Tide Water Associated Oil Co.

In the Matter of TIDE WATER ASSOCIATED OIL COMPANY and UNITED PETROLEUM WORKERS Cases Nos.. R-5736 and ^-R 5797. IDecided July 11, 19116 Messrs. C. A. McLain, Thomas F. Hilbert, Jr., and Mathew F. McCue, all of New York City, for the Company. Brenner, Butler & McVeigh, by Messrs. John J. Corrigan and Edward J. Murphy, both of New York City, for the Union. Mr. Jerome J. Dick, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon separate amended petitions duly filed by United Petroleum Workers, herein called the Union, alleging that questions affecting commerce had arisen concerning the representation of employees of Tide Water Associated Oil Company, New York City, herein called the Company, the National Labor Relations Board provided for an appropriate consolidated hearing upon due notice before Richard J. Hickey, Trial Examiner. The hearing was held at New York City, on May 16, 1946. The Company and the Union appeared and par- ticipated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. At the hearing, the Company moved to dismiss on various grounds the amended petitions in both Case No. 2-R-5736 and Case No. 2-R-5737. For the reasons stated in Sections III and IV, infra, the motions to dismiss are denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded 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 Tide Water Associated Oil Company, a Delaware Corporation with one of its principal offices at New York City, is engaged in producing, 69 N L. R B., No. 50 419 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transporting, refining, and marketing petroleum and petroleum prod- ucts throughout the United States and foreign countries. It utilizes a fleet of ocean-going tankers to transport crude petroleum and manu- factured products to and from its refineries and marine terminals, and from its suppliers to its customers located in various States of the United States . The Company also has producing operations, bulk plants, and service stations located throughout the United States. The Company's plants involved in these proceedings are the bulk plants and offices located in Long Island City, Westbury-Roslyn, and Yonkers, all in New York, where the Company stores and distributes petroleum products and accessories. During the calendar year 1945, approximately 90 percent of the petroleum products stored in and dis- tributed from these three bulk plants was shipped from the Company's refinery in Bayonne, New Jersey. During the same period more than 99.9 percent of the Company's sales from these bulk plants was con- fined within the State of New York, and petroleum products valued at approximately $2,000 were shipped from these three plants to points outside the State of New York. The Company does not deny, and we find, that the operations of its three bulk plants and offices involved herein affect commerce within the meaning of the National Labor Relations Act. II. TILE ORGANIZATION INVOLVED United Petroleum Workers is an unaffiliated labor organization, admitting to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION The Company has declined to recognize the Union as the collective bargaining representative of its chief clerks, yard foremen, and dis- patchers 1 on the ground that, as supervisors, they are not "employees" within the meaning of the Act. The status of supervisory personnel has been considered in a number of cases. Both the Board 2 and the Courts 3 have held that, in relation to their employer, supervisors are "employees" within the meaning of the Act. Accordingly, we find that the Company's chief clerks, yard foremen, and dispatchers are "employees" within the meaning of the Act. 1 The Union , in opposition to the Company, contends that the dispatchers are not supervisory employees , however, in Section IV, infra, we and dispatchers to be supervisory employees. 2Matter of Soss Manufacturing Company, et al., 56 N L. It. B. 348, Matter of Packard Motor Car Company, 61 N. L It. B . 4 and 64 N L. R. B. 1212 ; Matter of The Midland Steel Products Company, 65 N. L. It. B. 997. 3 N. L. R. B. v. Armour it Co., 154 F. (2d) 570 (C. C. A. 10) ; Jones it Laughlin Steel Corporation v. N. L. R . B., 146 F. (2d) 833 (C. C. A. 5) ; N. L. R. B. v. Skinner it Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8). TIDE WATER ASSOCIATED OIL COMPANY 421 We find that questions affecting commerce have 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 'UNITS The Union seeks a unit of all yard foremen and chief clerks at the Company's Long Island City, Westbury-Roslyn, and Yonkers plants, excluding all other employees. In the alternative it seeks separate units of the yard foremen and chief clerks. The Union also seeks to enlarge the scope of its present bargaining unit of operations em- ployees at the Long Island City, Westbury-Roslyn and Yonkers plants 4 by adding thereto all the Company's dispatchers at the Long Island City Plant.-' In the event that the Board finds that the dis- patchers are supervisory employees, the Union seeks to include the dispatchers in the unit of yard foremen and/or chief clerks. But the Company maintains that yard foremen, chief clerks, and dispatchers are managerial personnel and that any unit of these persons would therefore be inappropriate; and that in any case it would not be in consonance with the Act for the Union, as the representative of rank and file employees at these three plantss to represent the yard fore- men, chief clerks, and dispatchers. However, the Company does not object to the composition of any of the groupings sought or to their multi-plant scope.7 There are two yard foremen at the Long Island City plant, a like number at the Yonkers plant, and three at the Westbury-Roslyn plant. The yard foremen at each plant are under the immediate supervision of a plant operator, who in turn is responsible to the district sales supervisor in charge of the bulk plants. They are responsible for the receipt, storage and gauging of all products and are also responsi- ble for the proper maintenance and operation of the plant and its equipment. They also supervise the activities of checkers, warehouse- men, and watchmen, and at the Yonkers and Westbury-Roslyn plants the yard foremen do the work of dispatchers. In addition, they have the authority to hire and discharge casual labor, and the power to make effective recommendations to the plant operator and district sales supervisor with regard to hiring, promoting, disciplining, and discharging the employees under their supervision. 4 The Union also represented the operations employees at the Company's Port Jefferson plant which is no longer in operation 5 The Long Island City plant is the only plant among the three involved herein which employs dispatchers. 0 In addition to the operations unit the Union also represents a separate unit of the Company's clerical employees at the Long Island City and Westbury-Roslyn plants. 'The Long Island City, Westbury-Roslyn, and Yonkers plants are the only bulk plants of the Company located within the Metropolitan area of New York City, and they are all tinder the same operating supervisor. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is one chief clerk at each plant, who is in charge of its account- ing, statistical , and clerical work, which is performed in accordance with policies established by the Company's comptroller. The chief clerk also supervises the preparation of pay-rolls and the recording of incoming and outgoing deliveries for his plant. In addition, he has the authority effectively to recommend the hiring, discharging, and disciplining of subordinate employees. The parties agree, and it is clear, that the yard foremen and chief clerks are supervisory employees. There are three dispatchers at the Long Island City plant who per. form part of the duties which are performed by yard foremen at the Yonkers plant and the Westbury-Roslyn plant . They are concerned with the actual distribution of products by trucks from the plant to the customers . More specifically, they arrange for the loading of trucks, assign routes and trucks to the drivers , and choose the drivers to work overtime . Prior to 1931 they had the authority to hire and discharge truck drivers ; at the present time they have the authority effectively to recommend the hire, discipline , and discharge of drivers. On Sunday, the dispatcher on duty is in entire charge of the plant. The wages of all dispatchers are higher than those of the drivers and are comparable to the salaries of the yard foremen and chief clerks. In addition, they have the same sickness plan as the yard foremen and chief clerks. Like the yard foremen and chief clerks , and unlike the drivers, they work 48 hours and do not receive overtime pay. The Company considers the dispatchers to be on the same level of supervision as the yard foremen. Under the circumstances, we find that the dispatchers are supervisory employees and, accordingly, we shall not provide for their possible inclusion in the unit of non- supervisory operations employees represented by the Union. The Company asserts that the yard foremen , chief clerks, and dispatchers are direct representatives of management and, on this premise, urges that they cannot form any type of appropriate unit. In Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division," we discussed the purpose and policy of the Act. We pointed out that the National Labor Relations Act was intended to encourage the practice of collective bargaining as a means of settling labor disputes, that this policy was as applicable to labor disputes in- volving supervisors as to those pertaining to rank and file employees, and that there could be an appropriate unit of supervisory employees. Accordingly, we find no merit in the Company's position. The Company also contends that the Union may not represent the yard foremen, chief clerks and dispatchers because it presently repre- 166 N. L . R. B 386 See also Matteti of L A Young Spianq & Wire Corporation, 65 N L R. B. 298 TIDE WATER ASSOCIATED OIL COMPANY 423 sents rank and file employees at the three plants concerned. We have in recent cases, howvever, considered and rejected similar contentions.' We held in those cases, as we do here, that the Board had no power to place any limitation on the right of supervisory employees to select for the purposes of collective bargaining representatives of their own choosing. We believe that the yard foremen and the dispatchers, who supervise operations personnel, should be included in one unit. And we are also of the opinion that the chief clerks, who supervise clerical employees, should be placed in another. These are the bargaining patterns estab- lished for rank and file employees generally ; they are also the form of organization which is followed for the Company's own rank and file employees. These same patterns are therefore followed for the yard foremen and dispatchers on the one hand, and for the chief clerks on the other.'° We find that the following groups of employees constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : 1. All yard foremen and dispatchers at the Company's Long Island City, Westbury-Roslyn, and Yonkers plants, excluding all other employees. 2. All chief clerks at the Company's Long Island City, Westbury- Roslyn, and Yonkers plants, excluding all other employees. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the questions concerning representation which have arisen be resolved by elections by secret ballot among employees in the appropriate units who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions 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 Tide Water As- See e g. Matter of The Curtis Bay Towing Company of Pennsyltanza, et as., 66 N L R B 1152. 10 See Matter of Western Electric Company, Ineorpoi aled, 68 N L R B 493. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sociated Oil Company, New York City, elections 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 Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among employees in the units 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 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 elections, to determine whether or not they desire to be repre- sented by United Petroleum Workers, for the purposes of collective bargaining. MR. GERARD D. REILI.Y, dissenting: For the reasons stated in my dissenting opinions in Matter of Packard Motor Car Company, 61 N. L. R. B. 4, and Matter of Jones d Laughlin Steel Corporation, 66 N. L. R. B. 386, I am constrained to dissent from the majority opinion in this case.