Gulf Oil Corp.

National Labor Relations Board - Board Decisions

Nov 17, 1941

36 N.L.R.B. 1003 (N.L.R.B. 1941)

In the Matter of GULF OIL CORPORATION, MARINE DEPARTMENT and
NATIONAL MARITIME UNION, C. I. O.
Case No. R-3035.Decided November 17, 1941
Jurisdiction : water transportation industry.
Investigation and Certification , of Representatives : existence of question : re-.
fusal of Company to negotiate with either of-two unions pending determination
of representative by Board ; contract orally extended pending execution of
new agreement and not clearly covering vessels involved held no bar' to elec-
tion ; union not indicating desire to participate; placed on ballot subject to
right to withdraw upon request ; election necessary.
Unit Appropriate for Collective Bargaining : all unlicensed personnel of two
shallow draft vessels held appropriate notwithstanding request of rival union
for a unit composed of all employees on the vessels.
Mr. Clarence S. T. Folsom, of New York City, for the Company.
Mr. Jack Lawrenson, of New York City, for the N. M. U.
Mr. Louis Ziegler, of New York City, for the I. L. A.
Mr. 'William H. Bartley, of counsel to'the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 30, 1941, the National Maritime Union, affiliated with the
Congress, of Industrial Organizations, herein called the N. M. U., filed
with the Regional Director for the Eighth Region (Cleveland, Ohio) a
petition and on August 4, 1941, an amended petition, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Gulf Oil Corporation, Marine Department,' New
York City, herein called the Company, and requesting an -investiga-
tion and certification of representatives pursuant to Section 9 (c) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
On September 13, 1941, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act,. and
IL The Company was erroneously designated as the Gulf Refining Company in the original
petition. This was corrected at the hearing upon motion of the petitioner.
36 N. L. R. B., No. 206.
1003
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 2, as amended, ordered an investigation and au-
thorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On September 16, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
N. M. U., and United Marine Division, Local 333, International
Longshoremen's Association (A. F. of L.), herein called the I. L. A.,
a labor organization directly affected by this proceeding. Pursuant
to notice, a hearing was held on September 22, 1941, at Toledo, Ohio,
before Max W. Johnstone, the Trial Examiner duly designated by
the Chief Trial Examiner. The Company, the N. M. U., and the
I. L. A. were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties. During the course of the hearing, the Trial Examiner,
made rulings on motions and on objections to the admission of evi-
dence. 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 10, 1941, the Company, the N. M. U., the I. L. A., and
the Trial Examiner, entered into a stipulation correcting certain
errors in the transcript of testimony. The Board hereby orders that
the stipulation be made a part of the record, and that the transcript
be corrected in accordance with the stipulation.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Gulf Oil Corporation is a Pennsylvania, corporation, engaged in_
all branches of the petroleum industry. In connection with its
business, the Company operates 21 shallow-draft vessels. We are
concerned herein with two of these shallow-draft vessels, the Regent
and the Paratex, which operate, for the most part, in the Great
Lakes. The remaining shallow-draft vessels operate in New York
City harbor and vicinity. During each shipping season, the Regent.
and Paratex carry. cargoes valued at approximately $100,000. The
Company admits that it is engaged in commerce within the meaning.
of the Act. .
We find that the Company is engaged in trade, traffic, transporta-
tion, and commerce among the several States, and that the employees
on the Regent and the Paratex are directly engaged in such trade,
traffic, transportation, and commerce.
GULF OIL CORPORATION 1005
IT. THE ORGANIZATIONS INVOLVED
National Maritime Union is a labor organization affiliated with
the Congress of Industrial Organizations, admitting to membership
employees of the Company.
United Marine Division, Local 333, International Longshoremen's
Association, is a labor -organization affiliated with the American
Federation of Labor, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to recognze the N. M. U. as exclusive
bargaining representative of the unlicensed personnel on the Regent
and Paratex unless it is certified by the Board.
The I. L. A. contends that it has a contract with the Company which,
constitutes a bar to this proceeding. The N. M. U. denies that the
contract is in existence . This contract was executed on May 23, 1938,
and, by its terms, expired on July 7, 1939. The I. L. A. claims that
it was . then verbally renewed and continued in effect pending the
negotiation of another contract, and that' negotiations looking toward
the execution of a new contract have been conducted from time to time
since 1939. Since the contract has been continued, if at all, merely by
virtue of an oral understanding pending the execution of another
agreement,2 we find that it does not constitute a bar to a present
determination of representatives.
The record shows that the N. M. U. represents a substantial number
of employees in the unit hereinafter found appropriate.3
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 appropriate unit should consist of
all unlicensed personnel on the Regent and the Paratex. The I. L. A.
asserts that the unit should consist of all employees on all shallow-
draft vessels of the Company. In support of its contention, the
I. L. A. points to the contract it executed with the Company on May
2 In' addition , as set forth in Section V below, it is questionable whether the contract
covers employees on the Regent and Paratex.
3 The N. M. U. introduced in evidence a petition dated August 31, 1941, signed by 20
persons who the Company admits constituted the entire unlicensed personnel of the
Regent and the Paratex on that date . The petition demanded that the Company negotiate
with the N. M. U. as representative of the employees who signed the petition. The I. L. A.
admitted during the hearing that it did not have any members among the unlicensed
'personnel of the Regent or"Paratex.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
23, 1938. This contract provides that "the employees of the Employer
engaged in the New York Harbor and vicinity constitute an appropri-
ate unit for collective bargaining purposes." The N. M. U. argues
that the contract covers only the 19 shallow-draft vessels of the Coin-
pany which operate in "the New York harbor and vicinity" and not
the Regent and Paratex which operate mainly on the Great Lakes.
The record indicates that the Regent and Paratex operate on the Great
Lakes from 8 to 10 months of the year. It would appear, therefore,
that they do not come within the scope of the contract.' In any event,
the contract is not sufficiently clear for us to attach to it any weight
in the determination of the appropriate unit. In the absence of any
conclusive bargaining history, we see no reason to deny separate repre-
sentation to the unlicensed personnel. on the Regent and the Paratex.
We find, accordingly, that the unlicensed personnel of the Regent
and the Paratex constitute 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 will effectuate the policies of the
Act.
V. TILE DETERMINATION. OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot.
The record does not indicate whether the I. L. A. desires to partici-
pate in an election restricted to the unlicensed personel of the Regent
and Paratex. Under the circumstances herein presented, however,
we shall direct that the names of both organizations appear on the
ballots to be used in the election. If the I. L. A. does not desire to'
participate in the election, its name will be omitted from the ballot
upon request to that effect filed by it with the Regional Director for
the Eighth Region not more than five (5) days after the date of this
Decision and Direction of Election.
In accordance with our usual practice, we shall direct that those
eligible to vote in the election shall be the employees in the appro-
priate unit who were employed by the Company during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the additions and limitations set forth in the
Direction.
'The record does indicate that either the Regent or Pare tear or both are sent to New
York harbor each year for winter operations . It is questionable whether because of this
short stay in the New York harbor the unlicensed personnel of the Regent and Paratew
could be classified as "employees * * * engaged in the New York harbor and
vicinity."
GULF OIL CORPORATION 1007
We shall direct that this election 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 Eighth Region, -who shall
determine in his discretion the exact time, place, and procedure for
posting notices of election and for balloting on each vessel, provided,
however, that each vessel be posted with a notice of election, 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 said balloting.
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 Gulf Oil Corporation, Marine Department,
New York City, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
2. All unlicensed personnel employed by the Company on the
Regent and the Paratex constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of. Section 9 (b)
of the 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
At, 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 bargaining-
with Gulf Oil Corporation, Marine Department, New York City, an
election by secret ballot shall be conducted as soon as convenient, and
beginning as promptly as is practicable after the date of this Direc-
tion in conformity with the rules set forth in Section V above, for the
conduct of such election, under the direction and supervision of the
Regional Director for the Eighth -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 ^ unlicensed
personnel employed by the Company on the Regent and the Paratex
during the pay-roll period immediately preceding the, date of this
Direction, including employees who did not work during said pay-roll
period because they were ill or on vacation, or in the active military
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, C. I. 0., by United Marine Division, Local 333, I. L. A.,
(A. F. of L.), for the purposes of collective bargaining, or by neither.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.