113 F.2d 473 (10th Cir. 1940), 1902, Continental Oil Co. v. N.L.R.B.

Docket Nº:1902.
Citation:113 F.2d 473
Case Date:June 13, 1940
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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113 F.2d 473 (10th Cir. 1940)




No. 1902.

United States Court of Appeals, Tenth Circuit.

June 13, 1940

Rehearing Denied July 31, 1940.

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John P. Akolt, of Denver, Colo. (James J. Cosgrove, of Ponca City, Okl., and John R. Moran and Smith, Brock, Akolt & Campbell, all of Denver, Colo., on the brief), for petitioner.

Ernest A. Gross, of Washington, D.C. (Charles Fahy, General Counsel, Robert B. Watts, Associate General Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Bertram Edises and Morris P. Glushien, Attys., National Labor Relations Board, all of Washington, D.C., on the brief), for respondent.

Before BRATTON, Circuit Judge, and VAUGHT and MURRAH, District Judges.

BRATTON, Circuit Judge.

This proceeding is before the court on petition to set aside and answer seeking enforcement of an order of the National Labor Relations Board. Petitioner, a corporation organized under the laws of Delaware, with its principal offices at Ponca City, Oklahoma, was engaged in the production of crude oil in the Salt Creek Oil Field, the production of crude oil in the Big Muddy Oil Field, and the operation of a crude oil refinery at Glenrock, all in the State of Wyoming. In September, 1937, Oil Workers International Union, called the union filed with the Board a petition requesting an investigation and certification of representatives for purposes of collective bargaining in the Salt Creek Field. Thereafter, upon charges and amended charges lodged by the union, the Board issued its amended complaint in which petitioner was charged with unfair labor practices in each oil field and at the refinery. Following conventional procedure, had in a consolidated hearing, the Board ordered petitioner to cease and desist from refusing to bargain collectively with the union as the exclusive.representative of its employees in the Big Muddy Field; from refusing to bargain in like manner at the refinery; from dominating or interfering with the administration of Independent Association of Conoco Glenrock Refinery Employees, or with the formation or administration of any other labor organization of its employees; from contributing support to such Association or any other organization of its employees; from discouraging membership in the union or any other labor organization by transferring, discharging, or refusing to re-employ any of its employees, or in any other manner discriminating in respect to their employment; and from restraining, coercing, or otherwise interfering with its employees in their right of self-organization for collective bargaining. The order further required petitioner upon request to bargain collectively with the union as the exclusive representative of its employees at the Big Muddy Field, and at the Glenrock refinery, and in the event the union should be thereafter certified by the Board as the exclusive representative of the employees in the Salt Creek Field, then upon request similarly to bargain with it there; to withdraw recognition from and completely disestablish Independent Association of Conoco Glenrock Refinery Employees; to withdraw recognition from Continental Employees Bargaining Association; to offer Ernest Jones and F. D. Moore immediate and full reinstatement to the respective positions formerly held by them at the Big Muddy Field, or positions substantially equivalent thereto, and to make them whole by payment to each of a sum equal to that which he would normally have earned as wages during the period intermediate the termination of his employment and the offer of reinstatement, less his net earnings during such period; to procure for Moore the restoration of the insurance rights which were lost upon the termination of his employment; and to post appropriate notices that it would desist and comply with such provisions. In addition, the order directed that an election be held at the Salt Creek Field within twenty days for the purpose of determining whether the employees desired to be

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represented by the union. The election was held, and the Board certified that a majority had selected the union for that purpose.

The jurisdiction of the Board.-- Petitioner produces, refines, transports, and markets petroleum and petroleum products on a large scale. It owns or controls oil and gas properties and refining plants in 13 states, and it owns or controls outlets for the distribution and marketing of its products in 31 states. In 1937 it produced about 1000 barrels of crude oil daily at the Salt Creek Field, of which about 650 barrels were for its own account and were sold under contract to the Stanolind Oil and Gas Company in the field. Approximately 3000 gallons of casinghead gasoline were produced daily at such field, all of which was shipped to the refinery of petitioner at Lewistown, Montana. About 1200 barrels of crude oil were produced daily in the Big Muddy Field, of which about 900 barrels were for the account of petitioner, the remainder being 'due to joint ownership of the leases from which the oil is produced, and royalties. ' All of such oil was shipped by pipe line to the refinery at Glenrock where it was refined. About 2500 barrels were refined daily at the refinery in Glenrock, some from the Big Muddy Field and some from operations of petitioner in the Lance Creek Field in Wyoming. Some 8000 gallons of casinghead gasoline were received daily at the refinery in Glenrock from the operations of petitioner in the Lance Creek Field, being transported by truck, pipe line and rail. About sixty per cent of the products produced at the Glenrock refinery were shipped by rail in tank cars owned or leased by petitioner to points outside the State of Wyoming, for sale to consumers living in other states. Approximately fifty per cent of the total production of fuel oil produced at the refinery was sold to two railroad companies engaged in interstate commerce, the amount thus sold being about 25,000 barrels. And the annual value of the finished products shipped from the refinery was approximately $2,000,000.

The scope of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., and the jurisdiction of the Board in its administration, are confined to interstate and foreign commerce, to the exclusion of operations which are essentially intrastate in character and which have no effect upon interstate commerce. But the statute leaves to be determined in each case whether the particular action affects interstate commerce in such a close and intimate fashion as to be subject to federal control. And it is enough to bring an employer within the scope of the act and to confer jurisdiction on the Board if the consequences which arise or reasonably may arise from the acts and practices complained of necessarily result or are reasonably calculated to result in a stoppage or serious impediment to the free flow of interstate commerce. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014. The nature and extent of the operations of petitioner clearly bring its activities into such close and substantial relation to interstate commerce as to subject it to the jurisdiction of the Board. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, National Labor Relations Board v. Fruehauf Trailer Co., 301 U.S. 49, 57 S.Ct. 642, 630, 81 L.Ed. 918, 108 A.L.R. 1352; Santa Cruz Fruit Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126; National Labor Relations Board v. Fainblatt, supra; Southern Colorado Power Co. v. National Labor Relations Board, 10 Cir., 111 F.2d 539.

The identity of the union.-- The parts of the order requiring petitioner to bargain collectively with the union at the Big Muddy Field and at the Glenrock refinery are challenged on the ground that the union never sought to bargain collectively with petitioner and therefore there could not have been refusal to bargain within the meaning of the act. The argument is that the efforts to bargain on which the order rests were made by International Association of Oil Field, Gas Well and Refinery Workers of America, not the union. Initially the union bore the name of International Association of Oil Field, Gas Well and Refinery Workers of America. It assumed its present name at a convention held in Kansas City in June, 1937. There was no change in officers or central offices; the change was only in name; and continuity of organization was preserved. The designations, correspondence, contracts submitted, and other efforts to bargain collectively on which the order

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rests, were made, had, submitted, and exerted before the change in name were therefore in the original name of the union. But the charges were lodged with the Board after the change and were therefore in the new name, and in the order the Board referred to the union in like manner. While it may be said that the change in name included a shift in affiliation from the American Federation of Labor to the Committee for Industrial Organization, there was no such disruption or change of identity as to affect in any manner the validity of the parts of the order requiring petitioner to bargain collectively with the union.

The Salt Creek Field.-- By supplemental petition it is alleged that this field practically in its entirety has been subjected to a unit plan of operation by agreement among the various operators therein, including petitioner; that the agreement was executed, and approved by the Secretary of the Interior, pursuant to the Act of February 25, 1920, 41 Stat. 437, as amended by the Act of August 21, 1935, 49 Stat. 674, 30 U.S.C.A. § 181 et seq.;...

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