Sinclair Refining Co.

National Labor Relations Board - Board Decisions

Oct 2, 1941

35 N.L.R.B. 1145 (N.L.R.B. 1941)

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.