The Texas Co.

In the Matter of THE' TEXAS COMPANY, A CORPORATION, and Asso- CIATED PETROLEUM WORKERS UNION Case No. C-162,2.- Decided August 8, 1940 Jurisdicton : petroleum products refining and distributing industry. Settlement : stipulation providing for compliance with the Act. Remedial Order : entered on stipulation. Mr. Leslie, Clifford and Mr. Winthrop A. Johns, for the Board. Mr. 0. J. Dorwin, of New York City, and Kissam and Hayden, by Mr. Leo T: Kissam, of New York City for the respondent. Mr. Richard Johnston, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by Associated Petroleum Workers Union, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated March '15, 1940, against The Texas Company, a corporation, New 'York City, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and upon the Union. In respect to the unfair labor practices, the complaint alleged in substance as follows: (1) that in August 1939 and at all times there- after the respondent refused to bargain collectively with the Union as the exclusive representative of all office workers, warehousemen, yardmen, steam plant engineers, watchmen, mechanics, drivers, washers, and maintenance men employed by the respondent in its New York plants, but excluding supervisory employees, although said employees constitute a unit appropriate for collective bargaining and a majority of said employees had designated and selected the Union as their representative for purposes of collective bargaining; (2) that on or about September 7, 1939, the employees of the respond- 26 N. L. R. B., No. 35. 401 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent in its New York plants went on strike, and on or about September 18, 1939, certain of these employees were refused reinstatement by the respondent without prejudice to their seniority or other rights, despite their application for reinstatement, because they had joined or assisted the Union or because they had participated in the strike; (3) that said strike was caused by the respondent's refusal to bargain, as aforesaid, and was prolonged by its refusal to reinstate, as afore- said; (4) that the respondent in and since June 1939 has urged, per- suaded, and warned its employees at its New York plants to refrain from becoming or remaining members of the Union, and has threat- ened said employees with discharge or other reprisals if they should become or remain members of the Union; (5) that by the above and other acts the respondent interfered with, restrained, and coerced, and is interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. On March 30 the respondent filed its answer denying generally the material averments of the complaint and making certain affirmative allegations. Pursuant to notice a hearing was held in New York City from April I to 11, inclusive, before James C. Batten, the Trial Examiner duly designated by the Board. The Board and the respondent were repre- sented by counsel and participated in the hearing. On June 18 the respondent and counsel for the Board entered into the following stipulation and agreement in settlement of the case, subject to approval by the Board: The National Labor Relations Board (hereinafter sometimes called the Board) upon charges duly filed by Associated Petroleum Workers Union on March 15, 1940, having through its Regional Director for the Second Region issued its complaint against The Texas Company (hereinafter sometimes called the Company), and a hearing thereon hiving been held and testimony having been taken before a duly designated Trial Examiner for the Board on April 1 through 11, 1940, inclusive, and it being the desire of the parties hereto by mutual agreement finally and completely to dispose of the said charges and all of the allegations contained in the said complaint, IT IS HEREBY STIPULATED AND AGREED by and between the parties hereto: (1) That The Texas Company is, and has been since January, 1927, a corporation organized under the laws of the State of Delaware. It is engaged in the business of producing, refining, marketing, and transporting petroleum products. The products of the 'Company are in part distributed through approximately 2,100 wholesale outlets or bulk plants and over 40,000 retailers located in most of the states of the United States. TIDE TEXAS COMPANY 403 (2) That this proceeding concerns only the bulk plants in Albany'; Glenwood Landing, New Rochelle'; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Patchogue; and- Riverhead; all in the State of New York All of the products marketed by the Company through these hulk plants come from outside the State of New York. During the year 1939, 101,563,849 gallons of petroleum and related products were shipped to these bulk plants from points outside the State of New York. During the same period, 4,139,467 gallons of petro- leum and related products were shipped from the Albany, Ossining, and Now Rochelle bull: plants to points outside the State of New York. (3) That, for the purpose of this stipulation and the order hereinafter set forth, the Company shall be deemed to be engaged in interstate commerce within the meaning of the National Labor Relations Act at the bulk plants described in the preceding paragraph. (4) That Associated Petroleum Workers Union is a labor organization within the meaning of Section 2 (5) of the Act. (5) That all the employes, excluding agents and assistant agents, at the bulk plants located in Glenwood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Patchogue; and Riverhead constitute (for the purpose of this stipulation and the form of order herein contained) a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. (6) That the Company waives all other and further proceedings before the Board, including the making of findings of fact and conclusions of law, other than those hereinafter set forth, and agrees that, upon the basis of this stipulation and the entire tes- timony and-record in this proceeding, the Board shall make the Findings and Order set forth below: Upon the basis of a stipulation entered into between the- National Labor Relations Board and the respondent, The Texas Company, and upon the entire testimony and record in this proceeding, and for the purpose of completely and finally disposing of each and all of the issues involved in this matter, the National Labor Relations Board hereby makes the following findings and order; FINDINGS The National Labor Relations Board hereby finds that the activities of The, Texas Company at its bulk plants located at Albany; Glenwood Landing; New Rochelle; Borough of Brook- 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lyn, New York City; Borough of Queens, New York City; Ossining; Patchogue; and Riverhead, (all in the State of New York) have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states. The National Labor Relations Board hereby finds that the Associated Petroleum Workers Union is a labor organization admitting to membership employes of The Texas Company except supervisory employes. The National Labor Relations Board hereby finds that all the employes, excluding agents and assistant agents, at the bulk plants located in Glenwood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Patchogue; and Riverhead consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. ORDER The National Labor, Relations Board hereby orders that The Texas Company, its officers, agents, successors, and assigns shall: 1. Not in any manner interfere with, restrain, or coerce its employes in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action: (a) Offer to all of its employes who, on or about September 7, 1939, went on strike at the bulk plants located in Albany; Glenwood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Pa- tchogue; and Riverhead, employment by the Company, begin- ning ----------------- in positions as near as practicable to those occupied by them on September 7, 1939, and without prejudice to their seniority and vacation rights as of Septem- ber 7, 1939, but at a salary as follows: (1) for the two weeks beginning ________________, a salary equal to the starting salary for new employes in the classification in which they were employed on September 7, 1939; (2) for the two weeks begin- ning ----------------; a salary equal to such starting salary plus 50% of the difference between such starting salary and the salary which they were receiving on September 7, 1939; and (3) beginning ------------- --- -- a salary equal to the salary which they were receiving on September 7, 1939; provided that THE TEXAS COMPANY 405 this paragraph 2 (a) of this order shall not apply to: (1) those employes who, on September 7, 1939, were only employed on a temporary basis, (2) those employes who, since September 7, 1939, have been reemployed or reinstated by the Company and who have been restored to their seniority and vacation rights and to.their rates of pay in effect as of September 7, 1939, and (3) the following 15 employes: Alexander Antonucci, George Fenner, George L. Flanary,, Bartholom'eo Giordano, George Thompson, Mauritz Werner, Charles Slader, Reginald J. Giske, William A. -Crawford, Eugene Fix, William Weiss, Patrick Woods, James F. Gilmartin, Stephen Kababik, and James J. Grady; (b) Continue -to: recognize the Associated Petroleum Work- ers Union as the exclusive representative of all its employees, except agents and assistant agents, at its bulk plants located in 'Glenwood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Pat- chogue; and Riverhead for the purpose of collective bargaining unless or until some other representative or representatives are duly selected within an appropriate unit or units of such employes; (c) Continue to recognize the provisions of the "Articles Governing Wages, Hours, and Working Conditions" and the pay classifications and schedules in effect September 7, 1939, and applicable to .the employes at the bulk plants referred to above, subject to (1) all of the express provisions of the said Articles, and (2) the adoption since September 7, 1939, of new classifications known as "warehouse helpers", "washers", and "yardmen" and pay schedule therefor; .(d) Immediately post, and keep posted for a period of 60 days from the date of this order a notice in a conspicuous place at each of its bulk plants at Albany; Glenwood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Patchogue; and Riverhead, reading as follows: "NOTICE TO EMPLOYES AT -------------------- BULK PLANT, THE TEXAS COMPANY 1. Will not in any manner interfere with, restrain, or coerce its employes in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 323429-42-vol. 26-27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Will continue to recognize the Associated Petroleum Workers Union as the exclusive representative of all its em- ployes, except agents and assistant agents, at its bulk plants located in Glenwood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Patchogue; and Riverhead for the purpose of collective bargaining unless or until some other representative or representatives are duly selected within an appropriate unit or units of such employes. 3. Will continue to recognize the provisions of the "Articles Governing Wages, Hours, and Working Conditions" and the pay classifications and schedules in effect September 7, 1939, and applicable to the employes at the bulk plants referred to above, subject to (1) all of the express provisions of the said Articles, and (2) the adoption since September 7, 1939, of new classifications known as "warehouse helpers", "washers", and "yardmen" and pay schedule therefor. THE TEXAS COMPANY, By ------ ----- District Manager." AND IT IS FURTHER ORDERED That, (1) as to all of the said employes of the Company who went on strike on or about September 7, 1939, and who were then only employed on a. temporary basis or have since been reemployed or reinstated by the Company and who have been restored to their seniority and vacation rights and to their rates of pay in effect as of Sep- tember 7, 1939, and (2) as to Alexander Antonucci, George Fenner, George L. Flanary, Bartholomeo Giordano, George Thompson, Mauritz Werner, Charles Slader, Reginald J. Giske, William A. Crawford, Eugene Fix, William Weiss, Pat- rick Woods, James F. Gilmartin, Stephen Kababik, and James J. Grady, the said complaint be, and it is hereby, dismissed with prejudice. AND IT IS FURTHER ORDERED That the said complaint in all other respects not specifically mentioned in this order be, and the same is hereby, dismissed with prejudice. (7) In issuing it findings and order as above set forth, the Board shall fill in the blanks in paragraph 2 (a) of the order as follows: The first two blanks shall be filled in with the' date of the first Sunday following the date of the approval of this stipulation by the Board ; the third blank shall be filled in with the date of the third Sunday following the date of the approval of this stipulation by the Board; and the fourth blank shall be filled in with the (late of the fifth Sunday following the date of the approval of this stipulation by the Board. THE TEXAS COMPANY 407 (8) In complying with paragraph numbered 2 (a) of the above order, the Company shall make a bona fide effort to reach an agreement with the insurance companies involved whereby the employes who are reemployed by the Company shall be given the opportunity of reinstating their rights under the Com- pany's "Group Life Insurance and Pension Plan" and making payment in reasonable installments of the amounts withdrawn or unpaid by them. (9) That the parties hereto consent to the entry by the United States Circuit Court of Appeals for the Second Circuit, upon application by the Board, of the Consent Decree this day entered into between the parties hereto, and hereby waive further notice of the application for such decree. (10) That the execution of this stipulation and said consent decree by the parties hereto and compliance therewith shall fully and finally conclude and dispose of all of the said charges and the issues involved in the said complaint and respondent's answer thereto, but shall not preclude the taking of any steps necessary to procure the entry of the said consent decree in the United States Circuit Court of Appeals for the Second Circuit (11) The execution of this stipulation is made solely for the purpose of fully and finally settling the issues and controversies involved in this proceeding without further proceedings of any kind (except compliance with this stipulation and, entry of a consent decree referred to above) and is not to be considered in any respect as an admission by the Company that it has in any way engaged in any of the unfair labor practices alleged in the complaint. (12) The Company will be deemed to have complied with the offer mentioned at paragraph 2 (a) of the order set forth above if it gives notice in person (or by registered mail to the last known address) to each of the employes to whom such offer is to be made. If any employe to whom such notice is given does not accept such offer and report for work within one week following the receipt of such notice, or give the Company notice that lie is unable to report for work until a later date, the Company shall be under no further obligation to reemploy such employe. In no event will the Company be obligated to reemploy any employe to whom such notice is given who, for any reason, does not report for work within thirty days following the receipt of such notice; nor will it be required to pay any person who is reemployed under this stipulation for any time prior to his reporting for work. (13) In restoring, as of September 7, 1939, the seniority rights of any person who is reemployed pursuant to this stipulation, the Company will, at the time such employe's salary is increased 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the salary he was receiving on September 7, 1939, further increase such salary by the amount that it would have been increased under the Company's existing pay schedule had such employe remained continuously in the service of the Company from September 7, 1939. (14) It is understood and agreed that the entire agreement is contained within the terms of this stipulation and said consent decree and that there is no verbal agreement of any kind which varies,' alters or adds to this stipulation. (15) It is further understood and agreed that this stipulation, the said findings and order, and the said consent' decree are sub- ject to the approval of the Board and shall become effective im- mediately upon the granting of such approval'. On June 21 the Board issued its order approving the above stipula- tion and agreement and, making it a part of the record, in the case, and directing that the proceeding be transferred to and continued before the Board for the purpose of entry of a decision and,order by the Board. On July 30 the respondent and counsel for the Board entered into a supplemental stipulation and agreement, subject to approval by the Board, providing that the Order which the above stipulation and agreement set forth might be issued and entered by the Board, might be so issued and entered nunc pro tune as of June 21, 1940. The said supplemental stipulation and agreement is hereby approved and made a part of the record herein. Upon the above stipulation and agreement, as supplemented, and upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Texas Company is a Delaware corporation, engaged in the business of producing, refining, marketing, and transporting petroleum products. Its products are in part distributed through some 2,100 wholesale outlets or bulk plants and through more than 40,000 retailers located in most of the States of the United States. This proceeding concerns only the respondent's bulk plants in Albany; Glenwood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining, Patchogue; and Riverhead, all in the State of New York. All of the products mar- keted by the respondent through these bulk plants are shipped to' the bulk plants from outside the State of New York. During the year 1939, 101,563,849 gallons of petroleum and related products were shipped to these bulk plants from points outside the State of New York. During the same period, 4,139,467 gallons of petroleum and THE TEXAS COMPANY 409 related products were shipped from the Albany, Ossining, and New Rochelle bulk plants to points outside the State of New York. For the purpose of this proceeding, the respondent admits that it is engaged in commerce at the aforementioned bulk plants, within the meaning of the Act. We' find that the above-described operations of the respondent constitute a continuous flow of trade, traffic, and commerce among the several States of the United States. II. THE ORGANIZATION INVOLVED Associated Petroleum Workers Union is a labor organization, within the meaning of Section 2 (5) of the Act. It admits to membership employees of the respondent other than supervisory employees. On September 7, 1939, at all times since, and at the present, the Union was, and is, the duly designated collective bargaining representative of a majority of the employees in the unit hereinafter found in Section III, paragraph 3 of this Decision to be appropriate and, pursuant to Section 9 (a) of the Act, the Union was at all such times and is the exclusive representative of all employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. III. CONCLUSIONS Upon the basis of the stipulation entered into between counsel for the Board and the respondent, and upon the entire record in this proceeding, and for the purpose of completely and finally disposing of each and all of the issues involved in this matter, the Board hereby makes the following additional findings of fact and conclusions of law: 1. The National Labor Relations Board hereby finds that the activi- ties of The Texas Company at its bulk plants located at Albany; Glenwood Landing; New Rochelle; Borough of Brooklyn, New Yorlk City; Borough of Queens, New York City; Ossining; Patchogue; and Riverhead, (all in the State of New York) have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States. 2. The National Labor Relations Board hereby finds that the Asso- ciated Petroleum Workers Union is a labor organization admitting to membership employees of The Texas Company except supervisory employees. 3. The National Labor Relations Board hereby finds that all the employees, excluding agents and assistant agents, at the bulk plants located in Glenwood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Patchogue; and Riverhead constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the above findings of fact, conclusions of law, stipulation and agreement, as supplemented, and upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that The Texas Company, its officers, agents, successors, and assigns shall. 1. Not in any manner interfere with, restrain, or coerce the em- ployees in the exercise of their rights to self-organization, to form, join, or assistlabor organizations, to bargain collectively through representa- tives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to all of its employees who, on or about September 7, 1939, went on strike at the bulk plants located in Albany; Glenwood Land- ing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Patchogue; and Riverhead, employment by the Company, beginning June 23, 1940, in positions as near as practicable to those occupied by them on September 7 1939, and without prejudice to their seniority and vacation rights as of September 7, 1939, but at a salary as follows: (1) for the 2 weeks beginning June 23, 1940, a salary equal to the starting salary for new employees in the classification in which they were employed on September 7, 1939; (2) for the 2 weeks beginning July 7, 1940, a salary equal to such starting salary plus 50 per cent of the difference between such starting salary and the salary which they were receiving on Sep- tember 7, 1939; and (3) beginning July 21, 1940, a salary equal to the salary which they were receiving on September 7, 1939; provided that, this paragraph 2 (a) of this Order shall not apply to: (1) those em- ployees who, on September 7, 1939, were only employed on a temporary basis; (2) those employees who, since September 7, 1939, have been reemployed or reinstated by the Company and who have been restored to their seniority and vacation rights and to their rates of pay in effect as of September 7, 1939, and (3) the following 15 employees- Alexander Antonucci, George Fenner, George L. Flanary, Bartholomeo Giordano, George Thompson, Mauritz Werner, Charles Slader, Reginald J. Giske, William A. Crawford, Eugene Fix, William Weiss, Patrick Woods, James F Gilmartin, Stephen Kababik, and James J Grady; (b) Continue to recognize the Associated Petroleum Workers Union as the exclusive representative of all its employees, except THE TEXAS 'COMPANTY 411 agents and assistant agents, at its bulk plants located in Glenwood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Patchogue; and River- head for the purpose of collective bargaining unless or until some other representative or representatives are duly selected within an appropriate unit or units of such employees; (c) Continue to recognize the provisions of the "Articles Governing Wages, Hours, and Working Conditions" and the pay classifications and schedules in effect September 7, 1939, and applicable to the employees at the bulk plants referred to above, subject to (1) all of the express provisions of the said Articles, and (2) the adoption since September 7, 1939, of new classifications known as "warehouse helpers," "washers," and "yardmen" and pay schedule therefor; (d) Immediately post and keep posted for a period of sixty (60) days from the date of this Order a notice in a conspicuous place at each of its bulk plants at Albany; Glenwood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Patchogue; and Riverhead, reading as follows: NOTICE TO EMPLOYEES AT --------------------- BULK PLANT THE TEXAS COMPANY 1. Will not in any manner interfere with, restrain, or coerce its employes in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Will continue to recognize the Associated Petroleum Workers Union as the exclusive representative of all its employes, except agents and assistant agents, at its bulk plants located in Glen- wood Landing; New Rochelle; Borough of Brooklyn, New York City; Borough of Queens, New York City; Ossining; Patchogue; and Riverhead for the purpose of collective bargaining unless or until some other representative or representatives are duly selected within an appropriate unit or units of such employes. 3. Will continue to recognize the provisions of the "Articles Governing Wages, Hours, and Working Conditions" and the pay classifications and schedules in effect September 7, 1939, and applicable to the employes at the bulk plants referred to above, subject to (1) all of the express provisions of the said Articles, and (2) the adoption since September 7, 1939, of new classifications known as "warehouse helpers", "washers", and "yardmen" and pay schedule therefor. THE TEXAS COMPANY, By -- District Manager. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND IT IS FURTHER ORDERED That, (1) as to all of the said employees of the Company who went on strike on or about September 7, 1939, and who were then only employed on a temporary basis or have since been reemployed or reinstated by the Company and who have been restored to their seniority and vacation rights and to their rates of pay in effect as of September 7, 1939, and (2) as to Alexander Antonucci, George Fenner , George L. Flanary , Bartholomeo Giordano , George Thompson, Mauritz Werner, Charles Slader, Reginald J. Giske, William A. Crawford, Eugene Fix, William Weiss, Patrick Woods, James F. Gilmartin, Stephen Kababik and James J. Grady, the said complaint be, and it is hereby, dismissed with prejudice. AND ,IT IS FURTHER ORDERED That the said complaint in all other respects not ^ specifically mentioned in this Order be, and the same is hereby, dismissed with prejudice.