Southport Petroleum Co. of Delaware

III the Matter of SOUTHPORT' PETROLEUM CODIPANY OF DELAWARE and OIL WORKERS INTERNATIONAL UNION,-LOCAL 449 Case No. R-34181.-Decided February 28, 1942 Jurisdiction : oil re:i,img industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; consent election lost by petitioner and con- ducted less than a year from the filing of the petition held not to bar present proceedings notwithstanding restrictive provision in agreement which Board finds is against public policy ; election necessary. Unit Appropriate for Collective Bargaining : maintenance and operating ein- ployees of the Company at its Texas City refinery, excluding clerical and supervisory employees ; agreement as to. Mr. W. E. Cranford and Mr. Fine G. Bedford, of Galveston, Tex., and Mr. Lee LaFerney, of Texas City, Tex., for the Company. Mr. Foy J. Hopkins and Mr. Clyde Johnson, of Texas City, Tex., and Mr. Herman Wright, of Houston, Tex., for the Union. Mr. Gilbert P. Rosenberg, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 21, 1941, Oil Workers International Union, Local 449, herein called the Union, filed with the Regional Director for the Sixteenth Region (Fort Worth, Texas) a petition alleging that a question affecting commerce had arisen concerning the represen- tation of employees of Southport Petroleum Company of Delaware,' Texas City, Texas; herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 21, 1942, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Articles III, Section 3, of National Labor Relations Board Rules 'The notice of hearing refers to the Company as Southport Petroleum Company. However, its correct name is as stated above 39 N. L. R B , No. 45. 257 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional, Director to conduct it and to provide for an appropriate hearing upon due notice. On January 22, 1942, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union.-' Pursuant to notice, a hearing was held on January 28, e 1942, at Texas City, Texas, before Bliss Daffan, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the Union were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Exam- iner and finds that no prejudicial errors were committed. The rul- ings are hereby affirmed. The Company and the Union submitted briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Southport Petroleum Company of Delaware,, a Delaware cor- poration, operates a gasoline and oil refinery at Texas City, Texas. During the last 6 months of 1941,'the Company purchased approxi- mately 355,000 tons of raw materials for this refinery, of which approximately, 25 - percent was obtained from points outside the State of Texas. During the same period the Company produced at this refinery approximately 420,000 tons of gasoline and oil, of which approximately 95 percent was shipped to destinations outside the State of Texas. H. THE ORGANIZATION INVOLVED Oil workers International-Union, Local 449, is a labor organiza- tion affiliated with the Congress of Industrial Organizations, ad- mitting to membership employees of the Company. 2 Notices of hearing were also served upon International Brotherhood of Electrical Workers ; Inteinational Union of Operating Engineers ; International Association of Machinists , District 37; and International Hod Carriers ', Building and Common Laborers Union None of these labor organizations appeared at the hearing SOUTHPORT PETROLEUM COMPANY OF DELAWARE 259 III. THE QUESTION CONCERNING,REPRESENTATION On about October 30, 1941, the Union, claiming to represent a majority of the Company's employees, requested the Company to bargain with it. The Company refused.3 There was introduced in evidence a report prepared by the Field Examiner showing that the Union represents a substantial number of employees in the unit hereinafter found fo be appropriate.4 We find that a question has arisen concerning the representation of employees of the Company.' IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has . a close, intimate , and substantial relation to trade, traffic , and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The parties stipulated, and we find, that all maintenance and operating employees of the Company at the Texas City Refinery, 3 Pursuant to a consent election agreement dated July 30, 1941 , an election was held on August 7, 1941 The Union lost The Company , refused to bargain with the Union and urges dismissal of the instant petition because, in the consent election agreement, the Union agreed "to be bound by the result of the election for a period of at least one year ..." while it has been the practice of the Board to encourage consent election agreements, and it appears that this particular agreement was entered into by the parties with the knowledge of the Regional Office, the inclusion of this clause seems to have been inadvertent, since it apparently overlooked the fact that upon the happening of a certain contingency there could be no collective bargaining for a period of a year. Such a provision flies in the face of Section 1 of the National Labor Relations Act which declares it to be the policy of the United States to encourage the practice and procedure of collective bargaining, as well as Section 8 ( 5) which makes it an unfair labor practice for an employer to refuse to bargain collectively with the majority representatives of his employees . We therefore cannot give effect to this provision. I The Field Examiner reported that the Union , submitted 114 authorization cards, of which 100 are signed by persons whose names appear on the Company 's January 1, 1942, pay roll , containing approximately 156 employees in the claimed unit. A representative of the Union testified , without contradiction , that at the time of the hearing the Union had 122 dues-paying members among the employees of the Company, while at the time of the consent election the Union had been designated as bargaining representative by approximately 100 employees of the Company , of whom only 12 were dues -paying members 6 See Matter of New York Central Iron Works, Hagerstown, Maryland and International Association of Bridge, Structural and Ornamental Iron Workers Shopmen's Local Union ##603, 37 N. L. R. B. 894; Matter ,of Chrysler Corporation and International Union, United Automobile, Aircraft ct Agricultural Implement Workers of America, affiliated with the C. I. 0, 37 N L R B 877; Matter of Ford A Smith, Blanche F. Smith, and William C. Shanks, Partners doing business as Smith Cabinet Manufacturing Company and United Brotherhood of Carpenters if Joiners, Local No 1699 ( AFL), 38 N L R B 957. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding clerical and supervisory, employees, constitute a unit ap- propriate for the purposes of collective bargaining. We further find that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation of the em- ployees of the Company can best be resolved by an election by secret ballot. The Union requests that the pay roll of January 16, 1942, be used to determine eligibility. However, we see no reason to depart from our usual practice in this regard. We shall accordingly direct an election by secret ballot among all employees within the appropriate unit who were employed during the pay-roll period last preceding the date of this Direction of Election, subject to the limitations and additions set forth therein. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Southport Petroleum Company of Dela- ware, Texas City, Texas, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All maintenance and operating employees of the Company at the Texas City refinery, 'excluding clerical and supervisory em- ployees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION 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 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collec- tive bargaining with Southport Petroleum Company of Delaware, Texas City, Texas, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the RegionarDirector for the Sixteenth Region, acting •in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all maintenance SOUTHPORT PETROLEUM COMPANY OF DELAWARE 261 and operating employees of the Company at the Texas City refinery who were employed during the pay-roll period last preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States or tempo- rarily laid off, but excluding clerical and supervisory employees and employees who have since quit or been discharged for cause to deter- mine whether or not they desire to be represented by Oil Workers International Union, Local 449, affiliated with the Congress of In- dustrial Organizations, for the purposes of collective bargaining. CITAMNrAN DMILL s took no part in the consideration of the above Decision and Direction of Election.