Eagle Oil and Refining Co., Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1940

27 N.L.R.B. 1003 (N.L.R.B. 1940)

In the Matter of EAGLE OIL AND REFINING COMPANY, INC. and OIL
INDUSTRY METAL TRADES COUNCIL OF SOUTHERN CALIFORNIA
Case No. R-°061.Decided October 01, 1940
Jurisdiction : oil refining and distributing industry.
Investigation and Certification of Representatives : existence of question : con-
flicting claims of rival representatives ; election necessary.
Unit Appropriate for Collective Bargaining : all employees, excluding painters,
truck drivers, non-working foremen, superintendents, assistant superintendents,
office employees, chemists, and temporary employees.
Mr. P: W. Keen and Mr. Don K. Gault, of Los Angeles, Calif., for
the Company.
Mr. A. H. Peterson, of Los Angeles, Calif., for the Council.'
Mr. J. C. Coulter, of Long Beach, Calif., for Local No. 128.
Mr. Sidney L. Davis, of counsel to the Board.
DECISION
-AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 1, 1940, Oil Industry Metal Trades Council of Southern
California,' affiliated with the American Federation of Labor, herein
called the Council, filed a petition, and on August 10, 1940, an amended
petition, with the Regional Director for the Twenty-first Region (Los
Angeles, California) alleging that a question affecting commerce had
arisen concerning the representation of employees of Eagle Oil and
Refining Company, Inc.,2 Santa .Fe Springs, California, herein called
the Company, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On August 28, 1940, the Na-'
tional Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
1 The Council was incorrectly designated in certain formal papers as Oil Industry Coun-
cil, A. F. of L. Correction n as made at the hearing.
2 The Company was incorrectly designated in certain formal papers as Eagle Oil and
Refining Company Correction was made ai the hearing.
27 N. L R B., No 164
1003
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered an investigation and authorized the Regional Director to con-
duct it and to provide for an appropriate .hearing upon due notice.
On September 4, 1940, the Regional Director issued a notice of hear-
ing, and on September 6, 1940,-an amended notice of hearing, copies
of both of which were duly served upon the Company, the Council,
and Oil Workers International Union, Local No. 128, affiliated with
the Congress of Industrial Organizations, herein called Local No. 128,
a labor organization claiming to represent employees directly affected
by the investigation. Pursuant to the amended notice, a hearing was
held on September 20, 1940, at Los Angeles, California, before David
Sokol, the Trial Examiner duly designated by the Board. The Com-
pany was represented by counsel, and the Council and Local No. 128
by their representatives. All parties participated in the hearing ,and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
During the course of the hearing the'Trial Examiner made several rul-
ings 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.
On October 7, 1940, Truck Drivers Union, Local No. 208 (A. F.
of L.), 'herein called the Truck Drivers Union, lodged with the
Secretary of the Board a "Petition" wherein, inter alia, it asked that
the record be reopened and requested certification as exclusive bar-
gaining representative of the drivers of the Company. For rea-
sons stated in Section V, infra,3 the "Petition" is hereby dismissed.
Upon the' entire record in the case, the Board makes the following:
FINDINGS OF, FACT
1. THE BUSINESS OF THE COMPANY
Eagle Oil and Refining Company, Inc., a California corporation
with its principal office and plant located at Santa Fe Springs, Cali-
fornia, is engaged in refining and distributing petroleum and its by-
products. During the last 2 years the Company purchased raw ma-
terials and equipment valued at approximately $1,770,000 of which
approximately 50 per cent were purchased outside California. During
1939 its sales of petroleum and byproducts amounted to approximately
$2,568,000, of which 10 per cent were sold outside California, and an
additional 5 per cent were sold in California to companies and individ-
uals who in turn sold these products outside California. The Com-
pany admits that it is engaged in interstate commerce within the
meaning of the Act.
3 See tootnote 5
EAGLE OIL AND REFINING COMPANY, INC. 1005
II. THE ORGANIZATIONS INVOLVED
Oil Industry Metal Trades Council of Southern California, affil-
iated with the American Federation of Labor, is a labor organization
composed of 10 local labor organizations also affiliated with the Amer:
ican Federation of Labor. Admitted to membership in one or another
of the locals comprising the Council are all employees of the Com-
pany, excluding non-working foremen, superintendents, assistant
superintendents, office employees, and chemists.
Oil Workers International Union, Local No. 128, is a labor organi-
zation affiliated with the Congress of Industrial Organizations, ad-
mitting to membership the same class of employees as the Council,
but excluding, in addition, painters and truck drivers.
III. THE QUESTION CONCERNING REPRESENTATION
Both the Council and Local No. 128 claim to represent a majority
of the employees concerned. On June 3, 1940, the Council requested
the Company to recognize it as the exclusive representative of its
employees for the purpose of collective bargaining. The Company
refused such recognition because of a similar claim by Local No. 128.
At the hearing there was introduced in evidence a report prepared
by the Regional Director showing that both the Council and Local
No. 128 represented a substantial number of employees in the appro-
priate unit.4
We find that a question has arisen concerning the representation
of employees of the Company.
IN. 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 tends to lead to labor disputes burdening and obstructing com-
merce,and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Council claims that all employees of the Company, excluding
non-working foremen, superintendents, assistant superintendents, of-
"On August 31, 1940 , the Company employed approximately 96 persons, exclusive of
non-working foremen , superintendents , assistant superintendents , office employees, and
chemists . The report of the Regional Director showed that 53 employees had signed cards
designating the Council , and 34 had signed cards designating Local No. 128 , as their
respective collective bargaining representatives.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fice employees, chemists, and temporary employees constitute an ap-
propriate unit. Local No. 128 contends that painters and truck
drivers should also be excluded from the unit alleged by the Council
to be appropriate. The record is not clear as to whether Local No.
128 also desires the exclusion of temporary employees and watchmen.
Painters. The Company's painters are considered part of the sales
department. Except for a few occasions when they have painted
several tanks in the refinery, they do no work for the production
department. Most of them work outside the plant, painting the
pumps and other equipment of gas service stations which use the
products of the Company. They also paint price signs for the sales
department or the service stations. Under the circumstances, we'
shall exclude the painters from the appropriate unit.
Truck Drivers. The Company employs approximately 36 gas and
diesel truck drivers. They work outside the plant and are not inter-
changed with the inside 'production workers. Separate systems of
seniority prevail for the truck drivers and for the inside production
workers.
In February 1939, at a meeting with representatives of the Com-
pany, representatives of Local No. 128 and of the Truck Drivers
Union, Local No. 208 (A. F. of L.), stated that both organizations
had an understanding that the truck drivers of the Company would
join the latter organization, and the other employees would join
Local No. 128. Therefore Local No. 128 did not attempt to organize
the truck drivers. About January 1940 the Truck Drivers Union
became affiliated with the Council, and its representative stated at the
hearing that it had relinquished its claim as a separate organization
to represent the truck drivers of the Company.' Except for the
attempt of the Council on June 3, 1940, to bargain for all employees
of the Company, including truck drivers, there has been no history
of collective bargaining for all employees of the Company, including
truck drivers, as a unit.
Under the circumstances, we are of the opinion that the truck
6 As set forth above, on October 7, 1940 , the Truck Drivers Union lodged with the Secre-
tary of the Board a "Petition " wherein , inter alia, it asked that the record be reopened
and requested certification as exclusive bargaining representative for the truck drivers.
The Truck Drivers Union stated therein that it had at no time authorized the Council to
represent.the employees of the Company who were members of the Truck Drivers Union.
Attached to the "Petition " was an affidavit of the representative of the Truck Drivers
Union that he had erred when lie testified at the hearing that the Truck Drivers Union
desired to be represented by the Council . Since we are excluding the truck drivers from
the unit found to be appropriate herein , this Decision and Direction of Election is not
prejudicial to the Truck Drivers Union We shall , therefore , dismiss this "Petition" with-
out prejudice to the right of any party herein to file a petition to represent the truck
drivers of the Company , in accordance with National Labor Relations Board Rules and
Regulations-Series 2, as amended.
EAGLE OIL AND REFINING COMPANY, INC. • 1007
drivers occupy a status differing from that of the other employees,
and should be excluded from the appropriate unit.'
Temporary employees. The Company occasionally employs casual
laborers to do yard work. The number of such persons hired and
the duration of their employment does not appear in the record. The
Cot'incil contends that they are temporary employees and desires their
exclusion. The position of Local No. 128 is not made clear in the
record. Under the circumstances, we shall exclude from the appro-
priate unit those employees hired by the Company on a temporary
basis.
Wrttclzmen. The Company employs 2 watchmen whomn the Council
wishes included in the unit. Local No. 128 makes no express ob-
jection to their inclusion. We shall therefore include watchmen in
the appropriate unit.
We find that all employees of the Company, excluding painters,
truck drivers, non-working foremen, superintendents, assistant super-
intendents, office employees, chemists, and temporary employees, con-
stitute a unit appropriate for the purposes of collective bargaining
and that said unit will insure to employees of the Company the full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
• We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. We shall
use as the date for ,determining eligibility of employees to vote the
pay roll date immediately preceding the date of this Direction of
Election.
On 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 Eagle Oil and Refining Company, Inc.,
Santa Fe Springs, California, 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, excluding painters, truck drivers,
non-working foremen, superintendents, assistant superintendents, of-
6 See Matter of Armour d Company and Amalgamated Meat Cutters and Butcher Work-
men of North America, Local No 235, 10 N. L. R B 912; Matter of Swift & Co et at and
Committee for Industrial Organization on behalf of the employees of Swift d Co, et at,
11 N. L R. B. 950.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fice employees, chemists, and temporary employees, constitute a unit
appropriate for the purposes of collective bargaining.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by'Section 9 (c) of the National Labor Rela-
tions Act, 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 bargaining
with Eagle Oil and Refining Company, Inc., Santa Fe Springs, Cali-
fornia, - 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, under the direction and supervision of the Regional Di-
rector for the Twenty-first 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, among all the employees of
the Company who were employed during the pay-roll' period im-
mediately preceding the date of this Direction of Election, including
those employees who did not work during such pay-roll period be-
cause they were ill or on vacation, and employees who were then or
have since been temporarily laid off, but excluding painters, truck
drivers, non-working foremen, superintendents, assistant superintend=
ents, office employees, chemists, temporary employees, and employees
who have since quit or been discharged for cause, to determine
whether they desire to be represented by Oil Industry Metal Trades
Council of Southern California, affiliated with the American Federa-
tion of Labor, or by Oil Workers International Union, Local No. 128,
affiliated with the Congress of Industrial Organizations, for the pur-
poses of collective bargaining, or by neither.