Socony-Vacuum Oil Co., Inc.

In the Matter of SOCONY-VACUUM OIL COMPANY, INCORPORATED and MARINE ENGINEERS' BENEFICIAL ASSOCIATION In the Matter of SOCONY-VACUUM OIL COMPANY, INCORPORATED and SOCONY-VACUUM TANKER OFFICERS ASSOCIATION Cases Nos. R-JI14 and R-1115-Decided February 6, 1939 Water Transportation Industry-Investigation of Representatives : contro- versy concerning representation of employees : rival organizations ; refusal by employer to recognize any of three of four unions involved as exclusive repre- sentative of employees-Contract : no bar to investigation or certification of representatives-Units Appropriate for Collective Bargaining : ( 1) licensed engineers of Company ; no controversy as to: ( 2) licensed deck officers of Com- pany; no controversy as to-Elections Ordered Mr. Millard L. Midonick, for the Board. Mr. Austin T. Foster, Mr. W. C. Brodie, and Mr. C. R. Dooley, of New York City, for the Company. Mr. Edward Patrick Trainer, of New York City, for the M. E. B. A. 111r. John J. Collins, of New York City, Mr. Fred N. Hansen, of Staten Island, N. Y., and Mr. Edward Bischoff, of Black Mountain, N. C., for the Association. Mr. B. L. Todd, of New York City, for the U. L. O. Mr. E. T. Pinchin, of New York City, for the M. M. P. Mr. Daniel J. Harrington , of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On July 5, 1938, Marine Engineers' Beneficial Association, herein called the M. E. B. A., filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Socony-Vacuum Oil Company, Inc.,' New York City, here called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Re- I At the hearing counsel for the Board moved to amend the title of the action by substituting "Incorporated" for "Inc." There was no objection raised. 11 N. L. R. B., No. 7. 28 SOCONY-VACUUM OIL COMPANY ET AL. 29 lations Act, 49 Stat. 449, herein called the Act. On August 1, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 7, 1938, the Regional Director issued a notice of hearing and on October 19, 1938, an amended notice of hearing, copies of both of which were duly served upon the Company; upon the M. E. B. A.; upon John J. Collins, Socony-Vacuum Tanker Officers Association; upon the International Union of Operating En- gineers; upon the International Association of Longshoremen; upon the United Licensed Officers Association, herein called the U. L. 0.; and upon the National Organization Masters, Mates and Pilots of America,2 herein called the Al. M. P., the last two being labor or- ganizations claiming to represent employees directly affected by the investigation. On October 22, 1938, Socony-Vacuum Tanker Officers Association, herein called the Association, filed a petition with the said Regional Director. On October 29, 1938, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Re- lations Board Rules and Regulations-Series 1, as amended, ordered an investigation and hearing with respect to the petition filed by the Association and authorized the said Regional Director to conduct it, and, acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, further ordered that the cases involving the two petitions be consolidated for the purposes of hearing and for all other purposes. On November 2, 1938, the Regional Director issued a notice of hearing with respect to the petition filed by the Association, copies of which were duly served upon the Company, upon the M. E. B. A., upon Harry Collins,3 upon the U. L. 0., and upon the M. M. P. On January 4, 1939, the Board issued an amended order of consolida- tion and direction of an investigation, and hearing. The amended order and direction of January 4, 1939, did not change in any material respect the order and direction issued by the Board on October 29, 1938. Pursuant to the notices of hearing, a hearing was held on Novem- ber 3, 1938, at New York City, before Charles W. Whittemore, the Trial Examiner duly designated by the Board. The Board, the Company, the M. E. B. A., the Association, the U. L. 0., and the M. M. P., were represented by counsel or other representatives, and 2 Incorrectly designated as National Association of Masters, Mates, and Pilots in the notice and amended notice of hearing - Refeired to as attorney for the Association in the affidavit of service. Evidently the name should have been John J. Collins. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,all parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the hearing, the M. E. B. A. offered in evidence a copy of a charge dated August 10, 1938, which it had filed with the Regional Director for the Second Region and which alleged that the Company had engaged in unfair labor practices. The Trial Examiner refused to allow its introduction in evidence. The charge in question was dismissed by the Regional Director for the Second Region on December 2, 1938. At the hear- ing the M. E. B. A. also moved to withdraw its petition, stating that it felt that a contract entered into by the Company and the Associa- tion on February 1, 1938, should be abrogated and no election be held until a period of 6 months had elapsed following such abroga- tion. The Trial Examiner did not rule upon this motion, stating that it was a matter for decision by the Board. The motion is hereby denied. As indicated herein, the Board will not place the name of the M. E. B. A. upon the ballot in any election if the M. E. B. A. so desires. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the ad- mission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 4 Socony-Vacuum Oil Company, Incorporated, is a New York cor- poration engaged, among other things, in the transportation of pe- troleum and petroleum products. It owns and operates through its marine-transportation department 38 ocean-going tankers on which are employed the licensed personnel herein involved. Thirty of these vessels were actively operated by the Company during the year 1938. The remaining eight were tied up and were not actively operated for a substantial part of the period from January 1, 1938, to October 31, 1938. During this period approximately 75 per cent of the activities of the 30 vessels in active operation involved the transportation of petroleum products from ports in the Gulf of Mexico to ports on the Atlantic seaboard north of Cape Hatteras. Approximately 50 per cent of the cargo transported in these vessels was owned by a subsidiary of the Company. During the same period approximately two to three of the 38 vessels were engaged in transporting shipments from a port in the United States to a port in a foreign country. The Company, 4 The above facts were stipulated to by the Company and by counsel for the Board. SOCONY-VACUUM OIL COMPANY ET AL. 31 during the period from January 1, 1938, to October 15, 1938, by means of the 30 vessels above mentioned transported between ports in differ- ent States, and between ports in the United States and ports in foreign countries, 41,039,000 barrels of raw petroleum and its products. The Company admits that in the operation of the 38 vessels it is engaged in interstate and foreign commerce. It also admits that the licensed engineers and licensed deck officers employed on these ves- sels are directly engaged in such trade, traffic, transportation, and commerce. We find that Socony-Vacuum Oil Company, Incorporated, is en- gaged in trade, traffic, transportation, and commerce among the several States and between the United States and foreign countries, and that the licensed personnel employed by said Company is directly engaged in such trade, traffic, transportation, and commerce. II. THE ORGANIZATIONS INVOLVED Marine Engineers' Beneficial Association is a labor organization affiliated with the Committee for Industrial Organization, admitting to its membership all licensed engineers on the vessels of the Company. Socony-Vacuum Tanker Officers Association is an unaffiliated labor organization. It admits to its membership "all employees who are employed as licensed Officers, ashore or afloat, either handling a ship or her cargo, more than 6 months in the fleet of the Socony-Vacuum Oil Co. Inc." 5 United Licensed Officers of the U. S. A. is an unaffiliated labor organization, admitting to its membership the licensed engineers and licensed deck officers employed by the Company. National Organization Masters, Mates and Pilots of America is a labor organization affiliated with the American Federation of Labor. It admits to its membership all licensed deck officers em- ployed by the Company. III. THE QUESTION CONCERNING REPRESENTATION In September 1937 the M. E. B. A. claimed to represent a majority of the licensed engineers employed by the Company and requested the Company to enter into an agreement with it. The Company refused to do so, basing its refusal on the ground that it did not believe the M. E. B. A. represented a majority of such employees. On February 1, 1938, the Company entered into an agreement with the Association in which the Association was recognized as bargain- ing agent for the members of the Association who are employees of the Company. The agreement provided that it should remain in 5 The quoted words are taken from the constitution and bylaws of the Association. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect for a period of 1 year and indefinitely thereafter unless modi- fied by mutual agreement or terminated by either party after 60 days' notice, in writing, by either party to the other. Inasmuch as the agreement applies only to members of the Association and since the initial term of the agreement expired on February 1, 1939, the agreement is no bar to an investigation or certification of repre- sentatives." Indeed, neither the Company nor the labor organiza- tion which is party to the agreement contends that the agreement constitutes any such bar. At the hearing, the U. L. 0. claimed to represent a substantial number of the licensed engineers and licensed deck officers. The Company states that it will not recognize either the M. E. B. A., the M. M. P., or the U. L. 0. as exclusive bargaining representative of its employees without certification by the Board. We find that a question has arisen concerning the representation of employees of the Company and that such question tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. TIIE APPROPRIATE UNITS At the hearing the parties agreed that the licensed engineers and the licensed deck officers of the Company, respectively, constitute separate appropriate bargaining units. The parties stipulated that the facts concerning the employees in the instant case are similar to those as to employees considered by the Board in Matter of Black Diamond Steamship Corporation.? In the cited case and in numerous other cases," the Board has held that licensed engineers and licensed deck officers are properly separated into two appropriate units. We find that the licensed engineers of the Company constitute a unit appropriate for the purposes of collective bargaining and that the licensed deck officers constitute a separate unit appropriate for the purposes of collective bargaining. We further find that said units 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. 8 See Matter of Northrop Corporation and United Automobile Workers, Local No. 229, 3 N L R. B. 228; Matter of Atlantic Footwear Company, Inc and United Shoe Workers of America of the C I. 0., 5 N. L R B. 252; Matter of Sandusky Metal Products, Inc. and American Federation of Labor, 6 N L. R B. 12. T Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial Association, Local No. 33, 2 N. L R. B. 241. 8 See Matter of Grace Line, Inc, and Panama Mail Steamship Company and National Marine Engineers' Beneficial Association, Local No 33, 2 N. L. R B. 369; Matter of Stand- ard Oil Company of Ncw Jersey and United Licensed Officers of the U. S. A., etc., 8 N. L. R B 936 SOCONY-VACUUM OIL COMPANY ET AL. V. THE DETERMINATION OF REPRESENTATIVES 33 There was submitted in evidence a list of the licensed engineers of the Company as of July 20, 1938, including the names of persons on active duty, on vacation, awaiting assignment, and on the relieving staff. This list contained 156 names. There was also introduced in evidence a list of the Company's licensed engineers and licensed deck officers as of November 1, 1938. This list contained the names of 144 licensed engineers and 163 licensed deck officers. The M. E. B. A. submitted in evidence authorization cards signed by 67 licensed engineers and the names of 33 additional licensed engineers who were claimed as members. The Association submitted in evi- dence application cards of 83 licensed engineers and 106 licensed deck officers. The general secretary of the U. L. 0. testified that the U. L. 0. had as members on July 22, 1938, approximately 158 licensed deck officers and licensed engineers and that it had a sub- stantial number of members among such employees at the time of the hearing. The business manager of the M. M. P. stated that the M. M. P. had membership among the licensed deck officers,, but that he did not know the number of membership or application cards which had been signed. All the parties indicated their opinion that an election was necessary to determine bargaining representatives. The M. E. B. A. stated, however, that no election should be held until the contract of February 1, 1938, between the Company and the Asso- ciation had been abrogated and a 6 months' period had elapsed following such abrogation. For the reasons set forth in Section III above, the contract is no bar to elections to determine bargaining representatives. We think, moreover, there is no necessity for a postponement in the holding of an election because of such contract. We find that the question which has arisen concerning the representa- tion of employees of the Company can best be resolved by the hold- ing of elections by secret ballot. It is not entirely clear from the record as to whether certain of the labor organizations desire their names to appear on the ballots. Al- though we shall provide for a place on each ballot for all labor organi- zations claiming to represent employees involved in the particular election, we shall amend-our Direction to delete from the ballots the name of-any labor 'organization which' within five (5) days from the date of the Direction of Elections informs the Board that it does not desire to participate in the election or elections. The M. E. B. A., the U. L. 0., and the M. M. P. advocated that eligibility to vote in the elections be determined upon the basis of the shipping articles of the Company's vessels for the month prior to the 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elections. The record does not disclose the position of the Association regarding an appropriate eligibility date. The Company stated that it had no objection to use of the list of the licensed personnel as of November 1, 1938. We shall direct that the elections be held among the employees within the appropriate units who were employed by the Company on the date of the issuance of the Direction of Elections. There arose in connection with the discussion of the eligibility date disagreement among the parties as to whether persons who are await- ing assignment, on leave or vacation, and on the relieving staff, should be allowed to participate in the elections. The M. E. B. A. and the M. M. P. contended that only those persons actually working on ships or who were on the regular 3-week vacation should be allowed to participate in the elections. The Association and the U. L. 0. appar- ently took the position that all the men in question should be allowed to vote. The Company stated that it considered all the men in ques- tion to be employees of the Company. The persons on the relieving staff relieve the licensed personnel of vessels arriving in the port of New York and take charge of the vessels during the nights the vessels are in port. Men on leave beyond the time of their vacation have seniority rights and may continue in the insurance system which the Company has established for its employees. Men awaiting assign- ment are in a somewhat analogous position to persons on leave beyond the time of their vacation. Under all the circumstances, we think that all the persons who, on the eligibility date above set forth, are await- ing assignment, on leave or vacation, or on the relieving staff, are properly considered as employees of the Company and should be allowed to vote in the elections.9 We shall so hold. 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 the Company, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The licensed engineers employed by the Company constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. The licensed deck officers employed by the Company constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 9 See Matter of Standard Oil Company of New Jersey and United Licensed Officers o/ the U 8 d., etc., 8 N L. R. B. 936. SOCONY-VACUUM OIL COMPANY ET AL. 35 DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Socony-Vacuum Oil Company, Incorporated, elections by secret ballot shall be conducted as soon as convenient and beginning as promptly as is practicable after the date of this Direction of Elections, under the direction and supervision of the Regional Director for the Second Region, acting in the matter as agent of the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations : (1) Among the licensed engineers of Socony-Vacuum Oil Company, Incorporated, who were employed by the Company on the date of the issuance of this Direction to determine whether they desire to be rep- resented by Marine Engineers' Beneficial Association, affiliated with the Committee for Industrial, Organization, or by Socony-Vacuum Tanker Officers Association, or by United Licensed Officers of the U. S. A., for the purposes of collective bargaining, or by none of the three organizations; and . (2) Among the licensed deck officers of Socony-Vacuum Oil Com- pany, Incorporated,, who were employed by the Company on the date of the issuance of this Direction, to determine whether they desire to be represented by National Organization Masters, Mates and Pilots of America, affiliated with the American Federation of Labor, or by Socony-Vacuum Tanker Officers Association, or by United Licensed Officers of the U.. S. A., for the purposes of collective bargaining,. or by none of the three organizations. [SAME TITLE] AMENDMENT TO DIRECTION OF ELECTIONS March 7, 1939 On February 6, 1939, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Elections in the above-entitled matter, the elections to be held as soon as convenient and beginning as promptly as is practicable after the date of the Di- rection of Elections under the direction and supervision of the Regional Director for the Second Region (New York City). 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having been advised by the Regional Director for the Second Region that United Licensed Officers of the U. S. A. does not desire its name to appear upon the ballots, the Board hereby amends its Direction of Elections issued on February 6, 1939, by striking from paragraphs (1) and (2) thereof the words "or by United Licensed Officers of the U. S. A., for the purposes of collective bargaining, or by none of the three organizations" and substituting therefor the words "for the purposes of collective bargaining, or by neither." 11 N. L. R. B., No 7a. [ SAME TITLE SECOND AMENDMENT TO DIRECTION OF ELECTIONS March 30, 1939 On February 6, 1939, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Elections in the above-entitled matter. On March 7, 1939, the Board issued an amendment to the Direction of Elections. The Direction of Elec- tions, as amended, directed that elections by secret ballot be held as soon as convenient and as promptly as is practicable after the date of the Direction of Elections under the direction and super- vision of the Regional Director for the Second Region (New York City). Having been advised by the Regional Director for the Second Region that Marine Engineers' Beneficial Association does not de- sire its name to appear upon the ballots, the Board- hereby amends its Direction of Elections, issued on February 6, 1939, as amended on March 7, 1939, by striking from paragraph (1) thereof the words "they desire to be represented by Marine Engineers' Beneficial As- sociation, affiliated with the Committee for Industrial Organization, or by Socony-Vacuum Tanker Officers Association, for the pur- poses of collective bargaining, or by neither" and substituting there- for the words "or not they desire to be represented by Socony- Yacuum Tanker Officers Association, for the purposes of collective bargaining." 11 N. L. R. B., No. 7b