Shell Petroleum Corp.

National Labor Relations Board - Board Decisions

Nov 12, 1938

9 N.L.R.B. 831 (N.L.R.B. 1938)

In the Matter of SHELL PETROLEUM CORPORATION and OIL WORKERS
INTERNATIONAL UNION, LOOAL No. 367
Case No. R-626.-Decided November 12, 1938
Oil Refining Industry-Notice and Hearing : erroneous designation of case
number, not prejudicial-Investigation of Representatives : controversy concern-
ing representation of employees : refusal by employer to negotiate further with
petitioning union until determined whether or not certain supervisory em-
ployees, who rank below general formen and above regular workers , should
be included in plant unit ; rival orgtnizatious as to certain crafts-Unit Appro-
priate for Collective Bargaining : plant unit consisting of all hourly paid
employees , including the certain supervisory employees , excluding clerical
employees , general foremen , department beads and their immediate assistants,
excluding bricklayers and including or excluding machinists and employees in
the boilermaking and welding department ; the certain supervisory employees :
do not perform major supervisory functions ; under circumstances desires of
labor organization determinative ; bricklayers : full-time employees -but only
work part time as bricklayers ; work held primarily that of bricklayers and
considered such for representation ; history of organization ; desire and choice
of employees involved , machinists and employees in boilermaking and welding
department : factors determinative of their inclusion in or exclusion from plant
unit evenly balanced ; determining factor desire of the employees engaged in
these crafts ; determination of appropriate unit made dependent upon results
of separate elections ordered among employees in such two crafts-Representa-
tives : proof of choice : signed petition designating bricklayers ' union as bar-
gaining representative ; application and membership cards in petitioning union
sufficient to certify but withheld until results of elections in two craft groups
known-Certification of Representatives : as to bricklayers , upon proof of major-
ity representation-Elections Ordered: as to machinists and employees in the
boilermaking and welding department.
Mr. E. P. Davis, for the Board.
Mr. William D. Orem, of Houston , Tex., for the Company.
Mandell & Combs , by Mr. W. A. Combs, of Houston , Tex., and
Mr. J. L . Coulter , of Washington , D. C., for the Oil Workers.
Cutrer & Murfee, by Mr. Lewis W. Cutrer, of Houston, Tex., for
Morris and Lewis.
Mr. S. W. Hales, of Houston , Tex., for the Bricklayers.
Mr. R. C. Cole, of Houston, Tex., for the Machinists.
Mr. J. N. Davis , of Kansas City, Kans., for the Boilermakers.
Mr. Sewall Myer, of Houston , Tex., for the Electrical Workers.
Mr. Arnold R. Cutler , of counsel to the Board.
9 N. L P. B., No. 76.
831
832 NATIONAL LABOR RELATIONS BOARD
DECISION
DIRECTION OF ELECTION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On February 3, 1938, Oil Workers International Union, Local No.
367, herein called the Oil Workers, filed with the Regional Director
for the Sixteenth Region (Fort Worth, Texas) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees at the Deer Park Refinery of Shell Petroleum
Corporation, Houston, Texas, herein called the Company, and re-
questing an investigation and certification of representatives pursuant
to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On February 16, 1938, the National Labor
Relations Board, herein called the Board, acting pursuant to Section
9 (c) of the Act and Article III, Section 3, of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended, ordered
an investigation and authorized the Regional Director to conduct
it and to provide for an appropriate hearing upon due notice.
On February 26, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
Oil Workers. Thereafter, pursuant to motions filed with the Re-
gional Director, leave to intervene was granted to John W. Morris
and Kline S. Lewis, superintendents and/or foremen at the Deer Park
Refinery of ry the Company ; Bricklayers and Masons International
Union, Local No. 7, herein called the Bricklayers; International As-
sociation of Machinists, Lodge No. 12, herein called the Machinists;
and International Brotherhood of Boilermakers, Iron Shipbuilders,
Welders and Helpers of America, herein called the Boilermakers.
Pursuant to the notice, a hearing was held at Houston, Texas, on
March 4, 5, 6, 7, and 12, 1938, before James C. Batten, the Trial
Examiner duly designated by the Board. At the hearing, Pat
Rusche, by International Brotherhood of Electrical Workers, Local
No. 716, herein called the Electrical Workers, filed a motion to inter-
vene, which was granted-by the Trial Examiner. The Board, the
Company, Morris and Lewis, and the Electrical Workers were rep-
resented by counsel, and the Machinists, the Bricklayers, and the
Boilermakers, by officials of the respective unions. The Oil Workers
was represented by counsel as well as by an official of the union.
All such representatives participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduced evidence bearing on the issues was afforded all parties.
DECISIONS AND ORDERS 833
At the commencement of the hearing counsel for the, Company
made a motion to postpone the hearing, and objected to any pro-
ceeding on the ground that sufficient notice of the hearing as required
by law was not received by the Company. The Trial Examiner
denied the motion and overruled the objection. Section 9 (c) of
the Act and Article III, Section 3, of the Rules and Regulations,
state that the Board shall "provide for an appropriate hearing upon
due notice." It is clear that due notice was had in the instant case.
On February 26, 1938, the Regional Director had sent a telegram
to the Company notifying it of the date of the hearing, and also
advising that a formal notice would follow that day. Such a for-
mal notice was sent to the Company on the same day and was re-
ceived by it on March 1, 1938. The telegram erroneously stated the
number of the case to be "X-DI-R-87," whereas the correct num-
ber, which appeared in the formal notice, was "XVI-R-87." The
contention as to the lack of sufficient notice is based solely on this
typographical error in the designation of the number of the case in
the - telegram. The Company, however, clearly was not misled or
prejudiced by the error in the telegram. Significant in this con-
nection is the fact that the Oil Workers, in a letter dated February
7, 1938, advised the Company that a petition relating to the present
case had been filed with the Board. An officer of the Company testi-
fied that he had seen this letter during the first part of February.
On February 14, 1938, an officer of the Company wrote a letter to
the Regional Director discussing the issues of such petition. The
rulings of the Trial Examiner as to the motion and objection are
accordingly sustained.
- During the course of the hearing the -Trial Examiner made- other
rulings on motions and on objections to the admission of- evidence.
The Board has reviewed such other rulings of the Trial Examiner
and finds that no prejudicial errors were committed. Thecrulings
are hereby affirmed. 4,
Thereafter, the Company, the Oil Workers, and Morris and, Lewis
filed briefs, which the Board has considered. On April, 12,' 1938,
representatives of the Company, the Oil Workers, the Bricklayers,
the Machinists, and the Boilermakers presented oral argument- be=
fore the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The -Company, a subsidiary of Shell Union Oil Corporation, is a
Virginia corporation and has its principal office at St. Louis, Missouri.
It is engaged in the production, refining, and distribution of oil and
834 NATIONAL LABOR RELATIONS BOARD
oil products. It operates refineries and production fields.in Texas,
Louisiana, Kansas, Illinois, Indiana, Oklahoma, and New Mexico.
This case is concerned only with its Deer Park Refinery plant at
Houston, Texas.
The Deer Park Refinery, employing approximately 1,283 workers,
manufactures gasolines, naphthas, solvents, propane, butane, kero-
sene, gas-oil, diesel fuels, and other grades of fuels. Until recently
the Deer Park Refinery has been operating at its maximum capacity
of 75,000 barrels a day. At the time of the hearing its production
had been cut to 68,000 barrels a day.
The crude oil received at the Deer Park Refinery arrives by pipe
line. For the 6-month period from May to October 1937, 44 per cent
of the crude oil received at the refinery came. from the Company's
production fields in New Mexico and Louisiana, the remainder being
obtained from the production fields in Texas. At the time of the
hearing the only crude oil obtained by the refinery from outside
the State of Texas arrived from Louisiana and comprised 20 per
cent of the total amount of crude oil used. Approximately 88 per
cent of the refinery's total output is shipped outside of the State of
Texas, including approximately 20 States and foreign countries.
This refinery has facilities for loading tank cars as well as deep-
water vessels.
H. THE ORGANIZATIONS INVOLVED
Oil Workers International Union, Local No. 367, is a labor organi-
zation affiliated with the Committee for Industrial Organization.
It admits to membership all hourly paid employees of the Company
at the Deer Park Refinery, stillmen, treaters, and shift foremen,
labor subforemen, certain foremen and assistant foremen, excluding
clerical employees, general foremen, and department heads and their
immediate assistants.
Bricklayers and Masons International Union, Local No. 7, is a
labor organization affiliated with the American Federation of Labor.
It admits to membership bricklayers employed at the Deer Park
Refinery.
-, International Association of Machinists, Lodge No. 12, is a labor
organization affiliated with the American Federation of Labor. It
admits to membership machinists employed at the Deer Park
Refinery.
International Brotherhood of Boilermakers, Iron Shipbuilders,
Welders and Helpers of America is a labor organization affiliated
with the American Federation of Labor. It admits to membership
workers employed in the boilermaking and welding department of
the Deer Park Refinery.
DECISIONS AND ORDERS 835
International Brotherhood of Electrical Workers, Local No. 716, is
a labor organization affiliated with the American Federation of
Labor. It admits to membership electrical workers employed at the
Deer Park Refinery.
III. THE QUESTION CONCERNING REPRESENTATION
On or about November 1, 1936, the Company and the Oil Workers
discussed a renewal of an agreement between them relating to wages,
hours, and working conditions of employees of the Company at the
Deer Park Refinery, but reached an impasse on the question of
whether or not a certain group of employees, herein collectively
called the men in controversy, should be included in the plant unit.
The Oil Workers contended that the employees in this group should
be included in the plant unit as it had bargained for them in the
past. The Company contended that the growth of the refinery had
been such that the duties of this group were now wholly supervisory
and were thus more closely allied to the interests of the Company.
It appears that further negotiations between the Company and the
Oil Workers have been discontinued pending the disposition of this
group of employees in its relation to the plant unit.
The Bricklayers, the Machinists, the Boilermakers, and the
Electrical Workers have intervened to claim that each of the crafts
at the Deer Park Refinery be considered a separate unit.
We find that a question has arisen concerning the representation of
employees of the Company at its Deer Park Refinery.
IV. THE EFFECT OF TIIE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that 'the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Oil Workers contends that the appropriate bargaining unit
consists of all hourly paid employees of the Company at its Deer Park
Refinery, and the men in controversy, excluding clerical employees,
general foremen, and department heads and their immediate assist-
ants. The Company claims that the men in controversy perform
supervisory, functions and should not be included in a bargaining unit
with the production employees. At the hearing, representatives of the
men in controversy presented petitions indicating that a large num-
134065-39-vol. ix-54
836 NATIONAL LABOR RELATIONS BOARD
ber of such employees did not desire inclusion in the bargaining unit
sought by. the Oil Workers. The Bricklayers, the Machinists, the
Boilermakers, and the Electrical Workers, respectively, claim that the
bricklayers, the machinists, the employees in the boilermaking and
welding department, and the electrical workers should be included in
separate bargaining units.
A. The men in controversy
At the head of the Deer Park Refinery is a general manager, below
whom are the superintendent of the plant and his assistant. Then
follow the heads of the various departments, consisting of the crack-
ing, topping, treating, shipping, engineering, laboratory, gas, ware-
house, industrial relations, and car departments. Most of the depart-
ment heads have from one to three assistants, depending upon the size
of the department, below whom in some of the departments, as in the
engineering department, which is the largest in the plant with some
678 employees, are the general foremen. In the organizational set-
up, the men in controversy, follow next, below whom are the regular
workers.
The men in controversy, 67 in number, consist of 16 stillmen, 8
treaters, 4 dock shift foremen, 4 boiler house shift foremen, 4 iso-
octane shift foremen, 4 stabilizer shift foremen, 4 laboratory shift
foremen, 11 labor subforemen, the assistant instrument foreman, the
assistant electrical foreman, the carpentry foreman, the painting
foreman, the assistant pipe fitter foreman, the assistant clean out.
foreman, the insulator foreman, the assistant floor foreman, the as-
sistant loading rack foreman, the head dispatcher, the assistant head
dispatcher, and the motor laboratory foreman.
The Oil Workers states, in support of its contention that the men
in controversy should be included in one bargaining unit with the
production employees, that the general practice in the industry is
to include such workers in the plant unit, and that the past bargain-
ing history at the Deer Park Refinery has been on such basis.
The Company contends that, due to recent increased operations of
the plant, the duties of the men in controversy, although previously
only supervisory in part, are now exclusively of a supervisory na-
ture, and hence that the men should not be included in a bargaining
unit with the other employees.
1 Respondent Exhibit No. 1 lists 72 employees among the men in controversy and
testimony was introduced at the hearing as to 3 others, making a total of 75 in all.
However, three of this number, although working in part as labor subforemen, are engaged
primarily as bricklayers ; two, the assistant machinist foreman and the garage night fore-
man, are appropriately classified as machinists ; and three, the boilermaking foreman
and the two welder foremen, are employed in the boilermaking and welding department.
Accordingly, these eight employees will be considered under the sections herein dealing
with the bricklayers, the machinists, and the employees in the bomlermakmg and
welding department, respectively, rather than in the section dealing with the men in
controversy.
DECISIONS AND ORDERS 837
We find it unnecessary, however, to determine the merits of the
contentions of the Oil Workers and the Company relative to whether
or not the nature of the duties performed by the men in contro-
versy has changed as a result of the increased operations at the plant.
The men involved, while eiercising some supervisory powers, do
not perform the major supervisory functions in the. plant. The Oil
Workers is the only labor organization here concerned relative to
the inclusion in or exclusion from the general plant unit of these
employees, and it desires their inclusion in the unit. Under these
circumstances we hold that the desires of the labor organization are
determinative and we shall, therefore, include the men in contro-
versy in the general plant unit.
B. The bricklayers
There are three bricklayers at the Deer Park Refinery. They,
however, work only part of the time as bricklayers, working as labor
subforemen when their services as bricklayers are not needed. When
working as bricklayers they receive bricklayers' wages, otherwise
receiving the wages paid to labor subforemen. It appears from the
record and from the oral argument that it is essential to the opera-
tions of the Deer Park Refinery that some bricklayers be available
at the refinery at all times. The work of each of these three em-
ployees is primarily that of a bricklayer. In view of this fact, for
purposes of representation, we shall consider these employees as
bricklayers only.
All three bricklayers have been members of the Bricklayers for a
considerable period of time. Also, in the past, all bricklayers at
the plant have been obtained through the Bricklayers. At the hear-
ing the Bricklayers introduced a petition signed by all three brick-
layers, designating the Bricklayers as the bargaining agency for all
work coming under the jurisdiction of the Bricklayers.
At the hearing the Oil Workers contended that it had bargained
for the bricklayers previously, and that they should not be set up as a
separate unit, but should be included in the plant unit. At the oral
argument the representative of the Oil Workers stated that he was
willing to waive all rights to bargain for the bricklayers in so far is
their bricklaying work was concerned.
We are of the opinion that the bricklayers may appropriately be
included in the plant unit or constitute a. separate bargaining unit.
In similar cases we have held the desires of the employees themselves
to be determinative.2
°Matter of The Globe Machine d Stamp,nq Co and Metal Polishers Union, Local No 3,
International Association of Machinists, District No 54,. Federal Labor Union 18788, and
United Automobile Workers of America, 3 N L R B 294: Matter of Allis-Chalmers
Manufacturing Company and International Union , United Automobile Workers of America,
Local 248, 4 N L R B 159
838 NATIONAL LABOR RELATIONS BOARD
We have, as indicative of the desires of the bricklayers, the fact
that they are all members of the Bricklayers, have been represented
in the past by that organization, and have signed the petition above
mentioned. We find, therefore, that the bricklayers desire repre-
sentation by the Bricklayers and shall* include them in a separate
bargaining unit..
C. The machinists
The Machinists claims that the machinists of the Company con-
stitute an appropriate unit. It maintains that it has represented
these employees at the plant for purposes of collective bargaining
since September 4, 1936, when the Company signed a collective bar-
gaining agreement with the Machinists. Since then the Machinists
has, on various occasions, engaged in bargaining with the Company
in behalf of the machinists at the Deer Park Refinery.
At the hearing the Oil Workers pointed out that it had bargained
in behalf of the machinists long before the arrival of the Machinists
at the Deer Park Refinery and that they should continue as a part of
the plant unit.
At the oral argument the representative of the Oil Workers stated
that he was agreeable to the holding of an election to let the em-
ployees involved determine whether they should be included in a
separate unit or whether they should be included within the larger
plant unit. The representative of the Machinists was in accord with
this procedure.
There are 43 employees at the plant whom the Company, the Ma-
chinists, and the Oil Workers agree are machinists. There are six
employees in addition about whom questions have been raised by
these parties. These six include the assistant machinist foreman, the
garage night foreman, and four employees, whose duties are divided
between work as mechanics in the garage and work as crane operators,
tractor operators, or riggers.
The Machinists contends that the four part-time mechanics are not
machinists and should not be included in the separate plant unit.
The Oil Workers contends that, although they work only part of
the time as mechanics, they are nevertheless machinists. No agree-
ment on these four was reached at the hearing or at the oral argu-
ment. We are of the opinion that if the four employees spend the
greater part of their time,doing the work of machinists, they should
be classified as such and should be included in whichever unit the
machinists select. We are also of the opinion that a determination
on this issue should be made on the basis of the pay rolls of the Com-
pany for 3 months preceding March 4, 1938, the date of the beginning
of the hearing.
DECISIONS AND ORDERS 839
The assistant machinist foreman and the garage night foreman were
included, at the hearing, among the men in controversy. At the oral
argument the representative of the Machinists pointed out, without
objection from the other parties present, that the garage night fore-
man is a machinist. It appears, moreover, that the assistant machinist
foreman is also a machinist. Although these two are therefore
properly discussed under the category of machinists, the same prob-
lems presented for the men in controversy are equally applicable to
them. Since both labor organizations involved relative to these men,
desire their inclusion in the bargaining unit which they claim is ap-
propriate, we shall permit them to vote in the election herein ordered
among the machinists.
We shall direct that an election be held among the full-time ma-
chinists, and those devoting the greater part of their time at work as
machinists during the 3 months prior to March 4, 1938, who were
employed by the Company at the Deer Park Refinery during the
pay-roll period next preceding March 4, 1938, including the garage
night foreman and the assistant machinist foreman, and excluding
those who have since quit or been discharged for cause, to determine
whether they desire to be represented by the Oil Workers or by the
Machinists, for the purposes of collective bargaining, or by neither.
If a majority vote for representation by the Oil Workers, they shall
be included in the plant unit. If a majority vote for representation
by the Machinists, they shall constitute a separate bargaining unit.
D. The employees in the boilermaking and welding department
It appears from the testimony at the hearing that the Company
employs in the boilermaking and welding department approximately
66 employees, including a general boilermaker and welder foreman,
a boilermaker foreman, and two welder foremen. The Boiler-
makers contends that all these employees constitute a separate ap-
propriate bargaining unit and claims to represent "30, more or less,"
of such employees. Its representative states that approximately 21/2
years ago it petitioned the management for recognition as the repre-
sentative of the employees in the boilermaking and welding depart-
ment, but that such petition was refused. The Oil Workers claims
that all the said 66 employees, except the general boilermaker and
welder foreman, should be included as a part of a general plant unit.
We are of the opinion that these employees may appropriately be
included in a general plant unit or established as a separate bargain-
ing unit .,9 In similar cases we have held the desires of the employees
a See Matter of Combustion Engineering Company, Inc and Steel Workers Organizing
Committee, for and in behalf of Amalgamated Association of Iron, Steel , S Tin 1Votkera
of North America, 5 N. L. R. B. 344.
840 NATIONAL LABOR RELATIONS BOARD
themselves to be determinative.4 We will, therefore, direct that an
election be held among the employees in the boilermaking and weld-,
ing department at the Deer Park Refinery, who were employed by the
Company during the pay-roll period next preceding March 4, 1938
(the date of the beginning of the hearing), including the boiler-
maker foreman, and the two welder foremen,5 but excluding the
general boilermaker and welder foreman,6 and excluding those who
have since quit or been discharged for cause, to determine whether
they desire to be represented by the Oil Workers or by the Boiler-
makers, for the purposes of collective bargaining, or by neither.
If a majority of the employees in the boilermaking and welding de-
partment vote for representation by the Oil Workers, they will be
included in the general plant unit. If a majority vote for representa-
tion by the Boilermakers, the said employees will constitute a separate
bargaining unit.
E. The electrical workers
The Electrical Workers intervened for one electrical worker and
made an appearance at the hearing, but presented no evidence. No
representative of the Electrical Workers appeared at the oral argu-
ment. Representatives of the other parties stated at the oral argu-
ment that there were many electrical workers at the plant. We con-
clude that the Electrical Workers has failed to establish that the
electrical workers should be excluded from the general plant unit.
F. Conclusion as to the emit
We find that all the hourly paid employees of the Company at the
Deer Park Refinery, including all the men in controversy, and ex-
cluding the bricklayers, the clerical employees, the general foremen,
and the department heads and their immediate assistants, and ex-
cluding or including the machinists and the employees in the boiler-
making and welding department depending upon the results of elec-
tions to be directed, constitute a unit appropriate for the purposes
of collective bargaining and that said unit will insure to such em-
ployees of the Company at the Deer Park Refinery the full benefit
of their right to self-organization and otherwise effectuate the pol-
icies of the Act.
4 See footnote No 2 above.
Since both labor organizations desire that the boilermakeL foreman and the two
welder foremen be included in the unit claimed by them as appropriate, we will allow
the three employees to vote in the election among the employees in the boilermaking and
welding department.
6 Since this foreman performs supervisory functions and since one of the two labor
organizations desires his exclusion from the unit which it claims to be appropriate, we
shall in accordance with our usual rule exclude him from the balloting . See Matter of
The Walworth Company and Pattern Makers ' Association of Ptittsburg and Vscinity,
etc., 8 N. L. R B 765.
DECISIONS AND ORDERS 841
We further find that the bricklayers of the Company at the Deer
Park Refinery constitute a unit appropriate for the purposes of col-
lective bargaining ' and that said unit will insure to bricklayers of
the Company at the Deer Park Refinery the full benefit of their
right to self-organization and otherwise effectuate the policies of
the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
It appears from the record that the Company employed at the
time of the hearing approximately 928 hourly paid production em-
ployees, 67 men in controversy, 49 full and part-time machinists,
and 65 employees in the boilermaking and welding department. Ac-
cordingly, at the time of the hearing, the Company employed ap-
proximately 995 to 1,109 persons in the general plant unit.7
The Oil Workers presented at the hearing 700 membership and
application cards of employees, inclusive of cards of 23 full and part-
time machinists, but exclusive of the men in controversy and the
bricklayers, no indication appearing in the record whether cards of
any of the employees in the boilermaking and welding department
were included. The 700 membership and application cards were sub-
mitted for examination by counsel for the Company and for check
against a list of the employees of the Company. The Oil Workers
also presented at the hearing dues cards of 61 of the men in con-
troversy and application cards of 47 of such employees. Representa-
tives of the Company and the Oil Workers, and also Morris and
Lewis, examined the 61 dues cards and found that 55 of the 61 were
members of the Oil Workers in good standing. Thereafter, the 700
membership and application cards and the 61 dues cards were with-
drawn and lists containing the names on the various cards were
introduced in evidence.
On the basis of the foregoing, it is clear that Oil Workers represents
a majority of the employees in the general plant unit. We will not,
therefore, direct an election among such employees, but after the
elections have been conducted among the machinists and the em-
ployees in the boilermaking and welding department, we will cer-
tify the Oil Workers as the exclusive representative for the purposes
of collective bargaining of all the hourly paid employees of the
Company at the Deer Park Refinery, including all the men in con-
troversy, and excluding the bricklayers, the clerical employees, the
general foremen, and the department heads and their immediate as-
sistants, and excluding or including the machinists, and the employees
4 The precise number of employees in the general plant unit is, of course , dependent upon
the results of the elections among the machinists and the employees in the boilermaking
and welding department , which will determine whether they will be included in the
general plant unit or whether they will constitute separate units.
842 NATIONAL LABOR RELATIONS BOARD
in the boilermaking and welding department, according to the results
of the elections.
As indicated in Section V (C) above, we find that the question
which has arisen concerning the representation of machinists of the
Company at the Deer Park Refinery can best be resolved by an
election by secret ballot.
As also indicated in Section V (D) above, we find that the question
which has arisen concerning the representation of the employees in
the boilermaking and welding department of the Company at the
Deer Park Refinery can best be resolved by an election by secret
ballot.
As noted in Section V (B) above, the record shows that a major-
ity of the bricklayers employed by the Company desire representa-
tion by the Bricklayers as their representative.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the rep-
resentation of employees of the Shell Petroleum Corporation, at its
Deer Park Refinery, Houston, Texas, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the National Labor Relations
Act.
2. All bricklayers of the Shell Petroleum Corporation, at its Deer
Park Refinery, Houston, Texas, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section 9
(b) of the National Labor Relations Act.
3. Bricklayers and Masons International Union, Local No. 7, is
the exclusive representative of all the employees in such unit for the
purposes of collective bargaining within the meaning of Section 9
(a) of the National Labor Relations Act.
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it
is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
bargaining with the Shell Petroleum Corporation at its Deer Park
Refinery, Houston, Texas, an election by secret ballot shall be con-
ducted within fifteen (15) days from the date of this Direction,
under the direction and supervision of the Regional Director for the
DECISIONS AND ORDERS 843
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 full-time machinists, and
such of the employees who for 3 months prior to March 4, 1938, have
devoted the greater part of their time at work as machinists, who
were employed by the Shell Petroleum Corporation at its Deer Park
Refinery, Houston, Texas, during the pay-roll period immediately
preceding March 4, 1938, including the garage night foreman and
the assistant machinist foreman, and excluding those who have
since quit or been discharged for cause to determine whether they
desire to be represented by Oil Workers International Union, Local
No. 367, or International Association of Machinists, Lodge No. 12,
for the purposes of collective bargaining, or by neither.
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with the Shell Petroleum Corporation at its Deer Park Refinery,
Houston, Texas, an election by secret ballot shall be conducted within
fifteen (15) 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 Regu-
lations, among the employees in the boilermaking and welding de-
partment who were employed by the Shell Petroleum Corporation at
its Deer Park Refinery, Houston, Texas, during the pay-roll period
immediately preceding March 4, 1938, including the boilermaker
foreman and the two welder foremen, but excluding the general boiler-
maker and welder foreman, and excluding those who have since quit
or been discharged for cause, to determine whether they desire to
be represented by Oil Workers International Union, Local No. 367,
or International Brotherhood of Boilermakers, Iron Shipbuilders,
Welders and Helpers of America, for the purposes of collective bar-
gaining, or by neither.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended,
844 NATIONAL LABOR RELATIONS BOARD
IT IS HEREBY CERTIFIED that Bricklayers and Masons International
Union, Local No. 7, has been designated and selected by a majority
of the bricklayers of the Shell Petroleum Corporation, at its Deer
Park Refinery, Houston, Texas, as their representative for the pur-
poses of collective bargaining and that, pursuant to the provisions
of Section 9 (a) of the Act, Bricklayers and Masons International
Union, Local No. 7, is the exclusive representative of all such em-
ployees for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other conditions of
employment.
MR. EDWIN S. SMITH, dissenting :
For the reasons given by me in a number of dissenting statements,
I think the splitting off of a craft unit from the general body of
production and maintenance workers who are seeking representation
on a plant-wide basis is not justified in the absence of a substantial
showing of past bargaining on behalf of the craft group." In the
present case I believe that the employees claimed by the Boilermakers
should be included within the general plant unit.
See, e. g., Matter of Allis-Chalmer8 Manu facturing Company and International Union,
United Automobile Worker8 of America, Local 248, 4 N. L. R. B. 159; Matter of American
Hardware Corporation and United Electrical and Radio Worker8 of America, 4 N. L.
R. B. 412.