Great Lakes Pipe Line Co.

National Labor Relations Board - Board Decisions

Dec 8, 1951

92 N.L.R.B. 583 (N.L.R.B. 1951)

In the Matter of GREAT LAKES PIPE LINE COMPANY, EMPLOYER and
OIL WORKERS INTERNATIONAL UNION, LocAL No. 348, PETITIONER
Case No: 17 RC-795.Decided December 8, 19510
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William J. Scott,
hearing officer. 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 Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting c -)mmerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act?
4. The Petitioner seeks a unit of all operating and maintenance
employees of the Employer's branch line from AlbeFt Lea to Mankato,
Minnesota, excluding telephone linemen, the area clerk, terminal and
billing clerks, terminal testers, junior terminal testers, testers' helpers,
chief terminal clerk, chief terminal tester, and all other supervisory
employees.2 In the alternative, the Petitioner has indicated its will-
ingness to include these employees with the other operating and
maintenance employees of the Employer it currently represents. The
Employer contends that the separate unit is inappropriate but agrees
with the Petitioner's alternative request that the employees sought by
the Petitioner should be included with the other operating and main-
tenance employees of the Employer's, system.
The prior history of collective bargaining shows that the Petitioner
has, at various times, been certified as the bargaining representative of
a number of separate units of employees in the Employer's system,
1 Although the Employer and Petitioner have a current contract which might be urged
as a bar to these proceedings under the alternative unit request of the Petitioner, the
parties have declined to urge a contract bar. Under the circumstances , we find that the
contract does not preclude a present determination of representatives . See The Ohio
Bell Telephone Co., 87 NLRB 1555.
2 There is no prior history of collective bargaining with respect to these employees.
92 NLRB No. 95.
5F3
Z84- DECISIONS `OF'NAT, ON:AL .LABO;$' RF*LATIONS'BOARD
consisting of operating and maintenance employees in each of the
other five separate superintendent districts, and certain separate ter-
minal units.3 In finding that a separate superintendent district con-
stituted an appropriate unit, the Board repeatedly expressed the
opinion that "ultimately, a system-wide unit will be proper." 4 Under
the current collective bargaining agreement, all the separately certified
bargaining units are pooled within the coverage of the one contract;
and these piecemeal units have been effectively merged into a single
.system-wide unit as previously anticipated by prior Board decisions
-involving this Employer.5
Our dissenting colleague would dismiss the petition herein princi-
pally upon the ground that the Board has not found that the group of
employees herein concerned may constitute an appropriate unit prior
to directing an election among-such employees.e The contention is
made that the Board has no authority under the Act to direct elections
among groups of employees who have not been found and could not
be found to constitute appropriate units. Furthermore, it is argued
that Section 9 (a) of the Act which provides for the exclusive right
of representation by bargaining representatives designated or selected
by a majority of the employees in an appropriate unit, limits the
authority of the Board in directing elections to groups which are or
may be found to be appropriate units. We do not so construe the
language of the statute. Although we recognize that the certification
of a bargaining representative can only be based upon a majority
representation in an appropriate unit, we find nothing in the Act that
-requires as a preliminary to an election in any group, that the Board
determine that such group may constitute an appropriate unit. On
the contrary, we believe that the Act considered as a whole clearly
authorizes the Board to conduct elections among groups of employees
regardless of whether. or not they may be found- separate appropriate
units whenever it becomes relevant in a Board proceeding to ascertain
the desires of the majority in a particular group with respect to the
form of representation preferred for purposes of collective bargaining.
3 See Great Lakes Pipe Line Company, 88 NLRB 1370 , and cases cited therein.
4 Great Lakes Pipe Line Company, 88 NLRB 1370 ; 56 NLRB 227 ; 64 NLRB 1296.
See footnote 4, supra.
Although not to be considered in any way limiting the scope of our present decision,
we note in passing that the employees for whom an election is hereinafter directed consti-
tute an unrepresented residual group of the type which the Board has frequently found to be
an appropriate unit. Jordan Marsh Company , 85 NLRB 1503 ( markers ) ; Guntert & Zim-
merman Construction Division, Inc., 81 NLRB 874 (crane operators ) ; Carbide and Carbon
Chemicals Corporation, 56 NLRB 779 ( laborers ) ; cf. Phelps Dodge Corporation, 60 NLRB
14:31 ( laborers ). In such instances the Board has found residual groups appropriate,
although , absent their residual character, such groups could not , under normal Board
standards , constitute appropriate units . See Jordan Marsh Company , supra ; Guntert t
Zimmerman Construction Division , Inc., supra.
GREAT LAKES PIPE LINE COMPANY 585
Nor are we persuaded, as argued by our dissenting colleague, that
to permit an election under the circumstances here presented, is a
holding that a majority of the employees in the category concerned
are entitled to veto the Board's determination of the appropriateness
of the bargaining unit. A contrary conclusion is indicated by the fact
that our prior unit determination expressly left open the proper unit
placement of the employees involved in this proceeding. Moreover,
the holding of a "Globe" type election of the kind here directed
does not in and of itself determine the character of the appropriate
unit; nor does a subsequent finding that the voting group may hence-
forth bargain as part of the existing unit constitute a determination
that the existing unit is or is not an appropriate unit. There remains
unimpaired the Board's function to determine the appropriate unit.
In the performance of this latter function, we are persuaded that it
is our duty to prevent injustice being done to minority groups by
gerrymandering practices which would require the arbitrary inclu-
sion of such groups in a larger unit wherein they would have no effec-
tive voice to secure the benefits of collective bargaining. We believe,
therefore, that far from constituting a gerrymandering practice,
the use of the "Globe" type election as here directed, is in fact an
effective guarantee against the very gerrymandering practices en-
visaged by our dissenting colleague.
In view of the foregoing, and, as the Petitioner has expressed its
willingness to accept these employees as part of the system-wide
unit, we believe that the above-mentioned employees may, if they so
desire, be represented as part of the existing bargaining unit.'
We shall therefore direct an election among employees in the fol-
lowing voting group : All operating and maintenance employees of
the Employer's branch line from Albert Lea to Mankato, Minnesota,
excluding telephone linemen, area clerk, terminal and billing clerks,
terminal testers, junior terminal testers, testers' helpers,8 all other
employees, and all supervisors 9 as defined in the Act.
If a majority of the employees in the voting group cast their bal-
lots for the Petitioner, they will be taken to have indicated their
desire to be part of the over-all system-wide operating and mainte-
nance unit, and the Petitioner may bargain for such employees as
part of the existing unit.
7 See The Post Printing & Publishing Company, 91 NLRB No. 4. The cases of Lone Star
Producing Company, 85 NLRB 1137 and Waterous Company, 92 NLRB 76, cited by our
dissenting colleague are distinguishable from the present case in that in the instant
proceeding no union is seeking an election in the over-all unit.
8 The terminal and billing clerks, terminal testers, junior terminal testers and testers'
helpers, are excluded inasmuch as they are already part of the over-all bargaining unit.
Great Lakes Pipe Line Company, 88 NLRB 1370.
0 Included in this category are the chief terminal clerk and chief terminal tester.
929979-51-vol. 92-39
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER MURDOCK, dissenting :
It seems to me that my colleagues in the majority are perpetuating
a fundamental error of law and logic by directing an election in
this case. They are apparently proceeding on the theory already
largely repudiated by this Board, that a heterogenous group of em-
ployees, who could not otherwise constitute a separate appropriate
unit, should not be included in an existing over-all unit of which
they are properly a part, unless a majority of them so express their
desires in a Board election 10 This conclusion is all the more amazing
to me in view of the fact that not only the Board, but the Employer
and the Petitioner are agreed that these employees belong in a single
system-wide bargaining unit developed over a period of years.
The question raised in this case, in my opinion, is not a question of
representation, necessary to the direction of an election, but merely a
question relating to the inclusion or exclusion of a small group of em-
ployees in an established unit. These employees, however, cannot sep-
arately constitute an appropriate unit. Indeed, the majority finds that
they are entitled to representation only as an integral part of the es-
tablished unit, which is currently represented by a certified bargaining
representative. It therefore follows that the majority are in the posi-
tion of directing an election in an inappropriate unit. But Section
9 (a) of the Act provides that representatives selected for the purposes
of collective bargaining shall be selected by a majority of employees
"in a unit appropriate for such purposes." (Emphasis added.) Con-
gress has left the determination of appropriate units exclusively to
the Board. It has not granted the Board carte blanche authority to
direct elections among groups of employees who comprise something
less than, such a unit. To do so approaches the familiar gerrymander-
ing practice whereby election districts are split into unrecognizable
sections because of political bias rather than legitimate considerations.
Volumes of Board decisions have been filled with cases in which the
Board has exercised its function of determining inclusions in or exclu-
sions from bargaining units. Here the Board again finds upon all the
evidence, and the parties agree, that a group of employees are properly
included in. a specific bargaining unit. It is inconceivable to me that
the Board should further hold, as the majority do, that a majority of
n Peterson & Lytle, 60 NLRB 1.070; distinguished in Lone Star Producing Company, 85
NLRB 1137, Board Member Reynolds dissenting ; specifically overruled, where the only
union seeking to represent fringe employees was, at the same time, seeking an election
in the over-all unit, Waterous Company, 92 NLRB 76, Chairman Herzog and Member
Reynolds dissenting.
GREAT LAKES PIPE LINE COMPANY 587
this category of employees are now entitled to veto the Board's deter-
mination of that issue. But the majority contend that this is not the
effect of their decision. Indeed, they regard the "arbitrary inclusion"
of a minority group in a larger unit as a gerrymandering practice.
However, it is clearly the statutory duty of this Board to make careful
and necessarily final determinations with regard to the inclusion of
disputed categories of minority groups in appropriate bargaining
units. I submit that the exercise of this duty should not be affected by
the desires of a majority of such employees.
As I analyze the majority's position in this case, the election di-
rected herein will decide two questions for the majority : First, as indi-
cated above, it will decide whether this group of employees, who have
insufficient unit characteristics to be represented separately, shall join
the existing over-all unit, notwithstanding the fact that the Board has
already decided, in agreement with the parties, that they are properly a
part of the over-all unit and cannot function as a separate unit. The
decision to join or not join will be made by a majority of the group,
acting as a init. Second, the election will decide whether those em-
ployees, again acting as a unit, desire to be represented by the Peti-
tioner. I shall not further labor the point that the resolution of the
first question in this manner is an improper use of the Board's normal
election procedures whereby employees in appropriate units determine
their representative status by majority vote 11 As to the second ques-
tion, it is indeed unfortunate that the small group of operating and
maintenance employees on the Employer's branch line from Albert Lea
to Mankato, Minnesota, in the Northern District have never had an
opportunity to vote for or against the Petitioner in a Board-conducted
election. A previous decision of the Board reveals that these 'em-
ployees were originally excluded from coverage within the Northern
District unit because the branch line was then newly established and
had not yet been staffed.12 Be that as it may, it is nothing new in Board
11I regard the election directed in this case as clearly distinguishable from the Board's
normal "Globe" type election in which a craft or otherwise properly constituted unit is
permitted to decide whether it wishes to be represented in a separate or over-all unit.
In those cases the Board holds that either unit would be appropriate. Contrary to the
opinion expressed by the majority in footnote 6, I also regard the instant case as dis-
tinguishable from those cases in which the Board has held residual groups of employees
to constitute appropriate units. The cases cited in support of the majority's findings tr
this effect reveal that the employees there sought to be represented were not, as here,
mere accretions of employees performing functions identical to those of employees in the
existing unit. Moreover, unlike the instant case, the Board's direction of election in
those cases was predicated on the theory that the requested residual groups either would
or could, if they so desired, function as separate appropriate units.
12 Great Lakes Pipe Line Company, 73 NLRB 454, 456. In limiting the scope of the
unit to those employees working on facilities then currently operated by the Employer,
the Board specifically stated: "Such limitation is without prejudice to later proceedings
and a future determination of the proper unit placement of employees hired to operate
the branch line and terminal."
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
law or, for that matter, in the democratic process generally, that a
unit, properly established and represented, be swelled by the addition
of new members, who cannot until the next election express their in-
dividual desires with regard to representation.
The argument has been made most strenuously by Board Member
Reynolds in his dissenting opinion in the Lone Star Producing case 13
that any group of employees who have been omitted from a bargaining
unit should be permitted a separate election to determine whether they
wish to be represented by a labor organization. Rejecting his argu-
ment, the Board majority in that case held that the employees in
question constituted "only accretions to the existing unit" and that
they were not entitled to a separate franchise on the issue of their
representation in collective bargaining. I believe the logic of the
majority in that case is applicable here. Nor do I think it a material
distinction, as the majority in the instant case do, that in the Lone Star
Producing case an election in the over-all unit was being held in which
the new group of employees could cast individual votes. It is to my
mind a fair interpretation, if not a requirement of the Act, that a
majority of employees in a Board-directed election can bind their
fellows on the question of representation by a labor organization only
in a unit established as appropriate by this Board.
Under the circumstances of this case, particularly the small size
of the group and the uncontradicted preponderance of evidence favor-
ing their inclusion, I would find that these employees are presently a
part of the established unit and entitled to representation by the
certified representative of that unit.
18 Supra.