Derby Refining Co.

National Labor Relations Board - Board Decisions

Feb 10, 1989

292 N.L.R.B. 1015 (N.L.R.B. 1989)

DERBY REFINING CO
Derby Refining Company and Local 5-241 Oil,
Chemical and Atomic Workers International
Union Case 17-CA-13229
February 10, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 29, 1988, Administrative Law Judge
William F Jacobs issued the attached decision The
Respondent filed exceptions and a supporting bnef,
the General Counsel filed a brief in support of the
judge's decision, and the Charging Party filed an
answering bnef
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified below and to adopt the
recommended Order
We agree with the judge that the Respondent
violated Section 8(a)(5) and (1) of the Act as al
leged We also agree with the judge's conclusion
that the employees who retired and those who re-
fused recall from the predecessor employer should
be included as former employees who make up a
majority of the Respondent's work force
Pester, the predecessor, experienced financial dif
ficulties and in February 1985 filed a petition under
Chapter 11 of the Bankruptcy Code In March
1985, it began laying off employees Pester told
some of these employees that if they retired before
they were laid off they would receive a greater
amount of their pension Three employees took
Pester's advice and retired 1 During the summer of
1985 Pester, which was operating on a very limited
basis, obtained some processing work and recalled
some employees However, it informed them that
the recall would be only temporary Four of the
employees declined recall, at least two of whom
stated they did so because they had other full time
employment After declining recall they were ter
minated and their names were removed from the
recall list 2
In February 1986 the bankruptcy court approved
an amended reorganization plan, which involved
Pester exchanging assets with the Respondent
(Derby) As part of the exchange plan, Derby re-
' Roy Banks and Clifford Kasper retired effective April 1 1985
Lehman Harris retired effective November 1 1985
2 Ray Hoffman was terminated effective June 9 1985 D E Jack
July 24 C W Curnutt September 25 and Ken Clifton November 15
Hoffman was working as a registered nurse and Clifton was working at
another refinery in Montana
1015
ceived the El Dorado refinery Soon after the ap-
proval, Derby began to recruit and hire employees
to staff the plant, many of whom were former
Pester employees Derby eventually took over op
eration of the refinery on April 10, 1986, and began
to reopen and expand operations until the plant
was in full operation by August 1986 In October
1986 the Union made a demand for recognition,
which Derby rejected At the time of the demand
Derby employed 80 employees, 43 of whom had
been previously employed by Pester 3
As the judge observed, when a successor em-
ployer hires, as a majority of its employees, the
former unionized predecessor's employees, the pre-
sumption arises that a majority of the successor's
employees also support the union As the Supreme
Court stated in NLRB v Burns Security Services,
406 US 272, 278-279 (1972), the mere change in
ownership, without an essential change in working
conditions, would not be likely to change employee
attitudes toward representation
The presumption is necessary to promote stabili-
ty during changes of ownership and to reduce in-
dustrial strife Both the union and the employees
are vulnerable during this period and hard earned
bargained-for rights can easily be diminished Fall
River Dyeing Corp v NLRB, 482 US 27, 39
(1987) Employees, especially during such times,
are worried about retaining their jobs and may
shun the union if they feel it will help their chances
of doing so If no presumption existed, corporate
transformation could be used to avoid the union
and exploit employees' fears Id Such a situation
would not be conducive to industrial peace
In the successorship situation the events must be
viewed from the employees' perspective, i e,
whether their job situation has so changed that
they would change their attitudes about being rep-
resented Here, as the judge found, the job situation
has not changed so dramatically as to affect the
employees' views The employees on Pester's pay
roll returned to the same plant, performed the same
work, using the same equipment, under the same
supervisors, and produced the same products,
which were sold to many of the same customers
Here, the mere change of ownership was not such
an unusual circumstance as to affect the employees'
views on union representation 4 Fall River Dyeing,
3 This number includes the three retired employees and the four em
ployees who refused recall
4 The Union here had represented the employees at the refinery for
more than 40 years through a number of different owners Derby did not
make any substantial changes in the operations that would have caused
the employees to have viewed their job situations as essentially changed
or to view this change in ownership any differently from any of the pre
vious changes
292 NLRB No 112
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
482 US at 39 Thus, it is appropriate to count
these employees in determining whether the Re-
spondent hired a majority of former Pester employ-
ees
The Respondent does not contest the inclusion
of employees who were on Pester's payroll at the
time of the exchange of assets, but rather argues
that the employees who had left Pester's employ
before the exchange, either by retiring or by refus-
ing recall, should not be included in the majority
count According to Derby, these employees are
"new" Derby employees and not "former" Pester
employees This distinction is critical as a numeri-
cal majority can be established only by adding the
retired employees and the employees who refused
recall to the group of Pester employees who had
been working at the time of the exchange
With regard to the three retired employees who
had been rehired, it has been the Board's policy to
count such employees in determining if a majority
exists 5 In Cincinnati Bronze, 6 the Board adopted
the administrative law judge's finding that six of
the predecessor's employees who had retired after
the predecessor closed and who had been hired by
the successor should be counted in determining the
union's majority status in the successor bargaining
unit With regard to the retired employees' expec-
tation of continuity in the bargaining unit, the
judge stated
There is no evidence in this case that the re
tired employees, because they have opted to
receive a pension from old Lunkenheimer,
have any different work-related interest or
concerns than Respondent's other full-time
production and maintenance employees or
would have changed their attitudes toward or
desire for continued Union representation I
cannot find that they are in any different status
for purposes of determining the Union's major
ity status in Respondent's bargaining unit than
the "laid-off' employees at old Lunkenheimer
5 Although in Columbia Steel Casting Co 288 NLRB 306 (1988) the
Board excluded a retired employee from the unit that case is not control
ling here Columbia involved the eligibility of a retired employee to vote
in a Board election The Board there found that because the employee
was in retired status on the day of the election he was no longer part of
the unit and thus meligible to vote The Board reasoned that the every
day workplace issues no longer directly concerned the retired employee
and so it would be quixotic to give a retired employee a vote in directing
the unit s future Different policy considerations are presented by the
successorship situation The formerly retired employees hired by the suc
cessor employer are no longer in retired status but are actively part of
the unit and in contrast to the retired employee in Columbia have a
clear interest in workplace issues and share the same concerns as other
unit employees Thus the question concerning the formerly retired em
ployees here is not whether they should be included in the unit but
whether they should be considered as new employees with no expects
tions regarding union representation Columbia has no bearing on this
question
6 286 NLRB 39 (1987)
or those employees who simply found them-
selves out of work when old Lunkenheimer
shut its doors
286 NLRB at 460 We find that reasoning equally
applicable here Although the employees in Cincin-
nati Bronze remained on active status until the clos-
ing of the plant , while the Pester employees retired
before the closing, that difference does not signifi-
cantly affect their attitudes toward continued union
representation This is especially true here, where
the retirements were not a self initiated withdrawal
from the work force, but were instead encouraged
by Pester Pester told the employees that layoffs
were imminent and that they would lose a substan-
tial amount of their pensions if they were laid off
before they retired Presented with the choice be-
tween a likely loss of pension funds if they stayed
on and retiring with full benefits, the employees
chose retirement In the absence of the prediction
of layoff with its resulting impact on pensions,
there is no reason to believe that these employees
would not have continued to work Indeed, when
they were offered full-time positions at the same re-
finery they readily accepted These employees' at
tachment to the unit and their expectations con-
cerning representation under a new owner are
therefore virtually the same as those who were
able to stay on the payroll until the sale Hence, it
is proper to count them as former employees, and
not as new employees 7
For similar reasons , we conclude that the em
ployees who refused temporary recall to Pester
should be counted as former employees Their sep-
aration from the unit by refusing recall, was also
due to the strained economic situation confronting
them When they were offered recall they were
specifically told that the jobs would be only for a
matter of weeks In this regard, they were not re
called to their former permanent positions Refus-
ing the offer of temporary work in such circum-
stances cannot be viewed as abandonment of inter-
est in the unit 8 When these employees were of
fered an opportunity to return to the refinery as
permanent full-time employees, and work under the
same conditions that they had worked under
before, they readily accepted We therefore con-
clude that these four employees should be treated
as laid off employees without regard to their re
sponses to Pester's offers of temporary work, and
7 We particularly note that the lapse of time from retirement to the
closing of Pester was from 6 months to a year Were the lapse of time
significantly longer a different result might be required
8 This is particularly true if a laid off employee is presented as were
two of the employees here with a choice between giving up a permanent
position elsewhere and taking a temporary position at their former em
ployer s facility
DERBY REFINING CO
as such , they are properly counted in determining
the Union's majority status 9
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Derby Re-
fining Company, El Dorado, Kansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
e We note that the lapse of time between the refusals and the closing of
operations was less than 1 year Significantly longer amounts of time
could lead to different results
Lyn R Buckley Esq, for the General Counsel
Robert C DeMoss Esq, of Houston, Texas, and J Rich
and Mannett Esq, of Atlanta Georgia, for the Re
spondent
Cynthia L Barnes Esq, of Lakewood, Colorado, for the
Charging Party
DECISION
STATEMENT OF THE CASE
WILLIAM F JACOBS, Administrative Law Judge This
case was tried before me on 17 March 1987,1 at El
Dorado Kansas The charge and amended charge were
filed on 24 December 1986 and 5 February 1987 respec
tively, by Local 5 241 Oil, Chemical and Atomic Work
ers International Union (the Union) The amended com
plaint issued 5 February 1987 alleging that Derby Refin
ing Company (Derby or Respondent) violated Section
8(a)(1) and (5) of the National Labor Relations Act The
answer denies the commission of any unfair labor prac
tices
Representatives of all parties were present and were
given full opportunity to participate in the hearing Sub
sequently Respondent Charging Party, and the General
Counsel filed briefs Based on the entire record including
my observation of the demeanor of the witnesses and
after due consideration of the briefs I make the follow
ing
FINDINGS OF FACT2
A The Issues
The issue raised by the pleadings is whether Respond
ent is a successor employer and has violated Section
8(a)(1) and (5) of the Act by failing and refusing to rec
ognize and bargain with the Union as the collective bar
gaining representative of Respondents employees
i The hearing was adjourned sine die this date pending the receipt of
certain subpoenaed documents On 15 June 1987 the parties filed a stipu
lation of facts and motion to close record An order closing the hearing
issued 16 June 1987
3 The complaint and answer as amended at the hearing respectively
alleges and admits that the Board has jurisdiction here and that the Union
is a labor organization within the meaning of the Act
B Facts
1017
The oil refinery at El Dorado , Kansas, has been oper
ated by various companies since about 1942 The Union
became the bargaining representative of the refinery em
ployees in the 1940s and was their representative when
the Pester Corporation purchased the facility in 1977
At the refinery Pester processed and refined crude oil
into gasoline , fuel oils, asphalt , and similar products
During Pester s ownership of the refinery, the Union
continued to represent its employees The last collective
bargaining agreement between Pester and the Union
became effective 8 May 1983 and through contract
modification , remained in effect until 10 April 1986
In late 1984 and early 1985 Pester began having finan
cial problems and on 25 February 1985 filed a petition
for reoganization under Chapter 11 of the United States
Bankruptcy Code During the several months prior to
the filng for bankruptcy Pester employed 138 produc
tion and maintenance unit employees These employees
were employed in the operations department3 and in the
maintenance4 area However , because of its financial
problems and inability to buy crude oil Pester at this
time determined to curtail operations The Union was ad
vised about the decision and how it would be implement
ed on or about 1 March 1985
On 5 March 1985 Pester laid off a majority of its em
ployees, keeping only 43 These 43 remaining unit em
ployees continued to operate the refinery but on a limit
ed basis only , because the Company could no longer pur
chase crude oil Thus, because Pester still has an asphalt
inventory it could still continue to blend and sell as
phalt , although it was no longer processing crude oil be
cause it also still had some alkylation feed stock it con
tinued to run some high octane fuel products by using
this part of its inventory Otherwise various units closed
down at different times depending on the circumstances
Also on 5 March 5 R M Newcomer, refinery manag
er issued a memorandum directed to salaried personnel
announcing an immediate reduction in the work force
and stating that in the next few days all personnel would
be notified regarding their work status The same day
Newcomer read this memorandum to the rank and file
employees in the lunchroom The memorandum included
the statement We encourage those who are laid off to
evaluate all job opportunities in light of the current eco
nomic conditions and stress the uncertainty of those op
portunities with Pester Refining The memorandum was
later posted on the bulletin board
Due to the exigencies brought about by the financial
situation of the Company and the consequential lay off
of a majority of unit employees the Company and Union
met on 11 March They agreed at this meeting that the
3 The operations department consisted of the ROSE unit crude unit
central control room boiler house asphalt area truck locading area
water treating area light oil lab gauging department pumping depart
ment department field gauger area platformer and unifiner
4 Employed in the maintenance area were welders warehouse employ
ees electricians instrumentmen pipefitters riggers truck department em
ployees mechanics CPI (carpentry painting and insulating ) employees
laborers and a janitor
8 All dates are in 1985 unless otherwise noted
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Company should continue its attempt to reorganize its
operations under Chapter 11 and the Union, in return
would no longer seek to enforce certain provisions of the
existing contract The object of the agreement was,
clearly, to keep the Company afloat during its attempt at
reorganization by affording it greater freedom of move
ment in making operational decisions designed to save
money
On 23 March there was another major layoff and by
the end of the month Pester employed only 33 unit em
ployees By the payroll period ending 13 April, there
were only 22 unit employees employed and this figure
remained constant through the payroll ending 25 May
The additional layoffs in March and April were occa
sioned by the fact that the alkylation unit had been
closed down and the Company was no longer operating
any of its units The employees still working were only
blending and shipping asphalt
Although most of the refinery was inactive in April
and May management continued to try to negotiate
processing agreements that would enable reactivization
Managements efforts were initially unsuccessful and
toward the end of May total shutdown was being con
templated and plans made for additional layoffs Howev
er, these steps were never taken
In June , managements efforts to secure processing
agreements finally proved successful Agreements were
reached at this time with the Respondent and with a
second company, Matsui, to process certain products
owned by these companies through Pester s ROSE and
alkylation units As a result of obtaining these agree
ments the Company recalled additional employees The
total complement increased gradually from 22 in early
June to a highpoint of 43 in late September It thereafter
fluctuated between a low of 23 and a high of 33 until the
transfer of the refinery to the Respondent at which time
the total number of working employees was 30
In the fall of 1985 Pester put together a reorganization
plan whereby the refinery would be reopened and oper
ate on a seasonal basis The plan entailed a 9 month op
eration each year and the selling off of the intermediate
products and asphalt produced On 1 November man
agement presented the proposed reorganization plan to
the Union and discussed how it intended to staff the op
eration The same day that the Company met with the
workmen s committee to discuss the reorganization plan
it made to submit to the bankruptcy court In detailing to
the Union the proposed reorganization plan it described
it as providing for the reopening of the refinery in a lim
iced risk mode effective 1 March 1986 It stated that on
reopening , the refinery would employ about 40 to 45
hourly paid employees with positions in the central con
trol room the crude unit, ROSE unit maintenance area,
light oil lab asphalt department boiler house, and trans
fernng department The Company informed the Union
that the parties could begin negotiating a new contract
on approval by the court of the proposed reorganization
plan Clearly the parties, at this meeting, were comtem
plating reopening of the plant and recall of a number of
unit employees
On 11 November Pester s management met again with
the Union and all bargaining unit employees At this
meeting Jack Pester, the Company s chief executive offs
cer spoke to the employees and asked them to agree to a
freeze of the pension plan He stated that if they agreed
to the freeze it would save the Company $850 000 and
this amount would be adequate to help reorganize and
start the refinery back up on 1 March 1986 in the limit
ed risk mode discussed at the earlier meeting On 18 No
vember, the Union advised Pester that it and the employ
ees were agreeable to the freeze and an agreement to
that effect was signed the following day
On 3 December the parties met again At this meeting,
the Company assured the Union that it was putting to
gether a contract that it would first present to the Union
in order to enable the bankruptcy court to then give its
approval to the reorganization plan The Union was ad
vised at this time that the proposed collective bargaining
agreement would be available in about a week
On 18 December the parties met again to discuss nego
tiation of a new contract and the order to recall The
Union insisted, as it had at earlier meetings , on recall by
seniority Pester's management refused to recall by se
nionty because they feared that the employees recalled
in that fashion would not be adequately trained to oper
ate the units they wished to reactivate There was, how
ever, agreement that recall rights of employees of Pester
at the time the contract was signed, would be through 15
March 1987 The following day the Union mailed to
All Eligible Pester Refining Company Bargaining Unit
Members' a letter and questionnaire advising them of the
positions of the parties taken at the 18 December meet
ing and requesting each of them to provide information
which would enable the Union to offer a counterpropos
al to the Company with regard to which employees were
to be recalled The information requested involved the
employees experience on various jobs and the dates on
which they worked on each job It is clear that at this
time both parties were seriously engaged in negotiation
for recall of at least a part of the bargaining unit and the
transmission of the questionnaire most certainly must
have given each of the employees some expectation that
recall was a possibility
On 27 December the Union and Company met again
At this meeting the Company finally agreed to go along
with recall by seniority 6 It was agreed further that
Pester and the Union would each appoint three people to
a committee to sit down with the Company s records go
over them and determine where each of the recall em
ployees should be placed The committee thereafter held
two meetings, both in January
Meanwhile, sometime in December there was some
discussion between officials of Pester and Derby con
cerning a possible exchange of assets between the two
companies On 20 February 1986 7 Pester filed with the
bankruptcy court its first amended joint plans for reorga
nization This document included an asset exchange
agreement, which provided for the exchange of the El
Dorado refinery and certain related assets belonging to
Pester for two groups of service stations belonging to
6 The I February seniority list was used for purposes of negotiating
recall
7 All dates are in 1986 unless otherwise specified
DERBY REFINING CO
Derby The reorganization plan with its exchange of
assets provision was approved by the bankruptcy court
on or about 25 February A copy of the exchange agree
ment was sent to the Union the same date This was the
first indication that the Union received concerning the
asset exchange agreement Right up until 25 February,
the Union was still under the impression that negotia
tions toward contract renewal and recall of employees
were to continue On receipt of the asset exchange agree
ment, the Union ceased its efforts toward obtaining a
new collective bargaining agreement from Pester
Following confirmation of the exchange of assets by
the bankruptcy court, Derby took over the refinery, of
fective 10 April Before doing so, however, it undertook
a recruitment drive in order to staff the facility It ran
newspaper ads in the El Dorado area and invited former
Pester employees to apply for employment It also ran
ads in other cities where refineries had recently shut
down It interviewed prospective employees in El
Dorado, Laurenceville, Illinois, and Cincinnati Ohio In
each interview the prospective employee was given some
information about the company and advised of the pay
scale and fringe benefits
Between 25 February, when the reorganization plan
was filed and 10 April when Derby actually took over
the refinery, Pester continued to operate the refinery on
the limited basis described above There was never a
shutdown Pester employees worked for Pester 1 day
and for Derby the next A comparison of employment
rolls indicates that at least nine Pester employees fell into
this category and that three other Pester employees pre
viously laid off were hired by Derby on 9 April Thus,
as of the 30 April payroll ending date, 12 of Derby s 19
employees were individuals previously employed by
Pester
When Derby took over the refinery on 10 April, it
continued to operate the same departments and oper
ations that Pester had been operating right up to the day
of takeover It thereafter opened up each of the previ
ously closed areas of the refinery until by the following
August the entire refinery was operating with the excep
tion of the platformer and unifiner8 departments At this
time Derby employed 105 employees and was still hiring
In August also Derby transferred Randy Newcomer
back to the El Dorado refinery Newcomer had been the
plant manager there from May 1983 until December
1985 In August 1986 he once again became plant manag
er at El Dorado Though Derby brought back Newcom
er to run the operation it also made certain modifica
tions to more closely fit into the Derby Mold As far
as operations were concerned, one change made was
that, without the platformer and unifiner in operation
the refinery was shipping naphtha and light straight run
gasoline to the Augusta Refining Company to provide it
with feed stock rather than using these products itself in
its processing operation As to organizational changes
Derby moved its personnel department out of the refin
8 The platformer made platformate which went into leaded gasoline
The unifiner was used in the processing of naptha Discontinuance of
these two operations did not affect the operations of the rest of the refin
cry They had employed about eight regular and between one and three
relief employees
1019
ery and transferred it to a downtown office in Wichita
It also changed the names of various job classifications
and reduced a number of different pay grades
On the other hand, in a number of other more impor
tant aspects, the Pester and Derby operations were simi
lar, if not identical Thus the employees performed the
same duties on the same equipment, producing the same
end product 9 This was true in every department and in
every area at the refinery which Derby continued to op
erate after its takeover from Pester Similarly, Derby
continued to sell asphalt, gasoline, and fuel oil to many
of Pester s most important customers, indicating substan
tial continuity in that area Finally, the Derby adminis
tration, after it took over the El Dorado facility consist
ed of 24 managers and supervisors, including the plant
manager The records indicate that 16 of them were pre
viously employed in a similar capacity by Pester
On 13 October the Union demanded that Derby bar
gain with it as the collective bargaining representative of
the El Dorado refinery production and maintenance em
ployees Respondent refused the Union s demand At the
time of the Union s demand, Derby employed 80 rank
and file employees in its production and maintenance
unit, the same unit that the Union had represented at the
refinery when it was owned and operated by Pester Of
these 80 employees, 43 had been Pester unit employees
represented at the time by the Union
Analysis and Conclusion
In Mondavi Foods Corp ,10 the Board stated
When all or part of a business is sold 11 certain
legal obligations of the seller devolve upon the pur
chaser Where there is substantial continuity in the
identity of the employing enterprise one such obli
gation will be that of the employer to recognize and
bargain witha a union which represents the former
owner s employees However, if in the course of the
transfer there have been substantial and material
changes in the employing enterprise the new em
ployer will not be found to have succeeded to the
bargaining obligation of the former employer 12
In cases involving the successorship issue the
Board s key consideration is whether it may rea
sonably be assumed that, as a result of transitional
changes the employees desires concerning union
ization [have] changed 13 The Board considers a
variety of factors in determining whether the new
employer has succeeded to the former employer s
bargaining obligation Certainly a prime factor is
whether the purchaser has hired a sufficient number
of former employees of the seller to constitute a ma
jority of the employee complement of the appropri
ate unit 14 Once it has been found that the purchas
9 Leaded and unleaded gasoline fuel oils asphalt propane etc
10 235 NLRB 1080 (1978)
11 The exchange of assets is indistinguishable from a scale for Board
purposes
12 Citing Lincoln Private Police 189 NLRB 717 (1971)
i3 Citing Ranch Way Inc 183 NLRB 1168 (1970) affd 445 F 2d 625
(1971)
14 Citing NLRB v Burns Security Services 406 U S 272 (1972) et al
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
er has hired such a majority, the Board considers
such circumstances as whether or not there has
been a long hiatus in resuming operations a change
in product line or market, or a change of location
or scale of operations 15 Changes in product
line or market can be indicative of a different type
of business (e g different or altered production ma
chinery necessitating retraining and/or different
skills) However a change in scale of operation
must be extreme before it will alter a finding of
successorship
In the instant case there was no hiatus Pester operat
ed the refinery 1 day albeit on a reduced scale, Derby
the next Derby initially continued operation of the refin
ery on the same reduced scale as did Pester at the time
of takeover, but immediately instituted plans to bring
production up almost" to the scale at which Pester had
operated prior to the layoff forced on it by its financial
difficulties and bankruptcy Derby s operation of the re
finery following takeover was essentially the same busi
ness previously conducted by Pester The operation re
mained at the same location 17 and employed, as a major
ity of its work force, former Pester employees, doing the
same jobs under the same working conditions, under the
same management and most of the same supervisors, to
produce the same products utilizing the same machinery
and the same equipment The products thus produced
were sold in large part, to the same customers Here, as
in Mondavi it is clear that nothing in the transitional
changes occurring in connection with Respondents ac
quisition and operation of Pester s refinery would under
mine a finding that the employees desires concerning
representation have remained unchanged
I have carefully read Respondents brief as well as the
cases cited therein I consider the arguments presented in
defense of Respondents position unpersuasive Accord
ingly I find that Respondent did succeed to Pester s ob
ligation to bargain with the Union, and that in failing and
refusing to recognize and bargain with the Union as the
authorized representative of a majority of its employees
in a unit appropriate for collective bargaining Respond
ent has violated Section 8(a)(5) and (1) of the Act
THE EFFECT OF THE UNFAIR LABOR PRACTICES ON
COMMERCE
Respondents activities set forth above occurring in
connection with Respondents operations, also described
above have a close, intimate and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob
structing commerce and the free flow of commerce
CONCLUSIONS OF LAW
1 Derby Refining Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act
15 Citing as an example Radiant Fashions 202 NLRB 938 (1973)
i 8 I find that Respondents decision not to reopen the platformer and
unifiner was of minimal impact
I' The transfer of the personnel department to Wichita is of minor tin
portance
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 All temporary, probationary and regular employees
in maintenance and operations employed at the facility
but excluding all office clerical employees, guards, pro
fessional employees and supervisors as defined in the Act
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act
4 At all times material the Union has been the exclu
sive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act
5 Respondent has failed and refused to bargain with
the Union as the exclusive bargaining representative of
its employees in violation of Section 8(a)(5) and (1) of
the Act
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that Respondent be re
quired to cease and desist therefrom and, on request, bar
gain collectively with the Union I shall also recommend
that it take certain affirmative action necessary to effec
tuate the policies of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed18
ORDER
The Respondent, Derby Refining Company El
Dorado, Kansas, its officers, agents successors and as
signs, shall
1 Cease and desist from
(a) Refusing to bargain collectively in good faith with
Local 5 241, Oil Chemical and Atomic Workers Interna
tional Union as the exclusive representative of all the em
ployees in a unit composed of
All temporary probationary and regular employees
in maintenance and operations employed at the fa
cility but excluding all office clerical employees
guards professional employees and supervisors as
defined in the Act
(b) In any like or related manner interfering with re
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request bargain with the above named labor
organization as the exclusive representative of all em
ployees in the aforesaid appropriate unit with respect to
18 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
DERBY REFINING CO
rates of pay, wages, hours and other terms and condi
tions of employment and, if an understanding is reached
embody such understanding in a signed agreement
(b) Post at its El Dorado Kansas facility copies of the
attached notice marked Appendix 19 Copies of the
notice on forms provided by the Regional Director for
Region 17, after being signed by the Respondents au
thonzed representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced or covered by
any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
19 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1021
WE WILL NOT refuse to bargain colectively concerning
rates of pay, wages, hours and other terms and condi
tions of employment with Local 5 241 Oil Chemical
and Atomic Workers International Union as the exclu
sive representative of the employees in the bargaining
unit described below
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL, on request, bargain with the above named
Union, as the exclusive representative of all employees in
the bargaining unit described below, with respect to rates
of pay, wages hours and other terms and conditions of
employment and, if an understanding is reached, embody
such understanding in a signed agreement The bargain
mg unit is
All temporary, probational and regular employees
in maintenance and operations employed at the fa
cility but excluding all office clerical employees,
guards, professional employees and supervisors as
defined in the Act
DERBY REFINING COMPANY
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice