The Texas Co.

National Labor Relations Board - Board Decisions

Aug 15, 1942

43 N.L.R.B. 250 (N.L.R.B. 1942)

In the Matter of'THE TEXAS COMPANY and INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL 346
Case No. R-4031.-Decided August-15, 194.t
Jurisdiction : oil refining industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to bargain in view of existing contract with rival union; existing contract
about to expire held no bar; election necessary.
Unit Appropriate for Collective Bargaining : all employees at Company's San
Antonio, Texas, refinery", including the gateman, but excluding supervisors,
clerical employees, and guards.
Mr. E. A. Bosl, of Fort Worth, Tex., and Mr: A. E. Higgs, of San
Antonio, Tex., for the Company.
Mr. W. B. Smith and Mr: J. A. Benson, of FortWorth, Tex., for
the Operating Engineers.
Mr. W. M. Seale, of San Antonio, Tex., for the Federation.
Mr. Robert E. Tillman, of counsel to the Board.
' DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE,
Upon petition duly filed by International Union of Operating En-
gineers, Local 346, herein called the Operating Engineers, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of The Texas Company, San Antonio, Texas,
herein called the Company, the National-Labor Relations Board pro-
vided for an appropriate hearing upon due notice. Said hearing was
held at San Antonio, Texas, on June 26, 1942, before Bliss Daffan,
Trial Examiner, and on. July 9, 1942, before Elmer Davis, Trial Ex-
aminer. The Company, the Operating Engineers, and The Texas
Company San Antonio Works Employees' Federation, herein called
the Federation, appeared, participated, and were afforded full oppor-
tunity to be heard, to examine alid cross-examine witnesses, 'and to
introduce evidence bearing on the issues. The Trial Examiners'
rulings 'made at the hearing are free from prejudicial error and, are
hereby affirmed.
43 N L. R. B., No 31.
250
THE TEXAS COMPANY - 251
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Texas Company is a Delaware corporation maintaining its
principal offices in New York City and in Houston, Texas. The Com
pany is engaged in the production, refining, sale, and distribution
of crude oil, and its products. In connection with its business, it
owns, maintains, and operates refineries in the States of Oklahoma;
California, Illinois, Texas, and other States, and engages in the pro
duction of crude oil in several States, Including Oklahoma, Louisiana,
Texas, New Mexico, Arkansas, Illinois, California, and Kansas.
Only the Company's refinery located in San Antonio, Texas, is in-
volved in this proceeding. All the crude oil processed at this refinery
is produced by the Company and other companies within the States of
New Mexico and Texas (most of said oil being produced in the State
of New Mexico) and is transported to the refinery by means of a pipe
line. All the products manufactured or processed by the San Antonio
refinery are sold and distributed within the State of Texas.
H. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local 346, is a labor
organization affiliated with the American Federation of -Labor. It
'admits to membership employees of the Company.
The Texas Company San Antonio Works Employees' Federation
is an unaffiliated labor organization. It admits to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated April 13, 1942, the Operating Engineers informed
the Company that a majority of the Company's employees were mem-
bers of the Operating Engineers, and requested recognition as the.
collective bargaining representative of these employees. The Com-
pany refused to extend recognition, in view of the existence of a
collective bargaining contract with the Federation.
This contract, entered into on November 19, 1941, provides that,
it shall be in effect "until November 1, 1942, and thereafter from year
to year, subject to termination by said parties after November 1,
1942, upon 30 days written notice to the other." The Operating En-
gineers contends that this contract is no bar because the Federation
no longer exists to compel performance. The Company and the
Federation contend that if the Board finds the Federation to be an
252 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
existing labor organization ; then the contract remains operative for
its full term. '
The Federation was established at the plant in 1937. The Operating
Engineers does not deny that the Federation engaged in bargaining
relations with the Company until the early part of 1942. The Operat-
ing Engineers , claims, however , that the Federation has been non-
existent since March 1912. ' In support of this claim , it contends that
there have been no meetings of the Federation since that date, that
the bulk of the Federation membership has transferred to the Oper-
ating Engineers,, and that the last duly elected officers of
the Federation are now members of the Operating Engineers.
The Operating Engineers designates as the last meeting of the
Federation a meeting held in March 1942, at which its president, Bill
Hargrove , resigned at the request of -the 22 members present. Har-
grove, now corresponding secretary of the Operating Engineers, tes-
tified that the Federation had met 3 times in the first 3 months of
1942. The Federation denied that its last meeting was held in March.
W. M. Seale, appearing for the Federation , and identified as 1 of 4
members of the grievance committee of the Federation , testified that
he had called 2 meetings since the meeting in March. The first of
these meetings was held in the latter part of April 1942. The busi-
ness taken up 'concerned the question of whether the Federation'
should be continued as a going organization . A petition in favor
of so continuing was circulated and was then signed by 17 employees
of the Company . The petition , now bearing 21 signatures, was
introduced in evidence at the hearing.
Seale testified that the second meeting was held on June 3, 1942,
and that notice was posted 2 days in advance. The Operating En-
gineers contends that this was not a duly called meeting of the
Federation since the notice contained no mention of the Federation,
but merely stated that there was to be a meeting of the_ employees.
Seale asserted that the notice , was 'worded in such a manner so that
all employees , and not just members , of the Federation , would feel
welcome to attend. Twelve employees were in attendance and voted
'unanimously to continue the Federation . Temporary officers were
then elected , pending the Board's decision'in the instant proceeding.
Seale was chosen temporary president.
None of the witnesses for the Operating Engineers would state as
a positive fact that the Federation was defunct , and at least one wit-
ness for , the Operating Engineers admitted that some employees of
the Company still claimed to be members of the Federation. Seale
testified that no resolution to dissolve the Federation had ever been
proposed. . ` '
On the basis of all these facts, we find that the Federation is a
functioning labor organization . We further find, however , that since
l
-THE TEXAS COMPANY 253
the initial, term of the Federation's contract will expire in less than
3 months, it does not preclude the Board from making an investiga-
tion and determining a bargaining representative' for the purpose
of -negotiatii g a new contract for the' period following November
1,1942.-
A statement of a Field Examiner; introduced in evidence at the
hearing, indicates that the Operating Engineers represents a 'sub-
stantial number of employees in the unit, hereinafter found
appropriate.2
IV. THE APPROPRIATE' UNIT
With the exception of a single dispute, the parties,agree that the
appropriate unit consists of all employees of the Company, excluding
supervisors, clerical, employees, and guards.
The sole dispute is one.between the Operating Engineers and the
Federation, concerning W. M. Seale, who is employed as gateman by
the' Company. The Operating Engineers contends, that Seale is a
guard and should be excluded from the unit accordingly. Seale's
function is to identify employees and, others who seek to enter the
plant, and to admit only those showing proper identification cards or
passes. He'has no authority over other employees, except to forbid
them entrance should they lack the proper credentials. He is paid
hourly at a rate no higher than that of production employees and is
not deputized. The Federation contract appears to cover, gatemen.
In' view of these fact's, we shall include Seale in the appropriate unit.
We find that all employees of the Company, including W: M. Seale,
but excluding supervisors,3 clerical employees ,4 and guards, 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 an election by secret ballot. The Operating
Engineers proposes that eligibility to vote be determined, by a pay roll
current on May 4, 1942, the date it filed its petition in this proceeding.
i Matter of Chrysler Motors Parts Corporation and International Union, United Auto-
m obile, Aircraft and Agricultural Implement Workers of America , affiliated with the Con-
iress of Industrial Oiganizations , 38 N L R B 1379
2
The Field Examiner stated that the Operating Engineers submitted to him 62 designa-
tion cards, all dated during the month of April 1942 , that 60 of the cards bore signatures
which appeared to be genuine and original ; that all of these signatures were names of per-
sons whose names appeared on the Company's pay loll for the period ending May 1, 1942,
which listed 80 employees in the unit hereinafter found to be appropriate
3 Those listed by the Company at the hearing as superviso r s were R. F Dorsch, H. L
Wallace, R F Tiouth, T A Savage, E W Grogan, and W H. Roach.
4 Those listed by the Company at the heaiing as clerical were Glen'Duiham, C. F.
Smitherman , C F Wilkerson , A E Steuier , T W Convery , T 0 Brounson , John F.
Haley, and A. D Black.
254 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall , however, adhere to our usual practice and shall direct that
those eligible to vote shall be those employees in the appropriate unit
who were employed during the pay-roll period immediately preceding
the date of our Direction of Election , subject to the limitations and
additions set forth therein.
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,
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 to ascertain representa-
tives for the purposes of collective bargaining with The Texas Com-
pany, San -Antonio, Texas, an election by secret ballot shall be con-
ducted as early as possible , but not later than thirty (30) days from
the date of this Direction of Election , under the direction and super-
vision of the Regional Director for the Sixteenth Region, acting in
this matter as agent for the National Labor Relations Board, subject
to Article III, Section 9, of said Rules and Regulations, among all
employees of the Company in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immedi-
ately preceding the date of this Direction , including employees who
did not work duffing 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 any who have since quit
or been discharged for cause , to determine whether they desire to be
represented by International Union of Operating Engineers, Local
346, or by, The Texas Company San Antonio Works Employees'
Federation , for the purposes of collective bargaining , or by neither.