Magnolia Petroleum Co.

National Labor Relations Board - Board Decisions

Sep 29, 1943

52 N.L.R.B. 984 (N.L.R.B. 1943)

In the Matter Of MAGNOLIA PETROLEUM COMPANY and 01L WORKERS
INTERNATIONAL UNION (C. I. 0.)
Case No. R-5932.-Decided September 29, 1943
Mr. Roy C. Ledbetter, of Dallas, Tex., Mr. Carl H. Mueller, of
Fort Worth, Tex., and Mr. Sam Lipscomb, of Beaumont, Tex., for
the Company.
Mr. Clyde Johnson, of Fort Worth, Tex., and Mr. F. H. Mitchell,
of Beaumont, Tex., for the Union.
Mr. W. L. Grant, of Houston, Tex., for the I. A. M.
Mr. R. R. Palmer, of Beaumont, Tex., for the I. B. E. W.
Mr. William C. Baisinger, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition and amended petition 1 duly filed by Oil Workers
International Union (C. I. 0.), herein called the Union, alleging
a question affecting commerce had arisen concerning the repre-
sentation of employees of Magnolia Petroleum Company, Beau-
mont, Texas, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice
before' Robert F. Proctor, Trial Examiner. Said hearing was held
at Beaumont, Texas, on August 24, 1943. The Company, the Union,
International Brotherhood of Electrical Workers, Local 479, A. F.
of L., herein called the I. B. E. W., and International Association
of Machinists, Lodge 395, herein called the I. A. M., appeared 2
The Company and the Union participated. All parties were
afforded full opportunity to be heard, to examine and cross-
1 At the hearing the Trial Examiner , without objection from the Company , granted the
motion of the Union to amend the description of the bargaining unit set forth in its
amended petition to read as it appears in paragraph 1 of Section IV, snfra.
z The I. B. E. W. and the I. A. M., although present at the hearing , did not seek to par-
ticipate , inasmuch as the unit petitioned for by the Union expressly excludes the employees
of the Company currently represented by these organizations.
52 N. L. R. B., No. 171.
984
:1
MAGNOLIA PETROLEUM COMPANY 985
examine witnesses, to introduce evidence bearing on the issues and
to file briefs with the Board. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in the case, the Board makes the fol-
lowing:
FINDINGS OF FACT '
1. THE BUSINESS OF THE COMPANY
Magnolia Petroleum Company, a Texas corporation having its prin-
cipal offices in Dallas, Texas, is engaged in the production, purchase,
refining, and sale of petroleum and petroleum products in the States
of Arkansas, Louisiana, Kansas, Oklahoma, Illinois, New Mexico, and
Texas. One of the principal refineries operated by the Company and
the only plant 3 involved in this proceeding is located near Beaumont,
Texas. At this refinery crude petroleum received by means of pipe
lines and other transportation facilities is refined and transported by
the Company to its purchasers. A substantial amount of the crude
petroleum processed in the Company's Beaumont, Texas, refinery is
received from points outside the State of Texas. Likewise 'a large
volume of the refined petroleum is shipped from said refinery to points
outside the State of Texas. The Company admits that its Beaumont,
Texas, refinery it is engaged in commerce within the meaning of the
National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Oil Workers International Union is a labor organization affiliated-
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated that a question concerning the representa-
tion of employees of the Company had arisen following a written
request directed'to the Company by the Union for recognition as the
bargaining representative of the employees within an alleged appro-
priate unit and a written reply by the Company in which it stated that
it doubted that the Union represented a majority of such employees.
A statement of a Field Examiner of the Board, introduced in evi-
dence at the hearing, supplemented by a statement made by the Trial
Examiner at the hearing, indicates that the Union represents a sub-
8 The Company operates two auxiliary plants, known as Magpetco plant and Higgins
station, which are located approximately 5 miles and 3 miles respectively from the main
refinery but are operated as adjuncts to any considered a part of the Beaumont refinery.
986 DECISIONS OF NArPIONAL LABOR RELATIONS BOARD
stantial number of employees within- the unit, hereinafter found to,
be appropriate .4 ,
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 Act.
IV. THE APPROPRIATE UNIT
The Union contends that all the hourly paid production and
maintenance employees employed at the Company's Beaumont, Texas,
refinery, including the hourly paid employees at the Magpetco and
Higgins station plants, but excluding officials, supervisors, foremen,
office and clerical employees, plant-protection employees, chemists,
graduate chemists, analytical laboratory employees, all civil, chemical,
mechanical, and electrical engineers, all other professional personnel,
electricians, and machinists in the units defined in the current con-
tracts between the Company and International Brotherhood of Elec-
trical Workers and International Association of Machinists, and casual
temporary employees, comprise an appropriate bargaining unit. The
Company does not dispute the appropriateness of this unit except to
contend that employees classified as yard clerks should also be included
in the unit. The Union excludes yard clerks as clerical employees..
There are approximately 100 employee classifications within the unit
sought by the Union.
With respect to the duties and functions of yard clerks, the record
indicates that these employees are not hourly paid but receive a,
monthly salary. It further appears that each department in the re-
finery yard employs at least one of these clerks who works out of the
office of the department's foreman. They make out the work schedules
for the employees in each department under the direction of the fore-
man. They also keep the working time of the hourly paid personneP
and assist in computing the Federal income tax to be withheld from
the hourly paid employees' pay. Since they are salaried employees
whose duties are essentially clerical in nature, we shall exclude the
yard clerks from the appropriate unit.
The record indicates that among the hourly paid employees of the
Company there are five employee classifications designated as sub-
foremen and one classification called leadermen. In view of our policy
4 The Field Examiner ' s report , as supplemented by the statement of the Trial Examiner,
shows that the Union submitted 1,001 membership cards bearing apparently genuine
original signatures . Since the Company refused to submit its pay roll for inspection
by the Field Examiner or the Trial Examiner, no check of the names on the membership
cards could be made against the names of persons on the Company' s pay roll However,
the Company did state on the record that the total number of employees did not
.exceed 3,000.
MAGNOLIA PETROLEUM COMPANY 987
announced in' the Maryland Drydoek case 5 denying supervisory em-
ployees the right to bargain collectively under the Act either as a
separate bargaining unit or in a unit comprised of production and
maintenance employees, we shall discuss the subforemen and leader.
men, although both the Union and the Company agree that-they should
be included in the appropriate unit.
Sub f oremen
These employees are classified as subforemen A, C, D, E, and F,
respectively. Each of these classifications appears on the list of hourly
paid employees which was introduced in evidence at the hearing. The
Company's Industrial Relations manager testified that a few of these
subforemen are carried on the salary pay roll. The subforemen work
in the various production and maintenance departments of the re-
finery and are in charge of groups of hourly paid employees who per-
form various manual duties within the departments. The distinction
between the various levels of subforemen is based upon the relative
skill and the number of employees whose work they direct. They
possess no authority to hire, discharge, or discipline the employees
under them, and only the same right or power to make recommenda-
tions as to the hire, transfer, or discharge of employees that any other
employee may exercise. From the evidence adduced at the hearing,
it appears that the subforemen function more in the capacity of gang
pushers than supervisory employees and as such are not within the
Board'S definition of supervisory employees. Since the record is not
clear with respect to which of the subforemen are on the salary pay
roll and which are hourly paid, we shall include only the hourly paid
•subforemen A, C, D, E, and F in the appropriate unit.
Leadermen
Each subforeman in charge of a gang of hourly paid employees
selects from'his group one person who is designated as a leaderman.
The leaderman assists the subforeman in directing the work of the
gang and consequently possesses less authority than does the subfore-
man. We shall include the leadermen in the appropriate unit.
We find that all hourly paid production and maintenance employees
employed at the Company's Beaumont, Texas, refinery, including
hourly paid subforemen A, C, D, E, and F, leadermen, and the hourly
paid production and maintenance employees at the Magpetco and
Higgins station plants, but excluding officials, supervisors, foremen,
and other supervisory employees with the authority to' hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, office and clerical em-
ployees including yard clerks, plant-protection employees, chemists,
6 Matter of The Maryland Drydock Company, 49 N L R B. 733.
988 DECISIONS OF NAIfl0NAL LABOR RELATIONS BOARD
graduate chemists, analytical laboratory employees, all civil, chemical,
mechanical and electrical engineers, all other professional personnel,
electricians, and machinists in the units defined in the current con-
tracts between the Company, and International Brotherhood of Elec-
trical Workers and'nternational Association of Machinists, and
casual temporary employees, 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 among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction 'of
Election herein, subject to the limitations and additions set forth in
the Direction.
The Company urges that its employees in the armed forces of the
United States be afforded an opportunity to vote in the election, by
mail if not available to cast a ballot in person. In support of this
request, the Company adduced evidence to the effect that about 20
percent of its employees are on military leave from their former posi-
tions with the Company; that it maintains up-to-date addresses of
employees in the services; and that all persons hired since October 16,
1940, have been required to accept the status of temporary employees.
While we recognize that such employees have an interest in the selec-
tion of a bargaining representative, we are- not persuaded that we
should depart from the policy with respect to mail balloting which
we have followed since December 1941.° Accordingly, we shall not
provide for mail balloting for employees in the armed forces, but
such of them as appear in person at the polls will be eligible to vote, in
accordance with our usual practice.
The Company further argues that since all persons hired subsequent
to October 16, 1940, have been employed only as temporary employees
to replace those employees on military leave, they should not be eligible
to vote in the election. This contention has also previously-been
rejected by us.' Inasmuch as it appears that these employees work
under the same conditions as all other employees of the Company and
have prospects of a reasonable term of employment with the Company,
we find them eligible to vote in the election.
e See Matter of R C. Mahon Company, 49 N. L. R B. 142; Matter of Watson & Co., Inc,
37 N L. R B. 944.
7 See Matter of International Harvester Company, 32 N. L. R B 16, and subsequent cases.
MAGNOLIA PETROLEUM COMPANY 989
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, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DiREECrED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Magnolia Petro-
leum Company, Beaumont, 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 direction and supervision' of the
Regional Director for the Sixteenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, 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, including employees who did not work
during said pay-roll period because'they were ill or on vacation or
temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding any who have since quit or been discharged for cause,
to determine whether or not they desire to be represented by Oil
Workers International Union, affiliated with the Congress of Industrial
Organizations, for the purposes of collective bargaining.
CHAIRMAN Miuas took no part in the consideration of the above
Decision and Direction of Election.
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