Gulf Refining Co.

National Labor Relations Board - Board Decisions

May 9, 1946

67 N.L.R.B. 1299 (N.L.R.B. 1946)

In the Matter of GULF REFINING COMPANY and PETROLEUM HAULERS,
GARAGE, STATION AND PARKING ATTENDANTS, LOCAL 103, AFL
Case No. 9-R-20.34.-Decided May 9, 1946
Mr. J. T. Lawless, of Toledo, Ohio, and Mr. N. W. Hastings, of
Cincinnati, Ohio, for the Company.
Messrs. Edward Heck and George Rehkamp, of Cincinnati, Ohio,
for the Union.
Mr. Robert J. Freehling, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
Upon a petition duly filed by Petroleum Haulers, Garage, Station
and Parking Attendants, Local 103, AFL, herein called the Union,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Gulf Refining Company, Cincinnati,
Ohio, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Harold
M. Weston, Trial Examiner. The hearing was held at Cincinnati,
Ohio, on March 20, 1946. The Company and the Union appeared
and participated. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded 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
Gulf Refining Company, a wholly owned subsidiary of Gulf Oil
Company, is a Delaware corporation, having its principal office and
place of business at Pittsburgh, Pennsylvania. It is engaged in refin-
ing and distributing petroleum products in 29 States. The Com-
pany's Cincinnati, Ohio, Sales District, which is alone involved in this
67 N. L. R. B., No. 170.
1299
1e300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding, is a medium for the wholesale and retail distribution of
the Company's products. The entire supply of crude oil, the chief
raw material used by the Company in its refining operations in the
Cincinnati area, is obtained from sources outside the State of Ohio.
The Cincinnati Sales District distributes a substantial portion of the
Company's products to points outside the State.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Petroleum Haulers, Garage, Station and Parking Attendants, Local
103, is a labor organization, affiliated with the American Federation
of Labor, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of any of its employees until the
Union has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
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
The Union seeks a unit of all service station attendants, including
managers, assistant managers, service station salesmen and sales-
women, and washers, but excluding supervisors. The Company urges
that managers and assistant managers be excluded as supervisory em-
ployees.2
As part of its business in the Cincinnati Sales District, the Company
operates 12 service stations.' The District Sales Manager maintains
general supervision over the operation of these stations. Immediate
supervision is exercised by the Service Station Superintendent who
inspects each station at least once weekly, and more often, if he deems
such action necessary. At each station, there is a manager and from
2 to 9 other employees, the number depending on the location.
1 The Field Examiner reported that the Union submitted 69 authorization cards ; there
are approximately 76 employees in the appropriate unit.
2 There are approximately 21 employees in these 2 categories.
3 Nine are located in Cincinnati, one in Silverton, Ohio, and two in Covington, Kentucky.
GULF REFINING COMPANY 1301
Each service station manager is responsible for money collected,
inventory, instruction of employees, physical appearance of the sta-
tion , sales and merchandising effort , and the preparation and sub-
mission of periodic sales reports. He has limited disciplinary power.,'
He has no authority to hire, discharge , or otherwise effect changes in
the employment status of any station employee. He may recommend
such action to the Service Station Superintendent, who then consults
both the station manager and the individual concerned, determines
the facts, and submits his own recommendation to the District Sales
Manager for final action . The station manager spends a substantial
proportion of his time performing duties similar to those of the sta-
tion salesmen. All station employees are paid on a salary basis, the
amount varying with the category of the employees All station
employees, including the managers and assistant managers, receive
vacations in proportion to their length of service with the Company.
The assistant manager performs the duties of the manager in the
latter's absence. He usually prepares the periodic sales reports men-
tioned hereinabove, but this is discretionary with the manager. Also
at the discretion of the manager, the assistant manager and/or the
manager may conduct "off-drive solicitation," i. e. the contacting of
neighborhood firms in order to secure their trade. The assistant
manager spends at least 75 percent of his time performing substan-
tially the same duties as the station salesmen.
In view of the limited nature of their authority and responsibility,
we are of the opinion that managers and assistant managers are not
supervisory employees within the Board's customary definition. We
shall therefore include them in the unit.°
We find that all service station attendants of the Company in the
Cincinnati, Ohio, Sales District, including managers, assistant man-
agers, service station salesmen and saleswomen, and washers, but ex-
cluding all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
4 The manager may order an employee to leave company property but then reports the
matter to the Superintendent for further action.
s Managers receive from $ 167 to $202 per month ; assistant managers from $150 to
$173 ; salesmen from $133 to $150 ; saleswomen from $121 to $ 138 ; and washers from
$92 to $104 Each may receive certain additions through "merit increases."
4 See Matter of Standard Oil Company ( Ohio), Cleveland Division, 63 N L. R. B. 1248;
Matter of The Western Union Telegraph Company, 58 N. L. R. B. 1283 ; and Matter of
The Great Atlantic and Pacific Tea Company , 53 N. L. it. B. 360.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
The parties disagree as to the eligibility to vote of employees whom
the Company has designated "temporary employees." The Company
has adopted this classification for all employees during their first 6
months of service. These "temporary employees" are, in fact, proba-
tionary employees, and are in a group whom we customarily find
eligible to vote. Accordingly, we shall permit the "temporary em-
ployees" to participate in the election.'
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among 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 Re-
lations Act, 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 represen-
tatives for the purposes of collective bargaining with Gulf Refining
Company, Cincinnati, Ohio, an election by secret ballot shall be con-
ducted 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 Ninth 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 em-
ployees 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 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 those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, to de-
termine whether or not they desire to be represented by Petroleum
Haulers, Garage, Station and Parking Attendants, Local 103, AFL,
for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
' Matter of Jung Shoe Mfg. Company, 63 N. L . R. B. 1241.