Troy Refining Corp.

National Labor Relations Board - Board Decisions

Sep 5, 1946

70 N.L.R.B. 1191 (N.L.R.B. 1946)

In the Matter of TROY REFINING CORPORATION, EMPLOYER and UNITED
ELECTRICAL, RADIO & MACHINE `YORKERS OF AMERICA, CIO, PETI-
TIONER
Case No. 11-R-1005.-Decided September 5, 1946
Messrs. R. Miller Holland and R. T. Sweeney, of Owensboro, Ky.,
for the Employer.
Mr. Robert W. Druwcan, of Tell City, Ind., for the Petitioner.
Mr. Herbert J. Nester, of counsel to the Board.
DECISION
AND
DIRECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed, the National Labor Relations
Board, on May 29, 1946, conducted a prehearing election pursuant to
Article III, Section 3, of the Board's Rules and Regulations, among
the employees in the alleged appropriate unit, to determine whether
or not they desired to be represented by the Petitioner for the purposes
of collective bargaining.
At the close of the election a Tally of Ballots was furnished the
parties. The Tally reveals. that there were approximately 17 eligible
voters and that 18 ballots were cast, of which 8 were for the Petitioner,
6 were against, and 4 were challenged.
Thereafter, pursuant to Article III, Section 10, of the Board's Rules
and Regulations, an appropriate hearing was held at Tell City, In-
diana, on July 9, 1946, before Arthur R. Donovan, Trial Examiner.
The Trial Examiner's rulings made at the hearing are free from prej -
udicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following:-
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Troy Refining Corporation, an Indiana corporation with its princi-
pal place of business located at Troy, Indiana, is engaged in the re-
70 N. L. R. B, No. 104.
1191
1192 DECISTONS OF NATIONAL. LABOR RELATIONS BOARD
fining of crude oil. Crude oil is obtained by the Employer both from
its own wells located adjacent to the refinery, and also from wells
located in the Commonwealth of Kentucky. During the past year its
purchases of crude oil were valued at in excess of $100,000,_over 5
percent of which was shipped from outside the State of Indiana.
During the same period, the Employer produced gasoline, lubricating
oils and kerosene valued at in excess of $100,000, over 33 percent of
which was sold and shipped to points outside the State of Indiana.
The Employer admits and we find' that it is engaged in commerce
within the meaning of the National Labor Relations Act.
IT. TILE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in accord with a stipulation of the parties, that all produc-
tion and maintenance employees, including the service station opera-
tor and the truck drivers, but excluding office and clerical employees,
the general manager, and all or any other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTA TIVES
The only issues raised at the hearing were relative to the eligibility
of four employees whose ballots were challenged at the time of the
.election.` Two of the challenges were interposed by the Petitioner and
two by the Board representative conducting the clectio;i.
Dewey Hill Stinson and Bailey Stinnson: The Petitioner challenged
the ballots of these two employees on the gryunds that their employ-
ment is only casual in nature, and also because of their close relation-
TROP REFINING CORPORATION 1193
ship to the Employer's general manager.' The record discloses that
Dewey Hill Stinson, son of the general manager, commenced his em-
ployment with the Employer in the fore part of February 1946. He
was employed a total of 24 hours during the month of February, 8
hours during the pay-roll period ending May 15,2 and 16 hours in the
pay-roll period ending May 30. These intermittent periods consti-
tute his entire employment record with the Employer. Bailey Stin-
son, a brother of the general manager, was first employed by the
Employer in January 1946, and worked a total of 841/2 hours during
that month. His name next appears on the pay-roll record for May 1
to 15, inclusive, during which period he worked 16 hours. During
the intervening time, the Employer asserts that Bailey Stinson was
privately employed by the general manager. The Board has fre-
quently held that employees who are closely related to company execu-
tives are ineligible to participate in elections.3 Moreover, we are of
the opinion, that the irregularity of their employment clearly places
these men in the category of casual employees, whom the Board, in
previous decisions, has held do not have a sufficient interest in matters
of collective bargaining to warrant their participation in elections.'
We shall, therefore, sustain the Petitioner's challenges to the ballots
of Dewey Hill Stinson and Bailey Stinson.
Harold Wilgus: This employee's ballot was challenged by the
Board representative because his name originally did not appear on
the list of eligible voters, it having been added thereto approximately
5 minutes before the election. At the hearing the parties agreed that
this employee was an eligible voter and that his name had been
omitted from the list through inadvertence. We shall, therefore,
overrule the challenge to the ballot of Harold Wilgus.
J. A. Schaeffer: This employee's ballot was challenged by the
Board representative because his name did not appear on the eligible
voting list. At the hearing it was- disclosed that he, had been dis-
charged prior to the election and that an unfair labor practice charge
was pending against the Employer involving Schaeffer's discharge .5
A request was made by the Petitioner, in which Schaeffer concurred,
that his ballot be withdrawn without prejudice to a determination of
the pending unfair labor practice charges, and that no ruling be
made on the challenge interposed to his ballot. In the interest of
' The Employer 's General Manager, in addition to his managerial position at the plant,
also occupies the positions of Secretary and Treasurer of the Employer.
2 The pay period from May 1 to May 15 was determinative of voting eligibility
3 See Matter of 0. U. Hofmann, et at., 55 N . L. R. B 683; Matter of Parker 's Brass Foun-
dry, 63 N L R B 1 238 , Matter of Shelby F Cason, et al , 69 N. L R. B 523
* See Matter of El Paso Electric Cornpany , 49 N. L R . B. 351 ; Matter of The Post Print-
ing and Publishing Co., et at., 59 N L R. B. 1115; Matter of Gulf Refining Company (Tulsa
Pipe Lines Division ), 64 N. L R. B. 304
Case No. 11-C-1295 involving 8.(1) and 8 (3) charges were filed against the Em-
ployer in the Regional Office on May 20, 1946.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintaining the integrity of the Board's election procedure, we are
of the opinion that the Petitioner's request should be denied. It is
apparent, however, that no ruling can be made with respect to this
challenged ballot until final disposition of the unfair labor practice
charges. However, inasmuch as the ballot of Harold Wilgus may
determine the outcome of the election, irrespective of the ballot of
J. A. Schaeffer, we shall direct that the Regional Director open and
count Wilgus' ballot. In the event that the counting of the ballot of
Harold Wilgus does not conclusively determine the result of the elec-
tion, the counting of the ballot of J. A. Schaeffer shall await the
Board's determination of the pending 8 (3) charge in case No.
11-C-1295.
DIRECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 10, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives, for the purposes of collective bargaining with Troy Refining
Corporation, Troy, Indiana, the Regional Director for the Eleventh
Region shall, pursuant to the Rules and Regulations of the Board,
as set forth above, and subject to Article III, Sections 10 and 11, of
said Rules and Regulations, within ten (10) days from the date of
this Direction, open and count the ballot of Harold Wilgus and there-
after prepare and serve on the parties in this proceeding a report em-
bodying therein his findings and his recomendations as to the result
of the ballot.
IT IS FURTHER DIRECTED that, if the result of the election is not con-
clusively determined by the counting of the Harold Wilgus ballot, the
Regional Director shall continue to impound the ballot of J. A.
Schaeffer until final disposition by the Board of,Case No. 11-0-1295,
and upon, the final disposition of that case, the Regional Director
shall, in accordance with the determination made therein, prepare
and serve on the parties to this proceeding a report embodying his
findings and recommendations as to the disposition of the ballot of
J. A. Schaeffer.
MR. JAMES J . REYNOLDS , JR., took no part in the consideration of
the above Decision and Direction.