Derby Refining Co.

DERBY REFINING CO Derby Refining Company and Local 5-241 Oil, Chemical and Atomic Workers International Union Case 17-CA-13229 February 10, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 29, 1988, Administrative Law Judge William F Jacobs issued the attached decision The Respondent filed exceptions and a supporting bnef, the General Counsel filed a brief in support of the judge's decision, and the Charging Party filed an answering bnef The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified below and to adopt the recommended Order We agree with the judge that the Respondent violated Section 8(a)(5) and (1) of the Act as al leged We also agree with the judge's conclusion that the employees who retired and those who re- fused recall from the predecessor employer should be included as former employees who make up a majority of the Respondent's work force Pester, the predecessor, experienced financial dif ficulties and in February 1985 filed a petition under Chapter 11 of the Bankruptcy Code In March 1985, it began laying off employees Pester told some of these employees that if they retired before they were laid off they would receive a greater amount of their pension Three employees took Pester's advice and retired 1 During the summer of 1985 Pester, which was operating on a very limited basis, obtained some processing work and recalled some employees However, it informed them that the recall would be only temporary Four of the employees declined recall, at least two of whom stated they did so because they had other full time employment After declining recall they were ter minated and their names were removed from the recall list 2 In February 1986 the bankruptcy court approved an amended reorganization plan, which involved Pester exchanging assets with the Respondent (Derby) As part of the exchange plan, Derby re- ' Roy Banks and Clifford Kasper retired effective April 1 1985 Lehman Harris retired effective November 1 1985 2 Ray Hoffman was terminated effective June 9 1985 D E Jack July 24 C W Curnutt September 25 and Ken Clifton November 15 Hoffman was working as a registered nurse and Clifton was working at another refinery in Montana 1015 ceived the El Dorado refinery Soon after the ap- proval, Derby began to recruit and hire employees to staff the plant, many of whom were former Pester employees Derby eventually took over op eration of the refinery on April 10, 1986, and began to reopen and expand operations until the plant was in full operation by August 1986 In October 1986 the Union made a demand for recognition, which Derby rejected At the time of the demand Derby employed 80 employees, 43 of whom had been previously employed by Pester 3 As the judge observed, when a successor em- ployer hires, as a majority of its employees, the former unionized predecessor's employees, the pre- sumption arises that a majority of the successor's employees also support the union As the Supreme Court stated in NLRB v Burns Security Services, 406 US 272, 278-279 (1972), the mere change in ownership, without an essential change in working conditions, would not be likely to change employee attitudes toward representation The presumption is necessary to promote stabili- ty during changes of ownership and to reduce in- dustrial strife Both the union and the employees are vulnerable during this period and hard earned bargained-for rights can easily be diminished Fall River Dyeing Corp v NLRB, 482 US 27, 39 (1987) Employees, especially during such times, are worried about retaining their jobs and may shun the union if they feel it will help their chances of doing so If no presumption existed, corporate transformation could be used to avoid the union and exploit employees' fears Id Such a situation would not be conducive to industrial peace In the successorship situation the events must be viewed from the employees' perspective, i e, whether their job situation has so changed that they would change their attitudes about being rep- resented Here, as the judge found, the job situation has not changed so dramatically as to affect the employees' views The employees on Pester's pay roll returned to the same plant, performed the same work, using the same equipment, under the same supervisors, and produced the same products, which were sold to many of the same customers Here, the mere change of ownership was not such an unusual circumstance as to affect the employees' views on union representation 4 Fall River Dyeing, 3 This number includes the three retired employees and the four em ployees who refused recall 4 The Union here had represented the employees at the refinery for more than 40 years through a number of different owners Derby did not make any substantial changes in the operations that would have caused the employees to have viewed their job situations as essentially changed or to view this change in ownership any differently from any of the pre vious changes 292 NLRB No 112 1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482 US at 39 Thus, it is appropriate to count these employees in determining whether the Re- spondent hired a majority of former Pester employ- ees The Respondent does not contest the inclusion of employees who were on Pester's payroll at the time of the exchange of assets, but rather argues that the employees who had left Pester's employ before the exchange, either by retiring or by refus- ing recall, should not be included in the majority count According to Derby, these employees are "new" Derby employees and not "former" Pester employees This distinction is critical as a numeri- cal majority can be established only by adding the retired employees and the employees who refused recall to the group of Pester employees who had been working at the time of the exchange With regard to the three retired employees who had been rehired, it has been the Board's policy to count such employees in determining if a majority exists 5 In Cincinnati Bronze, 6 the Board adopted the administrative law judge's finding that six of the predecessor's employees who had retired after the predecessor closed and who had been hired by the successor should be counted in determining the union's majority status in the successor bargaining unit With regard to the retired employees' expec- tation of continuity in the bargaining unit, the judge stated There is no evidence in this case that the re tired employees, because they have opted to receive a pension from old Lunkenheimer, have any different work-related interest or concerns than Respondent's other full-time production and maintenance employees or would have changed their attitudes toward or desire for continued Union representation I cannot find that they are in any different status for purposes of determining the Union's major ity status in Respondent's bargaining unit than the "laid-off' employees at old Lunkenheimer 5 Although in Columbia Steel Casting Co 288 NLRB 306 (1988) the Board excluded a retired employee from the unit that case is not control ling here Columbia involved the eligibility of a retired employee to vote in a Board election The Board there found that because the employee was in retired status on the day of the election he was no longer part of the unit and thus meligible to vote The Board reasoned that the every day workplace issues no longer directly concerned the retired employee and so it would be quixotic to give a retired employee a vote in directing the unit s future Different policy considerations are presented by the successorship situation The formerly retired employees hired by the suc cessor employer are no longer in retired status but are actively part of the unit and in contrast to the retired employee in Columbia have a clear interest in workplace issues and share the same concerns as other unit employees Thus the question concerning the formerly retired em ployees here is not whether they should be included in the unit but whether they should be considered as new employees with no expects tions regarding union representation Columbia has no bearing on this question 6 286 NLRB 39 (1987) or those employees who simply found them- selves out of work when old Lunkenheimer shut its doors 286 NLRB at 460 We find that reasoning equally applicable here Although the employees in Cincin- nati Bronze remained on active status until the clos- ing of the plant, while the Pester employees retired before the closing, that difference does not signifi- cantly affect their attitudes toward continued union representation This is especially true here, where the retirements were not a self initiated withdrawal from the work force, but were instead encouraged by Pester Pester told the employees that layoffs were imminent and that they would lose a substan- tial amount of their pensions if they were laid off before they retired Presented with the choice be- tween a likely loss of pension funds if they stayed on and retiring with full benefits, the employees chose retirement In the absence of the prediction of layoff with its resulting impact on pensions, there is no reason to believe that these employees would not have continued to work Indeed, when they were offered full-time positions at the same re- finery they readily accepted These employees' at tachment to the unit and their expectations con- cerning representation under a new owner are therefore virtually the same as those who were able to stay on the payroll until the sale Hence, it is proper to count them as former employees, and not as new employees 7 For similar reasons, we conclude that the em ployees who refused temporary recall to Pester should be counted as former employees Their sep- aration from the unit by refusing recall, was also due to the strained economic situation confronting them When they were offered recall they were specifically told that the jobs would be only for a matter of weeks In this regard, they were not re called to their former permanent positions Refus- ing the offer of temporary work in such circum- stances cannot be viewed as abandonment of inter- est in the unit 8 When these employees were of fered an opportunity to return to the refinery as permanent full-time employees, and work under the same conditions that they had worked under before, they readily accepted We therefore con- clude that these four employees should be treated as laid off employees without regard to their re sponses to Pester's offers of temporary work, and 7 We particularly note that the lapse of time from retirement to the closing of Pester was from 6 months to a year Were the lapse of time significantly longer a different result might be required 8 This is particularly true if a laid off employee is presented as were two of the employees here with a choice between giving up a permanent position elsewhere and taking a temporary position at their former em ployer s facility DERBY REFINING CO as such, they are properly counted in determining the Union's majority status 9 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Derby Re- fining Company, El Dorado, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Order e We note that the lapse of time between the refusals and the closing of operations was less than 1 year Significantly longer amounts of time could lead to different results Lyn R Buckley Esq, for the General Counsel Robert C DeMoss Esq, of Houston, Texas, and J Rich and Mannett Esq, of Atlanta Georgia, for the Re spondent Cynthia L Barnes Esq, of Lakewood, Colorado, for the Charging Party DECISION STATEMENT OF THE CASE WILLIAM F JACOBS, Administrative Law Judge This case was tried before me on 17 March 1987,1 at El Dorado Kansas The charge and amended charge were filed on 24 December 1986 and 5 February 1987 respec tively, by Local 5 241 Oil, Chemical and Atomic Work ers International Union (the Union) The amended com plaint issued 5 February 1987 alleging that Derby Refin ing Company (Derby or Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act The answer denies the commission of any unfair labor prac tices Representatives of all parties were present and were given full opportunity to participate in the hearing Sub sequently Respondent Charging Party, and the General Counsel filed briefs Based on the entire record including my observation of the demeanor of the witnesses and after due consideration of the briefs I make the follow ing FINDINGS OF FACT2 A The Issues The issue raised by the pleadings is whether Respond ent is a successor employer and has violated Section 8(a)(1) and (5) of the Act by failing and refusing to rec ognize and bargain with the Union as the collective bar gaining representative of Respondents employees i The hearing was adjourned sine die this date pending the receipt of certain subpoenaed documents On 15 June 1987 the parties filed a stipu lation of facts and motion to close record An order closing the hearing issued 16 June 1987 3 The complaint and answer as amended at the hearing respectively alleges and admits that the Board has jurisdiction here and that the Union is a labor organization within the meaning of the Act B Facts 1017 The oil refinery at El Dorado, Kansas, has been oper ated by various companies since about 1942 The Union became the bargaining representative of the refinery em ployees in the 1940s and was their representative when the Pester Corporation purchased the facility in 1977 At the refinery Pester processed and refined crude oil into gasoline, fuel oils, asphalt, and similar products During Pester s ownership of the refinery, the Union continued to represent its employees The last collective bargaining agreement between Pester and the Union became effective 8 May 1983 and through contract modification, remained in effect until 10 April 1986 In late 1984 and early 1985 Pester began having finan cial problems and on 25 February 1985 filed a petition for reoganization under Chapter 11 of the United States Bankruptcy Code During the several months prior to the filng for bankruptcy Pester employed 138 produc tion and maintenance unit employees These employees were employed in the operations department3 and in the maintenance4 area However, because of its financial problems and inability to buy crude oil Pester at this time determined to curtail operations The Union was ad vised about the decision and how it would be implement ed on or about 1 March 1985 On 5 March 1985 Pester laid off a majority of its em ployees, keeping only 43 These 43 remaining unit em ployees continued to operate the refinery but on a limit ed basis only , because the Company could no longer pur chase crude oil Thus, because Pester still has an asphalt inventory it could still continue to blend and sell as phalt, although it was no longer processing crude oil be cause it also still had some alkylation feed stock it con tinued to run some high octane fuel products by using this part of its inventory Otherwise various units closed down at different times depending on the circumstances Also on 5 March 5 R M Newcomer, refinery manag er issued a memorandum directed to salaried personnel announcing an immediate reduction in the work force and stating that in the next few days all personnel would be notified regarding their work status The same day Newcomer read this memorandum to the rank and file employees in the lunchroom The memorandum included the statement We encourage those who are laid off to evaluate all job opportunities in light of the current eco nomic conditions and stress the uncertainty of those op portunities with Pester Refining The memorandum was later posted on the bulletin board Due to the exigencies brought about by the financial situation of the Company and the consequential lay off of a majority of unit employees the Company and Union met on 11 March They agreed at this meeting that the 3 The operations department consisted of the ROSE unit crude unit central control room boiler house asphalt area truck locading area water treating area light oil lab gauging department pumping depart ment department field gauger area platformer and unifiner 4 Employed in the maintenance area were welders warehouse employ ees electricians instrumentmen pipefitters riggers truck department em ployees mechanics CPI (carpentry painting and insulating ) employees laborers and a janitor 8 All dates are in 1985 unless otherwise noted 1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Company should continue its attempt to reorganize its operations under Chapter 11 and the Union, in return would no longer seek to enforce certain provisions of the existing contract The object of the agreement was, clearly, to keep the Company afloat during its attempt at reorganization by affording it greater freedom of move ment in making operational decisions designed to save money On 23 March there was another major layoff and by the end of the month Pester employed only 33 unit em ployees By the payroll period ending 13 April, there were only 22 unit employees employed and this figure remained constant through the payroll ending 25 May The additional layoffs in March and April were occa sioned by the fact that the alkylation unit had been closed down and the Company was no longer operating any of its units The employees still working were only blending and shipping asphalt Although most of the refinery was inactive in April and May management continued to try to negotiate processing agreements that would enable reactivization Managements efforts were initially unsuccessful and toward the end of May total shutdown was being con templated and plans made for additional layoffs Howev er, these steps were never taken In June , managements efforts to secure processing agreements finally proved successful Agreements were reached at this time with the Respondent and with a second company, Matsui, to process certain products owned by these companies through Pester s ROSE and alkylation units As a result of obtaining these agree ments the Company recalled additional employees The total complement increased gradually from 22 in early June to a highpoint of 43 in late September It thereafter fluctuated between a low of 23 and a high of 33 until the transfer of the refinery to the Respondent at which time the total number of working employees was 30 In the fall of 1985 Pester put together a reorganization plan whereby the refinery would be reopened and oper ate on a seasonal basis The plan entailed a 9 month op eration each year and the selling off of the intermediate products and asphalt produced On 1 November man agement presented the proposed reorganization plan to the Union and discussed how it intended to staff the op eration The same day that the Company met with the workmen s committee to discuss the reorganization plan it made to submit to the bankruptcy court In detailing to the Union the proposed reorganization plan it described it as providing for the reopening of the refinery in a lim iced risk mode effective 1 March 1986 It stated that on reopening, the refinery would employ about 40 to 45 hourly paid employees with positions in the central con trol room the crude unit, ROSE unit maintenance area, light oil lab asphalt department boiler house, and trans fernng department The Company informed the Union that the parties could begin negotiating a new contract on approval by the court of the proposed reorganization plan Clearly the parties, at this meeting, were comtem plating reopening of the plant and recall of a number of unit employees On 11 November Pester s management met again with the Union and all bargaining unit employees At this meeting Jack Pester, the Company s chief executive offs cer spoke to the employees and asked them to agree to a freeze of the pension plan He stated that if they agreed to the freeze it would save the Company $850 000 and this amount would be adequate to help reorganize and start the refinery back up on 1 March 1986 in the limit ed risk mode discussed at the earlier meeting On 18 No vember, the Union advised Pester that it and the employ ees were agreeable to the freeze and an agreement to that effect was signed the following day On 3 December the parties met again At this meeting, the Company assured the Union that it was putting to gether a contract that it would first present to the Union in order to enable the bankruptcy court to then give its approval to the reorganization plan The Union was ad vised at this time that the proposed collective bargaining agreement would be available in about a week On 18 December the parties met again to discuss nego tiation of a new contract and the order to recall The Union insisted, as it had at earlier meetings, on recall by seniority Pester's management refused to recall by se nionty because they feared that the employees recalled in that fashion would not be adequately trained to oper ate the units they wished to reactivate There was, how ever, agreement that recall rights of employees of Pester at the time the contract was signed, would be through 15 March 1987 The following day the Union mailed to All Eligible Pester Refining Company Bargaining Unit Members' a letter and questionnaire advising them of the positions of the parties taken at the 18 December meet ing and requesting each of them to provide information which would enable the Union to offer a counterpropos al to the Company with regard to which employees were to be recalled The information requested involved the employees experience on various jobs and the dates on which they worked on each job It is clear that at this time both parties were seriously engaged in negotiation for recall of at least a part of the bargaining unit and the transmission of the questionnaire most certainly must have given each of the employees some expectation that recall was a possibility On 27 December the Union and Company met again At this meeting the Company finally agreed to go along with recall by seniority 6 It was agreed further that Pester and the Union would each appoint three people to a committee to sit down with the Company s records go over them and determine where each of the recall em ployees should be placed The committee thereafter held two meetings, both in January Meanwhile, sometime in December there was some discussion between officials of Pester and Derby con cerning a possible exchange of assets between the two companies On 20 February 1986 7 Pester filed with the bankruptcy court its first amended joint plans for reorga nization This document included an asset exchange agreement, which provided for the exchange of the El Dorado refinery and certain related assets belonging to Pester for two groups of service stations belonging to 6 The I February seniority list was used for purposes of negotiating recall 7 All dates are in 1986 unless otherwise specified DERBY REFINING CO Derby The reorganization plan with its exchange of assets provision was approved by the bankruptcy court on or about 25 February A copy of the exchange agree ment was sent to the Union the same date This was the first indication that the Union received concerning the asset exchange agreement Right up until 25 February, the Union was still under the impression that negotia tions toward contract renewal and recall of employees were to continue On receipt of the asset exchange agree ment, the Union ceased its efforts toward obtaining a new collective bargaining agreement from Pester Following confirmation of the exchange of assets by the bankruptcy court, Derby took over the refinery, of fective 10 April Before doing so, however, it undertook a recruitment drive in order to staff the facility It ran newspaper ads in the El Dorado area and invited former Pester employees to apply for employment It also ran ads in other cities where refineries had recently shut down It interviewed prospective employees in El Dorado, Laurenceville, Illinois, and Cincinnati Ohio In each interview the prospective employee was given some information about the company and advised of the pay scale and fringe benefits Between 25 February, when the reorganization plan was filed and 10 April when Derby actually took over the refinery, Pester continued to operate the refinery on the limited basis described above There was never a shutdown Pester employees worked for Pester 1 day and for Derby the next A comparison of employment rolls indicates that at least nine Pester employees fell into this category and that three other Pester employees pre viously laid off were hired by Derby on 9 April Thus, as of the 30 April payroll ending date, 12 of Derby s 19 employees were individuals previously employed by Pester When Derby took over the refinery on 10 April, it continued to operate the same departments and oper ations that Pester had been operating right up to the day of takeover It thereafter opened up each of the previ ously closed areas of the refinery until by the following August the entire refinery was operating with the excep tion of the platformer and unifiner8 departments At this time Derby employed 105 employees and was still hiring In August also Derby transferred Randy Newcomer back to the El Dorado refinery Newcomer had been the plant manager there from May 1983 until December 1985 In August 1986 he once again became plant manag er at El Dorado Though Derby brought back Newcom er to run the operation it also made certain modifica tions to more closely fit into the Derby Mold As far as operations were concerned, one change made was that, without the platformer and unifiner in operation the refinery was shipping naphtha and light straight run gasoline to the Augusta Refining Company to provide it with feed stock rather than using these products itself in its processing operation As to organizational changes Derby moved its personnel department out of the refin 8 The platformer made platformate which went into leaded gasoline The unifiner was used in the processing of naptha Discontinuance of these two operations did not affect the operations of the rest of the refin cry They had employed about eight regular and between one and three relief employees 1019 ery and transferred it to a downtown office in Wichita It also changed the names of various job classifications and reduced a number of different pay grades On the other hand, in a number of other more impor tant aspects, the Pester and Derby operations were simi lar, if not identical Thus the employees performed the same duties on the same equipment, producing the same end product 9 This was true in every department and in every area at the refinery which Derby continued to op erate after its takeover from Pester Similarly, Derby continued to sell asphalt, gasoline, and fuel oil to many of Pester s most important customers, indicating substan tial continuity in that area Finally, the Derby adminis tration, after it took over the El Dorado facility consist ed of 24 managers and supervisors, including the plant manager The records indicate that 16 of them were pre viously employed in a similar capacity by Pester On 13 October the Union demanded that Derby bar gain with it as the collective bargaining representative of the El Dorado refinery production and maintenance em ployees Respondent refused the Union s demand At the time of the Union s demand, Derby employed 80 rank and file employees in its production and maintenance unit, the same unit that the Union had represented at the refinery when it was owned and operated by Pester Of these 80 employees, 43 had been Pester unit employees represented at the time by the Union Analysis and Conclusion In Mondavi Foods Corp ,10 the Board stated When all or part of a business is sold 11 certain legal obligations of the seller devolve upon the pur chaser Where there is substantial continuity in the identity of the employing enterprise one such obli gation will be that of the employer to recognize and bargain witha a union which represents the former owner s employees However, if in the course of the transfer there have been substantial and material changes in the employing enterprise the new em ployer will not be found to have succeeded to the bargaining obligation of the former employer 12 In cases involving the successorship issue the Board s key consideration is whether it may rea sonably be assumed that, as a result of transitional changes the employees desires concerning union ization [have] changed 13 The Board considers a variety of factors in determining whether the new employer has succeeded to the former employer s bargaining obligation Certainly a prime factor is whether the purchaser has hired a sufficient number of former employees of the seller to constitute a ma jority of the employee complement of the appropri ate unit 14 Once it has been found that the purchas 9 Leaded and unleaded gasoline fuel oils asphalt propane etc 10 235 NLRB 1080 (1978) 11 The exchange of assets is indistinguishable from a scale for Board purposes 12 Citing Lincoln Private Police 189 NLRB 717 (1971) i3 Citing Ranch Way Inc 183 NLRB 1168 (1970) affd 445 F 2d 625 (1971) 14 Citing NLRB v Burns Security Services 406 U S 272 (1972) et al 1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er has hired such a majority, the Board considers such circumstances as whether or not there has been a long hiatus in resuming operations a change in product line or market, or a change of location or scale of operations 15 Changes in product line or market can be indicative of a different type of business (e g different or altered production ma chinery necessitating retraining and/or different skills) However a change in scale of operation must be extreme before it will alter a finding of successorship In the instant case there was no hiatus Pester operat ed the refinery 1 day albeit on a reduced scale, Derby the next Derby initially continued operation of the refin ery on the same reduced scale as did Pester at the time of takeover, but immediately instituted plans to bring production up almost" to the scale at which Pester had operated prior to the layoff forced on it by its financial difficulties and bankruptcy Derby s operation of the re finery following takeover was essentially the same busi ness previously conducted by Pester The operation re mained at the same location 17 and employed, as a major ity of its work force, former Pester employees, doing the same jobs under the same working conditions, under the same management and most of the same supervisors, to produce the same products utilizing the same machinery and the same equipment The products thus produced were sold in large part, to the same customers Here, as in Mondavi it is clear that nothing in the transitional changes occurring in connection with Respondents ac quisition and operation of Pester s refinery would under mine a finding that the employees desires concerning representation have remained unchanged I have carefully read Respondents brief as well as the cases cited therein I consider the arguments presented in defense of Respondents position unpersuasive Accord ingly I find that Respondent did succeed to Pester s ob ligation to bargain with the Union, and that in failing and refusing to recognize and bargain with the Union as the authorized representative of a majority of its employees in a unit appropriate for collective bargaining Respond ent has violated Section 8(a)(5) and (1) of the Act THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE Respondents activities set forth above occurring in connection with Respondents operations, also described above have a close, intimate and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob structing commerce and the free flow of commerce CONCLUSIONS OF LAW 1 Derby Refining Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 15 Citing as an example Radiant Fashions 202 NLRB 938 (1973) i 8 I find that Respondents decision not to reopen the platformer and unifiner was of minimal impact I' The transfer of the personnel department to Wichita is of minor tin portance 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 All temporary, probationary and regular employees in maintenance and operations employed at the facility but excluding all office clerical employees, guards, pro fessional employees and supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act 4 At all times material the Union has been the exclu sive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act 5 Respondent has failed and refused to bargain with the Union as the exclusive bargaining representative of its employees in violation of Section 8(a)(5) and (1) of the Act 6 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that Respondent be re quired to cease and desist therefrom and, on request, bar gain collectively with the Union I shall also recommend that it take certain affirmative action necessary to effec tuate the policies of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed18 ORDER The Respondent, Derby Refining Company El Dorado, Kansas, its officers, agents successors and as signs, shall 1 Cease and desist from (a) Refusing to bargain collectively in good faith with Local 5 241, Oil Chemical and Atomic Workers Interna tional Union as the exclusive representative of all the em ployees in a unit composed of All temporary probationary and regular employees in maintenance and operations employed at the fa cility but excluding all office clerical employees guards professional employees and supervisors as defined in the Act (b) In any like or related manner interfering with re straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) On request bargain with the above named labor organization as the exclusive representative of all em ployees in the aforesaid appropriate unit with respect to 18 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses DERBY REFINING CO rates of pay, wages, hours and other terms and condi tions of employment and, if an understanding is reached embody such understanding in a signed agreement (b) Post at its El Dorado Kansas facility copies of the attached notice marked Appendix 19 Copies of the notice on forms provided by the Regional Director for Region 17, after being signed by the Respondents au thonzed representative, shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 19 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 1021 WE WILL NOT refuse to bargain colectively concerning rates of pay, wages, hours and other terms and condi tions of employment with Local 5 241 Oil Chemical and Atomic Workers International Union as the exclu sive representative of the employees in the bargaining unit described below WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL, on request, bargain with the above named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages hours and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement The bargain mg unit is All temporary, probational and regular employees in maintenance and operations employed at the fa cility but excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act DERBY REFINING COMPANY The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice