Magnolia Petroleum Co.

National Labor Relations Board - Board Decisions

Dec 16, 1939

18 N.L.R.B. 380 (N.L.R.B. 1939)

In the Matter Of MAGNOLIA PETROLEUM COMPANY and OIL WORKERS'
INTERNATIONAL UNION LOCAL No. 243
In the Matter Of MAGNOLIA PETROLEUM COMPANY and OIL WORKERS'
INTERNATIONAL UNION LOCAL No. 243 AND LOCAL No. 229
Cases Nos. C-940 and R-735, respectively. Decided December 16,
1939
• Oil Producing and Refining Industry-Interference, Restraint, and Coerciom-
Com.pany-Dominated Unions: domination of and interference with formation
and administration of three successive labor organizations; support; holding
of elections on company time and property ; coercion to join ; participation by
supervisory employees ; identity of officers in all three unaffiliated organizations ;
unexplained long distance, collect, telephone calls to respondent's personnel.
officer; recognition ordered withheld-Investigation of Representatives: con-
troversies concerning representation of employees; controversy concerning ap-
propriate unit-Unit Appropriate for Collective Bargaining: nearby subsidiary
stations included ; inclusion or exclusion of machinists' and boilermakers' crafts
dependent upon results of elections ; maintenance and production employees,
exclusive of executives, professional employees, foremen, subforemen , all those
having the power to discharge, all clerical employees, both office and those
classified as yard clerical and timekeepers, watchmen, safety department em-
ployees, and all laboratory employees, except those paid on an hourly basis-
Elections Ordered: date of, to be determined in future ; company-dominated
union excluded from ballot.
Mr. Warren Woods, for the Board.
Mr. Russell Surles, of Dallas, Tex., and Mr. Sam Lipscomb, of
Beaumont, Tex., for the respondent.
Mandell & Combs, by Mr. A. J. Mandell and Mr. Herman Wright,
of Houston, Tex., for Local 243'and Local 229.
Mr. J. L. C. McFaddin, of Beaumont, Tex., for the Independent.
Mr. H. A. Barlett, of Beaumont, Tex., for the Machinists' Union.
Mr. J. N. Davis, of Kansas City, Kans., for the Boilermakers' Union..
Mr. Willard Young Morris, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On April 2, 1938, Oil Workers' International Union, Locals Nos.
243 and 229, herein called Local 243 and Local 229, respectively, filed
18 N. L. R. B., No. 55.
380
MAGNOLIA PETPII.OLEUM COMPANY 381
with the Regional Director for the Sixteenth Region (Fort Worth,
Texas) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Magnolia Petro-
leum Company, Dallas, Texas, herein called the respondent, and re-
questing an investigation and certification of representatives pursu-
ant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On April 11, 1938, Local 243 filed charges
with the Regional Director alleging that the respondent had engaged
in and was engaging in certain unfair labor practices affecting com-
merce, within the meaning of the Act. On April 30, 1938, the Na-
tional Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered an investigation and authorized the Regional Director to con-
duct it and to provide for an appropriate hearing upon due notice.
International Association of Machinists, Lodge No. 395, herein called
the Machinists' Union, and International Brotherhood of Boilermak-
ers, Iron Ship Builders, Welders and Helpers of America, Lodge 587,
herein called the Boilermakers' Union, two labor organizations claim-
ing to represent employees directly affected by the investigation, filed
with the Regional Director motions for leave to intervene. The
Regional Director granted the motions. Thereafter, pursuant to
notice, a hearing upon the petition was held on May 9, 1938, at Beau-
mont, Texas, before Peter Ward, the Trail Examiner duly designated
by the Board. The respondent and Locals 243 and 229 appeared by
counsel, and the Machinists' Union and the Boilermakers' Union by
their representatives. At the opening of the hearing the Trial Exam-
iner granted a motion for intervention filed by Employees Independent
Union of Oil and Refinery Workers, Local No. 1, Beaumont, Texas,
herein called the Independent, another labor organization claiming
to represent employees directly affected by the investigation.' The
ruling is hereby affirmed. No testimony was taken. Upon a motion
made by counsel for the Board and joined in by counsel for Local
243 and Local 229, the Trial Examiner postponed the hearing.
On May 16, 1938, the Board, acting pursuant to Article III, Section
10 (c) (2), and Article II, Section 37 (b), of National Labor Relations
Board Rules' and Regulations-Series 1, as amended, ordered that the
representation proceeding and the proceeding arising upon the charges
filed by Local 243 be consolidated for the purpose of hearing.
Upon amended charges duly filed by Local 243, the Board, by the
Regional Director, issued its complaint dated May 23, 1938, against the
respondent, alleging that the respondent had engaged in and was
1 At the time of its intervention the Independent was named Employees Independent
Union of Magnolia Refinery, Beaumont , Texas.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the
Act.
Concerning the unfair labor practices, the complaint alleges in sub-
stance that the respondent (a) dominated and interfered with the
formation and administration of three successive labor organizations
among its employees : Employees Representation Plan, herein called
the Plan ; Employees Federation of Magnolia Petroleum Company
Refinery, Beaumont, Texas, herein called the Federation; and the Inde-
pendent, which was formed after the respondent purportedly withdrew
all recognition from the Federation, and which is in all respects sub-
stantially the same organization as the Federation; and (b) by the
foregoing acts, and in other ways, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act. The complaint and accompanying notice of hearing were
duly served upon the respondent, Local 243, the Machinists' Union,
and the Boilermakers' Union. Thereafter, the Regional Director
granted a motion for intervention in the consolidated case filed by the
Independent.
The respondent filed an answer in which it denied dominating or
interfering with the formation or administration of the Independent.
Concerning its alleged domination of the Plan, the respondent denied
knowing whether its activities in connection with the Plan constituted
an unfair labor practice, but urged that if such were the case the effects
thereof were removed when the respondent, in compliance with a pro-
posal of the Regional Director, posted a notice to its employees whereby
it disestablished the Federation, refused further to recognize the Fed-
eration as bargaining representative of any of its employees, and
promised general observance of the Act. Concerning the Federation,
the respondent denied domination or interference with its formation or
administration and, affirmatively, asserted the defense set forth above.
Pursuant to notice, a hearing was held in Beaumont, Texas, from
June 1 to 15, 1938, before Gustaf B. Erickson, the Trial Examiner duly
designated by the Board. The Board, the respondent, Local 243, and
the Independent were represented by counsel, the Boilermakers' Union
by an assistant international vice president, and the Machinists' Union
by a business representative; all participated in the hearing. On the
second day of the hearing Local 229 filed a motion to intervene for all
purposes. The motion was granted. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. Numerous motions and
objections to the admission of evidence were made and ruled upon at
the hearing. The Board has reviewed the rulings of Trial Examiner
MAGNOLIA PETROLEUM COMPANY 383
Erickson upon motions and objections to the admission of evidence
made at the hearing and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed. On June 24, 1938, the Inde-
pendent filed a brief.
Thereafter, Trial Examiner Erickson filed his Intermediate Report,
dated September 24, 1938, in which he found that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (2) and Section 2 (6)
and (7) of the Act, and recommended that the respondent cease and
desist from such unfair labor practices and take certain affirmative
action remedial of their effect. On October 10, 1938, the respondent,
and on October 18, 1938, the Independent, filed exceptions to the Inter-
mediate Report. On November 22, 1938, the respondent filed a brief.
Pursuant to notice, a hearing for the purpose of oral argument upon the
exceptions to the Intermediate Report was held on December 1, 1938,
before the Board in Washington, D. C. The respondent and Locals 243
and 229 were represented by counsel and participated in the argument.
The Board has fully considered the briefs filed, the exceptions to the
Intermediate Report, and the arguments presented thereon, and, in so
far as the exceptions are inconsistent with the findings, conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a subsidiary of Socony-Vacuum Oil Company, Inc.,
is a Texas corporation having its principal office in Dallas, Texas. It
holds permits to do business in the States of Louisiana, Arkansas,
Oklahoma, New Mexico, Kansas, Illinois, Tennessee, Alabama, Mis-
sissippi, and Colorado. The respondent is engaged in numerous
activities peculiar to the oil industry, including the operation of
producing wells, pipe lines, refineries, and wholesale distributing
systems. Its gross receipts in 1937 amounted to more than $167,-
000,000. The respondent operates a refinery located at Beaumont,
Texas, where it employs approximately 2,100 men. The Beaumont
refinery occupies an area of approximately 600 acres and has access
to the port of Beaumont by means of a deep-water channel open to
ocean-going vessels. Three miles east of Beaumont are located
Gladys and Spindletop, subsidiary stations owned by the respondent,
which receive, store, and pump crude oil to the Beaumont refinery.
Eight miles south of Beaumont is located Magpetco, where the re-
spondent has storage tanks and wharf facilities for sea: going vessels.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The oil at Magpetco is received from Gladys and Spindletop and
from the Beaumont refinery. The daily crude throughput of the
respondent's Beaumont refinery is approximately 83,000 barrels.
Approximately 77 per cent of the crude oil used in said refinery is
produced in Texas, the balance coming from Oklahoma, Arkansas,
and Louisiana.
At the respondent's Beaumont refinery almost every derivative
product of crude petroleum is processed. The principal product is
gasoline. Different grades of fuel oils, heating oils, kerosene, and
other petroleum byproducts are also produced.
More than 80 per cent of the products from the Beaumont refinery
are shipped from Beaumont by tanker steamship, the balance being
shipped by rail and truck. Approximately 75 per cent of the
products of the respondent's refinery are shipped to points outside
the State of Texas.
II. THE LABOR ORGANIZATIONS INVOLVED
Oil Workers International Union is a labor organization affiliated
with the Committee for Industrial Organization.' Local 243 admits
to membership white employees, and Local 229, Negro employees of
the respondent; both exclude clerical workers.
Employees Independent Union of Oil and Refinery Workers, Local
No. 1, Beaumont, Texas, is an unaffiliated labor organization. It
admits to membership employees working in the oil industry in the
Sabine Area, excluding foremen and supervisors paid on a monthly
basis.
International Association of Machinists, Lodge No. 395, is a labor
organization affiliated with the American Federation of Labor. It
admits to membership employees of the respondent's machine and
welding shops.
International Brotherhood of Boilermakers, Iron Ship Builders,
Welders & Helpers of America, Lodge 587, is a labor organization
affiliated with the American Federation of Labor. It admits to
membership employees of the respondent engaged in the general
classifications - of boilermaking, shipbuilding, riveting, caulking,
flanging, turning-out, and other plate-fabricating work.
Employees Representation Plan and Employees Federation of
Magnolia Petroleum Company Refinery, Beaumont, Texas, were
unaffiliated labor organizations, admitting to membership employees
of the respondent.
2 Now the Congress of Industrial Organizations.
MAGNOLIA PETR'OLEUM COMPANY
III. THE UNFAIR LABOR PRACTICES
A. Domination of the Plan
385
On September 12, 1935,' the respondent initiated at its Beaumont
refinery a plan of employee organization, the stated purpose of which
was to provide a means whereby elected representatives of the
employees and appointed representatives of the management could
meet in joint conference to discuss all matters of mutual concern.
Elections of representatives under the Plan were given support by
the respondent, who bore all attendant expenses, furnished ballots and
ballot boxes, and permitted the election to be held on company time
and property. The respondent's foremen took an active part in such
elections, urging employees to vote, and in one instance opposing the
election of an employee because he was a member of Local 243. All
the respondent's employees, except certain supervisory employees,
were eligible to participate in the elections, there being no member-
ship requirements.
Soon after the first election of representatives under the Plan,
which took place in October 1935, the representatives chose their
officers. Lee Wheat, an assistant operator,` was elected chairman;
T. L. Cruse, a timekeeper clerk, was elected secretary. Meetings were
held in the office of the respondent's superintendent. Minutes of the
meetings and notices were mimeographed by the respondent and
placed on the bulletin boards. The services of one of the respondent's
stenographers were placed at the disposal of the Plan for such work.
Once each year the employee representatives were sent to a conven-
tion held in Dallas, Texas. Expenses were furnished the representa-
tives by the respondent.
The Plan continued as a joint conference with the same officers
until the early part of 1937, when the management announced that
it was required to discontinue participation in the meetings.
During the succeeding months there was only a partial rupture
of the former joint council. The employees' representatives -met in
separate session for the first half of the meeting, the respondent's
representatives joining them at an appointed time. Meetings con-
tinued to be held in the office building of the respondent. In Sep-
tember 1937, the use of the respondent's bulletin boards was discon-
tinued.
We find that the respondent dominated and interfered with the
formation and administration of the Plan and contributed financial
a There is some evidence that a similar plan was in existence prior to September 1935.
For the purposes of the instant case, however, it is sufficient to consider the Plan which
came into existence on September 12, 1935.
4 Some months later, and while wheat was still chairman , he was made a supervisor in
the wax and lube department.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other support to it, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. Domination of the Federation
On October 12, 1937, at a meeting, E. E. Swope, general manager
of refineries, advised the foremen that the respondent had always
been an open-shop organization and would remain so. This state-
ment of policy was imparted by the foremen to the employees.
On October 13, 1937, the employees' representatives met in the
respondent's main office building. Chairman Wheat announced that
a group meeting would be held that evening to study the plan and
operation of other similar organizations in that region, "with the idea
of strengthening our plan." . This was the last meeting of represent-
atives under the Plan as such.
In the evening, Wheat called to order the meeting he had earlier
announced. About 65 employees attended. They decided to form a
new organization, to be known as "Employees Federation of the
Magnolia Petroleum Company Refinery, Beaumont, Texas." Wheat
was elected temporary president of the new organization, and Cruse,
who had been secretary under the Plan, was elected temporary secre-
tary. Wheat had brought with him sample constitutions, and, after
some discussion, one was adopted.
A few days later, pursuant to a decision reached at the evening
meeting of October 13, a printed bulletin was circulated among the
employees. It announced that there would be submitted for
approval a completely new plan of organization, eliminating all
features which might possibly conflict with the Act. The new plan
was described in the bulletin as providing for the election of repre-
sentatives "whereby employees may bargain collectively with the
Company without outside influence or dues." The bulletin further
stated that in the opinion of the temporary council, the changes
embodied in the new plan would strengthen the employees'
organization.
The temporary organization arranged for an election of repre-
sentatives from the various departments, which was held on November
15, 16, and 17, 1937, in the punch house of the respondent. The
ballot boxes used were taken from the storehouse without any objec-
tion from the storekeeper, and ballots were placed on the time cards
of all employees. Instructions printed on the face of the ballot
informed employees who had not yet joined the Federation that by
signifying on the ballot their desire to join, they would become
eligible to vote.
MAGNOLIA PETROLEUM COMPANY 387
In the campaign for members and during the election of represent-
atives, the respondent, by its foremen, subforemen, and timekeepers,
took an active part, as it had done under the Plan. There were
numerous instances of such supervisory employees' urging those under
them to join the Federation and to vote in its election, and discourag-
ing membership in Local 243 and Local 229, in some instances by
threat.
The newly elected representatives, many of whom had served as
such under the Plan, elected as their chairman T. L. Cruse, formerly
secretary under the Plan, and as their secretary J. H. Hodges, a yard
clerk and timekeeper who had been a representative under the Plan.
In November 1937, Local 243 filed charges with the Regional Di-
rector alleging, among other things, that the respondent had domi-
nated, fostered, encouraged, sponsored, and interfered with the ad-
ministration of the Plan and the Federation. On December 21,
1937, after investigating the charges, the Regional Director advised
the respondent that full freedom of choice in selecting a collective
bargaining agency could not be had without disestablishment of the
Federation, but that if the respondent would post a notice announcing
that it was withdrawing all recognition from, and completely dis-
establishing its relations with, the Federation, it might be considered
as having complied with the Act. On December 29, 1937, the re-
spondent nevertheless recognized the Federation, at its request, as
bargaining representative of its members.
We find that the respondent has dominated and interfered with the
formation and administration of the Federation and contributed sup-
port to it, thereby interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act.
C. Dissolution of the Federation; effect of the respondent 's compli-
ance) notice
On March 25, 1938, Cruse, chairman, and Hodges, secretary of the
Federation, consulted with the Regional Director in Fort Worth con-
cerning the status of the Federation. At a meeting held 2 days later,
the Federation Council voted to disband that organization and im-
mediately to notify the Regional Director and the respondent of its
disbandment by telegram.
On March 29, 1938, the respondent posted a notice to its employees
in which it agreed to disestablish the Federation, to refrain from
dominating or interfering with the formation or administration of
any labor organization of its employees, and in other respects to com-
ply with the Act.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contends that by posting the compliance notice,
which had been drafted and provided by the Regional Director in
December 1937, it neutralized the effect of any prior unfair labor
practices. The fact that the respondent posted the notice disestab-
lishing the Federation only after the Federation had itself disbanded
necessarily minimized the salutary effect of the notice. In any event,
the history of employer interference in employee self-organization at
the respondent's refinery rendered the employees peculiarly suscep-
tible to employer influence in the choice of their bargaining represent-
ative, so that the notice could have the effect contended for only
if the respondent thereafter scrupulously avoided further interfer-
ence. The record convinces us, however, that the respondent continued
to interfere with the course of employee self-organization. We ac-
cordingly do not regard the notice as freeing the employees from the
effects of the respondent's domination of the Plan and the Federation.
D. Domination of the Independent
Within 2 weeks after the dissolution of the Federation and its sub-
sequent disestablishment by the respondent, the Independent came
into existence.
The organizational history of the Independent may be related
briefly. Approximately 80 employees of the respondent met in a
Beaumont hotel on April 7, 1938,. and elected temporary officers of
the new labor organization. Two days later a committee of the
group which had convened on April 7 met to select men to go to Fort
Worth and consult with the Regional Director concerning "what
kind of an organization would stand up." On April 12, 1938, the
men' selected conferred with the Regional Director. During the en-
suing weeks the Independent carried on a successful organizing
campaign, rented quarters, retained an attorney, and adopted a con-
stitution. At the time of the hearing it had not yet requested
recognition of the respondent.
Evidence directly connecting the respondent with the formation of
the Independent relates primarily to the activity of Lee O. Smith,
supervisor of stenography and comptometry in the respondent's office.
Smith had served the respondent originally as a timekeeper, and at
one time as athletic director. He had been a representative under the
Federation.
Nothwithstanding Smith's supervisory capacity, and notwithstand-
ing the respondent's agreement to refrain from interference with
the formation or administration of labor organizations, Smith pre-
sided over the April 7 meeting at which the Independent had its
birth. He was there elected to the post of temporary vice president
and thereafter occasionally presided over subsequent meetings.
MAGNOLIA PETROLEUM COMPANY 389
Smith participated also in the committee meeting of April 9 at which
employees were selected to consult with the Regional Director.' Be-
fore their departure , Smith told the men who made the trip to seek
the advice in Dallas of Russell Surles , an attorney known to Smith
to be retained by the respondent . The two men , unaware until face
to face with Surles that he was under retainer by the respondent,
refused, when apprised of the fact, to discuss their business with him.
We cite the incident only to . indicate the nature of Smith's partici-
pation in the affairs of the Independent . By such participation on
the part of Smith, the respondent interfered with the formation and
administration of the Independent and contributed support to it.'
Other indicia that the Independent was under the respondent's
domination appear in the identity of the employees , aside from
Smith, who gave it leadership . Ell Barton , elected temporary presi-
dent, was a . subforeman over a dozen laborers , thus serving the re-
spondent in a supervisory capacity , and had been a representative
under both the Plan and the Federation . His activity on behalf of
the Independent is attributable to the respondent .? N. J. Morris, a
temporary treasurer , and M . Burge, Jr., temporary secretary, had
both been representatives under the Federation , and Morris under the
Plan as well.
At the committee meeting held April 9, there were present and
participated , in addition to Barton , Smith, and Morris, Lee Wheat
and T . L.' Cruse, who had been , the' chairmen , respectively, of the
Plan Council and of the Federation Council. At the time of his
participation in the April 9 committee meeting, Wheat was a super-
visory employee as well , and we attribute his actions in participating
in the meeting to the respondent.8
It thus appears that those principally concerned in initiating *a
new labor organization among the respondent 's employees were men
who had served in responsible posts under the two employer-domi-
nated labor organizations which preceded , and included three super-
visory employees.
Another element in the record from which we infer employer inter-
ference with the formation and administration of the Independent is
the evidence relating to three long distance telephone calls made to
J. D. Hensley , assistant to the head of the respondent 's industrial
6 Morris and Barton were selected to go to Fort worth, but Barton was unable to make
the trip and was replaced by an employee named Birdwell.
8 Swift & Company v. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10),
rehearing denied August 4 ; _ 1939, in which the Court said : "Furthermore with respect to
the acts of the supervisory foremen, the doctrine of respondent superior applies, and peti-
tioner is responsible for the acts of its supervisory foremen, even though it had no actual
participation therein."
7 See footnote 6, supra.
8 See footnote 6, supra.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relations department . Each of these calls was put through , charges
reversed , at a cost of more than $2. In the operations of the Plan,
Hensley had played an important role as a representative of the
respondent.
Hodges, the secretary of the Federation ,. telephoned to Hensley at
Hutchins , which is near Dallas , on March 27, 1938 , after the meeting
at which the Federation Council voted to disband, and again on
March 29 , 1938 . When asked at the hearing whether he had tele-
phoned to anyone connected with the respondent 's industrial relations
department , Hodges denied having done so. When he was con-
fronted with a photostatic copy of the record of such calls, however,
he admitted making them.
As to the first of the calls, Hodges testified : "I was to call him and
report on the meeting we had with Dr. Elliott [the Regional Di-
rector] in Forth Worth," but later denied having previously conferred
with Hensley or having been instructed to make the call.
As to the second call, Hodges testified that he wished to inform
Hensley of the Federation 's dissolution because Hensley "seemed to
be a good man to talk to-on such things ," and that he asked Hensley
about an organization in force in other parts of the respondent's
operations.
The third call to Hensley was made by Cruse on April 9, 1938, the
date on which Cruse participated in a committee meeting of the
leading spirits in the Independent . , Cruse testified that his purpose
had been to ascertain from Hensley how to get in touch with an un-
affiliated labor organization of which the Regional Director had
allegedly spoken to him on the occasion of their conference on March
25. He further testified that Hensley gave him the name and address
of an individual who could inform him about the matter, but that he,
Cruse, never pursued the matter further nor informed any of the
Independent's officers of the telephone call . He was unable to
explain why he had not made the inquiry of the Regional Director.
At the time of the hearing Hensley was still in the respondent's
employ . Hodges and Cruse testified during the first days of the
hearing. The respondent nevertheless failed to call Hensley as
a witness.
_ We find the explanations given by Hodges and Cruse of their tele-
phone calls to Hensley altogether incredible. Their temerity in re-
versing the charges suggests that they knew Hensley would accept
the calls and foot the cost . No legitimate reason appears why Hodges
should have informed Hensley concerning either the conference with
the Regional Director or the disbandment of the Federation. As to
the latter event, the resolution adopted by the Federation Council
called for telegraphic notification of the respondent and the Regional
MAGNOLIA 1PETiROLE'UM OOMPANY 391
Director. A telegram from the Federation to the Regional Director
dated March 28, in evidence, states that the respondent had also been
apprised of the dissolution. Why Hodges on March 29 should have
deemed Hensley "a good man to talk to on such things" remains unex-
plained except by the inference that Hodges habitually reported to
Hensley regarding Federation affairs, or that Hodges had reason to
believe that Hensley would assist the formation of a successor labor
organization.
Circumstances render Cruse's call equally suspicious. The rela-
tively unimportant question which Cruse, according to his testimony,
propounded hardly merited the cost of a long distance call. Nor do
we believe that Cruse would go to the trouble and incur the expense of
the call, have his question answered, and then do nothing about it.
Hodges' calls occurred at a time when the Independent had not yet
come into existence, but that by Cruse coincided with the organiza-
tional beginnings of the Independent.
Upon full consideration of the prominence of Hodges and Cruse
in the dominated labor organizations which preceded the Independent,
Hodges' reluctance to admit he had called Hensley, the unsatisfactory
explanations offered by both men, the reversal of the toll charges on
all three calls, Hensley's connection with the respondent, and his fail-
ure to testify, we believe that Hensley utilized Hodges and Cruse to
keep himself informed of the activities of the respondent's employees
and that, through Cruse, he interfered on the respondent's behalf with
the formation and administration of the Independent.
Upon the entire record, we find that the respondent dominated and
interfered with the formation and administrtion of the Independent
and contributed support to it, thereby interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with its operations in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has dominated and interfered
with the formation and administration of the Plan, the Federation,
and the Independent and contributed support to them, and has inter-
fered with, restrained, and coerced its employees in the exercise of
283029-41-vol. 18-26
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rights guaranteed in Section 7 of the Act, we shall order the
respondent to cease and desist from such unfair labor practices.
To remedy the situation brought about by the respondent's unlawful
acts and in order to effectuate the policies of the Act, we shall order
the respondent to withhold recognition from the Independent as a
representative of any of its employees for the purposes of collective
bargaining with respect to grievances, labor disputes, rates of pay,
wages, hours of employment, or other conditions of employment.
Inasmuch as the Plan and the Federation are no longer in existence,
we find it unnecessary to order their disestablishment.
VI. THE QUESTION CONCERNING REPRESENTATION
Locals 243 and 229 assert that they represent a majority of the
respondent's maintenance and production employees at its Beaumont
refinery and at the subsidiary stations, Gladys, Spindletop, and Mag-
petco. The respondent states that it is without knowledge as to the
identity of the representative of the majority of its maintenance and
operation employees, and requests that an election by secret ballot be
conducted to determine such representative.
The Boilermakers' Union and the Machinists' Union have inter-
vened to claim that their respective crafts should properly constitute
separate units. Local 243 also claims membership among employees
engaged in these crafts.
We find that a question has arisen concerning the representation of
employees of the respondent.
VII. THE EFFECT OF TIIE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
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 commerce
and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
Locals 243 and 229 contend that the respondent's maintenance and
production employees at its Beaumont refinery and at the subsidiary
stations, Gladys, Spindletop, and Magpetco, excluding executives,
professional employees, supervisors, foremen, and subforemen, em-
ployees having the power to discharge or recommend discharge,
clerical employees, both office and those classified as yard clerical and
timekeepers, watchmen, safety-department employees, and all labora-
MAGNOLIA PETROLEUM COMPANY 393
Cory employees, except those in the testing laboratory who are paid
on an hourly basis, constitute an appropriate unit.
The Machinists' Union asks that a separate unit be found for the
respondent's employees in the machine and welding shops and the
Boilermakers' Union desires a separate unit for the employees in the
boilermaker department. Neither the Machinists' Union nor the
Boilermakers' Union has clarified its contentions as to exclusions from
the unit or units.
The respondent agrees with the respective claims of the Machinists'
Union and the Boilermakers' Union, contending that the following
groups constitute appropriate units: (a) Its employees working in
the boilermaker department; (b) its employees working in the machine
and welding shops; and (c) its remaining maintenance and operating
employees.
Having found that the Independent is company dominated, we
shall not consider its contentions concerning the appropriate unit or
units.
Gladys and Spindletop are pumping stations which are located ap-
proximately 3 miles from the Beaumont refinery. The function of
these stations is to receive and store crude oil which they pump to the
Beaumont refinery and to Magpetco. There are approximately 18
men employed at these two stations, exclusive of foremen and clerical
workers. Magpetco serves as a storage and distribution station, re-
ceiving oil from Gladys and Spindetop and from the Beaumont re-
finery. Oil is transported from Magpetco by pipe lines and by tankers.
There are approximately 47 employees working at Magpetco, exclusive
of foremen and clerical workers.
It is undisputed that operations at the Beaumont refinery are, to
an extent, dependent upon the above-described stations, which con-
stitute both a, source of the oil to be refined and an outlet for the
refined oil. The management of these stations is independent of the
superintendent of the Beaumont refinery, but comes directly under
the respondent's general manager whose offices are at the Beaumont
refinery. The personnel records of the employees are kept at Beau-
mont. Most of the maintenance work at these stations is handled by
men sent out from Beaumont. During the operation of the Plan these
stations participated along with the employees at Beaumont. In the
absence of objection no reason appears for refusing the request of
Locals 243 and 229 that the production and maintenance employees.
at the subsidiary stations be included in the same unit with those at
the refinery.
We shall exclude from the production and maintenance unit execu-
tives, professional employees, supervisors, foremen, and all those
having the power to discharge. Question arose as to employees classi-
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled by the respondent as subforemen. The respondent's personal
manager testified that they could recommend that employees be dis-
charged only in the same manner that any employee could make such a
recommendation. It was undisputed, however, that these subforemen
actually supervise the work done by men under them. Their capacity
is similar to that of gang foremen, and we shall exclude them.
At the request of Locals 243 and 229 we shall similarly exclude all
clerical employees, both office and yard clerical, and whatever other
clerks the respondent may employ 9 and all watchmen.10
The respondent's safety-department employees also enjoy a status
sufficiently apart from production employees to be excluded unless
their inclusion is requested. Their work, inspecting equipment and
working conditions, thereby assuring safe working conditions, is of
itself a specialized type of supervision and carries with it the req-
uisite authority to execute the employer's safety standards. We
shall order them excluded.
In most cases we have ordered the exclusion of chemists and labora-
tory workers from a plant-wide unit.- Here it is requested that we
include the hourly paid employees working in the testing laboratory,
excluding all other laboratory employees. The record does not ex-
plain the distinctions between the work done in the analytical labora-
tory, where there are monthly paid and hourly paid employees, and
the work done in the testing laboratory, where all employees below
subforemen's assistants are paid on an hourly basis. We shall, there-
fore, include the hourly paid employees and exclude the` monthly
paid employees of both laboratories.
In the respondent's boilermaker department were employed on
June 1, 1938, 30 employees, exclusive of foremen and clerical workers.
These employees work throughout the respondent's refinery. Among
them are employees classified as boilermakers, helpers, buckers,
riveters, and caulkers.
On June 1, 1938, the respondent employed 43 individuals in its
welding shop, exclusive of foremen and clerical employees. The
welding shop is under the general supervision of E. R. Kehrer, who
also has direct supervision of the machine shop.
Welders are eligible to membership in both the Boilermakers'
Union and the Machinists' Union. The Machinists' Union, however,
claims to represent a majority of such employees and the Boiler-
9 See Matter of Pacific Gas and Electric Company and United Electrical & Radio Workers
of America, 3 N. L. It . B. 835; Matter of Westinghouse Airbrake Company and United Elec-
trical and Radio Workers of America , etc., 4 N. L. It. B. 403.
10 See Matter of Burlington Dyeing & Finishing Co. and Textile Workers Organizing Com-
mittee, 10 N. L. It. B. 1.
1 Matter of Pennsylvania Salt Manufacturing Company and Local Union No. 12055 of
District No. 50, United Mine Workers of America, 3 N. L. It. B. 741; and Matter of Ameri-
can Sugar Refining Company and Committee for Industrial Organization , 4 N. L. R. B. 897.
MAGNOLIA PETIIOLETUM COMPANY 395
makers' Union does not seek to represent them in the present pro-
ceeding. Since 1934 the Machinists' Union has represented these
employees in collective bargaining with the respondent. Boilermak-
ing and machine work are well-established crafts. Welding, how-
ever, is in most industries performed by skilled workmen in connec-
tion with their work in a broader field, as, for example, the crafts of
boilermaking or machine work, and has often been found by us to be
included in the unit embracing the broader field. In the instant
case, while it appears that welding is a full-time occupation at the
respondent's refinery, it is not urged that it be regarded as a separate
craft unit but rather that it be merged into a broader unit to include
machinists. In view of the physical proximity and common super-
vision of the respondent's employees in the machine shop and welding
shop and the tacit agreement between the Machinists' Union and the
Boilermakers' Union, we see no reason why, if craft differentiation is
to be made, the employees in the welding shop and in the machine
shop should not be included in the same bargaining unit.
The record does not clearly indicate when Locals 243 and 229 began
organizing the respondent's employees. They were chartered in
October 1933 as locals of International Association of Oil Field, Gas
Well, and Refinery Workers of America, affiliated with the American
Federation of Labor.12 In 1934, Local 243,13 then affiliated with the
American Federation of Labor, was certified as the bargaining agent
of the respondent's employees at Beaumont 14 by the Petroleum Labor
Policy Board, established under the National Industrial Recovery
Act.15 It bargained with the ' respondent on behalf of all its em-
ployees at the Beaumont refinery concerning retroactive pay due
them under the Petroleum Code. As to other matters, it bargained
only for its members, which included an undisclosed number of
machinists and boilermakers. In the same year, however, Inter-
national Association of Oil Field, Gas' Well, and Refinery Workers
of America entered into an agreement with International Association
of Machinists and International Brotherhood of Boilermakers, Iron
Ship Builders, Welders and Helpers of America, with which the
Machinists' Union and the Boilermakers' Union are respectively
affiliated, whereby the former promised to respect the jurisdictional
claims of the two craft organizations. This agreement was renewed
in 1935. Its application at the respondent's Beaumont refinery is
12 International Association of Oil Field, Gas Well , and Refinery Workers of America,
now known as Oil Workers' International Union, was one of the founders of the Committee
for Industrial Organization. It adopted its present name in 1937.
13 The nature and extent of Local 229's participation in the certification and subsequent
bargaining are not disclosed by the record.
14 The scope of the unit for which Local 243 was certified by the Petroleum Labor Policy
Board does not appear.
15 48 Stat. 195.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not revealed by the record. Between the date of the decision of the
United States Supreme Court 16 invalidating portions of the National
Industrial Recovery Act, and early 1937, Locals 243 and 229 made
no attempt to bargain with the respondent. In the latter year they
were recognized as bargaining agents of their members.
The Boilermakers' Union has bargained with the respondent for
its membership since 1933; the Machinists' Union since 1934. In
1935 and 1936, when Locals 243 and 229 made no attempt to bargain,
the Boilermakers' Union and the Machinists' Union continued to-bar-
gain with the respondent on behalf of their crafts. The respondent
has not, however, entered into contracts with these labor organiza-
tions. During the operation of the Plan, representatives of the
Machinists' Union and the Boilermakers' Union, on invitation, par-
ticipated in the Plan to the extent of sending representatives from
their respective groups. These representatives participated without
vote.
Local 243 claims to have members among the employees in the
boilermaker department and in the machine shop, and asks that the
employees in these two divisions of the respondent's refinery, together
with the employees in the welding shop, be included with the re-
spondent's other maintenance and production employees in a single
bargaining unit. At the hearing, however, Harvey Fremming, presi-
dent of Oil Workers' International Union, testified as follows re-
garding the claims of the craft organizations :
Q. In other words, you do not think that the boilermakers or
the machinists as a special unit in refineries, where their condi-
tions are [or] problems are separated from the rest of the plant,
should be considered as a unit proper in themselves?
A. I think if there is a complete, per se machine shop operated
in the plant and skilled machinists are employed and machinists'
rates are paid, they are a separate unit, and I have said that re-
peatedly; provided, the workers in the plant chose the Inter-
national Machinists as their agency.
Q. In other words, if the machinists in the Magnolia refinery
are satisfied to ask that the Machinists' Union be their bargain-
ing agency, then the Oil Workers are satisfied to let them have
it?
A. Certainly. I have always said that. There is no argu-
ment in our mind about that.
It appears that the considerations as to the unit or units to which
the employees in the respondent's machine and welding shops and in
the boilermaker department should belong are sufficiently evenly bal-
19 A. L . A. Schechter Poultry Corp . et al., 295 U. S. 495, decided May 27, 1935.
MAGNOLIA PPTiROLE•UM COMPANY 397
anted so that the determining factor should be the desires of the men
themselves.'? We shall direct that separate elections be held among
the groups in question, excluding clerical and supervisory employees :
among the employees in the machine and welding shops to determine
whether they desire to be represented by Locals 243 and 229, by the
Machinists' Union, or by neither ; and among the employees in the
boilermaker department to determine whether they desire to be repre-
sented by Locals 243 and 229, by the Boilermakers' Union, or by
neither.
We shall further direct that an election be held among all other
maintenance and production employees at the Beaumont refinery and
at the subsidiary stations, Gladys, Spindletop, and Magpetco, to de-
termine whether or not they desire to be represented by Locals 243
and 229.
Upon the results of the elections will depend our determination
of the appropriate unit or units. Groups in which a majority desig-
nate Locals 243 and 229 will together constitute a bargaining unit.
If a majority of the employees in the machine and welding shops desig-
nate the Machinists' Union they will constitute a separate unit, and
if a majority of those in the boilermaker department designate the
Boilermakers' Union they will constitute a separate unit. The peti-
tion will be dismissed as to any group in which the majority vote for
no labor organization.
Ix. THE DETERMINATION OF REPRESENTATIVES
The question concerning representation which has arisen can best
be resolved by elections by secret ballot. Since the respondent has,
by engaging in various unfair labor practices, interfered with the
exercise by its employees of the rights guaranteed them by the Act,
we shall not now set the date for the elections. We shall hold the elec-
tions, however, upon receipt of information from the Regional Di-
rector that the circumstances permit a free choice of representatives
unaffected by the respondent's unlawful acts. Concurrently with our
determination of the date for the elections, we shall specify the date
on the basis of which eligibility to vote in the elections shall be
determined.
We have found that the Independent has been dominated, inter-
fered with, and given support by the respondent in its formation and
administration.. We have further found that it cannot serve the re-
spondent's employees as an effective collective bargaining agency.
Accordingly, we make no provision for its inclusion on the ballot.
17 Ma tter of The Globe Machine and Stan+.pin.g Co. and Metal Polishers Union, Local No. 3,
3 N. L. R. B. 294, and subsequent cases.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Oil Workers International Union, Local 243 and Local 229; Em-
ployees Independent Union of Oil and Refinery Workers, Local No. 1,
Beaumont, Texas; International Association of Machinists, Lodge No.
395; and International Brotherhood of Boilermakers, Iron Ship Build-
ers, Welders & Helpers of America, Lodge 587, are, and Employees
Representation Plan, and Employees Federation of Magnolia Petro-
leum Company Refinery, Beaumont, Texas, were, labor organizations
within the meaning of Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of Employees Representation Plan, Em-
ployees Federation of Magnolia Petroleum Company Refinery, Beau-
mont, Texas, and Employees Independent Union of Oil and Refinery
Workers, Local No. 1, and contributing support thereto, has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (2) of the Act.
3. The respondent, by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed by Section 7 of the
Act, has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor .practices are unfair labor practices
within the meaning of Section 2 (6) and (7) of the Act.
5. A question affecting commerce has arisen concerning the repre-
sentation of employees of Magnolia Petroleum Company, Beaumont,
Texas, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
ORDER
Upon the basis of the above findings of fact, conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Magnolia Petroleum Company, and its officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Employees Independent Union of Oil and Refinery Work-
ers, Local No. 1, Beaumont, Texas, or with the formation or adminis-
tration of any other labor organization of its employees, and from
contributing support to Employees Independent Union of Oil and
Refinery Workers, Local No. 1, Beaumont, Texas, or to any other
labor organization;
MAGNOLIA PETIIOLEUM COMPANY 399
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing and other mutual aid and protection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Refuse to recognize Employees Independent Union of Oil
and Refinery Workers, Local No. 1, Beaumont, Texas, as the repre-
sentative of any of its employees for the purpose of dealing with it in
respect to grievances, labor disputes, wages, rates of pay, hours of
employment, and other conditions of employment;
(b) Post immediately in conspicuous places throughout its plants
and other places of employment, and maintain for a period of at least
sixty (60) consecutive days, notices stating that the respondent will
cease and desist in the manner aforesaid and will take the affirmative
action required by paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
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 Relations 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 purposes of collective bargaining
with Magnolia Petroleum Company, Beaumont, Texas, separate elec-
tions by secret ballot shall be conducted at such time as the Board
shall hereafter direct, 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, Section 9, of said Rules and Regulations: (1) Among all produc-
tion and maintenance employees in the respondent's refinery at Beau-
mont and in the subsidiary stations, Gladys, Spindletop, and Mag-
petco, employed by the respondent during a pay-roll period which
we shall in the future specify, excluding executives, professional em-
ployees, supervisors, foremen, subforemen, all those having the power
to discharge, all clerical employees and timekeepers, watchmen, safety-
department employees, laboratory employees, except those paid on an
hourly basis, and the employees in the machine and welding shops and
in the boilermaker department, to determine whether or not they de-
sire to be represented by Oil Workers International Union, Locals 243
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 229, affiliated with the Committee for Industrial Organization,
for the purposes of collective bargaining, or by neither; (2) among all
the employees in the respondent's machine and welding shops, ex-
cluding supervisory and clerical employees, to determine whether
they desire to be represented by International Association of Machin-
ists, Lodge No. 395, affiliated with the American Federation of Labor,
by Oil Workers International Union, Locals Nos. 243 and 229, affiliated
with the Committee for Industrial Organization, for the purposes of
collective bargaining, or by neither; and (3) among all the employees
in the respondent's boilermaker department, excluding supervisory and
clerical employees, to determine whether they desire to be represented
by International Brotherhood of Boilermakers, Iron Ship Builders,
Welders & Helpers of America, Lodge 587, affiliated with the American
Federation of Labor, by Oil Workers International Union, Locals Nos.
243 and 229, affiliated with the Committee for Industrial Organiza-
tion, for the purposes of collective bargaining, or by neither.
MR. EDWIN S. SMITH, concurring :
Although the record is not clear as to the extent of their bargaining,
the Boilermakers' Union has bargained for its craft since 1933, and
the Machinists' Union since 1934. Locals 243 and 229, on the other
hand, appear to have done some bargaining on a plant-wide basis in
1934 and again in 1937. The fact that International Association of
Oil Field, Gas Well, and Refinery Workers of America, in 1934 and
in 1935, agreed to respect the membership claims of the craft unions
involved supports the view that Locals 243 and 229 have not been op-
posed to separate bargaining by the crafts at the respondent's plant.
Under these circumstances and in view of the testimony of the presi-
dent of Oil Workers International Union quoted in the principal opin-
ion, I agree that the unit or units in which the employees in the ma-
chine and welding shops and the boilermaker department are' to be
included shall be determined by elections to be held among them.18
MR. WILLIAM M. LFISERSON took no part in the consideration of the
above Decision, Order, and Direction of Elections.
18 Cf. Matter of American Hardware Corporation and United Electrical and Radio Work-
ers of America , 4 N. L. R. B. 412; Matter of Vultee Aircraft Division , Aviation Manufac-
turing Corporation and United Automobile Workers of America, Local 861, 9 N. L. R. B. 32;
Matter of Willys Overland Motors, Inc. and International Union, United Automobile Work-
ers of America , Local No. 12, 9 N. L. R. B. 924; Matter of The William Powell Company
and Pattern Makers Association of Cincinnati, 12 N. L. R . B. 115.