Pan American Refining Corp.

National Labor Relations Board - Board Decisions

Feb 6, 1942

38 N.L.R.B. 985 (N.L.R.B. 1942)

In the Matter of PAN AMERICAN REFINING CORPORATION and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, LOCAL No. 1446, OF DISTRICT
37, AFFILIATED WITH THE A. F. OF L.
In the Matter of PAN AMERICAN REFINING CORPORATION and TEXAS
CITY EMPLOYEES FEDERATION, UNAFFILIATED
Cases Nos. R-2681 and R-682, respectively
SUPPLEMENTAL DECISION
AND
AMENDMENTS TO DIRECTION OF ELECTION
February 6, 194
On September 24, 1941, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in the
above-entitled proceedings,, directing that an election be conducted
among all production and maintenance employees of the Company,
including laboratory employees who work as testers or make routine
examinations, employees in the labor department, machine-shop em-
ployees, and boilermakers, but excluding clerical, office, technical or
research, and supervisory employees. The Board provided in its
Decision and Direction of Election that the International Association
of Machinists, Local No. 1446, of District 37, herein called the Ma-
chinists; the International Hod Carriers' Building and Common
Laborers Union, herein called the Hod Carriers; and the International
Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of
America, herein called the Boilermakers, appear jointly on the ballot
as the American Federation of Labor. Texas City Employees' Fed-
eration, herein called the Federation; and Oil Workers International
Union, Local 449, affiliated with the Congress of Industrial Organiza-
tions, herein called the O. W. I. U., were also given a place on the
ballot.
On October 2, 1941, the Machinists filed a "Motion for Reconsider-
ation" of the Decision and Direction of Election. On October 14
and 18, 1941, respectively, the Regional Director advised the Board
1 35 N. L. R. B., No. 163.
38 N. L. R B , No 182.
985
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the International Brotherhood of Electrical Workers, Local
No. 527, herein called the I. B. E. W., and the Galveston Labor
Council, herein called the Council, on behalf of its affiliated organiza-
tions,2 had asserted an interest in the proceeding.3
On October 29, 1941, the Board ordered that the record in the
above-entitled proceeding be reopened and that a further hearing be
held. Pursuant to this order, the Regional Director, on October 31,
1941, served notice of the further hearing upon the original parties
to this proceeding and upon the Council, the I. B. E. W., the Inter-
national Union of Operating Engineers, herein called the Operating
Engineers; the International Brotherhood of Painters, Decorators
and Paper Hangers of America, Local No. 585, herein called the
Painters; and the American Federation of Labor, herein called the
A. F. of L., labor organizations claiming to represent employees
directly affected by the investigation. Pursuant to notice, a further
hearing was held at Texas City, Texas, on November 7 and 8, 1941,
before Clifford W. Potter, the Trial Examiner duly designated by
the Chief Trial Examiner. The above-named parties, and the Inter-
national Association of Bridge Structural and Ornamental Iron
Workers, Local No., 135, herein called the Iron Workers, and Plumb-
ers & Steamfitters' Union, herein called the Plumbers, both affiliated
with the A. F. of L., also appeared and participated in the further
hearing. At the further hearing, the A. F. of L., the Council, and
the I. B. E. W., moved that the further hearing be postponed for
ten days. The Trial Examiner denied this motion. These parties
also moved to dismiss the petition for an investigation and certifica-
tion of representatives. The Trial Examiner referred this motion to
the Board, and for reasons set forth below the motion is hereby
denied. During the course of the further hearing the Trial Examiner
made various rulings on other motions and on objections to the ad-
mission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. The Company, the O. W. I. U.,
the A. F. of L. and the Council and its affiliates, the Boilermakers,
and the Machinists filed briefs which the Board has considered.
Upon the basis of the entire record in this proceeding, the Board
makes the following :
:These include all affiliates of the American Federation of Labor involved herein except
the Machinists
s As a result of the foregoing circumstances the Board , on October 22, 1941 , amended
its Direction of Election by striking therefrom the words "within thirty ( 30) days from
the date of this Direction" and substituting therefor the words "within sixty ( 60) days
from the date of this Direction." On November 24, 1941, the Board further amended its
Decision and Direction of Election by striking therefrom the words "within sixty (60)
days from the date of this Direction" and substituting therefor the words "at such time
as the Board may in the future direct."
PAN AMERICAN REFINING CORPORATION
SUPPLEMENTAL FINDINGS OF FACT
987-
In the previous Decision and Direction of Election, the Board noted
that the employees of the Company were represented on a plant-wide
basis by the Pan American Workers Alliance, unaffiliated, from July
1, 1937, until May 1, 1939; that on May 1, 1939, the Company executed
a contract with Federal Labor Union, Local 21181, affiliated with the
A. F. of L., herein called the Federal, recognizing it as the exclusive
representative of the "non-supervisory employees'of the mechanical
and operating department and laboratory" of the Company; and that
the contract provided for its renewal from year to year on May 1 of
each year unless proper notice of a desire to terminate was given
by either party. The Board observed in its Decision that the Federal
adopted a resolution on March 29, 1941, transferring its contract to
the O. W. I. U. and the Machinists; the Board added that "there is
no evidence in the record that the O. W. I. U., the Machinists, or
the Company accepted such transfer."
The evidence introduced at the further hearing concerning the
transfer indicates that James Sodich, at one time financial secretary
and custodian of records of the Federal and presently the president
of the Machinists, called a meeting of all members in good standing
of the Federal on March 29, 1941. Approximately 10 or 12 persons
attended.4 All persons present at the meeting were members of the
Machinists and all but two were also members of the Federal. No
other labor organization was represented: At the meeting a resolu-
tion was adopted acknowledging that all members of the Federal had
selected the O. W. I. U. and the Machinists as their representative
and transferring the contract between the Federal and the Company
to the O. W. I. U. and the Machinists. The Company was advised
of this resolution by both the O. W. I. U. and the Federal .5 In reply
the Company inquired, inter alia, (1) whether the contract with the
Federal had been terminated or whether it was still in effect, and
(2) whether the Federal was still in existence. James Sodich an-
swered that the contract was still in effect and had been transferred
to the O. W. I. U. and the Machinists, and that the charter of the
Federal was still in existence. By May 1, 1941, none of the members
of the Federal were any longer in good standing. On May 7, 1941,
James Sodich mailed the charter of the Federal to the A. F. of L.
at Washington, D. C.
'There were at that time approximately 440 suspended members of this union, who
had been suspended for failure to pay dues. -
6 On March 29, 1941, James Sodich mailed the Company a copy of said resolution. He
also inclosed a letter which reads in part as follows : "Enclosed you will find a resolution
that has been unanimously adopted by all members of Federal Labor Union No. 21181
which is self-explanatory as to the desire and action of Local $221181."
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Council and its affiliated labor organizations contend that the
agreement which the Company originally executed with the Federal
"has never been legally terminated and is still in full force and
effect and that [the Federal] is therefore the proper bargaining
agent at this time" and that "until and unless said agreement is
legally terminated, the Board should not inquire further into the
claims for representation of any other organization." We do not
believe that it would effectuate the policies of the Act to hold that
the contract should bar a present determination of representatives.'
The Federal, which originally made the contract, is now inactive,
if not defunct.' There is, in addition, substantial dispute as to
whether the contract now belongs to the O. W. I. U. and the Ma-
chinists or to the various affiliates of the Councils Nor have any
of the labor organizations, so far as the record indicates, operated
under the contract since the Federal adopted the resolution purport-
ing to transfer the contract on March 29, 1941. Accordingly, we
have, hereinabove denied the motion of the Council and affiliated
organizations to dismiss the petitions herein.
We have stated above that the Machinists filed a "Motion for Re-
consideration" of the Board 's Decision and Direction of Election on
October 2, 1941. In this motion, the Machinists urged that the Board
had incorrectly refused to find the unit which it claimed as appro-
priate for the purposes of collective bargaining. We have reviewed
the entire record in this proceeding in the light of the evidence intro-
duced at the further hearing and we see no reason to alter our previ-
ous determination as to the appropriate unit.9 We hereby, accord-
ingly, deny the "Motion to Reconsider" insofar as it challenges the
unit which we have found to be appropriate for the purposes of
collective bargaining.
e It should be noted that the contract has continued in existence , if at all, only by virtue
of its provision for automatic renewal in the absence of any affirmative notice of ter-
mination.
7Matter of Fischer Lumber Company, Inc and International Woodworkers of America,
Local No. 247, affiliated with the C . 1. 0., 31 N. L. R B., No. 136.
8 The A. F. of L and the Council and its affiliates contend that the A. F. of L. is a party
to the contract since it was executed by one of its agents , and that no one had the au-
thority to transfer the contract to any other orgamzaion They point out, in addition,
that Section 17 of the Constitution of the A. F. of L. provides, inter alia, that "all funds
and property of any character shall revert to the American Federation of Labor, to be
held in trust until the suspended or defunct organization may be reorganized "
9 In its "Motion to Reconsider ," the Machinists noted that the Board states that there
was no evidence in the record that the Machinists attempted to bargain with the Company
before April 15, 1941 . The further hearing established that the Machinists had, in fact,
attempted to bargain with the Company on March 29 , 1941. This circumstance , however,
does not alter our conclusion with respect to the appropriate unit . The Machinists also
noted that the Board had erroneously stated, in footnote 2, that the O. W. I. U. had
sought to include the machinists in its motion to intervene . The position of the O. W.
I. U., at the hearing , was correctly stated in the text of the Decision and Direction of
Election.
PAN AMERICAN REFINING CORPORATION 989
As noted in our previous Decision, the Machinists, the Boilermakers,
and the Hod Carriers submitted proof at the original hearing and the
I. B. E. W. submitted proof 10 at the further hearing of substantial
representation among the employees of the Company. However,
the Council, the Operating Engineers, the Painters, the Iron Workers,
and the Plumbers failed to produce evidence of substantial repre-
sentation among the employees of the Company. Under these cir-
cumstances, only the Machinists, the Boilermakers, the Hod Car-
riers, and the I. B. E. W., among the affiliates of the A. F. of L., are
entitled to a place on the ballot. We shall permit these organiza-
tions to appear jointly on the ballot as an alternative choice to the
O. W. I. U. and the Federation." If any of these labor organizations
should desire not to appear on the ballot, it should advise the Regional
Director to that effect within five days after the receipt of this Sup-
plemental Decision and Amendments to the Direction of Election ;
thereupon its name shall be omitted from the ballot.12
In view of the lapse of time since the Board's Decision and Direc-
tion of Election in this proceeding was issued, we shall direct that
all employees of the Company in the appropriate unit who were em-
ployed during the pay-roll period immediately preceding the date of
this Supplemental Decision and Amendments to Direction of Elec-
tion, subject to the limitations and additions set forth in the Board's
Direction, shall be eligible to vote.
In view of all the circumstances cited herein, the Board hereby
amends its Direction of Election to read as follows :
"DIRECTED that, as a part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
bargaining with Pan American Refining Corporation, Texas City,
Texas, an election by secret ballot shall be conducted as early as pos-
sible, but not later than thirty (30) days from the date of this Supple-
mental Decision and Amendments to Direction of Election, under the
direction and supervision of the Regional Director for the Sixteenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among all production and maintenance employees of the
10 At the further hearing, a representative of the I. B. E W. testified that there were
seven employees among those in the unit alleged by the I B. E . W. as appropriate who are
members of the I. B. E. W. and 17 who have signed I. B. E. W. authorization cards. A
copy of the authorization cards signed by these employees was read into the record The
assistant superintendent of the Company testified that the Company employs approxi-
mately 21 electricians
11 See Hatter of Fruehauf Trailer Company of California and United Auto , Aircraft and
Agricultural Implement Workers of America, Local 811, C. I 0, 37 N L. R B 757.
12 However, if all the affiliates of the A. F. of L. herein involved desire to appear on the
ballot under a common designation , such as the Galveston Labor Council , we shall modify
the ballot accordingly if such organizations so advise the Regional Director within five
days after receipt of this Supplemental Decision and Amendments to the Direction of
Election.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company at Texas City, Texas, who were employed during the pay-
roll period immediately preceding the date of this Supplemental
Decision and Amendments to Direction of Election, including labora-
tory employees who work as testers and make routine examinations,
employees of the labor department, machine-shop employees, boiler-
makers, and employees who did not work during such pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but exclud-
ing clerical, office, technical or research, and supervisory employees,
and employees who have since quit or been discharged for cause, to
determine whether they desire to be represented by the Texas City
Employees' Federation, or by Oil Workers International Union,
Local -449, affiliated with the Congress of Industrial Organizations,
or by the International Association of Machinists Local No. 1446
of District 37, and the International Hod Carriers' Building and
Common Laborers Union, and the International Brotherhood of
Boilermakers Iron Shipbuilders and Helpers of America, and the
International Brotherhood of Electrical Workers, Local 527, all affili-
ated with the American Federation of Labor, for the purposes of
collective bargaining, or by none of these organizations."
MR. GERARD D. REILLY took no part in the consideration of the-
above Supplemental Decision and Amendments to Direction of
Election.