The Texas Co.

National Labor Relations Board - Board Decisions

Oct 31, 1945

64 N.L.R.B. 653 (N.L.R.B. 1945)

In the Matter of THE TEXAS COMPANY and OIL WORKERS INTERNA-
TIONAL UNION, C. I. 0., LOCAL 539
Case No. 2-R-5668.-Decided October 31,1945
Mr. R. J. Gengler, of New York City, for the Company.
Mr. Moss K. Schenck, of New York City, for the Union.
Mr. Philip Licari, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Oil Workers International Union`,
,C. I. 0., Local 539, herein called the Union, alleging that a question
.affecting commerce had arisen concerning the representation of em-
ployees of The Texas Company, New York City, herein called the Com-
pany, the National Labor Relations Board provided for an appropri-
ate hearing upon due notice before Henry J. Kent, Trial Examiner.
Said hearing was held at New York City, on July 18,1945. The Com-
pany and the Union appeared and participated. All parties were af-
forded full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues. The Trial Ex-
aminer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded an opportunity to
file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Texas Company is a Delaware corporation engaged in the busi-
ness of producing, refining, marketing, and transporting petroleum
products. The Company distributes its products through bulk plants
located throughout the United States. The instant proceeding con-
cerns only the Company's Brooklyn, Glenwood Landing, Long Island
City, New Rochelle, Ossining, Patchogue, and Riverhead plants, all
located in New York State. All products marketed by the Company
64 N. L . R. B., No. 111.
653
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through these plants are shipped from points outside the State of
New York. Monthly, the Company sells to customers located in New
York State petroleum products valued at approximately $350,000.
We find that the Company is engaged in commerce within the mean-
ing of the Act.'
II. THE ORGANIZATION INVOLVED
Oil Workers International Union, Local 539, affiliated with the
Congress of Industrial Organizations, is a labor organization admit-
ting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 30, 1944, the Company entered into a collective bargaining
agreement with the Associated Petroleum Workers Union ,2 herein-
after called the Association, which provided, in part, as follows :
This Agreement shall continue in effect from June 1, 1944 to June
1, 1945, and thereafter from year to year unless cancelled prior to
any yearly period by giving 30 days' prior written notice.
In the spring of 1945, a substantial number of Association members
approached its executive board and asked the board to investigate the
matter of affiliation with a national organization. Prior to May 1,
1945, the Association gave the Company notice of cancelation of the
1944 contract in accordance with the terms of that agreement. On
May 11, 1945, the Association called a special meeting at which its
members voted to affiliate with the Oil Workers International Union,
C. I.0.3 Sometime thereafter a charter was granted to the Association
under the name of Oil Workers International Union, C. I. 0., Local
539, the Union herein. The officers of the Association became the
Union's officers, and it appears from the record that the Association
was transformed into the Union.
On or about May 14,1945, at a conference with the Company, certain
of the employees announced that the Association had affiliated with
the Oil Workers International Union, C. I. 0., and requested the Com-
pany to make arrangements for the negotiation of an agreement with
the Union. There was also discussed the possibility of reviving and
temporarily adopting the Association's 1944 contract with the Com-
pany until a final agreement could be made with the Union. The Com-
pany, however, refused to recognize the Union as the collective bar-
gaining representative of its employees, and declined to negotiate a
1 See Matter of The Texas Company , 26 N. L. R. B 401.
2 This was an unaffiliated labor organization representing employees of the Company.
Although Notice of Hearing was served upon the Association , it did not appear in this
proceeding
2 Approximately 60 of the Association's 70 members attended the meeting and all but 1
voted in favor of affiliation
THE TEXAS COMPANY 655
contract with it until it was certified by the Board. In order to pre-
serve a harmonious relationship with the Company, bargaining was
conducted in the name of the Association.
On May 18, 1945, the Company addressed a letter to Moss K.
Schenck, as attorney for the Association, Schenck at that time being
the attorney for the Union, which stated, in part, as follows :
As a result of the discussion held on May 14, it is agreed that the
present agreement remain in force as provided for in Article
XVII, but subject to cancellation by either party upon giving
fifteen (15) days' prior written notice of such cancellation or sub-
ject to modification or amendment at any time upon agreement of
the parties.
On May 22, 1945, the Union filed the petition herein.
On May 31, 1945, Schenck returned to the Company its letter of
May 18 with the notation that the part reading "but subject to cancel-
lation by either party upon giving fifteen (15) days prior written
notice of such cancellation" was "opposed." Schenck initiated this
notation.
On June 115 1945, the Company addressed another letter to Schenck,
as attorney for the Association, stating :
Under date of May 31, 1945, we received the original of Mr.
Hunt's letter [the Company's letter of May 18, 1945] signed by
you, but with a notation in the margin to the effect that the Union
opposed a cancelation clause in the second paragraph and that
you had signed such original in the understanding that the can-
celation provision would be stricken.
The effect of this change is to make the second paragraph of
Mr. Hunt's letter read as follows :
As a result of this discussion held on May 14, it is agreed
that the present agreement remain in force as provided for
in Article XVII, subject to modification and amendment at
any time upon agreement of the parties.
This is to advise you that the change made by the Union is
acceptable to the Company and we, therefore, consider the letter
to constitute an agreement between the parties extending the terms
of the contract to June 1, 1946.
It is unmistakably clear from the record that the Company does not
consider itself contractually bound to the Union, refusing to recognize
it in the absence of certification by the Board. But the Company
contends that by virtue of its letter of June 11, 1945, an effective agree-
ment between it and the Association came into being for a term expir-
ing June 1, 19464 Assuming that the Association is a separate entity,
4 As previously indicated , it appears that the Association , as such, no longer exists.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the Company seems to assert, alfd that on June 11, 1945, a binding
agreement was made between the Company and the Association for a
term expiring June 1, 1946, we nevertheless find that there is no bar to,
a current determination of representatives, inasmuch as the Union
filed its petition prior to the effective date of this alleged agreement."
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing, indicates that the Union represents a substan-
tial number of employees in the unit hereinafter found appropriate.6
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with the agreement of the parties, that all
the Company's employees engaged at its bulk plants in Brooklyn,
Glenwood Landing, Long Island City, New Rochelle, Ossining,
Patchogue, and Riverhead, all in New York State, excluding agents,
assistant agents, and all other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
V. TILE DETERMINATION OF REPRESENTATIVES
At the hearing the Union asked that it be certified as the exclusive
bargaining agent of the employees in the appropriate unit premised
solely on the present record of this proceeding. The Company, on
-the other hand, desires that an election be conducted. We are of the
opinion that the question concerning representation which has arisen
.can best be resolved by an election by secret ballot.
Accordingly, we shall direct an election by secret ballot among the
employees 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,
6 See Matter of Portland Lumber Mills, 56 N I, R B 1336
9 The Field Examiner reported that the Union submitted 66 authorization cards, 64
of which bore apparently genuine original signatures • that the names of 64 persons
appearing on the cards were listed on the Compann 's pay roll of May 31 , 1945, which
contained the names of 105 employees in the-alleged appropriate unit; and that 65 cards
a ere dated May 1945 and 1 June 1945.
THE TEXAS COMPANY 657
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Texas Com-
pany, New York City, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days from the date
of this Direction, under the direction and supervision of the Regional
Director for the Second Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections
10 and 11, of said Rules and Regulations, among the employees in the
unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during the said pay-
roll period because they were ill or on vacation or temporarily laid
off, and including employees in the armed forces of the United States
who present themselves in person at the polls, but excluding any who
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the election, to determine whether or
not they desire to be represented by Oil Workers International Union,
C. I. 0., Local 539, for the purposes of collective bargaining.
M. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
670417 -46- vol 64-43