Texas Empire Pipe Line Co.

In the Matter of TEXAS EMPIRE PIPE LINE Co. and OIL WORKERS INTERNATIONAL UNION, LOCAL 222 AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-1558.-Decided January 19, 1940 Oil Transportation Industry-Investigation of Representatives : controversy concerning representation of employees : rival organizations ; controversy as to appropriate unit : refusal to bargain by employer until determination of-Unit Appropriate for Collective Bargaining : operating and maintenance employees of Northern Division of company 's operations ; exclusion of foremen , chief engi- neers, chief gaugers , office ' and supervisory employees ; system or division unit; division unit : extent of organization of petitioning labor organization as deter- minative of ; petitioner the only labor organization which has sought exclusive representation of employees and offered proof of such representation in any unit-Representatives : eligibility to participate in choice : stipulated-Election Ordered: ballot, name of intervening union to be omitted if request therefor made within 5 days from date of Decision. Mr. Jack G. Evans, for the Board. Mr. 0. J. Dorwin, of New York City, for the Company. Mr. Leon M. Despres, of Chicago, Ill., for Local 222. Mr. C. A. 0bwin, of Cushing, Okla., for the Association. Mr. Stanley D. Metzger, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 23, 1939, Oil Workers' International Union, Local 222, affiliated with the Congress of Industrial Organizations, herein called Local 222, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) a petition and, on October 7, 1939, an amended petition, alleging that a question affecting commerce had arisen con- cerning the representation of employees of The Texas Empire Pipe Line Company, Bloomington, Illinois, 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 September 22, 1939, the National .Labor Relations Board, herein called the Board, acting pursuant to 19 N. L. R. B., No. 69. 631 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an inves- tigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On September 25, October 3, and October 7, 1939, respectively, the Regional Director issued a notice of hearing, an order of continu- ance, and an amended notice of hearing, copies of which were duly served upon the Company and Local 222 and upon Employees Mutual Petroleum Transportation Association, herein called the Association, and Employees' Federation of the Northern Division of The Texas- Empire Pipe Line Company, herein called the Federation,. the latter two being labor organizations claiming to represent employees directly affected by the investigation. Pursuant to the notices, a hear- ing was held on October 12 and 13, 1939, at Bloomington, Illinois, be- fore A. Bruce Hunt, the Trial Examiner duly designated by the Board. A motion to intervene, filed by the Association at the outset of the hearing, was granted by the Trial Examiner. The Board, the Company, and Local 222 were represented by counsel, and the Associ- ation by its president; all participated in the hearing. A representa- tive of the Federation was present at the hearing but did not partici- pate therein. 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 Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the hearing the Trial Examiner, with the consent of all parties, directed the Company to submit as an exhibit a list of certain em- ployees together with the dates of their transfers from one position to another. The list, submitted in evidence after the close of the hearing, contained, in addition, information which was beyond the scope of the Trial Examiner's direction. On November 6, 1939, Local 222 moved the Board to strike that portion of the exhibit 1 which was beyond the scope of the Trial Examiner's direction, claim- ing that it did not have an opportunity to rebut the additional infor- mation supplied. The Company on November 20, 1939, filed with the Board a motion to reopen the hearing for the purpose of taking further testimony as to the additional information supplied. The record clearly indicates that the additional information was beyond the scope of the Trial Examiner's direction. Local 222's motion to strike is hereby'granted. The Company's motion to reopen is hereby denied. 1 Petitioner Exhibit No. 10. TEXAS, EMPIRE PIPE LINE COMPANY 633 Pursuant to leave granted by the Board to all parties, the Com- pany and Local 222 filed briefs on November 6, 1939. Pursuant to request therefor by the Company and notice to all parties, a hearing for the purpose of oral argument was held before the Board on November 16, 1939, at Washington, D. C. The Com- pany was represented by counsel. Neither Local 222 nor the Associ- ation appeared. On November 20, 1939, the Company moved to correct its brief in a minor particular. The motion is granted. The Company further moved, on November 20, 1939, for leave to file a reply brief. On November 21, 1939, Local 222 filed an objection to said motion. The Company's motion for leave to file a reply brief is denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Texas Empire Pipe Line Company is a Delaware corporation having its main office in Tulsa, Oklahoma. - The Company owns and operates a pipe-line system in the States of Oklahoma , Kansas, Mis- souri, Illinois, and Indiana, through which it transports crude oil belonging to others. Until 1938, approximately 80,000 barrels of oil per day, 40 per cent of all the oil transported by the Company, were transported northward over the pipe line from Oklahoma and Kan- sas to the Chicago area. Since 1938, owing to the opening of oil fields in Illinois, 8,000 barrels of oil per day are transported by the Company northward from Oklahoma and Kansas to the Chicago area. Oil is received by the Company for transportation at receiv- ing stations located in Oklahoma, Kansas, and Illinois. The prin- cipal delivery stations of the Company are located in Illinois and Indiana. The business of the Company is carried on through two divisions operating under the general supervision of the main office at Tulsa : the Northern Division, with division offices at Bloomington, Illinois, comprises the portion of the Company's operations east of the Mis- sissippi River; the Southern Division, with division offices at Tulsa, comprises the portion of the Company's operations west of the Mississippi River. The Company employs approximately 185 persons. We find that the Company is engaged in traffic, transportation, and commerce among the several States of the United States, and that its employees are directly engaged in such traffic, transportation, and commerce. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. II. THE ORGANIZATIONS INVOLVED Oil Workers' International Union, Local 222, affiliated with the Congress of Industrial Organizations, is a labor organization admit- ting to its membership the operating and maintenance employees of the Company in its Northern Division, including mechanical workers, main-line workers, telegraph operators, engineers, oilers, gaugers, laborers, pipe liners, and other operating employees, but excluding office and supervisory employees. Employees Mutual Petroleum Transportation Association is an unaffiliated labor organization, admitting to its membership operat- ing employees of the Company, excluding certain office employees who work for the Company but are on the pay roll of other com- panies, and superintendents. At the hearing, the president of Em- ployees' Federation of the Northern Division of The Texas-Empire Pipe Line Company stated that the Federation was in the process of merging with the Association. III. THE QUESTION CONCERNING REPRESENTATION In February 1938, Local 222 requested the Company to recognize it as the exclusive representative of its employees in the Northern Division, for the purposes of collective bargaining, and offered to present to the Company membership cards in substantiation of Local 222's claim that it represented a majority of the employees in that division. The Company replied that it would not recognize Local 222 as the exclusive bargaining representative of the Northern Division employees until a "proper determination of the bargaining unit" was made and Local 222's majority status was proved. In January and May 1939, Local 222 reiterated its request and received the same reply. On July 17, 1939, after the petition herein had been filed by Local 222, the Association requested the Company for an election under the auspices of the United States Department of Labor Conciliation Service "to determine the bargaining unit" for the Company's em- ployees. The Company informed the Association that, since a peti- tion concerning the representation of its employees for the purposes of collective bargaining had been filed with the Board, it could not consent to an election under other auspices. The Association at no time requested the Company for recognition as the exclusive repre- sentative of its employees for the purposes of collective bargaining in any unit. 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. TEXAS EMPIRE PIPE LINE COMPANY 635 IV. THE APPROPRIATE UNIT A. Northern Division unit Local 222 contends that the unit appropriate for the purposes of collective bargaining consists of the employees in the Northern Divi- sion of the Company's operations. The Association and the Company contend that the employees in the Northern and Southern Divisions together constitute an appropriate unit. The Company's main office is at Tulsa. There are centralized in the Tulsa main office the Company's telephone and telegraph system, whereby field stations notify the Tulsa office of oil in transit, de- liveries, etc.; administration of sick and accident benefit plans, group rights and pension plans ; personnel files; purchasing ; safety and first-aid training work; expense accounts ; issuance of pay checks; and approval of maintenance work involving extraordinary expenditures. The Company, however, as stated above, does maintain two divi- sions, the Northern and Southern , for the operation of its business. Each division is in the charge of a superintendent . The division superintendents visit the various stations in their divisions, super- vise maintenance work, direct the handling of machinery , and settle grievances after discussion with the general superintendent at Tulsa. Minor grievances are settled by division superintendents alone. It appears that while division superintendents have authority to hire only temporary employees , as a practical matter they hire employees who work for the Company on a permanent basis. The Company maintains the Northern and Southern Divisions because of the local supervision necessitated by the great distance between the two ends of its pipe line. Rates of pay, hours of work , wages, and vacations for employees are uniform in both divisions. The Company has from time to time published working rules. These have been unilateral declarations but, at least in some instances, have been published after consultation with Local 222 and with other groups of employees. The first of such working rules were issued on December 1, 1937, at least in part as a result of requests by Local 222 for collective bargaining conferences . These; rules provided, inter alia, for a plan of system-wide seniority for the employees of the Company. In response to further requests by Local 222, conferences were held in February 1938 between Local 222 and the Company at Bloomington, Illinois, the Company's Northern Division headquar- ters. At that time, as stated above, the Company refused to recognize Local 222, as the exclusive representative for the purposes of collective bargaining of the employees in the Northern Division . Nevertheless, the parties proceeded to discuss revision of the December 1, 1937, 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working rules. Notable among the changes made at these conferences was the substitution of divisional seniority for 'the prior system-wide seniority. This change was embodied in a March 1, 1938, draft of working rules which was issued in May 1938 after the Company had consulted other groups of employees , including the Federation. Divisional seniority remained the Company's policy for about 14 months thereafter . During that period new oil fields had been de- veloped in southern Illinois. This resulted in a shift in the Com- pany's business and the consequent transfer of certain employees from the Southern to the Northern Division . Since the divisional seniority system operated to the disadvantage of the transferred em- ployees, they complained thereof to the Company which thereupon, on July 28, 1939, issued new working rules providing again for system- wide seniority. Local 222, although invited by the Company , did not participate in the discussions leading to the July 28, 1939, working rules. Nor does it appear that the Association participated therein. The Association was formed on June 23 , 1939, the date on which the petition herein was filed by Local 222 . At no time has the Asso- ciation sought to bargain for the employees of the Company, nor has it ever offered to prove that it has been designated by a majority in any unit. The jurisdiction of Local 222 is limited by its parent organization to the employees of the Company in the Northern Division . Accord- ingly, it does not admit to membership , and it has not attempted to organize , the employees in the Southern Division . With respect to the Northern Division , Local 222 has attempted for nearly 2 years to bargain with the Company as the exclusive representative of the em- ployees in such unit, offered to prove to the Company that it has been designated by a majority in such unit, and conferred with the Com- pany at the headquarters of the Company's Northern Division for the employees in this division. Whether a system or a division thereof constitutes the appropriate unit must depend on extent of labor organization , collective bargain- ing efforts, and similar circumstances .2 Here Local 222, desiring a unit coterminous with its jurisdiction, is the only labor organization involved which has sought to bargain with the Company as the exclusive representative of a unit claimed to be appropriate, and offered to prove its designation by a majority of the employees therein. Under these circumstances we find that employees in the ' Of. Matter of Iowa Southern Utilities Company and Utility Workers Organizing Com- mittee and Union of Employees of the Iowa Southern Utilities Company, 15 N. L. R. B., 580; Matter of Tennessee Electric Power Company and International Brotherhood of Electrical Workers, 7 N. L. R. B. 24; Matter of Wisconsin Power and Light Company and United Electrical Radio and Machine Workers of America, Local No. 1184, 6 N. L. R. B. 320; Matter of Southern California Gas Company and Utility Workers Organizing Com- mittee, Local No. 182, 10 N. L. R. B. 1123. TEXAS-'EMPIRE -PIPE LINE COMPANY 637 Northern Division constitute a unit appropriate for the purposes of collective bargaining. B. Classifications of employees Local 222 desires the inclusion within the appropriate unit of all the operating and maintenance employees of the Company in its Northern Division, including mechanical workers, main-line workers, telegraph operators, engineers, oilers, gaugers, laborers, pipe liners, and other operating employees, excluding office and supervisory employees. Among the supervisory employees whom Local 222 de- sires excluded are foremen, chief engineers, and chief gaugers. The Association would include these employees and would also include office employees, except those who are on the pay roll of other com- panies but work for this Company. The Company has taken no position as to this. We shall consider the disputed classifications seriatim: Foremen.-Both working and non-working foremen supervise and direct the employees working under them. The foremen also report to their supervisors regarding infractions of rules by employees. Foremen have the power to recommend the hiring and discharging of employees. There is no difference between working and non- working foremen so far as supervisory duties are concerned. The Company considers them both "supervisory." As such we shall exclude them from the unit. Chief engineers.-Chief engineers are stationed at the various pumping and delivery stations along the Company's pipe line. Each has from 4 to 15 men working under him, and may recommend the hiring and discharging of employees. The Company considers the chief engineers a "part of the managing personnel of the company, insofar as the supervision of the activities in operating procedures of small groups of employees" is concerned. We shall exclude the chief engineers from the unit as supervisory employees. Chief gaugers.-Chief gaugers supervise the activities of employees making gauge measurements of oil at various delivery stations on the pipe line. They also are considered to be supervisory employees by the Company, and we shall exclude them from the unit as such. O face employees.-The nature of the work performed by these employees, and the character of their duties and training, distinguish them from the operating and maintenance employees of the Com- pany. We shall, accordingly, exclude office employees from the unit. We find that the operating and maintenance employees of the Company in its Northern Division, including mechanical workers, main-line workers, telegraph operators, engineers, oilers, gaugers, laborers, pipe liners, and other operating employees, but excluding 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office employees, foremen, chief engineers, chief gaugers, and other supervisory employees 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. . V. THE DETERMINATION OF REPRESENTATIVES Local 222 claims to represent 75 of approximately 100 employees in the Northern Division of the Company. The Association claims to have members, in the Northern Division. We find that the ques- tion concerning representation which has arisen can best be resolved by holding an election by secret ballot. Employees will be given the opportunity to vote for Local 222, the Association, or neither.- It may be that, in view of our determination that the employees in the Northern Division constitute an appropriate unit, the Association will not desire to participate in the election to be held among them. In that event, by making application therefor to the Board within 5 days from the date of this Decision, the Association may have its name removed from the ballot. The parties stipulated at the hearing that employees in the appro- priate unit who have worked for the Company for more than 4 months and have not been laid off over 180 consecutive days prior to the eligibility date determined, shall be eligible to vote. Regard- ing the eligibility date, Local 222 desires eligibility to vote in the election to be determined as of the date of its petition herein. The Association and the Company desire the current pay roll to be used to determine eligibility. Local 222 desires the earlier date because it contends that the Company has transferred employees from the Southern to the Northern Division since Local 222 filed its petition herein, for the purpose of "packing" the election rolls. The record indicates no merit in Local 222's contention. We shall direct that those eligible to vote shall be the employees in the appropriate unit who have ,both worked for the Company for more than 4 months and have worked at any time during the period of 180 consecutive days immediately preceding the date of this Decision and Direction of Election, excluding those who have since quit or been discharged for cause. 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 Texas Empire Pipe Line Company, TEXAS EMPIRE PIPE LINE COMPANY 639 within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The operating and maintenance employees of the Company in its Northern Division, including mechanical workers, main-line workers, telegraph operators, engineers, oilers, gaugers, laborers, pipe liners, and other operating employees, but excluding office employees, foremen, chief engineers, chief gaugers, and other 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, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with The Texas Empire Pipe Line Company, Bloomington, Illinois, 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 of Election, under the direction and supervision of the Regional Director for the Thirteenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Sec- tion 9, of said Rules and Regulations, among the operating and main- tenance employees of the Company in its Northern Division, including mechanical workers, main-line workers, telegraph operators, engineers, oilers, gaugers, laborers, pipe liners, and other operating employees who have both worked for the Company for more- than 4 months and have worked at any time during the period of 180 con- secutive days immediately preceding the date of this Direction of Election, excluding office employees, foremen, chief engineers, chief gaugers, other supervisory employees, and those who have since quit or been discharged for cause, to determine whether they desire to be represented by Oil Workers' International Union, Local 222, affiliated with the Congress of Industrial Organizations, or by Employees Mutual Petroleum Transportation Association, for the purposes of collective bargaining, or by neither.