Petroleum Heat & Power Co., Inc.

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out of 35 come back for more than 2 seasons . The Dryer's construction work is sometimes done by temporary employees hired for the job , and otherwise by a labor force supplied by an independent contractor . The seasonal drying employees' of the Dryer could properly be included in a production and maintenance unit because they work alongside the regular workers and perform similar tasks , although they do not receive the same benefits as the permanent workers.' However, we are of the opinion that their seasonal tenure of employment is not sufficiently regular or substantial to entitle them to participate in an election and, accordingly, we find them ineligible to vote.9 Of the Dryer's 5 permanent workers , only 1 is admittedly not a supervisor . The other 4, who the Employer contends are supervisors , have authority to hire and discharge when they have subordinates . They have such subordinates during the drying season and frequently when the Dryer has construc- tion contracts . Between May 4 and October 15, 1952, they supervised construction and drying workers ; thereafter, until the end of November 1952, they supervised maintenance workers . Since then there has been 1 minor construction job which , at the time of the hearing , required the supervisory services of 2 of the individuals in question . As it appears that they were supervisors for most of last year, none of the 4 disputed workers is eligible to vote.'0 In view of the foregoing, only one of the Dryer ' s production and maintenance workers is eligible to vote. Therefore, we shall not direct an election in a unit of the Dryer's workers.P We find that all production and maintenance employees of Producers Rice Mill, Inc. , at its Stuttgart , Arkansas, plant, excluding all office-clerical employees, guards, professional employees , and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] 7 Both unions agreed to the exclusion of the seasonal constrpction employees. 8S. R, L. Co. of Pipestone, 96 NLRB 1148; R Appel, Inc., 95 NLRB 7. 9 Ibid. 10 Stokely- Van Camp, Inc., 102 NLRB 1259; Libby, McNeill & Libby, 90 NLRB 279 11Cf. Warren Paper Products Co, 93 NLRB 1187; J. C. Penney Company, 92 NLRB 1286 WESTCHESTER DIVISION, PETROLEUM HEAT & POWER CO., INC.1 and LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA , AFL, Petitioner. Case No. 2-RC- 5433 . July 13, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed on December 16, 1952, under Section 9 ( c) of the National Labor Relations Act, a hearing was 1The Employer' s name appears as amended at the hearing. 106 NLRB No. 20. WESTCHESTER DIVISION, PETROLEUM HEAT & POWER CO 123 held before Leonard J . Lurie , hearing officer. On January 30, 1953 , immediately after the hearing opened , the Intervenor, Petroleum Heat & Power Workers Association , Inc., whichhad appeared specially for that purpose , moved for apostponement on the ground that its president was a necessary witness, but would be unavailable because of illness which required from 10 to 12 days of bed rest. The hearing officer , after questioning the Intervenor ' s representative as to the subject matter of the testimony to be adduced by the witness in question , ruled that the testimony was unnecessary and denied the motion , where- upon the Intervenor withdrew from the hearing. The Employer then moved for a postponement . The hearing officer found the Employer's grounds reasonable , and postponed the hearing until February 4, 1953. When the hearing resumed on that date, the Intervenor did not appear , although given timely notice , and the Employer withdrew at the outset because its motion for a further postponement was denied . The Petitioner presented its testi- mony. The Employer and the Intervenor, on February 16 and 19, 1953 , respectively , petitioned the Board for anewhearing. The Intervenor alleged that it had been denied an appropriate hearing , and requested an opportunity to produce witnesses and cross -examine the Petitioner' s witnesses . Before the Board acted upon these requests , the Intervenor, onFebruary 20, 1953, procured a temporary restraining order from the United States District Court, Southern District of New York, restraining the Board from further action in the case . The order was vacated on March 9, 1953 . On March 20 , 1953 , the Board remanded the case to the Regional Director for further hearing as it desired additional testimony concerning certain issues. On March 25, 1953 , the Regional Director set the date of April 14, 1953, for further proceedings , but the Intervenor obtained successive show cause orders , one of which contained a stay . On May 4, 1953 , the United States Court of Appeals for the Second Circuit denied the Intervenor ' s application for a stay of the Board's proceedings pending disposition on appeal of its applicationfor an injunction. The Regional Director had scheduled the resumption of the hearing for April 14, 17, and 24 and May 1 and 4, 1953 . The rec- ordwas opened briefly on April 24 and May 1, 1953 , but the hear- ing did not proceed until May 4 , 1953 . On each of these dates the Petitioner ' s witnesses were available . The Intervenor was given timely notice on each occasion and advised of its oppor- tunity to cross-examine the Petitioner ' s witnesses . The Em- ployer was present each hearing day, but the Intervenor appeared only on May 1, 1953,whenitmade special appearance to request a postponement pending the outcome of the argument for a stay on May 4, 1953 , inthe United States Court of Appeals for the Second Circuit. No further testimony was offered by any of the parties. When the hearing resumed on May 4, the Employer waived its right to cross-examination , and stipulated with respect to the issues of jurisdiction and the appropriate unit. It declined to take a 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position regarding the contract-bar issue, submitting that for determination by the Board. The Intervenor now contends that it was denied its right to a fair hearing under the Fifth Amendment to the Constitution of the United States, Section 9 (c) (1) of the National Labor Rela- tions Act, and Section 1006 of Title V of the Administrative Procedure Act. It alleges that the hearing officer improperly denied its request for a postponement on January 30, 1953, and that he committed error in taking the Petitioner's testimony in the absence of the Intervenor. It therefore moved for a completely new hearing at which it could be present when all the testimony is offered. The hearing officer properly denied the postponement on January 30, 1953. The testimony to be presented by the Inter- venor's president was not indispensable for the proper disposi- tion of the issues in this case.' Furthermore, from the Inter- venor's own statements it appears that this witness was avail- able to testify at the reopened proceedings held on May 4, 1953, pursuant to the Board's order of March 20, 1953. The Intervenor had ample opportunity and notice at the reopened hearing to present testimony by its witnesses, and to cross- examine the Petitioner' s witnesses. We therefore find that the hearing officer's rulings made at the hearing are free from prejudicial error and they are hereby affirmed. The Intervenor's motion for a new hearing is denied. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 3 4. The unit which the Employer and the Petitioner stipulated was appropriate consists of 2 tank stations under common immediate supervision in Tarrytown and Mount Vernon, Westchester County, New York. These 2 stations constitute one of the 5 similar divisions under common ownership and management. There is some employee interchange between these 2 stations but none between these stations and the other divisions. The division sought herein was a separate bargaining unit from 1943 until it was incorporated into the unit covered by the contract between the Employer's predecessor and the Intervenor. The Stamford division has also been separately represented since it was certified by the Board in 1949. Pursuant to the stipulation between the Employer and the t See The Sun Company of San Bernardino, California, 105 NLRB 515. SOn the second day of the hearing, on the hearing officer's motion, a contract between the Employer's predecessor and the Intervenor was introduced in evidence. The contract, dated October 20, 1951, provides that it shall run for 3 years As no party at the hearing urged the contract as a bar or presented testimony in that connection, we find that this contract is not a bar. Cf New Jersey Brewers Association, 92 NLRB 1404. WESTERN HYWAY OIL COMPANY 125 Petitioner, and upon the entire record, fuel oil dispatchers, service dispatchers, telephone order clerks, and service mechanics employed at the Employer's Mount Vernon and Tarrytown, New York, tank stations, excluding clerical and office employees, guards, watchmen, professional employees, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] WESTERN HYWAY OIL COMPANY and CHAUFFEURS, TEAM- STERS & HELPERS, LOCAL NO. 150, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN & HELPERS OF AMERICA, AFL, Petitioner. Case No. 20-RC-2238. July 13, 1953 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 Natalie P. Allen, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peter- son. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. 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 Petitioner seeks a unit of all permanent truckdrivers employed by the Employer at its West Sacramento, California, bulk oil plant, excluding seasonal drivers and plantemployees. The Employer, relying on the alleged integration of its opera- tions, interchange among its employees, and collective-bar- gaining practice in that area, contends only a unit including both its drivers and plant employees is appropriate. The Employer takes no position as to the placement of the seasonal drivers. There is no history of collective bargaining among any of the Employer's employees. The Employer, a California corporation, is engaged in the wholesale marketing of oil products at its West Sacramento bulk plant where bulk oil products are received and stored and from which they are distributed. Among its facilities are a tank "farm" for storing the oil products and a marine dock where barges tie up to unload their oil cargoes. 106 NLRB No. 14.