American Oil Co.

National Labor Relations Board - Board Decisions

May 14, 1938

7 N.L.R.B. 210 (N.L.R.B. 1938)

In the Matter of AMERICAN OIL COMPANY and OIL WORKERS'
INTERNATIONAL UNION
Case No. R-703.-Decided May 14, 1938
Oil Distributing Industry-Investigation of Representatives: controversy con-
cerning representation of employees: controversy concerning appropriate unit;
employer's refusal to grant recognition of union ; strike--Unit Appropriate for
Collective Bargaining: all employees, excluding clerical and supervisory em-
ployees ; history of collective bargaining relations with employer and in in-
dustry ; desires of employees ; contention of company that differentiation with
respect to skill, wages, location of work, and working hours requires four
separate units not upheld-Representatives: eligibility to participate in choice:
employees hired during strike to participate in, where all striking employees
were reinstated after strike-Election Ordered
Mr. Samuel L. Spencer, for the Board.
Mr. C. H. Thompson, of Baltimore, Md., for the Company.
Mr. E. C. Conarty, of Washington, D. C. for the Union.
Mr. Sumner Marcus, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 24, 1937, Oil Workers' International Union, Local
No. 403,1 herein called the Union, filed with the Regional Director
for the Fifth Region (Baltimore, Maryland) a petition alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of American Oil Company, South Washington,
Virginia, and Rosslyn, Virginia, herein called the Company, and
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On December 30, 1937, 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
'Although the petition was signed by the Oil Workers' International Union, it is clear
both from the petition itself and from the evidence adduced at the hearing that the
petition was filed in behalf of Oil Workers' International Union, Local No. 403.
210
DECISIONS AND ORDERS 211
Labor Relations Board Rules and Regulations- Series 1, as amended,
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due no-
tice. The Board further ordered, pursuant to Article III, Section
10 (c) (2), of the Rules and Regulations, that this proceeding be
consolidated with another proceeding based upon a petition filed by
the Oil Workers' International Union requesting an investigation
and certification of representatives of employees of the Company at
its Curtis Bay, Maryland, plant. On February 18, 1938, the Board
further ordered that the two proceedings be consolidated with a case
based on charges filed by the Oil Workers' International Union
against the Company alleging that the Company had engaged in
unfair labor practices at its Curtis Bay, Maryland, plant, within
the meaning of the Act. On March 1, 1938, the Board ordered that
the present proceeding be severed from the other two cases and be
continued as a separate proceeding.
On March 3, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and upon the
Union. Pursuant to the notice, a hearing was held on March 12,
1938, at Washington, D. C., before Hugh C. McCarthy, the Trial Ex-
aminer duly designated by the Board. The Board and the Company
were represented by counsel; the Union was represented by its rep-
resentative; and all participated in the hearing. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the com-
mencement of the hearing the Company filed an answer to the peti-
tion. During the course of the hearing the Trial Examiner made sev-
eral 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
American Oil Company, a Maryland corporation, is wholly owned
by Pan American Petroleum & Transport Company, and is engaged
in the distribution and, marketing of petroleum products for the latter
company. American Oil Company maintains two bulk storage plants
at South Washington, Virginia, and Rosslyn, Virginia. It also main-
tains bulk storage plants elsewhere, but this proceeding concerns
only the two plants at South Washington and Rosslyn, Virginia.
From these two plants, the Company's trucks distribute its products
212 NATIONAL LABOR RELATIONS BOARD
to customers in adjacent territory in Virginia, Maryland, and the
District of Columbia. Substantially all the Company's products are
shipped to its two plants by tank car from Curtis Bay, Maryland, to
which point they have been shipped previously by tank steamers
from refineries in Texas. In 1937, the Company sold and distributed
458,310 barrels of petroleum products through its two plants. The
Company admitted that it was engaged in interstate commerce.
H. THE ORGANIZATION INVOLVED
Oil Workers' International Union, Local No. 403, is a labor or-
ganization affiliated with the Committee for Industrial Organiza-
tion, admitting to its membership all employees of the Company,
excluding clerical and supervisory employees.
III. THE QUESTION CONCERNING REPRESENTATION
The Union was organized in the Company's plants about May 18,
1937. Representatives of the Union and the Company met during
September, October, and November, 19371 to discuss wages, hours,
and other working conditions in the Company's plants. The fail-
ure by the Company's executive committee to approve a tentative
verbal agreement resulted in a strike on November 9, 1937. The
strike was called off and all the men returned to work on November
17, 1937. While the evidence was conflicting as to whether the Com-
pany had agreed to negotiate with the Union within a short time
after its members returned to work, it is clearly established that on
December 15, 1937, the Company informed the Union that it would
not negotiate further with it. At the hearing, counsel for the Com-
pany stated that the Company was willing to deal with the represen-
tatives of its employees, but that it was not in a position to ascertain
authoritatively who such representatives were.
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
1 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
the District of Columbia, and tends to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
DECISIONS AND ORDERS
V. THE APPROPRIATE UNIT
213
At the time of the hearing there were 95 employees in the Com-
pany's plants. Of these employees, seven are clerks, two are super-
intendents, and one is a fuel oil dispatcher, none of whom are eligible
to membership in the Union. The remaining number of employees
consists of 48 truck drivers who transport the Company's products
from its plants to its customers; 11 pump and tank mechanics, whose
chief duties are the installation, removal, repair, and maintenance of
pump and tank' equipment installed upon the properties of the
Company's customers and who also perform repair work on all the
equipment at the plants; 11 pump and tank laborers who are un-
skilled and work on an hourly basis; and 15 laborers who work
solely at the Company's plants in connection with the receipt, stor-
age, and shipping of petroleum products.
The evidence shows that the two plants are but 3 miles apart and
perform identical functions. The Company and the Union agree
that the employees of both plants should be included in whatever
unit or units the Board determines to be appropriate.
The Company contended in its answer that each of the four above-
mentioned groups constitutes a unit appropriate for the purposes of
collective bargaining on the ground that each group is differentiated
from each of the others with respect to skill, the amount and basis
of wages, the location of work, and working hours. The Union con-
tended that all the employees of the Company's plants, excluding
clerical and supervisory employees and fuel oil dispatchers, constitute
an appropriate unit.
The Company did not introduce evidence in support of its conten-
tion. The Union, on the other hand, introduced evidence that all the
employees came into contact with each other in the performance of
their duties; that the 165 contracts which the Oil Workers' Inter-
national Union had executed with other oil companies were made on
behalf of all employees, excluding clerical and supervisory employ-
ees ; and that the Company had entered into similar contracts with
the Oil Workers' International Union in respect to the employees at
the Company's plants at Boston, Massachusetts, and at Hartford,
Connecticut. Furthermore,' members of the Union who represented
the truck drivers, the pump and tank mechanics, and the laborers
testified that it was the desire of the members of these groups that
they all be included in one unit for the purposes of collective bargain-
ing.
We find that all the employees of the Company at its plants at
South Washington, Virginia, and at Rosslyn, Virginia, excluding
clerical and supervisory employees and fuel oil dispatchers, con-
214 NATIONAL LABOR RELATIONS BOARD
stitute a unit appropriate for the purpose of collective bargaining
and that said unit will insure to the employees of the Company the
full benefit of their right to self-organization and to collective bar-
gaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The Union , both in its petition , and at - the hearing , claimed to
represent a majority of the employees of the Company within the
unit which we have found to be appropriate . The only evidence,
however, which it introduced in support of its contention was the
oral testimony of two of its officers. We find that the question which
has arisen concerning the representation of the Company's em-
ployees can best be resolved by the holding of an election by secret
ballot.
The Company and the Union agreed, subject to one qualification,
that the Company's pay roll of March 1, 1938, should be used in de-
termining eligibility to vote in the election . The Union contended
that there should be excluded from this list all persons who were
hired by the Company during the strike from November 9 to Novem-
ber 17, 1937. The Union conceded, however, that the Company took
back all striking employees who applied for their positions after the
strike was over. Under these circumstances , we can see no reason
why the employees engaged by the Company during as well as after
the strike should not be eligible to vote. Accordingly, eligibility to
vote in the election will be determined by reference to the pay roll of
the Company for March 1, 1938, excluding those employees who have
since quit or have been discharged for cause.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen- concerning the repre-'
sentation of employees of American Oil Company, South Washing-
ton, Virginia, and Rosslyn, Virginia, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the National Labor Relations Act.
2. All the employees of the Company at its plants at South Wash-
ington, Virginia, and Rosslyn, Virginia, excluding clerical and super-
visory employees and fuel oil dispatchers , constitute a unit appro-
priate for the purposes of collective bargaining , within the meaning
of Section 9 (b) of the National Labor Relations Act.
DECISIONS AND ORDERS
DIRECTION OF ELECTION
215
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 8, of National Labor
Relations -Board 'Rules and Regulations-Series 1, as amended, it is
hereby
DIRECTED that,,as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with American
Oil Company, South Washington, Virginia, and Rosslyn, Virginia,
an election ,.by secret ballot shall be conducted within fifteen (15)
days from the date of this Direction, under the direction and super-
vision of,the Regional Director for the Fifth Region, acting in this
matter as the agent for the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations,
among all the employees of the Company at its plants at South
'Washington, Virginia, and Rosslyn, Virginia, who were on the
Company's pay roll for March 1, 1938, excluding clerical and super-
visory employees, fuel oil dispatchers, and those who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented by Oil Workers' International Union, Local No.
403, for the purposes of collective bargaining.
11)6791-38-vo1 vii-15