Warren Petroleum Corp.

National Labor Relations Board - Board Decisions

Nov 14, 1951

96 N.L.R.B. 1428 (N.L.R.B. 1951)

1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the plant superintendent, work in the Employer's bottling room,
and inspect bottles to see that they are clean and free from defects.
Inspectors have interests, duties, and working conditions closely allied
to those of production employees. We shall include them in the unit 10
The syrup man, under the immediate supervision of the plant super-
intendent, dumps, drains, filters, and keeps in adequate supply, Coca-
Cola syrup. He spends approximately 90 percent of his working time
in the Employer's syrup room and the remainder in its bottling
room. There is no evidence in the record that he exercises any of the
powers of a supervisor as set forth in Section 2 (11) of the Act, or that
he has the qualifications and performs the duties of a professional em-
ployee within the meaning of Section 2 (12). He is not a managerial
or confidential employee within the Board's definitions of those
terms u We shall therefore include the syrup man in the unit 12
The chief automobile mechanic, the receiving clerk, and the truck
dispatcher effectively recommend the hire and discharge of employees
working under them and are therefore supervisors within the mean-
ing of the Act. We shall exclude them as such from the bargaining
unit.
We find that the following employees of the Employer at its Louis-
ville, Kentucky, plant, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act : All employees in the 'Employer's production, sales, advertising,
and cooler maintenance and service departments, including the syrup
man and inspectors, but excluding employees in the office department,
watchmen, guards, and the chief automobile mechanic, the receiving
clerk, the truck dispatcher, and other supervisors.
[Text of Direction of Election omitted from publication in this
volume.]
w Wm. P. McDonald Corporat ion, 83 NLRB 427.
u See New England Telephone and Telegraph Company, 90 NLRB 639 ; Ford Motor
Company (Chicago Branch ), 66 NLRB 1317.
12 Cf. Roanoke Coca -Cola Bottling Works, Inc., 72 NLRB 733.
WARREN PETROLEUM CORPORATION and C. F. TANNAHILL, PETITIONER
and OIL WORKERS INTERNATIONAL UNION, CIO. Case No. 16-RD-
71. November 14, 1951
Decision and Direction
Pursuant to a stipulation for certification upon consent election
executed on April 30, 1951, by the Employer, the Petitioner, and the
Union, an election by secret ballot was conducted on May 8,1951, under
the direction and supervision of the Regional Director for the Six-
96 NLRB No. 211.
WARREN PETROLEUM CORPORATION 1429
teenth Region, among "all employees in the Company's Sitter Gasoline
Plant near Kellarville, Texas, including employees in the Armed
Forces of the United States who present themselves in person at the
polls," but excluding "office and clerical, guards and watchmen, pro-
fessional employees, and all supervisors as defined in the Act, as
amended."
Upon the conclusion of the election, a tally of ballots was furnished
the parties in accordance with the Rules and Regulations of the Board.
The tally shows that, of 47 ballots cast, 21 were for the Union, 19 were
against the Union, 6 were challenged, and 1 ballot was declared void.
No objections to the conduct of the election were filed within the time
provided therefor.
As the challenged ballots were sufficient in number to affect the re-
sults of the election, the Regional Director, pursuant to the Board's
Rules and Regulations, conducted an investigation and, on June 1,
issued and served upon the parties a report on challenged ballots, in
which he recommended that the challenge to the ballot of J. D. Alex-
ander be sustained, that the challenges to the ballots of A. C. Havens,
J. H. Jenkins, W. G. Wilkerson, Eli Carter, and R. E. Black be over-
ruled and these ballots be opened and counted, and that the voided
ballot be declared valid. -
On June 11, the Union filed exceptions to part of the report on
challenged ballots, alleging that its challenges to the ballots of
Havens, Jenkins, Wilkerson, and Carter should be sustained as none
of these individuals had ever been included in the unit represented
by the Union, and because Havens and Jenkins were supervisors within
the meaning of the Act and Wilkerson was a professional employee.
The Union also excepted to the Regional Director's validation of the
voided ballot. On June 18 the Employer filed a reply brief in opposi-
tion to the Union's exceptions and, in addition, excepted to that part
of the report on challenged ballots relating to the ballots of Black and
Alexander, on the ground that Black, whose vote it had challenged,
was a clerical employee, and Alexander, whose vote had been chal-
lenged by the Union, was not a supervisor within the meaning of the
Act. Thereafter, on June 29, the Board issued an order directing
that a hearing be held on the issues raised by the Union's exceptions
and the Employer's reply brief with respect to the six challenged
ballots, and that the hearing officer prepare and serve upon the par-
ties a report resolving questions of credibility and containing findings
of fact and recommendations as to the disposition of these six chal-
lenged ballots.
A hearing was held on July 12, before Willis C. Darby, Jr., the
hearing officer duly designated by the Regional Director. On Au-
gust 20, he issued and served upon the parties a report, in which he
recommended that the Board sustain the challenges to the ballots of
974176-52-vol 96 -91
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. E. Black and J. D. Alexander as Black was an office and/or, clerical
employee and Alexander was a supervisor, but that the challenges
to the ballots of A. C. Havens, J. H. Jenkins, W. G. Wilkerson, and
Eli Carter be overruled and these ballots be opened and counted. The
Union has filed a motion in the nature of exceptions to the hearing
officer's report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Reynolds,
and Styles].
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 Petitioner, an employee of the Employer, asserts that the
Union is no longer the representative of the Employer's employees as
defined in Section 9 (a) of the Act.
The Union, a labor organization, is the currently recognized repre-
sentative of these employees.
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. We find, in accordance with the stipulation of the parties, that
all employees employed at the Employer's Sitter Gasoline plant near
Kellarville, Texas, excluding office and clerical employees, professional
employees, guards and watchmen, and all supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
The Challenged Ballots
As stated above, the decertification election herein was conducted
pursuant to a stipulation of the parties describing the appropriate
unit as one including "all employees in the Company's Sitter Gasoline
Plant," but excluding "office and clerical, guards and watchmen, pro-
fessional employees, and all supervisors as defined in the Act, as
amended." This is substantially the same unit for which the Union
has been recognized since January 1945, following a cross-check con-
ducted in November 1944 among "all operating and maintenance
employees of the Company's Sitter Plant . . . excluding supervisory
and clerical employees." 1
The Union contends, initially, that as A. C. Havens, J. H. Jenkins,
J. D. Alexander, and Eli Carter are not currently being represented
s Thus, the contract executed on January 11, 1945, by the Union and Smith Brothers
Refinery Company , Inc., the Employer's predecessor -in-interest , covered "all of the Com-
pany's employees . . . employed in the Company's Sitter gasoline plant . . . exclusive of
clerical and supervisory employees."
WARREN PETROLEUM CORPORATION 1431
by it, these employees have no interest in a vote to decertify the Union,
and that its challenges to their ballots should therefore be sustained.
The Employer contends, on the other hand, that the Union has been,
and currently is, recognized as the representative of all its operating
and maintenance employees, excluding clerical employees and super-
visors, and that all employees covered by the unit description are
entitled to vote.
We find no merit in the Union's position. As the appropriateness
of the unit is conceded, the question of the eligibility of these four
individuals cannot be made to turn on whether they were, or were not,
represented by the Union as part of the appropriate unit. The govern-
ing consideration where, as here, the decertification election may result
in the certification of the union involved,2 is that all persons within the
appropriate unit be afforded an opportunity freely to indicate their
desires as to the bargaining representative. We perceive no basis for
applying different standards of eligibility here from those applied in
the usual certification case. We shall therefore proceed to determine
whether the employees whose votes were challenged are appropriately
in the over-all unit.
Robert E. Black
At the time of the election, Black was classified as a warehouseman,
although he has since been reclassified as an office clerk. The Employer
challenged his ballot on the ground that his duties are mainly office and
clerical. The Union, on the other hand, contends that Black is a plant
clerical employee and should therefore be included in the unit, as he
has been in the past. The hearing officer concluded that as the parties
had, by providing in their stipulation for the exclusion of office and
clerical employees, agreed to exclude all clerical employees from the
unit, Black should be excluded, even if he is a plant clerical.
Although Black was classified as a warehouseman at the time of the
election, he apparently was not performing the duties of that classifi-
cation 3 This employee works primarily in the Employer's office
building and spends approximately 85 percent of his time performing
clerical duties, preparing the company payroll and computing volumes
and extending the readings on the field graph charts brought to the
office by the chart collector. In connection with his chart work, Black
uses regular office machines, such as an adding machine or calculator.
For approximately 4 hours a week, Black performs some of the chief
clerk's duties, preparing the mail and miscellaneous reports to be sent
to the Employer's home office in Tulsa, Oklahoma. Although it
2 Cf. Mountain States Telephone and Telegraph Company, 83 NLRB 773; Kelsey Hayes
Wheel Company, 85 NLRB 666.
8 Although the warehouseman formerly worked in the warehouse , maintaining inventory
and transfer records , these records are now kept in the Employer 's home office in Tulsa,
Oklahoma.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears that the majority of Black's time is devoted to work of an
office clerical nature,-' we find it unnecessary to determine whether
Black is an office clerical or a plant clerical employee. As the Union,
in the stipulation referred to above, agreed to the exclusion of office
and clerical employees, we find, as did the hearing officer, that the
parties agreed to exclude both plant and office clericals from the unit
and that the Union is bound by this stipulation.5 Therefore, in accord-
ance with the recommendation of the hearing officer, we hereby sustain
the challenge to Black's ballot.
J. D. Alexander
The Union challenged the ballot of this employee, classified as a
field foreman, on the ground that he is a supervisor within the meaning
of the Act. The hearing officer found that Alexander was a supervisor
and recommended that the challenge to his ballot be sustained. We-
agree.
The field foreman and the chart collector are the only two employees,
regularly assigned to work in the field. Alexander performs tests
on gas in the field, repairs meters, repairs broken lines, and, once a
month, collects charts. Smith, the chart collector, spends 2 days a
week working alone, collecting charts in the field, and 3 days a week
working with Alexander, repairing meters and broken lines. In case
of a line breakdown, a crew of roustabouts is also assigned to Alex-
ander, who is in sole charge of such employees in the field. Although
the field foreman has no authority to hire, discharge, or grant time
off to the chart collector or the roustabouts in the field, he does re-
sponsibly direct these employees and has authority to discipline the
chart collector and to direct him to work overtime. The field foreman,
the plant superintendent, and the assistant superintendent are the
only individuals at the plant who are paid on a monthly basis. On
the basis of all the facts, we find, in agreement with the hearing officer,
that Alexander is a supervisor within the meaning of the Act. Ac-
cordingly, we hereby sustain the challenge to his ballot.
Eli Carter
This employee is classified as a porter and performs the usual duties
of that classification, cleaning up the plant buildings and the plant
yard. The Union challenged Carter's ballot solely on the ground that,
as he is not currently represented by the Union, Carter has no interest
to vote in the decertification election. We have already rejected the
4 In addition to his office clerical duties, Black spends approximately 4 hours a week in
the Employer's laboratory, performing routine tests on gasoline ; approximately 25 minutes
a week in the warehouse, checking material received against purchase' orders; and 4 times.
a year , prepares inventories .of the heavy equipment maintained in the warehouse.
Oliver Machinery Company, 93 NLRB 731.
WARREN PETROLEUM CORPORATION 1433
Union's contention in this respect. In accordance with our usual policy.
of including porters or janitors in an operating and maintenance, or
production and maintenance, unit, we shall include Carter in the unit .6
We shall therefore overrule the challenge to his ballot and, in accord-
ance with the recommendation of the hearing officer, shall direct that
his ballot be opened and counted.
Arthur C. Havens
The Union challenged the ballot of this employee, class .fied as a
repairman, on the ground that he is a supervisor within the meaning
of the Act. The hearing officer recommended that the challenge to
his ballot be overruled.
Havens works in the engine room and spends approximately 75
percent of his time maintaining and repairing the engines and other
mechanical equipment in the plant. In connection with this work,
he instructs and routinely directs the work of four mechanics assigned
to work with him, receiving 25 cents an hour more than these other
employees. Havens, like any other employee in the plant, may recom-
mend the discharge of another employee, but such a recommendation
is subject to an independent investigation by the plant superintendent.:
In fact, on the one occasion when Havens did recommend that one of,
the engineers in the plant be discharged, the plant superintendent,
after making an independent investigation, refused to follow Havens'
recommendation. Although, under certain circumstances; Havens
does have authority to discharge the mechanics working with him,
this authority, which has never been exercised, exists only in emer-
gency situations involving employee misconduct endangering the
safety of the plant. Even in these emergency situations, Havens'..
decision would be subject to countermand after an independent investi-
gation by the plant superintendent. On the basis Of all the facts, we,
find that Havens is not a supervisor within the meaning of the Act,
and we shall include him in the unit.' Therefore, in accordance with
the recommendation of the hearing officer, we shall overrule the chal-
lenge to his ballot and shall direct that his ballot be opened and
counted.
John H. Jenkins
The Union also ' challenged the ballot of this employee, classified
as. a welder foreman, on the ground that he is a supervisor within
the. meaning of the Act. The hearing officer 'found that Jenkins was
1J. P. Stevens & Co., Inc., Republic Cotton Mills Division, 93 NLRB 1513; McCann
Steel Coinpany, 94 NLRB No. 65; Wraight's, Inc., 81 NLRB 65.
' St. Regis Paper Company, Suwanee Division, 94 NLRB No . IS; Oliver Machinery ' Com.•
pany, footnote 5, supra; Southern Industries Company, 92 NLRB" 998 ;' The Iron-sides
Company, 87 NLRB 1564.
974176-52-vol. 96-92
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not a supervisor and recommended that the challenge to his ballot
be overruled.
Jenkins does all the welding at the plant and is assisted in this work
by a roustabout, who receives 75 cents an hour less than Jenkins.
Although Jenkins is classified as a welder foreman," he possesses none
of the supervisory authority that this title would imply. He has no
authority to hire, discharge, transfer, reward, or discipline the helper
assigned to him, or effectively to recommend such action. Jenkins
does not possess authority to direct the work of this employee, but
only to the extent that such authority is generally exercised by an
experienced employee over one less skilled. We find, therefore, that
Jenkins is not a supervisor within the meaning of the Act, and should
properly be included in the unite Accordingly, we shall overrule
the challenge to his ballot and shall direct that his ballot be opened and
counted.
W. G. Wilkerson
This employee is classified as a laboratory tester. The Union chal-
lenged his ballot on the grounds that he has not been included in the
unit and that he is a professional employee . At the hearing , however,
the Union conceded that Wilkerson may have been included in the
unit as a plant chemist, but contended that he should now be excluded
because of his professional status.
Wilkerson works in the laboratory , gauging storage tanks , making
routine laboratory tests on gasoline with a gauger , and performing
miscellaneous tests on mineral seal oil and water. As the final analy-
ses of all the Employer 's products are conducted by outside labora-
tories, the Employer does not have a technical laboratory at the plant.
Wilkerson does not use technical equipment in making these tests, nor
does he possess any technical training . He is a high school graduate
who learned his job in approximately 2 weeks . We find, therefore,
that Wilkerson is not a professional employee , and we shall include
him in the unit.10 Accordingly, in agreement with the recommenda-
tion of the hearing officer, we shall overrule the challenge to his ballot
and shall direct that his ballot be opened and counted.'
The Void Ballot
During the counting of ballots, the Board agent in charge declared
void a ballot marked with an "X" in the "No" box, together with
the word "No" placed adjacent to the "No" box. The Regional Di-
rector recommended that, as this ballot was not ambiguous and the
8 Although Jenkins was at one time classified as a welder , he performed the same duties
then as he does now.
e.Bee cases .cited in fogtnote 7, supra.
10 The Mead Corporation, 94 NLRB No. 73.
DINION COIL COMPANY, INC. 1435
markings thereon clearly indicated the voter's intent to cast a negative
ballot, the Board should declare this ballot valid. The Union excepted
to the Regional Director's recommendation, not on the ground that
the ballot was ambiguous, but on the ground that the markings
thereon were deliberately made and may have served to identify the
voter.
We find merit in the Union's exceptions. As the Board recently
held in Laconia Malleable Iron Company, Inc.," any additional mark-
ings on a ballot which may have been deliberately made and may
serve to reveal the identity of the voter invalidate the ballot. We
find that the word "No" adjacent to the "No" box is that type of
additional marking.12 The ballot is therefore void and shall not
be counted.
Direction
IT IS HEREBY DIRECTED that the Regional Director for the Sixteenth
Region shall, pursuant to the Rules and Regulations of the Board,
within ten (10) days from the date of this Direction, open and count
the ballots of Eli Carter, Arthur C. Havens, John H. Jenkins, and
W. G. Wilkerson, and thereafter shall prepare and serve upon the
parties to this proceeding a supplemental tally of ballots, including
therein the count of said challenged ballots.
1195 NLRB 161.
12 Laconia Malleable Iron Company , Inc., footnote 11, supra; Ebco Manufacturing Com-
pany, 88 NLRB 983.
PINION COIL COMPANY , INC. and INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL. Case, No. 3-CA-3;4. November 19,
1951
Decision and Order
On June 14, 1951, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action,. as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, together with a brief in sup-
port of such exceptions, and the General Counsel filed a brief in
support of the Trial Examiner's findings. The Respondent also, re-
quested oral argument. That request is hereby denied as the briefs
and record in this case adequately reflect the positions of the parties.
96 NLRB No. 215.