Socony-Vacuum Oil Co., Inc.

In the Matter of SOCONY-VACUUM OIL CO., INC. and COMMERCIAL TELEGRAPHERS UNION, MARINE DIVISION, A. F. OF L. Case No. R-1579.-Decided November 30, 1939 Petroleum and Petroleum Products Transportation Industry-Investigation of Representatives : controversy concerning representation of employees : rival or- ganizations ; employer refuses to recognize either union until the Board deter- mines which union is exclusive representative of employees ; consent election held approximately 1 year prior to hearing no bar to determination of representatives, under circumstances-Unit Appropriate for Collective Bargaining : radio teleg- raphers employed by Company on its ocean -going tanker vessels flying the American flag, including employees on leaves of absence -Election Ordered Mr. Richard J. Hickey, for the Board. Mr. Richard H. Lowe, of New York City, for the Company. Mr. C. C. Johnson, of New York City, and Mr. Louis J. Kleinlelaus, of New York City, for the C. T. U. Boudin, Cohn d Glickstein, by Mr. Irving P. Feinberg, of New York City, for the A. C. A. Mr. J. H..Krug, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 25., 1939, The Commercial Telegraphers Union, Marine Division,' affiliated with the American Federation of Labor, herein called the C. T. U., filed with the Regional Director for the Second Region (New York City) a petition, and on October 13, 1939, an amended petition, alleging that a question affecting commerce had arisen concerning the representation of employees of Socony-Vacuum Oil Company, Incorporated, herein called the Company, and request- ing 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 September 14, 1939, the National Labor Relations 1 The record shows that this is the correct name of the labor organization , which is designated in the petition as "Commercial Telegraphers Union Marine Division , A. F. of L.," and in the amended petition as "Commercial Telegraphers ' Union, Marine Division , A. F. L." 17 N. L. R. B., No. 105. 1058 S0CONY-VACUUM OIL COMPANY, INC. 1059 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 2, ordered an investigation and au- thorized the Regional Director to conduct it and to . provide for an appropriate hearing upon due notice. On October 3, 1939, the Regional Director issued a notice of hear- ing, and on October 13, 1939, a notice of postponement of the hear- ing, copies of which were duly served upon the Company , upon the C. T. U., and upon American Communica'tions ' Association, Marine Division, affiliated with the Congress of Industrial Organizations, herein called the A. C. A., a labor organization claiming to represent employees directly affected by the investigation . Pursuant to the notices, a hearing was held on October 23 ,- 1939, at New York City, before Madison Hill, the Trial Examiner duly designated by the Board. The Board, the Company, the C. T. U., and the A. C.' A., were represented by counsel and participated in the hearing. Full opportunity to be heard , to examine and to 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 Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. Pursuant to leave granted by the Board, the A. C. A. filed a; brief, which has been considered by the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY . The Company , a New York corporation with its principal office in New York City, owns and operates 37 ocean-going American flag tankers for the transportation of petroleum and petroleum products. During the period from January 1, 1939, to October 1, 1939, the num- ber of such vessels operated at any one time varied between 26 and 35; at least 90 per cent of the operations involved the transportation of petroleum products from ports in the Gulf of Mexico to points on the Atlantic seaboard north of Cape Hatteras; and 3 of the vessels were engaged in making one or more trips from a port in' the United States to a port in a foreign country. During this period, the' Com- pany transported not less than 35,000,000 barrels of crude petroleum and its products by means of the above -mentioned vessels between ports in the United States, and/or between United States ports and foreign ports. 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company stipulated that in the operation of the said vessels it is engaged in interstate and foreign commerce within the meaning of the Act, and that the radio telegraphers employed on the said vessels are directly engaged in such commerce. H. THE ORGANIZATIONS INVOLVED The Commercial Telegraphers Union, Marine Division, is a labor organization affiliated with the American Federation of Labor, and admits. to membership the radio telegraphers employed on the Com- pany's ocean-going vessels. American Communications Association, Marine Division, is a labor organization affiliated with the Congress of Industrial Organizations, and also admits to membership the radio telegraphers employed on the Company's ocean-going vessels. III. THE QUESTION CONCERNING REPRESENTATION During the latter part of 1938, a consent election was conducted -under the supervision of the Regional Director for the Second Re- gion (New York City), among the radio operators employed on the Company's ocean-going vessels, to determine whether they wished to be represented for the purposes of collective bargaining by the C. T. U., or by the American Radio Telegraphists' Association, affiliated with the Committee for Industrial Organization,2 herein called the A. R. T. A., or by neither. On October 31, 1938, the Regional Director issued a "Report Upon Secret Ballot," stating that of a total of 33 employees eligible to vote, 26 had voted in favor of the A. R. T. A., and 7 in favor of the C. T. U. In March 1939 the A. C. A. wrote to the Company stating that, "This organization, the Marine Division of the American Communi- cations Association, formerly known as the AIRTA, has been certified in an NLRB election as the collective bargaining agent for the radio operators employed on board your ships"; 3 and requesting a ,conference for the purpose of negotiating a collective bargaining agreement. Subsequently the Company met with the A. C. A., but refused to negotiate concerning an agreement until a determination was made by the Board as to whether the A. C. A. was the same organization as the A. R. T. A. The Company further stated its position in a letter to the A. C. A. on or about May 12, 1939, which read : 2 Now the Congress of Industrial Organizations. 3 Italics supplied. The reference to a certification is inapt. No certification was issued. This, and subsequent references, are obviously to the Regional Director's Report Upon Secret Ballot. SOCONY-VACUUM OIL COMPANY, INC. 1061 We note your statement that your organization has been certi- fied by the National Labor Relations Board as the collective bargaining agency for, radio operators employed on American flag vessels operated by this Company. Other than the statement in your letter,, our only information with respect to any such certification is to the effect that . . . the American Radio Telegraphists Association received a majority of the ballots .. . In accordance with the requirements of the National Labor Re- lations Act, we are willing to bargain collectively with the duly certified representatives of the radio operators on our vessels. Unless the existing certification by the Labor Board is changed, we are unable to see how we can carry on such negotiations with your organization. In May 1939 a representative of the C. T. U. met with the Com- pany, stating .that the C. T. U. represented a majority of the Com- pany's radio operators, and requesting that the Company negotiate .a collective bargaining agreement. The Company called attention to the claim made by the A. C. A., and stated that under the.circum- stances it would not negotiate with any organization as bargaining ..agency for the radio operators, but "was leaving it entirely up to the Board." The A. C. A. contends that it is the organization which, under a different name, obtained a majority of the votes in the consent elec- tion in 1938,4 and that, therefore, no question exists concerning rep- resentation. The record, however, discloses that for a considerable period after December 1, 1938,5 a factional controversy existed as to whether the A. R. T. A. legally had become the A. C. A., and led, no doubt, to the position taken by the Company that it would bargain with the A. C. A. only in the event that the agency which had conducted the election, upon the results of which the A. C. A. relied to prove its claim of majority, ruled that the A. C. A. was in fact the same organization as the A. R. T. A. At the time of the hearing in the present proceeding the controversy. had remained unresolved for almost a year, and the C. T. U., which also challenges the con- tention of the A. C. A., offered substantial evidence of recent desig- nation as collective bargaining agent by the employees involved.,, Under these circumstances we do not believe that the prior consent election should be held a bar to an investigation to determine the 4 The A. C. A. introduced evidence that the A. R. T. A. was a Division of the American Communications Association, with jurisdiction over marine employees ; and that by amend- ments to the constitution of the American Communications Association, effective December 1, 1938, the name of A. R. T. A. was changed to American Communications Association, Marine Division. See footnote 4, supra. . See Section Vi, infra. 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wishes of the employees of the Company with respect to representa- tion for the purposes of collective bargaining.? We find that a question has arisen concerning 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 with foreign countries, and tends to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing the parties stipulated that the radio telegraphers employed by the Company on its ocean-going tanker vessels flying the American flag constitute the appropriate unit.". The parties further stipulated that these employees differ from other employees in regard to type of work, wages, hours, rank, and in other respects. The A. C. A., however, objected to the inclusion in the unit of four radio telegraphers who were on leaves of absence at the time of the hearing.' The objection is without merit. Leaves of absence are granted by the Company for periods of 2 or 3 months; employees on leave are carried on the pay roll and are employed on their return; and the four men were expected to return to their jobs, three of them within 'a few days. We find that the radio telegraphers employed by the Company on its ocean-going tanker vessels flying the American flag, including employees on leaves of absence, constitute a unit appropriate for the purposes of collective bargaining and that said 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 At the time of the hearing the Company employed 37 radio teleg- raphers, 33 of whom were on active duty, and 4 of whom were, as we 7 We take into account, as well, the failure of the A. C . A. to offer any documentary proof, other than the consent election, of its designation as bargaining representative by the Company 's employees. See Section VI, infra. 8 This appears to be the unit agreed upon for the purposes of the consent election held in 1938. 9The four are R. H. Cummings, P. W. Robinson ( apparently also listed as F. Robinson), AfeIlvain Ross, and C. O. Thomas. SOCONY-VACUUM OIL COMPANY, INC. 1063 have stated above, on leaves of absence. The C. T. U., which asks that an election be held, introduced in evidence written authorizations for collective bargaining representation which were shown to have been signed by 16 employees within the appropriate unit. Twelve of the authorizations were dated in May, June, July, or August 1939; the remaining four were dated prior to the consent election held in '1938. The A. C. A. offered no documentary proof of representation, but relied upon the result of the consent election and the testimony of its vice president that "During the past year the membership, our membership in the organization [i. e. in the Company's employ] has ranged between 60 and 95 per cent." We find that the question which has arisen concerning representa- tion of employees of the Company can best be resolved by means of an election by secret ballot. Upon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following : CoNCI.USIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of Socony-Vacuum Oil Company, Incor- porated, New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The radio telegraphers employed by the Company on its ocean- going tanker vessels flying the American flag, including employees on leaves of absence, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations 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 Re- lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, 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, New York City, an election by secret ballot shall be conducted as soon as convenient and beginning as promptly as is practicable after the date of this Direction, under the direction and supervision of the Regional Director for the Second 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 the radio telegraphers employed by Socony- 247384-40-vol. 17--68 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vacuum Oil Company, Incorporated, on its ocean-going tanker ves- sels flying the American flag, who were employed by the Company during the pay-roll period next preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation, employees who were then or have since been temporarily laid off, and employees on leaves of absence, and excluding those who have since quit or been discharged for cause, to determine whether they desire to be represented by The Commercial Telegraphers Union, Marine Division, affiliated with the American Federation of Labor, or by American Communications Association, Marine Division, affiliated with the Congress of Indus- trial Organizations, for the purposes of collective bargaining, or by neither.