Potash Co. of America

National Labor Relations Board - Board Decisions

Dec 12, 1951

97 N.L.R.B. 511 (N.L.R.B. 1951)

POTASH COMPANY OF AMERICA 511
POTASH COMPANY OF AMERICA and OIL WORKERS INTERNATIONAL
UNION, CIO, PETITIONER . Case No. 16-RC-794. December 12,
1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Lewis A. Ward, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer. _
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent a unit composed of all produc-
tion and maintenance employees at the Employer's Dumas, Texas,
plant, excluding clerical employees and supervisors. The Employer
does not oppose the general composition of this unit. The parties
have agreed that the plant superintendent, the plant foreman, and
the purchasing and shipping agent are supervisors and should be
excluded from the unit. There is disagreement, however, as to
whether first operators, second operators, and the lead repairman have
supervisory status. The Employer contends that the employees in
these positions are supervisors and should, therefore, be excluded
from the unit. In addition, the Employer would exclude the junior
chemical engineer from the proposed unit for the reason that he is
either a professional or technical employee. The Petitioner, opposes
these contentions.
The first and second operators:
There are three first and three second operators.' Each of the three
daily shifts is headed by a first operator and includes one' second
operator and from four to five operating helpers and yardmen.
There are seven employees in the day shift, six employees in each_night
I The parties stipulated that the duties and responsibilities of the second operators are
less than those of the first operators . A second operator does, however, regularly act
as first operator on the latter 's day off . On that shift , therefore , the second operator
assumes the duties and responsibilities and receives the wage scale of the first operator.
97 NLRB No. 65.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift. The record does not indicate whether there is rotation between
day and night shifts among the first and second operators.
The first operators were first informed of their so-called super-
visory status in mid-June 1951, 3 months after the commencement of
full production at the Dumas plant. This information was imparted
to the first operators after the Petitioner had begun its organizational
campaign at the plant .2 It was about July 15, 1951, that the shift
employees were informed of the alleged change in status of first oper-
ators.'
The record indicates that since the time the first operators were
allegedly clothed with supervisory authority, they have not been
accorded wage increases or other benefits usually accompanying a
promotion to a supervisory position; nor have their duties changed
from what they were prior to their alleged promotion to the rank of
supervisors. As an aid in the performance of their duties, it appears
that at the close of each day, the plant foreman prepares a set of
general orders for the first operators on the night shift, setting out
the status of the work and the production goals. Whenever some-
thing new or difficult in the process is to be undertaken, a set of very
detailed instructions is prepared for the first operators. No special
training is required for the position, as first operators are merely more
experienced than the other employees with whom they share the
manual labor required by the operation of the plant .4
With respect to the alleged right of first operators to affect the
status of other employees, the record shows that from the date the
plant was established to the date of the hearing, there has been no
instance of discharge or effective recommendation by a first operator.
So far as their possession of authority responsibly to direct is con-
cerned, such direction appears to be routine and to follow closely upon
the schedules and orders of their supervisors. The assignment of work
also appears to be routine in character and not to require the exercise
of independent judgment. Moreover, the record discloses that of
the approximately 19 production employees in the 3 daily shifts, 6
2 The petition in this case was filed on June 29, 1951.
The Employer , on July 15 , 1951, posted the following notice on the plant bulletin board :
Since the First Operator is in charge of his shift, it is necessary that other men
working on the shift shall follow any reasonable instructions that the First Operator
may give.
Signed : JOHN G. NuTT,
Plant Superintendent.
.4 The testimony of a first operator, corroborated by the Employer , indicates that first
operators spend from 50 to 75 percent of their working time in manual labor.
POTASH COMPANY OF AMERICA 513
are either first or second operators.5 All these factors serve to negate
the existence of supervisory authority in first and second operators
considered as^a group .6
Our dissenting colleague attributes to the night-she f t first operators
the authority responsibly to direct other shift employees merely
from the fact that these first operators are in charge of production at
a time when no admitted supervisor is present. We are not persuaded
by this argument, in view of the clearly routine nature of the work-
performed on the night shifts. That is indicated by the fact that
the first operators spend by far the greater part of their time in manual
labor, and the further fact that control is exercised in absentia by the
plant foreman through his written orders and instructions, as shown
above. Accordingly, upon the record as a whole, we find that the first
and second operators have not the status of supervisors within the
meaning of the Act. We shall include them in the unit hereafter
found appropriate.
The lead repairman:
The lead repairman heads the maintenance crew comprising a re-
pairman and three helpers. The record shows that he has no authority
to discharge, to reward, to promote, or effectively to recommend the
discharge of employees. Although work is normally assigned through
the lead repairman, in many instances the plant foreman assigns
repair work. to whichever member of the repair crew is available.
Moreover, the fact that the plant superintendent and plant foreman
at times instruct members of the repair crew in their work indicates
that the lead repairman has not been given authority independently
to direct the work of the repair crew? We do not believe, therefore,
that the lead repairman exercises such a degree of independent judg-
ment or discretion in the performance of his duties as would warrant
a finding that he responsibly directs the work of other employees.
Such directions as he gives appear to be routine in nature. In view
of the above and upon the entire record," we find that the lead repair-
man is not a supervisor within the meaning of the Act.
The junior chemical engineer :
The record shows that at the time of the hearing, Chin, the incum-
5 An inordinately high supervisory ratio has been held to be a factor in determining
whether or not supervisory authority exists. Geo. Knight and Co., 93 NLRB 1193, and the
cases cited therein.
United States'aypsum Company, 95 NLRB No. 128.
Lead Repairman Cook , in response to a question as to whether he had other employees
under his diiectipn, testified that the other employees in the repair crew "are working
with me.-
8 Further evidence that the lead repairman lacks supervisory authority appears from
the fact that the pay rates of the lead repairman and the repairman are the same.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bent in the position, was scheduled to return to college in September
1951 to conclude his undergraduate studies. The Employer further
testified that when Chin left, no one would be hired in his place, and
that the position would "vanish." In this event, some of the more
routine duties performed by Chin are to be parcelled out among pro-
duction and clerical employees; moreover, the technical work now
performed by the junior chemical engineer is to be assigned to a plant
engineer through the creation of a new position which will require the
services of a qualified engineer. Because it appears that the classifica-
tion has no established duties and is presumably vacant as of this date,
we shall make no unit determination with respect,to the position of
junior chemical engineer.9 .
We find that all production and maintenance employees at the Em-
ployer's Dumas, Texas, plant, including the lead repairman, the first
operators and the second operators, but excluding all clerical em-
ployees, and all supervisors ag'defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER REYNOLDS, dissenting in part :
I would find the first operators on the night shifts, and the second
operators who regularly replace them, to be supervisors within the
meaning of the Act. The record contains the following pertinent in-
formation with respect to the night-shift first operators : None of the
admitted supervisors appears td be present during the night shifts;
each night-shift first operator is in charge of the production during
his shift; there are five shift employees in each night shift. In these
'circumstances, I am convinced that the night-shift first operators
and the second operators who regularly replace them, as the only
representatives of management present, must of necessity possess
authority responsibly to direct the employees on their shifts. :10 More-
over, if in fact there exists substantial rotation between the day anct
night shifts among the first and second operators, I would find all
operators to be supervisors within the meaning of the Act 11
e Fall River Gas Works Company, 82 NLRB 962.
10 California Spray-Chemical Corp., 86 NLRB 453, and the cases cited therein.
81 West Virginia Pulp and Paper Company, 96 NLRB 871.