Atlantic Refining Co.

National Labor Relations Board - Board Decisions

May 13, 1942

40 N.L.R.B. 1338 (N.L.R.B. 1942)

In the Matter of, ATLANTIC REFINING COMPANY and NATIONAL MARI-
' TIME UNION ;OF AMERICA
Case,,?V.o. R-680.-Decided May 13, 1942
Jurisdiction : water transportatiO i'indnstry.
Investigation and Certification of Representatives : •esistence of question. con-
fiictang claims of rival representatives; contract not asserted as a bar, no bar;
elections necessary.
-
Unit Appropriate for Collective Bargaining : unlicensed personnel employed in
the deck, engine, and steward departments of Company's deep-seagoing tankers,
excluding repair and maintenance men, wireless and radio operators, chief
electricians, and junior engineers: unlicensed personnel on small tankers
included despite petitioner's objection thereto because the vessels ply inland
waters, where they perform similar work, and the use of inland waters,by
these vessels, as well as by other of the Company's seagoing vessels, is
occasioned directly by enemy action ; shore-relief employees permitted to
determine whether they shall constitute a separate unit or be part,of the
unit comprising the unlicensed personnel.
Mr. Harry Rosenblum and Mr. Richard Cli,adwick-Collins, of
Philadelphia, Pa., for the Company.
William L. Standard by Mr. Edward J. Malument, of New York
City, for the N. M. U.
Mr. Emanuel Friedman, of Philadelphia, Pa., for the Association.
Mr. Max E. Halpern, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petition duly filed by National Maritime Union of America,
C. I. 0., herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Atlantic Refining Company, Philadelphia, Pennsylvania, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Robert H. Kleeb, Trial
-Examiner. Said hearing was held at Philadelphia, Pennsylvania, on
March 26 and 27, 1942. The Company, the Union, and Atlantic
Maritime Employees Union, herein called the Association, a labor
40 N. L. R. B., No. 239.
1338
ATLANTIC REFINING COMPANY 1339
organization,claiining to, represent; the, employees directly affected by
the investigation, appeared, participated, and were afforded full op-
portunity to ' be h'a'rd, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues. The Trial Examiner's
rulings made at 'the hearing are free from prejudicial errors and are
hereby `affirmed:
'All 'parties 'filed` briefs 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
Atlantic Refining Company is a Pennsylvania corporation with
an office and place of business in Philadelphia, Pennsylvania. The
Company is engaged in producing, refining, transporting, and market-
ing petroleum and petroleum products. In the transportation of its
products, the Marine Department of the Company, which is involved
-herein, operates a fleet of vessels, including 26 tankers,' between
Atlantic, Pacific, and foreign coast ports. In 1941, the Company
produced or purchased 99, percent of its crude oil in various States
of the United States and 8 percent in several South American coun-
tries. Of the total supply of crude oil, 74 percent was transported to
and refined at the Company's two refineries at Philadelphia, Pennsyl-
vania, and Atreco, near Port Arthur, Texas, and the balance was sold
or exported. During, 1941, 92 percent of the Company's finished
products was sold in various States of the United States and 8 percent
in foreign countries.
The Company admits that it is engaged in commerce within the
'meaning of the National Labor Relations Act.
We find that the Company is-engaged in trade, traffic, transporta-
tion, and commerce among the several States and foreign countries
and that its employees are directly engaged in such trade, traffic,
transportation, and commerce.
II. THE ORGANIZATIONS INVOLVED
National Maritime Union of America is a labor organization affili-
ated with the Congress of Industrial Organizations, admitting to
membership employees of the Company.
Atlantic Maritime Employees Union is an unaffiliated labor organi-
zation, admitting to membership only employees of the Company.
' Four of the Company' s tankers are under foreign flag and are not involved herein
The remaining tankers are being operated under Naval orders, by the Maritime Commis-
sion or, by the Company.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
On April 20, 1938, the Company entered into an exclusive bargain-
ing contract with the Association as representative of "the unlicensed
employees of the Marine Department" covering unlicensed men on
ships and shore-relief personnel. The contract continues from year to
year unless sooner terminated by 90 days' written notice prior to the
date of expiration in any current year. No such notice had been given
by the Company or the Association at the time of the filing of the
petition herein, and the contract was automatically renewed for the
coming year. Neither the Company nor the Association contended
that the contract constitutes a bar to a determination of representatives
and at the hearing the parties stipulated that a question concern-
ing representation had arisen by reason of the claim made by the
Union that it represented a majority in the alleged appropriate unit.
The Regional Director's report, supplemented by a statement bf the
Trial Examiner introduced into evidence, indicates that the Union,
represents a substantial number of employees in the alleged appropri-
ate unit. The Regional Director's report also indicates that the
Association has likewise made a sufficient showing of representation.2
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 Union requests a unit consisting of unlicensed personnel em-
ployed in the deck, engine,` and steward departments of the Com-
pany's deep-seagoing tankers, excluding wireless and radio operators,
and chief electricians. The Association and the Company agree upon
a unit embracing all unlicensed personnel of the Company's Marine
2 The Regional Director's report shows that the Union submitted 202 membership cards
and designation-resolutions which contained 171 signatures, most of which are dated
between March and June 1941; that excluding duplications, 66 cards or designation-
resolutions bear apparently genuine and original signatures of persons on the Company's
pay-roll list which contains 485 employees The pay-roll list submitted to the Regional
Director is that of March 4, 1942, and was introduced into evidence at the hearing.
The Trial Examiner's statement shows that the Union was granted until April 1, 1942,
to submit additional evidence of representation and that on March 31, 1942, the Union
submitted to the Trial Examiner 227 official receipts for membership books issued
of which 189 receipts appear to have been signed between January and March 1942;
105 certificates of affiliation, of which 91 are dated between April 1941 and March 1942 ;
and 24 authorization cards all signed in March 1942, of which 2 appeared to be dupli-
cates ; that excluding duplications, the evidence submitted to the Trial Examiner indi-
cates that of 319 signatures, 131 appear to be genuine and original signatures. of persons
on the Company's pay rpll of March 4, 1942.
The Regional Director's report shows that the Association submitted 2 lists containing
the names of 291 members in good standing as of June 23, 1940, and 53 as of June 1941,
respectively ; of the total number of names on these lists, 128 appear to be the names of
persons on the Company's pay roll which contains 485 employees. ,
ATLANTIC REFINING COMPANY 1 1341
Department employed as seamen, excluding radio operators and
junior engineers.3 The parties disagree as to whether unlicensed
personnel of the Company's three small tankers, the "R. D. Leonard,"
the "White Flash," and the "Franklin," the shore-relief employees,
and the ship-service employees, referred to as the "Anchorage" em-
ployees and "Leadermen," should be included. The Union contends
that the personnel of the three small tankers should be excluded
because these. vessels operate _on inland waterways; the Company and
the Association, assci t that these employees should be included as their
work is essentially the same as that of other seamen sought by the
Union. The Union maintains that the balance of the employees in
dispute should be excluded for the reason that they are not regular
seamen of the Company's deep-seagoing tankers, but are shoreside
workers whose work and living, conditions differ markedly from those,
of seamen on deep-seagoing tankers. The Company and the Asso-
ciation urge that shore-relief employees be included since they are
covered by the Association contract, and that "Anchorage" employees
and "Leadermen" also be included, although admittedly not covered
by the contract, because their work is closely related to regular sea-
men's work and because their omission from the contract was due
solely to the fact that the "Anchorage," which is the name of the resi-
dence and training school of these men,-had not -been erected- at the
time of the execution of thercontract.,
The "R. D. Leonard," the "White Flash," and the "Franklin" were
constructed and,are certified for ocean transportation and have been
engaged in such service. They are manned by regular seamen of the
same skill, ratings, and qualifications as the seamen of the Com-
pany's larger tankers. The working and living conditions, and the .
wages of seamen of both sizes of craft are identical. There is also
interchange of personnel from the larger to the smaller vessels. The
personnel of the-smaller tankers participated in a prior Board elec-
tion" and the contract with the Association has covered these em-
ployees. Although the small tankers now ply inland waters, this is
occasioned directly by enemy action, which has also required several
seagoing tankers of the Company to engage in similar service. We
are of the opinion that the circumstance of inland- operation of these
three vessels under present conditions, is insufficient to warrant the
exclusion of seamen on the smaller tankers. We conclude that unli-
censed seamen in the deck, engine, and steward departments of the
'All parties are in accord that the unlicensed personnel of the Company 's inland
craft such as, harbor tankers, tugs , and barges , tankers under foreign flag , and repair
and maintenance men should be excluded It appears that the parties are also agreed
that chief electricians and junior engineers should be excluded We shall exclude them.
4 American ' France Line , et al. and International Seamen's Union of America, 3 N. L. R
B. 64.
1342 DECISIONS OF NATIONALI`I.ABOR RELATIONS BOARD
Company's tankers, including the, unlicensed seamen- of the, "R. D.
Leonard," the "White Flash," and, the ``Franklin," may ' properly
constitute an appropriate unit. - -
With respect to-whether the "'Anchorage" employees and "Leader-
men" should be included in the unit,.'as contended by the Associa-
tion and the Company, or excluded as contended by the Union, -
it appears that -there is considerable 'difference between the working
and living conditions, the status, and the participation in actual sea=
going transpo.tation of these employees-and the Company's seagoing
personnel. "Anchorage"'employees are a' miscellaneous 'group, rang-
ing from seamen of diverse ratings to trainees with no ratings or sea
experience, all under the supervision of the "Leadermen," who in-
struct them- in seamanship and work with them in handling the
ships' mooring lines, stores, and minor repairs. In view of the sub-*
stantial differences in work and training, and since there is'no history
of collective bargaining for these 'employees, we shall exclude the,
"Anchorage" employees,5 and "Leadermen" from the unit.
Shore-relief employees,6 whom the Association and the Company-
would include as regular seamen, and' the Union would exclude as
shore-side workers; relieve the men of the regular crews of the tankers
when they arrive in port. They are eligible to membership in the
Association and are covered by the contract between the Company and '
the Association. They must be certified as seamen by the Bureau •of
Marine Inspection and Navigation. The nature and "tenure of their
employment, and their average pay, are similar to those of regular"
seamen. The Union does not oppose the principle of relief for regu- -
lar seamen, provided relief duty is incidental to the daily work 'of
regular seamen and is rotated among all seamen. It contends, how-,-
ever, that the Company's relief crews form a separate and permanent
group of the Company's employees who do not live and work at sea.
The record shows that these employees, once assigned to relief crews,
seldom return to sea.
We find that the shore-relief employees might • appropriately be
established as a separate bargaining unit or ;be merged with the
regular seamen. The circumstances are such that the desires of these
employees themselves is the principal factor in determining whether'
they shall function as a separate unit or become part of a unit of
unlicensed seamen. Accordingly, we shall direct that separate elec-
5 Among the "Anchorage" employees are survivors of Company ships lost at sea or -
other regular seamen of the Company who are recuperating and awaiting ships' berths.
Such employees , whether residing at the "Anchorage " or elsewhere , ai a within the'
unit and will be eligible to vote since they are in a position analogous to that of
employees not presently working because of illness or temporary lay-off
s The answer filed by the Company indicates there are 22 shore-relief employees How-
ever , a check of the Company 's pay roll, introduced into evidence , shows these were
only 19 such employees as of March 4, 1942
ATLANTIC REFINING COMPANY 1343
tions be held; one, among all unlicensed personnel in the deck, engine,
and. steward -departments of the tankers operated by the Marine De-
partment of the Company, including the unlicensed personnel of the
"R. D Leonard," the "White Flash," and the "Franklin," but ex-
cluding, "Anchorage" employees, "Leadermen," unlicensed personnel
of the .Company's inland tankers, tugs, barges, and vessels under for-
eign flag, repair and maintenance men, wireless and radio operators,
chief electricians and junior engineers; and another, among the shore-
relief employees of the Company. Since the Union, does not desire to
represent the shore-relief employees, we ,shall afford them an oppor-
tunity to vote for or against the Association. The appropriate unit
will depend upon the results of these elections. If the shore-relief
employees select a bargaining representative other than the repre- -
sentative selected by the unlicensed seamen of the Company's tankers
they will constitute a separate and distinct appropriate unit. If they
select the same representative as said unlicensed seamen, they will be
combined with the.latter into a single unit. We shall, therefore, make
no final determination of the appropriate unit or units pending the
results of the aforesaid election. -
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by separate elections by secret ballot,
and we shall so direct.
At the hearing, the Union requested that eligibility to vote be
determined by the pay roll for the period immediately preceding
the date of the filing of the petition, provided thait employees appear-
ing thereon shall be employed at the time of the election. The Com-
pany and the Association desire a current pay roll. We see no
reason to depart from our usual practice. We shall direct that those
eligible to vote in the elections shall be the employees within the
eligible categories, who were employed by the Company during the
pay-roll period immediately preceding the date of the Direction of
Elections herein, subject to the additions and limitations set forth in
the Direction. We shall further direct that the elections be held as
promptly as is practicable after the date of this Direction under the
direction and supervision of the Regional Director for the Fourth
Region, who shall determine in his discretion the exact time, place,
and procedure for giving notice of the elections and for balloting.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations 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 ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Atlantic Refining Company, Philadelphia, Pennsylvania, elec-
tions by secret ballot shall be conducted as soon as convenient, and
beginning as promptly as is practicable after the date of this Direc-
tion , in conformity with the rules set forth in Section 'V, above,
for the conduct of such elections, under the direction and supervision
of the Regional Director for the Fourth 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 :
(1) All unlicensed personnel in the,deck, engine, and steward de-
partments of the tankers operated by the Marine Department of the
Company, including the unlicensed personnel of the "R. D. Leonard,"
the "White Flash," and the "Franklin," who were employed during
the pay-roll period immediately preceding the date of this Direction
of Elections, including any such 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 tempo-
rarily laid off, but excluding "Anchorage" employees, "Leadermen,"
unlicensed personnel of the Company's inland-tankers, tugs, barges,
and vessels under foreign flag, repair and maintenance men, wireless
and radio operators, chief electricians and junior engineers, and any
who have since quit or been discharged for cause, to determine whether
they desire to be represented by National Maritime Union of America,
C. I. 0., by Atlantic Maritime Employees Union, for the purposes of
collective bargaining, or by neither;
(2) All shore-relief employees of the Company's Marine Depart-
ment who were employed during the pay-roll period immediately pre-
ceding the date of this Direction of Elections, including any such
employees who did not work during such pay-roll period because
they were ill or on vacation, or temporarily laid off, but excluding
any who have since quit or been discharged for cause, to determine
whether or not they desire to be represented by Atlantic Maritime
Employees Union, for the purposes of collective bargaining.