Troy Refining Corp.

In the Matter of TROY REFINING CORPORATION, EMPLOYER and UNITED ELECTRICAL, RADIO & MACHINE `YORKERS OF AMERICA, CIO, PETI- TIONER Case No. 11-R-1005.-Decided September 5, 1946 Messrs. R. Miller Holland and R. T. Sweeney, of Owensboro, Ky., for the Employer. Mr. Robert W. Druwcan, of Tell City, Ind., for the Petitioner. Mr. Herbert J. Nester, of counsel to the Board. DECISION AND DIRECTION STATEMENT OF THE CASE Upon an amended petition duly filed, the National Labor Relations Board, on May 29, 1946, conducted a prehearing election pursuant to Article III, Section 3, of the Board's Rules and Regulations, among the employees in the alleged appropriate unit, to determine whether or not they desired to be represented by the Petitioner for the purposes of collective bargaining. At the close of the election a Tally of Ballots was furnished the parties. The Tally reveals. that there were approximately 17 eligible voters and that 18 ballots were cast, of which 8 were for the Petitioner, 6 were against, and 4 were challenged. Thereafter, pursuant to Article III, Section 10, of the Board's Rules and Regulations, an appropriate hearing was held at Tell City, In- diana, on July 9, 1946, before Arthur R. Donovan, Trial Examiner. The Trial Examiner's rulings made at the hearing are free from prej - udicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following:- FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Troy Refining Corporation, an Indiana corporation with its princi- pal place of business located at Troy, Indiana, is engaged in the re- 70 N. L. R. B, No. 104. 1191 1192 DECISTONS OF NATIONAL. LABOR RELATIONS BOARD fining of crude oil. Crude oil is obtained by the Employer both from its own wells located adjacent to the refinery, and also from wells located in the Commonwealth of Kentucky. During the past year its purchases of crude oil were valued at in excess of $100,000,_over 5 percent of which was shipped from outside the State of Indiana. During the same period, the Employer produced gasoline, lubricating oils and kerosene valued at in excess of $100,000, over 33 percent of which was sold and shipped to points outside the State of Indiana. The Employer admits and we find' that it is engaged in commerce within the meaning of the National Labor Relations Act. IT. TILE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, in accord with a stipulation of the parties, that all produc- tion and maintenance employees, including the service station opera- tor and the truck drivers, but excluding office and clerical employees, the general manager, and all or any 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 purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTA TIVES The only issues raised at the hearing were relative to the eligibility of four employees whose ballots were challenged at the time of the .election.` Two of the challenges were interposed by the Petitioner and two by the Board representative conducting the clectio;i. Dewey Hill Stinson and Bailey Stinnson: The Petitioner challenged the ballots of these two employees on the gryunds that their employ- ment is only casual in nature, and also because of their close relation- TROP REFINING CORPORATION 1193 ship to the Employer's general manager.' The record discloses that Dewey Hill Stinson, son of the general manager, commenced his em- ployment with the Employer in the fore part of February 1946. He was employed a total of 24 hours during the month of February, 8 hours during the pay-roll period ending May 15,2 and 16 hours in the pay-roll period ending May 30. These intermittent periods consti- tute his entire employment record with the Employer. Bailey Stin- son, a brother of the general manager, was first employed by the Employer in January 1946, and worked a total of 841/2 hours during that month. His name next appears on the pay-roll record for May 1 to 15, inclusive, during which period he worked 16 hours. During the intervening time, the Employer asserts that Bailey Stinson was privately employed by the general manager. The Board has fre- quently held that employees who are closely related to company execu- tives are ineligible to participate in elections.3 Moreover, we are of the opinion, that the irregularity of their employment clearly places these men in the category of casual employees, whom the Board, in previous decisions, has held do not have a sufficient interest in matters of collective bargaining to warrant their participation in elections.' We shall, therefore, sustain the Petitioner's challenges to the ballots of Dewey Hill Stinson and Bailey Stinson. Harold Wilgus: This employee's ballot was challenged by the Board representative because his name originally did not appear on the list of eligible voters, it having been added thereto approximately 5 minutes before the election. At the hearing the parties agreed that this employee was an eligible voter and that his name had been omitted from the list through inadvertence. We shall, therefore, overrule the challenge to the ballot of Harold Wilgus. J. A. Schaeffer: This employee's ballot was challenged by the Board representative because his name did not appear on the eligible voting list. At the hearing it was- disclosed that he, had been dis- charged prior to the election and that an unfair labor practice charge was pending against the Employer involving Schaeffer's discharge .5 A request was made by the Petitioner, in which Schaeffer concurred, that his ballot be withdrawn without prejudice to a determination of the pending unfair labor practice charges, and that no ruling be made on the challenge interposed to his ballot. In the interest of ' The Employer 's General Manager, in addition to his managerial position at the plant, also occupies the positions of Secretary and Treasurer of the Employer. 2 The pay period from May 1 to May 15 was determinative of voting eligibility 3 See Matter of 0. U. Hofmann, et at., 55 N . L. R. B 683; Matter of Parker's Brass Foun- dry, 63 N L R B 1 238 , Matter of Shelby F Cason, et al , 69 N. L R. B 523 * See Matter of El Paso Electric Cornpany , 49 N. L R . B. 351 ; Matter of The Post Print- ing and Publishing Co., et at., 59 N L R. B. 1115; Matter of Gulf Refining Company (Tulsa Pipe Lines Division ), 64 N. L R. B. 304 Case No. 11-C-1295 involving 8.(1) and 8 ( 3) charges were filed against the Em- ployer in the Regional Office on May 20, 1946. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintaining the integrity of the Board's election procedure, we are of the opinion that the Petitioner's request should be denied. It is apparent, however, that no ruling can be made with respect to this challenged ballot until final disposition of the unfair labor practice charges. However, inasmuch as the ballot of Harold Wilgus may determine the outcome of the election, irrespective of the ballot of J. A. Schaeffer, we shall direct that the Regional Director open and count Wilgus' ballot. In the event that the counting of the ballot of Harold Wilgus does not conclusively determine the result of the elec- tion, the counting of the ballot of J. A. Schaeffer shall await the Board's determination of the pending 8 (3) charge in case No. 11-C-1295. DIRECTION 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 10, 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 Troy Refining Corporation, Troy, Indiana, the Regional Director for the Eleventh Region shall, pursuant to the Rules and Regulations of the Board, as set forth above, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballot of Harold Wilgus and there- after prepare and serve on the parties in this proceeding a report em- bodying therein his findings and his recomendations as to the result of the ballot. IT IS FURTHER DIRECTED that, if the result of the election is not con- clusively determined by the counting of the Harold Wilgus ballot, the Regional Director shall continue to impound the ballot of J. A. Schaeffer until final disposition by the Board of,Case No. 11-0-1295, and upon, the final disposition of that case, the Regional Director shall, in accordance with the determination made therein, prepare and serve on the parties to this proceeding a report embodying his findings and recommendations as to the disposition of the ballot of J. A. Schaeffer. MR. JAMES J . REYNOLDS, JR., took no part in the consideration of the above Decision and Direction.