The Texas Co.

National Labor Relations Board - Board Decisions

Sep 9, 1949

85 N.L.R.B. 1211 (N.L.R.B. 1949)

In the Matter of THE TEXAS COMPANY, SALEM GASOLINE PLANT,
EMPLOYER and HAROLD A. EVANS, PETITIONER and INTERNATIONAL
UNION Or OPERATING ENGINEERS, AFL, UNION
Case No. 14-RD-e23
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
September 9, 1949
Pursuant to a Decision and Direction of Election issued by this
Board on May 31, 1949, an election by secret ballot was conducted on
June 23, 1949, among the employees in the unit set forth in said
Decision and Direction of Election, under the direction and super-
vision of the Regional Director for the Fourteenth Region. Upon the
completion of the election, the parties were furnished with a Tally
of Ballots, in accordance with the Rules and Regulations of the Board.
The tally shows that, of approximately 69 eligible voters, 64 cast
ballots, of which 31 were for the Union, 30 were against the Union,
and 3 were challenged. No objections to the conduct of the election
were filed within the time provided therefor.
On June 23, 1949, the Employer, the Petitioner, and the Union ex-
ecuted a stipulation, setting forth agreed facts relative to the working
conditions of Maynard L. Rogers, Ray E. Duncan, and Robert E.
Knickerbocker, the three employees whose ballots were challenged.
The stipulation is herewith incorporated and made a part of the
official record in this proceeding.
As the challenged ballots could affect the outcome of this election,
the Regional Director investigated the challenged voters. On July 5,
1949, he issued his Report on Challenged Ballots in which he found
that the challenged voters regularly acted as supervisors 1 or 2 days
per week and concluded that, by virtue of these services, they were
supervisors within the meaning of the Act, and recommended that the
challenges to their ballots be sustained.
The Petitioner, on July 11, and the Employer, on July 13, 1949,
filed Exceptions to the Regional Director's Report on Challenged Bal-
85 N. L. B. B., No. 206..
1211
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lots, alleging that the three employees in question had always been
deemed within the contract unit, contending that they were not super-
visors within the meaning of the Act by reason of their part-time
services, and requesting that their ballots be opened and counted.
Each of the three challenged voters works in a dual capacity at the
Employer's plant. Rogers works 2 days per week as stillman and 1
day per week as operator. Duncan works 3 days per week as mechanic
repairman and 2 days per week as head mechanic repairman. Knick-
erbocker works 4 days per week as meterman and 1 day per week as
head roustabout. The positions of operator, head mechanic repairman,
and head roustabout are admittedly supervisory.' During the days
when these three individuals occupy those respective positions, they
exercise the privileges and responsibilities of supervisors. Because
they regularly serve as supervisors for fixed and substantial periods
during the course of their weekly employment, we believe that their
interests are closely tied with those of management and conclude that
they were ineligible to vote in the election.2 Their ballots are hereby
declared invalid and shall not be counted. We therefore overrule the
exceptions taken by the Employer and the Petitioner to the Regional
Director's Report on Challenges.3
Inasmuch as a majority of the eligible voters participating in the
election have cast their votes for the Union, we shall certify the Union
as the exclusive bargaining representative of all employees in the
appropriate unit.
CERTIFICATION OF REPRESENTATIVES
IT is IIEREBY CERTIFIED that International Union of Operating Engi-
neers, AFL, has been designated and selected by a majority of all
employees at the Employer's Salem, Illinois, gasoline plant, in the
unit found appropriate in the. aforesaid Decision and Direction of
Election, as their representative for the purpose of collective bargain-
ing and that, pursuant to Section 9 (a) of the Act, as amended, the
.said, 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.
' In the Decision and Direction of Election , which resulted in the Union ' s certification
as bargaining representative of the employees concerned in the instant case, the Board
so found. Matter of Texas Company, 63 N. L . R. B. 1442.
2 The decision in Matter of Magnolia Petroleum Company, 79 N. L. R. B. 1027 , is hereby
overruled insofar as it conflicts with the instant decision.
8 The Petitioner ' s request for oral argument is hereby denied as the record, in our
opinion , adequately sets forth the contentions and position of the parties.
THE TEXAS COMPANY 1213
CHAIRMAN HERZOG and MEMBER HOUSTON, dissenting :
The majority find, erroneously we believe, that employees who spend
from 60 to 80 percent of their working time as ordinary rank-and-
file employees and only the remainder as supervisors, are ineligible to
vote in an election to select the bargaining representative for rank-
and-file employees because their "interests are closely tied with those
of management."
The problem presented in this case is not a new one. The question
has arisen before, when the Board solved it in a realistic and practical
manner by recognizing that an employee who is required by his em-
ployer to divide his time between work as a supervisor and as a rank-
and-file employee has dual interests arising from the duality of his
functions. In 1946, in the Hunt Foods case,4 the Board undertook to
clarify the status of part-time supervisors. To the extent, it declared,
that a part-time supervisor works in a nonsupervisory capacity, sub-
ject to the wage rates and working conditions of rank-and-file employ-
ees, he is part of the rank-and-file unit, but to the extent that he acts as
a supervisor, he should be excluded from that unit. On the question
of the eligibility of part-time supervisors to vote in an election to select
a bargaining representative for rank-and-file employees, the Board
decided that if a part-time supervisor spent 50 percent or more of his
time working as a rank-and-file employee, he had a sufficiently sub-
stantial interest in the outcome of the election to be permitted to vote.
By way of example, in the Great Northern Icing Company case,5
the Board permitted an assistant engineer to vote in an election to
determine the bargaining representative for nonsupervisory assistant
engineers, although during 6 months of each year he divided his time
between supervisory and nonsupervisory duties. Similarly, in the
Heinz case,6 the Board permitted nonsupervisory employees who acted
as supervisors during a 2-month seasonal packing period to vote in an
election to determine the bargaining representative of year-round
rank-and-file employees. In a somewhat different context, in the
Waterfront Employers case,' the Board once again emphasized the
view that interest follows work, and held that individuals who spent
a minor portion of their working time as foremen could not vote in an
election to choose a bargaining representative for foremen.8 The
Board held, in other words, that if an employee spent the greater part
of his working time as a nonsupervisor, his predominant interest lay
168 N. L. R. B. 800.
5 73 N. L. It. B. 116.
6 49 N . L. R. B. 573.
7 72 N. L. R. B. 366.
8 At this time ( January 1947 ), foreman ' s units were appropriate under the original statute.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the rank-and-file employees. This precise and salutary rule is
now being abandoned for a vague formula which we think will be
difficult to apply and will often cause injustice.
To take the most extreme example, we fail to understand the reason-
ing, arithmetical and otherwise, by which today's majority concludes,
contrary to all prior precedent, that Kennedy's 1 day's work as a
supervisor overbalances his 4 days' work as a nonsupervisor. It
seems to us that, as a simple matter of human relations, an employee
who works 4 days out of every 5 along with rank-and-file employees,
receiving the same wages and enjoying the same working conditions,
has far greater ties with the rank and file than with management.
Although the Labor Management Relations Act of 1947 has rede-
fined the term "employee" so as to exclude supervisors, the amend-
ments do not require or suggest that the Board abandon the approach
laid down in the Hunt Foods case. The issue still remains in each
case as to who is and who is not, as a matter of fact, a supervisor ;
the amended statute has merely provided new definitions and has
changed the consequences of the resolution of that issue. Indeed, a
unanimous Board reaffirmed that very approach to the question in
the Magnolia Petroleum case, decided in September 1948.9 We would
not overrule that decision today.
Therefore, as Rogers, Duncan, and Knickerbocker do spend much
more than half their time as rank-and-file employees, we would find
them eligible to vote and would overrule the challenges to their
ballots.
9 79 N. L. R. B. 1027, 1029.