Petition for Writ of Certiorari — American Oil Co. v. National Labor Relations Board

‘LIBRARY : wel ease

| SUPREME COURT, G. B APR. 3 1968

’

JOHN F. DAMS, OLERK

IN THE

SUPREME —_ OF THE UNITED STATES

OCTOBER TERM, 1967

‘AMERICAN OIL COMPANY, Petitioner

Vv.

NATIONAL LABOR RELATIONS BOARD, Respondent

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

GEORGE SPINDLER |

910 So. Michigan Ave.

Chicago, Illinois

HAROLD E. MUELLER

KARL H. MUELLER

- Burk Burnett Building

Fort Worth, Texas

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Fort Worth Brief Printing Co., 610 8. Jennings Street Phone ED 83-4070

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SUBJECT INDEX

Page

Opinion Below 1

_ Jurisdiction 2

Question Presented . peionenant 2

Statute Involved .....cccecen | a a

Statement : es 3

~ Reasons for Granting the Writ ' , 7

‘Conclusion , teveoence eee C

Appendix A — Opinion Below 7 A-1

Appendix B — Decree of Enforcement casdalltelll

Appendix CcC— Order Denying Rehearing A-9

Appendix D— Board’s Decision and Certification —

: Cases Nos. 14-RC-4888 and 14-RC-4889....A-10

: Appendix ‘E — Board’s Order Denying Petitionfor -_. ;

| Reconsideration — Cases Nos. 14-RC-4888 ;

and 14-RC-4889 z A.84

hence, F — Board’s Supplemental Decision and

Certification of Representatives .............. A-36 .

Appendix G— Board’s Decision and Order — -

: _—- Gases Nos. 14-CA-3886, 14-CA-3919

and 14-CA-8919-2 ro

Appendix H — Pertinent Statutory Provisions A-63

LIST OF AUTHORITIES.

Cases Cited: Page —

Eastern Greyhound Lines v. N.L.R.B., | :

vo 337 F2d 84 (6th Cir. 1964) ... ; 3.

‘ Jas. H, Matthews & Co. v..N.L.R.B., a Ee

354 F2d 432 (8th Cir. 1965) ’ -..10

N.L.R.B. v. Beavers*Meadow Creamery, ate esl

215 F2d 247, 251 (3rd Cir. 1954) 9

N.L.B.B. v. Edward G. Budd Mfg. Co., 169 F2d 571 ve

(6th Cir. 1948) cert. den. 335 U.S. 908 3,11

N.L.R.B. v. Leland-Gifford Co., 200 F2d 620, |

625 (1st Cir. 1952) , 9

N.L.R.B. v. Southern Airways, 290 F2d 519 . | :

(5th Cir. 1961) 3,14

Ohio Power Co. v. N.L.R.B., 176 F2d385

(6th Cir. 1949) cert. den. 338 U.S. 899........3, 9, 11, 12, 18, 14 -

Universal Camera Corp. v. N.L.R.B., 340 U.S; 474............8,13°

Warner v. N.L.R.B., 365 -F2d 435 (3rd Cir. 1966) ............3, 12

- West Penn Power Company v: N.L.R. B., 337 F2d 993

"(83rd Cir. 1964) .- a x

| Decisions Cited: ie 7 | }

Illinois Power Co., 155 N. L.R.B. 1097 (1965) 10

_ Ohio Power Company, 80 N.L.R.B. 1334, | '

1339-1340 (1949): ' 14.

Southern Airways Company, 124 N. L.R.B. 749,

751 (1959) 14

Wasatch Oil Refinery, 76 N. LR. B. 417, 423 (1948) sleialiesictda 10

Statutes Cited: XG eo

Jurisdictional Statute, 28 USC §1254 (1) “ =

_ National Labor Relations Act; as amended

(61 Stat. 186, 73 Stat. 519,.29 ¥ S.C. 151 et seq.)

Section 2(3) Leveccedy G A-6S

Section 2(11) , aR 3, 10, 11, 12, 13, A-64

- Section 7 . , 2, A-64

Section 8(a) (5) al | 2, A-64

Section 9(a) (d) ....2..0-2cu. ; 2, A-65

’ Section 10(a) (b) (c) OO anc 2, A-65

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Supreme Court oF THE UNITED STATES

- OCTOBER TERM, 1967

No.

bal

22 nagee nena nem ~

AMERICAN OIL COMPANY, Petitioner

— v . icemes

NATIONAL LABOR RELATIONS BOARD, Respondent

Petition for a Writ of Certiorari to the United States

. Court of Appeals for the Seventh Circuit

American Oil Conipany prays that a writ of cer-

_ tiorari issue to review ‘the judgment of the United

States Court of Appeals for the Seventh Circuit en-

tered on November 8, 1967, in No. 15,924, National

Labor Relations Board v. Ameriean. Oil Company, 387

F2d 786 (Appendix A, infra, pages A-1 - A-6)..

| Opinion Below .

The decision and direction of election of the Board

in the representation proceeding is reported at 154 .

N.L.R.B. 393 and is printed as Appendix D, infra, |

pages A-10-A-33. The Board’s order denying the

- Company’s Petition for Reconsideration is printed as _

Appendix E, infra, pages A-34-A-35. The supple-.

mental decision and certification of representatives

in that proceeding is unreported and is printed as

Appendix F, infra, pages A-36- A-46. The Board’s

~ enn om RE :SEO RCERR

2

‘decision and order in the unfair labor practice case is

reported at 160 N.L.R.B. No. 46 and is printed as

Appendix G, infra, pages A-47 - A-62. The opinion of ©

the ‘Court of Appeals enforcing the Board’s order

printed as Appendix A, infra, pages A-1- A-6 is re-

ar at 387 F2d 786.

Jurisdiction

The decree of the Court of Appeals was entered on

November 8, 1967. (Appendix B hereto, infra, pages

A-7 - A-8)..Rehearing was denied on January 9, 1968.

(Appendix C, infra, page A-9). The jurisdiction of

this Court is invoked under 28 U.S. C. Section 1254

(1). |

ro iin

‘ Whether - process supervisors in charge of multi-

million dollar refining units and the employees work-

ing on them must exercise the statutory supervisory

authorities expressly delegated to them as a condition

to the establishment of sia supervisory status under

the Act. .

Statute Involved

The ‘sine provisions involved ‘are sections of

the National Labor Relations -Act, as amended, 61

Stat.’ 136, 73 Stat. 519, 29 U.S.C. 151 et seq., i.e., Sec.

2(3) and (11), Sec. 7, Sec. 8(a)(5), Sec. 9(a)(d),

~ See. 10(a)(b)(c) and (e). The pertinent parts of.

- these sections are printed in Appendix H, infra, pages

A-63 - A-67.

a

Re dase 8 .

Statement

The question here presented concerning the super-

visory status of process supervisors first: arose in a

_ representation proceeding in which the Board found

they were not supervisors.’ Accordingly they were in-

cluded in the unit of employees in which an election

_ was directed (Appendix D, infra, pages A-10 - A-38).

Based upofi the results of. this-election the Board cer-

tified the Union as the bargaining representative of

the process supervisors and the other individuals in

. the unit (Appendix F; infra, pages A-36 - A-46).

The company declined’ to bargain with the union

because of the inclusion of process supervisors in the

' bargaining unit in-order to obtain judicial review of

the question. Thereafter, in a complaint proceeding,

the Board issued an order requiring the company to

bargain (Appendix G, infra, page .A-48). Enforce- . ~

7 1Sec. 2(11) of the Act reads: “The term ‘supervisor’ means any individual

having authority, in the interest ‘of the employer, to hire, transfer, sus-

pend, lay off, recall, promote, discharge, assign, reward, or discipline

other employees of responsibly to direct them, or to adjust their griev-

* ances, or effectively to recommend such action, if in connection with the

foregoing the exercise of such authority is ‘not of a merely routine or

clerical nature, but requires the use of independent judgment.”

Sec. 2(3) reads in pertinent part: “The term ‘employee’ * * ® shall

_ not include * * ° any individual employed as a supervisor.” .

An individual who meets any. one of the disjunctive tests set out in

Sec. 2(11) (added by the 1947 amendments) is a supervisor. N.L.R.B. ..

v. Edward.G. Budd Mfg. Co., 169 F2d 571 (6th Cir. 1948) cert. den. .

835 U.S. 908, 93 L. Ed. 441, N.L.R.B. v. Southern Airways, 290 F2d -

519 (5th Cir. 1961), West Penn Power Company v. N.L.R.B., 337 F2d"

993 (3rd Cir. 1964). a 7

There is. no obligation to bargain in respect to a unit that includes:

supervisors. Ohio Power Co. v. N.L.R.B., 176 F2d 385 (6th Cir. 1949)

cert. den. 338 U.S. 899, 70 S. Ct. 249, Eastern Greyhound Lines v.

N.L.R.B., 337 F2d 84 (6th Cir. 1964), Warner Co. vo. N.L.R.B., 365

F2d 435 (8rd Cir. 1966). .

4

‘ment of this order was sought by the Board in the

Court of Appeals. Thus the entire record in the repre-

_Sentation and complaint proceedirigs was presented

for review by the Court. The Court decreed enforce-

ment. {Appendix B, pages A-7 - A-8)

The case concerns the company’s Wood River (Illi- -

_.nois) Refinery and the staffing of its large, complex

and costly units and facilities that operate continu-

ously. in the processing of crude petroleum and its _

derivatives and in the production of chemical addi-

tives.”

Each of. the major units -is directly in charge of a —

process’ supervisor each shift. Each process supervisor

_. has two or more operators working under his direction

(J.A. 166-168, 189-190, 244-245, 256, 263, 267, 275,

~ 337, 402,-1205). <7

The process supervisors were appointed to their

positions as such on September 29, 1964, at which time

a bulletin was issued and published throughout the

refinery outlining the authority, duties and respon-

2For example, the Fluid Catalytic Unit, representing an investment of

over ten million dollars, -has a daily capacity of 60,000 barrels (J.A. 214,

. 1205)°.

Fluidized catalyst is circulated at the rate of approximately 5,000,000

' pounds per hour. The “cracking” reaction occurs at 900 to 950 degrees

and the catalyst regeneration at 1150 to 1200 degrees Fahrenheit (J.A.

214-252). : |

The unit.requires constant attention and careful control (J.A. 216-

217, 219-223, 225-228, 235-239, 347, 349, 351-354, 356-364, 390-409). .

There “are a process supervisor and four operators on the unit each

shift around the clock (J.A. 244-245, 1205).

“References thus designated-are to the Joint Appendix filed in the Court ~

of Appeals.

2 a a i a a a i -

OOM OE. AEA AT GE NN

5

sibilities that had been delegated and assigned to

them.* . a ea

There is‘no question about the issuance and publica-.

tion of the bulletin or about the communication of its

contents and related matters to the individuals in-

volved and to all employees by the Refinery Manager. —

The delegation and assignment included the follow-

ing among other matters:

_. .“1, Responsibility to direct the work of the em-

'- ployees on his shift and by the use of independent

judgment and discretion to determine which work

shall be done and how, when and by which em-

_ ployees it shall be done in starting up, shutting

' down, operating, and controlling of the unit or

facility, and in so doing to make work assign-

ments and to issue ordex§yand instructions. to

such employees in behalf of the Company with

_ which they are required to comply.”

“2. To supervise, observe, inspect, and evaluate

the work and conduct of the employees on his —

shift and to make proficiency and other reports

concerning such employees and to make recom-

mendations for increases, advancements, ete.,

based thereon which shall be given particular

consideration and weight.”

“7, To administer appropriate discipline in ac-

cordance with prescribed procedures,”

The process supervisors are salaried, attend meet-

‘*. — ings of supervisurs and enjoy all of the privileges and

’This bulletin appears as an appendix to the Board’s Decision and Direc-

tion of Election (Appendix D, infra, pages A-31-A-33) and is set out in

a. (Appendix A, infra, pages

A-2—A-4),

SS

. 6 vs ’

benefits of the admitted supervisors at the refinery.

. They are in charge of and responsible for the safe and — |

efficient operation of their unit during their tour of |

duty.* They responsibly direct the employees in their

crew in the performance of their work, make work

assignments to them and see to it that they do their _

work as assigned and directed and the exercise of such ;

- authority is not of a merely routine or clerical nature,

but requires the use of independent judgment.’ They

_ have and exercise other supervisory authority all of

which is uncontradicted. No credibility resolutions

were required or made.

Prior to their advancement to process supervisors

the incumbents as stillmen and on other comparable

jobs had possessed and exercised supervisory authority

and performed supervisory duties (J.A. 248-252, 305-

306, 307-308, 345, 356-357, 427, 490, 525-526, 723- — |

- 24, 779-780, 794, 802-803, 914, 920, 931, 934, 949, is

950, 1005-1007, 1215-1217). They were considered by

the company to be supervisors and this gave rise to

the representation hearing before the Board (J.A..

127-128, 359, 385-386, 793, 803, 842, 1011, 1194,

1238-1239, 1245-1246). |

_ The Board concluded that the pita: and assign-

ment of -supervisory authority and duties to the

4Over 70 references to supporting evidence in the Joint Appendix were

made in the Company’s brief to the Court below.

SJoint Appendix 167-168, 172, 176, 178, 205, 206, 207, 225, 227-228,

235-237, 242, 244, 245, 249, 256, 263, 267, 276, 299, 314, 341, 351, 352,

887, 388, 389, 396, 408, 409, 453-454, 470-471, 556-558, 679, 723, 797,

728, 731-732, 736-737, 741-745, 754, 757, 779-780, 794, 808, 834, 839,

e 862, 879, 914, 915, 920, 931, 984, 939, 950, 967, 969, 1005, 1006, 1007,

{ 1042, 1043, 1045, 1051, 1075, 1076, 1084, 1113-1114, 1118, 1117, 1121,

1124-1125, 1127, 1128, 1213-1214: Also cited to the Court below.

. - counsel, there is actually not one instance of a process ,

x /

process supervisors was more “illusory than real”

because of the absence of evidence of the exercise by

_ them of certain supervisory functions and because

they are “the kind of minor supervisors that Congress

_did not intend to exclude from the coverage of the

Act” (Appendix G, infra, pages A-10~A-28).

The Court below found that, “* * while’ these super-

visors have authority to release their operators from

work and permit them to leave the unit during their

working hours, there is no evidence of their alleged

authority to discharge an employee.” Continuing, the.

Court observed tat it was “impressed by the fact

that, in the parts.of the record cited by respondent’s

_ Supervisor discharging an employee (or) exercising

any of the.other indicia of supervisory authority * *.”

The Court expressed'the belief that in.determining the

issue “a large measure of informed discretion must

be permitted to the Board.” Accordingly, the Court

directed that the Board’s order be enforced, “A con-

curring opinion notes that process supervisors “are

only in charge of 1 to 3 operators” (Appendix A, in-

fra, pages A-1 - A-6). ran ae

_ Reasons for Granting the Writ

The opinion and holding of the Court below is con-

trary. to and in direct conflict with decisions of other

_ Courts of Appeal on questions of far reaching impor-

tance in the administration of the Act that warrant

and require review and determination by this Court.

_ The statutory tests for supervisors were miscon-

strued and misapplied by the Court below in at least -

————OeOeOeownweneeeesena—aeee eee eee eee

8

. three respects. First, the Court held that the exercise

of delegated supervisory authority is essential to qual-

ifying as a supervisor under the Act. Secondly, it is

apparent that the Court construed the statutory tests

to be conjunctive instead of disjunctive. Thirdly, the

Court deferred to the “informed discretion” of the

Board instead of reviewing the entire record in accor-

. dance with the substantial evidence rule of Universal

Camera® and.then applying the law as written by

Congress.

1. The Court and Board conceded, as the opinion -

and decision disclose, on their face, that’ there was an

express delegation of supervisory authority and duties

_ to process supervisors in respect to several of the .

particulars ennumerated in the statutory definition. .

The record affords no basis for a contrary view.

After finding and setting out the delegation in its

opinion the Court below said that it was “persuaded” ,

it had no right to set aside the Board’s decision that

process supervisors were ‘not supervisors within the

meaning of the Act because, “in the parts of the

record cited by respondent’s (company) counsel, there

is actually not one instance of: a process supervisor

discharging an employee, (or) exercising any of the .

other indicia of. supervisory authority, * * *” (Ap-

pendix A, infra, page A-5, emphasis added). ~

_ This unequivocal holding that the possession of the

authority specified in the Act is insufficient and that

exercise of such authority must be shown in order for

‘6Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71S. Ct. 456.

LEE NER LISTENS SOOT AAS SARE PES ORY ACETIC TIA NOONE EE NLT LE EI MOE NB OLY

NNT A SL STO Rett At ernest sen pe mene mans

9

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an individual to qualify as a supervisor is in direct

conflict with decisions of other Courts of Appe.uls.

In Ohio Power Company v. N.L.R.B., 176 F2d 385,

* (6th Cir. 1949) certiorari denied, 1949, 338 U.S. 899,

70 S. Ct. 249, the Court said: | .

“* * the possession of any one of the authorities

listed in Sec. 2(11) places the employee invested

with this authority in the Supervisory class” (at

page 387). * * * | | et

“It-is the existence of the power which determines

the classification” (at page 388).

- In N.L.R.B. v. Leland-Gifford Co., 200 F2d 620, 625

(1st Cir. 1952) the Court said: —_

“* * * we think the statute does.mean that once

an individual has actually been clothed with gen-.

_ uine power to perform a Supervisory function,

he thereupon becomes a ‘supervisoi,’ even before

an Opportunity arises-to exercise his power, and

evén though he may not often find it necessary

_ to exert the power conferred. That is to say, One —

. Clothed with. real power to. discipline other em-

ployees, for instance, would be ipso facto a ‘su-

pervisor,’ even though in rare cases, even years

might pass before any occasion ever arose calling

for an exercise of the power. And we think the

Same principle must apply with respect to the

other powers enumerated in the section, including

the power ‘responsibly to direct’ other employees.”

In N.L.R.B. v. Beaver Meadow Creamery, 215 F2d

247, 251 (3rd Cir. 1954), the Court said:

“We quite agree that Section 2( 11) must be read |

disjunctively, that the possession of any one of

10

the Section 2(11) powers will dita one a super-

visor, and ‘that it is the fact of possession of the

power regardless of its nonexercise that is deter-

‘Minative.”

* See pm Jas. H: Matthews & Co. v. UN. L.R.B., 354

F2d 432 (8th Cir. 1965).

The Board itself has recognized the rule “that em-

ployees with acknowledged supervisory authority

may be found to bé supervisors although they have

never exercised such authority” Wasatch Oil Refinery,

76 N.L.R.B. 417, 423 (1948). See also Illinois Power

Co.,'155 N.L.R.B. 1097 (1965).

Excepting for the case at bar none of the Courts of |

Appeals has held that exercise of the authority enu-

____ merated in. Section 2(11) is a condition to qualifica- —

tion as‘a supervisor within the meaning of the ‘Act.

This Court has not yet decided. the question.

There is a patent conflict within the opinion aioli

It was there held, as has been noted,. that the absence

of evidence of exercise of supervisory authority was

fatal to the claimed supervisory status of process

‘supervisors. At the same time the Court found (ob-

viously from undisputed evidence of exercise of such

authority) that process supervisors had the “authority

_to release their operators from work and permit them

to leave the unit during their working hours,” that

' they are “in charge of 1 to 8 operators,” and that em-

ployees are “under the control” of process supervisors.

This clearly evidences not only the. existence but the

‘exercise of supervisory authority. of the character

ee

ll

Specified in the statutory definition, i.e., the authority

responsibly to direct the work of other employees.

_ 2. Notwithstanding the finding that process super-

visors are “in charge of” and “control” employees and

have the authority to release them’ from work and

permit them to leave the unit, the Court below did not

recognize or give effect to the existence and exercise

of such supervisory authority. Instead, in reaching its —

decision that process. supervisors are. not-supervisors

- the Court turned to the fact that “there is actually not

"one ‘instanceof a process supervisor discharging an

_ employee,” The absence of evidence of the exercise of

_ the power to discharge seems clearly to have persuaded

the Court that the process supervisors did not have the

requisite authority to qualify as supervisors. It also

appears.clear that the Court did not construe or apply

_ the statutory tests disjunctively, but conjunctively by

holding in effect that being “in charge of” and having

“control” over employees was not sufficient unless con-

joined with the exercise of the power to discharge.

- Neither the power to discharge nor the exercise

thereof is necessary to supervisory status under the -

Act. The authority t6 discharge is but one of the areas

or indicia of authority embraced in the statutory

_ definition. It is well established that the statutory tests

are to be applied disjunctively so that an individual

who is possessed of any one -of the indicia of super-

visory authority enumerated in Section 2(11) is a su-

pervisor within the meaning of the Act. N.L.R.B. v.

Edward G. Budd Mfg. Co., 169 F2d 571 (éth Cir. 1948)

cert. den. 335 U.S. 908, 69 S. Ct. 411; Ohio Power Co. v.’

12

‘N.L.R.B., 176 F2d 385, 387 (6th Cir. 1949); Warner *

Company v. N.L.R.B., 365 F2d 435, 487 (8rd Cir.

1966); West Penn Power Co. v. N.L.R.B., 337 F2d

998, 996 (3rd Cir. 1964). The contrary decision of the

Court below does not accord with any decision of this

Court or of any Court. of Appeals and ‘is in direct

- contravention of the Act.

3. The Court below apparently ‘confused the sub-

stantial evidence test on review with the weight to be

- given to the informed discretion of the Board.

The Court’s opinion states “that in reaching its

determination of this issue (supervisory status of:

process supervisors) a large measure of informed dis-

cretion must be permitted to the Board” (Appendix

A, page A-5). | : .

The issue neither calls for nor permits the exercise

of discretion on the part of the Board in giving effect .

to the provisions of Section 2(11) of the statute as

laid down by Congress. Congress expressly excluded

supervisors from the coverage of the Act, and the

Board may not include them. It is not a matter for

administrative expertise as is the devising of remedies

to effectuate the purposes of the Act. The statutory

definition of supervisors is explicit. If an individual is

shown to possess the authority specified, he is a super-

visor as a matter: of law. Whether he is possessed: of

such authority is a question of fact. Informed discre-

tion and administrative expertise will not suffice as

substitutes for substantial evidence on the record con-

sidered as a whole. : . |

ee —

13

It appears from its opinion that the Court below

did not review the entire record as required by Uni-

versal Camera, but instead abdicated its review func-

. tion in favor of the Board’s informed discretion. It -

thereby, in effect, approved the Board’s unsupported

conclusion that process supervisors are “the kind of

minor supervisors that Congress did: not intend: to

exclude from the coverage of the Act” (Appendix D,

pages A-27-A-28), - |

'. This decision is in direct conflict with the decision

of the Court of Appeals for the Sixth Circuit in Ohio

. Power Company v. N.L.R:B., 176 F2d 385, 387-388

(1949) in which it was held that the wording of Sec-

tion 2(11) of the Act is plain and unambiguous, that

it cannot be varied, and ‘that it was error not to

enforce the statute according to its terms.

Section 2(11) does not differentiate between major

or minor supervisors. If the test of the statute is met,

the employee is a Supervisor, and the Board is wholly

without authority to withhold administratively the

_ application of the statute.

In affirming the Board’s decision in the case at bar,

' the court relied upon the fact that process supervisors

“are only in charge of 1 to 3 operators” (Appendix A,

page A-5). Here again the Court erred in yielding to

the Board’s attempt to add a “ratio” test to the statu-

tory definition. The ratio of supervisors to non-super- |

visory employees is not one of the statutory tests...

There is no provision in the Act that authorizes or

empowers the Board to fix the number of ‘supervisors

an employer may have.

“eo 14

‘The decision below is in conflict in this respect with |

the decisions of the Courts of Appeal for the Fifth and

Sixth Circuits, respectively, in N.L.R.B. v. Southern

Airways, 290 F2d 519 (1961) and Ohio Power Co. v.

_N.L.R.B., 176 F2d 385 (1949). In both of these cases .

the supervisalt were ‘in charge of only 2 employees.

The Board held there as in the case at bar that they -

were not supervisors and that to find otherwise would

result in an abnormally high ratio of supervisors to

employees. Southern Airways Company, 124 N.L.R.B.

749, 751 (1959), Ohio Power Company, 80 N.L.R.B.

1334, 1839-13840 (1949).:The Board was reversed in

_ both cases in spite of the “ratio” test which it sought .

to engraft on the Act and upon which the Court below

erroneously relied.

Conclus

For the foregoing reasons, it is respectfully sub-

mitted that the petition for writ of certiorari should

OUR PS Wot Ne te

be granted.

Respectfully submitted,

GEORGE SPINDLER

_ 910 So. Michigan Ave.

Chicago, Illinois

HAROLD E. MUELLER

KARL H. MUELLER

Burk Burnett Building

Fort Worth, Texas .

. a i.

| | APPENDIX A

| ; | Opinion of Court of Appeals Enforcing i

| , . The Board’s Order

[ a In the: |

| | UNITED STATES COURT OF APPEALS

ae For the Seventh Circuit

we

| : No. 15924 September Term, 1967

| ‘ September Session, 1967

On Petition for Enforcement.of an Order of the

National Labor Relations Board . 7

National Labor Relations Board, Petitioner, |

| ee We. , :

American Oil Company, a Maryland corporation, ™

Respondent.

November 8, 1967

Ss ,

Before Schnaskenberg, Castle and Fairchild, Circuit -

Judges. -,° »* ies

Schnackenberg, Circuit Judge. We are asked by the

National Labor Relations Board, petitioner, to enforce

its order requiring the American Oil Company, a Mary-

land corporation, respondent, to inter alia bargain col-

lectively with the charging union, Oil, Chemical and

Atomic Workers International, as the representative -

of the operating and maintenance employees of re- |

r

A-2

0

- Spondent, including so-called process supervisors.”

The primary question is whether certain employees

of respondent were nonsupervisory employees (and

therefore subject to collective bargaining contracts),

as found by the Board, or whether they were supervi-

sors within the denition of § 2 (11) of the National

Labor Relations Act, as amended, 29 U.S.C. § 152

(11), which reads: | |

The term “supervisor” means any individual

having authority, in the interest of the employer,

to hire, transfer, suspend, lay off, recall, promote

. discharge, assign, reward, or discipline other-em-

ployees, or responsibility to direct them, or to_ad-

just their grievances, or effectively to recommend ~

such action, if in connection with the foregoing

_ the exercise of such authority is not of a merely

routine or clerical nature, but requires the use

_ Of independent judgment. —

The record shows that on September 29, 1964, J. A.

Norgaard, manager of refinery of fespondent, issued

_a bulletin entitled: © ee ee :

. Stillmen, Treaters, Pumpers, Engineers on No. 5°

_ PS., No. 2 FCU, Ultraformer, Central Pump

House, Poly Plant, Alky Plant, Boiler Room, De-

tergent Additives Plant, Sulfurizing Plant, and

~~ Asphalt Plant. . Sot

This bulletin classified the subject employees as proc-

ess supervisors, and stated: “They have and shall -

have and exercise the following authority, duties, and

responsibilities: ° eee: |

“1. Responsibility to direct’ the work of the em-

' 1The Board’s decision and order are reported in 160 NLRB 46.

A-3

_ - ployees on his shift and by the use of independent

judgment and discretion to determine which work ©

‘Shall be done and how, when and by which em-

ployees it shall be done in starting up, shutting

down, operating, and controlling of the unit or

-facility and in so doing to make work assign-

‘ments and to issue orders and instructions to such

employees in behalf of the Company with which

they are required to comply.

“2. To supervise, observe, inspect, and evaluate

the work and ‘conduct ‘of the employees on‘ his

shift and te make proficiency ‘and other reports :

concerning such employees and to make recom-

mendations for: increases, advancements, ete.,

based thereon which shall be given particular’con-

~ sideration and weight. .

“3. To recommend ‘effectively which employees

shall work on his shift.

“4. To have immediate and direct charge of

the unit or facility to which assigned in respect

to access thereto by the employees on his shift

and all other employees. ea

“5. To grant permission to employees on. his

shift to leave or absent themselves from the unit

or facility and from their usual or regularly .as- .

Signed areas or places of work. °

“6. To entertain and adjust grievances -and

complaints of the employees on his shift which

arise during such.shift and which concern work-

ing conditions and relations with other employees

and with the Company and otherwise to provide

for and to maintain the orderly, harmonious, and

efficient working together of such employees in

the accomplishment of the work to be done.

A-4

“7, To administer appropriate discipline in ac-

cordance with prescribed procedures.”

N orgaard ‘went on to state in the bulletin:

“This bulletin ‘is published for the purpose of.

clarifying and establishing the position and su-

pervisory status of the subject employees who in

addition to the foregoing shall continue to have

and exercise the authority, duties, and respon-

sibilities heretofore established.” (Italics sup-

_ plied.)

He gave each process supervisor a copy of that bulletin

and a letter regarding his duties, saying, inter alia,

that this “[ your position]: has necessitated your direc-

tion and control of the other employees on your shift.”

‘The next day a copy of the bulletin was sent all em-

ployees with an accompanying letter stating therein,

inter alia, “in order to clarify for all employees the

action we have taken.” |

Contemporaneously, Norgaard held meetings in

which he explained to the process supervisors and

_ other supervisors their duties and responsibilities. He

explained the benefits which would follow their clas-

sification arid stated that other meetings would be

held. :

Considerable evidence was received indicating the

_. advantages accruing to the supervisors in the way of

salary, working conditions and personnel relationships

with the business of respondent. i hek

: Our consideration of these facts, however, leaves

little question that, while these supervisors have au-

A-5

thority to release their operators from work and per-

mit them to leave the unit during their working hours,

_ there is no evidence of their alleged authority to dis-

charge an employee. We are impressed by the fact

_ that, .in the parts of the record cited by respondent’s

counsel, there is actually not one instance of a process

supervisor discharging an employee, exercising any of

the other indicia of supervisory authority, or indicat-

ing that in actual practice any of these employees was

regarded as having authority to do so. We are there-

fore persuaded that we have‘no right to set aside the

Board's decision that the process supervisors were not

Supervisors within the meaning of the act. _ ;

We believe that in reaching its determination of this

issue, a large measure of informed discretion must be

permitted to the Board. N.L.R.B. v. Elliott-Williams

Co., 7 Cir., 345 F.2d 460, 463 (1965).

Certainly in determining the legal status of em- |

Ployees, a question of fact is involved. Thus on this

‘ primary question of fact, we are required by. the rec-

ord before us to sustain the Board’s order. We do

so and direct that it be enforced.

Order Sustained and Enforced.

- Fairchild, Circuit Judge’ (concurring). In affirming

the board’s decision that the so-called process supervi-

sors are not supervisors within the meaning of: sec-

tion 2(11), the fact that they are only in charge of 1

to 3 operators has some significance, along with other

facts mentioned in the opinion by Judge Schnacken-

berg. Further, some operators are not under the con-

A-6

trol of process supervisors and some process super-

visors do not always have operators working: under

them. Had the board found for the company there _

would be 47 “supervisors” for 105-115 employees. a

appears that the work actually performed by the men

involved did not change substantially at the time of —

the September 29 bulletin. | “4

The board could well deem these men, though called |

‘“process’ supervisors”, not part of management.

A true Copy:

Teste: °

oN

Clerk of the United States Court

. of Appeals for the Seventh Circuit.

Pee e te am

A-7

APPENDIX B

Decree of Court of Appeals

UNITED STATES COURT OF APPEALS

) FOR THE SEVENTH CIRCUIT

No. 15,924

NATIONAL LABOR RELATIONS BOARD,

““~. Petitioner,

vz ,

AMERICAN OIL COMPANY, a Maryland -:

corporation, Respondent.

‘DECREE

- Before: Schnackenberg, Castle and Fairchild, Circuit

Judges.

THIS CAUSE came on to be heard upon the peti-

tion of the National Labor Relations Board for the

enforcement of a certain order issued by it against

the Respondent, American Oil Company, a Maryland

corporation, its officers, agents, Successors, and as-

Signs on August 16, 1966. The Court heard argument

of respective counsel on September 20, 1967, and has ©

considered ‘the briefs and transcript of record filed

in this cause. On November 8, 1967, the Court being

' fully advised inthe premises, handed down its deci-

sion granting enforcement of the Board’s order.

ON CONSIDERATION WHEREOF, it is ordered,

. 1 ss ae oe ok ae

PRAT CRONE SP SEI LE IES I. SMEG IPO AR EE SCALE ANE LE: DLE LILLIE LE LEAS NG yy

AS

adjudged and decreed by the United States Court .of

Appeals for the Seventh Circuit that the said.order of

the National Labor Relations Board in said proceed-

ing be enforced, and that the Respondent, American’ _

_ Oil Company, a Maryland corporation its officers, |

agents, successors and assigns abide by and perform

the directions of the Board in said ‘order contained.

/s/ ELMER J. SCHNACKENBERG

_ Judge, United States Court of

Appeals for the Seventh Circuit

/8s/ LATHAM CASTLE

Judge, United States Court of

Appeals for the Seventh Circuit

/s/ THOMAS E. FAIRCHILD

. Judge, United States Court of

Appeals for the Seventh Circuit

A True Copy:

-»q° Teste:

* KENNETH J. CARRICK

Clerk of the United States Court of

Appeals for the Seventh Circuit.

PO EN Tn ng SE I Re ete . —

A-9 a

APPENDIX C

Order of Court of Appeals Denying Rehearing

—...... UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illino's 60604

TUESDAY, JANUARY 9, 1968

ae Before ‘*

Hon. Elmer. J. Schnackenberg, Circuit J udge

_ Hon. Latham Castle, Circuit Judge __

Hon. Thomas E. Fairchild, Circuit Judge

Petition for enforcement of an order from the

National Labor Relations Board

—

No. 15924

NATIONAL LABOR RELATIONS BOARD,

Petitioner

vs.

"AMERICAN OIL COMPANY, Respondent

IT IS ORDERED by the Court that the petition _

for rehearing filed in the above entitled cause -be and

the same is hereby denied. - a “i

A-10

APPENDIX D

Board’s Decision and Certifiication

154 NLRB No. 27. e ~ )D-8239 . |

| : } - -Wood River, IIl.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

. BOARD

Pat Nos. 14-RO-4888 and 14-RC-4889

AMERICAN OIL ones PANY, Employer

: and

OIL, CHEMICAL AND ATOMIC WORKERS»

INTERNATIONAL UNION, AFL-CIO, Petitioner

DECISION AND DIRECTION OF ELECTIONS

Upon separate petitions duly filed under Section

9(c) of the National Labor Relations Act, as amended,

a consolidated hearing was held before Herbert S.

Davidoff, Hearing Officer. The Hearing Officer’s rul-

_- ings made at the hearing are free from prejudicial

error and are hereby affirmed. Thereafter, the Em-

_ ployer and the Petitioner filed briefs.

Upon the entire record in this case, including the

briefs filed herein, the N ational Labor Relations Board

finds:

1. The sisal is engaged i In commerce within the

meaning of the Act and it will effectuate the purposes

of the Act to assert jurisdiction herein.

‘ . ee sat excoia ORT A

ih Seay era LANE OEE LIAN BIE ALT AS ERE MO OE OTA YIN ERE AN NUE IP. peor onary m Te et Tee a hk ee f

EE ae

‘ Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 483, AFL-.

Prom: EW DIPPER

»

A-11

2. The labor organizations involved claim to repre-

sent certain employees of the Employer.’

3. Questions affecting commerce exist concerning

the representation of employees of the Employer with-

in the meaning of Sections 9(c) (1) and 2(6) and (7) |

of the Act. | Coreen

4. The Employer operates an oil refinery at Wood

River, Illinois. The Petitioner seeks to represent the

employees of this refinery in two separate units: one

‘comprised of operating and maintenance employees,

and the other of office and clerical employees. The

parties agree that the proposed office and clerical. unit,

which corresponds with a unit previously found ap-

In Case No. 14-RC-4888 the following Unions were permitted to inter-

wene as Joint Intervenors: United Association of Journeymen and Ap-

prentices of the Plumbing and Pipefitting Industry of the United States

and Canada, Local 553, AFL-CIO; Sheet Metal Workers International

Association, Local 268, AFL-CIO; International Hod Carriers, Building

and Common Laborers Union of America, Local 338, AFL-CIO; Brother-

hood of Painters, Decorators and Paperhangers of America, Local 917,

AFL-CIO: Bricklayers, Masons and Plasterers International Union of

America, Local 8, AFL-CIO; International-Brotherhood of Boilermakers,

CIO; International Union of Operating Engineers, Local 525, AFL-CIO;

International Association of Heat and Frost Insulators and Asbestos

Workers, Local 56, AFL-CIO; International Brotherhood of Electrical

‘Workers, Local 649, AFL-CIO; United Brotherhood of Carpenters and

Joiners, Carpenters District Council of Madison County and Vicinity,

Illinois, AFL-CIO; International Association of Machinists, District No.

9, AFL-CIO; and International Brotherhood of Teamstér, Chauffeurs, ©

Warehousemen and Helpers of America, Local 525.

Independent Oil Workers Union also intervenedtin Case No.-14-RC-

4888 and in Case No. 14-RC-4889. It later withdrew from participation

in Case No. 14-RC-4889.

Independent Oil Workers Union, Local No. 15, intervened in Case

No. 14-RC-4889. |

_ Independent Oil Workers Union, Local 115, intervened in both cases

but later withdrew from the proceeding. .

‘A-12

propriate by the Board, is appropriate.? The parties

also agree that operating and maintenance employees

constitute an appropriate unit. They disagree, how-

ever,—and this is the sole issue—as to whether “proc-

ess supervisors” who, prior to their reclassification on

September 29, 1964, had the job titles of stillman,

pumper, engineer, and treater, are supervisors within

the meaning of Section 2(11) of the Act.’ The Em- .

ployer contends that they are, and the Petitioner and

the Intervenors that they are ™

i : =

Bargaining His ory

For several years before 1951, the Employer bar-

gained with Local 115; Central States Petroleum

. Union, for operating and maintenance employees, ex-

‘eluding supervisors. In 1959, Local 115 became an

affiliate of Independent Oil Workers Union but con-

tinued to represent the:same employees. The most.re-

cent collective-bargaining contract covering operating

- and maintenance employees was effective from Decem-

ber 1960 to December 1963, when it was terminated

by Local 115.

During the entire bargaining history, - stillmen,

oa pumpers, engineers, and treaters, the individuals who

the Employer contends have now become supervisors

under the job title of “process supervisors,” were con- a

2 Standard Oil Company (Indiana), 98 NLRB 282. pes

8Section 2(11) of the Act reads: “The term ‘supervisor’ means any in- }

dividual having authority, in the interest of the employer, to hire, ‘trans- oe |

fer, suspend, lay off, recall, .promote, discharge, assign, reward, or

discipline other employees, or responsibly to direct them, or to adjust.-

their grievances, or effectively to recommend such action, if in connec-

tion with the foregoing the exercise of such authority is not ‘of.a merely

ee

aetna aa qirennnneiny “ ¢ - aan Pu eh a ee ed a ae Led —"

+

A-13

sidered part of the bargaining unit as nonsupervisory

_ employees and were covered by the terms of the various’.

collective-bargaining contracts negotiated by Local 115

and the Employer. ie

The changeover to process supervisor

The Petitioner filed its petition seeking to represent

operating and maintenance employees on July 1, 1964,

On September 15, 1964, the Regional Director notified

_the parties that a hearing on the petition would be-held -

on October 6,:1964. Two weeks after the notification of

hearing, on September 29, 1964, the Employer distrib-

uted a bulletin to, the individuals involved and to em-

ployees generally “for the purpose of clarifying and

establishing the position and Supervisory status” of

: stillmen, pumpers, engineers, and treaters on certain

of its units. The bulletin, as set out in Appendix A,

announced that the incumbents in the foregoing posi-

' . tions were reclassified as “process supervisors” and

described their “authority, duties and responsibilities,”

_as including the authority responsibly to direct the

work of employees on their shifts, effectively to recom- _

mend changes in their status, adjust their grievances,

and discipline them. According to the Employer’s brief,

“there is no need to go beyond the bulletin of Septem-.

ber 29, 1964, and the related matters in determining .

the supervisory status of the Process Supervisors.” : .

the bulletin was drawn “with the statutory definition

(of supervisor] in mind.”

? D 7 “_@

Whether an individual is a supervisor within the

Act’s definition cannot-be determined simply by refer-

Pe Hye Bak ants MENT mr ew oF

a —

ring to the job title or by examining a theoretical ex-

pression of: his responsibilities and duties in a bul-

letin.* As the Court stated in the aaa Bleachery

case :°

. the aes cannot make a supervisor out

of a rank and file employee simply by giving him

thetitle. and theoretical power to perform one or. |

more of the enumerated ‘supervisory functions.

The.important thing is the possession and exer-

cise of actual supervisory duties and authority

.and not, the formal title. It is a question of fact

in every-.case “as-to whether the individual is.

merely a superior workman or leadman who ex-

_ excises the control of a skilled worker over less -

- capable employees, or is a supervisor - ‘who shares

the power of management.

Arid the fact that the conferring of alleged peor ae

saith

auth6rity on individuals who had theretofore been con-

sidered nonsupervisory followed. shortly after the filing

of a representation petition and represented an ap-

parent, attempt to remove them from the-bargaining

unit is reason for scrutinizing carefully all the.sur-.__ : |

rounding factors in determining whether the authority. 4,

conferred was real or only theoretical.*

The Plant ‘Organization: The refinery is organized:

into seven divisions, of which three are staff and four

are operating and maintenance. The latter are: (1)

_Light Oils Division, (2) Chemicals and Heavy Pro-

‘ducts Division, (3) Utilities Division, and (4) Me-

iNLRB. v. Southern hery &© Print Works, Inc., 25%_F. 2d 235,

239 (C.A. 4), cert. d 359 U.S: 911; Cinch Manufacturing Corpo-

ration, 98 NLRB 781, 783.

5N.L.R.B. 0. Southern Bleachery & Print Works, Inc., supra. °

6 American Finishings Company, 86 NLRB 412, 417; N.L.R.B. 0. one

Newspapers, Inc., 315 F.2d 709 (CA. 5).

_*

A189

chanical Division. Process supervisors work only in

the Light Oils, Chemicals and Heavy Products, and |

Utilities Divisions. Accordingly, we are- concerned

only with these three divisions. Each of the three divi-

sions has a number of departments and subdepart-

ments. The organization of the three divisions is as

follows: .

The Light Oils Division has three departments

—Crude-Cracking, Finishing, and. Loading. |

The Crude-Cracking Department includes the No.

_ 5 pipe still, the fluid catalytic cracking unit (referred

to gs No. 2 sad or the cat cracker), and ” we

former. ©

The Finishing. Department includes the central

pump house,” the butane polymerization plant No. 2

(referred to as the poly plant), the sulfuric acid alky-

lation plant (referred to as the alky ibliii and No.

2 vapor recovery unit. |

- The Loading Department covers: pam and tank

loading. ¥

A superintendent i is in 1 charge of the Division. Each

of the three departments in the Division. is headed by

a general foreman and three or four shift foremen.

Each of the several units in the departments is headed

by an assistant general foremen.* There is also an

additional foreman in charge € the truck rack at the

pump house.

7The pump house includes the continuous heater oil swestening plant

and the continuous LCGO caustic washing plant.

The ‘alkylation plant and No. 2 vapor recovery unit are headed by the

same assistant general foreman.

A-16

There are log process supervisors in the Light Oils

Division evenly divided between the Crude-Cracking |

and the Finishing Departments. A process supervisor

on each shift generally. works in a: unit with two or

three other employees. .

., , The Chemicals and Heavy Products Division is

divided into two departments—Chemicals Manufac-

turing or Additive Department, and Asphalts or

Heavy Products Department. ee

The Chemicals Manufacturing Department units

include the detergent additives plant, sulfurizing plant

sulfurized dipentene plant, synthetic lubricant or syn- as

tholube plant, and the BOT plant.®

The Heavy Products Department units include the

asphalt plant, asphalt packaging plant, compound

_ house, and barrel house.

_ A superintendent is in charge of the Division. Each

depaytment is headed by’ a general foreman and two

assistant foremen. In addition, the asphalt packaging

unit and barrel house unit each has a: foreman in

. charge. There are also four shift foremen who ‘per

form supervisory duties in the two departments com-

prising the Division.

There are 13 process supervisors in the Division, of

whom nine are in the Chemicals Department and four ~

in the Heavy Products Department. The process su-

pervisor generally works with two or three other em-

ployees on each. shift.

‘BOT is an abbreviation for bisdioctyldithiadiazole.

saree nme tumyenccanimore ROE RNP SBE Te > ven mers ams a MF ose had on

yY

\A-17

The Utilities Division includes a boiler room, tur-

bine room, water treating plant, and air compressors.

The Division is supervised by a superintendent, two

general foremen, and four shift foremen. 7

There are four process Supervisors. They work in

the boiler room with from three to four operators and. ‘

one tube blower. at ae -

The duties of the process supervisors and their as-

sistants: The specific duties of the different process

supervisors on each. of the departmental subdivisions

are set out in the record more in conclusory than in

descriptive language. The record shows, however, and

the parties do not disagree, that the process super-

visors’ relationship and authority with respect to the

operators on the various units is substantially alike.

We describe, as representative, the duties of em-

ployees at the cat cracker which is in the Light Oils’.

Division. Employees in this unit maintain air flow

from the blower, maintain valve control on gases leav- .

ing the generator, control levels of catalysts, maintain

temperatures and pressures in the vessels, and watch

the rate of flow of “gas oil” entering the reactor. This.

work involves the observation of the blower and other

equipment, as well as reading and adjustment of indi-

’ cators and instruments on a control board in a control

room. The work, including that of the process super-

visor, normally requires moving about the unit, ob-

servation and reading of gauges and equipment, turn-

ing valves and switches, recordkeeping, and cleaning

the unit. The employees’ equipment includes such tools

as wrenches, flashlights, and screwdrivers. Their

Cl te ne inc lS ON te CAE A HEBER tts ih TEI:

a

clothing includes sini respirators, hard hats, ape

tective on and gloves.

The process “supervisor works directly in the unit

“and also spends much of his time in the control room

or in the immediate area. He may tell an operator to -

make changes to insure reactor temperatures, but

the operator or boardman on the unit may himself

make any necessary adjustments. Routine changes are

normally made by operators without consultation with

the process supervisor. Routine testing and sampling

is performed by the unit operators or by laboratory

employees,,and maintenance. work: is performed by.

employees in the separate Mechanical Division. The

process supervisor may order repairs, oversee safety

- aspects of the work, and direct operators to ¢éheck

that the equipment is repaired satisfactorily. |

Progression and Wage Rates: The stillman, treater,

pumper, and engineer classifications required several

years of training to attain. The progression was from

operator (first year), to operator (second year), to .

operator, and then to treater, pumper, stillman or engi-

_neer. This last job was the highest paid nonsupervisory

job covered by the 1960 collective-bargaining contract.

The wage was $3.625—equivalent to that of the car- .

penter patternmaker. There was a 3514 cent differ-

ence between it and the next lower classified job.

Thereafter, in April 1962, the Employer granted a 3

percent wage increase to everyone—including the dis- —

puted group. Thus, ‘the process supervisors’ hourly

wage after April 1962 and before the September 1964

. changeover was approximately $3.73. ’

A-19

In September 1964, when the stillmen were de-

signated process supervisors, the Employer changed

the process supervisors’ method of payment from an

hourly wage to a monthly Salary. The salary was set

at $750 a month and the merit system, applicable to

- Supervisors, was made applicable to them. It per-

. mitted earnings'up to about $10,000..

. Process supervisor Galliher testified that he earned

$8420 in 1963 on an hourly basis and that under his

current monthly salary he can earn $9000. He said

that the new salary, taking into account past overtime

and holiday benefits as well as a wage increase

granted to hourly-paid employees after the April

1962 increase, would amount to but $243 more than

his 1963: annual earnings: Light Oils Division Super-

intendent Gifford testified that shift foremen’s earn-

ings were at least 5 percent more than those of process

supervisors and could range up to 25-30 precent more

than those of the process supervisors.

Supervision: As previously, stated, process super-

visors work in three divisions: Light Oils, Chemicals

and Heavy Products, and Utilities. Each of these divi-

sions is headed by a superintendent.” Included in the

undisputed | supervisory hierarchy beneath the division

superintendent are general foremen, assistant general

Piel foremen, and shift foremen. There are 28

process supervisors in the Light Oils Division, 13 in

the Chemicals -and Heavy Products Division, and 4

in the Utilities Division. Each of the process super-

19Over the superintendents are the — manager and the assistant

Refinery manager.

- A-20

visors generally works with one to three operators;

in a few instances he may work with four or five.

Before September 29, 1964, the date of reclassifica-

tion, there were 19 supervisors in the Light Oils Divi-

sion to 130-140 hourly-paid employees, or one super-

visor to approximately seven. employees. If we were

. to find that the former stillmen, pumpers, engineers,

and treaters are now supervisors, there would be 47

supervisors to 105-115 employees in that division, or

one supervisor to slightly more than two employees.

The ratio of supervisors to nonsupervisors in the

Chemicals and Heavy Products Division and in the

Utilities Division would not be significantly different.

Alleged Supervisory Authority of Process Super-

visors: Contrary to the Employer’s contention, the

record shows that the individuals in dispute do not .

have power effectively to recommend changes in the

status of other employees and they have not adjusted

grievance or disciplined employees.

The record shows that the Employer has not hired

employees for several years and hiring procedures are

not now defined. Thus, we do not consider persuasive

testimony by Light Oils Superintendent Gifford that

' the process supervisor “would be consulted if any

hiring were done.” 7

_ There is no showing that process supervisors can

transfer employees. There have been no interplant -

transfers. The record further shows that intraplant

transfers ordinarily are not feasible because of the

different kinds of experience required on the different.

A-21

"units. It does not appear that, even in an emergency

situation, the process supervisor alone would effect

a transfer; rather he. would ask a superior for addi-

tional help.

There is no evidence of any occasion since Septem- ©

ber 29, 1964, for a process Supervisor to suspend an —

employee, although Superintendent Gifford testified

that the process supervisors were told by the plant

-manager that they had the power to discharge, dis-

cipline, and suspend employees. The only instance

mentioned: by Superintendent Gifford occurred before

September 29 and related to the superintendent’s .

sending a shift foreman home after a stillman ob-

served that the shift foreman was inebriated.

The record does not support any alleged authority of .

the process supervisors to lay off or recall employees.

There have been no.recent instances of layoffs and

recalls. The procedures governing them had been set

out. in collective-bargaining contracts and employer

_ representatives indicated those procedures would still

be followed. Testimony of General Foreman Wishlins-

ki indicated that these procedures, based on Seniority,

do not allow for effective recommendations: by any

supervisor.

Promotion, too, is based largely on contract seniori-

ty provisions, and there is no evidence that process

‘Supervisors could effectively recommend a promotion

that would depart from the contract provisions. The

only testimony respecting a “specific instance of a

promotion was that of General Foreman Leonatti in

the Utilities Division. He related’ an instance that

— A-22

_ occurred before the September 29 changeover, when

the boiler room engineers expressed suprise that a

certain operator was not promoted after a periodic

test under the progression system. Thereafter, he said, :’

the Employer retested the operator. That the opinion

of the engineers was one of the factors taken into

account in the Employer’s detérmination to retest an

operator under the contract progression system cannot

be said to amount to an effective recommendation for

promotion where the Employer proceeded independ-

ently to retest the operator’s ability.

Similarly, there has been no.instance of a discharge

.and no evidence that the process supervisor has au- .

thority to effect a discharge. General Foreman’ Arkis

of the Chemicals Department testified ‘that, in the

event of a discharge, the process supervisor would be

“in on the decision” as would the shift foreman, but

“discharge is a very serious thing and this is normally

not the one person that will do this. It is a consensus

of opinion involving everybody up, and: sometimes

_ including the refinery manager.”

There is no evidence that any process supervisor,

before or after the September 29 changeover, has

played a responsible part in the reward of any em-

ployee. The Employer appears to. rely on the bulletin’s

grant of authority to the process supervisor to evalu-

ate the work and conduct of employees, and to make

proficiency. reports and recommendations for increases

and advances. It is apparent from Superintendent

‘Gifford’s testimony that before September 29, process

supervisors under their former job titles did not

- A-23

regularly evaluate the work of their assistants.

Two process supervisors testified that they were

told only a week before the hearing to fill out evalua-

tion reports on employees with whom they had' worked

at some time. Neither had filled out Such reports be-

fore that time. Foreman Wishlinski testified that the

evaluations will be used principally for training and

counselling purposes. In view of the contract progres-

sion system and contract wage schedules, we do not

believe that the record supports a conclusion that the

process supervisors can reward employees through the

evaluations or in any other manner. ,

There is no evidence that any process supervisor

has adjusted grievances. Although management wit-

nesses testified that process supervisors have such

authority, in the only instance of the presentation of

a grievance to a process supervisor since’ September

29, 1964, the outcome depended on a decision by the

assistant general foreman who was Superior to the

process supervisor. The process supervisor involved -

testified that he did not think that he had authority

to adjust the employeé’s grievance as he thought it

should be adjusted in view of the direction on the

matter received from his superior. |

In the absence of any of the other usual indicia of

‘supervisory status, there remains for consideration .

only the question whether these process supervisors

responsibly direct the: work of other employees. The

Employer contends that they do, whereas the Peti-

tioner argues that the duties of this group are only

A-24

routine and do not require the use of independent

judgment. .

There is a substantial hierarchy of supervision at

the plant in the daytime. And at night and on week-

ends, there is always a shift foreman in charge.

Further, the foreman superior to the shift foreman

is always on call weekends and holidays, and any

foreman may be called in an emergency. The process

supervisor is the highest paid worker present in a

unit. But this is equally true of other units where

the stillmen have not been designated process super-~

visors.

The decisions that the process supervisor \is called

upon to make respecting maintaining proper tempera-

tures, taking additional samples, determining whether

instruments are functioning properly, and varying a

blend, appear to be those normally a part of a hi ighly-

skilled employee’s job involving. complex: equipment.

' The method of operating the various units is pre-

scribed in ‘an operating manual as well as in daily

orders passed on from the assistant general foreman.

In an emergency. situation the operator or process

supervisor would usually call on. the shift foreman

and any other admitted supervisor wae could be

reached. |

The shutdown, turnaround, and an for the

purpose of repairing a unit occurs infrequently, and

every admitted supervisor is present at such times, .

‘Similarly, ‘in a complete shutdown, all admitted su-

pervisory personnel are present. A written manual

sets out the startup and shutdown procedure. The -

A-26

decision to shut down for cleaning or lack of feed

Stock is generally made by one of the foremen. In a

very hazardous situation, the process supervisor or _

-€ven an operator.may shut down the equipment. But

short of this emergency, the shift foreman or assistant

general foreman would decide whether to shut down.

The process supervisor cannot himself ¢éall for as-

sistance from another unit. Indeed, in most situations

Such a call would be of no avail because, as Superin-

tended Gifford testified, “the process supervisor and

his crew are trained on a particular unit. It is: a

highly complex thing. They know this unit and they

cannot willy-nilly move to another unit. . . .” It is the

shift foreman who would obtain help or replacements —

when needed. . ..

_ Similarly, the shift foreman releases employees on

duty. Although Superintendent Gifford. testified that

the process supervisor can release an operator from

the unit if he is ill, to go toa funeral, or if the unit

_ has: too many employees, he gave no specific example

of such occurrence. 3

The writing up of work orders for mechanical re-

pairs by process supervisors appears to be but. an

adntinistrative and routine task. It was newly-insti-

‘ tuted after September 29. Although it may be as-

sumed that some judgment is. required to determine

that repair work is needéd, an operator may make

this. determination. The procedure~for authorizing

hazardous work still requires several Supervisors’ au-

thorization. ‘And shift foremen still assign priorities .

to repair work requested by the process: supervisor.

A-26

The authorizing of repairs does not substantiate su-

-pervisory: responsibility for the work of 6ther em-

_ ployees on the unit. ,

Scheduling and assignment of work on the anit. is

‘done a week in advance -by the general foreman.

Employees then work steadily on that. part of the unit

where they have experience, although there may be

some changearound to gain different experience, Any |

authority to assign exercised by the process supervisor

to carry the operation forward appears to be no mbre

than is customary for the more experienced and skilled

member. of such a highly specialized mechanical crew.

We find that the control exercised by the process

supervisor over his assistants “is not the type of con-

trol contemplated i in the statutory definition of a su-

pervisor; it is not the authority responsibly to direct

.other | employees which flows from management and

tends to identify or associate: a worker with manage-

ment.

’ .

Conclusion

‘The seed alteration’in the status of process super-

visors after September 29, 1964, did not result from

a change in manufacturing operations or a realign-

ment or reorganization of processing personnel. The

process supervisors did the same work with the same

number of assistants after that date as they had done

before, when classified as stillmen, pumpers, -engi-

11Southern Bleachéry and Print Works, Inc., 115 NLRB 787, 791, enfd. .

257 F. 2d 235 (C.A. 4), cert. denied 359 U.S, 911; United States Gyp-

_ sum Company; 116 NLRB 656, 600; United States Gypsum Company,

121 NLRB 370, 373. :

_

A277 ©

neers, and treaters: Moreover, not all stillmen, pump-

ers, and engineers were reclassified as process super-

visors. Some of the employees in these classifications,

although performing the same work as the reclassified

individuals, retained their old job titles and are con-

cededly still nonsupervisory employees.” As set. out —

above, the alleged changes in the responsibilities: and

authority of the process supervisors created by ‘the

bulletin of September 29, 1964, are” more illusory

than real. To accept the contention of the Employer

_ that the process supervisors are supervisors would

result in a marked disproportion in the ratio of su-

pervisors to nonsupervisors.* Finally, for the many

years until 1964 that the Employer bargained collec-

tively for its operating and .maintenance employees,

it recognized that the process supervisors under their

former job titles of stillman, pumper, enginéer, and

treater were not supervisors. For all the foregoing

reasons, we find that, despite their title and the bul-

letin of September 29, 1964, the process supervisors

do not possess and exercise actual supervisory duties

and authority and therefore. are not supervisors who

share the power of management. At most the process

supervisors are leadmen or the kind of minor super-

visors that Coggress did not intend to.exclude from

12In several cases the failure to reclassify aay be attributable to the fact

that the stillmari or engineer worked alone without assistance. But in

other cases where no change was made, the stillman or engineer had

one or more operator assistants. This was true, for example, in the com-

pound house, the sulfurized dipentene plant, and the BOT plant.

18Mt. Clemens Metal Products Company, 126 NLRB 1297, 1298, enfd. .

as modified 287 F. 2d 790 (C.A. 6); United States Gypsum Company,

119 NLRB 1415, 1417-1418; Pervel Corporation, 119 NLRB 497, 499.

eae

the coverage of the Act.“ Accordingly, we shall include

the. process supervisors in the operating and mainte-

- nance ynit. ae

We find that the following units, excluding from

. each: professional employees; watchmen, guards, and

supervisors as defiried in the Act, are appropriate for

the purposes of collective bargaining within the mean-

ing of Section 9(b) of the Act.

1. All operating and ‘maintenance employees, in-

f ;

cluding process supervisors.

_ * » 2. All office and clerical employees, excluding con-

fidential employees.

DIRECTION OF ELECTIONS

Elections by secret ballot shall be conducted among

the employees in the unit found appropriate, as early

as possible, but not later than 30 days from the date

below. The Regional Director for Region 14 shall

direct and supervise the elections, subject to the

Board’s Rules and Regulations and Statements of

Procedure, Series 8, as amended. Eligible to vote are

those in the unit who were employed during the pay-

roll period immediately preceding the date below, in-

cluding employees who did not work during that period |

M4N.L.R.B. v. Southern Bleachery & Print Works, 257 F. 2d 235, 239°

(C.A. 4). See also Southern Bleachery and Print Works; Inc., 115

NLRB 787, 791-792; Northern Virginia Steel Corp, v. N.L.R.B., 300

F. 2d 168, 171-172-(C.A. 4); N.L.R.B. v. North Carolina Granite Corp.,

201 F. 2d 469°(C.A. 4); N.L.R.B. v. Griggs Euipment, Inc:, 307 F. 2d

| 275, 279 (C.. 5); N.L.R.B. v. Quincy Steel Casting Co., Inc., 200 F. 2d

293, 296 (C.A. 1); Precision Fabricators, Inc. v. N.L.R.B., 204 F. 2d

567, 569 (C.A. 2); N.L.R.B. v. Osbrink, 218 F. 2d 341, 344 (CA,

9), cert. denied 349 U.S, 928. es |

A-29

because they were ill,-on vacation, or temporarily laid

off. Also eligible are employees engaged in an econom-

ic strike which commenced less than 12 months before

_ the election date and who retained their status as

such during the eligibility period and their replace-

ments. Those in the military services of the United

States may vote if they appear in person at the polls.

Ineligible to vote are employees who have quit or

been discharged. for cause since, the designated payroll

period and employees engaged in a strike who have

_ been discharged for cause since the commencement

thereof, and who have not been rehired or reinstated

before the election date, and employees engaged in an

economic strike which commenced more than 12

months before the election date and who have been

_ permanently replaced. :

Those eligible in Case No. 14-RO-4888 shall vote

. whether they desire to be represented for collective-

bargaining purposes by (1) Oil, Chemical and Atomic

Workers International Union, AFL-CIO; or -by. (2)

Independent Oil Workers Union; or by (3) United

Association of Journeymen and Apprentices of the.

Plumbing and Pipefitting Industry of the United

States and Canada, Local 558, AFL-CIO; Sheet Metal

Workers International Association, Local 268, AFL-'

CIO; International Hod Carriers, Building and Com-°

mon Laborers Union of America, Local 338, AFL-CIO

Brotherhood of Painters, Decorators and Paperhang-

ers of America, Local 917, AFL-CIO; Bricklayers,

Masons and Plasterers International Union of Ameri-

ca, Local 8, AFL-CIO; International Brotherhood of

‘ A-30-

Boilermakers, Iron Ship Builders; Blacksmiths, Forg-

ers and Helpers, Local 483, AFL-CIO; International

Union-of Operating Engineers, Local 525, AFL-CIO;

International Association of Heat and Frost Insula- .

tors and Asbestos Workers, Local 56, AFL-CIO; In-

ternational Brotherhood of Electrical Workers, Local . 2

o

649, AFL-CIO; United Brotherhood of Carpenters

and Joiners, Carpenters District Council of. Madison

County and Vicinity, Illinois, AFL-CIO; International

Asséciation of Machinists, District No. 9, AFL-CIO;

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of ee Local 525,

Jointly; or by (4) none.

Those eligible,in Case No. 14- RC-4889 shall vote

- whether they desire to be represented by (1) Oil,

Chemical and Atomic Workers International Union,

AFL-CIO, or by (2) Independent Oil Workers _—

Local No. 15, or by@3) neither.

Dated, Washington, D. C. August 10, 1965

/s/ Frank W. McCulloch,

' Chairman

/8/ John H. Fanning, Member

/8/ Gerald A. Brown, Member

| /s/ Howard J enkins, Jr., Member

2 is /8/ Sam Zagoria, Member

NATIONAL LABOR

RELATIONS BOARD

- (SEAL)

APPENDIX A

AMERICAN OIL COMPANY

Wood River Refinery P. O. Box 182

Wood River, Illinois 62095

‘BULLETIN

_ MANUFACTURING DEPARTMENT:

J. A. NORGAARD, Manager

R. A. JACK, Assistant Manager

In re: Stillmen, Treaters, Pumpers, Engineers on No.

5 P.S., No. 2 FCU, Ultraformer, Central

Pump House, Poly Plant, Alky Plant, Boiler

Room, Detergent Additives Plant, Sulfurizing

Plant, and Asphalt Plant.

The subject employees have had and have exercised

many of the duties and responsibilities hereinafter

set forth. The full extent of their authority has- not

been established or clearly’ stated by the Refinery

- Manager. In order to ensure that all employees com-

pletely understand the extent of the authority, duties

and responsibilities of the subject employees, the fol-

: lowing written delegation is being promulgated.

Effective immediately, the incumbents in the above-

named positions are classified as Process Supervisors.

They have and shall have and exercise the following

| authority, duties, and i responsibilities

1. Responsibility to direct the work of the employees

on his shift.and by the use of independent judg-

ment and discretion to determine which work shall

be done and how, when, and by which employees

A-82

it shall be done in starting up, shutting down,

operating, and controlling of the unit or facility

and in so doing to make work assignments and to

issue orders and instructions to such employees in

behalf of. the Company with which wound are re-

quired to comply.

. To supervise, observe, inspect, and evaluate the

work and conduct of the employees on his shift

and to make proficiency and other reports con-

cerning such employees and to make recommenda-

tions for increases, advancements, etc., based

thereon which shall be given particular consideta-

tion and weight. 3 3

3. To recommend effectively which employees shall

work on his shift.

- To have immediate and direct charge of the unit

or facility to which assigned. in respect to access

thereto by the employees on his shift and all other

employees.-

. To grant permission to employees. on his aire to

leave or absent themselves from the unit or facility

and from their usual or regularly assigned areas |

or places of work.

. To entertain and adjust grievances and complaints

_ of the employees on his shift which arise during —

such shift and which conéern working conditions

and relations with other ‘employees and with the

Company and: otherwise to provide for and to

maintain the orderly, harmonious, and efficient

working together of such employees in the accom-

A-33

_ | plishment of the work to be done.

7. To administer appropriate discipline in accordance

. with prescribed procedures: .

This bulletin is published for the purpose of clarifying

and establishing the position and Supervisory status

of the subject employees who in addition to the fore-

going shall continue to have and exercise the author-

ity, duties, and responsibilities heretofore established. .

| J. A. Norgaard

Wood River, Illinois —

September 29, 1964 ~

A-34

APPENDIX E

Board’s Order Denying Petition for Reconsideration

_ UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

| RELATIONS BOARD

Cases Nos. 14-RC-4888 and 14-RC-4889

—

AMERICAN OIL COMPANY, Employer -

and

OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION, AFL-CIO, Petitioner

ORDER DENYING PETITION

On August 10, 1965, the Board issued a Decision.

and Direction of Elections' in the above-entitled pro-

ceeding, finding two separate units of the Employer’s

employees appropriate for purposes of collective bar-

gaining and directing separate elections therein. In

its Decision, the Board found that process supervisors

are not supervisors within the meaning of the Act,

and included them in the unit of operating and main-

tenance employees, Case No. 14-RC-4888. |

Thereafter, on August 23, 1965, the Employer filed |

a petition for reconsideration of the Board’s findings —

with respect to process supervisors, and requested

that the election in Case No. 14-RC-4888 be’ stayed

pending reconsideration and redetermination ; that if,

1154 NLRB No. 27.

A-35

after reconsideration, the Board is still of the same

; Opinion, the record be reopened to take additional

evidence and testimony concerning the exercise of } gu-

pervisory authority by process supervisors.

The Board having duly considered the matter,

IT IS HEREBY ORDERED that the Employer’s

petition be, and it hereby is, denied as it contains

nothing not previously considered by the Board.

Dated, Washington, D. C., September 3, 1965

By direction of the Board: .

—/3/ George A. Leet :

_ Associate Executive Secretary

A-36

APPENDIX F

Board’s sian Decision and :

Certification of ‘Repsecentatives |

* ‘Weed River, I.

UNITED STATES OF AMERICA | e

BEFORE THE N&TIONAL LABOR

RELATIONS BOARD

AMERICAN OIL COMPANY, Employer

; _ and ;

_ OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION, AFL-CIO, Petitioner

SUPPLEMENTAL DECISION. AND

CERTIFICATIONS OF REPRESENTATIVES

Pursuant to a Decision and Direction of Elections

issued by the National Labor Relations Board August

10, 1965,’ elections by secret ballot were conducted

on September 2, 1965, under the direction and: super-

vision of the , Regional Director for Region 14 among

. ' the employees in two units. After the elections, the .

parties were furnished with tallies of ballots.

: i Case No. 14-RC-4888, of approximately 520

eligible: voters, 456 cast valid ballots, of which 279

were for Oil, Chemical and Atomic Workers Interna-.

tional Union, AFL-CIO, 127 were for Independent Oil

Workers Union, 35 ware for United Association of.

1 American Oil Company, 154 NLRB’No. 27.

A-37

J ourneymen and Apprentices of the Plumbing and

Pipefitting Industry of the United States and Canada,

Local 553, AFL-CIO, et al., and 15 were — the

participating labor organizations,

. _In Case No. 14-RC-4889, of approximately 37 eli-’

gible. voters, 32 cast valid ballots, of which 4 were for

Oil, Chemical ‘and Atomic Workers International

Union, AFL-CIO, 26 were for Independent Oil Work-

ers Union, Local No. 15, and 2 were against the ©

participating labor organizations. ‘

' Thereafter, Independent Oil Workers Union filed

objections to conduct affecting the results of the elec-

tion in Case No. 14-RC-4888, and the Employer filed

objections to conduct affecting the results of the elec-

tions in Cases Nos. 14-RC-4888 and 14-RC-4889.

— accordance with the Board’s Rules and Regula-

- tions, ‘the Regional Director conducted an investiga-

” tion and on November 4, 1965, issued. and duly served

upon the parties his Report on Objections and Recom-

mendation to Overrule and Issue Certification of

Representative, in which he recommended that all the

objections be overruled and that the Board issue a

Certification of Representative in each case. The Em-

ployer filed timely exceptions to the report.

The Board. has considered the Regional Director’s

Report, the exceptions.thereto, and the entire record »

in these cases, and hereby adopts the Regional Direc-’

tor’s findings and recommendations as —r

herein. eo

ome Employer’s Exception No. 1 requests the Board :

A-38 .

~_were in fact timely filed because they were mailed in

proper tithe to the Regional offices that had been

- moved without-notification to the Employer’s counsel.

to hold that the Employer’s rng eer late,

’ The Regional Director “mindful of the possible con-

fusion caused by the change of address of the Four-

teenth Regional Office in the midst of these proceed-

ings . ... considered the Employer’s objections on their

serite. ” It is obvious that the Regional Director con-

sidered the objections as having been _ filed. So

do we.

In its Exception II, paragraphs 1, 4, 6, 7, and 8, . -

the Employer objects to the conduct of the election in

Case No. 14-RC-4888 in that Board agents did not

permit the Employer’s observers to challenge the

ballots of individuals classified as process supervisors.

It contends that these individuals were supervisors

within the meaning of the National Labor Relations

Act, as amended, and hence ineligible to vote and,

. further, that the participation and voting in the elec-

tion of persons known to the employees to be super-

visors and some of: whom were known to favor the

Petitioner destroyed the laboratory conditions essen-

. tial to a valid election.

. We find | no merit in the contention that Board

: agents improperly refused to permit the Employer to

challenge the voting eligibility of process supervisors |

who the Board had found in its Decision and Direction

of. Elections were not supervisors and were therefore

eligible to vote. The Board has said that parties to

-an election do not have an indiscriminate right to

FF SERED AEP VND TR ESN ARRAN PLD NSP PIII, SEEMS LIOR PINEAL PLA SAMI ROS REN, APE PEO RE APES EERSTE LL LOO WEE AAGIN EST PEGE IG

A389

challenge, particularly ‘when the issues attempted to .

be raised by the challenger have already been decided

by the Board in its Decision and Direction’ of Elec-.

tions.’ .

Further, as the Board had found that process om

visors were not statutory representatives of manage-

ment, the Employer was not responsible for their

conduct, and employees could not have been misled

into believing that they were acting for or on behalf

of management.® |

Exception No. II, paragraph 2, ean we with the

Regional Director’s statement in the Report on Objec-

tions that a separate eligibility list which contained

the names of the 46 process supervisors was approved

by the.parties at a preelection conference. The Em- |

ployer states that it did not approve such list or agree

to the voting eligibility of the process supervisors on

. _ the list. We have assumed that the Employer, in sub-

mitting the separate list of process supervisors, did

not agree to the voting eligibility of those listed. Ac-

cordingly, we’ find no prejudice resulting to the Em-

ployer by the statement in ‘the Report. ©

In Exception II, paragraph 3, the Employer wee

tions the Regional Director’s statement in the Report .

on Objections that.a record of the attempted chal-

_, lenges was made during the election. As we have

2Farmers Union Creamery Association; "122 NLRB 151, 152; Cooper

Supply Company, 120 NLRB 1023, 1024; fiat Furniture "Products

Co., 102 NLRB 1241.

_ 8Cf. Montgomery Ward & Co., Incorporated, 115 NLRB 645, 647, enfd.

242 F. 2d 497 (C.A. 2); Hy Plains Dressed Beef, Inc., 146 NLRB 1253,

1254.

9 OEY EMER ITT LIER PE IIE IN CERISE TN MEN ORE OOO PIE BEG OE YP ERLE LEGA EI

. . Bs ’ .

A-40

found that.the Board agent properly refused to enter-

tain the challenges to the votes of process supervisors,

whether the agent recorded the. attempted challenges,

was not. prejiidicial to the Employer.

In Exception No. Il, paragraph 5, the Employer

contends that changed facts and circumstances from

December 18, 1964, to the time of the election in

September 1965, establishes that the process supervi-

sors were ‘statutory supervisors at the time of. the

election.

Specifically, it alleges i in paragraph 5(a) that proc-.

ess supervisors Feldman, Curry, Wadsworth, and Cole

worked as shift foremen on the day of the electiori and

‘have worked a large part of their time in that capac- .

ity. The Employer relies on the affidavits of the four.

named individuals, which attest that they were em-

ployed as shift foremen on election day, and on the

affidavits of three General Foremen, Sisk, McCarthy,

and Ullman, which recount days on which the four

men: worked in the absence of shift foremen. .

, At the original hearing, the Employer’s snail

stated the Employer's position as to relief shift fore-

men, a position with which other counsel were in

agreement. It was that the work of ‘relief shift fore-

men as “irregular part-time semi-occasionally in a

supervisory position or in a. position of one who is a

supervisor would not establish their supervisory status

so as to exclude them from the unit.” Superintendent.

- Gifford’s testimony was to the effect that Cole and

Curry, who worked at times as relief shift foremen,

normally worked as process supervisors. At the hear-

: ~ Ss TT DN ase eT ENT ee me Drei e

PRBEInreentee me gs Fn Se ree mecyamtsrennR te ot ore eR IRI ct RR RMSE a i ha EO i

“ —.. ‘ : . | ™ é

A-41

_ ing, the Employer did not introduce evidence showing

the exact number of days, shifts, or hours the process

’ supervisors worked 4s relief shift foremen. There is

no contention in the affidavits that the evidence now

offered as to the amount of time spent in such relief

work differs from the part-time relief work performed

at the time of the hearing. As the Employer has made

no showing why evidence bearing on the extent of

relief shift foremen’s substitution could not have been -

offered at the hearing by the exercise of due diligence,

and as there is no showing that the part-time nature-

of the work has changed since the hearing, we find.

his exception to be without merit.‘

‘In Exception II, paragraph 5(b), the Employer as-

serts that the number of. shift foremen in the Light

Oils Division has been reduced since the hearing and

the process supervisors’ duties and responsibility have

increased so that the individuals performing the in-

creased duties at the time of election meet the statu-

~~ tory..definition of supervisor. _It-relies on-the affidavits

of Superintendent G. L. Gifford, shjft foremen W. A.

Miller and Van Fulkerson, general’foreman Hillis H.

Sisk, assistant general foreman Frank O. Suessdorf,

and process supervisors Alvin Hovenkemp or (Helm-_

kamp), ‘A. E. Tuttle, Floyd E. Galliher, and J ohn

Closson, Jr. a | |

We reject the proffered evidence in G. L. Gifford’s .

affidavit to the extent that it reaffirms testimony

which he gave at the hearing. Such proffer seeks to

relitigate the very issue decided on evidence previous-

4 Missouri Transit Company, 116 NLRB 587, 589-590; Schott, Metal Pro-

ducts Company, 128 NLRB 415. *

A-42,

ly considered. We will not reconsider it now. Nor will

we consider that part of Gifford’s affidavit which _

seeks to elaborate on the earlier testimony with evi- ©

dence which could have been introduced at the hear-

ing.® eee rns

Gifford’s affidavit states that the number of shift

féremen in the Light Oils Division has been-reduced

- from eight to five, but does not show any change in

process supervisors’ duties as a result of the reduction.

Further, the facts alleged concerning work perfor-

mance review and pay increases granted to process

supervisors since January 1965 are not sufficient to

alter our earlier Decision. _ 4

Shift foremen ‘Miller and Fulkerson assert that’ due

_ to the reduction of shift foremen, their area of respon-

sibility broadened in March 1965 to cover all units in

the Light Oils Division and that they noticed and wit-

nessed that_the responsibility and authority of process

supervisors necessarily increased. These assertions

lack the specificity to prove circumstances that would

alter our previous Decision.

_+ - The affidavits of foremen Sisk and Suessdorf state

that in March’ 1965, and continuing through August .

1965, shift foremen in the Crude-Cracking Depart-

ment of the Light Oils Division decreased from four

to one but with an additional . acting shift foreman

- gerving from time to time. It appears from the two

‘affidavits that the reduction may be temporary caused

_ by two of the previous shift foremen receiving special

5See footnote 4.

A-43

_ assignments, and’the retirement of a third. The two

-men then enumerate process supervisor duties but do

not indicate that this represents any change in duties

from.the period covered by the hearing.

The affidavits of process supervisors Helmkamp

and Tuttle show that they work in the Chemicals and -

_ Heavy Products Division. As the Employer’s excep-

. tions assert only changed circumstances in the Light

Oils Division, we do not regard these affidavits as

supporting the Employer’s argument.“

' The affidavits of process supervisors. Galliher and

Closson do not raise substantial and material issues.

' Galliher testified at the hearing respecting the duties

of process supervisors. His affidavit is concerned

largely with the same evidence adduced at the hearing.

To the extent that it seeks to’enlarge on evidence of

process supervisors’ duties during the same period of

time covered by the hearing, we reject it. The one

instance mentioned of initiating safety meetings, as

occurring after the election, would not alter our con-

clusion.

Similarly, Closson’s affidavit seeks to introduce evi-

dence_respecting “the period covered by the hearing.

~The mention of ‘one instance, occurring in January

1965, on conducting a training program, would not

serve to change the result reached in our Decision.

Exception II, paragraph 5(c) asserts that the Re.

_ gional Director erred in not considering and not mak-

‘ - 6Moreover, we observe that Helmkamp’s and Tuttle’s affidavits allege no

new facts or circumstance occurring since the Hearing that would war-.

_ rant a departure from our conclusions in the Decision.

: A-44

ing findings respecting an-oral statement of J. A.

/ Norgaard, Refinery Manager, allegedly made on De-

cember 22, 1964, to the -process supervisors. .The

~ Employer offers a transcript of Norgaard’s oral state-

ment which purports to explain to the process super-

visors their duties as supervisors. The preelection ©

hearing in this case ‘was held on 17 days, including

January 6, 1965. Thereafter, the parties filed: briefs

-*. and the Employer filed a ‘Motion for Reconsideration.

At the hearing, the Employer’s counsel ‘specifically |

asked Superintendent Gifford to relate what was said

e at the December 22 meetings as to thd duties, respon-

sibilities, and authority of process supervisors. Gifford

gave a brief account. But at no time at the hearing

or thereafter did the Employer bring to the Board’s

_ attention Norgaard’s verbatim remarks of December

- 22: 1964. There is no showing why the. Employer did

~~ not seek to introduce Norgaard’s full statement at the

hearing. We will not at this stage permit relitigation

of \the “employee” status of the process supervisors ~~

on evidence that was previously available to the Em-

ployer at the preelection hearing.’

We find nothing in. the affidavits which would war-

rant reversal of the Regional Director’s recommenda-

F _ tions respecting Objections 5(a) and (b).

_ 1See Hagen Manufacturing Company, Inc., 100 NLRB 1821, 1822. More-

over, we observe, that Norgaard’s oral statement to. the process super-

visors, like his-written statement of September 29, 1964, on which the

Employer principally relied at the representation hearing, could not

=o actual supervisory authority where the performance of

LISS ws

duties otherwise established the process supervisors’

right to be included in the unit and to vote. N.L.R.B. v. Southern -

Bleachery & Print Works, Inc., 257 F. 2d 235, 239 _ 4), certiorari

denied, 359 U.S. gil. ;

ae se

RAD OPS Nees av enter OER IRE a setae

PARR i SS TM PEARED

A-45

In its Exception No. III, directed to both cases, the — -

Employer contends that the Regional Director erred

in his recommendation to overrule its Objections nos. —

- 4 and-5(c). It contends that employees were confused _-

and misled by the proponents of Petitioner acting for.

Petitioner in the name and under the guise of defunct = ©

_ Local 115, formerly an affiliate of the Independent Oil -

Workers Union. The Regional Director concluded

frém his investigation that there was no merit in

' these objections. We agree.

As the Employer’s exceptions do not raise subetan-

.tial and material issues with respect to the conduct

. and results of the election, we shall, in accordance

with the recommendation of the Regional Director,

issue appropriate Certifications of Representatives. -

f

CERTIFICATIONS OF REPRESENTATIVES

IT IS HEREBY CERTIFIED that Oil, Chemical

and Atomic Workers International Union,. AFL-CIO,

has been selected by a majority of the employees in

the unit defined in Case No. 14-RC-4888, and that,

pursuant to Section 9(a) of the National Labor Rela-.

tions Act, as amended, the said labor organization is

the exclusive representative of all such employees for

the purposes of collective bargaining with respect to

_rates of pay, wages, hours of employment, and other

conditions of employment. ’

. ITIS. HEREBY CERTIFIED that Independent Oil —

' Workers Union, Local No. 15, has been selected by a

majority of the employees in the unit defined in Case

‘No. 14-RC-4889, and that, pursuant to Section 9(a)

‘9 ad

AAG

of the National Labor Relations Act, as amended, the

said labor organization is the exclusive representative

‘of all such employees for. the purposes of collective

bargaining with respect to rates of pay, wages, hours ~

- of employment, and other conditions of employment.

: _ Dated, Washington, D. C. January 28, 1966.

/3/ Frank W. McCulloch,

Chairman

/s/- John H. ‘Fanning, Member

/s/ Gerald A. Brown, Member

/s/ Howard Jenkins, Jr:, Member

/s/ Sam Zagoria, Member

NATIONAL LABOR |

RELATIONS BOARD -

(SEAL) | s,

A-A7

_ APPENDIX G

Board’. Decision and Order

on -

160 NLRB No. 46 D966

Wood River, Ill. .

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD | ;

Cases Nos. 14-CA-3886, 14-CA-3919 and —

-14-CA-89192

AMERICAN OIL COMPAN Y

and

LOCAL 7-776, OIL, CHEMICAL AND ATOMIC

WORKERS INTERNATIONAL UNION, AFL-CIO

DECISION AND ORDER

On May 31, 1966, Trial Examiner Thomas A. Ricci

‘issued his Decision in the above-entitled proceedings,

finding that Respondent had engaged in and was ~~

engaging in certain unfair labor practices alleged in

the complaint and recommending that it cease and

.desist therefrom and take certain affirmative action,

as set forth in the attached Trial Examiner’s Decision.

Thereafter, Respondent filed exceptions to the Deci-

sion.

Pursuant to the ; provisions of Section 3(b) of the

National Labor Relations Act, as amended, the Na-

A-48

tional Labor Relations Board has delegated its powers e

in connection with this case to a three-member panel..

_ The Board has reviewed the rulings made by the

Trial Examiner at the hearing and finds that no pre-

. judicial error was committed. The rulings are hereby

affirmed. The Board. has considered the Trial Ex-

aminer’s Decision, the exceptions, “and the entire -

-.reeord in these cases, and hereby adopts the findings,

conclusions, and recommendations of the Trial: Ex-

-aminer.

ad

. ORDER |

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the: National Labor Rela- .

tions Board hereby adopts as its Order the Recom-

mended Order of the Trial Examiner, and orders that

‘Respondent, American Oil Company, Wood River, Il-

_linois, its officers, agents, successors, and assigns,

shall take the action set forth in the Trial Examiner’s

‘Recommended Order.

Dated, Washington, D. C. August 16, 1966

/s/ Frank W. McCulloch,

‘Chairman

/s/ Howard Jenkins, Jr., Member

-/s/ Sam Zagoria, Member

NATIONAL LABOR

RELATIONS BOARD __.

(SEAL)

| A 7

160 NLRB No. 46 TXD-339-66

we a Wood River, Ill.

UNITED STATES.OF AMERICA

BEFORE THE NATIONAL LABOR

| | RELATIONS BOARD

; DIVISION OF TRIAL EXAMINERS

ne WASHINGTON, D. C.

Cases Nos. 14-CA-3886, 14-CA-3919 and

| -14-CA-3919-2

’. AMERICAN OIL COMPANY ao

aor and

LOCAL 7-776, OIL, CHEMICAL AND ATOMIC

WORKERS INTERNATIONAL UNION, AFL-CIO’

and ray.

THOMAS G. CROWDER, An Individual

: =

Philip Dexter, Esq., for the General Counsel.

Donald L. Hastings, Esq., and Sam L. Erwin, Esq.,

of Chicago, Ill., and Karl H. Mueller, E'sq., of

Fort Worth, Tex., for the Respondent.

John R. Tadlock, Esq., of Denver, Colo.,_

| for the Charging Union.

Before: Thomas A: Ricci, Trial Examiner. |

TRIAL EXAMINER’S DECISION |

- Statement of the Case

A hearing in the above-entitled proceeding was held -

on April 18, 19, and 20, 1966, at St. Louis, Missouri, |

A-50

_on amended complaint of the General Counsel against .

‘" American Oil Company, herein called the Respondent. -

or the Company. The issue litigated is whether the

Respondent violated Section 8(a)(5) of the Act.’ A

brief ‘was filed after the close of the hearing by the

- Respondent. |

Upon the entire record, and from my observation of” -

the witnesses, I make the following:

Findings of Fact

_ I. The business of the Company

The Respondent, a Maryland corporation, has its

‘principal office and place of business in Chicago,

Illinois, is engaged, among other things, in the manu-

facture and nonretail sale of gasoline and other oil

products, and operates in many locations, one of which

is its Wood River, Illinois, refinery, the only location

involved in this: proceeding. In the normal course of

operations the Respondent: annually sells and ships

.from this one refinery materials valued in excess of

" * $50,000 directly to out-of-State points. I find that the

Respondent is engaged in commerce within the mean-

ing of the Act and that it will effectuate the policies

of the Act to exercise jurisdiction. herein.

II. The labor organization involved

The evidence shows, and I find, that Oil, Chemical

. 1The hearing started as a consolidated proceeding, with a complaint in

Case No. 14-CA.3541, also against the Respondent, joined with this one

for a single hearing. During the hearing the General Counsel announced

that a settlement had been arranged in Case No. 14-CA-3541, and

moved for severance. The motion was granted, and the hearing in Case

No. 14-CA-3541 was continued indefinitely pending compliance with '

the settlement agreement. :

A-51

and Atomic Workers. International Union, AFL-CIO,

and: its Local 7-776, are labor organizations within

the meaning of the Act. rs )

| III. The unfair labor practices

The complaint in this case, alleging an illegal re-

fusal to bargain, was issued after, and essentially

_ rests upon, a fully litigated representation proceed-

ing (Case No. 14-RC-4888, 4889) which terminated.

in the certification of the International Union on

January 28, 1966, as the statutory exclusive represen-

tative of the Respondent’s employees in a certain

appropriate bargaining unit.’ After certification of

the Union, on January 31 the Union demanded that

the Respondent recognize it and bargain; by letter

dated February 2, 1966, the Respondent replied that

because it deemed the Board’s certification invalid .

“in law and ‘in fact” it refused to bargain. The Com-

' pany held firm to this adamant position at the hearing

on complaint. More précisely, the Respondent contends

that the certificate is invalid because the bargaining

unit. includes a’ category .of employees called process -

_ Supervisors, whom it argyes should be excluded as

Supervisors within the meaning of the Act.

In Case No. 14-RC-4888, pursuant to petition duly

filed, a regular hearing was held during which tes-

timony was received for 17 hearing days, and the

* The bargaining unit set out in the Board’s certification, and which I find

is now appropriate for purposes of collective bargaining is:

' All operating and maintenance employees of the Respondent at

its Wood River, Illinois, oil refinery, including process supervisors,

but excluding office and clerical employees, professional employees,

watchmen, guards and supervisors as defined in the Act.

A-52

principal question litigated was the very one concern-

ing the alleged supervisory status of this category of

employees. In its Decision and Direction of Election,

issued on August 10, 1965, the Board discussed the

question and the related evidence at. length, and found

contrary to the Respondent’s contention.’ An election

was held on September 2, 1965, where a majority of

the valid votes cast was in favor of the Union. The

Respondent thereafter filed objections to the election,

reasserting its earlier argument respecting the process

supervisors, and alleging that the results should be set

aside because those employees were permitted to vote.

The objections were duly investigated by the Regional |

Director, who on November 4 ‘issued his Report in

which he recommended that the objections be over-

ruled. The Respondent then filed Exceptions to the

Regional] Director’s Report, with supporting affidavits

and other documents. On January 28, 1966, the Board

issued a Supplemental Decision and ‘Certification of

Representatives (unpublished), overruling the objec- —

tions and certifying the Union as statutory majority

representative in the unit originally found appropri-

ate and again including the process supervisors. In

again considering the merits of the Respondent’s fun- —

damental position, the Board. evaluated the Director’s

Report and the documentary material submitted by

- the Respondent, including factual statements asserted-

ly reflecting changed fact and circumstances up to

September of 1965. Upon analysis of the total evidence

then before it, the Board reaffirmed its previous con-

clusion that the process supervisors are not supervi-

8154 NLRB No. 27. |

£)

A-53

sors as deiined in the “ect and therefore appropriately

included in the bargaining unit.

It is clear that the Respondent’s purpose in refusing

to bargain on request after issuance of the certifica-

tion is to test the correctness of the Board’s unit

determination respecting the process supervisors by

court review. In justification of his determination to

relitigate the entire issue at the hearing before the

Trial Examiner, counsel for the Respondent stated:

“. .. representation cases are nonadversary in charac-

ter and are investigatory in character. As we under-

stand it, being nonadversary, you G:i.'t litigate in an

investigation as you do in a complaint case .. ; it

hasn’t been litigated as we see it.” There was no

assertion of newly discovered evidence on the main 7

question or of changed conditions following the —

Board’s certification.

The Respondent’s offer, once again, to prove the al-

leged supervisory status of the disputed employees

and to relitigate the entire question, was rejected by

the Trial Examiner. The law is clear. In a complaint

proceeding, :2 Respondent may not raise issues that

have been considered, litigated, and decided in the

representation proceeding. In the interests of finality

: of ajudication the Board has consistently refused to

reconsider, in subsequent unfair labor practice cases

alleging a refusal to bargain, questions which have

~ been disposed of in a prior representation proceeding.‘

The Board having certified the Union on January

® Mountain State Telephone and Telegraph Co., 186 NLRB 1612; Emple

Knitting Mills, 151 NLRB No. 92.

A-54

28, 1966, as the exclusive representative of the em-

ployees, the validity of the certification shortly there-

after, as a matter of law, is conclusively presumed.°

I find that at all times material herein, and more par-

ticularly since January 28, 1966, the Union has been

_ the representative for the purposes of collective bar-'

gaining of a majority of the employees in the appro-

priate unit, arid, the virtue of Section 9(a) of the Act, — -

~~ has been and is now the exclusive representative of

all the employees in the said unit for the purposes of ©

collective bargaining in respect to rates of pay, wages,

hours of employment, and other conditions of em- -/

ployment. -

Accordingly; I find that by refusing to bargain with

the Union on February 1, 1966, and continuously

_ thereafter, the Respondent has violated Section 8(a)

—- (5) and (1) of the Act. The appropriate remedial

order will require that on request the Respondent

bargain with the Union, as to all the employees in-

cluded in the bargaining unit, with respect to all of

their conditions of employment, an obligation as broad

as the full scope of the statutory duty.

There is a further paragraph’ in the complaint,

alleging that at the end of February, the very month

_ when the Respondent in the broadest and most un-

equivocal terms possible rejected all claim to recogni-

tion by the Union, it also violated Section 8(a) (5) of

the Act when, without consulting the Union in ad-

- vance, it changed work assignments in a very minor |

_ respect, from certain pipefitters to certain barge loaa-

5 Ray Brooks v. N.L.R.B., 348 U.S. 96.

EAA Oe PE MDE LEE BLL CNEL LE LIA YUN PRR ONE TATE. YR ORIOLE NE PED, SETA NI TLE 0 TPR TEE BOS SERIE FLY NI LE

* A-55

ers. Whereas for a long time the work of connecting

and disconnecting hoses, and of operating hoists, all

in the loading of barges with refinery products, had

been performed by pipefitters as an. incidental and

very minor aspect of their regular maintenance duties, —

early in March, for reasons of safety to personnel and

protection of equipment, the Company assigried: this _

work on occasion to the regular barge loaders. Both

‘groups of employees are included in the single bar-

gaining unit. An assertion by the General Counsel at _

the hearing that some of this work was also assigned —

_to employees of a company other than the: Respondent; .

is totally unsupported by any probative evidence. 7

The Respondent’s indifference to any possible union ~

interest in this matter is not denied, and obviously

reflects no more than adherence to the consistent: posi-

tion that it was not obligated to deal with the Union

at all. No doubt there were other instances, in its

_ total continuing operations of the refinery with over

- 500 operating and maintenance employees, where the

+ Company took unilateral action affecting the terms:

and conditions of employment of other individual

workmen. The Respondent standing firm in the re-

fusal to extend any recognition to the Union, despite

the present duty imposed by the statute, it follows

that any act in which a term or condition of employ-

ment was altered unilaterally was equally violative of

the Act. No employees were discharged because of. this

‘matter and it was not shown any earned less in wages

asaresult. ° : )

I think no useful purpose would be served by re-

A-56>

porting in detail here the precise instances were

changes of such assignments occurred, the conversa-

tions between the pipefitters and management repre-

sentatives on the’ subject at the time, and the Com-

pany’s refusal to permit certain employees to grieve |

over the question as official representatives of the

Union. At the.close of the Government’s case-in-chief,+

the General Counsel stated that the sole remedy

sought in consequence of this particular violation of

Section 8(a)(5) is that the Company be ordered to

- bargain with the Union about its desire to change such

/ assignments in the future. He said “the General

Counsel does not request that the Company be ordered

to reinstate its prior practices . . it is not apparent -

that indeed any pipefitters have suffered financial loss _

. That.is a matter, we hope, as to which the Com-

aie ‘ultimately will bargain.” When the order recom-'

mended below is enforced, the Company will bargain

about changes in: work assignments of this kind, as”

well as all others.

Iv. The effect of the unfair labor :

practices upon commerce

_ The activities of the Respondent set forth in section

III, above, occurring in connection with its operations

as described in section I, above, have a close, inimate,

and substantial relation to trade, traffic, and com-

merce among the several States, and tend to lead to

labor disputes burdening and obstructing the free flow

of commerce. :

bad ——- bi aint elit pie ot MP ‘ ‘ . PR IAIN Son brit

. A-57

_V. The remedy

_ Having found that the Respondent has engaged in

certain unfair labor practices, I shall recommend that

it be, ordered to cease and desist therefrom and take

certain affirmative action designed to effectuate the

policies of the Act. Accordingly, the Respondent will

be ordered to bargain collectively with the Union in

the unit found appropriate, and, if an understanding

is reached, embody such understanding in a signed —

agreement. ;

Upon the basis of the foregoing findings of fact,

and upon the record in its entirety, I make the fol-

lowing: = er ; ,

Conclusions of Law

_. 1. The Respondent is an employer within the mean-

ing of Section 2(2) of the Act.

-2. The Union is a labor organization within the

meaning of Section 2(5) of the Act. —

8. All operating and-maintenance employees of thé

Respondent at.its Wood River, Illinois, oil refinery, in-

cluding process supervisors, but excluding office and

clerical employees, professional employees, watchmen,

guards and supervisors as defined in the Act, con-.

stute a unit appropriate for the purposes of: collective

_ bargaining within the meaning of Section 9(b) of the

Act. ‘ ems

4. Oil, Chemical and Atomic Workers International

Union, AFL-CIO, was certified on January 28, 1966,

and at all times thereafter has been the duly certified

‘ .

*

‘ A

; - ’ RP NO LANES ied yr oe

a a ne eee ra

A-58 :

| _ collective-bargaining Sniniiits of Respondent’s

employees in the appropriate unit, within the meaning

of Section 9(a) of the Act.

5. By refusing ‘on and after February 1 1, ‘1966, to

meet with the above-named labor organization for 2

purposes of collective bargaining the Respondent has

engaged im and is engaging in unfair labor practices

within the mew of Section 8(a) (5) and (1) of the }

Act.

6. The aforesaid unfair labor — are ‘unfair

labor practices within the meaning of Section 2(6)

and 7 of the Act.

RECOMMENDED ORDER |

Upon the foregoing findings of fact and conclusions

of law, and upon the entire record in the case, I recom-

mend that American Oil Company, Wood River, Il-

linois, its officers, agents, successors, and -assigns

shall: -

1. Cease ‘ona desist from:

(a) Refusing to bargain collectively with Oil,

Chemical and Atomic Workers International Union,

AFL-CIO, as the-exclusive representative of all em-

ployees in the bargaining unit.

(b) In any like or related manner interfering |

. with, restraining or coercing its employees in the ex-

ercise of the rights to self-organization, to form, join,

or assist any labor organization, to bargain collective-

~ ly through representatives of their own choosing and

to engagé in other concerted activities for the purpose

‘ of collective bargaining or other mutual aid or protec-

4

GAMO RAE EG LILY: APNOEA MUERTE ODI, ERE Ime 1 Ma SPE

DS ad

A-59

tion, or to refrain from any and all such activities;

except to the extent that such right’ to be affected by

an agreement requiring membership ‘in a labor organ-

ization as a condition of employment as authorized

In Section 8(a)(3) of the Act, as modified by the

Labor Management Reporting and Disclosure Act of

1959. | Saye ns.

2. Take the. following affirmative action which I

find will effectuate the policies of the Act: -

(a) Upon request bargain collectively with Oil

Chemical and Atomic Workers International Union,

AFL-CIO, as the exclusive bargaining representative

of all employees. in the appropriate unit described

above, with respect to rates of pay, wages, hours of

employment, and other terms and conditions of em-

: ployment, and if an understanding is reached, embody

‘a such understanding in a signed agreement."

, (b) Post at its place of business in Wood River,

+ Illinois, copies of the notice attached hereto marked

“Appendix.” Copies of said notice, to be furnished by ©

®The complaint also names as a bargaining agent Local 7-776, OCAW, -

chartered by the International Union in November of 1965, after the .

election, as bargaining agent of the employees involved. Whether, in its

_ blanket ‘refusal to recognize the certified Union, the Respondent in this

instance also violated the statute in its refusal to deal with the chartered

local, is beside the true issue of thé case. It is only the validity of the .

certificate, naming only the International as the employees’ choice, that _

is in litigation. The Respondent will, of course, bargain with the chosen

spokesmen of the certified Union:

In the event that this Recommended Order be adopted by the Board,

the words “A DECISION AND ORDER” shall be: substituted for the

; | words “A RECOMMENDED ORDER OF A TRIAL EXAMINER?” in

‘ the notice. In the further event that the Board’s Order be enforced by

j a decree of a United States Court of Appeals, the. words “A DECREE

OF THE UNITED STATES COURT OF APPEALS ENFORCING

a AN ORDER” shall be substituted for the words “A DECISION AND

a

ORDER.” 7

4

. ° ~~ my

| eee EE AICI SOA ALO ALLEY Ot - u iq

A-60_ .

the Regional Director for the Fourteenth Region, shall

be posted by the Respondent immediately upon receipt

_ thereof, and be maintained by it for 60 consecutive

days thereafter, in conspicuous places, including all.

posted. Reasonable steps shall be taken by Respondent

to insure that said notices are not altered, deface, or -

covered by any other material.

(c) Notify said Regional Director, in writing,

within 20 days from date of receipt of this Decision,

what steps it has taken to. Seiad herewith.

/s/ Thomas A. Ricci

Trial ‘Examiner

Sin the event that this Recomstended Onder be adopted bythe

this provision shall be modified to read: “Notify said Regional Di

a within 10 days from the date of this Order what steps Re-

spondent has taken to comply herewith.”

&

ae

ec

t< a Oe ee ee ee

. after being signed by the Respondent’s representative __

places where notices to employees are customarily —

A-61

| APPENDIX

FORM NLRB-4632 3 XD. 389-66 .

(11-65) - rene ¢

NOTICE TO ALL EMPLOYEES |

PURSUANT TO

THE RECOMMENDED ORDER OF A TRIAL

EXAMINER OF-THE |

NATIONAL LABOR RELATIONS BOARD

and in order to effectuate the policies of the

NATIONAL LABOR RELATIONS ACT

(AS AMENDED)

We hereby notify our employees that:

‘WE WILL NOT refuse to bargain collectively

with OIL, CHEMICAL AND ATOMIC WORK-

ERS INTERNATIONAL UNION, AFL-CIO, as

the exclusive representative of the employees in

the bargaining unit described below:

_ WE WILL NOT in any like or related manner.

. Interfere with, restrain, or coerce our employees

in the exercise of their right to self-organization,

to form, join, or assist any labor organization, to

bargain collectively through representatives of

their own choosing and to engage in other con-

certed activities for the ‘purpose of. collective

bargaining or other mutual aid or protection, or

to refrain from any and all such activities, except

to the extent that such rights may be affected by

an agreement requiring membership in a labor

organization as a condition of employment as au-.

thorized in Section 8(a) (3) of the Act, as modi-,

pub

oe ae fat ear ge eM Y 4

' . % . |

.

.

A-62-

_ fied by the Labor Management. Reporting and

° Disclosure Act of 1959. i.

WE WILL bargain collectively, upon request,

with the Union as the exclusive representative

_ of all our employees in the. bargaining unit de-

scribed below with respect to rates of pay, wages,

_ hours of employment, and other terms and condi-

tions of employment, and if an understanding is

reached embody such ne" in a signed

agreement.

The bargaining unit is:

All operating and maintenance employees of

our Wood River, Illinois, oil refinery, includ-

ing process supervisors, but. excluding office

. and clerical employees, professional employees, —

watchmen, guards, and verre as defined

in the Act.

AMERICAN OIL COMPANY

(Employer)

Dated : . >

_ This Notice must remain posted for 60 consecutive

days from the date of posting, and must.not be altered,

defaced, or covered by any other material. .

If employees have any question concerning this No-___. :

tice or compliance with its provisions, they may com~

municate directly with the Board’s Regional Office,

1040 Boatmen’s Bank Building, 314 North Broadway,

St. Louis, Missouri 63102 (Tel. No. 622-4156).:

' % ,

\isiteaadile Sall ~—s Se wena adie 24 8 POPE I PR SOLD . wpe we OE ARTE RON RU ag? 5 or weve : one. gery ‘et 2 Ryprtmrene 4

A-63

APPENDIX H_.

Pertinent Statutory Provisions

The relevant provisions of the Labor Management

Relations Act of 1947, as amended (61 Stat. 136, 29

U.S.C., 141 et seq.) are as follows: :

_ “TITLE -AMENDMENT OF’ NATIONAL LA-

BOR RELATIONS ACT. oe

“See..101, The: National Labor Relations Act is

” hereby amended to read as follows:” * * * *

“DEFINITIONS =,

“Sec. 2. When used in this Act—” teas

“(3) The term ‘employee’ shall include any em-

ployee, and shall not be-limited to.the employees of a

particular employer, unless the Act explicitly states

otherwise, ard shall include any individual whose

work has ceased as a consequence of, or in connection

_ with, any current labor dispute or because of any

_ unfair labor practice, and who has not obtained any

other regular and substantially equivalent. employ*

ment, but shall. not include any individua] employed.

. 48 an agricultural laborer, or in the domestic service

of any family or person at his home, or any individual

employed by his parent or Spouse, or any individual

having the status of an independent contractor, or

any individual employed 48 @ supervisor, or any in-

dividual employed by an employer subject to the Rail-

way Labor Act, as amended from time to time, or by

any other person who is not an employer as herein

, ‘ anuyen a RDN EN MEARE PARE PR PUT ERIN oth ee aye re ar

ee EE Ce ee ir , .

, , 7 e = .

- A-64

defined.” (Emphasis Added) * * * *

“¢11) The term ‘supervisor’ means any individual

having authority, in the interest of the employer, to

hire, transfer, suspend, lay off, recall, promote, dis-

charge, assign, reward, or discipline other employees, '

or responsibly to direct them, or to adjust their griev-

ances, or effectively to recommend such action, if in

- connection with the foregoing”the exercise of such

authority is not of a merely routine or clerical nature,

but requires the use of independent judgment.” *. oils

“RIGHTS OF EMPLOYEES

“See, 7, Employees shall have the right to self-or-.

ganization, to form, join, or assist labor organizations,

to bargain collectively through representatives of their

own choosing, and to engage in other concerted ac-

tivities for the purpose of collective bargaining or other

-. mutual aid or protection, and shall also have the right

to refrain from any or all-of such activities except

to the etxent that such right may be affected by an

agreement requiring membership in a labor organiza-

tion as a condition of employment as authorized in

section 8(a) (3).” ee . |

“UNFAIR LABOR PRACTICES

“Sec, 8 (a) It shall be an unfair labor practice for an

employer—” * * * .

“(5) to refuse to bargain collectively with the rep-

resentatives of his employees, subject to the provi- ©

sions of section 9(a).” * * * * | :

. A-65

“REPRESENTATIVES AND ELECTIONS

“Sec. 9. (a) Representatives designated or selected for

the purpose of collective bargaining by the majority

of the employees in a unit appropriate for such pur-

poses, shall be the exclusive representatives of all the

employees in such unit for the purposes of. collective

bargaining in respect to rates of pay, wages, hours of

employment, or other conditions of employment :”

ee * & em,

| “(d) Whenever an order of the Board made pur--

suant to section 10(c) is based’ in whole or in part .

upon facts certified following an investigation pur-

suant to subsection (c) of this section and ‘there isa

petition for the enforcement or réview of such order,

such certification and the record of such ‘investigation

shall be included in the transcript of the entire record

required to be filed under section 10(e) or 10 (f), and

thereupon the decree of the court enforcing, modify-

ing, or setting aside in whole or in part the order of

the Board shall be made and entered upon the plead-

ings, testimony, and. proceedings set forth in such

transcript.” * * * *

“PREVENTION OF UNFAIR LABOR PRACTICES

“Sec. 10.(a) The Board is empowered, as hereinafter

provided, to prevent any person from engaging in any

unfair labor practice (listed in section 8) affecting

commerce.” * * * * ©

“(b) Whenever it is charged that any person has

A-66.

engaged in or is éngaging in any such unfair labor

practice; the Board, or any agent or agency designated |

by the Board for such purposes, shall have power to ~ am

issue and cause to be served. upon such person a com-

plaint stating the charges in that respect, and -con-

taining a notice of hearing before the Board or a

member thereof, or before a designated agent or

agency. vy kee * ,

- “(e) The testimony taken by such member, agent,

or agency or the Board shall be reduced to writing and ~

filed with the Board. Thereafter, i in its discretion, the

Board upon notice may take further testimony or

hear argument. If upon the preponderance of the tes-

timony taken the Board shall be of the opinion that

any person named in the complaint has engaged in or |

* is engaging in any such unfair labor practice, then

the Board shall state its findings of fact and shall

issue and cause to be served on-such person an order

requiring such person to cease and desist from such

unfair labor practice, and to take such affirmative —

action including reinstatement.of employees with or

without back pay,.as will effectuate the policies of

this Act: lla Shales

“(e) The Board shall have power to petition any

court of appeals of the United States, or if all the

courts of appeals to which application may be made

are in vacation, any district court of the United

States, within any circuit or district, respectively,

wherein the unfair labor practice in question occurred

or wherein such person. resides or transacts business,

“A-67

for the enforcement of such order and for appropriate

-temporary relief or restraining order, and shall file

in the court the record in the proceedings, as provided

in section 2112 of title 28, United States Code. Upon

the filing of such petition, the court shall causé notice

thereof to be served upon such person, and thereupon

shall have jurisdiction of the proceeding and of the

question determined therein, and shall have power to

grant such temporary relief or restraining order as

it deems just and proper, and to make and enter a

decree enforcing, modifying, and enforcing as so modi-

fied, or setting aside in whole or in part the order of

the Board. No objection that has not been urged be-

fore the Board, its member, agent, or agency, shall be.

considered by the-court, unless the failure or neglect

to urge such objection shall be excused because of

_ extraordinary circumstances. The findings of the.

Board with respect to questions of fact if supported -

by substantial evidence on the record considered as a

whole shall be conclusive. * * * Upon the filing of the

record with it the jurisdiction of the court shall be

exclusive and its judgment and decree shall be final,

except that the same shall ‘be subject to.review by the

_ appropriate United States court of appeals if applica-

tion was made to the district court as. hereinabove

provided, and by the Supreme Court ‘of the United

States upon writ of certiorari or certification as pro-

vided in section 1254 of title 28.”