Ethyl Corp.

National Labor Relations Board - Board Decisions

Sep 17, 1957

118 N.L.R.B. 1369 (N.L.R.B. 1957)

ETHYL CORPORATION 1369
rule the Petitioner's objections. Accordingly, as the Petitioner failed
to secure a majority of the valid ballots cast, we shall certify the
results of the election.
[The Board certified that a majority of the valid ballots was not
cast for the Business Machine and Office Appliance Mechanics Con-
ference Board, Local 459, International Union of Electrical, Radio
and Machine Workers, AFL-CIO, and that said organization is not
the exclusive representative of the Employer's employees in the unit
found appropriate.]
Ethyl Corporation and Cooperative Bargaining Agency of Baton
Rouge, Louisiana,' Petitioner
Ethyl Corporation , Petitioner and Allied Oil Workers Union.
Cases Nos.15-R 15f7 and 15-1?M-98. September 17,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act by the Employer on May 17, 1957, and an order
directing hearing issued .by the Board on February 15, 1957,2 a con-
solidated hearing was held, before Loren F. Jones, hearing, officer.
The hearing officer's rulings made at the hearing are free from prejudi-
cial 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 Leedom and Members Murdock and Jenkins].
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 em-
ployees of the Employer.
3. In 1946, after a consent election in Case No. 15-R-1527, the Board
certified the Union as bargaining representative for the Employer's
office clerical employees at its Baton Rouge, Louisiana, operations.
That unit specifically excluded, inter alia, confidential secretaries
1 At the hearing, a motion to change the name of this union to Allied Oil Workers
Union, herein called the Union, was granted without objection.
' On December 26, 1958, the Union, which was certified in 1946 as the collective-
bargaining representative of the Employer's office clerical employees, filed a motion to
clarify the bargaining unit, seeking, in effect, to include certain additional employees.
Thereafter, the Board issued an order directing hearing with respect to the Union's
motion. Because we find, infra, that the employees designated in Case No. 15-RM-98
constitute a residual group of clerical classifications excluded by mutual consent from
the current and historic bargaining unit of clerical employees, and because we also, find
such a group entitled to a self-determination election, we hereby dismiss the motion for
clarification in Came No. 15-R-1527. Cf. The Daily .Press, Incorporated, 110 NLRB
578, 578.
118 NLRB No. 185.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and "assistants to the supervisor of the salaried payroll division,"
now known as salaried payroll clerks. Since that time, the Employer
and the Union have executed a series of contracts which excluded
confidential secretaries and salaried payroll clerks. These contracts
have also excluded a confidential clerk, TEL (Tetraethyl Lead), who
the parties agree was not eligible to vote in the consent election. Sub-
sequent to the certification, the following new job classifications were
created which have also been excluded from the bargaining contracts :
Confidential clerk, industrial engineering; internal auditors; and elec-
tronic application employees. For the past several years, the Union
has repeatedly requested to represent, as part of the office clerical
unit, the confidential secretaries, the two confidential clerks, the
salaried payroll clerks, the internal auditors, and, since 1956, the elec-
tronics application group. The Employer has denied such recognition.
At the outset, we agree with the Employer's contention that none of
the disputed classifications may be added to the existing office clerical
unit without a self-determination election, as the bargaining history
is clear that these employees have been unrepresented and specifically
excluded from the established unit.' We do not agree, however, with
the Employer's further contention that the Union, in the process of
collective bargaining during the series of contracts executed between
the parties, has "traded away" its right to represent the disputed em-
ployees. Although, by agreement of the parties, these employees were
excluded from prior contracts, the record discloses no evidence of a
promise, express or implied, on the part of the Union to refrain from
seeking to represent these employees as required for an application of
the Briggs Indiana doctrine.4 In fact, the most recent contract be-
tween the parties contains a provision which states that the contract
may be reopened for the purpose of negotiating any necessary amend-
ments with respect to any job classification not presently included in
the bargaining unit. The record indicates that this provision was
primarily intended to cover the instant disputed classifications.
In view of our subsequent findings which will require an election
in an appropriate voting group with respect to some of the disputed
employees, we find that a question affecting commerce exists concern-
ing the representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.'
4. The parties are in agreement with respect to the scope of the
office clerical unit which was certified by the Board in Case No.
15-R-1527, after a consent election held in 1946. Neither party re-
quests an election in the overall unit. They are in dispute, however,
as to the placement of the following groups of unrepresented em-
: The Zia Company, 108 NLRB 1134.
• Bripys Indiana Corporation, 63 NLRB 1270. See also The F. O. Russell Company,
114 NLRB 38.
s Cf. Amperes Electronic Corporation , 109 NLRB 353.
ETHYL CORPORATION 1371
ployees, all of whom the Employer would exclude and the Union
would include:I
Secretaries: The Employer has approximately 45 secretaries, each
of whom performs the usual office duties related to that classification
for from 1 to 7 company officials. The Union concedes that nine of
the secretaries' are confidential employees within the meaning of the
Board's definition thereof and would exclude them from the office
clerical unit, but would include the the remaining secretaries. The
Employer would exclude them.
The parties stipulated that at the time, of the consent election they
agreed to exclude the Employer's 19 "confidential secretaries" then
employed and that their agreement did not comport with the Board's
definition of "confidential" employees. Such definition has been re-
cently reexamined by the Board in the B. F. Goodrich case,' wherein
the Board held that the term "confidential" embraces only those
employees who assist and act in a confidential capacity to persons who
formulate, determine, and effectuate management policies in the field
of labor relations. In addition to the nine secretaries whom the par-
ties agreed to exclude, the record shows that the secretaries to the
following management officials, all of whom are on the Employer's
contract negotiating committee and/or the policy-making committee
which are concerned with plantwide matters in the field of labor rela-
tions, also come within the Board's definition of confidential
employees: Manager, maintenance and construction; general superin-
tendent, plant and employee services; manager, TEL and intermediate
operations; general superintendent, industrial engineering, technical
operations; general superintendent, production planning, technical
operations; assistant treasurer ; and chief of plant physicians. We
shall also exclude the secretaries to the foregoing officials. With respect
to the remaining secretaries whom the Employer would exclude, the
record reveals that they work for persons who participate in labor
relations matters only to the extent that they accumulate factual
data or as it affects their own respective department. In view of
the limited participation by these persons, we find that their secre-
taries are not confidential employees.9 Accordingly, we shall include
these secretaries.
Clerk-TEL, and clerk-industrial engineering, are assistants to
the superintendent of TEL and supervisor of position classification
and procedure, respectively. As we have found that the secretaries
9 The parties are in agreement that the salaried payroll clerks may be included in the
office clerical unit.
7 The two secretaries to the resident manager and the secretaries to manager , employee
relations ; general superintendent , labor relations ; associate manager , employee relations ;
assistant resident manager ; vice president , research and development ; staff assistant to
vice president , research and development ; and general manager , research and develop-
ment , operations.
8 The B . F. Goodrich Company, 115 NLRB 722, 724.
9 Standard Brands , Incorporated, 101 NLRB 1349, 1354-1356.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to these management officials are not confidential employees because
of their limited participation in labor relations matters, for the same
reason we find that the two clerks are not confidential employees.
Accordingly, we shall include them."
Internal auditors: The Employer's finance department has an
internal auditing section whose employees the Employer would ex-
clude as managerial or supervisory. This section, which examines
accounts, records, and inventories of the Employer, is comprised of
a head internal auditor, senior auditors, intermediate auditors, and
junior auditors.
The record is clear that the head auditor and the senior auditors
have the authority effectively to recommend the promotion or demo-
tion of the employees under their respective direction. Accordingly,
we find that they are supervisors within the meaning of the Act and
shall exclude them. Although the intermediate auditors assign work
to two junior auditors, there is not sufficient evidence that they respon-
sibly direct or effectively recommend changes in the status of these
employees. We therefore find that the intermediate auditors are
not supervisors." Nor do we agree with the Employer's contention
that the intermediate and junior auditors are managerial employees.
The record shows that their work is primarily of a clerical nature.
We find that their duties are not sufficiently allied to management to
warrant their exclusion as managerial employees.12 Accordingly,
we shall include them in the voting group.
Electronic application group: This is an experimental group of
employees charged with the responsibility of making studies and
surveys of procedures, methods, materials, space, and machines at the
Employer's plant. The Employer contends that these employees
should be excluded as technical, professional, or managerial employees.
All of the employees in the group, classified as electronic manage-
ment analysts and program analysts, possess a thorough knowledge
of the principles of computing machine logic and design, block dia-
graming, coding, and electronic computers. Most of them are college
graduates, with a technical degree, and have studied courses in higher
mathematics. In view of the foregoing, we find that the employees in
the electronic application group do not have a sufficient community
of interests with office clerical employees, but that they are more closely
allied with technical or professional employees.13 Accordingly, we
shall exclude them.
10 The record does not support the Employer' s contention that the clerk-industrial
engineering , is a managerial or technical employee.
n Heckett Engineering Co., Division of Harsco Corporation , 117 NLRB 1395 ( Shedlo).
12Heekett Engineering , supra ( Funkhouser).
11 Temco Aircraft Corporation , 117 NLRB 800 ( electronic technician ) ; Westinghouse
Electric Corporation , 115 NLRB 1420 , 1422 ( engineer test record category-held pro-
fessional ). The Board excludes technical employees if one of the parties objects to their
inclusion with office clericals . Plankinton Packing Company, 116 NLRB 1225, 1226.
Similarly the Board excludes professionals from clerical units unless the professionals
seek and are afforded an opportunity for self-determination as to their inclusion within
the office clerical group.
TEXAS BRONZE MANUFACTURING COMPANY, INCORPORATED 1373
As previously indicated, we believe that the employees hereinafter
specified should be given an opportunity by a self-determination elec-
tion to express their desires with respect to being included in the exist-
ing office clerical unit currently represented by the Union. Accord-
ingly, we shall direct an election in the following voting group :
All secretaries, salaried payroll clerks, clerk-TEL, clerk-industrial
engineering, and intermediate and junior auditors employed by the
Employer at its Baton Rouge, Louisiana, operations, excluding all
employees presently covered by the certification in Case No. 15-R-1527,
the secretaries to resident manager; manager, employee relations;
associate manager, employee relations; assistant resident manager;
vice president, research and development; staff assistant to vice presi-
dent, research and development; general manager, research and de-
velopment, operations; manager, maintenance and construction; gen-
eral superintendent, plant and employee services; manager, TEL and
intermediate operations; general superintendent, industrial engineer-
ing, technical operations; general superintendent, production plan-
ning, technical operations; assistant treasurer; and chief of plant
physicians, the head and senior auditors, the employees in the electronic
application group, and all other supervisors as defined in the Act.
If a majority of the employees in the above voting group cast
their ballots for the Union, they will be taken to have indicated their
desire to constitute a part of the existing office clerical unit currently
represented by the Union, and the Union may bargain for such em-
ployees as part of that unit. If a majority of them vote against the
Union they will be taken to have indicated their desire to remain
outside the existing unit, and the Regional Director will issue a
certification of results of election to that effect.
[Text of Direction of Election omitted from publication.]
Texas Bronze Manufacturing Company, Incorporated 1 and
Lodge 1591, International Association of Machinists, AFL-
CIO, Petitioner. Case No. 16-RC-2132. September 17, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the Act, a hearing
was held before Marvin L. Smith, Jr., hearing 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 National Labor
Relations Act, the Board has delegated its powers in connection with
a The name of the Employer appears as amended at the hearing.
118 NLRB No. 186.