The American Oil Co.

National Labor Relations Board - Board DecisionsOct 6, 1965

155 N.L.R.B. 46 (N.L.R.B. 1965)

46. DECISIONS 'OF NATIGNAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced , or covered by any material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 500 Book Building , 1249 Washington Boulevard , Detroit, Michigan, Telephone No. 226-3244. The American Oil Company i and Research and Engineering Professional Employees Association , Petitioner . Case No. 13- R-9035. October 6,1965 SUPPLEMENTAL DECISION, ORDER, AND CLARIFICATION OF CERTIFICATION On March 1, 1944, the Regional Director for Region 13 issued a. report on cross-check in the above-entitled proceeding, finding and' determining that the Petitioner had been selected as the bargaining: representative of the professional employees in the research depart ment, engineering department, and conservation department of the, Utilities Division at the Whiting, Indiana, refinery of Standard Oil Company (Indiana). On November 17, 1958, the Regional Director issued a certification of representative in Case No. 13-RC-6206,, certifying the Petitioner as the bargaining representative of the pro- fessional employees in the engineering sections of the supply and transportation department and general manager sales-operations en- gineering department, at Standard Oil Company's (Indiana) general office, Chicago, Illinois. On December 17, 1963, Research. and Engineering Professional Employees Association, herein called Petitioner, filed a motion to, clarify the bargaining. unit, alleging that the employees involved in Case No. 13-RC-6206 were incorporated in the prior established unit,. and that differences have arisen between the Petitioner and the Em- ployer with respect to "the supervisory status of certain employees, both as to their designation as supervisory and as to their retention in supervisory status while no longer performing supervisory functions." In its motion, the Petitioner requested the Board to designate the "com- ponent inclusions and exclusions." On January 28,1961, the Employer filed its answer, requesting the Board to conduct a hearing for the purpose of ascertaining the facts bearing on the issues involved. On February 26, 1964, the Board issued an order referring the mat- ter to the Regional Director for Region 13 and directing that a hearing be held for the purpose of taking testimony on the issues raised by the motion. A hearing was held March 12,13, and 20,1964, before Hearing 1 Name as amended at the hearing. 155 NLRB No. 3. THE AMERICAN OIL COMPANY 47 Officer Lee D. Vincent. The Hearing Officer's rulings are free from prejudicial error and are hereby affirmed. The Employer and the Peti- tioner filed briefs in support of their respective positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. Upon the entire record in the case, the Board finds: The Employer is engaged in the manufacture and distribution of petroleum products. As a part of its research operation, the technical activities in the chemical and engineering fields are centered in Whit- ing, Indiana. The Petitioner represents all professional employees in various departments at this location, only one of which, research and development, is involved in the present proceeding. The dispute under- lying this motion arises over the inclusion or exclusion in the unit of the categories of project manager, research supervisor, project man- ager and research supervisor (dual capacity), research associate and -senior research associate, and certain administrative positions.' Project Manager: There are nine employees who are currently clas- sified in the single category of project manager. The Employer con- tends that all project managers are either managerial or supervisory. A typical project manager has the responsibility for defining accu- rately and in detail a technical objective, and for defining a program of research and development to achieve this objective. This involves consultation with a "client," such as another department, an affiliated -company, or the Government. He plans the budget, which varies in amounts from about five thousand dollars to several hundred thousand -dollars, and is responsible for adherence to the budget and to the time schedule. He communicates with the client as to the progress of the project and submits a final project report to the client. A project -manager makes effective recommendations as to what employees should be assigned to his project team, and is responsible for the work of the employees so assigned. This responsibility includes assigning their work, checking the progress of their work, checking the end result of 'their work, making annual evaluations of their work performance, and making recommendations for promotions. He can either grant or deny time off to employees assigned to his project and he can also make negative recommendations concerning vacation schedules as they affect his project. He also handles informal grievances and complaints of the employees assigned to his project. It is clear from the foregoing P They include analytical supervisor , senior patent advisor, patent advisor, superin- tendent of engineering services , engineering services supervisor , supervisor of automotive laboratory services, and librarian The Petitioner has taken the position that the job categories in dispute are neither supervisory nor managerial and should be included in the unit of professionals. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that project managers exercise independent judgment in assigning work and in responsibly directing employees within their projects. Accordingly, we find that project managers are supervisors within the meaning of the Act and we shall exclude them from the unit.3 In view of this finding, we deem it unnecessary to determine the alleged mana- gerial status of project managers. Research supervisors. There are 17 employees currently classified in the single category of research supervisor. The Employer contends that all research supervisors should be designated as supervisors. When not serving as a project manager, a research supervisor generally works on the preliminary preparation of plans for new projects. A research supervisor generally works by himself, but there are occa- sions when he has a professional or a nonprofessional working with him. In these instances, he is called upon to rate the quality of their work performance. Occasionally, a research supervisor interviews job applicants, but before an applicant is hired, he is required to undergo extensive interviewing by others. If an applicant is ultimately hired, it is the result of composite recommendations of a number of people. From the foregoing facts, it appears that research supervisors are pri- marily concerned with research and that in the performance of their duties they do not normally give responsible direction to other employ- ees nor do they have or exercise other supervisory authority. Such preliminary research work as they do may or may not qualify them for the job of project manager. Nor can their minor role in the hiring process be construed as authority effectively to make recommendations on hiring. Accordingly, we find that they are not supervisors within the meaning of the Act and we shall include them in the unit. Project mamager and research supervisor: There are 80 employees currently considered to be in this dual capacity. Although the Employer contends that all 80 are actually project managers, there is no showing in the record as to the specific time spent in the managing of a project or time spent in doing research work. We are satisfied, however, that there is sufficient record support for a finding that the employees in this dual capacity spend a substantial amount of their work time in the managing of projects .4 Accordingly, as we have 8 Humble Oil & Refining Company, 108 NLRB 1026, 1028. * The record indicates, for example , that an individual may be simultaneously a project manager on one project and merely a member of a project team on another project Member Brown finds not only that the record fails to disclose the specific time spent by any project manager and research supervisor in the managing of projects , but that the record likewise fails to establish that the employees in this classification spend a substantial portion of their time in project managing . That "an individual may be simul- taneously a project manager on one project and merely a member of a project team on. another project" does not , in his opinion , suffice as an indication of that fact . Member Brown accordingly finds inadequate record support for the exclusion of the classification- on supervisory grounds. THE AMERICAN OIL COMPANY 49 found that the project managers are supervisors within the meaning of the Act, we find that the employees in this dual capacity are likewise supervisors and we shall exclude them from the unit. Research associate and senior research associate: There are six employees who are neither project managers nor research supervisors, but who have been designated supervisory by the Employer. The "senior" portion of the title is based on ability and higher pay, but the work is the same as that of other research associates. Most of the research associates hold doctorate degrees in chemistry, are consid- ered to have a very high level of technical competence, and have had many years of experience in research activities. They are unclassed personnel and receive an annual salary as distinguished from the per- sonnel who receive a monthly salary. It is clear from the foregoing that research associates and senior research associates are highly quali- fied personnel, but it also appears that, in the performance of their research work, they do not usually have any employees working under their direction and, consequently, they do not have or exercise super- visory authority. Accordingly, we find that research associates and senior research associates are not supervisors within the meaning of the Act and we shall include them in the unit. Administrative: There are 10 employees who have been designated supervisory or managerial by the Employer that fall within this gen- eral category. Two of them, R. W. Klipp and L. E. Green, hold the position of analytical supervisor and are employed in analytical research involving standardized and inspection tests. Klipp has 10 nonprofessionals working under him. He assigns their work, meets with them daily, receives written reports from them, grants or denies time off, handles their complaints, makes salary recommendations, and makes an annual evaluation of their job performances. Green is employed in analytical research involving hydrocarbons. He also has 10 nonprofessionals working under him and his responsibility for them is similar to the responsibility exercised by Klipp. On the basis of the foregoing, it appears that these analytical supervisors responsibly direct or otherwise have or exercise supervisory authority. Accord- ingly, we find that they are supervisors within the meaning of the Act and we shall exclude them from the unit. There are three employees in this administrative category who the parties stipulated would constitute a separate group at the Whiting location under the heading of patent licensing. The Employer con- tends that P. Hill, senior patent advisor, should be excluded as a super- visor or as a managerial employee, and that M. L. Kalinowski and R. F. Maldoon, patent advisors, should be excluded as managerial employ- ees. Hill, as senior patent advisor, is responsible for maintaining liaison for this group with the patent and licensing group in the Chi- 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cago location. Hill assigns work to the patent advisors, grants or denies them time off, and discusses their annual job performance rat- ings with the director of technical liaison at the Chicago location. Hill resolves any questions as to which patent advisor should handle a par- ticular assignment, decides the speed at which certain work should be handled, and effectively recommends the choosing of new patent advi- sors. On the basis of the foregoing, we find that the senior patent advisor is a supervisor and we shall exclude him from the unit. In view of this finding, we deem it unnecessary to determine whether or not he would also be excluded on the basis of an alleged managerial status. As to the patent advisors, their duties follow a standard pattern. An idea is presented and the patent advisor to whom it is assigned will then evaluate the idea and send it to a patent attorney at the Chicago loca- tion. After the patent advisor and the patent attorney have considered the legal and the technical aspects of the proposal, they prepare a joint recommendation for or against filing a patent application with the Employer's patent application committee. Presentation of the recom- mendation is made by the patent advisor. Maldoon has the additional duty of handling licensing. In this capacity, he assists in the develop- ment of licenses for new equipment. An end result of such licensing is the securing of royalty revenue for the Employer. Maldoon spends about half of his total worktime in this activity and it requires dealing with other companies. On the basis of the foregoing, we find that the patent advisors do not formulate, determine, and effectuate manage- ment policies. Accordingly, we find that they are not managerial employees and we shall include them in the unit.5 There are three employees, J. W. Hammersmith, R. E. Rezny, and W. J. Cerveny, working in engineering services. The Employer con- tends that all three are supervisors. This group of employees is respon- sible for designing and selecting mechanical equipment used to solve various problems in the laboratory. Hammersmith has the job title of superintendent of engineering services. He has five professionals and six nonprofessionals working under him. He assigns their work, discusses with them how the work is to be done, grants or denies them time off, approves their vacation schedules, and makes an annual eval- uation as to their work performances. Rezny has the job title of engi- neering services supervisor. He is in charge of the distillation labora- tory which is concerned with the distillation of 'products, feedstocks, or blending of products of feedstocks. He has three nonprofessionals working under him. He directs their work, grants or denies them time off , and makes an annual evaluation of their job performances. s Cf. Peninsular Metal Products Corporation, 116 NLRB 452, 454; Hughes Tool Com- pany, 63 NLRB 1053, 1056. THE AMERICAN OIL COMPANY 51 He also plans the budget, which averages about $100,000 annually, for the distillation laboratory and has the responsibility for operating within this budget. Cerveny also has the job title of engineering serv- ices supervisor. He is in charge of high pressure facilities. He has one professional working under him and two craftsmen. The latter keep the various traits in running order. Cerveny arranges and super- vises the erection of necessary units. He grants or denies time off to the nonprofessionals working under him and makes an annual evalu- ation of their job performance. He also plans for the budget, which averages about $60,000 annually, and has the responsibility for operat- ing within the budget. It is clear from all of the foregoing facts that the superintendent of engineering services and the engineering services supervisors not only responsibly direct employees but have or exercise other supervisory authority. Accordingly, we find that the superin- tendent of engineering services and the engineering services super- visors are supervisors within the meaning of the Act and we shall exclude them from the unit. There is another employee, E. L. Gregory, working in engineering services, who the Employer contends is a supervisor. He is concerned with seeing that routine engine tests in the automotive laboratory are conducted. He has the job title of supervisor of automotive laboratory services and has two nonprofessionals working under him. He assigns their work, grants or denies them time off, makes an annual evaluation of their job performances, and can effectively recommend overtime work for them and also salary increases. He plans the budget for the automotive laboratory and has the responsibility for operating within this budget. It is clear from the foregoing facts that the supervisor of automotive laboratory services responsibly directs and otherwise supervises the employees assigned to work with him. Accordingly, we find that the supervisor of automotive laboratory services is a super- visor within the meaning of the Act and we shall exclude him from the unit. The remaining employee in the administrative category is the librarian, R. N. Witzeman. The Employer contends that she is a supervisor. She has the responsibility for running the library. This responsibility includes planning the budget, making purchases, and effectively recommending the hiring of any necessary additional help. She has three library assistants assigned to her, and she grants or denies them time off, makes an annual evaluation as to their perform- ances, approves their vacation schedules, and handles their grievances. It is also clear from the foregoing facts that the librarian responsibly directs and otherwise exercises supervisory authority over these library assistants. Accordingly, without passing upon her professional status, we find that the librarian is a supervisor and we shall exclude her from the unit. 212-809-66-vol 155-5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board clarified the certification by specifically including therein the job categories of research supervisor, research associate and senior research associate, and patent advisor, and by specifically exclud- ing the job categories of project manager, project manager and re- search supervisor (dual capacity), analytical supervisor, senior patent advisor, superintendent of engineering services, engineering services supervisor, supervisor of automotive laboratory services, and librarian.] Heights Thrift-Way, Inc. and Retail Clerks Union No. 7, Retail Clerks International Association , AFL-CIO. Case No. 27-CA- 1736. October 7, 1965 DECISION AND ORDER On June 18, 1965, Trial Examiner Alba B. Martin issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagorial. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner' s Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with the General Counsel and Respondent represented by coun- sel, was heard before Trial Examiner Alba B . Martin in Denver , Colorado, on March 26, 1965, on complaint of the General Counsel and answer of Heights Thrift- Way, Inc., Respondent herein. ' The issues litigated were whether Respondent violated Section 8(a)(1) of the Act by threatening and committing acts of violence and intimidation against the persons of union agents engaged in peaceful picketing at Respondent 's premises in the presence of or in a manner so that such acts would 'The original charge was filed by the Union on December 21, 1964 . The amended charge was filed by the Union on February 16, 1965. 155 NLRB No. 9.