hospital
Corp., 304 NLRB 173 (1991). Further, Respondent failed to
detail the duties of the loan officers to establish it is not reg-
ularly recurrent and routine. Willett Motor Coach Co., 227
NLRB 882 (1977).
The record also failed to demonstrate the nature of the dis-
cretion and judgment actually exercised by the loan officers.
Ferrett admitted Respondent has guidelines concerning when
loan officer or others can approve loans, and Respondent is
preparing more detailed guidelines, which could further re-
duce the loan officers’ exercise of discretion. The exact na-
ture of the strictures imposed by the guidelines were not
placed in evidence. Respondent admitted its loan policies
must be adhered to by the employees, including the loan of-
ficers. The record will not support a finding the loan offi-
cers’ analysis of applications is not limited primarily to fac-
tual matters rather than matters of judgment. Willett Motor
Coach Co., id. The judgment exercised by the loan officers
was not clearly shown to require knowledge of the advanced
type ordinarily performed by employees’ with professional
standing under Section 2(12) of the Act. General Dynamics
Corp., 213 NLRB 851, 861 (1974).
Respondent conceded it uses ratios in determining if an
applicant qualifies for a loan. However, there is no evidence
the ratios are flexible formulas requiring the exercise of intel-
lectually varied judgment and the application of advanced
knowledge. There is no evidence the ratios and other guide-
lines cannot be, and are not, applied mechanistically. The
record failed to demonstrate the loan officers consistently ex-
ercise discretion and judgment that cannot be standardized.
Similarly, the record fails to show the work is predominantly
intellectual in character.
There was no testimony by a loan officer or loan inter-
viewer concerning the nature of the analysis, if any, they per-
form in the course of their duties; thus, Respondent has
failed to establish the character of the loan officers’ work
clearly requires knowledge of an advanced type as that com-
monly required and usually performed by employees with
professional standing under Section 2(12) of the Act. More-
over, there is no evidence of the work discretion involved,
thus there is no basis to find the loan officers consistently
exercise discretion and judgment. General Dynamics Corp.,
supra.
Respondent also failed to demonstrate the loan officer po-
sition requires education and experience of the type required
by the Act. All the incumbent loan officers do not have col-
lege degrees, there is no indication they have taken any
courses in a specialty, and there is no description and/or
analysis of the experience of these employees.12 The loan of-
ficers have not gone to any of the courses offered or spon-
sored by the American Institute of Banking. Respondent has
not offered the loan officers any courses.13 The record fails
to persuade the position requires ‘‘knowledge of an advanced
type in a field of science or learning customarily acquired by
a prolonged course of specialized intellectual instruction and
study in an institution of higher learning.’’ Westinghouse Air
Brake Co., 121 NLRB 636, 638 (1958); cf. Combustion En-
gineering, 117 NLRB 1589 (1957); S. S. White Dental Mfg.
Co., 109 NLRB 1117 (1954); E. W. Bliss Co., 81 NLRB 428
(1949).
While Ferrett asserted loan officers are midmanagement,
he admitted he never considered Taylor to be a manager; and
Respondent, by its counsel, has never asserted the loan offi-
cers are managers. Further, there was no evidence adduced
which would support a conclusion the loan officers or loan
interviewers were managers. Moreover, the description of the
loan officers’ duties indicate they are closely related to the
clerical and cashier functions performed by clericals, not
managerial. The decisions of the loan officers, and Taylor
when she was a loan interviewer, were appealable to the loan
review committee, which is comprised of a supervisor and
Respondent’s vice president. The applicant has the right of
further appeal to then Respondent’s board.
General Counsel avers Section 9(b)(1) of the Act is not
applicable to this case for Respondent voluntarily recognized
the unit, as described in the collective-bargaining agreement,
including loan interviewers who have the authority to ap-
prove loans. That Taylor was paid $5 a day more than the
other loan interviewers does not alter the nature of Respond-
ent’s voluntary recognition. As Respondent notes on brief,
the Board did not decide the appropriateness of the unit; Re-
spondent voluntarily agreed to recognize the Union, the
Board did not certify the unit.
Respondent argues that since the job description of ‘‘loan
interviewer/assistant bookkeeper’’ contained in the collective-
bargaining agreement lists as their job duties, among others;
taking loan applications, submitting the applications to a loan
officer or credit committee, the position of loan officer could
not be included in the unit. While this is facially logical, Re-
spondent has historically recognized as part of the unit Tay-
lor, who had the same duties and responsibilities of the
newly created position of loan officer. There is no evidence
the loan officer position is anything more than an added part
of the career ladder for ‘‘loan interviewer/assistant book-
keeper,’’ admittedly nonprofessional positions.14
Moreover, the loan interviewers’ and loan officers’ duties
include: copying work for members, all duties listed in the
collective-bargaining agreement under ‘‘Job Duties of Cash-
ier’’ and ‘‘Job Duties of Clerk’’; taking loan applications;
disbursing loan checks and making coupons; assisting the
bookkeeper in credit union accounting procedures and related
activities, including computer reconciliation, securing insur-
ance policies, car titles (including typing of for credit union
members); preparing loan folders for new and old loans; and,
preparing loan documents and loans in general for eventual
filing, including typing, checking payments, checking docu-
ments, etc. These duties, as noted above, are not the duties
of professional employees. Further, as found herein and ad-
mitted in the pleadings, it is without dispute Respondent, by
833TEXACO PORT ARTHUR WORKS
15 Johnson did not appear and testify.
16 Although the Kalamazoo decision involved the severance of
truckdrivers from a production unit, the principles established in that
case have been given wider application. NLRB v. Campbell Sons
Corp., 407 F.2d 969 (4th Cir. 1969).
17 Thus, even if it had been determined the loan officers are pro-
fessionals, Sec. 9(b)(1) would not preclude the Union and Respond-
ent from voluntarily recognizing a unit of professionals and non-
professionals. Accordingly, I conclude that Sec. 9(b)(1) would not
preclude the granting of the sought relief in the event the loan offi-
cers were determined to be professionals.
I find Respondent’s argument the decision in Leedom v. Kyne
(Westinghouse Engineers), 358 U.S. 184 (1958), requires a different
decision than A. O. Smith Corp., to be without merit and completely
unsupported by any case law or logic. The Leedom case involved
Board action which was proscribed by Sec. 9(b)(1), not voluntary
recognition and inclusion of professionals with nonprofessionals.
its chairman of the board,15 agreed to modify the collective-
bargaining agreement to include the loan officers.
Based on the admitted facts, I conclude Respondent has
failed to demonstrate this is an accretion case; rather it is the
removal of a group of employees whose qualifications and
job duties remained substantially unchanged. Respondent
failed to indicate inclusion of the loan officers in the unit
would create any problems or would otherwise warrant their
removal. As the Court found in NLRB v. Wooster Division
of Borg Warner Corp., 356 U.S. 352 (1958); such a unilat-
eral change in the scope of the collective-bargaining unit
would,
permit Respondent to alter unilaterally the scope of the
established bargaining unit [which] would unnecessarily
encourage parties to productive and viable collective-
bargaining relationships to refuse to bargain over wages
and other terms and conditions of employment of indi-
viduals who were intended to benefit from these rela-
tionships.
Respondent admitted Taylor had been covered under the
current collective-bargaining agreement, and Respondent has
not demonstrated it would have been appropriate for the
Board to entertain a midterm clarification petition to exclude
the loan officers. Also lacking is any evidence Respondent
did not know when it executed the collective-bargaining
agreement at least one loan interviewer was performing the
same duties as she and the other loan officers performed
when they worked in the newly created position of loan offi-
cer.
Respondent does not dispute the parties had a meeting of
the minds on November 22 when Respondent agreed to in-
clude the loan officers in the unit in resolution of the
Union’s complaint. The executed meeting minutes provides
objective indicia the parties reached a clear understanding.
Respondent did not dispute Johnson’s signature on the docu-
ment demonstrated he entertained the intent, on behalf of Re-
spondent, to include the loan officers in the bargaining unit
pursuant to the collective-bargaining agreement.
Respondent has failed to demonstrate the loan officers are
sufficiently dissimilar from the remainder of the unit, includ-
ing the loan interviewers, to warrant their removal. Westing-
house Electric Corp., supra; Seven-Up/Canada Dry Bottling
Co., supra. There was no evidence the loan officers and loan
interviewers, as well as the rest of the unit, do not share a
community of interest in wages, hours, and other terms and
conditions of employment. NLRB v. Action Automotive, 469
U.S. 490 (1985). While Respondent has shown there is a dif-
ference in the method of compensating the loan officers,
there was no evidence there was a difference in other em-
ployment benefits, separate supervision, a dissimilarity of
qualifications, training and skills; different work location;
substantial differences in job functions, infrequent or lack of
contact with unit employees; lack of integration with the
work functions of other unit employees; and the history of
bargaining. Kalamazoo Paper Box Corp., 136 NLRB 134
(1962).16 In fact the job functions and bargaining history
demonstrate the loan officers share a strong community of
interest with the unit employees, and on November 22 Re-
spondent and the Union agreed to have them included in the
unit. The duties of the loan officers had been performed for
sometime prior to November 22 by unit member Taylor.
Respondent agreed to the inclusion of one or more em-
ployees in the unit who not only performed the duties of loan
interviewers but also those of loan officers. This acquies-
cence included a fortiori the exclusive representation of these
employees by the Union. To foster stable collective bargain-
ing, usually the unit voluntarily recognized by the parties is
controlling. Union Plaza Hotel & Casino, 296 NLRB 918
(1989). That the Union Plaza case referred to supervisors
does not alter its applicability to the instant proceeding. As-
suming the loan officers are professionals, the Board can
issue an order concerning a unit which it could not have ini-
tially certified under the Act but on which the parties have
knowingly and voluntarily bargained and agreed. Retail
Clerks Union Local 324 (Vincent Drugs No. 3), 144 NLRB
1247, 1254 (1963); Arizona Electric Power, 250 NLRB 1132
(1980).
The Board held in A. O. Smith Corp., 166 NLRB 845, 847
(1967):
Congress did not intend the enactment of Section
9(b)(1) to render inappropriate previously established
units combining professional and nonprofessional em-
ployees and that this section does not bar parties to an
earlier established bargaining relationship in such a unit
from continuing to maintain their bargaining relation-
ship on the same basis. The sole operative effect of
9(b)(1) is to preclude the Board from taking any action
that would create a mixed unit of professionals and
nonprofessionals without first according the profes-
sionals involved the opportunity of a self-determination
election.17
As noted in Arthur C. Logan Memorial Hospital, 231
NLRB 778 (1977); to permit an employer to knowingly enter
into a collective-bargaining agreement, or in this case, an
agreement that either at the inception of its term or midterm,
to include the loan officers in the unit although they are sala-
ried employees, and immediately thereafter unilaterally mod-
ify the agreement to exclude the loan officers undermines the
parties’ collective-bargaining relationship. This repudiation of
the agreement is violative of Section 8(a)(1) and (5) of the
Act.
I find the only change here to support the Respondent’s
refusal to bargain was the addition for some of the loan
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
19 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
interviewers of the duty to approve loans. The change in job
duties was predominately a change in job title. The question
of whether a job classification is included in the unit is based
on the job content and not the job title. The loan interview-
ers’ job functions as loan officers were predominantly un-
changed, and Respondent has failed to carry its burden of
showing removal of the loan officers from the unit was war-
ranted. Hill-Rom Co., 297 NLRB 351 (1981); University of
Chicago v. NLRB, 514 F.2d 942, 949 (9th Cir. 1975); Dahl
Fish Co., 279 NLRB 1084 (1986), enfd. 813 F.2d 1254
(D.C. Cir. 1987).
Accordingly, under the circumstances of this case, I find
Respondent’s withdrawal of recognition from the Charging
Party as the exclusive representative of the loan officers, and
its continuing refusal to recognize and bargain with the
Union about wages, hours, and other terms and conditions of
employment of the loan officers, is an unfair labor practice
within the meaning of Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Texaco Port Arthur Works Employees Fed-
eral Credit Union, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Office and Professional Employees International Union
Local No. 66, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material the Union has been the exclusive
collective-bargaining representative within the meaning of
Section 9(a) of the Act for the unit described in the collec-
tive-bargaining agreement as ‘‘hourly paid office employees
of TEXACO PAW F.C.U.’’ who are nonexempt employees.
‘‘Nonexempt employees as used herein to mean employees
who are subject to the overtime provisions of the Fair Labor
Standards Act;’’ and as agreed on November 22, 1993, in-
cludes all loan officers.
4. At all times material herein, the Union has been the ex-
clusive collective-bargaining representative of all of the em-
ployees in the unit found appropriate in Conclusion of Law
3 for the purposes of collective-bargaining within the mean-
ing of Section 9(b) of the Act.
5. By, on or about November 29, 1993, and continuing to
date, withdrawing recognition of the Union as the collective-
bargaining representative of the employees occupying the po-
sition of loan officer and refusing to meet and bargain with
the Union concerning the loan officer, Respondent has en-
gaged in an unfair labor practice in violation of Section
8(a)(5) and (1) and Section 8(d) of the Act.
6. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Employer has engaged in
unfair labor practices proscribed by Section 8(a) (1) and (5)
and 8(d) of the Act, I recommend that it cease and desist
therefrom, and that it take certain affirmative action designed
to remedy the unfair labor practices and to effectuate the
policies of the Act.
I further find that, as part of the appropriate remedy, Re-
spondent should recognize the Union as the representative of
the loan officers as part of the overall unit and be ordered
to bargain, on request, with the Union as the exclusive rep-
resentative of all unit employees, including the loan officers.
See Winn-Dixie Stores, 243 NLRB 972 (1979); Alsey
Refectories Co., 215 NLRB 785 (1985). Specifically, I rec-
ommend Respondent be ordered to bargain with the Union
over the wages, hours, and other terms and conditions of em-
ployment of the loan officers, and, if agreement is reached,
to reduce such agreement to writing.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondent, Texaco Port Arthur Works Employees
Federal Credit Union, Port Arthur, Texas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from, and/or refusing to bar-
gain collectively with the Union, as the exclusive representa-
tive of all the employees in a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act, composed of ‘‘all hourly paid office employ-
ees of TEXACO PAW F.C.U. except students working in a
VOE Program . . . [and applies] only to nonexempt employ-
ees as used herein [to] mean employees who are subject to
the overtime provisions of the Fair Labor Standards Act,’’
and, to honor and apply the current collective-bargaining
agreement, including the agreement of November 22, 1993,
to include all loan officers in the unit.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and bargain with the Union as the exclusive
representative of the employees in the unit described above,
including those employees denominated loan officers, and if
agreement is reached, reduce the agreement to writing.
(b) Preserve and, on request, make available to the Board
or its agent, for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary or appropriate to
analyze the amount of money due under the terms of this
Order.
(c) Post at its facility and place of business, in Port Arthur,
Texas, copies of the attached notice marked ‘‘Appendix
A.’’19 Copies of the notice, on forms provided by the Re-
gional Director for Region 16, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the
835TEXACO PORT ARTHUR WORKS
notices are not altered, defaced, or covered by any other ma-
terial.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act and
we have been ordered to post this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT withdraw recognition from, and/or refuse to
bargain collectively and/or refuse to apply the current collec-
tive-bargaining agreement with the Office and Professional
Employees International Union Local No. 66, AFL–CIO, as
the exclusive representative of all the employees in a unit ap-
propriate for the purposes of collective bargaining with the
meaning of Section 9(b) of the Act, composed of ‘‘all hourly
paid office employees of TEXACO PAW F.C.U. except stu-
dents working in a VOE Program . . . [and applies] only to
nonexempt employees as used herein [to] mean employees
who are subject to the overtime provisions of the Fair Labor
Standards Act,’’ and as agreed on November 22, 1993, in-
cludes all loan officers.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL recognize and bargain with the Union as the ex-
clusive representative of the employees in the unit described
above, including those employees denominated loan officers,
concerning wages, hours, and other terms and conditions of
employment, and if agreement is reached, reduce the agree-
ment to writing.
TEXACO PORT ARTHUR WORKS EMPLOYEES
FEDERAL CREDIT UNION