Powerful Gas No. 1

National Labor Relations Board - Board Decisions

Feb 11, 1970

181 N.L.R.B. 104 (N.L.R.B. 1970)

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Powerful Gas No. 1, Powerful Gas No. 2, San Pablo
Service Station , Inc., Monument Service Station,
Inc. and Western States Service Station Employees
Union . Petitioner . Cases 20-RC-8879,
20-RC-8880, and 20-RC-8885
February 11, 1970
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer David F.
Sargent. Following the hearing, this case was
transferred to the National Labor Relations Board
in Washington, D. C., pursuant to Section 102.67 of
the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8,
as amended. Thereafter, the Employers and the
Petitioner filed briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employers here seek dismissal of the
petition on the basis, inter alia , that the Board is
without jurisdiction in this matter because the
record fails to reflect that the Employer's
operations, involving four separately incorporated
retail gasoline stations, affect commerce within the
meaning of the Act.
Two of these gasoline stations, Powerful Gas No.
1 and Powerful Gas No. 2, are controlled by Ted
Orden and his wife, who between them own all of
the stock of each, and have combined projected
gross sales of $653,828 on an annual basis,
$419,712, of the projected amount being contributed
by Powerful No. 1 and $234,116 by Powerful No. 2. 2
San' Pablo Service Station, Inc., and Monument
Service Station, Inc., doing business as Sunco 24
and Sunco 26 respectively, are controlled by
Bernard Roth and his wife, who likewise own all of
the shares of both corporations, and have combined
projected gross sales in excess of $1 million on an
annual basis , $656,016 being contributed by San
The Teamsters Automotive Employees Union, Local 78, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America and the International Brotherhood of Service Station Owners and
Operators of America were permitted to intervene on the basis of a
showing of interest
Pablo and $547,200 by Monument.' The combined
projected gross sales, in each instance, more than
meet the Board's own jurisdictional standards for
retail enterprises.
Aside from furnishing the basic information from
which gross sales could be projected - and this was
done under protest - both Employers refused to
furnish other information that would confirm or
deny these projections or to furnish information that
would demonstrate the impact of these sales on
interstate commerce. On the advice of counsel both
Employers refused to respond to a subpoena duces
tecum requesting certain commerce information, and
they refused to answer numerous questions bearing
on their sales and the impact of these sales on
interstate commerce. Nevertheless, sufficient facts
have emerged from the hearing to indicate that both
the Board's statutory as well as its jurisdictional
standards have been met.
Because of the refusal to furnish information, the
record does not reveal the source of the gasoline
product which made up the bulk of sales at all four
stations. However, the record does demonstrate that
motor oils produced by various national oil
companies such as Standard Oil, Texaco, Pennzoil,
Quaker State, Valvoline, etc., were sold in quantities
ranging from $200 to $700 per month at a given
station, and other national products such as STP oil
additives and Waco brake fluid were sold in
quantities involving lesser amount of sales. Thus, in
national oil products alone, each Employer's two
stations would sell from $4,800 to $16,800 on an
annual basis to drivers of cars and trucks using the
highways.
On the basis of the foregoing we find that the
Employers' operations affect commerce within the
meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction over these
Employers.4
2. The labor organizations involved claim to
represent certain employees of the Employer.'
'Powerful Gas No 1 had sales of $209,859 for a 6-month period and
Powerful No 2 had sales of $82,118 for a 2 1/2-month period Projecting
these figures for a full year gives $419,712 for Powerful No I and
$234,116 for Powerful No 2 See Wallace Shops, Inc , 133 NLRB 36
'San Pablo Service Station, Inc , had sales of $164 ,004 for a 3-month
period Projecting this figure to an annual basis gives sales of $656,016
Monument Service Station , Inc, was located on a street which was in the
process of being rebuilt and which during the period of concern here
involving only 1 month for which sales records were available , was severly
restricted in its now of customer traffic However, Richard Oliver, who
had 10 years experience with service stations as a salesman , assistant
manager and manager, estimated that under normal conditions the station
would do a volume of business in excess of 150,000 gallons per month
Taking the average price in the price range, 30 4 cents per gallon, the
monthly sales would be $45,600 and on an annual basis, $547,200 As no
evidence was put forth which conflicted with this estimate or with Mr
Oliver's qualifications to submit an opinion as to this estimate, we find the
estimate and projection to be accurate
The Board 's standard for asserting jurisdiction over employees engaged
in retail operations is $500,000 gross annual revenues Caroline Supplies
and Cement Co. 122 NLRB 88
'We note that the record discloses , without contradiction , that both the
Western States Service Station Employees Union and the International
Brotherhood of Service Station Owners and Operators of America deal
181 NLRB No. 21
POWERFUL GAS NO. 1 105
3. ' A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The Petitioner seeks an election in a unit of all
assistant managers and attendants employed at all
four gasoline stations. Alternatively, Petitioner seeks
elections in two other units, the first comprised of
assistant managers and attendants employed at
Powerful No. 1 and Powerful No. 2 and the second
comprised of the same classification of employees at
San Pablo and Monument. The intervening
Teamster Local, which limited its interest to the two
Powerful stations, contends that the assistant
managers and attendants at these two stations
together comprise an appropriate unit. The
intervening International Brotherhood of Service
Station Owners and Operators of America agrees
that assistant managers and attendants employed at
the two Powerful stations comprise one appropriate
unit and argue, further, that the same classification
of employees employed at the San Pablo and
Monument stations comprise a second appropriate
unit. The Employers contend that each station alone
constitutes an appropriate unit and that assistant
managers are supervisors within the meaning of the
Act and should be excluded from the unit.
Although the Powerful stations on the one hand
and San Pablo and Monument on the other are
separately owned and controlled, it is clear that they
all share the services of the same district manager
and through him similar operational policies.
Indeed, it is stipulated in the record that these four
stations are operated by the same general manager.
District manager Spence has general supervision
over the daily operations of all four stations. He
hires the station manager who in turn hires the
assistant manager and attendants. Each station
employs between three and six full-time employees.
The stations are open 24 hours per day and are
normally visited daily by the district manager who
collects from each manager sales revenues which he
deposits in the bank as well as a 24-hour report on
sales. Cummulative sales reports are kept solely by
the district manager and the ownership group to
which he reports. The district manager authorizes all
purchases and disbursements of funds for all four
stations, except petty cash items, and all four
stations purchase and sell the same kind of gasoline
and oil products as well as supplies, in many
instances purchasing and selling exactly the same
kind of product and supply. Of course the gasoline
sold by each group is held out to the public as being
a different brand name.
with employers and represent employees regarding wages, hours, and other
terms and conditions of employment Accordingly, we find that both of
these organizations are labor organizations within the meaning of the Act
We also note that no question concerning its status as a labor organization
has been raised regarding the Teamsters Automotive Employees Union,
Local 78, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America.
The district manager approves shift schedules-and
the hiring and firing of all employees. The starting
wages for all of the stations are the same and the
same working rules are posted at all four stations.
Nevertheless, separate books are kept for each
separate corporate entity for sales, disbursements,
payroll, etc., and the district manager reports
separately to each ownership group, the business
affairs of each group of corporations being kept
confidential by the district manager from the other
group. The district manager himself is paid
separately for his services by all four corporations.
Although presently many of the operating policies of
the two groups are similar, it is also clear that
policy may be changed and is changed on a weekly
basis for either group. The record discloses that
district manager Spence reports directly to Orden
regarding the business affairs of the Powerful group,
that he takes policy instructions from Orden
regarding the day to day as well as the long range
operation of these two stations. Similarly, Spence
reports directly to Roth regarding the day to day as
well as the long range business of San Pablo and
Monument stations, and he clearly is under Roth's
control regarding the management and general
operations of these two stations. Moreover, the
testimony of Spence makes it clear that these
groups, by reason of their separate ownership and
control, are in fact competitors with correspondingly
separate competitive interests and as such separately
identifiable. Thus, simply because it is more efficient
for the two ownership groups here involved to share
the services of the same operational manager, it is
likewise clear that neither ownership group has
surrendered any control over the operations of their
respective stations. Indeed, their very competitive
interests compel the shared manager to keep as
confidential the business affairs of the one from the
other.
Accordingly, we find that the employees of the
two powerful gasoline stations share a community of
interest in their terms and conditions of employment
that is separately identifiable, by reason of the
aforesaid separate ownership and control, from the
community of interest shared by the employees of
San Pablo and Monument stations. Accordingly,
(although the employees of all four stations share
many common interests, such as type of work,
wages, hours, work rules, etc.,) we find, because of
the separate ownership and control, that it would
best effectuate the purposes of the Act to find that
there are two appropriate units, the one composed
of service station employees employed at Powerful
No. 1 and Powerful No. 2 and the other unit
comprised of service station employees employed at
San Pablo and Monument stations.
Moreover, we would include the assistant
managers along with the attendants in each of these
units. The assistant managers do the same general
work as the attendants, except that they will
transmit assignments given them by the managers.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unlike the salaried managers, the assistant
managers are paid on an hourly basis and receive
overtime pay for extra hours worked, in the same
manner as the attendants Assistant managers do
not have the authority to hire or fire or discipline
any employee, or to grant any employee time off
without obtaining approval from the manager or
district manager . Accordingly, we find that the
assistant managers are not supervisors within the
meaning of the Act and we shall, therefore, include
them in the unit.
5. Accordingly, we find that the following
employees constitute appropriate units for the
purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
All assistant managers and attendants employed
at Powerful No. 1 and Powerful No. 2, excluding
all other employees, guards, and supervisors as
defined in the Act.
All assistant managers and attendants employed
at San Pablo Service Station, Inc., and
Monument Service Station, Inc., excluding all
other employees, guards, and supervisors as
defined in the Act.
[Direction of Elections6 omitted from publication.]
In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the elections should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman -Gordon Company,
394 U S 759. Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employers with the Regional Director for Region 20 within 7
days of the date of this Decision and Direction of Elections. The Regional
Director shall make the list available to all parties to the elections No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the elections whenever
proper objections are filed