Sinclair Refining Co.Download PDFNational Labor Relations Board - Board DecisionsOct 2, 194135 N.L.R.B. 1145 (N.L.R.B. 1941) Copy Citation In the Matter of SINCLAIR REFINING COMPANY and BULK DISTRIBUTING PLANT EMPLOYEES UNION Case No. R-2897.-Decided October 0, 1941 Jurisdiction : oil refining industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition; election necessary. Unit Appropriate for Collective Bargaining : partial system unit comprising all employees at four of the Company' s plants including construction and equip- ment repair men and porters, but excluding salesmen , supervisory and clerical employees, merchandisers , automotive mechanics and two special construction and equipment repair men. Mr. Joseph P. Walsh and Mr. Vernon W. Rooke, of New York City, for the Company. - Mr. David G. Osterer, of New York City, and Mr. William. Tumulty, of Brooklyn, N. Y., for the B. D. P. E. Mr. C. H. Chafn, of Camden, N. J., for the Oil Workers. Mr. William H. Bartley, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 9, 1941, the Bulk Distributing Plant Employees Union, herein called the B. D. P. E., filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of the Sinclair Refining Company, New York City, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 7, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon due notice. 35 N. L . R. B., No. 209. 1145 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 12. 1941 , the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the B. D. P. E ., and Oil Workers International Union, Local 431, affili- ated with the Congress of Industrial Organizations , herein called the Oil Workers , a labor organization directly affected by the investiga- tion. Pursuant to notice , a hearing was held on August 18 , 1941, at New York City before Louis Newman , the Trial Examiner duly designated by the Chief Trial Examiner . The Company was repre- sented by its counsel and its assistant district manager; the B. D. P. E. by its attorney and its president ; and the Oil Workers by . its inter- national representative . All participated in the hearing . Full op- portunity to be heard , to examine and cross -examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made rulings on motions and on objections to the admission of evidence . The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. On, August 20, 1941, the Oil Workers moved to dismiss the petition and requested permission to file a brief and to argue -orally before the Board. On August 21, 1941, the Board denied the motion for oral argument but granted all parties until September 5, 1941, to file briefs. The motion by the Oil Workers to dismiss the petition is hereby denied. Briefs were filed by Oil Workers and by the Company and have been duly considered by the Board. On August 28, 1941, counsel for the Company , the B . D. P. E., and the Oil Workers entered into a stipulation for the correction of certain errors in the transcript of testimony . The Board hereby orders that the stipulation be made a part of the record and that the transcript be corrected in accordance with the stipulation. Upon the entire record in the case , the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Sinclair Refining Company is a Maine corporation with its princi- pal office in New York City . It is a subsidiary of Consolidated Oil Corporation , and is engaged in the business of refining , transporting, and marketing petroleum and petroleum products throughout the United States . In the Metropolitan New York Area, the Cothpany operates five bulk plants known as the Mt. Vernon, Newtown Creek, Mill Basin, Inwood, and Great Neck plants, at which only finished petroleum products are received and stored and from which said prod- ucts are distributed . The Company employs a total of 252 employees at these five plants . During the first 6 months of 1941 , more than 95 SINCLAIR REFINING COMPANY 1147 per cent of approximately 36 million gallons of petroleum products received by these plants" were shipped from points outside the State of New York. All petroleum products handled at the five bulk plants are sold and delivered within the State of New York. The Company admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Bulk Distributing Plant Employees Union is an unaffiliated labor organization admitting to membership employees of the Company. Oil Workers International Union, Local 431, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The B. D. P. E. has requested the Company to recognize it as the exclusive bargaining representative of the employees in the unit claimed by it to be appropriate. The Company has refused to recog- nize the B. D. P. E. unless the Board certifies it as the exclusive representative of such employees. A stipulation by the parties intro- duced in evidence at the hearing states that the B. D. P. E. and the Oil Workers each represents a substantial number of employees in the unit hereinafter found appropriate. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE. We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The B. D. P. E. contends that certain employees in the four bulk plants at Newtown Creek, Mill Basin, Inwood, and Great Neck, con- stitute the appropriate unit. The Company contends that employees in the Mt. Vernon bulk plant should be included, since it is also located in the Metropolitan New York Area. The Oil Workers contends that, 'The parties stipulated that each union represented a substantial number , of the em- ployees in either a 4-plant or 5-plant unit 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the event the Board refuses to dismiss the petition, the employees in each bulk plant should constitute a separate unit, at least until such time as a larger unit is established on a district-wide, Company-wide, or industry-wide basis. The five bulk plants are a part of the Eastern Marketing Area which also includes Putnam County, Westchester County, and Long Island, all in New York; the State of New Jersey; and territory in the western part of the State of Connecticut. The Eastern Marketing Area is under the supervision of a district manager and an assistant district manager. Vernon W. Rooke, the assistant district manager, is in charge of personnel and labor problems of plants in this area. Under Rooke there is an agent in charge of each bulk plant. Each plant serves a specified geographical area. The wages and hours at the five plants are substantially the same, and seniority is computed over all five plants. There are occasional transfers of employees from plant to plant during emergencies. The Company contends that a unit com- posed of less than the five bulk plants would work a serious hardship on the Company because of the many problems which would arise in transferring employees from one plant to another. The Oil Workers has a contract with the Company covering wages, hours of employment, and working conditions of its members only. The preamble of this contract recites that it refers only to members of Oil Workers employed at the Newtown Creek, Mill Basin, Inwood, and Great Neck bulk plants. Neither the Oil Workers nor the B. D. P. E. have ever claimed to represent a majority of employees in the Mt. Vernon plant or in a unit which included the Mt. Vernon plant, and neither organization has ever requested that the Company recog- nize it as the exclusive representative of the Mt. Vernon plant or a unit including the Mt. Vernon plant. The record does, however, show that both organizations have a substantial number of members in the other four bulk plants. Since the, wages, hours of employment, and working conditions at the four plants are substantially the same, and since they are all located within a very small area, and are under the jurisdiction of the same assistant district manager, we think that single plant units would be inappropriate. We find, therefore, that upon the extent of present organization, a unit including the four bulk plants, but excluding the Mr. Vernon plant, is appropriate for the purposes of collective bar- gaining within the meaning of the-Act. We have next to determine what classes of employees should be included in the appropriate unit. The Company has taken no position on this question, The Oil Workers and the B. D. P. E. agree that the unit should include truck drivers, dispatchers, washers, greasers, load- ers, watchmen-loaders, and watchmen, and that salesmen and super- visory and clerical employees should be excluded. The B. D. P. E. SINCLAIR REFINING COMPANY 1149 contends that the construction and equipment men, herein called the C & E men, and automotive mechanics should be included and that porters should be excluded. The Oil Workers requests that we include the porters and exclude the C & E men, automotive mechanics, and merchandisers. We shall consider separately these classes of employees. C cC E men. There are 16 men engaged in construction and equip- ment repair work on dispensing equipment. They deliver pumps and other equipment and occasionally deliver oil in connection with instal- lations. They do not make regular sales deliveries, as this is the function of the truck drivers. Occasionally in an emergency a C & E man makes a sales delivery. Almost all the C & E men are licensed chauffeurs. They work directly under the C & E foreman at each plant, who is in turn under the plant agent in charge. There are no C & E men stationed at the Inwood plant as this work is handled by those at the Great Neck plant. The C & E men stationed at Great Neck perform some work outside the Metropolitan New York Area and this is one of the chief objections of the Oil Workers to their inclusion in the unit. The wages of C & E men are slightly lower than the wages of the truck drivers and slightly higher than those of other. classes of employees. They are on the same pay roll as other employees and are paid bi-weekly, but on a weekly basis. C & E men occasionally have been promoted to truck drivers. Truck drivers are sometimes transferred to the C & E list as painters during the spring season when the fuel oil business is slack. Both the B. D. P. E. and the Oil Workers admit them to membership. There are also two special C & E men, Perlberg and Gross, who are in charge of the maintenance and the equipment located at the bulk plants proper. They are not under the supervision of the C & E foremen at these plants and are paid directly from the main New York office. They also work in plants other than the five bulk plants. We see no reason for the exclusion of the C & E men, with the exception of Perlberg and Gross whom we shall exclude, since they work in other plants and are outside the jurisdiction of -the agent' in charge of the plants. The other C & E men, however, have the same interests and work under the same conditions as do other employees in the bulk plants. It is true that the C & E men at Great Neck do work outside the Metropolitan New York Area, but a great deal of their work is done in the Great Neck and Inwood plants and they are super- vised by the C & E foreman, who is in turn responsible to the agent in charge of the Great Neck plant. We shall therefore include all C & E men stationed at the Newtown Creek, Mill Basin, Inwood, and Great Neck plants, but we shall exclude Perlberg and Gross. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Automotive mechanics. There are'six automotive mechanics under the Superintendent of Motor Vehicles, who is not under any of the plant agents. The 1I1echanics repair trucks and automotive equipment in all plants in the Eastern Marketing Area and are not stationed at any one plant.- Except in an emergency the mechanics do not take orders from the plant agent. Their wages vary from $170 to $197.50 per month, which is substantially higher than wages paid other classes of employees. They are paid on a monthly basis but receive their salaries semi-monthly. The B. D. P. E. admits them to membership and desires their inclusion in the unit. The Oil Workers desires their exclusion because they work outside the Metropolitan New York Area. Because their work is of a different character than that of other employees, because their wages are substantially higher, and because they are not under the jurisdiction of the plant agents and are not confined to the four plants which we have found to constitute an appropriate unit, we find that the automotive mechanics should be excluded from the unit. Merchandisers. There are 15 merchandisers. The record does not reveal exactly what these employees do, but their title indicates that they are a class of salesmen. The B. D. P. E. took no position as to the inclusion of these workers. The Oil Workers requested that they be excluded. Since both unions requested that other sales- men be excluded, and since neither the Company nor the B. D. P. E. raises any objection to the request of the Oil Workers that the mer- chandisers also be excluded, we shall exclude them from the unit. Porter. There is only one porter listed on the Company's pay roll. Since a porter's duties are in the nature of those of a maintenance employee, and since the B. D. P. E. gave no reason for requesting that the porter be excluded, we shall include him in the unit. We find that all employees of the Company at the Newtown Creek, Mill Basin, Inwood, and Great Neck bulk plants, including C & E men and porters, but excluding salesmen, supervisory and clerical employees, merchandisers, automotive mechanics, and Perlberg and Gross, the two special C & E men, constitute a unit appropriate for the purposes of collective bargaining. We further find that such unit will insure to the employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. In accord- ance with our usual practice, we shall direct that those eligible to vote in the election shall be the employees in the appropriate unit SINCLAIR REFINING COMPANY 1151' who Were employed by the Company during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to such additions and limitation as are hereinafter set forth in the Direction. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of Sinclair Refining Company, New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the-National Labor Relations Act. 2. All employees of the Company at the Newtown Creek, Mill Basin, Inwood, and Great Neck bulk plants, including C & E men and porters, but excluding salesmen, supervisory and clerical employees, merchandisers, automotive mechanics, and Perlberg and Gross, the two special C & E men, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Sinclair Refining Company, New York City, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direc- tion and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all employees of the Company at the Newtown Creek, Mill Basin, Inwood, and Great Neck bulk plants, employed during the pay- roll period inmediately preceding the date of this Direction of Elec- tion, including C & E men and porters, and employees who did not work during said pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding salesmen, supervisory and clerical employees, merchandisers, automotive mechanics, and Perlberg and Gross, the two special C & E men, and those employees who have since 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quit or been discharged for cause, to determine whether they desire to be represented by Bulk Distributing Plant Employees Union, or by Oil Workers International Union, Local 431, affiliated with the Con- gress of Industrial Organizations, for the purposes of collective bar- gaining, or by neither. Copy with citationCopy as parenthetical citation