Bulk Sales Department, Gulf Refining Co.

National Labor Relations Board - Board Decisions

Mar 25, 1940

21 N.L.R.B. 1033 (N.L.R.B. 1940)

In the Matter of BULK SALES DEPARTMENT, GULF REFINING CO. and
THE AMERIOAN FEDERATION OF LABOR
Case No. R-1717.-Decided 111arch 05, 1940
Petroleum Alanutacturing Industry-Investigation of Representatives : contro-
versy concerning representation of employees : if existent , contract in effect for
almost three years no bar to determination of; rival organizations ; controversy
as to appropriate unit ; refusal of employer to grant exclusive recognition until
representative certified by Board-Unit Appropriate for Collective Bargaining:
persons in bulk-sales department exclusive of office and supervisory employees,
multiple employer unit inappropriate since each employer retained control
over the essential employer functions although past collective bargaining nego-
tiations conducted through employers ' committee-Election Ordered : to deter-
mine representative in appropriate unit.
Mr. Harry L. Lodish, for the Board.
Mr. Eldon Young, of Houston, Tex., for the Company.
Mr. Samuel K. Isard, of Toledo, Ohio, for the A. F. of L.
Mr. Edward Lamb and Mr. Lowell Goerlick, of Toledo. Ohio, and
Mr. J. E. Grail, of Philadelphia, Pa., for the C. I. O.
Mr. Norman M. Neel, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CA SE
On October 19, 1939, and November 4, 1939, respectively, Oil Work-
ers Federal Labor Union, Local No. 22191, herein called the A. F. of
L., filed with the Regional Director for the Eighth Region (Cleve-
land, Ohio) a petition and an amended petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of Bulk Sales Department, Gulf Refining Co., Toledo,
Ohio, herein called Gulf, and requesting an investigation and certi-
fication of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On Jan-
uary 18, 1940, 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 Relations Board Rules and Regula-
tions-Series 2, ordered an investigation and directed the Regional
21 N. L R B., No. 99.
1033
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On February 1, 1940, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon Gulf, upon the A. F. of
L., and upon Oil Workers International Union, Local No. 346, herein
called the C. 1. 0., a labor organization claiming to represent em-
ployees directly affected by the investigation. Pursuant to the notice,
a hearing was held on February 7 and 8, 1940, at Toledo, Ohio, before
Johii T. Lindsay, the Trial Examiner duly designated by the Board.
The Board, Gulf, and the C. I. O. were represented by counsel, and
the A. F. of L. by its representative, and all participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties.
. At the close of the hearing counsel for Gulf moved to dismiss the
petition on the ground that the facts failed to establish the Board's
jurisdiction, and moved further to exclude all testimony directed
toward proving the propriety of a multiple-employer unit on the
ground that the evidence shows that no such unit has ever existed.
The Trial Examiner did not rule on these motions and they are hereby
denied.
During the course of the hearing the Trial Examiner made a num-
ber of rulings on other motions and on objections to the admission of
evidence. The Board has reviewed all the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. Gulf and the C. I. 0. have filed briefs
which have been given due consideration by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY 1
Gulf is a corporation duly organized under and by virtue of the
laws of the State of Delaware and is a, wholly owned subsidiary of the
Gulf. Oil Corporation. The parent corporation is engaged in all,
branches of the petroleum industry, controlling either directly or
through its many subsidiaries extensive production, pipe-line, refining,
marine, and marketing facilities which are located principally in 29
States. Gulf operates a refinery in the city of Toledo, Ohio, which
3 It was agreed between counsel for the Board and for Gulf at the hearing that inter alia
the facts relative to Gulf's business as found in Matter of Gulf Refining Company and
Oil Workers International Union, Local 346, Case No . 8-0-415, and Matter of Gulf Oil
Coaporation and International Brotherhood of Boilermakers , Iron Shipbuilders , Welders d
Helpers of America, 4 N. L. R B . 133, would provide a sufficient basis upon which the
Board might determine the question of jurisdiction.
GULF REFINING COMPANY 1035
maintains terminal facilities for the delivery of its products. The
Toledo refinery manufactures gasoline, fuel oil, gas oil, kerosene,
and coke. Approximately 520,000 barrels of crude oil are purchased
monthly, all from States other than the State of Ohio. The refinery
produces an average per month of about 311,000 barrels of gasoline,
4,640,000 pounds of coke, 6,300 barrels of kerosene, 53,000 barrels of
gas oil, and 136 barrels of fuel oil. Approximately 40 per cent of this
output is sold for delivery in States other than the State of Ohio.
The products which pass through the Bulk plant here concerned
may be divided roughly into two kinds, light oils and heavy oils. The
light oils, namely, gasoline, kerosene, and furnace oil, are brought
from the refinery into the bulk storage tanks through pipe lines and
are then pumped into retail trucks and thus distributed.
All the heavy oils, which are the motor and lube oils, including
greases, come from outside of Ohio and constitute approximately
2 per cent of the total oils, both light and heavy, which come into this
bulk plant. Aside from supplying a few of the Michigan bulk plants
of Gulf with light oils, all the retail and wholesale distribution from
this bulk plant is made within the State of Ohio.
II. THE ORGANIZATIONS INVOLVED
Oil Workers' Federal Labor Union, Local No. 22191 is a labor
organization affiliated with the American Federation of Labor,
admitting to membership employees of Gulf.
'Oil Workers International Union, Local No. 346 is a labor organiza-
tion affiliated with the Congress of Industrial Organizations admit-'
ting to membership employees of Gulf and other companies.
III. THE QUESTION CONCERNING REPRESENTATION
The A. F. of L. was organized at the Gulf's Bulk plant prior to
1935, the year in which the C. I. O. began its organizational efforts.
On June 5, 1937, the C. I. O. negotiated a contract with an Employers'
Labor Committee which represented the bulk divisions of six com-
panies 2 in Toledo, Ohio, including that of Gulf. The contract pro-
vided for minimum wages and other conditions of employment and
by its terms it was to continue for yearly periods unless notice to the
contrary was given by one of the parties 30 days prior to May 31, the
designated termination date. On April 20, 1939, more than 30 days
before the termination date, the C. I. O. notified the individual com-
panies by letter that it desired to negotiate a new contract. Accord-
2 Shell Petroleum Corporation , Cities Service Oil Company , National Refining Company,
Gulf Refining Company, Daly Oil Company, Sinclair Refining Company
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly, negotiations 3 were begun the latter part of May 1939 and were
consummated by the execution of a new contract on June 13, 1939,
to which Gulf was not a party. @ Both contracts were signed by the
Chairman of the Employers' Labor Committee after express ratifi-
cation by each company, and by the individual employee representa-
tives.
On November 3, 1939, the A. F. of L. claimed to represent a ma-
jority of the employees, in the Gulf Bulk Sales Department and re-
quested recognition as the exclusive representative of the employees
in that department. By letter of the same date Gulf refused such
recognition until the Board had determined the appropriate bargain-
ing unit and had certified a representative. -
It is the contention of the C. I. O. that its letter of April 20, 1939,
did not constitute a termination of the contract of June 5, 1937, and
consequently, if Gulf is not in fact a party to the second contract,
it is bound by the first one and no question concerning representation
exists. We do not deem it necessary to pass upon the legal effect of
the C. I. O.'s letter of April 20, 1939. If the letter did constitute
a termination of the June 5, 1937, contract with Gulf, contrary to the
claim of the C. I. 0., there would be no bar to the present proceeding.
If, on the other hand, the contract with Gulf remained in effect, as
the C. I. O. contends, since it would have been in effect for almost 3
years, it would constitute no bar to a determination of representatives
in this proceeding.
We find that a question has arisen concerning the representation
of the employees of Gulf.
IV. THE EFFECT OF THE 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.
3 The negotiations were held between the Employers ' Labor Committee consisting of
J 0 Jordan of Shell Petioleum Coiporation , Chairman , and Fred W Grossman of Na-
tional Refining Company and a union committee composed of a representative from each
bulk plant . This method was adopted as a time-saving device and the proposed provisions
were refereed to each company for individual ratification and to the union for acceptance
The companies could withdraw from negotiations at any time prior to final ratification
and the Committee had no authority to bind any of them
4 Although the C . I. 0 contends that Gulf agreed to "go along with anything that was
negotiated ," the weight of the evidence establishes and we find that Gulf withdrew from
the negotiations , its name was stricken from the contiact before execution , and it was not
considered in the negotiations after its withdrawal
S See Matter of Columbia Broadcastinq System , Inc and Aniei scan Communications Asso-
ciation (Formerly American Radio Telegraphists ' Association ), 8 N L R. B 508
GULF REFINING COMPANY
V. THE APPROPRIATE UNIT
1037
The A. F. of L. contends that the unit appropriate for the purposes
of collective bargaining consists of all employees in the Bulk Sales
Department of Gulf exclusive of office and supervisory employees.
The C. I. O. desires a unit consisting of the Bulk Sales Departments
of five companies G in Toledo, Ohio, but stated at the hearing that in
the alternative, the unit contended for by the A. F. of L. would be
satisfactory. Gulf desires an appropriate unit consisting of the em-
ployees in its own Bulk Sales Department.
The ei`ficacy of large-scale bargaining, according to the C. I. 0., is
evidenced by the similarity of working conditions among the plants
and an interchange of products between them and also by the history
of collective bargaining ' and the satisfaction derived therefrom by
both the companies and the C. I. O.
The evidence disclosed, however, that each company here involved
retained to itself the power to withdraw from negotiations at will, or
to reject a proposed final agreement as unsuited to its peculiar needs.
The committee had no authority to bind any of the companies. Thus
each company exercises direct control over the essential employer
functions and consequently, under the circumstances of the case, we
do not'fix a single unit einbracing the employees of the Bulk Sales
Departments of all five conipanies.s
At the hearing the parties delimited the unit with particularity by
agreeing to the inclusion in the unit of 28 persons named in Appendix
A hereto. The C. I. O. claims that D. R. Durham and M. M. Eischen
should be excluded from the appropriate unit as office clerical worker
and supervisory employee, respectively, while the A. F. of L. desires
then- inclusion.
D. R. Dwcrhann works in the storehouse which is located in the main
office building and handles or ships such articles as pumps, tanks,
air-compressors, air stands, bolts, nuts, and flanges. His clerical
work entails making out bills of lading and ledger entries and
occupies only from 2 to 5 per cent of his time.
See supra. tootnote 2 The Daly Oil Company is no longer involved, although the
season does not appear
° See supra, Section III for a review of the history of collective bargai n ing
8 See Matter of Sebastian Stuart Fish Co., a cos pit and Cannery Woi ker s Union, Local
21173, A F of L, 17 N L R B 352; Matter of Traisler Marts Stella , Inc and Ameri-
can Communications Association (C I. 0 ), 12 N L R B 415; Matter of F E Booth f
Company (et at ) and Monterey Bay Area Fish Workers Union No 23, 10 N L R B. 1491 .
Matter of Aluminum Line , ( etc ) and Inter national Longshoremen and Warehousemen R
Union, 8 N. L R . B 1325; and of Matter of Slupou ners Association of the Pacific Coast
et at and International Longshoremen 's and 11'aiehousemen's Union , District No 1.
7 N L R B , 1002, Matter of Motion Stone Company et at and Quarry 117orkers Interna-
tional Union of No, th Amei ica, 10 N L R B 64 ; Matter of Admtar Rubber Company
et at and Ameiican Federation of Labor on behalf of Employees of the Company, 9 N L.
R B 407
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. Al. Eischen is employed in the warehouse from which the oil
products are shipped. He is one of three men thus employed who
work on overlapping shifts and whose duties are the same. He has
no authority to hire or discharge or recommend hiring or discharging,
and cannot discipline his fellow employees. The C. I. O. claims that
Eischen was not covered by the June 5, 1937, contract with Gulf but
Houchins, the C. I. O. representative, testified that Eischen is now
a head warehouseman and the June 5, 1937, contract specifically
covered that classification of employees.9
Under the circumstances, we shall include D. R. Durham and M. M.
Eischen in the appropriate unit and insert their' names in
Appendix A.
We find that all regular employees in the Bulk Sales Department
of the Gulf Refining Company, Toledo, Ohio, whose names appear
hereafter in Appendix A, excluding office and supervisory em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining and that said unit will insure to the employees of Gulf
the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
Both the C. I. O. and the A. F. of L. claim to represent a majority
of the employees in the appropriate unit. We find that an election
by secret ballot is necessary to determine the proper representative
for collective bargaining and thus resolve the question concerning
representation. ,
The unions agreed upon the names of the employees, with the
exception of the two discussed above, who should be entitled to vote
in an election. We shall add to that number D. R. Durham and
M. M. Eischen whom we have found to be within the appropriate
unit and direct that all those persons whose names appear in Ap-
pendix A of this Direction are entitled to participate in the selection
of representatives.
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 repre-
sentation of employees of Bulk Sales Department of Gulf Refining
Company, Toledo, Ohio, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
McKinney, the A. F. of L. representative, identified Eischen as being in charge of the
warehouse , whereas on the Company's pay roll be is listed simply as a warehouseman
GULF REFINING COMPANY 1039
2. All the regular employees of Gulf, whose names appear in Ap-
pendix A, excluding office and supervisory employees, constitute a
unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) 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 2, as aiilended, ' it
is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Bulk Sales Department of Gulf Refining Company, Toledo,
Ohio, 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 Direc-
tor for the Eighth 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 all regular employees of
the Gulf, whose names appear on Appendix A, exclusive of office
and supervisory employees, to determine whether they desire to be
represented by Oil Workers' Federal Labor Union, Local No. 22191
affiliated with the American Federation of Labor, or Oil Workers
International Union, Local No. 346 affiliated with the Congress of
industrial Organizations, or by neither.
APPENDIX A
L. Schardt
W. Volk
T. R. Kane
F. A. Belkofer
D. F. Bourdo
W. A. Felhaber
L. R. Hammond
H. A. Haynes
'D. C. Maxwell
W. J. Miller
W. P. Schultz
H. E. Shinabery
S. C. Smith
A. D. Strope
E. A. Todd
H. 0. Wening
E. L. Boyer
A. J. Vincent
C. J. Fisher
W. A. Hablitzel
C. E. Haight
M. V. Catanese
H. McKinney
B. E. Menke
E. B. Reau
A. A. Heiman
H. Houchins
A. A. Lecklider,' Sr.
D. R. Durham
M. M. Eischen