Felton Oil Co.

National Labor Relations Board - Board Decisions

Aug 17, 1948

78 N.L.R.B. 1033 (N.L.R.B. 1948)

'In the Matter of "0. E. FRLTON , D/B/A FEILTON OIL COMPANY , EMPLOYER
AND PETITIONER and PETROLEUM DRIVERS & HELPERS, LOCAL No.
248, A . F.' of L.
Case No. 21-RM-4.-Decided August 17, 19.18
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in' this case was held at Los
Angeles, California, on February -26,1948, before Ben Grodsky, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error 'and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
O. E. Felton,,d/b/a Felton Oil Company , is engaged in the distri-
bution of petroleum products within the State of California.- The
Employer is - under contract to buy and sell only petroleum products
manufactured by General Petroleum Corporation of California, here-
inafter called the Corporation , which the Board has in the past deter-
mined to be subject to the jurisdiction of the National Labor Relations
Act?
The Corporation refines gasoline from crude oil, part of which is
produced in California and part o l which is received by it from points
outside the State . The Employer picks up all his petroleum products
at the warehouses of the Corporation in California and makes all his
deliveries within the State, either to his own accounts or to accounts
of the Corporation , for which the Employer is the exclusive distributor
in a specified area in Southern California . These accounts include a
number of concerns over which the Board has in the past assumed
jurisdiction , including Consolidated Vultee Aircraft Corporation,
3 Matter of General Petroleum Corporation of California , 56 N. L. R. B. 1366.
78 N. L. R. B, No. 141.
1033
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Douglas Aircraft Corporation, B. F. Goodrich Rubber Company, and!
North American Aircraft Company. The Employer's sales for the
first 11 months of 1947 included 6,500,000 gallons of gasoline, 132,000
gallons of oil, 110,000 pounds of grease, and 135,000 gallons of "white
,products." About 11 percent of the gasoline, 20 percent of the oil,
and 23 percent of the grease were sold to accounts of the Corporation.
We find that the Employer's operations affect commerce within the
meaning of the Act .2
H. THE ORGANIZATION INVOLVED
Petroleum Drivers & Helpers, Local No. 248, herein called the
Union, is a labor organization affiliated with the American Federation
of Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On September 17, 1946, the Employer and th eUnion entered into a.
contract, which expired on September 30, 1947. Shortly before the
latter date, the Union sought -to negotiate a new contract, claiming
that it still represented a majority of the employees. The Employer
disputed this, and on September 23, 1947, filed the instant petition.
Although duly served with a copy of the Notice of Hearing on the
instant petition, the Union failed to appear. However, we do not
construe the Union's absence from the hearing as a withdrawal of its
claim to represent employees of the Employer.3 Such absence may
denote, not indifference, as our dissenting colleague suggests, but
merely acquiescence in the proceedings before the Board.4 More-
over, we do not think that it comports with orderly procedure to set
a case for hearing and to presume from the Union's failure to appear
that it no longer claims exclusive recognition.
Our dissenting colleague believes that the instant petition should
be dismissed because the Board has not been furnished with any data
concerning the number of employees in the unit who have designated
the Union as their bargaining representative. Such a showing is
required by the Board with respect to a petition for certification filed
under Section 9 (c) (1) (A) of the Act to enable the Board to
determine administratively whether further proceedings on the peti-
tion are warranted. Our colleague would have us extend this require-
9 Consolidated Edison Co v N L R B . 305 U. S. 197 . Matter of McCarty Manufacturing
Company, 59 N. L R B. 1244 ; Matter of Santa Fe Springs Waste Water Disposal Company,
. 68 N L R. B 403; Butler Bros. v N. L R B ., 114 F . ( 2d) 981 983 ( C C. A 7), cert den.
320 U S. 789
8 Cf Matter of Ny -Lint Tool and Manufacturing Company, 77 N L R B 642 ; Matter
of Terrytoons , Inc., 77 N L. R B 471 ; Matter of Federal Shipbuilding and Drydock
Company, 77 N. L. R. B. 463.
' See Matter of California Knitting Mills, 77 N L R. B 574.
FELTON OIL COMPANY 1035
rnent of a showing of interest to a petition filed, as in the instant case,
by an employer under Section 9 (c) (1) (B).
Section 202.17 (a) of the Board's Rules and Regulations-Series 5,
effective August 22, 1947, provides that in the case of a petition by
an employer no proof of representation on the part of the labor organ-
ization claiming a majority is-required. We. are aware of nothing in
the legislative history or provisions of the amended Act which pre-
cludes the Board from adhering to this rule .5 Moreover, for reasons
set forth below, we believe that the application of this rule will best
effectuate the intent of Congress in enacting the provision for employer
petitions in Section 9 (c) (1) (B).
At the outset it is to be noted that, unlike Section 9 (c) (1) (A) of
the Act, Section 9 (c) (1) (B), under which the instant petition was
filed, does not require any allegation by the Petitioner that a substan-
tial n* umber of employees wish, or do not wish, to be represented by a
union.
If, as our colleague maintains, the Board must nevertheless deter-
mine, as a condition of processing an employer petition, that the union
or individual claiming exclusive recognition has sufficient support for
such claim to warrant the holding of an election, there would be serious
practical difficulties in the way of compliance with such a requirement
in the normal case. If a union desires an election, it will normally file
its own petition. Where it fails to do so, the union presumably does
not desire all election, and so would not be likely to cooperate in fur-
5 The excerpt from the Senate Committee Report quoted by our dissenting colleague
states merely that the provisions for employer petitions do not affect the Board ' s rules
with respect to dismissal of petitions by reason of an inadequate showing of representa-
tion. Prior to the amendments , the Board had no iule requiring a showing of interest in
cases of employer petitions involving , as in the instant case, only one union, as the
Board did not entertain such petitions at all until the enactment of Section 9 (c) (1) (B).
And in the case of conflicting claims by rival unions , where the Board 's procedures did
permit the filing of employer petitions , the Board , in fact, did not require a showing of
substantial interest as a condition of entertaining such a petition See Sections 203 47 (b)
and 203 .49 of the Board's Rules and Regulations-Series 4 In the Sprague case, cited
by our dissenting colleague , the Board , in stating the reasons for the dismissal of the
Employer ' s petition , significantly did not refer to the absence of any showing as to the
union's representative status , but relied rather on the union ' s nonappearance at the
hearing , coupled with its indication of lack of interest in the proceeding we find no such
indication in the instant case.
The dissent herein relies also on the first clause of Section 9 (c) (2) of the amended
Act as manifesting the desire of Congress that the Board apply the same procedures
to employer petitions as to other petitions However, it is clear from the legislative
history of this clause , as well as its context, that it was designed only to preclude the
Board from according more favorable treatment to affiliated than to independent unions.
MHouse Conference Report No 510, 80th Cong, 1st Sess , p 48, Senate Report No 105,
80th Cong , 1st Sess, p 25. Moreover, if Section 9 (c) (2) is to -be applied as our
dissenting colleague asserts , it would require that employer -petitioners obtain and
submit evidence of a union 's representative interest in the same manner as , other peti-
tioners-namely , by ascertaining what employees had designated the union as their
representative. Patently , at the very least , this would require the employer to engage
'in unfair labor practice in procuring such data . We cannot believe that Congress intended
such a result.
t
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wishing information to the Board as to its representative status in
order to assist the employer in obtaining an election. Accordingly, if
we required employer petitions to be supported by a showing of the
union's interest, we would for all practical purposes defeat the will- of
Congress as expressed-in Section 9 (c) (1) (B), that employers con-
fronted with a union's claim for recognition be afforded an opportunity
to ascertain through a Board election the representative status of the
union.
We find, therefore, that a question affecting commerce exists con-
cerning the representation of employees of the Employer, within the
° meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Employer contends without contradiction, and we find, that all
truck drivers at the Employer's, Downey, California, plant, excluding
supervisors, constitute a unit appropriate for the purposes of, collective
bargaining within the meaning of Section 9 (b) of the Acts
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with O. E. Felton, doing business as
Felton Oil Company, Downey, California, 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 super-
vision of the Regional Director for the Twenty-first, Region, and sub-
ject to Sections 203.61 and 203.62 of National Labor Relations Board
Rules and Regulations-Series 5, 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, in-
cluding employees who did not work during said pay-roll period be-
cause they were ill or on vacation or temporarily laid off, but excluding
those employees who have since quit or been discharged for cause and
have not been rehired or reinstated prior to, the date of the election, and
also excluding employees on strike who are not entitled to reinstate-
ment, to determine whether or not they desire to be represented by
Petroleum Drivers & Helpers, Local No. 248, A. F. of L., for the pur-
poses of collective bargaining.
CI-IAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
6 The record does not disclose to what extent , if any , the unit sought by the Employer
differs from the unit established in the 1946 contract , which was comprised of "all drivers,
warehousemen , plantmen , and yardmen."
FELTON OIL COMPANY 1037
MEMBER MURDOCK , dissenting :
I disagree with the assumption of jurisdiction in this case because
the Employer 's business is essentially local . It neither sells nor pur-
chases any product outside the State of California. The majority
asserts jurisdiction over it merely because it purchases within the
State of California certain petroleum products from a corporation
which has been held to be within the jurisdiction of the National Labor
Relations Board ; sells petroleum products to other persons wholly
within the State of California who come within the jurisdiction of the
Board; and makes some deliveries within the State of California for
the account of the General Petroleum Corporation . I find it difficult to
think of any business or industry , however local its character may be,
that could not be brought within the jurisdiction of the Board by the
standards which the Board has used in this case . Although there is
a remote possibility that labor trouble in the employer 's business
might to a very small degree affect commerce, I cannot believe that
Congress intended that the Board should take jurisdiction of such
local enterprises . Accordingly , I would dismiss the petition on juris-
dictional grounds.
I also believe that the petition should be dismissed for the further
reason that it has not been shown that the Union actually has a sub-
stantial interest among the employees so as to warrant the conclusion
that a question concerning representation exists to justify an election.
The Board is considering here an employer 's petition filed under Sec-,
tion 9 (c) (1) (B ) of the National Labor Relations Act, as distin-
guished from an employee 's or labor organization 's petition filed under
Section 9 ( c) (1) (A) of the Act. Under the Wagner Act, there
was no specific statutory provision for the filing of a representation
petition by an employer . The Board, however , prior to the 1947
amendments , in the light of its experience , provided by rule for the
filing of an employer petition . in situations where- two or more labor
unions claimed to represent employees of an employer. It was obvi-
ously the intent of Congress , by the enactment of Section 9 (c) (1)
(B), to perfect by statutory provision the right of employers to file
representation petitions , not only where two unions made claims of
representation , but also where only one union claimed bargaining
rights.
Section 9 ( c) (1) provides that whenever a petition has been filed
either under Section 9 (c) (1) (A) or Section 9 (c) (1) (B) :
The Board shall investigate such petition and, if it has reason-
able cause to believe that a question of representation affecting
commerce exists, shall provide for an appropriate hearing upon
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
due notice. . . . If the Board finds upon the record of such
hearing that such a question of representation exists, it shall
direct an election by secret ballot and shall certify the results
thereof.
This clearly expresses Congress' intent that the Board's determina-
tion that a question of representation exists shall not be made until it
has first administratively investigated such petition and, on such in-
vestigation, has reasonable cause to believe that a question of repre-
sentation affecting commerce exists . After having established such
reasonable cause, the Board is then directed to provide a hearing upon
due notice. At such hearing it must be established upon the record
that a question of representation actually exists before the Board -may
direct an election to determine the question of representation. Sec-
tion 9 (c) (2) provides that "In determining whether or not a ques-
tion of representation affecting commerce exists , the same regulations
and rules of decision shall apply irrespective of the identity of the per-
sons filing the petition or the kind of relief sought... ." [Emphasis
supplied.]
It is apparent from the foregoing quotations from the Act that Con-
gress was keenly aware of the possibility that frivolous petitions might
be presented to the Board either by employees, labor organizations,
or employers. To guard against such frivolous petitions and the fu-
tile expenditure of Government funds in conducting unwarranted elec-
tions, Congress adopted the formula of an administrative investigation
followed by a hearing with a finding that a question of representation
exists as a condition precedent to the direction of an election in all
cases.?
The Board has not in the past recognized a naked claim of represen-
tation as sufficient to raise a question concerning representation so as
to warrant directing an election, either in the case of petitions by labor
organizations or by employers.,, I find nothing in the amended Act
to warrant a conclusion that Congress intended the Board to do so in
' In the Loewenstein case (75 N L R B 377), the Board specifically held that, regardless
of the fact that an employer files the petition under Section 9 (c) (1) (B), the question
of representation is initially raised by claimants , whether individuals or labor organiza
tions Thus , whether a petition is filed under Section 9 (c) (1) (A) or (B), the question
of representation is raised by the employees or an individual or a labor organization
claiming to act in their behalf and cannot be raised by the employer 's act of filing a
petition
8 See e g Matter of 0 H Sprague & Son Company , 72 N. L R. B 1401, where the
Board dismissed an employer petition after finding no question concerning representation
existed The rival labor organizattion which requested ..recognition of -the employer
admitted prior the hearing that it had no proof of representation beyond the fact that
one employee had once been a member. The Board found that the rival organization, "has
not appeared al, the hearing , although apprised thereof, and has, in fact , indicated a lack
of interest in this proceeding , thereby defaulting on its purported claim."
FELTON OIL COMPANY 1039
the case of employer petitions under the new Act. The majority at-
tempts to support its position by calling attention to Section 202.17
(a) of the Board's Rules and Regulations effective August 22, 1947,
7vhich provides that in the case of a petition by an employer, no proof
of representation on the part of the labor organization claiming a
majority is required. Certainly a rule promulgated by the Board,
which is in conflict with the provisions of the Act itself, affords no sup-
port for the majority decision. The statement of the majority that
"We are aware of nothing in the legislative history or provisions of the
amended Act which precludes the Board from adhering to this rule,"
fails to give effect to the plain language of Section 9 (c) (2) which
provides that the sane rules of decision shall be applied in determin-
ing the existence of a question concerning representation "irrespective
,of the identity of the persons filing the petition or the kind of relief
sought." [Emphasis supplied.] The general rule laid down in Section
9 (c) (2) so clearly and explicitly demands that a showing of sub-
stantial interest should be required in connection with all petitions
if required in connection with any, that resort to legislative history
for its meaning is unnecessary. Nevertheless, the majority turns to
the legislative history and seizes on a statement therein as to what
motivated the insertion of Section 9 (c) (2) in the Act as a peg upon
which to Jiang the sweeping pronouncement that Congress intended its
.application only to that limited situation despite the all-inclusive gen-
erality of the rule laid down in plain language in the provision. In
resorting to the legislative history to vary and constrict the unam-
biguous language of Section 9 (c) (2), the majority flies in the face
of the elementary rule of statutory construction which the Supreme
Court stated in the following words in Caminetti v. U. S., 242 U. S.
470,4851490:
It is elementary that the meaning of a statute must, in the first
instance, be sought in the language in which the act is framed,
and if the law is within the constitutional authority of the law-
making body which passed it, the sole function of the courts is to
enforce it according to its terms . . . . Where the language is
plain and admits of no more than one meaning the duty of inter-
pretation does not arise and the rules which are to aid doubtful
meanings need no discussion . . . . Reports to Congress accom-
panying the introduction of proposed laws may aid the courts in
reaching the true meaning of the legislature in cases of doubtful
interpretation . . . . But, as we have already said, it has been
so often affirmed as to become a recognized rule, when words are
free from doubt they must be taken as the final expression of the
legislative intent, and are not to be added to or subtracted from
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by considerations drawn from titles or designating names or re-
ports accompanying their introduction or from any extraneous
source. In other words, the language being plain, and not leading
to absurd or wholly impracticable consequences, it is the sole evi-
dence of the ultimate legislative intent. [Emphasis supplied.]
Not only is the resort to legislative history unwarranted here, but the
conclusion drawn from the legislative history relied upon by the
majority is unwarranted. The mere fact that the original motivation
for the insertion of Section 9 (c) (2) in the Act was to preclude the
Board in representation cases from according more favorable treat-
ment to affiliated unions than to independent unions does not prove
that the section was "designed only" to apply to that narrow situation
as the majority assert. Had Congress intended only to provide that the
same rules of decision should be applied in determining the existence
of a question concerning representation irrespective of whether peti-
tioner was an affiliated or independent union, it could have simply said
so, and undoubtedly would have said so. When it went further and
used words laying down a broad general rule, are we to conclude as
the majority implicitly does, that Congress was doing a useless thing
and didn't intend that the words should mean what they say? More-
over, if legislative history is to be considered, in my opinion, the
express reference to employer petitions in the Senate Labor Committee
Report,9 when read together with Section 9 (c) (2), is affirmative
indication that Section 9 (c) (2) was intended to be given its normal
scope and meaning, and renders it impossible to conclude that Congress
intended the Board to use a double standard for determining the
existence of a question concerning representation-one standard for
employer petitions and a different one for those filed by employees or
labor organizations..
Without question, Congress intended to protect the employer against
claimants purporting to represent his employees by affording him
a method by which he might have such claims resolved. But it is in-
conceivable to me, in the light of the language of Section 9 (c) (1) and
(2), that Congress intended that this Board should take the time and
expend the money necessary to hold an election on the mere claim of
representation of some individual or labor organization without the
slightest requirement of a showing of substantial interest.
The existence of a recently expired contract might ordinarily be
deemed a sufficient showing of substantial interest to justify a conclu-
""Neither of these amendments [ for decertification and employer petitions ] affects the
present Board 's rules of decision with respect to dismissal of petitions by reason of an
inadequate showing of representation or the existence of an outstanding collective agree-
ment as a-bar to an election ." [ Emphasis supplied .] Senate Report No . 105, 80th Con-
gress, 1st Session, page 25.
FELTON OIL COMPANY 1041
lion that a question concerning representation exists and proceeding
to an election . But such a contract cannot be so treated where, as here,
.after receiving notice of the hearing , the Union fails to appear to
support its prior claim of representative status. I would construe a
failure or refusal of a union to appear and support a claim of repre-
sentative status in a proceeding in which its status is questioned, as an
abandonment of such claim . Such a finding is fully warranted and
provides a complete answer to the question which is posed by an em-
ployer petition-what is the representative status of a -union which has
made a claim. The Board's finding and decision that the claimant is
not the representative of the employees is adequate protection for the
employer and is all that can be done , even after the holding of the
election, if the vote is against the Union. The majority fail to point
out wherein such a finding does not afford the employer all the pro-
tection he needs.
The majority 's insistence that the Board should proceed to useless
elections on employer petitions in situations where there is no showing
that the union involved has any substantial interest, or where by reason
of the union 's failure to appear it is properly found to have abandoned
a claim of representative status, will have serious consequences apart
from wasting appropriations in running unnecessary elections. It
must be remembered that when the Board has directed an election,
Section 9 (e) (3) prohibits another election from being ordered within
a 12-month period . Thus, whenever a union which represents only a
mere handful of employees , or even none , makes a naked claim of rep-
resentation on an employer , or whenever an employer collusively ar-
ranges for some individual or organization to make a claim , the Board's
action in directing a needless election on the employer 's petition will
serve to deprive the employees of any opportunity to vote for a col-
lective bargaining representative for a year . The decision of the
majority in this case is thus an invitation to the unscrupulous employer
to thwart collective bargaining . It encourages labor organizations
which are prone to indulge in "dog-in-the-manger" tactics to make
frivolous claims on an employer . It compels employees to make a
nugatory choice between a. union which has indicated its lack of inter-
est in them by defaulting on its purported claim to represent them and
no collective bargaining for a period of a year by a duly elected repre-
sentative . It attributes to Congress an intent to frustrate collective
bargaining rather than to encourage it, despite the fundamental policy
expressed in the Act to encourage the practice and procedure of col-
lective bargaining in order to safeguard and promote the flow of
commerce.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By construing Section 9 (c) (1) and (2) as requiring the Board to
insist on a substantial showing of interest before it finds the existence
of a genuine question of representation in employer petition cases, as
well as in others, we would adhere both to the language of the Act and
Congressional intent, and avoid the pitfalls referred to. Such con-
struction would discourage the filing of frivolous claims. It would
encourage and facilitate collective bargaining, rather than thwart and
impede it. Contrary to the conclusion of the majority, it would do
no injustice to anyone. The employer's rights can be as effectively
safeguarded by an order of this Board dismissing a petition based on
a frivolous claim with the finding that the claimant does not represent
the employees, as they could be by an election, and without the devas-
tating results of forestalling collective bargaining for the long period
of it year.
The assertion of the majority in footnote 5 that a construction of
Section 9 (c) (2) to require a substantial showing of interest in em-
ployer petition cases as well as others would require the Employer
"to obtain and submit evidence of a Union's representative interest"
and thereby "to engage in an unfair labor practice," is completely
without foundation. It would no more be the Employer's responsi-
bility to make the showing than it is when it labor organization is peti-
tioner. The responsibility as always lies With the labor organization
making the claim of representation admzinistratively to satisfy Board
representatives that it has a substantial interest to support such a
claim. Showing of substantial interest is never a matter for'litigation.
Where it union's claim of representation is frivolous and it fails to
make any showing, or where it makes some effort to do so but its show-
ing is insubstantial, we would simply find that the union is not the
representative of the employees.