Union Oil Co. of California

In the Matter of UNION OIL COMPANY OF CALIFORNIA and NATIONAL MARITIME UNION OF AMERICA, AFFII.IATED WITH THE C. I. O. Case No. R-3168.-Decided December 2, 1941 Jurisdiction : water transportation industry. Investigation and Certification of Representatives : existence'of question : refusal of Company to accord union recognition until certified by the Board, election necessary. ,Unit Appropriate for Collective Bargaining : determination of, held dependent upon desires of employees; (1) election directed among all unlicensed per- sonnel of deck departments of Company's off-shore tankers to determine whether they shall constitute a separate unit or shall be included in a single unit with the engine and stewards' departments; (2) election directed among all remaining members of unlicensed personnel of the engine and stewards' departments to determine whether or not they desire to be represented by the petitioning union Mr. L. A. Gibbons, of Los Angeles, Calif., for the Company. Mr. Benjamin Dreyfuss, of San Francisco, Calif., for the N. M. U. Mr. I. B. Padway, of Hayward, Calif., and Mr. Joseph A: Padway, of Washington, D. C., for the S. I. U. and S. U. P. Mr. Robert R. Hendricks, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On August 21, 1941, National Maritime Union of America,, affili- - ated with the C. I. 0., herein called the N. M. U., filed with the Regional Director for the Twentieth Region (San Francisco, Cali- fornia), a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Union Oil Company of California,2 Los Angeles, California, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to- Section 9 (c) of the National Labor Relations 'Designated in the petition and other formal papers as National Maritime Union 21ncoiiectly named in the petition and other formal papers as Union Oil Company. At the hearing the petition and other formal papers were amended to designate the Company as Union Oil Company of California. 37NLRB,No35. _ 227 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, 49 Stat. 449, herein called the Act. On October 8, 1941, 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 October 8, 1941, the Regional Director issued a notice of hear- ing, and on October 13, 1941, an order postponing the hearing to a later date, copies of which were duly served upon the Company, the N. M. U., and the Seafarers International Union of North America, A. F. of L., herein called the S. I. U., and the Sailors Union of the Pacific, herein called the S. U. P., labor organizations claiming to represent employees directly affected by the investigation. Pursuant to "notice, a hearing was held on October 17 and 18, 1941, at San Francisco, California, before John T. McTernan, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the N. M. U., the S. I. U., and the S. U. P. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues was afforded all parties. At the hearing the N. M. U. moved to preclude the S. I. U. and the S. U. P. from par- ticipating in these proceedings on the ground that they had failed to establish that they represented a substantial number of employees of the Company. The Trial Examiner reserved ruling on this mo- tion. For reasons stated below, it is granted with respect to the S. I. U. and denied with respect to the S. U. P. During the course of the hearing, the Trial Examiner made various rulings on motions and objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. With the leave of the Board, the N. M. U., the S. U. P., and the S. I. U. filed briefs which have been considered by the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company is engaged in the production, refining, and market- ing of petroleum and petroleum products. In connection with the above And, incidental thereto, the Company transports, by means of ,off -shore tankers, coastal barges, and self-propelled motor boats, ap- proximately 32 per cent of its total annual production.' The bulk of 3 In 1935 and 1936 the Company marketed approximately 30 million barrels of petroleum products . The Company stipulated that its present operations are substantially the same. UNION OIL COMPANY 229 said transportation is carried on between California ports and ports in other States of the United States and in foreign countries. This proceeding concerns only the unlicensed personnel in the deck, engine, and stewards' departments of the Company's off-shore tankers. We find that the Company is engaged in trade, traffic, transpor- tation, and commerce among the several States and foreign countries, and that the members of its unlicensed personnel in the deck, engine, and stewards' departments of its off-shore tankers are directly en- gaged in such trade, traffic, transportation, and commerce. 0 If. THE ORGANIZATIONS INVOLVED National Maritime Union of America is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees on'the Company's off-shore tankers. Seafarers International Union of North America is a labor organi- zation affiliated with the American Federation of Labor. It admits to membership employees on the Company's off-shore tankers. Sailors Union of the Pacific is a labor organization affiliated with the S. I. U. It admits to membership employees on the Company's off-shore tankers. III. THE QUESTION CONCERNING REPRESENTATION On August 8, 1941, the N. M. U. informed the Company, by letter, that it claimed to represent a majority of the unlicensed personnel on the Company's tankers and requested immediate recognition by the Company as the collective bargaining representative of those employees. It was admitted by the Company at the hearing that it had made no response to this letter prior to August 21, 1941, the date upon which the petition herein was filed. At subsequent meet- ings of representatives of the N. M. U. and the Company, the Com- pany refused to recognize the N. Al. U. until such time as it is certi- fied by the Board. From a report of the Regional Director introduced into evidence at the hearing and a statement by the Trial Examiner in the record, it appears that the N. M. U. and the S. U. P. represent a substantial number of employees of the Company in the respective units claimed, by each, to be appropriate.' 4 The Regional Director reported that the N M U submitted 117 application-for- membership cards, together with several petitions (designating the N. M U as bargain- ing agent) containing 12 signatures in addition to those set forth in the application cards The unit proposed by the N 1\L U ,(all unlicensed personnel in the deck, engine, and stewards' depai tments) uicludeil, as of the Company's pay ioll of September 24, 1941, 258 employees The Trial Examiner stated in the record that this pay roll was used in preparing the Regional Directors statement - The Trial Examiner's statement shows that the S U P presented, at the hearing, four petitions containing the apparently genuine signatuics of 26 persons purporting to be 43i257-42-vor. 37 16 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The S. I. U. offered no documentary evidence to show that it repre- sented any of the employees in the units it claims as appropriate.5 Under these circumstances, we find that the S. I. U. has not established - a sufficient interest in this proceeding to entitled it to be placed on the ballot in the elections directed below." 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 N. M. U. contends that the entire unlicensed personnel of the deck, engine , and stewards ' departments on the Company's off-shore tankers, constitutes a unit appropriate for the purposes of collective bargaining. The S. U. P. claims that a separate unit comprising the unlicensed personnel of the deck departments on the Company's off- shore tankers constitutes an appropriate unit. The S . I. U. urges that the members of the engine and stewards' departments constitute sepa- rate appropriate bargaining units.' The Company stated that, while it had no objection to any unit determined appropriate by the Boalid, it would prefer to bargain with a single unit comprising all of the unlicensed personnel in the three departments. The unlicensed personnel on board sea-going ships has been tradi- tionally comprised of three separate departments, the deck, engine, and stewards' departments . As described in the record , the unlicensed members of the deck department are the sailors and seamen. Their function is to assist -in the navigation and upkeep of the ship. The unlicensed personnel of the engine department (firemen, oilers, wipers, members of the deck crews of four of the Company' s nine tankers ; that one petition was undated while the other three bore dates ranging between August 29 and October 8, 1941 , that 14 of said signatures appeared to be those of employees on the pay ion of the Company for September 24, 1941 ; that one signature was illegible The unit pro- posed by the S U P would include the unlicensed deck employees on the Company's tankers The pay roll of September 24, 1941, fixes the total number of such employees at 107 It maintains that the unlicensed members of the engine and stewards' depaitments each constitute an appropriate unit On the first day of the hearing, both the S U P. and the S I U refused to submit any evidence in support of their claims of representa- tion on the ground that they were contemplating filing an appeal from the Regional Dnectoi's (Twentieth Region) refusal, on October 2, 1941, to issue a complaint charging the Company herein with unfair labor practices No such request for review was filed On the second day of the hearing, however, the petitions, above set forth (see footnote 4),_ Heio produced as evidence of the S U. P's claim of representation in the deck department See Matter of Western Union Telegraph Company and American Federation of Labor, Cornniei cial Telegraphers Union, 30 N I, R B , No 165 , Matter of Goodrich Llecti ze Co , Inc and United Electrical Radio f Machine Workers of America, 30 N. L R B, No 140; Matter of Federal Shipbuilding and Dry Dock Company and Industrial Union, of Marine cf Shipbuilding IVothers of America, Local No 16, 19 N L R B 313 Although S I U admits to membership the unlicensed peisonnel of both engine and stewards' depaitments, it claims to represent each department on a separate departmental basis UNION OIL COMPANY 231 and water-tenders) maintain the ship's machinery and other moving parts - while the 'unlicensed personnel of the stewards' department (stewards, cooks, dishwashers, and messboys) prepare and cook the food eaten on board the ship, and clean and otherwise maintain the living quarters of the entire crew. The record indicates that the work of each department requires a different and special skill, training, and ability. On the other hand, the interests of the members of all three departments are closely interrelated and, to a large extent, interde- pendent. The coordination of all three departments is necessary for the proper operation of a vessel. The members of each department live, eat, and work on the same ship and under similar conditions. Their hours of work and wage levels are approximately the same. While the members of the deck department have been traditionally bargained for in a separate departmental unit on the Pacific Coast, they have, particularly on the East and Gulf Coasts, been merged in a single unit with the members of all three departments and have been bargained for on that basis. Since, as noted in Section III above, the S. I. U. failed to make any showing of representation among the employees in the engine and stewards' departments and since the N. M. U., the petitioning labor organization, has made a present showing of designation by employees in both groups and seeks to combine the engine and stewards' depart- ments with the deck department, we are of the opinion that under the circumstances of this case the engine and stewards' departments should not be established as separate units. With respect to the unlicensed members of the deck department, in which both the N. M. U. and the S. U. P. have made a showing of representation, we find that they might properly constitute a separate bargaining unit or that they might function as a part of a single unit comprising all three departments. Under these circumstances, we believe that the desires of these employ- ees themselves are the chief factor to be considered in determining whether they shall constitute a separate' unit or become part of the larger unit.8 To ascertain the desires of the deck men we shall direct an election among all the unlicensed members of the deck departments of the off-shore tankers of the Company, excluding all other employees of the Company, to determine whether they desire to be represented by the S. U. P., by the N. M. U., or by neither, for the purposes of collective bargaining. We shall also direct an election among all the remaining members of the unlicensed personnel of the engine and stewards' departments of the off-shore tankers of the Company to determine whether or not they desire to be represented by the N. M. U. for the purposes.of collective bargaining. 8 See Matter of Globe Machine and Stamping Co. and Metal Polishers Union, Local No 3; International Association of Machinists, District No 51; Federal Labor Union 18788, and United Automobile Workers of America, 3 N L R B 294, and subsequent cases 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No final determination of the appropriate unit or units will be made pending the results, of the elections. If a majority of the mem- bers of the unlicensed personnel of the deck departments on board the Company's off-shore tankers choose the S. U. P., they will con- stitute an appropriate unit separate from the remaining members of the unlicensed personnel, comprising the engine and stewards' depart- ments, employed by the Company. If a majority vote for the N. M. U., iyc shall combine the deck men with the latter employees in a single unit. V. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning the representation of the unlicensed personnel of the Company's off-shore tankers can best be resolved by means of elections by secret ballot. In accordance with our usual practice, we shall direct that the employees of the Company eligible to vote in the elections shall be those who were employed by the Company during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to such limitations and additions as are set forth in such Direction of Elections. We shall direct that these elections be held as promptly as is prac- ticable after the date of this Direction under the direction and super- vision of the Regional Director for the Twentieth Region, who shall determine in his discretion the exact time, place, and procedure for posting notices of elections and for balloting, provided, however, that each tanker be posted with a notice of elections, a sample ballot, a list of employees eligible to vote, and a notice of time and place when balloting will be conducted, at least 48 hours in advance of such balloting. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW A question affecting commerce has arisen concerning the repre- sentation of employees of Union Oil Company of California, Los Angeles, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTIONS 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 UNION OIL COMPANY 233 DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Union Oil Company of California, Los Angeles, California, elections by secret ballot shall be conducted as soon as convenient, and beginning as promptly as is practicable after the date of this Direction, in conformity with the rules set forth in Section V above, for the conduct of such elections, under the direction and supervision of the Regional Director for the Twentieth Region, acting in this matter as agent for the National Labor Relations Board,, and subject to Article III, Section 9, of said Rules and Regulations : 1. Among all unlicensed personnel,, of the deck departments of the Company's off-share tankers, who were employed during the pay- roll period immediately preceding the date of this Direction, in- cluding those employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding those who have since quit or been discharged for cause, to determine whether they desire to be represented by National Mari- time Union of America, affiliated with the C. I. 0., or by Sailors Union of the Pacific, affiliated with the S. I. U., for the purposes of collective bargaining, or by neither; and 2. Among all unlicensed personnel, of the engine and stewards' departments of the Company's off-shore tankers, who were employed during the pay-roll period immediately preceding the date of this Direction, including those employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by National Maritime Union of America, affiliated with the C. I. 0., for the purposes of collective bargaining.