The Pure Oil Co.

National Labor Relations Board - Board Decisions

Dec 24, 1947

75 N.L.R.B. 658 (N.L.R.B. 1947)

In the Matter of THE PURE OIL COMPANY (HEATH REFINERY),
EMPLOYER and OIL WORKERS INTERNATIONAL UNION, LOCAL 501,
C. I. 0., PETITIONER
Case No. 8-R-2547
SUPPLEMENTAL DECISION
ORDER SETTING ASIDE DIRECTION OF ELECTION
AND
SECOND DIRECTION OF ELECTION
December 24, 194'7
On August 21, 1947, the National Labor Relations Board issued
a Decision and Direction of Election in the above-entitled. proceeding'
On August 28, 1947, the Board issued an Amendment to Direction
of Election, extending the time for holding the election to a period
of 90 days. On November 13, 1947, the Petitioner filed a motion,
requesting that the Board reconsider the unit heretofore found ap-
propriate for employees of the Employer, and further extend the
time for holding the election for disposition of its motion. On
November 17, 1947, the Employer filed a reply to the motion 2 On
November 20, 1947, the Board issued an order postponing the election
indefinitely.
In the Decision and Direction of Election, noted above, the Board
found that all production and maintenance employees at the Em-
ployer's Heath Refinery, including guards, testers and trainees in
the laboratory, loaders, A-400 shiftbreakers, and handymen, but ex-
cluding office and clerical employees, chemists and special testers in
the laboratory, and all supervisory employees, constituted a unit ap-
propriate for the purpose of collective bargaining. The Petitioner
in its motion urges that, in view of the recent amendments to the
National Labor Relations Act, the Board amend this unit (1) by
1 74 N. L. R. B 1382.
2 The Employer , inter alla, contends that in the absence of compliance by the Petitioner
with the provisions of Section 9 (f), (g), and ( h) of the Act, as amended , the Board is
without jurisdiction to entertain the Petitioner 's motion. Inasmuch as the Petitioner has
complied with the requirements of the Act , we find no merit in the Employer ' s contention.
75 N. L. R. B., No. 78.
658
THE PURE OIL COMPANY 659 °
excluding guards from a unit of production and maintenance em:
ployees and from possible representation by a labor organization ad-
mitting to membership employees other than guards; (2) by excluding
testers and trainees in the laboratory, who the Petitioner alleges are
professional employees, from a unit of non-professional employees in
the absence of a showing that a majority of such employees desires
inclusion in this unit; and (3) by excluding A-400 shiftbreakers from
the unit on the ground that persons in this category tire supervisors,
and not therefore employees within the meaning of the Act 3 The
Petitioner further urges that the Board erred in including an "office"
employee in the production and maintenance unit. The Employer
concedes that guards, who the Employer and the Petitioner agreed at
the hearing should be included in the unit, are, under the recent amend-
ments to the Act, properly to be excluded therefrom, but contends
that the unit found appropriate by the Board in its original decision
is otherwise the appropriate bargaining unit for its employees. In
view of the recent amendments to the Act respecting guards, we will
a The Petitioner refers particulaily to the following provisions of the Act as amended :
"Sec 2 (3) The term 'employee' shall include any employee but shall not in-
clude . . . any individual employed as a supervisor "
"See. 2 (11) The term 'supervisor' means any individual having authority, in the
interest of the employei, to hive, transtei suspend, lav off, recall, promote, discharge,
assign reward or discipline other employees, or responsibility to direct them, or to adjust
their giievances, or effectively to recommend such action, if in connection a ith the fore-
going the exeicisc of such .uithoiit} is not of a ineiely routine or clerical Hattie, but
requires the use of independent judgment "
"Sec 2 (12) The teini 'piofesional eniplovee' means-
"(a) any employee engaged in work (i) predominantly intellectual and varied in
character as opposed to routine mental, manual, mechanical, or physical work , (n)
involving the consistent exeicise of discretion and judgment in its performance , (in)
of such a character that the output produced or the result accomplished cannot be
standardized in relation to a green peirod of time, (iv) requiting knowledge of an
advanced type in a field of science or-learning customarily acquired by a prolonged
course of specialized intellectual instruction and study in an institution of higher
learning or a hospital, as distinguished from it general academic education or from
an apprenticeship or from training in the performance of routine mental, manual, or
physical processes , or
"(b) any employee, who (i) has completed the courses of specialized intellectual
instruction and study described in clause (iv) of paragraph (a), and ( ri) is perform-
ing related work under the supervision of a professional person to qualify himself to
become a piofessional employee as defined in paragraph (a) "
"Sec 9 (b) The Board shall decide in each case whether, in order to assure to employees
the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate
for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit,
or subdivision thereof: PROVIDED, That the Board shall not (1) decide that any unit
is appiopriate for such purposes if such unit includes both professional employees and
employees who are not professional employees unless a majority of such professional
employees vote for inclusion in such unit, . . or (3) decide that any unit is appropriate
for such purposes if it includes, together with other employees, any individual employed
as a guard to enforce against employees and other persons rules to protect property of the
employer or to protect the safety of persons on the employer's premises ; but no labor
organization shall be certified as the representative of employees in It bargaining unit
of guards if such organization admits to membership, or is affiliated directly or indirectly
with an organization which admits to membership, employees other than guards."
766972-43-vol 75-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amend our unit finding to exclude guards from the unit of production
and maintenance employees at the Employer's Health Refinery.
The record in this proceeding, however, clearly establishes that
testers and trainees in the laboratory, distinguished from chemists and
special testers in the laboratory, are not "professional" employees
within the meaning of Section 2 (12) of the Act, and that A-400 shift-
breakers are not "supervisors" within the meaning of Section 2 (11)
of the Act. For this reason we shall make no change in the unit
placement of testers and trainees in the laboratory and A-400 shift-
breakers. For the reasons set forth in our original decision, we find
that Ray Fenner, as a loader, is properly included in the unit despite
his clerical duties.
The amended appropriate unit
We find that all production and maintenance 4 employees at the
Employer's Heath Refinery, including testers and trainees in the
laboratory, loaders ,5 A-400 shiftbreakers, and handymen, but exclud-
ing guards, office and clerical employees, chemists and special testers
in the laboratory, and all supervisors, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
The determination of representatives
In view of the time that has elapsed since the issuance of the origi-
nal Decision and Direction of Election on August 21, 1947, we shall
set aside our Direction of Election , as amended , and shall issue a
Second Direction of Election with a current eligibility date in order
that employees recently hired at the Heath Refinery be eligible to
participate in the choice of a bargaining representative.
ORDER
IT is IFERE13Y ORDERED that the Direction of Election issued on
August 21, 1947, and amended on August 28 and November 20, 1947,
be, and it hereby is, vacated and set aside.
SECOND DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with The Pure Oil Company,
(Heath Refinery), Newark, Ohio, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days
"Including Corwin Jones.
5 Including Ray Fenner.
THE PURE OIL COMPANY 661
from the date of this Second Direction, nuclei- the direction and
supervision of the Regional Director for the Eighth Region, subject
to Sections 203.61 and 203.62 of National Labor Relations Board Rules
and Regulations-Series 5, among the employees in the amended unit
,found appropriate above, who were employed during the pay-roll
period immediately preceding the date of this Second Direction, in-
cluding employees who did not work during said pay-roll period be-
cause they were ill or on vacation or temporarily laid off, but exclud-
ing those employees who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the election,
to determine whether they desire to be represented by Oil Workers
International Union, Local 501, C. I. 0., or by Oil Refinery Employ-
ees' Independent Association, for the purpose of collective bargaining,
,or by neither. -