Sinclair Refining Co.

SINCLAIR REFINING COMPANY 197 :a letter from the Employer's attorney. The Employer's letter re- ferred the employees to the attachment "showing" the efforts of the Petitioner and its parent organization "to prevent the officers of the C. I. O. from having to take the oath that they were not members of the Communist Party." The attachment set forth a "brief his- tory" of court actions involving the non-Communist affidavit section of the Act, including Oil Workers International Union v. Elliott, Regional Director, a Federal district court case. By letter dated August 26, 1952, the Regional Office of the Board advised the parties that the ballots had been forwarded to the eligible voters on August 25. Clearly the reference by the Employer in its letter to a court de- cision, which has in its title the Petitioner as plaintiff and the Regional Director as defendant, cannot reasonably be said to have conveyed to the employees the impression that the Board was prejudiced against the Petitioner. Further, there is no evidence that the receipt of the Employer's August 23 letter by the employees, at about the date the mail balloting was scheduled to begin, was so close in time to the actual marking and returning of the mail ballots as to have constituted substantial interference with the conduct of the election .2 Accord- ingly, we find that the Petitioner's exceptions do not raise substantial or material issues with regard to the conduct or results of the election, and they are hereby overruled. As the Petitioner has not obtained a majority of the valid votes cast in the election, we shall dismiss the petition. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. CHAIRMAN IIERZOG and MEMBER MURDOCK took no part in the con- sideration of the above Supplemental Decision and Order. 2 Cf. Meyer & Welch, Inc., 85 NLRB 706, where the Board held that the employer 's letter distributed to the employees during a period ending . 20 minutes before the beginning of actual balloting was not ground for setting the election aside. SINCLAIR REFINING COMPANY and SINCLAIR PLANT PROTECTION EMPLOYEE ASSOCIATION , PETITIONER SINCLAIR REFINING COMPANY and LOCAL UNION No. 716 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL. Cases Nos. 39-RC-465 and 39-RC-469. November 4, 1952 Decision and Order Upon petitions duly filed, a consolidated hearing was held before Clifford W. Potter, hearing officer. The hearing officer's rulings 101 NLRB No. 59. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made at the hearing are free from prejudicial error and are hereby affirmed., Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel. [Members Houston, Styles, and Peterson]. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion 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 units : The IBEW seeks a unit of all maintenance electricians, linemen, cable splicers, trainees, apprentices, and permanent helpers in the electrical department at the,Employer's refinery in Houston, Texas, excluding all other employees and all supervisors as defined in the Act. The Association seeks a unit of guards at the Houston plant. The Intervenor has moved to dismiss the petitions, asserting that the only appropriate unit is the existing Nation-wide production, pipeline, and refinery unit, which includes the electricians and guards here sought, and for which the Intervenor has bargained since 1934. The Employer apparently agrees to the apropriateness of the unit sought by the Association. It takes no position with respect to the unit re- quest of the IBEW. The Employer is engaged in the business of producing, transport- ing, refining, and marketing petroleum and related products. It oper- ates 6 refineries in 6 States, employing approximately 10,000 em- ployees. At the Houston, Texas, refinery, the only one involved herein, there are approximately 1,500 employees. In addition to these re- fineries, the Employer maintains several bulk marketing stations I At the hearing, the Oil Workers International Union , CIO, Local 227, herein called the Intervenor , was permitted to intervene on the basis of a contract then in effect covering the employees in the proposed units. There was no contention at the hearing that the contract is a bar to this proceeding. The Petitioners and the Intervenor requested oral argument before the Board. As the record and the briefs adequately present the issues and the positions of the parties, the requests for oral argument are hereby denied. At the hearing, the Petitioner in Case No. 89-RC-469 , Local Union No. 716 of the International Brotherhood of Electrical Workers, AFL, herein called the IBEW, and the Petitioner in Case No. 39-RC-465, Sinclair Plant Protection Employee Association , herein called the Association, objected to the hearing officer's ruling admitting in evidence the record in Sinclair Refining Company, Pipeline Department, 89 NLRB 969. As the Board takes judicial notice of its decisions and the records therein, we find that the hearing officer's ruling was proper. SINCLAIR REFINING COMPANY 199 throughout the United States, as well as a rubber plant and a research laboratory. Since 1934, the Employer has bargained with the Intervenor or its predecessor on a Nation-wide basis. In 1943, the Nation-wide unit for which the Intervenor was recognized as exclusive bargaining repre- sentative comprised all the Employer's production, pipeline, and refining employees. The parties have, since 1943, executed successive annual contracts for such a Nation-wide unit covering the employees at all the Employer's refineries. In 1950, the Employer acquired the refinery in Wood River, Georgia. For several years prior to its acqui- sition, the employees in this plant had been represented by nine Ameri- can Federation of Labor craft unions. In 1950, these unions petitioned for an election among the Wood River employees. The Intervenor contended in that case that its contract with the Employer provided for the automatic inclusion of newly acquired refineries in the Nation- wide unit. The Board, however, ruled that, as the plant had been newly acquired by the Employer, and as the employees had been repre- sented by the craft unions, they should be afforded the choice of separate plant representation. In the election directed therein,2 the craft unions were successful and have since been the exclusive bargain- ing agents on a joint basis for these employees. In addition, the employees at several of the Employer's bulk marketing stations and at its rubber plant, while represented by the Intervenor, are not bargained for in the Nation-wide unit. With respect to the employees covered in the Nation-wide contract, centralized collective bargaining on their behalf has taken place an- nually in New York City. The Employer retains a central industrial relations director in that city to coordinate labor relations policies. Electricians (Case No. 39-RC-469): The IBEW seeks to sever a unit of maintenance electricians, linemen, cable splicers, permanent helpers, trainees, and apprentices from the over-all unit at the Houston refinery only. The Intervenor opposes the appropriateness of the proposed unit on the ground that the Nation-wide pattern of bargain- ing requires that such unit include similar employee groups at the other refineries of the Employer which are covered under its Nation- wide agreement. The IBEW, however, contends that no Nation-wide bargaining in fact exists because the Wood River refinery, the bulk marketing stations, and the rubber plant are not included in the Nation-wide contract. On at least two occasions within recent years, the Board has recog- nized the integration of the Employer's production, pipeline, and refining operations, and the effective history of Nation-wide collective bargaining covering the employees engaged in these operations, de- 2 Sinclair Refining Company, 92 NLRB 648. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spite the fact that the Intervenor did not include in its Nation-wide contract the employees at some of the Employer's operations. On each occasion, the Board has declined to sever craft or other units where the unit sought was not coextensive with the Nation-wide unit.$ The record does not reveal any change in the Employer's operations or in the established pattern of collective bargaining which justifies a departure from our established policy of refusing to sever a unit in one plant where the unit sought is not coextensive with an existing multiplant unit 4 As the IBEW does not seek to represent the elec- tricians at the other refineries of the Employer who are bargained for in the Nation-wide unit, we shall grant the Intervenor's motion to dismiss the petition filed in this case. Guards (Case No. -39-RC-465): The Employer employs 16 guards at the Houston refinery whom the Intervenor has represented in the- over-all Nation-wide unit during the years 1934 to 1941, 1943 to 1947, and 1949 to the present. The record does not disclose whether any labor organization represented these individuals during the inter- vening years. These employees are locally hired, discharged, and_ supervised. Their basic wage rates have been determined on a local basis. It appears that there has been no interchange of guards between the various plants of the Employer. On May 6, 1952, the Association filed its petition seeking to repre- sent the guards at the Houston refinery only. Upon being advised on May 19 by the president of the intervening Local that the Intervenor- had no interest in these employees, the officer in charge of the Board's 39th Subregional office obtained a consent election agreement from the Employer and the Association, pursuant to which a consent elec- tion was conducted by mail ballot. On May 23, prior to the opening- and counting of the ballots, the Intervenor's district representative advised the Subregional Officer that the president of the Local had no authority to disclaim interest in the guards' unit, stated that the guards were currently included in a Nation-wide contract with the Employer, and communicated to him the Intervenor's intention to intervene in any hearing thereafter conducted affecting these em- ployees. The mail ballots have been impounded and remain un- counted. The Association contends that the impounded ballots should be- opened and counted because a separate unit of guards at the Houston refinery is appropriate. In support of this contention, it argues that " Sinclair Refining Company, 64 NLRB 611 ; Sinclair Refining Company, Pipeline Depart- ment, 89 NLRB 969. In Sinclair Refining Company, 92 NLRB 643, involving the Em- ployer' s Wood River refinery, the integration of the Employer 's operations and the established Nation -wide bargaining history were recognized, although the circumstances of that case were held to justify granting those employees an opportunity to vote for separate plant representation 4 E. g., Pioneer, Incorporated, 86 NLRB 1316. SINCLAIR REFINING COMPANY 201 Section 9 (b) (3) of the Act precludes the Board from sanctioning the Nation-wide unit urged by the Intervenor as appropriate because it includes guards with production employees; that the Employer exerts a considerable degree of local control over these employees; and that the guards at Houston are separated geographically from, and have no contact with, the guards employed at the Employer's other plants.5 The Intervenor asserts that the guards should remain in the Nation-wide unit in which they have been included since 1934. It further contends that if the Board finds that the guards are en- titled to separate representation, the guard unit should, under our decision in Joseph E. Seagram & Sons, Inc.,s be coextensive with the Nation-wide production and maintenance unit. In the Seagram case on which the Intervenor relies, and which was decided in 1949, a unit of guards was sought limited to one of the employer's several plants. The employer's production and mainte- nance employees had been represented for 15 years on a multiplant, company-wide basis. Although the employees sought had been un- organized during the entire 15-year period, we. dismissed the petition on the ground that the requested unit should be coextensive with the company-wide production and maintenance unit. Recently, however, we have had occasion to reappraise this decision in a proceeding in- volving the same parties.7 In this later Seagram decision, the Board found a separate unit of guards at one of the employer 's installations appropriate in view of the lack of bargaining for guards, their special attributes, the wide geographical dispersal of the employer's plants, and the degree of local control exerted over these employees. We stated : For the Board to continue to insist that, employees who seek to organize for the first time do so only in a unit comprising em- ployees in 15 plants spread over hundreds ^ of miles of territory would be, in practical effect, to deny them the right to collec- tive bargaining and the "fullest freedom in exercising the rights guaranteed by this Act." Labor organization is often a process of growth which proceeds from small to large. Not many em, ployee groups can simultaneously mount an organizational cam- paign among employees at 15 plants located in 5 different States. Certainly plant guards, whose organization must be pursued under certain limitations imposed by the amended statute, are not among those who can readily do so. :The Association also contended that the disclaimer of interest in the guards ' unit by the president of the intervening Local estops the Intervenor from now opposing a separate election among these employees . In view of our disposition of this case , we find it unnecessary to pass upon this contention. ° 83 NLRB 167. * Joseph E. Seagram & Sons, Inc., 101 NLRB No. 37. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the instant case, the guards sought are not unorganized, but have been represented by the Intervenor for a number of years. This representation, however, has been in a unit combining guards with production and maintenance employees. Section 9 (b) (3) of the Act enjoins the Board from finding a unit appropriate "if it includes, together with other employees, any individual employed as a guard." It is therefore clear that the unit in which the Intervenor has included the guards, and in which it seeks to include them, is not appropriate. We do not believe that the guards at the Houston refinery should be bound in their organizational efforts by a pattern of bargaining in an inappropriate unit. To hold otherwise would, in our opinion, ef- fectively deny to these employees the "fullest freedom in exercising the rights guaranteed by this Act." Under these circumstances, and in view of the geographic distance between the Employer's plants, and the facts that the Employer exerts a marked degree of local control over the guards at the Houston re- finery and that these guards do not interchange, and have no contact, with the guards at the other plants, we find that a unit of guards at the Employer's Houston, Texas, refinery, excluding all other em- ployees and supervisors as defined in the Act, is appropriate. Ac- cordingly, the Intervenor's motion to dismiss this petition is denied. As the Subregional Officer for the 39th Subregion has heretofore conducted a consent election among the employees in the unit here found to be appropriate, we shall direct the Subregional Officer to open and count the ballots which have been cast in that election. Order IT IS HEREBY ORDERED that the petition filed in Case No. 39-RC-469 by Local Union No. 716 of the International Brotherhood of Electri- cal Workers, AFL, be, and it hereby is, dismissed. IT IS HEREBY FURTHER ORDERED that as part of the investigation to ascertain representatives for the purposes of collective bargaining with the Sinclair Refining Company at its Houston, Texas, refinery, among the employees in the unit of guards set forth in paragraph numbered 4 above, the Subregional Officer for the Subregion in which this case was heard shall, pursuant to National Labor Relations Board Rules and Regulations, within ten' (10) days from the date of this Order, open and count the ballots of the employees cast in the consent -election heretofore conducted, to determine whether or not these em- ployees desire to be represented, for purposes of collective bargain- ing, by the Sinclair Plant Protection Employee Association.