Petroleum Chemicals, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1958

121 N.L.R.B. 630 (N.L.R.B. 1958)

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ttally equivalent positions, without loss of seniority or other rights and privileges,
and make' them whole for any loss of pay they may have suffered by paying to each
of them a sum of money equal to that which he would have earned from May 9,
1957, to the date of the Respondent's offer of reinstatement, less his net earnings
during said period, and in a manner consistent with Board policy as set out in
F W Woolworth Company (90 NLRB 289) and Crossett Lumber Company
(8 NLRB 440)
It will further be recommended that the Respondent, upon reasonable request,
make available to the Board and its agents all payroll and other records pertinent to
an analysis of the amount due as back pay
Since the violations of the Act which the Respondent committed are persuasively
related to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future it is to be anticipated from the Respondent's conduct in the
past, the preventive purposes of the Act will be thwarted unless the recommendations
are coextensive with the threat In order to make more effective the interdependent
guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices,
and thereby minimize industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, it will be recommended that the Respond-
ent cease and desist from infringing in any manner upon the rights guaranteed by Sec-
tion 7 of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following
CONCLUSIONS OF LAW
1 United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act
2 By discriminating in regard to the hire and tenure of employment of eight
employees, as found herein, thereby discouraging membership in and activity on
behalf of the above-named labor organization, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
3 All production, maintenance, and shipping room employees employed at the
Respondent's plant excluding clerical employees, professional employees, guards,
and 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.
4 United Steelworkers of America, AFL-CIO, was on March 13, 1957, and at
all times since has been the exclusive representative within the meaning of Section 9
(a) of the Act of all employees in the aforesaid unit for the purposes of collective
bargaining
5 By refusing to bargain collectively with the aforesaid labor organization as the
exclusive bargaining representative of the employees in the appropriate unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act
6 By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act
7 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication I
Petroleum Chemicals, Inc. and United Plant Guard Workers of
America, Petitioner. Case No 15-RC-1781 August 26, 1958
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 John H Immel, Jr, hearing
officer The hearing officer's rulings made at the hearing are free,
from prejudicial error and are hereby affirmed
121 NLRB No 78
PETROLEUM CHEMICALS, INC. 631
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 [Chairman Leedom and Members Bean and Fanning]..
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 Employer contends that the Petitioner is not qualified to
represent a unit of guards because, in substance, (1) the record fails
affirmatively to establish that the Petitioner is not still indirectly
affiliated with the CIO (now the AFL-CIO) with which it was at
one time affiliated; and (2) the Petitioner admits to membership em-
,ployees other than guards in view of the provision in its constitution
permitting members promoted to minor supervisory positions, who
do not have the power to hire or discharge, to retain their membership
at the discretion of the Local Union. We find no merit in these con-
tentions. As to (1), the Board has considered the evolution of the
Petitioner from an affiliate of the CIO to an independent union and
has held that it was not affiliated directly or indirectly with any
organization which admits to membership employees other than
guards,' and there is nothing in the instant record warranting a dif-
ferent conclusion. As to (2), as it is clear that the promotions envis-
aged by the Petitioner's constitution are to supervisory guard posi-
tions, the fact that such individuals may retain their membership
does not disqualify the Petitioner as a representative of guards.
We find, accordingly, that the Petitioner, a labor organization
claiming to represent employees of the Employer, is qualified under
Section 9 (b) (3) of the Act to represent a unit of guards.
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 Petitioner seeks to represent all plant-protection employees,
including guards, guard sergeants, firemen, fire lieutenants, and
safety inspectors at the Employer's Lake Charles, Louisiana, plant.
The Employer contends that the unit is inappropriate because all
employees in the proposed unit are supervisors, and the safety inspec-
tors are also technical employees.
The Employer employs 4 guard sergeants and 10 guards. A guard
sergeant is assigned to each shift, and there may be as many as four
guards assigned to .a shift. The guard sergeants are stationed at the
main gate to, the Employer's premises where they check people in and
out of the premises. They are• authorized to refuse admission to the
plant to unauthorized persons; to check plant identification badges;
1 See Chrysler Corporation, 79 NLRB 462; General Motors Corporation , 80 NLRB 317,
International Harvester Company, 81 NLRB 374; Mack Manufacturing Company, 108
NLRB 1181.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to see that employees check time clocks During the day shift
guards are stationed at four other gates where they perform the
same duties which guard sergeants perform at the main gate On the
other shifts guards make rounds of the plant property, maintain order
and enforce traffic and safety rules Guard sergeants and guards are
armed and wear a distinctive uniform They perform no production
or maintenance duties From the foregoing it is clear and we find
that the guards and guard sergeants are guards within the meaning
of Section 9 (b) (3) of the Act 2
We find no merit in the Employer's contention that guard sergeants
and guards are supervisors because, in the performance of their police
function, they have authority to direct others to open packages, and to
enforce traffic and safety regulations The authority to direct others
in enforcing plant rules is an exercise of police power normally vested
in employees assigned to plant-protection duties and as such is not an
exercise of supervisory power in relation to the duties of those being
directed, as envisaged in Section 2 (11) of the Act Nor do we find,
on the basis of the record, that guard seigeants are supervisors Al-
though the record shows that the guard sergeants may recommend
disciplinary action, it does not disclose the weight, if any, accorded to
such recommendation by the Employer The record does show, how-
ever, that guard sergeants may neither hire, discharge, or promote
guards, nor make recommendations to the Employer in these matters
Nor does it appear that their direction of the guards is other than
routine We find, accordingly, that the guard sergeants are not super-
visors and shall include them in the unit
The Employer also employs a fire captain, 4 fire lieutenants and 5
firemen Their primary duty is to protect the Employer's plant and
equipment from fire They operate fire-fighting equipment and in-
spect fire-prevention and fire-fighting equipment to see that it is in
proper working condition They also make rounds to inspect prop-
erty As it does not appear from the record that these inspections
involve the performance of guard duties, and as it does not otherwise
appear that the firemen perform any guard duties, we find that they
are not guards and we shall therefore exclude them from the unit'
The Employer employs five safety inspectors in the plant-protection
department These individuals are trained in the processes involved
in the manufacture of the Employer's products In the performance
of their main duties they test the air where certain "hot work" is to be
performed and if conditions are safe they issue a "hot-work" permit
Safety inspectors enforce safety regulations, administer first aid, and
occasionally on request relieve guards for short periods of time, if
2 Walterborc Manufacturing Corporation, 106 NLRB 1383
g The Woodman Company Inc, 119 NLRB 1784 In view of our finding herein, it is
unnecessary to determine whether, as contended by the Employer , the firemen are
supervisors
RADIO CORPORATION OF AMERICA 633
their other duties permit. As it appears that any guard duty per-
formed by safety inspectors is sporadic 4 and as their authority to
enforce safety regulations does not make them guards within the
meaning of the Act,' we find that the safety inspectors, like the fire-
men, are not guards and we shall exclude them from the unit.'
We find that the following employees at the Employer's Lake
Charles, Louisiana, plant constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act :
All guard sergeants and guards, excluding all other employees and
supervisors as defined in the Act.
5. The Employer opposes an immediate election, and contends that
the petition should be dismissed, on the ground that as a result of the
construction of new plant facilities in which it is engaged the plant-
protection department may be changed, and the unit may be altered
and become nonrepresentative. At the hearing and in its brief, the
Employer was unable to state with exactitude what changes would be
made and admitted that the nature of the changes in the plant-protec-
tion department are speculative. Moreover, it appears from the rec-
ord that the additional facilities under construction at the time of
the hearing will be in operation before the election is held herein. In
these circumstances we find no merit in this contention and shall direct
an immediate election.
[Text of Direction of Election omitted from publication.]
4 See Barrett Division, Allied Chemical A Dye Corporation, 116 NLRB 1649, 1652,
footnote 5.
McDonnell Aircraft Corporation, 109 NLRB 967 , 968-969
In view of our finding herein, it is unnecessary to determine whether, as the Employer
contends , the safety inspectors are supervisors or technical employees.
Radio Corporation of America and United Electrical , Radio and
Machine Workers of America (UE), Ind., Petitioner. Case No.
4-RC-3598. August 96, 1958
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 Seymour X. Alsher,
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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
121 NLRB No. 85.