The Texas Pipe Line Co.

THE TEXAS PIPE LINE COMPANY 705 The Texas Pipe Line Company and Oil, Chemical and Atomic Workers International Union . Case No. 23-CA-1005. Novem- ber 18, 1960 DECISION AND ORDER On July 19, 1960, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief.' 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 Jenkins and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and reconunenda- tions of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, The Texas Pipe Line Com- pany, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other terms or conditions of employment, with Oil, Chemical and Atomic Workers International Union as the exclusive representative of all its employees in the following appro- priate unit : All operating and maintenance employees of the Wichita Falls, Houston, and Lafayette divisions, excluding office clerical, tech- nical, and professional employees, guards, mechanical mainte- nance foremen, electrical maintenance foremen, chief main line engineers, and all other supervisors as defined in the Act. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights to self- 1 The Respondent's request for oral argument is hereby denied as, in our opinion, the record, exceptions, and brief adequately present the positions of the parties 129 NLRB No. 84. 586439-61-vol 129--46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization, to form a labor organization, to join or assist Oil, Chem- ical and Atomic Workers International Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from engaging in any such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Oil, Chemical and Atomic Workers International Union, as the exclusive representative of all employees in the appropriate unit, in respect to rates of pay, wages, hours of employment, and other terms or conditions of em- ployment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its plants at Wichita Falls and Houston, Texas, and Lafayette, Louisiana, copies of the notice attached to the Intermediate Report marked "Appendix A." 2 Copies of said notice, to be fur- nished by the Regional Director for the Twenty-third Region, shall, after having been duly signed by the Respondent, be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that such no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Decision and Order, what steps it has taken to comply therewith. 2 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by Oil, Chemical and Atomic Workers International Union,' herein called the Union, the General Counsel of the National Labor Relations Board issued a complaint dated April 7, 1960, against The Texas Pipe Line Company, herein called Respondent, alleging that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and ( 5) of the Labor Management Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act. The Respondent has filed an answer which denies the commission of the unfair labor practices. Pursuant to notice, a hearing was held before the duly designated Trial Examiner on May 3, 1960, at Houston, Texas. All parties were represented at the hearing and were given full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues . The Respondent has filed a brief which I have fully considered. 1 At the hearing, the designation of the Charging Union was amended by consent to delete "AFL-CIO" from its name THE TEXAS PIPE LINE COMPANY 707 Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent, a Texas corporation whose principal office and place of business is located in Houston, Texas, is a wholly owned subsidiary of Texaco, Inc., engaged in the transportation of petroleum products by pipeline in the States of Texas, Louisiana, Illinois, Indiana, Oklahoma, and Montana. During the last 12 months, a representative period, the Respondent shipped crude oil and petroleum products valued in excess of $200,000,000 between and among the above-named States. Upon the foregoing, I find that the Respondent is engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES On March 4, 1959, the Respondent filed a petition with the Board requesting that an election be held in a unit composed of "all operating and maintenance employees of the Respondent's Wichita Falls Division." 2 On March 9, 1959, the Union filed a petition requesting that an election be held in a companywide unit consisting of "all operating and maintenance employees of Respondent." 3 The two petitions were consolidated for hearing and a representation hearing was held in Houston, Texas, on April 6 and May 18, 19, 20, and 21, 1959, before a bearing officer of the Board. The principal issue at the hearing was the question of what constituted an appro- priate unit for purposes of collective bargaining. After the hearing, briefs were filed on behalf of both Respondent and the Union. On December 17, 1959, the Board issued its Decision and Direction of Election .4 Therein the Board concluded that the following employees of the Respondent constituted a unit appropriate for the purposes of collective bargaining within the meaning of the Act: All operating and maintenance employees of the Employer's Wichita Falls, Houston, and Lafayette divisions, excluding office clerical, technical and pro- fessional employees, guards, mechanical maintenance foremen, electrical main- tenance foremen, chief main line engineers, and all other supervisors as defined in the Act. Thereafter on December 28, 1959, the Respondent moved for reconsideration of the Board's unit determination quoted above, and, on January 7, 1960, filed with the Board a brief in support of said motion. In its motion and supporting brief, the Re- spondent contended that the unit found appropriate by the Board, was inappropriate, contrary to law and fact, arbitrary and capricious, and based on the extent of union organization. On January 23, 1960, the Board denied the Respondent's motion for reconsideration "as lacking in merit." On January 26 and 27, 1960, an election was conducted by the Board among the employees of Respondent in the above unit. The tally of ballots disclosed that of 388 eligible voters, 245 voted for the Union, 115 voted against the Union, there was 1 void ballot, and no challenged ballots. Thereafter, on February 9, 1960, the Board formally certified the Union as the exclusive bargaining representative of the employees in the unit described above. On March 10, 1960, the Respondent wrote a letter to the Union stating, inter alia, that "the Board's unit determination is contrary to law," "arbitrary and capricious," that, therefore, to save the Union "unnecessary expenditure of time and effort in preparation for bargaining," it was advising that "must decline to bargain with your Union." The letter stated further that "bur sole reason for taking this action is to obtain a review by the Courts" of the Board's unit determination. At .the hearing in the instant case, the Respondent sought to relitigate the appro- priateness of the unit which the Board found appropriate in its decision and direction of election. If offered to prove that the Board's unit determination was contrary to law and fact, that the Company's organizational structure was on a divisional basis, that there wasa 16-year history of bargaining by the Compny on a divisional basis, 8 Case No. 16-RM-176. 8 Case No 39-RC-1358. This case number was subsequently changed to 23-RC-1358. 4 125 NLRB 837. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Board's decision and direction of election was based on the extent of the Union's organization among the Respondent's employees, that the Montana division of the Respondent has a current contract in effect, and that the Salem, the Hearne Products, and the Evangeline Products divisions have no union organization. It further offered to prove that each of the three divisions in the unit found appropriate by the Board has a separate manager with full authority in his own division but none outside of it and that the Board's decision makes necessary bargaining by a team consisting of three of the Respondent's division managers. However, the Re- spondent admitted at the hearing that there was no change in the circumstances of any of the employees involved since the Board's decision and direction of election, and further admitted that all of the facts which it offered to prove at the hearing in this case were already contained in the testimony of the witnesses in the transcript of the hearing conducted pursuant to the petitions for an election. Since the Re- spondent offered no testimony which had not already been considered and resolved by the Board in the aforementioned cases, I rejected the offer of proof and did not permit the Respondent to relitigate the appropriateness of the unit found by the Board.5 Upon the record herein, including the Board's decision and direction of election, the Union's victory in the election of January 26 and 27, 1960, and the Board's certification of the Union dated February 9, 1960. I find and conclude that the Union, at all times material herein, has been and now is the exclusive representative of all the Respondent's employees in a unit appropriate for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Moreover, based on the Respondent's letter dated March 10, 1960, I find and conclude that on and after the said date, the Respondent has refused to bargain with the Union.6 Accordingly, I find and conclude that by the said refusal to bargain with the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act, and that by such conduct the Respondent has also interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Oil, Chemical and Atomic Workers International Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. All operating and maintenance employees of the Respondent 's Wichita Falls, Houston, and Lafayette divisions, excluding office clerical, technical, and professional employees, guards, mechanical maintenance foremen, electrical maintenance fore- men, chief main line engineers , and all other supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 3. At all times since February 9, 1960, the Union has been and continues to be the exclusive bargaining representative of all the employees in the aforementioned' unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5 Pittsburgh Plate Glass Company v N L R B., 313 U.S 146; N L R B v. American Steel Buck Corp., 227 F. 2d 927 (CA. 2) ; National Carbon Company, 110 NLRB 2184 6 In view of Respondent's letter advising the Union that it would not bargain in order to test the Board's certification, the absence of a demand by the Union to bargain is immaterial since such a demand would have been a useless gesture. Old Town Shoe Company, 91 NLRB 240. GIBBS CORPORATION 709 4. By refusing, on and after March 10 , 1960, to bargain collectively with the Union as the exclusive representative of its employees in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By the aforesaid refusal to bargain collectively, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. 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.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL bargain collectively upon request with Oil, Chemical and Atomic Workers International Union , as the exclusive representative of all our em- ployees in the bargaining unit described herein, in respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All operating and maintenance employees of our Wichita Falls, Houston, and Lafayette divisions , excluding office clerical , technical, and professional employees, guards, mechanical maintenance foremen, electrical mainte- nance foremen, chief main line engineers, and all other supervisors as .defined in the Act. THE TEXAS PIPE LINE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Gibbs Corporation and Industrial Union of Marine and Ship- building Workers of America, AFL-CIO Southern Shipbuilding, Inc., Division of Gibbs Corporation and Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO. Cases Nos. 12-CA-1153 and 12-CA-1206. November 18, 1960 DECISION AND ORDER On June 29, 1960, Trial Examiner A. Bruce Hunt issued his Interme- diate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. 129 NLRB No. 80.