Shell Petroleum Corp.

National Labor Relations Board - Board Decisions

Aug 28, 1943

52 N.L.R.B. 313 (N.L.R.B. 1943)

In the Matter of SHELL PETROLEUM CORPORATION (NOW SHELL OIL
COMPANY, INCORPORATED) and OIL WORKERS INTERNATIONAL UNION,
LOCAL 367
Case No. R-626
THIRD SUPPLEMENTAL DECISION AND AMENDMENT TO
CERTIFICATION
August 28, 1943
On November 12, 1938, the National Labor Relations Board issued
a Decision, Direction of Election and Certification of Representatives
in the above-entitled proceeding." On January 13, 1939, the Board
issued a Supplemental Decision and Second Direction of Election.2
On February 21, 1939, the Board issued a Second Supplemental De-
cision and Certification of Representatives,3 certifying Oil Workers
International Union, Local No, 367, herein called the Oil Workers,
as the exclusive representative for the purposes of collective bargain-
ing of all hourly paid employees of Shell Petroleum Corporation
(now known as Shell Oil Company, Incorporated) at its Deer Park
Refinery, Houston, Texas, including stillmen, treaters, dock shift fore-
men, boiler house shift foremen, iso-octane shift foremen, stabilizer
shift foremen, laboratory shift foremen, labor subforemen, the assist-
ant instrument foreman, the assistant electrical foreman, the carpen-
try foreman, the painting foremen, the assistant pipe fitter foreman,
the assistant clean-out foreman, the insulator foreman, the assistant
floor foreman, the assistant loading rack foreman, the head dis-,
patcher, the assistant head dispatch Pr, the motor laboratory foreman,
the machinists, including the garage night foreman, and the assistant
machinist foreman, and the employees in the boiler making welding
department, including the boiler maker foreman and the welder fore-
men, but excluding bricklayers, clerical employees, general foremen,
and department heads and their immediate assistants.
Thereafter, on June 28, 1943, the Company filed a motion, now
before us for determination, requesting that the Board reconsider the
Second Supplemental Decision and Certification and amend the cer-
tification by excluding from the bargaining unit thereby established
19 N. L. R . B. 831.
Y 10 N. L. R. B. 1107.
° 11 N. L. R. B. 572.
52 N. L. R. B. No. 39.
313
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
employees in certain job classifications whom the Company contends
exercise duties of an exclusively supervisory character.4 The Com-
pany bases its motion for reconsideration and amendment upon the
Board's recent decision in the Maryland Drydock case.5 It alleges
that to the extent that it includes the alleged supervisory employees,
the Board's unit finding heretofore made in this proceeding is in
direct conflict with the principle established in that case.
The record made at the hearing in this case has been reexamined.
It is clear therefrom that if this were a case of first impression before
us, the employees in question would be excluded as supervisory em-
ployees. The undisputed testimony shows that all of these employees
are engaged exclusively in supervisory functions, directing the work
of groups of employees under them, ranging from approximately 5
to 25 or more; that they are authorized to make recommendations
concerning the discharge and discipline of those under them; and
that their recommendations as to such action are accorded effective
weights Although they do not perform major supervisory functions,
it plainly appears that the authority and responsibility vested by the
Company in these employees sufficiently meets the test now normally
applied by the Board in determining the supervisory status of em-
ployees who are to be excluded from the appropriate unit.? In its
original decision herein, the Board based its inclusion of such super-
visory employees largely upon the ground that the, Oil Workers, the
only labor organization involved, desired their inclusion. However,
the principle that, notwithstanding the desires of a labor organization
for their inclusion, supervisory employees may neither constitute a
separate bargaining unit with the employees whom they supervise,
nor be included in the same unit with such employees, has since been
clearly established by the Boards
It appears that the requested amendment of the certification will im-
pair no contractual relationship, since no agreement covering the hours,
wages, and working conditions of supervisors in the unit has ever been
entered into between the Company and the Oil Workers. The Com-
pany has consistently adhered to the position, taken by it at the orig-
4 The Job classifications involved are • stillmen , treaters , dock shift foremen, boiler house
shift foremen, iso-octane shift foremen, stabilizer shift foremen, Iaboratory shift foremen,
labor subforemen, the assistant instrument foreman, the assistant electrical foreman, the
carpentry foreman, the painting foremen, the assistant pipe fitter foreman, the assistant
clean-out foreman, the insulator foreman, the assistant floor foreman, the assistant load-
ing rack foreman, the head dispatcher, the assistant head dispatcher, the motor laboratory
foreman, the garage night foreman, the assistant machinist foreman, the boiler maker
foreman , and the welder foremen
5 Matter of The Maryland Drydock Company , 49 N. L R B. 733.
e The supervisory character of the employees in question was conceded by the attorney
for the Oil Workers. At one point in the record he stated .
"The petitioner [Oil Workers] agrees that in general, every one of the men
involved in this controversy had supervisory capacities, that that is one of the
distinguishing characteristics of their duties "
7 See Matter of Douglas Aircraft Company, Inc, 50 N. L. R B. 834.
8 Matter of Maryland Drydock Company, supra.
SHELL PETROLEUM CORPORATION 315
inal hearing, that the supervisory employees were improperly in-
cluded in the unit. Following the certification, the Company, while
not declining to bargain with the Oil Workers as to the remaining em-
ployees in the certified unit, refused to bargain with respect to the
supervisory employees. Charges based upon such refusal to bargain
were filed with the Board, but were withdrawn by the Union in 1940.9
Thereafter, no action was taken to require compliance with the cer-
tification in its application to the supervisory employees. However, on
September 23, 1942, the War Labor Board issued a directive order in
which, among other things, it expressly recognized the unit findings
of this Board as controlling, and directed the Company to recognize
and enter into a contract with the Oil Workers in the unit defined in
the 1939 certification. No agreement affecting the supervisors in that
unit has, as yet, been consummated.
In our decision in Matter of Cramp Shipbuilding Company,10 de-
cided herewith, wherein we revoked a certification covering a unit of
supervisors, we stated inter alia:
A certification must be viewed as a means for effectuating the
policies of the Act. As such, the certification is not intended to be
a final order comparable to a judgment rendered in a court, but
is a determination that may be modified * * * But when the
certification ceases to effectuate the policies of the Act, or when
its continued existence would be contrary to the settled principles
adopted by the Board in the enforcement of the Act, it may be
revoked.
By means of the amendment requested in the instant case, the Com-
pany, in effect, seeks to revoke the existing certification to the extent
only that it contravenes the now settled principles of the Board with
respect to supervisory employees. The Company concedes the present
majority status of the Oil Workers as bargaining representative for
the non-supervisory employees in the certified unit, and as to them
there is, therefore, no present question of representation. The amend-
ment requested by the Company will have the effect only of conforming
the Board's unit finding to its now settled principles; it will not dis-
rupt any contractual rights or otherwise disturb the rights or duties
of the parties to bargain in the unit which the Board now recognizes
as appropriate.
Under all the circumstances, we are of the opinion that the relief
requested by the Company should be granted. ' We, accordingly, find
that all supervisory employees with authority to hire, promote, dis-
Upon the charges filed by the Oil Workers. the Board on December 20, 193% issued a
complaint alleging a violation of Section 8 (5) of the Act. In its answer, the Company
admitted its refusal to bargain but alleged that the unit was inappropimte because of
the inclusion of supervisors. Following 'the Union 's withdrawal of the charges, the
Regional Director on November 20, 1940, issued an order of dismissal.
10 52 N. L R. B 309.
316 DIE.CLSmiONS OF NA!PIONAL LABOR RELATIONS BOARD
charge, discipline, or otherwise effect changes in the status of employ-
ees, or effectively recommend such action, including the employees in
the job classifications listed in footnote 4, page 314, do not constitute
part of the appropriate unit. We shall amend our Certification of
Representatives, issued in this proceeding on February 21, 1939, Hume
pro tune as of said date, in accordance with such finding. To the extent
that any unit findings made in the Decision, Supplemental Decision,
and Second Supplemental Decision herein are inconsistent with our
present finding relating to the supervisory employees, such findings
are hereby amended, nun- pro twne, to conform to our present
determination.
AMENDMENT TO CERTIFICATION
Upon the basis of the foregoing findings of fact, the National Labor
Relations Board hereby orders that the Certification of Representa-
tives in the above-entitled proceeding, dated February 21, 1939, be,
and the same hereby is, amended nuns pro tune as of said date by
striking therefrom the second paragraph thereof, and substituting
therefor the following :
IT is hereby certified that Oil Workers International Union,
Local No. 367, has been designated and selected by a majority
of all hourly paid employees of Shell Petroleum Corporation at
its Deer Park Refinery, Houston, Texas, including the machinists
and the employees in the boiler making and welding department,
but excluding bricklayers, clerical employees, general foremen, de-
partment heads and their immediate assistants, stillmen, treaters,
dock shift foremen, boiler house shift foremen, iso-octane shift
foremen, stabilizer shift foremen, laboratory shift foremen, labor
subforemen, assistant instrument foremen, assistant electrical
foremen, carpentry foremen, painting foremen, assistant pipe fit-
ter foremen, assistant clean-out foremen, insulator foremen,, as-
sistant floor foremen, assistant loading rack foremen, head dis-
patchers, assistant head dispatchers, motor laboratory foremen,
boiler maker foremen, and welder foremen, and excluding also all
other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, as their repre-
sentative for the purposes of collective bargaining and that, pur-
suant to the provisions of Section 9 (a) of the Act, Oil Workers
International Union, Local No. 367, is the exclusive representative
of all such employees for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment and other
conditions of employment.
CHAIRMAN Mn.LIs took no part in the consideration of the above
Third Supplemental Decision and Amendment to Certification.