Houston Pipe Line Co.

In the Matter Of HOUSTON PIPE LINE COMPANY and OIL WORKERS INTERNATIONAL UNION, LOCAL 227 Case No. R-9071.Decided December 4, 1940' Jurisdiction : natural gas industry. Investigation and Certification of Representatives : existence of question: dis- pute as to appropriate unit; election necessary. Temporary employees hired by the Company from time to time to assist on specified jobs, upon completion of which their respective engagements were terminated, who had passed company physical exathination and had worked a specified period held to constitute a fairly well-defined group with reasonable prospects of being reemployed by the Company for tem- porary work and hence eligible to vote in the election. Unit Appropriate for Collective Bargaining : all employees of the Company engaged in the operation and maintenance of its pipe lines and the services auxiliary thereto, excluding clerical employees whose work is not directly connected with such operation or maintenance, officers and directors of the Company, department heads, and supervisory employees with full authority to hire and,discharge permanent employees. Supervisory employees who do not perform the Company's major super- visory functions, are eligible for membership by the union, and who in some instances have manifested a desire for representation by the union, included in unit. Mr. V. Lee McMahon, for the Board. Williams, Lee, Sears & Kennerly, by Mr. W. H. Blades and Mr. George,. D. Sears, of Houston, Tex., for the Company. Mandell &'Wright, by Mr. Arthur J. Mandell, of Houston, Tex., for the Union. Mr. George Turitz, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 17, 1940, Oil Workers International Union, Local 227, herein called the Union, filed with the Regional Director for the Sixteenth Region' (Fort Worth, Texas) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Houston Pipe Line Company, Houston, Texas, 28 N. L. R. B., No. 52. 301 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 16, 1940, the Union filed an amended petition, sub- stantially the same as the original petition in 'all respects here material. On August 22, 1940, 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, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On August 23, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the Union. Pursuant to the notice, a hearing was held from September 16 to 27, 1940, at Houston, Texas, before Edward Grandison Smith, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by counsel and partici- pated 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. Counsel for the' Board and for the Company, entered into a stipulation as to certain facts relating to the operation of the Company,' which stipulation is hereby approved. '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. The Company filed with the Trial Examiner a written motion to dismiss the petition on various grounds, including the ground that the business of the Company does not affect interstate commerce or the free flow of interstate commerce., At the close of the hearing the Company moved to dismiss the proceeding, inter alia, on jurisdictional and constitutional grounds. Ruling on these motions was reserved by the Trial Examiner for the Board. The motions are hereby denied. Upon the entire record in the case, the Board makes the following:_ FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Houston Pipe Line Company is a Texas corporation which is engaged in the purchase, transportation, and sale of natural gas in 'Board's Exhibit No. 1-L. HOUSTON PIPE LINE COMPANY - 303 the Gulf Coast Region of Texas.' It is a wholly owned subsidiary of Houston Oil Company of Texas, herein called Houston Oil Com- pany, also a Texas corporation, which has substantially the same officers as the subsidiary.' The labor relations of the Company are conducted' by the officers. Both corporations have their principal offices and places of business in the same building in Houston, have the same telephone number, and carry on certain activities, such as their safety department and their publicity department, jointly. The general character of the business done by Houston Oil Com- pany is: The acquisition and development of prospective and proved oil and gas lands; the production, purchase, sale and transportation of crude oil and natural gas; the production of gasoline, kerosene, fuel oil, and lubricating oils; and the distribution and sale of petr'o- ,leum products to and through a relatively limited number of whole- sale and retail outlets. It owns interests in numerous oil and natural gas wells in Texas and owns producing leases in Oklahoma and producing royalties in New Mexico and Louisiana. Houston Pipe Line Company was organized pursuant to a re- quirement of Texas law that oil companies organized in Texas incorporate their pipe line business separately. The record shows, nevertheless, that the production of natural gas and oil are inti- mately interconnected. Oil operators are the principal owners and lessees of gas leases and reserves and because of the frequent juxta- position of the two products in nature the Gas Utilities Division of the Texas Railroad Commission has established rules and regu- lations which prevent undue waste of gas in the production of oil. Possession of a means of disposing profitably of natural gas appears, therefore, to be of considerable importance to the efficient functioning of Houston Oil Company's oil operations.4 Houston Oil Company obtains natural gas from its, own wells and 'from other oil operators 2 The "Gulf Coast Region," as the term was used by the parties in this case, is the part of Texas bordering the Gulf of Mexico from the vicinity of Houston to the vicinity of Laredo and extending about 100 miles inland. 3 The two corporations have separate general managers . However, the president, the vice-president and treasurer , the secretary, and the assistant secretary of Houston Oil Company, respectively , hold those same positions with Houston Pipe Line Company. The position of auditor is held by the general manager of Houston Pipe Line Company, while it is held by the secretary of Houston Oil Company . The assistant secretary of Houston Oil Company also acts as assistant auditor. 4 "• * * more than 40 percent of the total volume of natural gas produced and consumed in the United States comes to the surface of the ground in association with oil." Technology, Employment, and Output per Man in Petroleum and Natural-Gas Production, by O. E. Riesling, et al., Report No. E-10 of Works Project Administration, National Research Project, in cooperation with Department of the Interior , Bureau of Mines, (July 1939 ), page 173. "Technically efficient production of oil and gas demands treatment of each pool as a geologic unit * * * a typical pool represents an adjustment of forces held in balance with the gas uppermost , the oil next, and water at the outer limits of the productive area." Ibid, p. 205. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, pursuant to a contract with the Company, is the Company's sole source of supply. All the gas dealt with by the Company is produced and consumed Within Texas. Gas that requires processing is processed before delivery to the Company. The Company's pipe line system contains over 600 miles of main pipe line, about 300 miles of which is a main trunk line running in a general northwesterly direction from the Cole-Bruni field to Baytown, Texas,5 and the rest of which consists of branch lines connecting with the trunk. In addition there are gathering lines running to wells. The Company also maintains auxiliary services for the operation and maintenance of its pipe lines, including four compressor stations, power plants, water treating plants, warehouses, ice plants, and more than 700 miles of'private telephone lines. In' 1939 the Company's purchases of supplies and materials amounted to about $163,603, over half of which were manufactured outside of Texas. About 98 percent of such materials were pur- chased by the Company from local dealers in Houston, but in some instances they were shipped to the Company in Texas from points outside the State. The Company sells its natural gas to two gas distributing com- panies, namely, Texas Cities Gas Company and Houston Natural Gas Corporation of Texas, to Houston Lighting and Power Com- pany, and to ,a relatively limited number of industrial concerns. Texas Cities Gas -Company furnishes gas. to industrial, com- mercial, and domestic consumers in the City of Galveston, which has a population of about 60,000, and in Galveston County. It is the sole supplier of gas within the City of Galveston, and in 1939 its consumers numbered 11,443, of which 58 were industrial consumers. Houston Natural Gas Corporation of Texas was formed in May 1940 as the successor of Houston Natural Gas Corporation of Delaware and ' of the latter's four subsidiary operating companies, namely, Houston Natural Gas Company, Texas Natural Gas Utilities, Gulf Cities Natural Gas, Company, and Tex-Mex Natural Gas Compalny.e In 1939 the four subsidiary operating companies. served 44,867 in- dustrial, commercial, and domestic consumers' located in approxi- mately 70 cities, towns, and communities in 19 counties of Texas, 'The Cole-Brunt field is located about 45 miles east of Laredo , Texas, which is on the Rio Grande. Baytown is situated about 20 or 25 miles east of Houston 6 On July 31, 1940, the four distributing companies , each of which was a Texas cor- poration, transferred all their respective assets to their parent corporation , Houston Natural Gas Corporation of Delaware , which simultaneously' transferred the assets to Houston Natural Gas Corporation of Texas On September 10, 1940, Houston Natural Gas Corporation of Delaware and the four subsidiary corporations ' were dissolved. A share for share exchange of stock of Houston Natural Gas Corporation of Delaware for stock of Houston Natural Gas Corporation' of Texas was 'under' *ay at the timeI of the hearing and the holders of about 80 percent of the stock of the former corporation had signified their intention of making the exchange HOUSTON PIPE LINE COMPANY 305 having combined populations estimated at 600,000, including the metropolitan area of Houston, with a population of about 500,000. The industrial consumers numbered 347, of which 263 were located in or near Houston. In 1939 the foregoing five gas distributing companies then operating purchased from the Company a total of 9,211,176,000 cubic feet of natural gas, paying therefor the sum of about $1,403,715. Each distributing company's purchases from the Company constituted the proportion stated in the footnote below of the total amount of gas which it purchased or used in 1939.7 Houston Lighting & Power Company makes steam and electricity for distribution within the State of Texas to domestic, commercial, and industrial users. It receives gas regularly from other suppliers, and its purchases from the Company during 1939, amounting to $49,462 8 constituted 3.65 percent of its total purchases of fuel. A large number of industrial consumers of natural gas supplied by the Company, whether directly or through the two gas distributing companies referred to above; are engaged in interstate or foreign commerce, as appears from the following data concerning their re- spective operations in 1939: Stauffer Chemical Company, which pur- chased from the Company natural gas valued at $3,842, shipped out of Texas, chemical products valued at about $300,000, of which about 90 percent were processed with gas purchased from the Company. Shell Oil Company, Inc., which purchased from the Company natural gas valued at $267,886, refined and shipped from Texas approximately 23,400,000 barrels of its products, about 25 percent of which were processed with gas purchased from the Company. American Petro- leum Company, which bought from the Company natural gas valued at $30,028, refined and shipped out of Texas over 753,000 barrels of gasoline.10 Crown Central Petroleum Corporation, which purchased from the Company natural gas valued at $20,737, manufactured and shipped out of Texas a large amount of gasoline products, of which about $50,000 worth had been processed with gas purchased from the Company.' Pan-American Refining Company, whose purchases of 7 The value of the gas purchased from the Company by Houston Natural Gas Company was 99 71 percent of the value of all gas which it used ; the value of the gas purchased from the Company by Texas Natural Gas Utilities was 99 .07 percent of all gas which it purchased ; the value of the gas purchased from the Company by Gulf Cities Natural Gas Company was 97.25 percent of all gas which it purchased ; the value of the gas purchased from the Company by Tex-Mex Natural Gas Company was 33 80 percent of all gas which it purchased ; and Texas Cities Gas Company purchased from the Company all the gas which it purchased . It should be noted that the total value of all the gas purchased by Tex-Mex Natural Gas Company was less than $28,000 s Cents are omitted from this figure and from other figures in this Section The distributing companies paid the Company a fixed percentage of the amounts which they received from their customers for gas supplied by the Company and used for industrial purposes . Gas used for domestic purposes was paid for by the distributing companies at a flat rate io In 1937 this concern refined and shipped out of Texas 1,257 , 831 barrels of gasoline u This concern 's total shipments of gasoline products out of Texas in 1939 were valued at more than $1,000,000 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD natural gas from the Company, though constituting less than one percent of the fuel which it used, amounted to $16,142, shipped prod- ucts valued at more. than $41,000,000 out of Texas. Freeport Sulphur Company, which purchased from the Company natural gas valued at $225,230, shipped out of Texas 100,642 tons of sulphur. Champion Paper & Fibre Company, which bought from the Company natural gas valued at $120,344,12 manufactured and shipped out of Texas,11 approximately 80,000 tons of wood pulp 14 and 3,312,540 pounds of trostol.15 Lone Star Cement Company, which purchased from Hous- ton Natural Gas Company natural gas valued at $113,149, manufac- ured and shipped out of Texas approximately 47,250 barrels of cement, all of which was processed with gas. Trinity Portland Ce- ment Company, which purchased from Houston Natural Gas Com- pany natural gas valued at $94,127, shipped out of Texas large quan- tities of cement, including entire shiploads consigned to South Amer- ica. Hughes Tool Company, which purchased from Houston Natural Gas Company natural gas valued at $19,838, sold and shipped out of Texas oil well equipment manufactured or distributed by it valued at at least $6,000,000. Reed Roller Bit Company, which purchased from Houston Natural Gas Company natural gas valued at $18,232, shipped out of Texas, oil well equipment manufactured or distributed by it worth about $6,800,000, of which about 75 percent had been processed with gas. Among other companies which in 1939 shipped products out of Texas and purchased gas from the Company or one of the distributing companies referred to were : Southport Petroleum Company, which purchased gas from Gulf Cities Natural Gas Company valued at $4,009; Sun Oil Company and Magnolia Petroleum- Company, which purchased gas from Tex-Mex Natural Gas Company valued at $5,542" and $5,485 respectively; Galveston- Houston Breweries, Inc., which purchased gas from Texas Cities Gas Company; and Consolidated Chemical Industries, which purchased from the Company gas valued at $5,691. In addition Houston Pack- ing Company, which purchased from Houston Natural Gas Company gas valued at $18,939, and High Grade Packing Company, which purchased gas'from Texas Cities Gas Company, delivered supplies to ships about to sail from Texas to points on the Atlantic Seaboard. Substantial amounts of natural gas supplied by the Company were purchased in 1939 by a number of railroads engaged in interstate 12 Part of the natural gas purchased from the Company by Champion Paper & Fibre Company was delivered by the Company to Houston Light & Power Company, which used it to generate steam which was delivered to Champion Paper & Fibre Company. 13 The figures as to these shipments are for the year ending April 28, 1940 14 Only about 25 percent of the wood pulp shipped out of the State was shipped to purchasers , the rest being sent to divisions of Champion Paper & Fibre Company located in other„ States 15 Trostol is a resinate , sometimes called crude tall oil , which is libel ated from 'a ood in the process of making pulp HOUSTON PIPE LINE COMPANY 307 transportation.16 The Texas and New Orleans Railroad, which carries' passengers and goods between Texas and Louisiana, and is part of the Southern Pacific System, purchased from Houston Nat- ural Gas Company natural gas 'valued at $14,806. The Santa Fe Railway Company, the International Great Northern Railway Com- pany, which is part of the Missouri Pacific System, and the Missouri, Kansas and Texas Railway Company, all of which companies are engaged in interstate transportation, purchased natural gas from Texas Cities Gas Company in 1939. Houston Compress Company, which is engaged in preparing bales of cotton - for shipment by rail or water by reducing their bulk, in 1939 - purchased from Houston Natural Gas Company natural gas valued at $12,623. Western Union Telegraph Company, Postal Telegraph-Cable Cor- poration, and Southwestern Bell Telephone Company, all of which are engaged in transmitting communications for the general public, including communications between Texas and other States, purchased gas during 1939 from Texas Cities Gas Company. The Company sought to show that if its service failed, consumers of its gas could procure gas from other sources or use other fuels. Such facts, however, if established, would not be material. The dis- 'location necessarily attendant upon a change from their normal sources and types of fuel by a large segment of a community includ- ing persons engaged in interstate commerce-such as might occur irr -case of a labor dispute involving the Company's employees-would materially burden and obstruct the free flow of commerce. Further- more, since labor disputes might simultaneously involve employees of the Company and of the suggested substitute sources of fuel, espe- cially other suppliers of natural gas, such sources might be wholly unable to supply fuel in case of failure of the Company's supply. In any event the record fails to establish the facts alleged by the Company as to the availability of substitute sources of fuel. While several of the industrial consumers, including all the large ones in Galveston, are equipped to burn oil and can change- over to that fuel on a moment's notice, the following consumers, all among those en- gaged in interstate commerce, are not so equipped,- and in case of an interruption of the Company's service would depend for continuance of operation upon installing new equipment 17 or procuring gas else- where : Stauffer Chemical Company, American Petroleum Company, ,Champion Paper & Fibre Company, Consolidated Chemical Indus- 16 The gas purchased by the various railroad companies was not used to propel trains, but for such purposes as operating repair shops and heating stations and coaches standing in stations "Industries burning natural gas can, with changes in their equipment , efficiently sub- stitute oil. 413597-42-N of 28-21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .tries, Lone Star Cement Company, Hughes Tool Company, Houston Packing Company, Houston Compress Company, Santa Fe Railway Company, International Great Northern Railway Company, Missouri, Kansas and Texas Railway Company, Western Union Telegraph Company, Postal Telegraph-Cable Corporation, and Southwestern Bell Telephone Company. The installation of oil burning equipment in a single industrial plant previously burning natural gas would require about a week. The record shows, further, that no other natu- ral gas company is in a position promptly and adequately to, take over the task of supplying all the Company's consumers with gas. Although the reserves of natural gas in the Gulf Coast Region and even those in the vicinty of Houston, where by far the greatest part of the Company's gas is consumed, greatly exceed present needs, the amount utilizable is limited by the capacity of the gas pipe lines run- ning to points of consumption. The only pipe line system which the parties considered at the hearing as a possible alternative supplier of gas to all the Company's consumers was that of United Pipe Line Company and its affiliated companies, herein collectively called the United. , The United and the Company each operate two of the five major pipe lines transporting natural gas to the vicinity of Houston 18 It maybe assumed that during periods of average consumption the United, if permitted to connect its system with that,of the Company, could promptly and adequately supply all customers of the Company from the 'United's own sources of natural gas 19 If, however, the United was not permitted to make such a connection, it would have to lay pipe lines to those of the Company's consumers who do not already have such connections,20 and that would take considerable time. Moreover, periods of "peak" demand regularly occur during the winter months, and it is clear, and we find, that during such periods the United could not supply the Company's consumers with reasonable promptness, if at all, even though. utilizing the Company's pipe lines 21 19 The fifth line, that of Humble Pipe Line Company, is admittedly of considerably less importance than the other four. 19 The Company 's average daily delivery in 1939 was about 49,200 ,000 cubic feet and at the time of the hearing in September 1940 was about 50,000,000 cubic feet, as compared with a peak of about 88,000,000 cubic feet in January 1940. On January 25, 194l, the United delivered to its customers about 40,000,000 cubic feet more than the amount it delivered on November 27, 1939, which in turn was the United's third highest delivery for any day in the winter of 1939-40 The record does not show the United's average ds ly deliveries , but since its domestic deliveries increase with colder weather as do the Company's, and since the peaks in its customers' demands are caused by domestic con- sumption, it is probable that the average daily delivery is considerably less than the delivery made on November 27, 1939. 20 Both the United and Humble Pipe Line Company already serve or are i n a position to give immediate service to a few of the Company's consumers 21 Spears, district manager of the United for Houston, testified, that the United could not, while handling its own peak loads , " on a moment's notice . . . take care of the Houston Pipe Line Company's load that averages around 50,000,900 cubic feet and at times having a peak of 88,000,000 cubic feet of gas per day" , that he could HOUSTON PIPE LINE COMPANY, -, - _ - - - 309 During 1940 the Company employed approximately 259 employees, including 9 company officials and about 40 other persons working in the Company's office in Houston. II. THE ORGANIZATION INVOLVED ' Oil workers International Union, Local 227, is a labor organiza- tion affiliated with the Congress of Industrial Organizations and admitting employees of the Company to its membership. - III. THE QUESTION CONCERNING REPRESENTATION On May 23, 1940, the attorneys for the Union wrote to the Com- pany informing it that the Union had as members at least 90 per- cent of, the Company's employees engaged in pipe line and field work, and requesting that the Company grant the Union an audi- ence for collective bargaining. On June 14, 1940, at a conference had by the president and the counsel of the Company with a com- mittee of the Union and its counsel, the Company declined to-,bar- gain with the Union on the ground that it had doubt as, to the appropriateness of the unit which the Union claimed to represent and as to the Union's having a majority of the employees in that unit as members, and on the further ground that it had doubt that the Act was applicable to the Company. At the hearing the president of the Company stated that the Company still refused to bargain with the Union because the bargaining unit.which the Union contended for was not "authorized or permitted by the .. - ." • Act, and because the- Act did not apply to the Company. - The Union introduced in evidence -seven petitions signed by about 98 of the 161 employees claimed by the Union to be in the appropriate unit, designating the Union as their representative for collective bargaining.22 We find that a question has arisen concerning representation of employees of the Company. not state how much gas the United could deliver in the Houston area in excess of the 110,805 ,000 cu ft. which it delivered on January 25, 1940 , and which was the -highest de= mand that the United had ever experienced ; that if requested to take over the Company's total load, the United would have to make a system-wide study, covering the possibility of rearranging its load, of bringing gas in from different directions , of raising pipe line pressures at various points, and of the place of peak demands at a given time; that such a study would take about 2 weeks ; that before accepting new customers at certain points on its lines even in the ordinary course of its business it would have to make a study to see whether or not it could serve them during peak deliveries ; that in January and early February 1940 the United , in some parts of its system, was " . . . supplying just about all of the gas that . . . [it] could put into . . . [its ] pipe line and that occasionally during peak demand the United falls to supply - all its industrial demand. During a single day in 1930 the Company delivered about 111,000,000 cubic feet of natural gas. 22 Among these 98 employees were about 10 "pick -up men" whose status will be discussed ' below. - 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 between the States and foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. X. THE APPROPRIATE UNIT In its amended petition the Union alleged that "all employees" of the Company, "engaged in the maintenance and operation of the pipe lines owned and operated by the employer, excluding clerical and supervisory employees," constitute an appropriate unit. It appears from the record that the Union intended to include within such description all employees of the Company, whether engaged in the operation or maintenance of the pipe lines proper or of the auxiliary services,23 except clerical employees whose work is not "definitely" connected with the operation of the pipe lines, officers and directors of the Company, department heads, and -other super- visory employees with full authority to hire and discharge perma- nent employees. All the employees included in this unit are eligible to -membership in the Union. The Company contended that the unit above described is- inappropriate because it is too large geograph- ically and includes employees -in the Company's eight geographical districts, each allegedly operated as a unit complete within itself and not dependent upon the others for the performance of its duties, and in each of which the work is allegedly dissimilar. The Com= pany also contended that the said unit is inappropriate because it includes persons in supervisory capacities and persons doing different types of work. The Company's system is subdivided into eight geographical dis- tricts, the two most widely separated being about 300 miles apart. Gas moves through the Company's entire system from points of higher to points of lower pressure. A dispatcher in Houston receives frequent reports by telephone as to the rate of withdrawal at the 50 to 100 points of consumption along the line, of the rate of supply of, each well attached to the system, and of the pressures at various points on the system. On the basis of these reports and of reports showing prospective consumption, he makes calculations and gives the appropriate orders for increasing or decreasing the delivery of 23 See Section I, supra. HOUSTON PIPE LINE COMPANY 311 certain wells and for increasing or decreasing the amount of work being done by the various compressor stations, in this manner main- taining a steady flow of gas through the system. The work of the employees in comparable `positions throughout the system is similar and such dissimilarities as do exist are relatively unimportant." The type of work to be performed differs in the various districts to some extent'25 but those differences are immaterial. when considered in relation to the integrated character of the Company's operations in their entirety. Some employees are required to work in several dis- tricts; employees are transferred at times from one district to another, both permanently and temporarily; and with few exceptions given classifications of employees receive the same pay in all districts. The employees have organized on a system-wide basis and the Union's membership extends throughout the system. The employees on other pipe line systems 26 are organized on a system-wide or Nation-wide basis, and the Union's executive financial secretary-treasurer, an experienced organizer, testified that it was impossible properly to represent pipe line employees unless they were in large districts, since their community of interest extended from one end of.the line to the other. An attempted organization of a single station of the Com- pany's system in 1933 and 1934 was unsuccessful, and no other labor organization and no employees included in the unit sought by the Union have made any claim that the said unit is inappropriate. In view of the foregoing considerations, -we find that a system-wide bargaining unit is appropriate.27 The supervisory employees without full authority to hire and discharge permanent employees, whom the Union desires included in the unit, are telephone linemen, subforemen , and dispatchers in the Houston office. The Company -employs five telephone linemen.28 Each works under the direction of the superintendent of the telephone depart- ment in Houston and has the responsibility of keeping in repair the telephone system in the territory assigned to him , or at any place to which he is sent. They ,are authorized to engage the services of employees known as "pick-up men" to assist them on particular jobs 23 The ' record shows that the power plants at some of the compressor stations develop alternating current while others develop direct current; that some of the compressor engines are different from others ; that different kinds of water treatment systems are used ; and that two of the four compressor stations have ice plants u In some.districts a large part of the work done consists of the operation and main- tenance of compressor stations, warehouses, or ice plants, which do not exist in all districts. On the other hand, in the Houston and Pasadena area, where most of the Company's gas is consumed , measuring and regulating deliveries of gas to customers is of prime importance. . Sinclair Oil Company and United Fuel Oil Gas Company. 27 See Matter of Postal Telegraph-Cable Corporation of New York, et al., and Com- mercial Telegraphers ' Union, etc , 9 N. L R B. 1060, 1070 28 The telephone linemen are also known as "trouble men" and "telephone district supervisors." 312 DECISIONS " OF NATIONAL LABOR RELATIONS BOARD and they have the responsibility of deciding when to engage "pick-up men," of supervising their work, of informing them when the en- gagement is completed and of making up and approving the time reports on the basis of which the "pick-up men" are paid. The telephone linemen also inform their superior when a "pick-up man's" work has been unsatisfactory. Except in case of emergency they are limited in their selection of "pick-up men" to persons who have been examined by the Company's physician. Two of the five tele- phone linemen signed petitions designating the Union as their col- lective bargaining representative. The Company employs six subforemen. A subforeman supervises the work of the group assigned to him and in the absence of his foreman assumes the foreman's duties. Wood, the Company's gen- eral manager, testified that the superintendents had informed him that the subforemen had been given the right to hire and discharge employees in the absence of their foremen; but he could recall no case where a subforeman had ever exercised such authority.' Meyers, a subforeman, testified that he had never been informed that he had authority to hire or discharge employees, and that when a man under him did unsatisfactory work, he merely reported that fact to his foreman. Cobb, another subforeman, testified that he had hired" some "pick-up men" during the absence of his foreman for a period of about a year, and had recommended an employee's discharge, but that he had never hired employees on any other occasion, and bad never discharged an employee. We are convinced that the sub- foremen's authority to hire employees is limited to hiring "pick-up men" during, the absence of their foremen and that they do not have authority to discharge- employees other than "pick-up- men" whose work has been terminated, and we so find. Four of the six sub- foremen employed signed petitions designating the Union as their collective bargaining representative. -The Company employs four dispatchers in the Houston office. The dispatchers admittedly do not have the, right to hire or dis- charge employees but_ they direct other employees, including field foremen, -in their work and, as appears from our discussion above, have considerable responsibility for the efficient operation of the "Company's pipe line system. They also do some clerical work di- rectly connected with the operation of the pipe lines. Two of the four dispatchers employed signed petitions designating the Union as their representative for collective bargaining. Since these three groups of supervisory employees do not perform the Company's major supervisory functions, are eligible for member- ship in the Union, and in some instances have manifested a desire HOUSTON PIPE LINE COMPANY 313 for representation by the Union, we shall include them in the unit 'found appropriate." • We find that all employees of the Company engaged in the opera- tion and maintenance of its pipe lines and the services-auxiliary thereto, excluding clerical employees whose work is not directly connected with such operation or maintenance, officers and directors of`tlie Company, department heads, and supervisory employees with full authority to' hire and discharge permanent employees, consti- tute 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 bargain- ing and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES Counsel for the Union requested that the Board, direct an election, stating that the Union did not seek certification without- one. We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The Union submitted a list of 17 "pick-up men" within the ap- propriate unit, who, it contended, should be eligible to vote in the election. The Company opposed this contention. "Pick-up men" are temporary employees who are hired, or "picked up," to assist on specified jobs, upon completion of which their engagement is termi- nated. The record indicates that although the employment of "pick- up men" is temporary and irregular, they constitute a fairly well- defined group. Collerain, chief of the Company's telephone depart- ment, admitted that there were some men whom the Company "picked up" as a rule , and several employees who hired "pick-up men" testi- fied that their usual practice was to "pick up" only men who had previously worked for the Company as "pick-up men." In addition, the Company admittedly requires that, wherever possible, persons hired as "pick-up_men" shall have passed an examination by its physician. The record shows that, except on rare occasions, persons who have passed such a physical examination always are available. Wood, the, Company's general manager, testified that the 17 "pick-up men" listed by the Union had been discharged and were no longer em- ployees, and that he did not know whether they would ever be needed or employed by the Company again. The Company made no claim, however, that it was so. changing its method of operation as to dis- pense with the temporary employment of "pick-up men" who had passed the Company's physical examination and who had worked for it in the past. 30 The Union stated through its representative', a+ Matter of Shell Petroleum Corporation and Otii Workers International Union, Local No. 367, 9 N. L. R. B. 831, 837. 80 J. W. Robinson, one such employee, was working for the Company at the time of the hearing. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IIumburg, that `the "pick-up men',' whose eligibility it contended for were those employed regularly as "pick-up men." 31 The Com- pany and the Union stipulated that the last employment of all 17 "pick-up men" listed "except one still employed at the time of the hearing terminated at various times between December 15,.1939, and the day previous to the opening of the hearing. The said stipula- tion also shows that one of the 17, one Nowlin, worked 172 hours in 1939 and 79 hours in 1940; and that another, one Jones, worked 206 hours in 1939 and 167 hours in 1940. * As to a third man, one Duvall, the stipulation shows only that he was "paid off" on Decem- ber 15, 1939, and did not work in 1940. The stipulation shows that all other "pick-up men" listed received more employment than Nowlin and Jones during 1940 and also during the period from January 1, 1939, to the time of the hearing.32 In view of the foregoing, we think that all persons who prior to this Decision and Direction of Election have passed a physical examination by the Company's physician, and during the period from January 1, 1939, to and in- eluding the date of this Decision and Direction of Election,, have been employed by the Company as "pick-up men" for a total of at least 250 hours, including at least 75 hours since December 31, 1939, have reasonable prospects of being employed by the Company from time to time as "pick-up men," and we so find. i3 They will be referred to as regular "pick-up men" and we shall direct that they be eligible to vote in the election. As to employees in the appropriate unit other than "pick-up men," counsel for the Union claimed that those employed by the Company during the pay-roll period immediately preceding September 15, 1940, the day before the opening of the hearing, should be eligible to vote in the election. The list of employees who the Company claimed should be eligible to vote was taken from the pay roll of that same pay-roll period. We think, however, that the purposes and policies of the Act will be best effectuated if the pay-roll period immediately prior to the date of this Decision and Direction of Election is used as the basis for eligibility, and we shall so direct. 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 Houston Pipe Line Company, Houston,. "I No specific ,criterion for such regular employment was given. 82 The stipulation shows the employment history of most of the "pick-up men" in terms of days worked, but as to the one who had least employment shows it in terms of hours. 83 The record shows that 16 of the 17 "pick-up men" who the Union contended should be eligible to vote fall within this description. - HOUSTON PIPE LINE COMPANY 315 Texas, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company engaged in the operation and maintenance of its pipe lines and the 'services auxiliary thereto, ex- cluding clerical employees whose work is not directly connected with such operation or maintenance, officers and directors of the Company, department heads, and supervisory employees with full authority to hire and discharge permanent employees, 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 Relations 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 DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargain- ing with Houston Pipe Line Company, Houston, Texas, 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 Sixteenth Region, (Fort North, Texas ) 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 all employees of the Company engaged in the operation and maintenance of its pipe lines and the services auxiliary thereto 34 who were employed by the Company during the pay-roll period next preceding the issuance 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 regular pick-up men," 35 but excluding employees who have since quit or been discharged for cause , clerical employees whose work is not directly connected with the operation and maintenance of the Company 's pipe lines and the services auxiliary thereto, offi- cers and directors of the Company, department heads, and supervisory employees with full authority to hire and discharge permanent employees, to determine whether or not they desire to be represented by Oil Workers International Union, Local 227, for the purposes of collective bargaining. CHAIRMAN HARRY A . MILLIs took no part in the consideration of the above Decision and Direction of Election. "See Section I, supra. 35 See Section VI, supra.