Mexican Petroleum Corp.

In the Matter of MEXICAN PETROLEUnI CORPORATION and MEXPET- AMERICAN OIL MARINE EMPLOYEES ASSOCIATION OF NEW JERSEY, INC. Case No. R-1665-Decided July 25, 1940 Jurisdiction : water transportation industry Investigation and Certification of Representatives : existence of question where employer refuses to accord full recognition to union and requests that certifi- cation be obtained : election necessary Unit Appropriate for Collective Bargaining : all marine employees of the Com- pany employed on the vessels located at Carteret, New Jersey, including captains, mates, pilots, deck hands, laborers, stewards, stewardesses, firemen, engineers, and oilers, and including the dispatcher Mr. D. R. Dimick, for the Board. Kellogg, Emery cf3 Ines-Brown, by Mr. Thomas E. Monaghan, of New York City, for the Company. Mr. John J. Molson., Jr. of Linden, N. J., for the Association. Mr. William L. Standard, by Mr. Max Lustiq, of New York City, for the N. M. U. Miss Charlotte Anschuetz, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEM ENT OF THE CASE On July 24, 1939, Mexpet-American Oil Marine Employees Associ- ation of New Jersey, Inc., herein called the Association, filed with the 'Regional Director for the Second Region (New York City), a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Mexican Petroleum Cor- poration,' Portland, Maine, herein called the Company, and/or The American Oil Company,2 Baltimore, Maryland, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations -Act, 49 Stat. 449, herein called 'Designated in the Oi der directing investigation and hearing as "Mexican Petroleum Corp " 2 Designated in the Order directing investigation and hearing as "American Oil Company- " 25 N. L B B, No 97 862 MEXICAN PETROLEUM CORPORATION 863 the Act. On November 1, 1939, 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 2, ordered an investigation and au- thorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On November 13, 1939, the Regional Director issued a notice of hearing , copies of which were duly served upon the Company, The American Oil Company, the Association, and Inland Boatmen's Divi- sion, National Maritime Union of America, affiliated with the C. I. 0., herein called the N. Al. U., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on December 18 and 19, 1939, at New York City, before Peter F. Ward, the Trial Examiner duly designated by the Board. The Board, the Company, the Asso- ciai ion and the N. Al. U. 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. At the commencement of the hearing, counsel for the Company moved to strike the words "and/or Ameri- can Oil Commpany" from the title of all the proceedings. The Trial Examiner reserved ruling on this motion. The motion is hereby granted. At the close of the Association's case, counsel for the N. M. U. moved to dismiss the proceeding on the ground that no question concerning representation had been shown, and that the Association was not a bona fide labor organization within the mean- ing of the Act. The Trial Examiner reserved ruling on these motions and they are hereby denied. During the course of the hear- ing, the Trial Examiner made several rulings on other 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Mexican Petroleum Corporation , a Maine corporation with its principal office at Portland, Maine, and an office in New York City, is a wholly owned subsidiary of The American Oil Company, which in turn is a wholly owned subsidiary of Pan-American Petroleum & Transport Company. The Company is engaged in the manufacture, sale, and distribution of heavy fuel oil, asphalt , and related products. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is authorized to do business in New Jersey, New York, Louisiana, Connecticut, Maryland, Florida, Massachusetts, New Hampshire, Pennsylvania, Rhode Island, Texas, Vermont, Virginia, and Maine, and maintains storage facilities and disposes of its products in these and other States. During 1938 over 50 per cent of the finished prod- ucts of the Company, valued at approximately $15,000,000, were dis- tributed in States other than those in which they were manufactured or purchased. The Company owns and operates 13 vessels, consisting of boats, tugs, and barges, located one each in Baltimore, Maryland; Chelsea, Massachusetts; Galveston, Texas; Jacksonville, Florida; Providence, Rhode Island; Norfolk, Virginia; two in Tampa, Florida; and 5 in Carteret, New Jersey. The present proceeding concerns the five ves- sels located at Carteret, consisting of the barges Carteret and P6tnamco, barges #3 and #24, and a tug, Mexpet. These five vessels, which ply in New York Harbor and adjoining inland -waters, transported ap- proximately 411,220 tons of heavy fuel oil, light oils, and gasolines during 1938. We find that the Company is engaged in traffic, commerce , and trans- portation among the several States, and that the marine employees of the Company are directly engaged in such traffic, commerce, and transportation. II. THE ORGANIZATIONS INVOLVED Mexpet-American Oil Marine Employees Association of New Jer- sey, Inc., is a labor organization admitting to membership employees of the Company and of The American Oil Company, including cap- tains, mates, pilots, deck hands, laborers, stewards, stewardesses, fire- nen, engineers , and oilers. Inland Boatmen's Division, National Maritime Union of America, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership all unlicensed seamen em- ployed on inland waters. About March 1939, Inland Boatmen's Divi- sion became the successor to Inland Boatmen's Union, Atlantic and Gulf District, C. I. 0., herein called the I. B. U. III. THE QUESTION CONCERNING REPRESENTATION On June 28, 1939, the secretary of the Association addressed a letter to the Company, informing it, among other things, that a group of employees had incorporated the Association in order to bargain collectively with the Company, and asking the Company to cooperate in bringing about a successful understanding. A membership list accon-ipanied the letter. On July 5, 1939, A. M. McKean, chief engi- MEXICAN PETROLEUM CORPORATION 865 9ieer of the Company, replied that since the Board in January 1938 had certified the I. B. U. as sole bargaining' representative 3 of the licensed and unlicensed' personnel aboard vessels of the Company, the Company would not bargain with any other representative unless such other representative was certified 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. THE APPROPRIATE UNIT The Association contends that the appropriate unit embraces all licensed and unlicensed marine employees of the Company on the five vessels at Carteret, including captains, mates, pilots, deck hands, laborers, stewards, stewardesses , firemen, engineers , and oilers. The Association contends also for the inclusion of Alfred E. Bruns, known as the dispatcher, who, although he is not a marine employee, is closely associated with the five vessels since he plans and supervises their schedules and work. The Company agrees with the Association as to the appropriate unit. The N. M. U. takes the position that licensed marine employees do not constitute an appropriate unit together with unlicensed marine employees. It does not clearly specify its position, but suggests that all the unlicensed personnel employed on all . 13 vessels of the Com- pany would be the only appropriate unit. Neither the N. M. U. nor the Association showed that it had sought to organize or that it had as members any employees of the Company other than those employed at Carteret. The N. M. U. offered no substantial evidence of mem- bership among any of the employees of the Company at Carteret. The history of organization among the Company's employees shows that the licensed and unlicensed employees at Carteret have always belonged to the same union. Before 1937, all of the men in the appropriate unit urged by the Associatioli; or a majority of them, belonged to the Associated Marine Workers, in unaffiliated labor organization. In 1937 the Associated Marine Workers became an autonomous local of the I. B. U., with instructions from ,the I. B. U., however, to separate the licensed and' unlicensed into two locals. There is no showing that such separation was- made. In January 1938, as already stated, the I. B. U. was certified as the collective bar- gaining agency for both licensed and unlicensed employees of the Company at Carteret after a consent election participated in by the " Following a consent election between Harbor Towboatmen ' s UJnion , 933-3 of the I L A. (A. F of L ) and the I B. U 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees alleged by the Association in this proceeding to consti- tute an appropriate unit .4 In view of this history of collective bargaining, and since no other labor organization has a substantial membership among the employ- ees involved, we hold the unit claimed by the Association to be appropriate.5 We find that all marine employees of the Company on the vessels located at Carteret, New Jersey, including captains, mates, pilots, deck hands, laborers, stewards, stewardesses, firemen, engineers, and oilers, and including the dispatcher, 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 The Association claimed 31 members in the unit of approximately 33 employees which we have found to be appropriate, and offered in evidence in support of its claim, 31 application cards, and proof of payment of monthly dues. We find that the question concerning representation can best be, resolved by means of an election by secret, ballot.6 The N. M. U. did not show that it had been authorized to represent a substantial number of employees in its proposed unit and did not indicate that it desired to participate in an election among the employees in the unit that we have found appropriate. We shall there- fore exclude it from the ballot. We shall direct, in accordance with our usual practice, that all em- ployees within the appropriate unit who were employed by the Com- pany during the pay-roll period immediately preceding the date of the Direction of Election, including employees who did not work * The history of collective barcaimng prior to 1938 is not disclosed by the record In March 1938 the I B U. proposed that the Company enter into a contract covering em- ployees on non-propelled oil barges This contract was never signed In March 1939 a contract similarly covering employees on non-propelled oil barges was submitted by the N M. U but was never signed 5 Matter of The Riverside and Fort Lee Ferry Company and United Marine Dense ion, Local 333, I L A, A F of L, 23 N L R B 493 ; Matter of Federal Shipbuilding and Dry Pock Company and Industrial Union of Marine d Shipbuilding Workers of America, Local No 16, N L R B 313; Matter of The Texas Company and American Radio Tele- graphists Association , 10 N L R. B. 824. See Matter of The Cudahy Packing Company and United Packinghouse Workeis of America, Local No 21, of the Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial organizations, 13 N L R B 526; Matter of Armour it Company and United Packinghouse Workers, Local Industrial Union No 13 of Packinghouse W orl ers organizing Committee, Affiliated with C 1 0 , 13 N L. R B 567 ; Matter of Alpena Garment Company, Inc and International Ladies Garment 11'orters Union, 13 N. L. R B 720. MEXICAN PETROLEUM CORPORATION 867 during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to participate in the election. 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 Mexican Petroleum-Corporation, Portland, Maine, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the'Act. 2. All marine employees of the Company employed on the vessels located at Carteret, New Jersey, including captains, mates, pilots, deck hands, laborers, stewards, stewardesses, firemen, engineers, and oilers, and including the dispatcher, constitute a unit appropriate for the pur- poses 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 Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DniECTEn that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Mexican Petroleum Corporation, Portland, Maine, 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 Second Region, act- ing in the matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all marine employees of Mexican Petroleum Corporation, Port- land, Maine, employed on the vessels located at Carteret, New Jersey, including captains, mates, pilots, deck hands, laborers, stewards, stew- ardesses, firemen, engineers, and oilers, and including the dispatcher, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or shall have since been temporarily laid, 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off, but, excluding those who have since quit or been discharged for cause; to determine whether or not they desire to be represented by Mexpet-American Oil Marine Employees Association of New Jersey, Inc., for the purposes of collective bargaining. MR. vV ILLIA âI M. LEISERSON took no part in the consideration of the above Decision and Direction of Election.