Petroleum Heat & Power Co., Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1953

106 N.L.R.B. 122 (N.L.R.B. 1953)

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of 35 come back for more than 2 seasons . The Dryer's
construction work is sometimes done by temporary employees
hired for the job , and otherwise by a labor force supplied by
an independent contractor . The seasonal drying employees' of
the Dryer could properly be included in a production and
maintenance unit because they work alongside the regular
workers and perform similar tasks , although they do not
receive the same benefits as the permanent workers.' However,
we are of the opinion that their seasonal tenure of employment
is not sufficiently regular or substantial to entitle them to
participate in an election and, accordingly, we find them
ineligible to vote.9
Of the Dryer's 5 permanent workers , only 1 is admittedly
not a supervisor . The other 4, who the Employer contends
are supervisors , have authority to hire and discharge when
they have subordinates . They have such subordinates during
the drying season and frequently when the Dryer has construc-
tion contracts . Between May 4 and October 15, 1952, they
supervised construction and drying workers ; thereafter, until
the end of November 1952, they supervised maintenance
workers . Since then there has been 1 minor construction job
which , at the time of the hearing , required the supervisory
services of 2 of the individuals in question . As it appears that
they were supervisors for most of last year, none of the 4
disputed workers is eligible to vote.'0
In view of the foregoing, only one of the Dryer ' s production
and maintenance workers is eligible to vote. Therefore, we
shall not direct an election in a unit of the Dryer's workers.P
We find that all production and maintenance employees of
Producers Rice Mill, Inc. , at its Stuttgart , Arkansas, plant,
excluding all office-clerical employees, guards, professional
employees , and all supervisors as 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.]
7 Both unions agreed to the exclusion of the seasonal constrpction employees.
8S. R, L. Co. of Pipestone, 96 NLRB 1148; R Appel, Inc., 95 NLRB 7.
9 Ibid.
10 Stokely- Van Camp, Inc., 102 NLRB 1259; Libby, McNeill & Libby, 90 NLRB 279
11Cf. Warren Paper Products Co, 93 NLRB 1187; J. C. Penney Company, 92 NLRB 1286
WESTCHESTER DIVISION, PETROLEUM HEAT & POWER CO.,
INC.1 and LOCAL 456, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND
HELPERS OF AMERICA , AFL, Petitioner. Case No. 2-RC-
5433 . July 13, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed on December 16, 1952, under
Section 9 ( c) of the National Labor Relations Act, a hearing was
1The Employer' s name appears as amended at the hearing.
106 NLRB No. 20.
WESTCHESTER DIVISION, PETROLEUM HEAT & POWER CO 123
held before Leonard J . Lurie , hearing officer. On January 30,
1953 , immediately after the hearing opened , the Intervenor,
Petroleum Heat & Power Workers Association , Inc., whichhad
appeared specially for that purpose , moved for apostponement
on the ground that its president was a necessary witness, but
would be unavailable because of illness which required from 10
to 12 days of bed rest. The hearing officer , after questioning
the Intervenor ' s representative as to the subject matter of the
testimony to be adduced by the witness in question , ruled that
the testimony was unnecessary and denied the motion , where-
upon the Intervenor withdrew from the hearing. The Employer
then moved for a postponement . The hearing officer found the
Employer's grounds reasonable , and postponed the hearing until
February 4, 1953. When the hearing resumed on that date, the
Intervenor did not appear , although given timely notice , and the
Employer withdrew at the outset because its motion for a further
postponement was denied . The Petitioner presented its testi-
mony.
The Employer and the Intervenor, on February 16 and 19,
1953 , respectively , petitioned the Board for anewhearing. The
Intervenor alleged that it had been denied an appropriate
hearing , and requested an opportunity to produce witnesses and
cross -examine the Petitioner ' s witnesses . Before the Board
acted upon these requests , the Intervenor, onFebruary 20, 1953,
procured a temporary restraining order from the United States
District Court, Southern District of New York, restraining the
Board from further action in the case . The order was vacated
on March 9, 1953 . On March 20 , 1953 , the Board remanded the
case to the Regional Director for further hearing as it desired
additional testimony concerning certain issues. On March 25,
1953 , the Regional Director set the date of April 14, 1953, for
further proceedings , but the Intervenor obtained successive
show cause orders , one of which contained a stay . On May 4,
1953 , the United States Court of Appeals for the Second Circuit
denied the Intervenor ' s application for a stay of the Board's
proceedings pending disposition on appeal of its applicationfor
an injunction.
The Regional Director had scheduled the resumption of the
hearing for April 14, 17, and 24 and May 1 and 4, 1953 . The rec-
ordwas opened briefly on April 24 and May 1, 1953 , but the hear-
ing did not proceed until May 4 , 1953 . On each of these dates the
Petitioner ' s witnesses were available . The Intervenor was
given timely notice on each occasion and advised of its oppor-
tunity to cross-examine the Petitioner ' s witnesses . The Em-
ployer was present each hearing day, but the Intervenor
appeared only on May 1, 1953,whenitmade special appearance
to request a postponement pending the outcome of the argument
for a stay on May 4, 1953 , inthe United States Court of Appeals
for the Second Circuit.
No further testimony was offered by any of the parties. When
the hearing resumed on May 4, the Employer waived its right
to cross-examination , and stipulated with respect to the issues
of jurisdiction and the appropriate unit. It declined to take a
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position regarding the contract-bar issue, submitting that for
determination by the Board.
The Intervenor now contends that it was denied its right to a
fair hearing under the Fifth Amendment to the Constitution of
the United States, Section 9 (c) (1) of the National Labor Rela-
tions Act, and Section 1006 of Title V of the Administrative
Procedure Act. It alleges that the hearing officer improperly
denied its request for a postponement on January 30, 1953, and
that he committed error in taking the Petitioner's testimony
in the absence of the Intervenor. It therefore moved for a
completely new hearing at which it could be present when all
the testimony is offered.
The hearing officer properly denied the postponement on
January 30, 1953. The testimony to be presented by the Inter-
venor's president was not indispensable for the proper disposi-
tion of the issues in this case.' Furthermore, from the Inter-
venor's own statements it appears that this witness was avail-
able to testify at the reopened proceedings held on May 4,
1953, pursuant to the Board's order of March 20, 1953. The
Intervenor had ample opportunity and notice at the reopened
hearing to present testimony by its witnesses, and to cross-
examine the Petitioner' s witnesses.
We therefore find that the hearing officer's rulings made
at the hearing are free from prejudicial error and they are
hereby affirmed. The Intervenor's motion for a new hearing
is denied.
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 organizations involved claim to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of certain employees of the Employer, within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 3
4. The unit which the Employer and the Petitioner stipulated
was appropriate consists of 2 tank stations under common
immediate supervision in Tarrytown and Mount Vernon,
Westchester County, New York. These 2 stations constitute
one of the 5 similar divisions under common ownership and
management. There is some employee interchange between
these 2 stations but none between these stations and the other
divisions. The division sought herein was a separate bargaining
unit from 1943 until it was incorporated into the unit covered
by the contract between the Employer's predecessor and the
Intervenor. The Stamford division has also been separately
represented since it was certified by the Board in 1949.
Pursuant to the stipulation between the Employer and the
t See The Sun Company of San Bernardino, California, 105 NLRB 515.
SOn the second day of the hearing, on the hearing officer's motion, a contract between
the Employer's predecessor and the Intervenor was introduced in evidence. The contract,
dated October 20, 1951, provides that it shall run for 3 years As no party at the hearing
urged the contract as a bar or presented testimony in that connection, we find that this
contract is not a bar. Cf New Jersey Brewers Association, 92 NLRB 1404.
WESTERN HYWAY OIL COMPANY 125
Petitioner, and upon the entire record, fuel oil dispatchers,
service dispatchers, telephone order clerks, and service
mechanics employed at the Employer's Mount Vernon and
Tarrytown, New York, tank stations, excluding clerical and
office employees, guards, watchmen, professional employees,
and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
WESTERN HYWAY OIL COMPANY and CHAUFFEURS, TEAM-
STERS & HELPERS, LOCAL NO. 150, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, AFL, Petitioner.
Case No. 20-RC-2238. July 13, 1953
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 Natalie P.
Allen, 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 Act, the
Board has delegated its powers in connection with this case to
a three-member panel [Members Houston, Styles, and Peter-
son.
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
representation 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 a unit of all permanent truckdrivers
employed by the Employer at its West Sacramento, California,
bulk oil plant, excluding seasonal drivers and plantemployees.
The Employer, relying on the alleged integration of its opera-
tions, interchange among its employees, and collective-bar-
gaining practice in that area, contends only a unit including
both its drivers and plant employees is appropriate. The
Employer takes no position as to the placement of the seasonal
drivers. There is no history of collective bargaining among
any of the Employer's employees.
The Employer, a California corporation, is engaged in the
wholesale marketing of oil products at its West Sacramento
bulk plant where bulk oil products are received and stored and
from which they are distributed. Among its facilities are a
tank "farm" for storing the oil products and a marine dock
where barges tie up to unload their oil cargoes.
106 NLRB No. 14.