Phillips Petroleum Co.

National Labor Relations Board - Board DecisionsSep 15, 1943

52 N.L.R.B. 632 (N.L.R.B. 1943)

In the Matter of PHILLIPS PETROLEIIM COMPANY and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION 109, A. F. of L. Case No. R-5709.-Decided September 15, 1943 Mr. Eugene R. Melson, for the Board. - Mr. H. Hunter Booth, of Kansas City, Mo., for the Company. Mr. John H. LaRowe, of Independence, Kans., for the Engineers. Mr. J. Wirth Sargent, of Wichita, Kans., for the Independent. Mr. Louis Cokini,-of counsel to the Board. DECISION. AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by International Union of Operating Engi- neers, Local Union 109, A. F. of L., herein called the Engineers, alleg- ing that a question affecting commerce had arisen concerning the rep- resentation of employees of Phillips Petroleum Company, Bartles- ville, Oklahoma, herein called the Company, the National Labor Re- lations Board provided for an appropriate hearing upon due notice before Ralph A. Newman, Trial Examiner. Said- hearing was held at Kansas City, Missouri, on July 15, 16, and 17, 1943. At the com- mencement of the hearing the Trial Examiner granted a motion of Square Deal Union Inc., herein called the Independent, to inter- vene. The Board, the Company, the Engineers, and the Independent appeared at and participated in the hearing and all parties 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 counsel for the Company and counsel for the Independent moved to dismiss the petition. The Trial Examiner reserved rulings . The motions are hereby denied. The Trial Examiner 's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: 52 N. L. R. B., No. 108. 632 PHILLIPS PETROLEUM COMPANY FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 633 Phillips Petroleum Company is a Delaware corporation with its principal, office at Bartlesville, Oklahoma. The Company is engaged in producing, refining, selling; and distributing petroleum and petro- leum products. We are here concerned with its gasoline pipe-line department. During 1942 the Company transported in excess of 1,000,000 barrels of petroleum and petroleum products through its pipe lines from Borger, Texas, to Villa Ridge, Missouri. H. THE ORGANIZATIONS INVOLVED International Union of Operating Engineers, Local Union 109, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. Square Deal Union Inc. is an unaffiliated labor organization, ad- mitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On May 20,1943, the Engineers, requested the Company to recognize it as exclusive collective -bargaining representative of certain em- ployees of the Company. The Company refused this request. A statement of a Field Examiner of the Board, introduced into evidence at the hearing, indicates that the Engineers represents a substantial number of employees in the unit hereinafter found to be appropriate.' We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. IV. THE APPROPRIATE UNIT The Engineers urges that all employees in the Company's gasoline pipe-line department from Borger, Texas, to the western bank of the Mississippi River, including engineers, extra men, truck loaders, gaugers, loaders, line/walkers, maintenance laborers, maintenance truck drivers, and relief truck drivers, but excluding all clerks and super- visory employees, constitute an appropriate unit. The only contro- versy with respect to the unit concerns welders. The Engineers 1 The Field Examiner reported that the Engineers presented 71 authorization cards bearing apparently genuine signatures of persons whose names appear on the Company's pay roll of February 15 to 28, 1943. There are approximately 169 employees in the appropriate unit. 634 DECISIONS OF NAfrI'ONAL LABOiR RELATIONS BOARD would include them in the unit while the Company would exclude them. The Independent took no position with respect to the welders. The Company employs three welders who are highly skilled, and especially trained in the use of high voltage welding machines. No other labor organization is claiming to represent the welders. Inas- much as the duties of the welders are an integral part of the Com- pany's pipe-line operations, we shall include the welders in the unit. We find that all employees in the Company's gasoline pipe-line de- partment from Borger, Texas, to the western bank of the Mississippi River, including engineers, extra men, truck loaders, gaugers, loaders, line walkers, maintenance laborers, maintenance truck drivers, relief truck drivers, and welders, but excluding all clerks and all super- visory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by means of an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. The Board ordered that, in addition to the usual investigation, evidence be received in this proceeding on whether the intervenor, the Independent, is a successor to or a continuation of The 66 Asso- ciation Inc., herein called the Association; heretofore ordered disestab- lished by the Board.2 On May 19, 1943, the Company posted notices in accordance with the Board's order. The Board's Order was received by the Association on March 30, 1943. On April 24 and 26, 1943, J. Wirth Sargent, attorney for the Association, discussed with its members the question of organizing a new union. At the Association's annual meeting held on April 26, 1943, in the offices of Sargent, a resolution was adopted which provided for the polling of the Association's members upon the question of whether the members preferred on'the one hand, the Association or a new independent union, or on the other hand, the Engineers. Seventy-eight of the 80 votes cast were in favor of "The 66 Associa- tion Inc. or a new independent union." On May 17, 1943, Chambers, Lawton, and Hankins held a meeting in Sargent's office, at which time the Association was dissolved. Immediately thereafter Chambers, 2 Matter of Phillips Petroleum Company, 48 N. L. R. B. 460. PHILLIPS PETROLEUM COMPANY 635 Lawton, and Hankins signed a charter for the Independent in Sar- ;gent's office. The only break between the meeting dissolving the Association and the meeting forming the Independent was ' when the participants left Sargent's office for the purposes of obtaining a ;drink. The first meeting of the Independent was held on June 4, 1948. The meeting was attended by Chambers, Lawton, Hankins, and Sargent who, as proxies designated by the membership, voted for the following officers : Lawton, president, Hankins, vice president, and Sargent, business agent. Chambers at the same meeting was elected a director of the Independent. Lawton was the last secretary- treasurer of the Association, Hankins was a director of the Association until its dissolution, and Chambers was the last president of the Asso- ciation. Sargent, the newly elected business manager, had been the attorney for the Association. The foregoing facts disclose that between the time when the Com- pany and the Association were appraised of the Board's Decision and Order, which required the immediate publication' of a notice of dis- establishment, and the time when such notice was posted, there oc- curred the decision to dissolve the Association and the execution of the articles, of incorporation of the Independent. It is clear that the Independent is merely a continuation of the Association and that it must have appeared to the employees them- selves to be such a continuation. The circumstances irresistibly lead to the conclusion that the employees could not have failed to identify the Independent as a successor to the Association and to have supposed that the Independent, as had the Association, enjoyed the Company's approval. The evidence is uncontroverted that the new organization was formed by former officers of the Association before the Company posted notices ordering the Association disestablished, and that at the first meeting of the Independent several of the officers elected were former officers of the Association. Under-these circumstances, we are satisfied and find that the Inde- pendent appeared to the employees to be a successor to the Association, a dominated organization, and to have the favor of the Company We further find that the Independent is a continuation of and a successor to the Association. It follows that we cannot under the circumstances accord a place on the ballot to the Independent. 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 Act, and pursuant to-Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby 636 DECISIONS OF NAfTIONAL LABOR RELATIONS BOARD DmEcxrD that , as part of the investigation to ascertain representa- tives for the -purposes of collective bargaining with Phillips Petroleum Company, Bartlesville , Oklahoma, 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 Director for the Seventeenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed 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 tempo- rarily laid off, and including employees in the armed,forces of the United States who present themselves in person at the polls, but excluding any who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Interna- tional Union of Operating Engineers, Local Union 109, affiliated with the American Federation of Labor, for the purposes of collective bargaining. MR. JOHN M . HOUSTON took no part in the consideration of the above Decision and Direction of Election.