AGIP, USA, Inc.

National Labor Relations Board - Board Decisions

May 18, 1972

196 N.L.R.B. 1144 (N.L.R.B. 1972)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AGIP, USA, Inc. and Office & Professional Employ-
ees International Union, Local 153, AFL-CIO, Peti-
tioner . Case 2-RC-15718
May 18, 1972
DECISION AND ORDER
BY MEMBERS FANNING, J ENKINS , AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Mary W. Taylor of
the National Labor Relations Board.
Following the hearing and pursuant to Section 102.
67 of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, by direction of the Regional Director for
Region 2, this case was transferred to the Board for
decision. Thereafter, the Petitioner and the Employer
each filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
The Petitioner seeks to represent all office clerical
employees, including buyers, who are employed by
the Employer at its New York, New York, office. The
Employer does not contest the appropriateness of the
unit described by the Petitioner. However, the Em-
ployer maintains that it is owned and controlled by
the Italian Government, and that, as an instrumental-
ity of a foreign government, it should not be subject
to the jurisdiction of the National Labor Relations
Board.
The Employer, a Delaware corporation with its
principal place of business in New York, New York,
serves as a purchasing agent in the United States of
America for the companies operated by Ente Natio-
nale Idrocarburi, herein after referred to as ENI. ENI
is wholly owned by the Italian Government and is one
of three divisions of the Ministry of Participatione
Nationale, an arm of the Italian Government which
is headed by a cabinet minister who is appointed by
the government in power. ENI was established for the
purpose of procuring and developing sources of ener-
gy from gas, oil, coal, and nuclear power for Italy's
use. There are some 200 companies in the ENI com-
plex and its operations are world-wide in scope.
The record demonstrates what is, in effect, a par-
ent-subsidiary relationship between ENI and the Em-
ployer. ENI has financial control over the Employer's
ly 97 percent of the Employer's corporate shares. ENI
also exercises control over the appointment of the
Employer's corporate officers and directors. All five
members of the Employer's board of directors are
employed by ENI and were appointed as directors by
ENI. The Employer's president is a general director of
ENI and resides in Italy, as do two other of the
Employer's directors. The Employer's day-to-day op-
erations are handled by Mr. Giancarlo Gini, a direc-
tor and executive vice president of the Company. Mr.
Gini and the head of accounting and personnel, Mr.
Calorio, were assigned to the New York office by
ENI. Both are Italian nationals. Also employed in the
Employer's New York office are approximately 50
office clerical employees, all of whom were hired in
the United States of America and are presumably
American citizens.
With respect to the operations of the Employer's
New York office, Mr. Gini testified that while he is
considered to be the operating head, he is in constant
touch with Employer's President Grandi in Rome. All
policy decisions emanate from Rome,and Mr. Gini's
role is merely to implement these policy directives.
For example, all labor relations policy for ENI com-
panies, including the Employer, is established in
Rome by the labor relations experts employed by
ENI. Mr. Gini testified that he receives specific guide-
lines covering such matters as salaries and fringe ben-
efits for employees and he is required to adhere to
these directions. Also, such matters as the leasing of
office space require express approval from Rome.
As previously indicated, the Employer serves as a
purchasing agent in the United States of America for
the companies operated by ENI. Purchase orders
from ENI companies are sent directly to the Employ-
er who then negotiates the purchase of the requested
materials' or machinery from American manufactur-
ers. ENI companies requesting such service pay the
Employer a commission for each purchase. This com-
mission is set by ENI and it is designed only to cover
the Employer's operating costs. Last year, the Em-
ployer purchased equipment and materials in the
United States of America valued in excess of $30
million and arranged for its shipment outside the
country.
On the basis of the foregoing, particularly the evi-
dence establishing the existence of a close relationship
between the Employer and ENI, an instrumentality of
the Italian Government, we deem it inappropriate to
assert jurisdiction in this proceeding without reaching
the question of whether, in fact, the Board has legal
jurisdiction over the employees of the Employer. Ac-
cordingly, we shall dismiss the petition.'
operations by virtue of its ownership of approximate- ' British Rail-Internationa l, Inc., 163 NLRB 721.
196 NLRB No. 177
ORDER
AGIP, USA, INC. 1145
It is hereby ordered that the petition be, and it
hereby is, dismissed.
MEMBER FANNING, dissenting:
I dissent from the refusal to assert jurisdiction here-
in.
The Employer is an American corporation employ-
ing American workmen who work within the conti-
nental limits of the United States of America. The
Employer purchases upwards of $30 million worth of
American materials and goods and arranges for their
transshipment to various companies around the
world. Quite obviously the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and its operations far surpass the minimum
requirements for assertion of jurisdiction under cur-
rent and mandatory Board jurisdictional standards.
The sole basis for declining to assert jurisdiction
herein is the fact that the Employer is owned by for-
eign corporations which in turn are partly owned by
corporations or entities owned by the Italian Govern-
ment. Although the Employer traces the complex
ownership strands to a conclusion that approximately
96 percent of the ownership of the Employer ultimate-
ly resides in the Italian Government, the fact remains
that the Employer is not a wholly owned agency of the
Italian Government, much less is it a wholly owned
corporation of the United States Government, a nec-
essary condition for the exemption of a corporation
performing comparable functions for that govern-
ment.2 Even assuming the word "Government" used
in Section 2(2) includes foreign governments, it is ap-
parent the Employer does not qualify for the exemp-
tion given such employers.3
As the Act was intended to be a "bill of rights both
for American workingmen and their employers,"4 I
would assert jurisdiction herein, for my colleagues do
not point to any legislative history suggesting that
Congress intended that American employees lose
those rights when working for foreign interests in this
country.
2 Sec. 2(2) of the Act states, "The term 'employer ' . . . shall not include the
United States or any wholly owned Government corporation ......
3 Cf. British Rail-International, Inc., 163 NLRB 721, where the employer
was an agency of the British government and a substantial number of em-
ployees involved were British nationals . Here all the employees are American
nationals.
4 McCulloch v. Sociedad Nacional de Marineros de Honduras, 371 U.S. 93 1'