Tucker Oil Co.

National Labor Relations Board - Board Decisions

Jan 30, 1940

19 N.L.R.B. 1057 (N.L.R.B. 1940)

In the Matter of TUCKER OIL COMPANY and OIL WORKERS INTER-
NATIONAL UNION, LOCAL No. 258
Case No. R-1661.-Decided January 30, 1940
Oil Production Industry-Investigation of Representatives : controversy con-
cerning representation of employees : request for collective bargaining refused
by Company-Unit Appropriate for Collective Bargaining : agreement by Union
.and Company that production and maintenance employees of the Company,
exclusive of supervisory , office, and clerical employees , constitute an appropriate
unit; controversy as to the inclusion of certain individuals : yardman and ware-
houseman included over the objection of union because of industrial character
of unit and also because their clerical work, minor and incidental , as in case
of other employees included by agreement ; one employee excluded over objec-
tion of Company where work, except one day per week , entirely supervisory-
Election Ordered
Mr. Alba B. Martin, for the Board.
Mr. Arch Dawson, and Mr. E. C. de Montel, of Wichita Falls,
Tex., for the Company.
Mr. R. H. Stickel, of Fort Worth, Tex., for the Union.
Mr. John Green, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 28, 1939, Oil Workers International Union, Local No. 258,
herein called the Union, filed with the Regional Director for the
Sixteenth Region (Fort. Worth, Texas) a petition alleging that a
.question affecting commerce. had arisen concerning representation of
employees of Tucker Oil Company, Wichita Falls, Texas, herein
called the Company, and requesting an investigation and certification
of representatives, pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On November 22,
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 authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice.
19 N. L. R. B., No. 109.
1057
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 2, 1939, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and upon
the Union. Thereafter, on December 12, 1939, the respondent filed
a motion to dismiss the petition for want of jurisdiction.'
Pursuant to the notice, a hearing was held on December 14, 15,
and 16, 1939, at Wichita Falls, Texas, before Albert L. Lohm, the
Trial Examiner duly designated by the Board. The Board, the Com-
pany, and the Union were represented and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties. During the course of the hearing, the Trial Examiner
made several rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. The Trial Examiner made no ruling on
the motion by the Company to dismiss the petition. For reasons
;appearing below the motion is denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Tucker Oil Company, a Texas corporation with its principal office in
Wichita Falls, Texas, is engaged in the production of crude oil under
leaseholds in the Hershey Pool and in the Northwest Extension of
the Burkburnett Field, in the northern part of Texas. It sells ap-
proximately 95 per cent of its production to Magnolia Petroleum
Company, a subsidiary of Socony-Vacuum Company, which takes
delivery at the storage tanks of Tucker Oil Company through its
agent, Magnolia Pipe Line Company, another subsidiary of Socony-
Vacuum Company. The oil thus sold to Magnolia Petroleum Com-
pany is commingled in transit with other oil transported from the
same area by Magnolia Pipe Line Company to refineries of Magnolia
'Petroleum Company located at Fort Worth and Beaumont, Texas.
Approximately 10 to 25 per cent of the commingled oil is piped to the
Fort Worth refinery which, in turn, ships approximately 5 per cent
of its output to points outside the State of Texas. The Beaumont re-
finery, which receives 75 to 90 per cent of the commingled oil, sells
approximately 75 per cent of its output to Socony-Vacuum Company
for shipment to points outside the State of Texas.
i The document filed was also styled an answer and denied thatany question had arisen
concerning representation , and further denied that , if any such question had arisen, the
. Question was one affecting commerce within the meaning of the Act.
TUCKEU -OIL COMPANY 1059
During the 6-month period ending November 30, 1939, Tucker Oil
Company sold about 146,000 barrels of oil. It normally employs ap-
proximately 85 production and maintenance employees.
II. THE ORGANIZATION INVOLVED
Oil Workers International Union, Local No. 258, is a labor organi-
zation affiliated with the Congress of Industrial Organizations, and
admits to membership all production and maintenance employees of
the Company, exclusive of supervisory, clerical, and office employees.
III. THE QUESTION CONCERNING REPRESENTATION
In the early part of 1939 the Union conducted an organizational
campaign among the employees of the Company. Shortly before the
filing of the.petition herein, on July 28, 1939, the Union requested
the Company to bargain collectively with it. A representative of the
Union testified that the request for collective bargaining was made
after oral designations as agent for that purpose were secured,.and
that subsequently designations in writing were obtained. In view of
the agreement of the parties that certification would not be sought
upon the basis of the evidence adduced at the hearing, the Union sub-
mitted no documentary proof of the designations and the Company
offered no testimony in support of its contention that some of the
employees had withdrawn their designations.
We find that a question has arisen concerning. representation of
employees of the Company.
IV. THE EFFECT OF THE 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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
At the hearing, the parties agreed that the appropriate unit shall
include all production and maintenance employees of the Company,
exclusive of supervisory, office, and clerical employees.2 The parties
2 We so construe. the stipulation which reads "all employees in the operation and main-
tenance of both the production department and the repressuring plant of the Company."
It is apparent from the record that, apart from office and clerical employees , the "produc-
tion department" includes all production and maintenance employees not employed in the
repressuring plant which supplies the pressure necessary to extract oil from the Company's
wells.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are also in agreement that certain named employees should be
excluded from the unit as supervisory employees.3 The Union and
the Company differ, however, as to the status of S. P. Pharries, J. A.
Wimberley, and D. C. Lowery. The Union contends that these
three employees should be excluded from the unit; the Company
urges that they should be included.
S. P. Plarries works as relief pumper 1 day a week. Otherwise,
he does no manual labor and his duties consist of determining from
reports submitted to him by two pumpers under his supervision
which wells should be serviced, directing the work of a three-man
service gang, and touring the field to determine whether materials
are needed. We conclude that his duties are largely supervisory
in character and, accordingly, shall exclude him from the appropriate
unit.
J. A. Wimberley. The Union contends that Wimberley should
be excluded as a clerical employee. In its operations the Company
produces, as a byproduct, 800 to 1,200 gallons of natural gasoline
daily. As a part of his duties, Wimberley pumps the gasoline into
the trucks df the purchasers at the Company's gasoline dock and
makes out invoices for such sales. Apparently the Union relies on
the latter fact as establishing that Wimberley is a clerical employee.
However, it appears that altogether Wimberley spends only a small
part of his time in connection with the gasoline deliveries, and that
the larger part of his duties consist of pumping fuel oil, walking
fuel-oil lines and repairing leaks in such lines, hauling distillate,
and in performing other manual labor. The Union's contention that
he should be treated as a clerical employee is, therefore, without
Merit .4
D. C. Lowery is described on the Company's pay roll as a warehouse-
man. Except when relieved by one of the pumpers in order to bring
supplies from nearby towns, he is stationed at the Company's field
warehouse. Lowery not only does the physical handling of all ma-
terials at the warehouse but also drives, and loads and unloads the
Company's truck when supplies are obtained from one of the towns.
When not actively engaged as a warehouseman, Lowery does carpentry
and tinsmithing, and pumps gasoline into the Company's cars, spend-
ing about half of his time in such work. The Union contends that, de-
spite the foregoing, Lowery should be excluded from the unit as a
clerical employee because he prepares memoranda of supplies received
3 The parties agreed that the following were supervisory employees : L. B. Horr, Roy E.
Wood, C. L. Lundberg, D. G. Winkles; and D. C. Williams.
' The Union 's contention is not only generally inconsistent with the Industrial nature of
the unit agreed to be appropriate, but cannot be reconciled with its agreement that the
unit should include pumpers, meter men, gang men ; and drip blowers , all of whom prepare
written reports in connection with their work. Cf. Matter of Westchester Apartments,
Inc. and United Building Service Employees, Local No. 675, 17 N.•L. R. B. 433.'
TUCKER OIL COMPANY 1061
and delivered, is sometimes called upon to inquire as to the reason for
unusually heavy requisitions of materials, checks employees' time
slips to determine whether they have worked in excess of the 42-hour
week under which the Company operates, and, on not more than 12
occasions since 1934, has, as an accommodation to the field superintend-
ent, assisted in the preparation of the semimonthly pay roll. The
clerical work performed by Lowery is largely incidental to his duties
which involve manual labor, and half his work entails no clerical de-
tails at all. No reason is shown for excluding him from the appro-
priate unit."
We find that all production and maintenance employees of the Com-
pany, exclusive of supervisory ,7 office, and clerical employees, constitute
a unit appropriate for the purposes of collective bargaining, and that
such unit will insure to the said employees the full benefit of their right
to self-organization and collective bargaining and will otherwise ef-
fectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning representation
of employees of the Company can best be resolved by the holding of
an election by secret ballot."
The parties stipulated that, in the event that the Board should direct
an election in accordance with the petition, eligibility to vote in the
election should be limited to employees whose names appear upon the
,pay roll for the period ending November 30, 1939.9 We construe the
stipulation to include as eligible to vote those employees whose names
do not appear on the pay roll because they were ill or on vacations,
or who have since been temporarily laid off ; and to exclude those who
have since quit or have been discharged for cause. As thus construed,
we see no reason to depart from the wishes of the parties, and we shall
direct accordingly.
Upon the basis of the foregoing findings of fact and 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 Tucker Oil Company, Wichita Falls,
Texas, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
° Lowery has no authority to decline to deliver supplies requested by employees.
° See footnote 4, supra.
:As we have found above , S. P, Pharries Is to be excluded as a supervisory employee.
8 See Section III, supra.
O Board Exhibit No. 3.
283030-41-vol. 19-GS
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All production and maintenance employees of the Company,
exclusive of supervisory, office, and clerical employees, constitute a
unit appropriate for the purposes 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,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purpose of collective bargaining
with Tucker Oil Company, Wichita Falls, Texas, 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 di-
rection and supervision of the Regional Director of the Sixteenth
Region, acting in this matter as agent for the National Labor Re-
lations Board, and subject to Article III, Section 9, of said Rules and
Regulations, among all production and maintenance employees whose
names appear upon the pay roll of the Company for the period end-
ing November 30, 1939, including employees whose names do not
appear on said pay roll because they were ill or on vacation, or who
have since been temporarily laid off, but excluding supervisory, office
and clerical employees, and those employees who have since quit or
been discharged for cause, to determine whether or not they desire
to be represented by Oil Workers International Union, Local No. 258,
for the purposes of collective bargaining.