Esso Standard Oil

National Labor Relations Board - Board Decisions

Aug 28, 1953

106 N.L.R.B. 1081 (N.L.R.B. 1953)

ESSO STANDARD OIL, LOUISIANA DIVISION 1081
bar in order that the petitioning Union can obtain an immediate
election rather than await the contract ' s annual renewal date.
The Petitioner seeks to avoid the contract -bar rule without
even so much as pointing to any specific defect in the con-
tract . In our review of the contract , however , we have dis-
covered a possible deficiency in the language of the union-shop
clause; specifically , it does not , in explicit terms, grant
all employees who were not union members when the contract
was written the 30-day statutory period in which to join. It
now appears , upon remand , that there were no nonmembers
when the contract was written , and therefore, the deficiency
is a purely academic one.
But we need not in this type of proceeding determine the
validity of the contract with the same judicial preciseness
as if this were the case of an employee claiming that he had
not been accorded his statutory rights under the union-shop
clause . We need only decide that a petitioner -- seeking to
disturb a peaceful and harmonious relationship under an
existing contract which the employer and the contracting
union are living under in good faith--should not be permitted
to circumvent the operation of our contract-bar rule on this
technical and legalistic ground.
Accordingly , we find that the Intervenor ' s current contract
constitutes a bar to a present determination of representa-
tives .6 We shall therefore dismiss the petition.
[The Board dismissed the petition.]
Members Murdock and Rodgers took no part inthe considera-
tion of the above Decision and Order.
6 To the extent that our decision herein is inconsistent with the holding in Hess , Goldsmith
and Co., Atwater Division , 101 NLRB 1009, that decision is hereby overruled.
ESSO STANDARD OIL, LOUISIANA DIVISION and UNITED
ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE
PLUMBING & PIPE FITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL, Petitoner . Case No. 15-RC-
958. August 28, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 ( c) of the National
Labor Relations Act, a hearing was held before William W.
Fox, hearing officer . The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.
106 NLRB No. 169
1 082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case , the Board finds:
1. The Employer 1 is engaged in commerce within the
meaning of the Act.
2. The labor organizations2 involved claim to represent
certain employees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act,
for the following reasons:
The Petitioner seeks to sever the Employer ' s 99 welders 3
from the existing production and maintenance unit ." Both the
Employer and the IIWA contend that the unit sought by the
Petitioner is inappropriate . They argue that collective bar-
gaining has been conducted successfully on the basis of the
current unit , that the welders fail to satisfy the requirements
of craftsmen , and that because of their work relationships
they are not severable from the overall unit and especially
from the burners.
The welders are supervised by first-line foremen and area
foremen, both of whom also supervise other craftsmen. Seven
welders burn and weld using acetylene gas welding equipment,
but because of the existence of a separate classification of
burners the remaining 92 welders use only electric welding
equipment and do no burning . The welders form a pool from
which they are assigned to work with different crafts. About
70 percent of their welding is on pipe connections , 10 percent
on steel plate , 10 percent on structural steel, and the remainder
on a variety of work including some build - up welding for
remachining . Moreover , the welders do no work traditionally
performed by other crafts , and each welder , whether trained
by the Employer or not, is required to pass an examination
before he is so classified. Although the welders do not employ
all the skills of their craft they are capable of so doing and
they exercise a sufficient number of those skills in non-
assembly line operations to qualify as welder craftsmen.'
However, as in most industries where the welding craft is
employed, there is a high integration between burning and
welding. The two classifications often work together and at
other times the work of the burner almost always precedes
that of the welder . While there is no written agreement on the
'The Employer ' s name appears as amended at the hearing
2 The Independent Industrial Workers Association and the International Brotherhood of
Electrical Workers, Local 767, AFL, herein called the IIWA and the IBEW, respectively,
were permitted to intervene on the basis of their contract interests . The IBEW apparently
intervened to protect its interest in the electricians , whom it currently represents
3 It also indicated that it wanted to sever the welders temporarily elevated to the position
of welder inspector . However , there were none so situated at the time of the hearing.
4 Except for a unit of guards and another unit of employees in electrical classifications and
their helpers all other production and maintenance employees are represented by the IIWA
5W C. Hamilton and Sons , 104 NLRB 627; Sinclair Rubber, Inc ., 96 NLRB 220, Texas
Foundries , Inc., 83 NLRB 679.
ESSO STANDARD OIL, LOUISIANA DIVISION 1083
subject of promotional lines, it has been the Employer's policy
in the 6 years preceding the hearing to give first consideration
to burners when filling the position of welder , and the Em-
ployer has given 46 burners 4 months of school training in
the welding craft . The welder' s acetylene torch and the
burner ' s torch are similar instruments , the variance being
only in the head and type of gas used . The function of the
burner is to cut metal while the welder " sews" it up. These
two operations are usually performed by the same person,
but due to the size of the Employer' s business it has found it
advantageous to divide the work. The Petitioner argues that
this has resulted in a special situation wherein the welders
and burners have different interests and the welders , at least,
should be afforded separate representation . However, because
of the integration of their work , the similarity of tools, and
their relationship at this establishment , the Board finds that
the appropriate grouping for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act includes
all welders and burners at the Employer' s enterprise in
Baton Rouge , Louisiana , but excludes all other employees,
executives , and supervisors as defined in the Act.'
Accordingly, apart from other considerations , as the Peti-
tioner took the position both at the hearing and in its brief
that it did not desire to represent the burners along with the
welders, the Board shall dismiss the petition.
[The Board dismissed the petition.]
Member Peterson concurring:
The employees sought herein by the Petitioner have been
represented by the Intervenor in a production and maintenance
unit for about 16 years. I find it unnecessary to pass upon
whether the burners properly belong in the same unit with the
welders because in any event , as there has been a substantial
bargaining history on an overall basis and other factors
which would warrant severance from the established unit
are absent ,7 I would dismiss the instant petition . Accordingly,
I agree with the conclusion of my colleagues not to direct an
election in this case.
Members Murdock and Rodgers took no part in the considera-
tion of the above Decision and Order.
6Gabriel Steel Company, 80 NLRB 1361; Arthur Tickle Engineering Works, Inc , 64
NLRB 972.
7See my dissenting opinion in W. C Hamilton and Sons, footnote 5, supra