Mexican Petroleum Corp.

National Labor Relations Board - Board Decisions

Jul 25, 1940

25 N.L.R.B. 862 (N.L.R.B. 1940)

In the Matter of MEXICAN PETROLEUnI CORPORATION and MEXPET-
AMERICAN OIL MARINE EMPLOYEES ASSOCIATION OF NEW JERSEY,
INC.
Case No. R-1665-Decided July 25, 1940
Jurisdiction : water transportation industry
Investigation and Certification of Representatives : existence of question where
employer refuses to accord full recognition to union and requests that certifi-
cation be obtained : election necessary
Unit Appropriate for Collective Bargaining : all marine employees of the Com-
pany employed on the vessels located at Carteret, New Jersey, including
captains, mates, pilots, deck hands, laborers, stewards, stewardesses, firemen,
engineers, and oilers, and including the dispatcher
Mr. D. R. Dimick, for the Board.
Kellogg, Emery cf3 Ines-Brown, by Mr. Thomas E. Monaghan, of
New York City, for the Company.
Mr. John J. Molson., Jr. of Linden, N. J., for the Association.
Mr. William L. Standard, by Mr. Max Lustiq, of New York City,
for the N. M. U.
Miss Charlotte Anschuetz, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEM ENT OF THE CASE
On July 24, 1939, Mexpet-American Oil Marine Employees Associ-
ation of New Jersey, Inc., herein called the Association, filed with
the 'Regional Director for the Second Region (New York City), a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Mexican Petroleum Cor-
poration,' Portland, Maine, herein called the Company, and/or The
American Oil Company,2 Baltimore, Maryland, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations -Act, 49 Stat. 449, herein called
'Designated in the Oi der directing investigation and hearing as "Mexican Petroleum
Corp "
2 Designated in the Order directing investigation and hearing as "American Oil
Company- "
25 N. L B B, No 97
862
MEXICAN PETROLEUM CORPORATION 863
the Act. On November 1, 1939, 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, ordered an investigation and au-
thorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On November 13, 1939, the Regional Director issued a notice of
hearing , copies of which were duly served upon the Company, The
American Oil Company, the Association, and Inland Boatmen's Divi-
sion, National Maritime Union of America, affiliated with the C. I. 0.,
herein called the N. Al. U., a labor organization claiming to represent
employees directly affected by the investigation.
Pursuant to notice, a hearing was held on December 18 and 19,
1939, at New York City, before Peter F. Ward, the Trial Examiner
duly designated by the Board. The Board, the Company, the Asso-
ciai ion and the N. Al. U. were represented by counsel and 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 commencement of the hearing,
counsel for the Company moved to strike the words "and/or Ameri-
can Oil Commpany" from the title of all the proceedings. The Trial
Examiner reserved ruling on this motion. The motion is hereby
granted. At the close of the Association's case, counsel for the
N. M. U. moved to dismiss the proceeding on the ground that no
question concerning representation had been shown, and that the
Association was not a bona fide labor organization within the mean-
ing of the Act. The Trial Examiner reserved ruling on these
motions and they are hereby denied. During the course of the hear-
ing, the Trial Examiner made several rulings on other 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
Mexican Petroleum Corporation , a Maine corporation with its
principal office at Portland, Maine, and an office in New York City,
is a wholly owned subsidiary of The American Oil Company, which
in turn is a wholly owned subsidiary of Pan-American Petroleum
& Transport Company. The Company is engaged in the manufacture,
sale, and distribution of heavy fuel oil, asphalt , and related products.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is authorized to do business in New Jersey, New York, Louisiana,
Connecticut, Maryland, Florida, Massachusetts, New Hampshire,
Pennsylvania, Rhode Island, Texas, Vermont, Virginia, and Maine,
and maintains storage facilities and disposes of its products in these
and other States. During 1938 over 50 per cent of the finished prod-
ucts of the Company, valued at approximately $15,000,000, were dis-
tributed in States other than those in which they were manufactured
or purchased.
The Company owns and operates 13 vessels, consisting of boats,
tugs, and barges, located one each in Baltimore, Maryland; Chelsea,
Massachusetts; Galveston, Texas; Jacksonville, Florida; Providence,
Rhode Island; Norfolk, Virginia; two in Tampa, Florida; and 5 in
Carteret, New Jersey. The present proceeding concerns the five ves-
sels located at Carteret, consisting of the barges Carteret and P6tnamco,
barges #3 and #24, and a tug, Mexpet. These five vessels, which ply
in New York Harbor and adjoining inland -waters, transported ap-
proximately 411,220 tons of heavy fuel oil, light oils, and gasolines
during 1938.
We find that the Company is engaged in traffic, commerce , and trans-
portation among the several States, and that the marine employees
of the Company are directly engaged in such traffic, commerce, and
transportation.
II. THE ORGANIZATIONS INVOLVED
Mexpet-American Oil Marine Employees Association of New Jer-
sey, Inc., is a labor organization admitting to membership employees
of the Company and of The American Oil Company, including cap-
tains, mates, pilots, deck hands, laborers, stewards, stewardesses, fire-
nen, engineers , and oilers.
Inland Boatmen's Division, National Maritime Union of America,
is a labor organization affiliated with the Congress of Industrial
Organizations, admitting to membership all unlicensed seamen em-
ployed on inland waters. About March 1939, Inland Boatmen's Divi-
sion became the successor to Inland Boatmen's Union, Atlantic and
Gulf District , C. I. 0., herein called the I. B. U.
III. THE QUESTION CONCERNING REPRESENTATION
On June 28, 1939, the secretary of the Association addressed a letter
to the Company, informing it, among other things, that a group of
employees had incorporated the Association in order to bargain
collectively with the Company, and asking the Company to cooperate
in bringing about a successful understanding. A membership list
accon-ipanied the letter. On July 5, 1939, A. M. McKean, chief engi-
MEXICAN PETROLEUM CORPORATION 865
9ieer of the Company, replied that since the Board in January 1938
had certified the I. B. U. as sole bargaining' representative 3 of the
licensed and unlicensed' personnel aboard vessels of the Company,
the Company would not bargain with any other representative unless
such other representative was certified by the Board.
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 Association contends that the appropriate unit embraces all
licensed and unlicensed marine employees of the Company on the five
vessels at Carteret, including captains, mates, pilots, deck hands,
laborers, stewards , stewardesses , firemen, engineers , and oilers. The
Association contends also for the inclusion of Alfred E. Bruns, known
as the dispatcher, who, although he is not a marine employee, is closely
associated with the five vessels since he plans and supervises their
schedules and work. The Company agrees with the Association as
to the appropriate unit.
The N. M. U. takes the position that licensed marine employees do
not constitute an appropriate unit together with unlicensed marine
employees. It does not clearly specify its position, but suggests that
all the unlicensed personnel employed on all . 13 vessels of the Com-
pany would be the only appropriate unit. Neither the N. M. U. nor
the Association showed that it had sought to organize or that it had
as members any employees of the Company other than those employed
at Carteret. The N. M. U. offered no substantial evidence of mem-
bership among any of the employees of the Company at Carteret.
The history of organization among the Company's employees shows
that the licensed and unlicensed employees at Carteret have always
belonged to the same union. Before 1937, all of the men in the
appropriate unit urged by the Associatioli; or a majority of them,
belonged to the Associated Marine Workers, in unaffiliated labor
organization. In 1937 the Associated Marine Workers became an
autonomous local of the I. B. U., with instructions from ,the I. B. U.,
however, to separate the licensed and' unlicensed into two locals.
There is no showing that such separation was- made. In January
1938, as already stated, the I. B. U. was certified as the collective bar-
gaining agency for both licensed and unlicensed employees of the
Company at Carteret after a consent election participated in by the
" Following a consent election between Harbor Towboatmen ' s UJnion , 933-3 of the I L A.
(A. F of L ) and the I B. U
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees alleged by the Association in this proceeding to consti-
tute an appropriate unit .4
In view of this history of collective bargaining, and since no other
labor organization has a substantial membership among the employ-
ees involved, we hold the unit claimed by the Association to be
appropriate.5
We find that all marine employees of the Company on the vessels
located at Carteret, New Jersey, including captains, mates, pilots, deck
hands, laborers, stewards, stewardesses, firemen, engineers, and oilers,
and including the dispatcher, 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 effectuate the
policies of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Association claimed 31 members in the unit of approximately
33 employees which we have found to be appropriate, and offered in
evidence in support of its claim, 31 application cards, and proof of
payment of monthly dues. We find that the question concerning
representation can best be, resolved by means of an election by secret,
ballot.6 The N. M. U. did not show that it had been authorized to
represent a substantial number of employees in its proposed unit and
did not indicate that it desired to participate in an election among the
employees in the unit that we have found appropriate. We shall there-
fore exclude it from the ballot.
We shall direct, in accordance with our usual practice, that all em-
ployees within the appropriate unit who were employed by the Com-
pany during the pay-roll period immediately preceding the date of
the Direction of Election, including employees who did not work
* The history of collective barcaimng prior to 1938 is not disclosed by the record In
March 1938 the I B U. proposed that the Company enter into a contract covering em-
ployees on non-propelled oil barges This contract was never signed In March 1939 a
contract similarly covering employees on non-propelled oil barges was submitted by the
N M. U but was never signed
5 Matter of The Riverside and Fort Lee Ferry Company and United Marine Dense ion,
Local 333, I L A, A F of L, 23 N L R B 493 ; Matter of Federal Shipbuilding and
Dry Pock Company and Industrial Union of Marine d Shipbuilding Workers of America,
Local No 16, N L R B 313; Matter of The Texas Company and American Radio Tele-
graphists Association , 10 N L R. B. 824.
See Matter of The Cudahy Packing Company and United Packinghouse Workeis of
America, Local No 21, of the Packinghouse Workers Organizing Committee, affiliated with
the Congress of Industrial organizations, 13 N L R B 526; Matter of Armour it
Company and United Packinghouse Workers, Local Industrial Union No 13 of Packinghouse
W orl ers organizing Committee, Affiliated with C 1 0 , 13 N L. R B 567 ; Matter of
Alpena Garment Company , Inc and International Ladies Garment 11 'orters Union, 13
N. L. R B 720.
MEXICAN PETROLEUM CORPORATION 867
during such pay-roll period because they were ill or on vacation, and
employees who were then or have since been temporarily laid off, but
excluding those who have since quit or been discharged for cause, shall
be eligible to participate in the election.
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 Mexican Petroleum-Corporation, Portland,
Maine, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the'Act.
2. All marine employees of the Company employed on the vessels
located at Carteret, New Jersey, including captains, mates, pilots, deck
hands, laborers, stewards, stewardesses, firemen, engineers, and oilers,
and including the dispatcher, constitute a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b) of
the National Labor Relations 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 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
DniECTEn that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with Mexican
Petroleum Corporation, Portland, Maine, 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-of Election under the direction
and supervision of the Regional Director for the Second Region, act-
ing in the matter as agent for the National Labor Relations Board,
and subject to Article III, Section 9, of said Rules and Regulations,
among all marine employees of Mexican Petroleum Corporation, Port-
land, Maine, employed on the vessels located at Carteret, New Jersey,
including captains, mates, pilots, deck hands, laborers, stewards, stew-
ardesses, firemen, engineers, and oilers, and including the dispatcher,
who were employed during the pay-roll period immediately preceding
the date of this Direction of Election, including employees who did not
work during such pay-roll period because they were ill or on vacation
and employees who were then or shall have since been temporarily laid,
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off, but, excluding those who have since quit or been discharged for
cause; to determine whether or not they desire to be represented by
Mexpet-American Oil Marine Employees Association of New Jersey,
Inc., for the purposes of collective bargaining.
MR. vV ILLIA âI M. LEISERSON took no part in the consideration of the
above Decision and Direction of Election.