The Atlantic Refining Co.

In the Matter of THE ATLANTIC REFINING COMPANY and OIL WORKERS INTERNATIONAL UNION, CIO Case No. 16-K-1166.Decided April 11, 1945 Mr. H. C. Harris, Jr., of Dallas, Tex., and Mr. Harry Rosenblum, of Philadelphia, Pa., for the Company. Mr. F. H. Mitchell, of Port Arthur, Tex., for the Oil Workers. Mr. H. C. Renz, of Dallas, Tex., for the Independent. Mr. H. V. Smith, of Port Arthur, Tex., for the Boiler Makers. Mr. B. A. Brown, of Port Arthur, Tex., for the Pipe Fitters. Mr. L. E. Prothro, of Beaumont, Tex., for the Machinists. Mr. R. L. Webb, of Port Arthur, Tex., for the Electrical Workers. Mr. Walter Monroe, of Port Arthur, Tex., for the Council. Mr. Paul Bisgyer, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Oil Workers International Union, CIO, herein called the CIO, alleging that a question affecting com- merce had arisen concerning the representation of employees of The Atlantic Refining Company,' Port Arthur, Texas, herein called the Company, the National Labor Relations Board provided for an ap- propriate hearing upon due notice before Earl Saunders, Trial Ex- aminer. Said hearing was held at Beaumont, Texas, on February 13 and 14, 1945. The Company, the CIO, Atlantic Employees' Union, herein called the Independent, and International Brotherhood of Boiler Makers, Iron Ship Builders, Welders and Helpers' of America, Lodge #305, herein called the Boiler Makers, Pipe Fitters Local No. 195 of the United Association of Journeymen Plumbers & Steam Fitters of the United States and Canada, herein called the Pipe Fitters, International Association of Machinists, District Lodge No. 31, here- in called the Machinists, International Brotherhood of Electrical Workers, Local Union 390, herein called the Electrical Workers, and 1 Name as corrected. 61 N. L. R. B., No. 64. 485 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Port Arthur Building and Construction Trades Council, herein called the Council, all affiliated with the American Federation of Labor, and herein collectively called the AFL, appeared and participated. All parties were afforded full opportunity to' be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. ` Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Atlantic Refining Company is a Pennsylvania corporation duly registered and licensed to do business in the State of Texas. The Company is engaged in a number of States in the manufacture, refin- ing, and sale of petroleum and petroleum products. In this proceed- ing, we are solely concerned with its Atreco Refinery at Port Arthur, Texas. During 1944, 82 percent of the total crude oil produced or purchased by the Company throughout its operations originated in the State of Texas. For the same period finished products throughout its operations exceeded $50,000,000 in value, of which approximately 20 percent was produced at the Atreco Refinery. Of the products finished at the Atreco Refinery, 31 percent was shipped outside the State of Texas. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Oil Workers International Union, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to mem- bership employees of the -Company. Atlantic Employees' Union is an unaffiliated labor organization admitting to membership employees of the Company. International Brotherhood of Boiler Makers, Iron Ship Builders, Welders and Helpers of America, Lodge x$305, Pipe Fitters Local No. 195 of the United Association of Journeymen Plumbers & Steam Fitters of the United States and Canada, International Association of Machinists, District Lodge No. 31, International Brotherhood of Electrical Workers, Local Union 390, and Port Arthur Building and Construction Trades Council, all affiliated with the American Federa- tion of Labor, are labor organizations admitting to membership em- ployees of the Company. THE ATLANTIC REFINING COMPANY III. TAE QUESTION CONCERNING REPRESENTATION 487 By letter dated December 28, 1944, the Oil Workers notified the Company that it represented a majority of the Company's production and maintenance employees, and requested a coi ference for the pur- pose of negotiating a collective bargaining agreement. The Company replied on January 15, 1945, that it was precluded from recognizing the Oil Workers by reason of its April 2, 1943, contract with the Independent expiring on April 2, 1945. A statement of a Board Field Examiner, introduced into evidence at the hearing, and a Supplemental Report of the Trial Examiner, received as part of the record by stipulation of the parties, indicate that the Oil Workers represents a substantial number of employees in the unit it alleges to be appropriate.2 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Oil Workers seeks, in general, a unit of all hourly paid produc- tion and maintenance employees at the Company's Atreco Refinery. The AFL unions request separate units comprising employees engaged in maintenance occupations which bring them within their respective jurisdictions. More particularly, the Boiler Makers pro- poses a unit of boilermakers, welders, burners, layer-outs, riggers, blacksmiths, and their apprentices and helpers; the Pipe Fitters seeks a unit of pipe fitters, welders, pipe fabricators, plumbers, insulators, their apprentices and helpers, pipe hanger workers, trapmen, instru- ment pipe fitters, and all employees engaged in miscellaneous pipe fitting work; the Machinists seeks a unit of machinists, their help- ers and apprentices, the tool repairman, and the special tool house- man ; the Electrical Workers requests a unit of electricians, instru- ment mechanics, and instrument helpers; and the Council contends for a unit of carpenters and operators of woodworking machines. 2 The Field Examiner reported that the Oil workers submitted 165 authorization cards bearing the names of persons listed on the Company's pay roll of January 4, 1945, which contained the names of 331 employees in the unit the Oil workers alleged to be appropriate. The Field Examiner also reported that the Boiler Makers, the Pipe Fitters, and the Machinists respectively submitted 18, 6, and 6 authorization cards bearing the names of persons listed on the Company's pay roll of January 4, 1945, and that there were 182 employees in the units the AFL alleged to be appropriate. The Trial Examiner, in his Supplemental Report, stated that the following authorization cards were submitted and checked against the aforesaid pay roll : 27 by the Oil workers, 13 by the Pipe Fitters, 5 by the Machinists, 8 by the Electrical workers, and 2 by the Council. The Independent relies upon its contract of April 2, 1943, as proof of its interest in this proceeding This agreement is not raised as a bar herein. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Independent and the Company, agreeing with the Oil Work- ers to the appropriateness of a production and maintenance unit, object to the establishment of separate units sought by the AFL on the ground that, since 1938, collective bargaining at the Refinery has been con- ducted on the basis of a plant-wide unit. In April 1937, the Company commenced operations at its Atreco Refinery and, about a year thereafter, recognized the Independent as the exclusive bargaining representative of its non-supervisory em- ployees at this plant. Since that time the parties have maintained contractual relations, the last agreement having been executed on April 2, 1943 3 As noted above, the AFL would, in effect, nullify the pattern of plant-wide collective bargaining which apparently has achieved and maintained harmony between the Company and its employees at the Atreco Refinery. Nevertheless, no evidence has been presented to warrant such action. Under the circumstances, and in view of the integrated character of the operations at the Atreco Refinery, we find that the separate units proposed by the AFL are inappropriate for the purposes of collective bargaining' There remains for consideration the composition of the unit. The Oil Workers, the Independent, and the Company agree to the inclusion of leadermen,5 and the exclusion of the employees in the classifications listed in Appendix "A" attached hereto. The Oil Workers and the Independent, however, are in dispute with respect to the employees hereinafter discussed, whom the Oil Workers would exclude and the Independent would include.6 Apart from its gen- eral position that working foremen should be included, the company's attitude is neutral with respect to these employees.? 3In November 1941, the Independent's majority status was challenged in representation proceedings (Case No. 16-R-392 ) brought by Oil Workers International Union, Local 23. The Independent won the ensuing consent elections held among the Atreco Refinery em- ployees under Board auspices , International Association of Machinists , Port Arthur Local 823, having participated in one of them. An agreement dated March 2, 1942, entered into by the Independent and the Company following the elections , and the succeeding agreement of April 2 , 1943, appear to cover all but one of the Company 's plants 4 Matter of American Can Co., 13 N. L. R. B. 1252. " They are the machinist leaderman, pipe fitter leaderman, carpenter leaderman , rigger leaderman , exchanger leaderman , and electrician leaderman , whom the Company has not vested with supervisory authority within the meaning of our customary definition. How- ever, with respect to the welder leaderman , see discussion , infra. The Independent indicated that it would include the welder foreman only if he were, in fact, a working foreman. ? The Boiler Makers would include the foreman and boilermaker , exchanger foreman and blacksmith , temporary exchanger foreman , temporary rigger foreman , welder foreman, and welder leaderman. The Pipe Fitters would exclude the foreman and pipe fitter, welder foreman and temporary pipe fitter foreman. The Machinists would include the foreman and machinist, and the Council would exclude the temporary carpenter foreman. THE ATLANTIC REFINING COMPANY 489 The assistant shift foreman and acid operator Three days a week he relieves three assistant shift foremen in the H. F. Alkylation Unit," exercising supervisory powers within the meaning of our customary definition. The other 3 days he performs functions of a regular operating employee. We shall exclude him.9 Wire and safety inspectors There are two such employees, one for the operating units, and the other for the plant. The operating units inspector inspects equip- ment, machinery, and vessels to determine whether repairs can safely be made, and accordingly issues permits to employees to proceed with repairs. The plant inspector checks upon all fire equipment, ex- tinguishers, tank vents, and fire plugs. While both inspectors may re- port instances of individual carelessness, they do not possess supervi- sory functions. Since their work is essentially that of maintenance, they will be included to The relief shift foreman and special tester He serves 3 days a week as shift foreman in the Inspection Labora- tory, during Which time he is vested with the supervisory authority possessed by shift foremen whom the parties stipulated to exclude. The other 3 days he is, a special tester. We shall exclude him as a supervisory employee." Inspection Laboratory employees They perform routine analyses and, like other production em- ployees, are paid on an hourly basis. They are not college graduates, but have received their training at the plant. The Oil Workers would exclude them on the ground that they are employed for the duration of the war.12 Inasmuch as Inspection Laboratory employees perform functions closely related to those of production workers, and have sufficient tenure of employment to entitle them to select bargaining representatives, they will be included.13 s The parties stipulated to the exclusion of assistant shift foremen as supervisory employees. 9 Matter of International Harvester Company, Wisconsin Steel Works, 61 N. L. R. B. 133. 10 Matter of J. S. Abercrombie Company, 58 N. L. R. B. 1013. 11 Matter of International Harvester Company, Wisconsin Steel Works, supra. 12 Although in summarizing its position at the close of the case, the Oil Workers did not list Inspection Laboratory employees among its proposed exclusions , it does not appear that it intended thereby to change its position. 13 Matter of The Ohio Oil Company, 60 N. L. R B 418. It also appears that, although there are employees in other departments who have the same tenure as Inspection Labora- tory employees, the Oil Workers does not seek their exclusion. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Office employees They perform the usual clerical duties in an office which apparently is separated from the operating areas of the plant. Since their in- terests are essentially different from those of production and main- tenance employees, and they have separate supervision, we shall, in accordance with our settled practice, exclude them 14 The storekeeper and the assistant storekeeper They issue and receive materials and do not possess supervisory authority within the meaning of our usual definition. We shall in- clude them. Engineering and Inspection Division employees The Engineering and Inspection Division is a division in the Mechanical Department. It is charged with the duty of inspecting equipment for the purposes of ascertaining whether it is safe to continue in operation. It also does all the plant engineering work. Although the Oil Workers would 'exclude employees working in this division as confidential employees, the record is clear that they are not in a position to acquire confidential information pertaining to the Company's labor relations. We shall include them.15 The maintenance technician in the Commvctmications Department He repairs and keeps in working order the telephone system, and checks electrical equipment on the Company's ships when in ports in the vicinity of the plant. Since the maintenance technician performs regular maintenance work not of a highly technical nature as claimed by the Oil Workers, we shall include him. Foreman and machinist There are three employees who have this classification. For about 65 percent of the year when the plant is in operation, the foreman and machinist is engaged in making repairs to equipment in the plant. However, during 35 percent of the year when main operating units are "shut-down" for the purpose of inspection, repair, and cleaning of equipment,ls he supervises a group usually of- six to eight men17 In "Matter of Ward Leonard Electric Co , 59 N. L R B. 1305 "Matter of Michigan Bell Telephone Company, 58 N L R B , 622 ie During the year the Combination Unit and Cumene Plant has five "shut-downs," each lasting about 10 days ; the Fluid Catalyst Cracking Unit has three "shut-downs," each lasting about 3 weeks ; and the H F. Alkylation Unit has five "shut-downs" of from 1 to 4 days each. 17 These groups may include regular operating men, casual employees hired solely for the duration of the "shut-down." machinists and probably other maintenance men THE ATLANTIC REFINING COMPANY 491 such capacity the foreman and machinist exercises supervisory powers, with the Company giving his recommendations regarding the status of employees the same "serious consideration" as it accords to the recom- mendations of supervisory employees to whose exclusion the parties have stipulated. The foreman and machinist tests the equipment worked upon by his subordinates whorl he may also assist. He is sal- aried like other supervisory employees. We shall exclude the foreman and machinist.l$ Foreman and pipe fitter, foreman and boilermaker, and exchanger foreman and blacksmith These employees are in the same category as the foreman and ma- chinist and we shall accordingly exclude them as supervisory employees. Temporary foremen (temporary pipe fitter foreman, temporary car- penter foreman, temporary rigger foreman, temporary shut-down foreman, and temporary exchanger foreman) These classifications are ordinarily used during shut-down periods 19 Temporary foremen are vested with the same supervisory authority as a foreman and machinist and, except for the temporary exchanger foreman, the same employees are chosen for these positions when the occasion arises. They supervise groups engaged in dismantling, clean- ing, and inspecting equipment.20 They will be excluded as supervisory employees. The welder foreman The Company has not used this classification for about 4 years. However, it indicated at the hearing that it expected within a week or two thereafter to fill this position, and that the person acting in such capacity will have the supervisory authority of a foreman. We shall exclude the welding foreman. The temporary electrician foreman He acts in such capacity only during the electrical foreman's absence which totals about 3 or 4 weeks a year, while at all other times he dis- charges the ordinary duties of an electrician. Since the temporary 'e Matter of California Packing company, 59 N. L R. B 941. The temporary pipe fitter foreman and temporary carpenter foreman classifications may also be used for temporary jobs while the plant is in operation. 2° The record indicates that the temporary pipe fitter foreman supervises 20 men on the average, but may supervise between 10 and 30, while the temporary carpenter foreman is in charge of between 3 and 10 men. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD electrician foreman's supervisory functions are inconsequential, he will be included.- We find that all production and maintenance employees at the Com- pany's Atreco Refinery, at Port Arthur, Texas, including the machinist leaderman, pipe fitter leaderman, carpenter leaderman, rigger leader- man, exchanger leaderman, electrician leaderman, fire and safety in- spectors, inspection laboratory employees, the storekeeper, the as- sistant storekeeper, Engineering and ,Inspection Division employees, the maintenance technician in the Communications Department, and the temporary electrician foreman, but excluding office employees, employees in the classifications listed in Appendix "A" attached hereto, the assistant shift foreman and acid operator, the relief shift foreman and special tester, foreman and machinist, foreman and pipe fitter, foreman and boilermaker, exchanger foreman and blacksmith, temporary pipe fitter foreman, temporary carpenter foreman, tem- porary rigger foreman, temporary shut-down foreman, temporary exchanger foreman, the welder foreman, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. In view of the AFL's over-all showing of representation, we shall afford it an opportunity to participate in the election under the desig- nation of "American Federation of Labor" with the privilege of with- drawing by notifying the Regional Director within 5 days of this Decision and Direction of Election. The welder leaderman's eligibility to vote in the election will de- pend upon whether or not he is vested with supervisory authority on the eligibility date herein provided.22 If he possesses such authority, he will be disqualified from voting; otherwise, he may cast a ballot 23 21 Matter of The Lennox Furnace Company, 60 N. L R. B 1329. 22 At the time of the hearing, the welder leaderman was exercising supervisory authority as "acting welder foreman." 23 In connection with the overhauling of operating units during "shut-downs," the Com- pany hires casual labor for periods lasting from 1 day to 3 weeks. The same men are not necessarily rehired for the various "shut-downs," and are not placed on the permanent pay roll. We find, in accordance with the apparent agreement of the parties, that such THE ATLANTIC REFINING COMPANY 493 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, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Atlantic Re- fining Company, Port Arthur, Texas, 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, under the direction and supervision of the Regional Director for the Sixteenth Region, acting in this mat- ter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during the said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by Oil Workers International Union, CIO, by Atlantic Employees' Union, or by American Federation of Labor, for the purposes of col- lective bargaining, or by none. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election. APPENDIX "A" Chief Process Supervisor Assistant Chief Process Super- visor Special Engineer Shift Process Supervisor Assistant Shift Foremen Foreman (Pumping and Treating Division) Supervisor (Plant-Protection Group) Corporal of Guards Gateman Patrolman Watchman Bumperman (Plant-Protection Group) Supervisor (Inspection Labora- tory Assistant Supervisor (Inspection Laboratory) Gas Analysis Foreman Chemical Analysis Foreman casual employees do not possess sufficient interest in the election to entitle them to vote therein. 639678-45-vol. 61-33 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shift Foreman Octane Foreman Chief Accountant Assistant Chief Clerk and Store- keeper Superintendent (Mechanical De- partment) General Foreman .(Maintenance Division) Assistant General Foreman (Maintenance Division), Labor Foreman (Maintenance Division) Instrument Foreman Assistant Instrument Foreman Supervisor (Engineering and In- spection Division) Plant Engineer (Power Depart- merit) Foreman (Power Department) Electrical Foreman (Power De- partment)