Pan American Refining Corp.

National Labor Relations Board - Board Decisions

Sep 24, 1941

35 N.L.R.B. 725 (N.L.R.B. 1941)

In the Matter of PAN AMERICAN REFINING CORPORATION and INTER-
NATIONAL ASSOCIATION OF MACHINISTS , LocAL No . 1446 , of DISTmCT
37, AFFILIATED WITH THE A . F. OF L.
In the Matter of PAN AMERICAN REFINING CoRPoRATIoN and TEXAS
Crr EMPLOYEES FEDERATION , UNAFFILIATED
Cases Nos . R-2681 and R-2682.-Decided September 24, 1941
Jurisdiction : oil refining industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to recognize or bargain with any of the unions involved until an appro-
priate unit or units and the exclusive bargaining representative or representa-
tives are determined by the Board ; A. F. of L. affiliates which urged separate
units for employees included in a plknt-wide unit placed on ballot jointly as
the A. F. -of L.; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees of the Company, including laboratory employees who work as
testers or make routine examinations, employees in the labor department,
machine shop employees, and boilermakers, but excluding clerical, office, tech-
nical or research, and supervisory employees ; separate units for employees
sought to be represented by various craft unions held inappropriate; such
employees included in unit.'
Mr. W. E. Cranford and Mr. Fine G. Bedford, of Galveston, Tex.,
for the Company.
Mr. L. M. Fagan, of Houston, Tex., for the Machinists.
Mr. E. E. Boyatt and Mr. Melville Johnson, of Galveston, Tex.,
for the Federation.
Mr. Claris Dixie and Mr. Tom McCormick, of Houston, Tex., for
the O. W. I. U.
Mr. Henry Comoucli, of Texas City, Tex., for the Hod Carriers.
Mr. C. S. Moony, of Houston, Tex., for the Boilermakers.
Mr. Ralph S. Clifford, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION.
' f
STATEMENT OF THE CASE
On April 18, 1941, International Association of Machinists, Local
No. 1446 of District 37, affiliated with the A. F. of L., herein called
the Machinists, filed with the Regional Director for the Sixteenth
Region (Fort Worth, Texas) a petition alleging that a question
35 N. L. R. B., No. 163.
725
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
affecting commerce had arisen concerning the representation of em-
ployees of Pan American Refining Corporation, Texas City, Texas,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On May 5,
1941, Texas City Employees Federation, unaffiliated, herein called
the Federation, filed a similar petition with the Regional Director.
On June 25, 1941, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act, and Article
III, Section 3 and Section 10 (c) of National Labor Relations Board
Rules and Regulations-Series 2, as amended, consolidated the cases,
ordered an investigation in each case, and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice.
On June 25, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Machinists,
and the Federation, and upon Oil Workers International Union,
Local 449, C. I. 0., herein called the O. W. I. U., International Hod
Carriers' Building and Common Laborers Union, A. F. of L., herein
called the Hod Carriers, and International Brotherhood of Boiler-
makers, Iron Shipbuilders and Helpers of America, A. F. of L.,
herein called the Boilermakers, the latter three being labor organiza-
tions alleged to have an interest in the investigation. Pursuant to
notice, a hearing was held on June 26, 1941, at Texas City, Texas,
before Albert P. Wheatley, the Trial Examiner duly designated by
the Chief Trial Examiner. The Company, the Machinists, the Fed-
eration, the O. W. I. U., 'the Hod Carriers, and the Boilermakers
were represented 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 hearing the Trial Examiner granted motions by the
O. W. I. U., the Hod Carriers, and the Boilermakers, respectively,
to intervene. During the course of the hearing, the Trial Examiner
made 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.
On July 10, 1941, briefs were filed by the O. W. I. U. and by the
Company which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Pan American Refining Corporation, a Delaware corporation,
owns I and operates an oil refinery, a crude storage-tank farm,
PAN AMERICAN REFINING CORPORATION 727
and a dock at Texas City, Texas. During the year 1940 the Com-
pany used crude oil valued in excess of $35,000,000, of which 30 per
cent was received from sources outside the State of Texas.
All finished products of the refinery, except an insignificant amount
of such products used by the plant or sold as fuel to ships and boats
at Texas City, Texas, are shipped outside the State of Texas. During
the year 1940 the Company produced finished products valued in
excess of $37,000,000.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Local No. 1446 of District
37, affiliated with the American Federation of Labor, is a labor
organization admitting to membership employees of the Company.
Texas City Employees Federation is an unaffiliated labor organiza-
tion, admitting to membership employees of the Company.
Oil Workers International Union, Local 449, affiliated with the
Congress of Industrial Organizations, is a labor organization admit-
ting to membership employees of the Company.
International Hod Carriers' Building and Common Laborers
Union, affiliated with the American Federation of Labor, is a labor
organization admitting to membership employees of the Company.
International Brotherhood of Boilermakers, Iron Shipbuilders and'
Helpers of America, affiliated with' the American Federation of La-
bor, is a labor organization admitting to membership employees of
the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On April 12, 1941, the Federation requested the Company to recog-
nize it as the bargaining agent for the Company's employees. The
Company refused to recognize or bargain with the Federation, and
refuses to recognize or bargain with any of the unions involved until
the appropriate unit or units and the exclusive bargaining represent-
ative or representatives of the employees have been determined.
From a report prepared by the Field Examiner and introduced
into evidence it appears that the Machinists, the Federation, the
O. W. I. U., the Hod Carriers, and the Boilermakers represent a
substantial number of the employees of the Company in the units each
alleges to be appropriate.'
' The Field Examiner reported that the Machinists submitted 48 authorization cards, all
dated since March 15, 1941, covering employees on the Company's pay roll of April 30,
1941; that the Fedeiation submitted 336 authorization cards, all dated between February
21 and May 17, 1941, covering 334 employees on the Company's pay roll of April 30, 1941 ;
that the O. W. I. U. submitted 331 authorization cards all dated between January 10 and
May 1, 1941, covering 313 employees on the pay roll of April 30, 1941; that the Hod Car-
rieis submitted 58 authorization cards, all dated between January 1 and May 1, 1941
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a question has arisen • concerning the representation
of employees of the Company.
IV. THE EFFECT OF TILE 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 commerce
and the free flow of commerce.
- V. THE APPROPRIATE UNIT
The Machinists, the Hod Carriers, and the Boilermakers contend
that separate units covering their respective crafts are appropriate.
The 0. W. I. U., the Federation, and the Company contend that an
industrial unit of production and maintenance employees, including
the employees sought by the craft unions, is appropriate?
The Company employs approximately 1,150 employees. Seven of
the employees are plant officials and are paid from New York City
on' a private pay roll. There are approximately 193 clerical and
office employees who are paid on a monthly basis. An undisclosed
and undescribed number of laboratory research technicians and super-
visory employees are also on the monthly pay roll. The rest of the
employees of the Company are hourly paid and are divided into two
departments, the operating department and the mechanical depart-
ment. The operating and mechanical employees are engaged in the
operation and maintenance of the refinery machinery. Their basic
qualifications and experience for employment are generally the same
regardless of assignment. Employees often pass through both
departments by promotion.
The machinists form a sub-division of the mechanical department.
Approximately 43 first, second, and third class machinists are con-
stantly employed working both inside and outside the machine shop.
and that the Boilermakers submitted a list of 14 names of employees with the statement
that all 14 employees joined the Boilermakers after January 1, 1941.
The record discloses that there are 43 employees within the unit claimed by the Machin-
ists to be appropriate ; that there are 1 , 143 employees in the unit claimed by the Federation
to be appropriate ; that there are 957 employees in the unit claimed by the O. W. I. U. to be
appropriate ; that there are 211 employees in the unit claimed by the Hod Carriers to
be appropriate ; and that there are 9 employees in the unit claimed by the Boilermakers
to be appropriate.
2 The O. W. I. U. representative stated at the hearing that a unit including all production
and maintenance employees is appropriate , but that the O. W. I. U. did not wish to contest
the claims of the Machinists for a separate unit . The O. W. I. U.'s written motion to
intervene would include the machinists
PAN AMERICAN REFINING CORPORATION 729
There are nine first class machinists who regularly work outside the
machine shop. The third class machinists work as regular machinists'
helpers. When needed, various other mechanical department em
ployees, classified as mechanical department helpers, are assigned
temporarily as helpers for the machinists. The Machinists would
include only the 43 first, second, and third class machinists and would
not include the mechanical department helpers.
The labor pool, a sub-department of the mechanical department.,
.and two truck drivers classified as garage employees in the mechanical
department, constitute the bargaining unit contended for, by the Hod
Carriers. The pool includes porters, still cleaners, mortar makers,
sewer drainers, tank cleaners, and boiler washers. These employees
are assigned in small groups to work wherever needed throughout the
plant. They dig ditches, do porter work, unload cars, and do yard
maintenance work, and are often assigned to help clean towers, con-
denser boxes, and cracking units. The Company selects production
and maintenance employees from this labor pool. The truck drivers
include one regular truck driver and one cleanup truck driver.
The boilermakers are classified as a division of -the mechanical
department. There are a total of nine boilermakers. Four or five
are included in the regular boilermaker classification and spend from
60 to 70 per cent of their time on work other than boilermaking, but
at their boilermakers' rate of pay, which is $1.19 per hour. The re-
maining boilermakers are classed as mechanical department helpers
by the Company. They work at boilermaking when needed at the
boilermaker's pay rate, but they frequently work at other jobs on a
sliding pay scale. Their pay ranges from 820 to $1.19 per hour.
About 50 per cent of their time is spent in boilermaking work. The
boilermakers and the welders are under the same foreman and their
work is closely related. They often work on the same machine at the
same time . The Boilermakers would include only the nine boiler-
makers and would not include the welders in the appropriate unit.
The employees were represented on a plant-wide basis by the Pan
American Workers Alliance, unaffiliated, from July 1, 1937, to May
1, 1939. On May 1, 1939, the Company executed a 'contract with
Federal Labor Union Local No. 21181, A. F. of L., recognizing it as
the exclusive representative for "the non-supervisory employees of the
mechanical and operating departments and laboratory" of the Com-
pany." The contract was not urged as a bar to this proceeding and
The contract provides for its renewal from year to year, on May 1 of each year , unless
proper notice of a desire to terminate is given. There is no evidence that such notice has
been given . On March 29 , 1941, the Federal Labor Union adopted a resolution transferring
the above contract to the O. W. I. U. and the Machinists . There is no evidence In the
record that the 0 W. I. U., the Machinists , or the Company accepted such transfer.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federal Labor Union has not bargained or met with -the Company
for several months and did not participate in the hearing.'
There is no evidence in the record that the Hod Carriers or Boiler-
makers have ever attempted to bargain with the Company on behalf
of the employees they now seek to represent. Nor is there any evi-
dence, in the record that the Machinists attempted to bargain with
the Company before April 15, 1941.1
In view of the bargaining history set forth above and the nature
of the work performed by the employees in the units claimed by the
Machinists, the Hod Carriers, and the Boilermakers, we are of the
opinion that such employees should not be separated from the
industrial unit as it has existed under contracts since 1937.
There remains for consideration the question of whether certain
fringe groups of employees should be included in the unit. The
O. W. I. U., the Federation, and the Company are in agreement upon
the inclusion of laboratory employees who work as testers or make
routine examinations, and who do not work as technicians or research
employees. The testers were covered by the 1939 contract between the
Company and the Federal Labor Union. We shall include such
employees in the unit.
The Company and the Federation would also include clerical,
office, and technical or research employees in the unit. The O. W.
I. U. would exclude these employees. The technical or research
employees , who are salaried employees and work in the laboratory,
are engaged in research related to the discovery of improved or new
products and are not employed in making routine tests and examina-
tions involved in the general production of finished products, as are
the testers. It is not clear whether research employees were covered
by the contracts referred to above. Since their interests are separate
and their relationship to the production and maintenance employees
remote, we shall exclude technical and research employees from the
unit. Most of the office and clerical employees, -including clerks,
office boys, and messengers, work in a separate building and their
working conditions are different from those of the other employees.
The remainder of the office 'and clerical employees are the stenog-
raphers and secretaries of various plant officials. All the office and
clerical employees are salaried employees. So far as appears, these
employees were not included in the Federal Labor Union's contract.
Under the circumstances, we shall exclude the office and clerical
employees from the unit.
4 The Federal Labor Union was not served with notice of the hearing.
5 According to the petition filed by the Machinists, the Company was asked and refused
to recognize the Machinists on April 15, 1941. There is no evidence in the record of the
attempt to bargain by the Machinists.
PAN AMERICAN REFINING CORPORATION 731
The parties agreed that, in general, supervisory employees should
be excluded from the unit. Although there appears to be some dis-
agreement as to the definition of the term "supervisory employees,"
no definite issues with respect to specific employees were raised by
the parties. We find that supervisory employees include general and
assistant foremen who have the power to hire or discharge, and their
superiors.
We find that all production and maintenance employees of the
Company, including laboratory employees who work as testers or
make routine examinations, employees in the labor department, ma-
chine shop employees, and boilermakers, but excluding clerical, office,
technical or research, and supervisory employees, 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. -
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the represen-
tation of employees of the Company can best he resolved by an elec-
tion by secret ballot and we shall so direct. In accordance with our
usual practice, we shall direct that all employees of the Company in
the appropriate unit who were employed during the pay-roll period
immediately preceding the date of this Direction of Election, subject
to such limitations and additions as are set forth in the Direction,
shall be eligible to vote. Inasmuch as the Machinists, the Hod Car-
riers, and the Boilermakers jointly have a substantial membership
among the employees in the unit found appropriate, we shall direct that
the Machinists, the Hod Carriers, and the Boilermakers, appear jointly
on,the ballot as the American Federation of Labors Any organiza-
tion desiring not to appear on the ballot shall notify the Regional
Director to that effect within five (5) days after the receipt of this
Decision and Direction of Election; thereupon its name shall be omitted
from the ballot.
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 Pan American Refining Corporation, Texas
City, Texas, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
Cf. Matter of A. E Staley Manafacturtng Company and United Grain Processors Union,
Local 21490, affiliated with the A. F of L , 31 N. L . R. B. 946 and cases cited therein.
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732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All production and maintenance employees of the Company in-
cluding laboratory employees who work as testers or make routine,
examinations , the employees in the labor department, machine-shop
employees, and boilermakers but excluding clerical, office, technical
or research, and supervisory employees, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of, Sec-
tion 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 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 Pan American Refining Corporation, Texas City, Texas, an
election by secret ballot shall be conducted as soon as possible, but
not later than thirty (30) days from the date of this Direction, under
the direction and supervision of the Regional Director for the Six-
teenth 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 production and maintenance employees
of the Company at Texas City, Texas, who were employed during the
pay-roll period immediately preceding the date of this Direction,
including laboratory employees who work as testers and make routine
examinations , employees of the labor department, machine-shop em-
ployees, boilermakers, and employees who did not work during such
pay-roll period because they were ill or on vacation or in the active
military service or training of the United States, or temporarily laid
off, but excluding clerical, office, technical or research, and supervisory
employees, and employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by American
Federation of Labor [International Association of Machinists, Local
No. 1446 of District 37, International Hod Carriers' Building and
Common Laborers Union, and International Brotherhood of Boiler-
makers, Iron Shipbuilders and Helpers of America], Texas City Em-
ployees' Federation, or Oil Workers International Union, Local 449,
affiliated with the Congress of Industrial Organizations, for the pur-
poses of collective bargaining, or by none of these organizations.
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