Roosevelt Oil and Refining Corp.

National Labor Relations Board - Board Decisions

Aug 29, 1949

85 N.L.R.B. 965 (N.L.R.B. 1949)

In the Matter of ROOSEVELT OIL AND REFINING CORPORATION, EM-
PLOYER 1 and OIL WORKERS INTERNATIONAL UNION, CIO, PETI-
TIONER
Case No. 7-RC-446.-Decided August 29, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Cecil Pearl,
hearing officer of the National Labor Relations Board. The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner and Oil Field and Refinery Workers, Local 360,
International Union of Operating Engineers, AFL, herein called the
Intervenor, are labor organizations claiming to represent employees
of the Employer.
3. The question concerning representation :
The Petitioner seeks to represent the Employer's production and
maintenance employees. The Employer has recognized the Intervenor
as the exclusive bargaining representative of these employees for
several years. Since April 6, 1944, the Employer and the Intervenor
have operated under a contract 2 which provides for automatic re-
newal on December 1 of each year. Both the Employer and the
Intervenor contend that the current extension 3 of the original contract
is a bar to this proceeding.
I The name of the Employer appears as amended at the hearing.
2 The parties to the contract are the Employer and "International Union of Operating
Engineers , Oil Field and Refinery Workers Local # 360, its officers, agents, members and
subordinate locals ." Signatories to the contract on behalf of the Union are the president,
the secretary , and the business agent of Local 360. The contract was approved by the
general president of the International Union.
3 The original contract provided for annual renewal on December 1. The Petitioner
contends that in August 1948, the parties agreed to change the automatic renewal date
to August 1. The president of the Employer testified that he had never agreed to this
change in the renewal date. In view of our decision herein, we find it unnecessary to
resolve this conflict.
85 N. L . R. B., No. 171.
965
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The original contract provided for a union shop.4 Under date of
March 18, 1948, the business agent of the Intervenor wrote to the Em-
ployer as follows:
In accordance with the Taft-Hartley Act and our recent under-
standing with you, all provisions of our contract approved April
6, 1944 shall remain effective except Article 1B which shall be-
come effective immediately upon certification by the National La-
bor Relations Board that the Union is authorized to enter into,
such agreement pursuant to the National Labor Act, or in the
absence of such certification, immediately upon an administrative,,
legislative, or judicial determination that the parties hereto are
not subject to the terms of the National Labor Relations Act.
Article 3 shall be effective as amended by our recent wage in-
crease.
Please attach this to your agreement to cover the restrictions of
the Taft-Hartley Act.
The Intervenor has never filed a petition under Section 9 (e) (1) of
the Act seeking an election for union-shop authorization.
The business agent of the Intervenor testified that he had reported
the March 18 change in the contract at a regular meeting of the Inter-
venor. He was unable to recall specifically the date of the meeting
or the extent of the discussion as to the change. The recording secre-
tary of the Intervenor was not present at the hearing and was not called
as a witness to substantiate this testimony, either at the original hear-
ing or at the adjourned one held 3 days later. However, two of the Peti-
tioner's witnesses, both of whom were members of the Intervenor's
bargaining committee on March 18, when the letter was written, testi-
fied that they had not seen the letter prior to the hearing, and that they
did not recall that the letter or the substance thereof had been discussed
at any meetings at that time. Furthermore, there is no evidence that
copies of the letter were posted, or that the employees were given notifi-
cation in any way as to the change in the contract.
The Board has previously held that "the mere existence of such a
[union shop] provision acts as a restraint upon those desiring to re-
Article I of the contract reads :
(A) The Company agrees to recognize and bargain with the Union as the exclusive
representative and sole bargaining agent for all its employees covered by this agree-
ment, and all such employees shall be good standing members of the Union except
as hereinafter provided . ( B) Whenever the Union fails to furnish competent
union men to meet the needs of the Company , it may hire non-union men to meet its
requirements . The Company shall notify the Union when placing non-union men on
its payrolls and these men shall immediately make application for membership in the
Union . Non-union men will be allowed to work on union permits until they are
accepted by application into the Union or discharged by the Company . Men rejected
by the Union shall be discharged by the Company when the Union supplies the
Company with qualified replacements.
ROOSEVELT OIL AND REFINING CORPORATION 967
(rain from union activities within the meaning of Section 7 of the
Act." 5 Upon the basis of the entire record in this case, and particu-
larly in view of the failure formally to amend the contract,6 we find
that the letter of the Intervenor's business agent, in and of itself, did
not effectively eradicate the restraint upon the employees imposed
by the unauthorized union-shop provision,7 and that therefore the
contract is not a bar to a current determination of representatives.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer, within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit composed of all production and mainte-
nance employees" of the Employer, excluding all office and clerical
employees, professional employees, guards, temporary employees, and
supervisors. The parties are in general agreement as to the composi-
tion of the unit. The Petitioner, however, would include, and the
Employer and the Intervenor would exclude, the pick-up driver. Un-
der the supervision of the purchasing agent, the pick-up driver de-
livers purchase orders, picks up mail, transports a few female office
employees to and from the Employer's plant, and on occasion, carries
small parts from the Employer's suppliers to the plant. The purchas-
ing agent estimated that 90 percent of the pick-up driver's time is
spent in connection with the office and purchasing department. The
pick-up driver has been excluded from the production and mainte-
nance unit in the contracts between the Employer and the Intervenor.
We find that the pick-up driver's interests and working conditions are
substantially different from those of the production and maintenance
workers, and we shall therefore exclude him from the unit hereinafter
found appropriate.
We find that all production and maintenance employees at the Em-
ployer's Mt. Pleasant, Michigan, refinery, excluding all office and
clerical employees, the pick-up driver, professional employees, guards,
temporary employees, and all supervisors, constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
5 Matter of C. Hager it Sons Hinge Manufacturing Company, 80 N. L. It. B. 163.
8 Matter of Flint Lumber Company, 85 N. L. R. B. 943 ; Matter of Evans Milling Com-
pany , 85 N. L. R. B. 391.
' We find it unnecessary to determine whether or not, by this act, the contracting parties,
inter se, suspended the union -shop provisions of the contract.
8 The production and maintenance employees include , but are not restricted to, the senior
tester , gauge employee , first , second, and third class maintenance employees , pumper,
treater , junior tester , stock man , operator , senior loader , boiler fireman , tank car loader,
control man , junior loader , lubricating house attendant, and laboratory employee.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an. election
by secret ballot shall be conducted as early as possible, but not later
than 30 days from the date of this Direction, under the direction and
supervision of the Regional Director for the Region in which this
case was heard, and subject to Sections 203.61 and 203.62 of National
Labor Relations Board Rules and Regulations, among the employees
in the unit found appropriate in paragraph numbered 4, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction of Election, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining, by
Oil Workers International Union, CIO, or by Oil Field and Refinery
Workers, Local 360, International Union of Operating Engineers,
AFL, or by neither.