Pan American Refining Corp.

PAN AMERICAN REFINING CORPORATION 625 Direction of Election. All persons hired since May 31, 1951, the date of the strike, and all strikers shall be presumptively 3 eligible to vote, subject to challenge. Approximately five production and maintenance employees work on a part-time basis. The Employer takes the position that they have a sufficient interest in bargaining conditions at the plant to make them eligible to vote in the election. The Petitioner disagrees. It is not clear in the record whether the part-time employment is casual or regular. Regular part-time employees are eligible to vote; casual em- ployees are not eligible .4 Part-time employees may vote subject to challenge. Challenged ballots shall not be counted unless they affect the re- sults of the election, in which event the question as to which of these ballots shall be opened and counted will await a further investigation concerning the employment status of the affected individuals. [Text of Direction of Election omitted from publication in this volume.] 3 Nothing in this Decision should be construed as Indicating that the Board has prejudged any of the questions which may be drawn into issue by a challenge to the eligibility of certain voters , Including such questions as to whether ( 1) a new employee is a permanent replacement , ( 2) an employee who went on strike has been validly replaced, or (3) any employee's position no longer exists by reason of Its permanent discontinuance for economic reasons. The Pipe Machinery Company, 76 NLRB 247. 4 The Morrison Milling Company, 83 NLRB 800. PAN AMERICAN REFINING CORPORATION and ASSOCIATED GUARDS OF GALVESTON COUNTY, PETITIONER. Case No. 39-RC-292. July 26, 1951 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 Clifford W. Potter, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 1 The motion of Oil Workers International Union, CIO , Local 449 , hereinafter called the Intervenor, to dismiss the petition is denied . It is not the Board's function in a representation proceeding to pass upon the question of whether or not the property rights of the parties will be affected by the action taken herein . Boston Machine Works Com- pany, 89 NLRB 59. 95 NLRB No. 71. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2., The labor organizations involved claim to represent certain em- ployees of the Employer? 3. On July 1, 1949, a contract was executed by the Employer and the Intervenor as the sole representative of all production and main- tenance employees, including guards, at the Employer's Texas City refinery. This contract was to continue for 2 years, with the provi- sion that at the end of 1 year, either party could terminate the agree- ment by giving to the other party not less than 60 days' written notice prior to July 1, 1950. On January 4, 1951, the contract was modified, the modified contract to be effective as of July 1, 1949, and to continue for 3 years. The petition was filed March 12; 1951. The Intervenor contends that this proceeding is barred by its existing contract with the Employer. As the petition was timely filed in relation to the original con- tract term which was prematurely extended by the agreement of January 4, 1951, we find that the contract presently in force between the Intervenor and the Employer is not a bar to this proceeding.3 There is testimony in the record, elicited by the Intervenor, indi- cating that Petitioner had at one time as its business representative a person who now represents, the Intervenor in its bargaining with the Employer. However, Petitioner's witness stated that the Petitioner has no business representative at this time, and this evidence is uncon- tradicted by the record. Accordingly, we conclude that there is no present relationship between the Petitioner and the Intervenor, and we find that the Petitioner is not presently affiliated directly or'indi- rectly within the meaning of Section 9 (b) (3) of the Act, with.the Intervenor or any other labor organization which admits to its mem- bership persons other than guards.4 We find that 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 appropriate unit : The Petitioner desires to be certified as the bargaining representa- tive of a unit composed of employees in the plant-protection depart- ment at the Employer's Texas City, Texas, plant, excluding supervisors. The parties apparently agree that these employees are , At the hearing, the Employer and the Intervenor refused to stipulate that the Peti- tioner is a labor organization within the meaning of the Act. As the,Petitioner exists for the purpose of engaging in collective bargaining with the Employer with respect to wages, hours, and other conditions of employment, we find that the Petitioner is a labor organization as defined in the Act. The Suffolk Peanut Company, 94 NLRB No . 150; Bar- mac, Inc., 89 NLRB 139. , Gimbel Brothers, Inc., 87 NLRB 449; American Steel Foundries, 85 NLRB 19; Robert- shaw-Fulton Controls Company, 77 'NLRB 316; see Western Electric Company, Incorporated, 94 NLRB 54 ; Republic Steel Corporation, 84 NLRB 483. See Brooklyn Piers Inc., 88 NLRB 1364 ; International Harvester Company, 81 NLRB 374; Chrysler Corporation, 79 NLRB 462. PAN AMERICAN REFINING CORPORATION 627 guards within the meaning of the Act,5 but disagree with, respect to the composition of the unit. The Employer contends, over the objection of the Petitioner, that four patrol sergeants and one gate- man-patrol sergeant should be- excluded from the unit as supervisors. The Intervenor maintains that these employees, as well as the rest of the employees in the plant-protection department, are covered . by the existing agreement between the Employer and the Intervenor and that the unit is therefore inappropriate.° The classification of patrol sergeant arose during World War II when someone was needed to check up on the guards and to coordinate their activities. The four full-time patrol sergeants are paid 15 cents more per hour than the other plant-protection employees and wear a distinctive cap insignia. The patrol sergeants rotate shifts so that each of them -regularly works night shifts. During the daylight shift, they patrol the prop- erty in a radio-equipped car, and see that. the work of the guards is carried out. As the chief and assistant chief of the plant-protection department are away from the plant during the night shifts, the patrol sergeant on duty is the highest ranking individual in the department. The patrol sergeant performs about the same duties at night as he does during the day shift. Although in the event of something extremely unusual he would ordinarily contact the chief or assistant chief of the department if they were available, the patrol sergeant is authorized to take such action on the spot as he deems necessary when these superiors are not at the plant. Moreover, the patrol sergeant has authority to change the assignments of the men working under him. If an em- ployee fails to report for his shift, the patrol sergeant may hold a man over from the previous shift; or if the patrol sergeant wishes to replace the missing employee he may summon a man from another department in the plant or transfer a guard on duty to a vacant post. In discharging their duties on the night shift, the employees in ques- tion make decisions which require the exercise of independent judg- ment. It is clear., therefore, that at least when these patrol sergeants are on the night shift, they are acting as supervisors within the meaning of the Act.7 The Board has repeatedly held that if an employee serves as a supervisor for a fixed and substantial period during the regular course of his employment, he should be excluded from a unit as a super- 6 The record shows that these employees are guards as defined in the Act , and we so find. 9 The bargaining history at the Employer's plant reveals that the Intervenor has rep- resented pi6duction and maintenance employees and guards in a single unit. However, when the Board finds a unit of guards to be appropriate , the Board is required by the Act to certify a bargaining representative which does not represent employees other than guards. -- P See Southern Industries Company, 92 NLRB 998 ; Pan American Refinining Corporation, Chemical Division, 85 NLRB 1506; Pittsburgh Plate Glass Company, 53 NLRB-1181. - 961974-52-vol . 95--41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visor.8 Accordingly, we find that the patrol sergeants are supervisors and shall exclude them from the unit a We find that all plant-protection employees at the Employer's Texas City, Texas, plant, excluding all supervisors as defined in the Act,-' constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] MEMBERS MURDoCK and STYLES took no part in the consideration of -the above Decision and Direction of Election. 8 Evening News Publishing Company, 93 NLRB 1355 ; Salt Lake Refining Company, 86 NLRB 68 ; The Texas Company, Salem Gasoline Plant, 85 NLRB 1211 ; Pan American Refining Company, supra, footnote 6. 6 The gateman-patrol sergeant works as a gateman 4 days a week and as a patrol sergeant on the night shift 1 day a week. As he performs the same duties and has the same re- sponsibilities on the night shift as the full-time patrol sergeants , we find that the gateman- patrol sergeant is a supervisor and shall exclude him from the unit. See footnote 7, supra. 10 Excluded In this classification in accordance with the agreement of the parties are the chief and assistant chief of the plant-protection department. THE STANDARD LIME AND STONE COMPANY and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA , CIO, PETITIONER. Case No. 8-RC-1231. July 06, 1951 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 Carroll L. Martin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' The Employer's request for oral argument is denied, inasmuch as the record and the briefs, in our opinion, adequately present the positions of the parties. Upon the entire record in this case, the Board finds 1. The Employer is engaged in commerce within the meaning of the Act. At the hearing, District 50 , United Mine Workers of America, and Its Local 12965, here- inafter called the Intervenor , were permitted to intervene in this proceeding, notwithstand- ing their noncompliance with the filing requirements of the Act . The Petitioner objected to the allowance of the intervention upon the ground of the Intervenor 's noncompliance and upon the further ground that the contract contains an illegal union -security clause.- We have previously held that It was not error to permit the intervention of a noncomplying union which has a colorable claim to a contractual interest . The Liquid Carbonic Corpora-; tion, 85 NLRB 284; Cf. Northern Indiana Public Service Corporation, 91 NLRB 172. See, footnote 9, infra. 95 NLRB No. 66.