Eastern States Petroleum Co., Inc.

In the Matter of EASTERN STATES PETROLEUM Co., INC. and OIL WORKERS INTERNATIONAL UNION, LOCAL 227 In the Matter of EASTERN STATES PETROLEUM CO., INC. and OIL WORKERS INTERNATIONAL UNION, LOCAL 227 Cases Nov. C-977 and R-864, respectively.Decided September 16, 1939 Oil Refining Industry-Interference, Restraint, and Coercion: charges of, not sustained-Company-Dominated Union: charges of, not sustained-Com- plaint: dismissed-Investigation of Representatives : request to withdraw, by Union during hearing granted; case closed. Mr. Warren Woods, for the Board. Wood d Morrow, by Mr. M. S. McCorquodale and Mr. Walter E. Boyd, of Houston, Tex., for the respondent. Mandell d Combs, by Mr. Arthur J. Mandell and Mr. Herman Wright, of Houston, Tex., for the Oil Workers Union. Mr. Edwin L. Swope, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On October 11, 1937, Oil Workers International Union, Local 227, herein called the Union, filed with the Regional Director for the Sixteenth Region (Fort Worth, Texas), charges that Eastern States Petroleum Company, Inc., Houston, Texas, herein called the re.- spondent, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 11, 1937, the Union filed with the same Regional Di- rector a petition alleging that a question affecting commerce had arisen concerning representation of the employees of the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On March 10, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, Article. III, Section 10 (c) (2), and Article II. 15 N. L. R. B., No. 46. 450 EASTERN STATES PETROLEUM CO., INC. 451 Section 37 (b), of National Labor Relations Board Rules and Regu- lations-Series 1, as amended, hereinafter referred to as the Rules and Regulations, ordered an investigation upon the petition and au- thorized the Regional Director to conduct it and provide for an ap- propriate hearing on due notice, and further ordered that for the pur- poses of hearing the two cases be consolidated and that one record of hearing be made. Upon the charges theretofore filed, the Board, by the Regional Director, duly issued its complaint dated April 18, 1938, alleging that the respondent liad engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act. Copy of the complaint and of the petition, accompanied by notices of a hear- ing thereon to' be held before a Trial Examiner on May 2, 1938, were duly served on respondent and upon the Union. The complaint alleged in substance (a) that on or about July 7, 1937, and at all times thereafter, respondent refused to bargain collectively with'the Union as exclusive representative of its employees in an appropriate unit; (b) that the respondent by its officers, agents, and employees, fostered, encouraged, sponsored, dominated, and interfered with the formation and administration of a labor organization of its em- ployees, known as the Employees Representation Plan,l herein called the Plan, and contributed financial and other support thereto; (c) that the respondent, by its officers and agents, for the purpose of in- terfering with, restraining, and coercing its employees in the exer- cise of their right to self-organization and to engage' in concerted activities for mutual aid and protection warned its employees against joining or assisting the Union; and (d) that, by virtue of the fore- going acts and refusals to act the respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 27, 1938, the re= spondent filed its answer denying the material averments of the complaint, and denying that its business affects commerce within the meaning of the Act. Pursuant to the notices of hearing, the consolidated hearing com- menced on. May 2, 1938, at Houston, Texas, before L. Richard Insirilo, the Trial Examiner dilly designated by the Board. During the hearing on May 3, the Trial Examiner granted a motion, in which all the parties joined, continuing the hearing until June 13 at which time, by agreement of the parties, the hearing was further con- tinued until June 27. At the commencement of the hearing on June 27, counsel for the Union asked permission to withdraw the petition for investigation and certification of representatives. The Trial 1 Incorrectly designated in the. complaint as Eastern ' States Employees Federation. 452 DECISIONS OF ; NATIONAL ; LABOR RELATIONS : BOARD Examiner thereupon granted a motion made by the Board's counsel to. withdraw the notice of hearing in the representation case. Inas- much as the Union no longer' wishes to continue with the representa- tion case, we . shall grant its request to withdraw the petition and order the case closed. The Board's counsel at the same time, with the' consent of the Trial Examiner, also withdrew the allegations in the complaint that the respondent had refused to bargain collec- tively with the Union. The Board, the Union, and the respondent were represented by counsel and 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. During the hearing counsel for the Board moved to amend the *pleadings to conform to the proof. This motion was granted. During the course of the hearing the Trial Examiner made several other rulings on motions. and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. After the close of the hearing the respondent filed a brief with the Trial Examiner. On October 14, 1938, the Trial Examiner issued his Intermediate Report, a copy of which was duly served on the respondent and the Union, finding that the respondent had engaged in, and was engaging in unfair labor practices within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. He accordingly recommended that the respondent cease and desist from engaging: in such unfair labor practices and take certain affirmative action to remedy the situation brought about by the unfair labor practices found. Thereafter, the respondent filed exceptions to the Intermediate Report and requested permission to argue orally before the Board. Subsequently, the respondent filed a brief with the Board in support of its exceptions. Pursuant to notice served on the respondent and the Union, oral argument was had before the Board on July 25, 1939. The respondent was represented by counsel and participated in the oral argument. The Board has considered the exceptions and the brief, and, as indicated by our findings, con- clusions of law, and order set forth below, we sustain the exceptions to the findings of the Trial Examiner that the respondent engaged in unfair labor practices. .Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Eastern States Petroleum Company, Inc., is a Delaware corporation, with its principal office in New York City. EASTERN STATES PETROLEUM CO., INC. 453 It owns and operates a refinery in Houston, Texas, and is engaged in the business of purchasing, refining, and distributing petroleum and petroleum products. Substantially all of the crude oil _ refined by respondent is obtained within the State of Texas, but approxi- mately 98 per cent of its products, consisting of gasoline, kerosene, heating oil, and fuel oil. are sold f: o. b. Houston to purchasers who cause them to be transported out of the State of Texas. Its gross receipts during 1937 amounted to approximately $13,000,000. At the time of the hearing there were employed, in the refinery 72 pro- duction and maintenance employees, exclusive of office and super- visory employees. II. THE ORGANIZATIONS INVOLVED Oil Workers International Union, Local 227, is a labor organiza- tion affiliated with the Committee for Industrial Organization, ad- mitting to its membership all employees of the respondent, exclusive of office workers, executives, and foremen. Employees Representation Plan is an unaffiliated labor organiza- tion, participated in by all employees of the respondent, exclusive of supervisory employees. III. THE ALLEGED UNFAIR LABOR PRACTICES The alleged domination of the Plan and interference, restraint, and coercion On April 1, 1935, the respondent began operating the refinery, at first under lease and after the latter part of 1935 continued its opera- tion as owner. Most of the employees of its predecessor were re- tained. _ Among them were a number who were members of the Union; however, as stated below, the Union did not become active in the respondent's refinery until May 1937. At various times between June 1935 and October 1936 groups of the respondent's employees in different departments of its refinery engaged in informal negotiations with its management through com- mitteemen of their own choice. As a. result of these negotiations the employees received several wage increases. Apparently at about the time of the negotiations in October 1936, the employees began to con- sider the advisability of forming a labor organization to act as their representative for collective bargaining. Tom Doherty, an employee Who had formerly worked at the Standard Oil Company which had an employees' representation plan, favored a similar plan for re- spondent's refinery and discussed the matter with some of his fellow employees. Several of these employees then approached the re= spondent's manager and asked him whether the respondent had any 199549-30-vol. 15--30 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD objection to such a plan. On being informed that respondent had no objection, these employees conducted an election in the respond- ent's plant for the purpose of selecting a committee to launch the formation of the plan. Cecil Linnenkohl, who later became an ac- tive union member, prepared the ballot. The committee of five thus selected contacted the respondent's personnel director who, at their request, made arrangements and went with two members of the com- mittee, Doherty and Linnenkohl, to visit the personnel director of the Humble Oil & Refinery Company, located in Houston, Texas, in order that the committeemen might study the representation plan of the Humble employees. Later, the two committeemen reported their findings to the whole committee and a meeting of all the employees was held at a school house. At this meeting, after studying the Humble plan, certain demands were drafted by the employees to be presented to the respondent for its consideration. Neither then, nor subsequently were any bylaws adopted, although the organization thereafter used the designation, Employees Representation Plan. Three of the demands, formulated at the meeting referred to above, were that there be (1) "no discrimination by the Company or its employees against any employees on account of membership or non- membership in any church, society, fraternity or union"; (2) "collec- tive dealing as to all matters of mutual interest, through the em- ployees committee"; and (3) "just treatment of each employee, with opportunity for submission of all grievances for adjustment through their committee." The other demands related to wage increases and improvements in working conditions. Thereafter, in the latter part of December 1936, the committee asked the management to consider these demands and on January 13, 1937, a meeting was held by the committee and the respondent during which the respondent's presi- dent announced its policy, stating in effect that the three demands enumerated above were acceptable and that the respondent hoped to eventually comply with all the demands. It was also agreed that a meeting should be held by the committee and the management each month.2 In May 1937 the Union commenced an active organizing campaign among the respondent's employees. Membership petitions were cir- culated in the plant and signed by a number of employees, including two of the Plan's committeemen. Committeeman Linnenkohl not only joined the Union but, thereafter, was active in its behalf. This, apparently, resulted in a question being raised at the May meeting 2 The committee and the respondent met monthly from January to June 1937 , and there- after in August and October 1937, and in January 1938 resumed their monthly meetings. During this period many of the demands made by the committee at the first meeting were granted to the employees as well as other improvements in their working conditions. EASTERN STATES PETROLEUM CO., INC. 455 of the committee and the respondent as to whether the employees still desired the committee to represent them for the purpose of collec= tive bargaining. It was decided that an election should be held to determine the wishes of the employees in the matter. A committee of four selected by the employees, including Linnenkohl and two other union members, conducted a secret Yes-or-No ballot on the question "Are you in favor of continuing the present Employees Rep- resentation Plan-?" The balloting was conducted on the respond- ent's property during and after working hours. Although. it is. ap- parent from the record that the members of the Union were desirous of ascertaining whether the employees wished to be represented by the Plan or by the Union, there is no showing that the Union re- quested that its name be placed on the ballot.. One hundred four of the 113 employees eligible at the time voted; 76 voted "Yes," 28 voted "No." Later in May another election was held in the plant to select Plan committeemen for the coming year and, of the five se- lected, three were members of the Union. At the time of the hearing an election was being held to select committeemen for the next year. We are of the opinion that the allegations of unfair labor prac- tices are not supported by sufficient evidence, and we shall, therefore, dismiss the complaint. There. is no convincing showing that the respondent sponsored the formation of the Plan. In fact, the evi- dence indicates that the formation of the Plan was initiated by a group of non-supervisory employees and, although it is true that the respondent's personnel director made the arrangements for these employees to study the representation plan at the Humble Oil Com- pany, the record indicates that this was done merely to accommodate the employees. Nor is there any convincing evidence that the re- spondent dominated the Plan's administration or contributed aid to it. Furthermore, there is no showing that the respondent inter- fered in any way with the organizational activities of the Union which were taking place in its refinery, or that any of its agents at any time made any intimidatory anti-union statements to the em- ployees. The record does show, however, that about 3 weeks prior to the hearing, a petition withdrawing membership from the Union was circulated among the respondent's employees by one of the em- ployees, who had been a member of the Union ; however, there is no evidence in the record which connects the respondent or its agents with the circulation of this petition. The record affords no basis for concluding that the respondent's employees have not been free to select any bargaining agent they desire. Participation in the Plan was not understood to restrict their right to join any other labor organization. In fact, it is clear that many employees continued to participate in the Plan after they 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD joined the Union . Furthermore, the fact that certain employees who are members of an American Federation of Labor craft union declined to participate in the Plan , indicates that none of the em- ployees are compelled to do so. Moreover, it is significant that Linnenkohl , who was an active leader in both the Union and the Plan, was not employed by the respondent at the time of the hearing and was not called as a witness. We cannot, upon the basis of the record before us , find that the respondent has interfered with, restrained , or coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. Nor can we find the respondent has dominated or interfered with the formation or administration of a labor organization. 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. The operations of the respondent, Eastern States Petroleum Company, Inc., Houston, Texas, occur in commerce, within the mean- ing of Section 2 (6) of the Act. 2. Oil Workers International Union, Local 227, and Employees Representation Plan are labor organizations, within the meaning of Section 2 (5) of the Act. 3. The respondent has not dominated or interfered with the for- mation or administration of a labor organization, within the mean- ing of Section 8 (2) of the Act. 4. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby engaging in an unfair labor practice within the meaning of Section 8 (1) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the com- plaint issued against Eastern States Petroleum Company, Inc., Houston, Texas, be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the request of the Oil Workers Inter- national Union, Local 227, for permission to withdraw the petition for investigation and certification of representatives it filed in Case No. R-864 be, and hereby is, granted; and that the aforesaid case be, and hereby is, closed.