Phillips Petroleum Co.

National Labor Relations Board - Board Decisions

Jun 9, 1942

41 N.L.R.B. 802 (N.L.R.B. 1942)

In the, Matter of PHILLIPS PETROLEUM COMPANY and INTERNATIONAL
UNION OF OPERATING ENGINEERS , LocAL No. 351 (A. F. OF L)
Case No. R-3788.-Decided June 9, 1942
Jurisdiction : ' oil refining industry.
Investigation and, Certification of Representatives : existence of question : re-
fusal to accord petitioner recognition until certified by the Board ; contract
automatically renewed after notice of rival union's claim to representation
held no bar; election necessary.
Unit Appropriate for Collective Bargaining : all employees in 11 plants within
the Gasoline Department, Borger District, excluding janitors, temporary em-
ployees, and employees occupying supervisory, clerical, technical, and plant
patrol positions ; stipulation as to.
l
Mr. M. W. Eddleman, of Bartlesville, Okla., for the Company.
Mr. Johan L. Coulter, of Ft. Worth, Tex., and Mr..Arvil Inge, of
Borger, Tex., for the Union.
Mr. W. D. Cambern, of Phillips, Tex., for the Association.
Mr. H. G. Moorhead, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
r
Upon petition duly filed by International Union of Operating En-
gineers, Local No. 3,51 (A. F. of L.), herein called the Union, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Phillips Petroleum Company, Phillips,
Texas, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice, before Clifford
W-. Potter, Trial Examiner. Said hearing was held at Amarillo,
Texas, on April 30, 1942. The Company, the Union, and Gasoline
Employees Association of the Gasoline Department (Phillips Petro-
leum Company) in the Borger District, herein called the Association,
appeared, participated and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. 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 following:
41 N.L.R B, No 153
802
PHILLIPS PETROLEUM COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
803
Phillips Petroleum Company is a Delaware corporation which main-
tains and operates within a 35-mile radius of Phillips, Texas, 11
plants, which it classifies within the Gasoline Department of the
Borger District.' In one of these plants, the Borger Treater, it con-
verts into commercial gasoline and other finished products, raw gaso-
line which is manufactured in the other 10 plants of the Gasoline
Department of the District. During the hearing, Counsel for the
Company stated formally for the record that the Company • in 1941
manufactured over 200 million gallons of gasoline and other finished
gasoline products in these 11 plants and that it shipped a major part
of this gasoline and these products to points outside the State of Texas.
II. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local No. 351, is a
labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
Gasoline Employees Association of the Gasoline Department (Phil-
lips Petroleum Company) in the Borger Distiict, has since November
1940 represented employees of the Company. The evidence is in con-
flict as to whether this organization continues to represent employees
of the Company or whether the Association has been dissolved and
disbanded.
III. THE QUESTION CONCERNING REPRESENTATION
On or about January 2, 1942, the Company refused to recognize the
Union except upon certification by the Board. The Union at this
time made claim to represent employees in three of the plants in the
Gasoline Department of the District, although the Company and the
Union then primarily discussed 'the representation of employees in
the Company's Refining Department and postponed to a later date
their final disposition of matters concerning representation of em-
ployees in the Gasoline Department. On February 5, 1942, the Union
filed a petition including employees of_these three plants of the Gaso-
line Department in the proposed unit, but thereafter, on or about Feb-
1 The 11 plants of the Gasoline Department of the Borger District are named Texroy,
Canadian, Panhandler, Carson, Rock Creek, Johnson, Sanford, Ray, Rice, Pantex, and
Borger Treater . The Company also maintains and operates within the Borger District other
plants which it classifies within its Refining Department, and also operates other plants
outside of the Borger District,; but the present proceeding involves only the employees of
the 11 plants above named.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ruary 18, 1942, the Union acceded to the position taken by the Com-
pany, that the employees of all 11 plants in the Gasoline Department
of the District constitute the appropriate unit, and on February 20,
1942, amended its petition to include employees in all of the Gasoline
Department plants.
At the hearing, the Company asserted that it has a valid existing
contract with the Association and,that this contract constitutes a bar
to the present proceeding. The contract, which is entitled "Working
Agreement," extends by its terms for a period of one year from March
1, 1941, and thereafter by automatic annual renewal subject to written
notice of cancelation or of the desire by a party to amend, such notice
to' be given 30 days before the renewal date. Under its terms, the
Association is recognized as sole bargaining agent "subject to the
conditions and limitations imposed by law." The Union raised a
number of issues by various contentions which would avoid the bar
of the contract, if any, and evidence was introduced by the parties
bearing upon these issues; but we do not find it necessary to resolve
these issues, because the Union, by presenting to the Company in
January 1942 its claim to represent a substantial number of the em-
ployees covered by the contract, gave adequate and timely notice
sufficient to prevent the automatic renewal clause of the contract from
operating to its prejudice in this matter. We find that the contract
between the Company and the Association is not a bar to the present
proceeding.
The record discloses evidence tending to prove that the Union rep-
resents a substantial number of employees in the unit herein found
appropriate?
We find that a question affecting commerce has arisen concerning
representation of employees of the Company's Gasoline Department
in the Borger District, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
IV. THE APPROPRIATE UNIT
The Union and the Company stipulate that all employees of the
Company's Gasoline Department, Borger District, excluding janitors,
temporary employees,3 and employees occupying supervisory, clerical,
2 The Trial Examiner received as a Board exhibit a Field Examiner's report indicating that
the Field Examiner had checked against a Company pay roll for the latter half of February,
containing 415 names, a list sworn truly to disclose the membership of the Union, 197 names,
and that 86 names on the list appealed on the pay roll Neither the Company nor the
Association objected to the Union's showing of substantial representation. Near the close
of the hearing, a representative of the Union stated that be wished the record to disclose,
that subsequent to the Field Examiner's check he had secured "a substantial number of
additional authorizations." The Trial Examiner indicated that further evidence was not
necessary
"Temporary employees are those who have worked less than 90 days for the Company ;
such employees are listed upon red cards by the Company and are either made permanent
or laid off at the end of the 90-day period
PHILLIPS PETROLEUM COMPANY 805
technical, and plant patrol positions, constitute an appropriate bar-
gaining unit. The Association takes the position that the stated unit
would be appropriate if it did not exclude clerical and plant patrol
employees. All the parties agree "that the job descriptions set out in
the Company's pay roll for the last half of February 1942 with the
exception of janitors, constitute the job descriptions agreed upon as
being included in the stipulated appropriate unit." '
The contract between the Association and the Company covers all
employees, but the Association has not offered evidence or presented
argument why clerical and plant patrol employees should be included
in the appropriate unit while other employees also covered in the
contract may be properly excluded. Since we are not provided with
reason to justify departing from the stipulation between the Company
and the Union defining the unit, we shall exclude clerical and plant
patrol employees therefrom.
We find that all employees of the Company's Gasoline Department,
Borger District, excluding janitors, temporary employees, and em-
ployees occupying supervisory, clerical, technical, and,plant patrol
positions, 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
The Company and the Association contend that no election should
be held; the Union requests an election on a ballot enabling employees
to vote only for -or against it. In our opinion the question which has
arisen concerning representation can best be resolved by an election
by secret ballot. Since the Association does not wish to have its name
appear upon'the ballot,4 we shall direct that the election be held on a
ballot in the form desired by the Union. Although the Union has
requested that eligibility to vote be determined from a pay roll for a
period early in February or else for a period approximating the date
of the hearing, we shall follow our usual practice and direct that the
employees of the Company eligible to vote in the election shall be those
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.
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 Relations Act
4 Committeeman Cambern , who appeared of record for the Association, stated that the
Association does not desire to have its name appear on the ballot . Another of the Associa.
tion 's committeemen , Gillispie , agreed.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and pursuant to Article III, Section 8 of the National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Phillips Petroleum
Company, Phillips, Texas, 'an election by secret ballot shall be con-
ducted 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, Section 9, of said Rules and Regulations, among the employees in
the unit found appropriate in Section 4 above, during the pay-roll
period immediately preceding the date of this Direction, including
any such employees who did not work during such pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States , or temporarily laid off , but excluding
any who have since quit or been discharged for cause, to determine
whether or not they desire to be represented by International Union
of Operating Engineers, Local No. 351 (A. F. of L.) for the purposes
of collective bargaining. .