Sinclair Refining Co.

In the Matter of SINCLAIR REFINING COMPANY and INDEPENDENT PETROLEUM SUPERVISORS' ASSOCIATION (UNAFFILIATED) Case No. 2-R-6346.-Decided July .26, 1946 Messrs. Josephs P. Walsh and Everett L. Dodrill, both of New York City, for the Company. Brenner, Butler & McVeigh, by Mr. Johm. J. Corrigan, of New York City, for the Union. Mr. Emil C. Farkas, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon a petition duly filed by Independent Petroleum Supervisors' Association (Unaffiliated), herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Sinclair Refining Company, New York City, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before John J. Cunee, Trial Examiner. The hearing was held at New York City, on May 20, 1946. The Company and the Union appeared and participated. All parties were afforded an opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing, the Company moved to dismiss the petition on various grounds. The Trial Examiner referred this motion to the Board. For reasons indicated hereinafter, the motion is hereby denied. All parties were afforded opportunity to file briefs with the Board. The Company's request for oral argument is denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF TIIE COMPANY Sinclair Refining Company, a Maine corporation, is a subsidiary of Sinclair Oil Corporation. The Company is engaged in refining and 69 N. L. R. B., No. 118. 970 SINCLAIR REFINING COMPANY 971 producing crude oil and petroleum products, which it ships from its various refineries to bulk storage plants located in the State of New York and other places in the United States for sale and distribution. This proceeding involves 11 of the Company's bulk storage plants located at Great Neck, Long Island; Oceanside, Long Island; Port Jefferson, Long Island; Huntington, Long Island; Patchogue, Long Island ; Bridgehampton, Long Island ; Garden City, Long Island ; Mt. Vernon; Mill Basin; Newton Creek; and Verplanck, all in the State of New York. During the year 1945, these plants received petro- leum products, consisting of light oils, greases, industrial oils, solvents and specialties, valued in excess of $1,000,000, more than 50 percent of which was shipped from points outside the State of New York. During the same period, sales of petroleum products from these plants were valued in excess of $5,000,000, substantially all of which was sold and distributed within the State of New York. The Company admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Independent Petroleum Supervisors' Association is an unaffiliated labor organization, admitting to membership only supervisory em- ployees of the Company' III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to recognize the Union as the collective bargaining representative of certain of its supervisory employees. The Company contends that the Board is without jurisdiction in this proceeding because the supervisors sought to be represented by the Union are "employers" rather than "employees" within the meaning of the Act. The status of supervisory personnel under the Act has been considered in a number of cases. Both the Board 2 and the courts a have held that, in relation to their employer, supervisors are "employ- ' In its motion to dismiss the petition , the Company contends that the Union is not a labor organization within the meaning of the Act. The term "labor organization" under Section 2 (5) of the Act means "any organization of any kind, or any agency or employee representation committee plan, in which employees participate and which exists for the purpose, in whole or part, of dealing with employers concerning grievances , labor disputes, wages, rates of pay, hours of employment , or conditions of work." The Union is clearly a "labor organization " within the meaning of this definition. 2 Matter of Soss Manufacturing Company, et al., 56 N. L. R. B. 348 ; Matter of Packard Motor Car Company, 61 N. L. R. B. 4, and 64 N. L. R. B . 1212; Matter of L. A. Young Spring d Wire Corporation , 65 N. L. R. B. 298 ; Matter of The Midland Steel Products Com- pany, 65 N. L . R. B. 997; Matter of Jones & Laughlin Steel Corporations Vesta -Shannopin Coal Division, 66 N. L . R. B. 386; Matter of American Locomotive Company , 67 N. L. R. B. 1123. IN. L. R. B. v. Armour & Co., 154 F. (2d) 570 ( C. C. A. 10 ) ; Jones & Laughlin Steel Corporation v. N. L. R. B., 146 F. (2d) 833 (C. C. A. 5 ) ; N. L. R. B. v. Skinner & Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8). 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees" within the meaning of the Act. Accordingly, we find that the supervisors involved in this proceeding are "employees" within the meaning of the Act. 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 UNITS Positions of the_ Parties The Union seeks a unit of plant superintendents, assistant plant superintendents, plant foremen, construction and equipment foremen, and chief clerks employed at the Company's 11 bulk storage plants in- volved herein,4 excluding all clerical workers, production workers, agents and assistant agents.' In the alternative the Union requests two separate units, one to consist of plant superintendents, assistant plant superintendents, plant foremen, and construction and equipment foremen ; and the other to be comprised of chief clerks. However, the Company opposes the position of the Union, contend- ing that a unit of supervisory personnel would not effectuate the poli- cies of the Act, and that the Union, as an alleged affiliate of the Bulk Distributing Plant Employees Union, which represents rank and file employees at certain of the Company's plants, should not be permitted to act for the supervisory personnel herein concerned. In the event the Board disagrees with its contentions, the Company urges that plant superintendents and assistant plant superintendents should con- stitute a separate unit. Organizational Structure, The 11 bulk storage plants of the Company involved herein serve the Long Island area, Bronx, Westchester, Kings and Queens Coun- ties, and part of Putnam County, all in New York State. These plants constitute an integrated division, whose operations are under the supervision of the district manager for the Metropolitan area of New York. There are 5 plant superintendents, 4 assistant plant super- intendents, 5 plant foremen, 4 construction and equipment foremen, and 6 chief clerks employed at these plants, all of whom are sought by the Union. 4 See Section I, supra. At the hearing, the parties stipulated that the bulk storage plant at Riverside, Long Island, which Is operated on a commission basis by an independent contractor was not to be included in any unit found appropriate. One construction and equipment foreman Is stationed at Garden City, Long Island, an anbandoned plant, be- cause of its central location with respect to other bulk plants which are serviced by this employee. The Union desires to Include this employee in any unit found appropriate. d The Company employs one assistant agent who works at the Newton Creek, Long Island, plant. SINCLAIR REFINING COMPANY 973 At each of the 11 bulk storage plants the Company employs an agent who is in charge of the plant. Under the direct supervision of the agent at each of the larger plants are a plant superintendent and an assistant plant superintendent ; under the direct supervision of the agent at each of the smaller plants is a plant foreman. The duties of the plant superintendents at the various plants are substantially the same. The assistant plant superintendents assume the duties of the plant superintendents during the latter's absence. Plant foremen at the Company's smaller bulk storage plants are comparable to plant superintendents in responsibility and authority. The plant superintendent, the assistant plant superintendent, and the plant foreman, all supervise the same classifications of employees. They are responsible for the operation and routing of the Company's trucks, for the receipt and stocking of petroleum products in their respective plants, and for the carrying out of company policy with respect to local ordinances and fire regulations. All have the power to make effective recommendations with respect to hiring, promoting, disciplining, and discharging employees under their supervision. In addition, they represent the Company in the first stage of the griev- ance procedure established for rank and file employees. The construction and equipment foreman at each plant is under the supervision of the agent, and is in general charge of all of the Company's equipment, with the exception of motor vehicles. It is his responsibility to see that all pumps, tanks, air compressors and buildings are kept in repair, to install or remove equipment, and to supervise the work of independent contractors. Like the plant super- intendent and plant foreman, the construction and equipment fore- man may make effective recommedations to hire, promote, discharge, and discipline employees under his supervision, and represents the Company in the first stage of the grievance procedure established for rank and file workers. Each bulk plant also employs a chief clerk, who has complete charge of the office and all the clerks in the office, including the cashier. He is responsible for all bookkeeping operations and pricing of materials. It is also his duty to see that contracts with customers, and leases of company property, are properly prepared. In the absence of the agent, he gives instructions to the salesmen. Although there are conflicting statements in the record concerning the authority of chief 'clerks to hire and discharge, uncontradicted testimony of witnesses for the Company indicates that chief clerks have on several occasions actually hired workers. While the supervisory personnel herein involved are responsible for carrying out company policy, they neither formulate nor take part in the determination of such policy. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear from the foregoing facts that the plant superintendents, assistant plant superintendents, plant foremen, construction and equipment foremen, and chief clerks are supervisory employees within the meaning of the Board's customary definition. The Company's Contentions The Company argues in its brief that the establishment of a unit of its supervisory employees would not effectuate the policies of the Act. In the recent Young case,° we considered a similar argument and found it to be without merit. In discussing the purposes and policies of the Act, a majority of the Board pointed out there, that the purpose of the Act was to encourage the practice of collective bargaining as a means of settling labor disputes, and that this purpose is as applicable to labor controversies involving supervisory employees as to those involving rank and file employees. Accordingly, we find no merit in the Company's contention that a unit of supervisory employees would not effectuate the policies of the Act.7 The Company contends further that the proposed unit is inappro- priate because the Union which seeks to represent the supervisory per- sonnel, is affiliated with the Bulk Distributing Plant Employees Union, which now represents the rank and file employees at certain of the Company's plants. Although the record discloses that the same at- torney represents both of these labor organizations, the Bulk Distribut- ing Plant Employees Union limits its membership to rank and file employees, and is wholly independent of the Union. Moreover, in the recent Jones ct Laughlin case," a majority of the Board held that the Board has no power to place any limitation on the right of super- visors to bargain collectively through representatives of their own choice solely because the union seeking to act for the supervisors hap- pens to be an affiliate of the labor organization which represents the same employer's rank and file employees. It is our opinion, therefore, that this contention is without merit.9 In its final argument as to the appropriateness of the unit, the Com- pany objects to grouping all supervisors in one unit, asserting that plant superintendents and assistant plant superintendents should con- stitute a separate unit. We do not fully agree. It is our opinion that there is such a community of interest among the plant superintendents, assistant plant superintendents, plant foremen and construction and equipment foremen, that the establishment of a separate bargaining 9 Matter of L. A. Young Spring & Wire Corporation, supra. 9 See also Matter of B. F. Goodrich Company, 65 N. L. It. B. 294; Matter of The Mid- land Steel Products Company, supra. 8 Matter of Jones & Laughlin Steel Corporation, Vesta-Shanno pin Coal Division, 66 N. L. It. B. 386. 9 See also Matter of Curtis Bay Towing Company of Pennsylvania, et al., 66 N. L. R. B. 1152. SINCLAIR REFINING COMPANY 975 unit for plant superintendents and assistant plant superintendents is not justified. We do believe, however, that the plant superintendents, assistant plant superintendents, plant foremen, and construction and equipment foremen, who supervise distribution and maintenance employees, 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 unit. These are the bargaining patterns established for rank and file employees generally; they are also the form of organization which has been followed among the Company's own rank and file employees10 We find that the following units are appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : (1) All plant superintendents, assistant plant superintendents, plant foremen, and construction and equipment foremen, employed at the Company's bulk storage plants at Great Neck, Long Island; Ocean- side, Long Island; Port Jefferson, Long Island; Huntington, Long Island; Patchogue, Long Island; Bridgehampton, Long Island; Gar- den City, Long Island; Mt. Vernon; Mill Basin; Newton Creek; and Verplanck, all in New York State, excluding all agents and assistant agents ; (2) All chief clerks employed at the Company's bulk storage plants at Great Neck. Long Island; Oceanside, Long Island; Port Jefferson, Long Island; Huntington, Long Island; Patchogue, Long Island; Bridgehampton, Long Island ; Garden City, Long Island; Mt. Vernon; Mill Basin; Newton Creek; and Verplanck, all in New York State, excluding all agents and assistant agents. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by separate elections by secret ballot among the employees in the appropriate units who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tions herein, subject to the limitations and additions set forth in the Direction. 10 The Bulk Distributing Plant Employ ees Union represents the distribution and mainte- nance employees at the Company 's Newton Creek , Mill Basin , Oceanside, Great Neck, and Huntington plants. Oil Workers International Union , Local No. 431, C. I. 0., represents all employees at the Company's Mt. Vernon plant, excluding salesmen , supervisors , clerical employees, merchan- disers and two special construction and equipment men. The Company has also recognized the Bulk Distributing Plant Employees Union as collec- tive bargaining agent for all clerical employees at its Newton Creek, Mill Basin , Oceanside, Great Neck and Huntington Bulk plants, and negotiations are now pending for a separate collective bargaining agreement covering these employees. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Sinclair Refining Company, New York City, separate 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 em- ployees 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 represented by Independent Petroleum Supervisors' Association (unaffiliated), for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting: For the reasons stated in my dissenting opinions in Matter of Pack- ard Motor Car Company, 61 N. L. R. B. 4, and Matter of Jones d Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66 N. L. R. B. 386, 1 am compelled to dissent from the majority opinion herein.