American Oil Co.

In the Matter of AMERICAN OIL COMPANY and OIL WORKERS INTER- NATIONAL UNION, LOCAL #403, (C. I. 0.) Case No. R-'3469. -Decided February 26, 1942 Jurisdiction : oil distributing industry. Investigation and Certification of Representatives : existence of question : St ipu- lated that Company refused to accord union recognition ; dispute as to appro- priate unit; election necessary. Unit Appropriate for Collective Bargaining : all clerical employees employed in the Company's South Washington and Rosslyn, Virginia, plants, South Wash- ington branch office, and South Washington divisional office and Rosslyn divisional warehouse. including fuel-oil dispatchers, the telephone operator, the office assistant, and the stenographer, but excluding the divisional-ware- house foreman, salesmen, the lubrication engineer, the branch-office manager, plant superintendents, the divisional-office manager and assistant, the chief accountant, the credit manager, the divisional engineer, and all production and maintenance employees; divisional employees included notwithstanding Company's desire for a smaller unit. - Mr. C. M. Thompson and Mr. James J. Eagan, of Baltimore, Aid., for the Company. Mr. Thomas J. McCarthy, of Arlington, Va., for the O. W. I. U. Mr. Ralph S. Clifford, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 8 and 15,1941, respectively, Oil Workers International Union, Local #403 (CIO), herein called the O. W. I. U., filed with the Regional Director for the Fifth Region (Baltimore, Maryland) a petition and an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees, of American Oil Company, Baltimore, Maryland, herein called the Com- pany, and requesting an investigation and, certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 14, 1942, the Na- tional Labor Relations Board, herein called the Board, acting, pur- 39 N. L. R. B., No. 44. -a 247 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suant to Section 9 (c) of the Act, and Article III, Section 3, of Na- tional Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon due notice. On January 15, 1942, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the O. W. I. U. Pursuant to notice, a hearing was held on January 20, 1942, before Earle K. Shame, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the O. W. I. U. were represented by counsel or other representatives and participated in the hearing. 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 hearing the Trial Examiner granted a motion by the O. W. I. U.'s representative to amend the amended petition. During the course of the hearing, the Trial Examiner made various rulings on objections to the admission of evidence. The Board has reviewed all rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY American Oil Company, a Maryland corporation, is a wholly owned subsidiary of Pan-American Petroleum and Transport Company. and is engaged in the distribution and marketing of petroleum and petroleum byproducts, in more than 11 States and the District of Columbia. American Oil Company maintains two bulk storage plants at South Washington, Virginia, and Rosslyn, Virginia. It also main- tains storage plants elsewhere, but this proceeding concerns only the plants at South Washington and Rosslyn, Virginia, through which, during the year 1941, the Company sold and distributed in excess of 25 million gallons of gasoline and other petroleum products to adjacent territory in the States of Virginia and Maryland, and the District of Columbia. All of the Company's products so distributed are shipped to the bulk storage at South Washington and Rosslyn, Virginia, from points outside the State of Virginia. The Company admits that it is engaged in commerce within the meaning of the Act. t II. THE ORGANIZATION INVOLVED Oil Worke,rs International Union, Local #403 (C. I. 0.), affiliated with the Congress of Industrial Organizations is a labor organization admitting to membership employees of the Company. AMERICAN OIL COMPANY III. TIIE QUESTION CONCERNING REPRESENTATION 249 At the hearing the parties stipulated that on or about December 8, 1941, a, representative of the O. W. I. U. requested the Company to recognize it as the exclusive bargaining agent for employees of the Company in an alleged appropriate unit, and that the Company refused to do so, because it did not believe the O. W. I. U. repre- sented a majority of such employees, and because the Company be- lieved the unit asked for by the O. W. I. U. vas inappropriate. The record disclosed that the O. W. I. U. represents a substantial number of the Company's employees in the alleged appropriate unit.l We find that a question has arisen concerning the representation of employees of the Company. 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. TIDE APPROPRIATE UNIT The O. W. I. U. contends that all clerical employees and fuel- oil dispatchers 2 of the Company employed at the South Washing- ton and Rosslyn, Virginia, plants, the South Washington branch office, the -South Washington divisional office , and the Rosslyn ,divisional warehouse, exclusive of all salesmen , engineers, supervisory employees, and all production and maintenance employees' of the Company, constitute an appropriate unit. 'The statement of the Regional Director discloses that the 0 W I U submitted 15 membership application and authorization cards in support of its contention of represen- tation of the 25 employees in the alleged appropriate unit The 15 cards were dated as follows: 12 during September 1941 , and 3 undated All the signatures on the 15 cards appear to be genuine and are the names of persons whose names are on the Company's current pay roll " The Regional Director 's statement is dated December 31, 1941 At the hearing it was disclosed that the alleged appropriate unit includes approximately 30 employees 2 The record discloses that the Company classifies dispatchers as clerks and agrees that their duties are clerical in nature and that they should be included in the same unit with other clerical employees The parties also agree that the clerk in the pump and tank department of the South Washington plant is a clerical employee and should be included 3In a prior Decision and Direction of Election involving the same parties , issued May 14, 1938, the Board found a unit composed of all employees of the Company at its South Washington and Rosslyn , Virginia , plants, excluding clerical and supervisory employees and fuel-oil dispatchers , appropriate Following an election by secret ballot, the Board certified the 0 W I U as the sole bargaining agent for the employees in said unit on July 5 , 1938 See Matter of American Ott Company and Oil Workers International Union,7N.L R. B 210 and 8 N L R B 69. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company agrees that its clerical employees at the South Washington and Rosslyn plants and the South Washington office should be included in the proposed unit, but contends that its clerical employees-in the South Washington divisional office and the Rosslyn divisional warehouse should be excluded. The Company contends that the divisional employees should be excluded because their work is separate and distinct from the work performed by the other clerical employees herein involved. Divisional clerical employees The South Washington 'divisional office, the South Washington branch office, and the South Washington plant are all located in the same building in South Washington, Virginia, and the Rosslyn plant and Rosslyn divisional warehouse are located across the street from each other in Rosslyn, Virginia. These two cities are located approximately 3 miles apart. - The South Washington divisional office and the Rosslyn divisional warehouse service seven branch offices or plants, including the South' Washington and Rosslyn plants and the South Washington branch office, while the South Washington branch office serves as a branch administrative office for only the South Washington and Rosslyn plants. Although the divisional clerical employees perform duties in connection with the operations of all the Company' s branch offices and plants, the record discloses that a large percentage of their work is concerned with the operations of the South Washington and Rosslyn plants and the South Washington branch office because the other branch offices and plants are small and a large portion of the Company's business is carried on through the' South Washington and Rosslyn plants and the South Washington branch office. The record also discloses that the work performed by the divisional clerical employees is similar to the work performed by the other clerical employees involved in this proceeding.4 Both divisional clerical employees and branch-office and plant employees perform clerical duties in connection with receipts and records of deliveries of oil products. Divisional-clerical employees and branch-office and plant clerical employees are sometimes exchanged.' 4 The work performed by the clerks at the individual plants of the Company is concerned only with clerical duties arising from the operations of the individual plant and has no connection with the operations of the other plants. The plant and branch office clerks tabulate tickets that come in from truck drivers and perform other clerical duties in connection with records of oil's release from the plant for deliveries to dealers and stations. Their work, when completed , is forwarded to the divisional office for consultation and checking by the divisional clerical employees and is then forwarded into the Company's general headquarters in Baltimore , Maryland. when the divisional-clerical work accumulates , branch-office and plant-clerical em- ployees are transferred to the divisional office, and when the volume of branch-clerical work increases, divisional-clerical employees are transferred to the branch offices or plant. AMERICAN OIL COMPANY 251 The O. W. I. U. has not extended its organization to employees in the other branch offices and plants, not involved in this proceeding, nor has any other union organized the clerical employees on a divi- sional basis. There is no evidence in the record that any long-estab- lished rights of employees, such,as seniority, would be disturbed by permitting branch-office and plant employees at South Washington and Rosslyn to bargain in the same unit with divisional employees in South Washington and Rosslyn while employees in other branch offices and plants are excluded. , Other inclusions and exclusions The Company and the O. W. I. U. are agreed that the branch- office manager, plant superintendents, the divisional-office manager and assistant, the chief accountant, the credit manager, and the divi- sional engineer, are supervisory employees and should be excluded. We shall, in accordance with this agreement, exclude these em- ployees from the unit.' The Company and the O. W. I. U. are agreed, and we find, that the telephone operator, office assistant, and the stenographer are clerical employees and should be included in the unit 7 The parties are not in agreement as to the inclusion or exclusion of the divisional-warehouse foreman, the salesmen, and the lubri- cation engineer. i Divisional-Warehouse Foreman. The O. W. I. U. would include the divisional-warehouse foreman, while the Company would exclude him from the unit. This employee is custodian of the divisional warehouse and has two clerks under his supervision, and although he has no authority to hire or discharge employees, he does have au- thority to make such recommendations. We are of the opinion that the divisional-warehouse foreman is primarily a supervisory em- ployee, and we shall exclude him from the unit. Salesmen. The Company would include, while the O. W. I. U. would exclude, 10 salesmen employed by the Company. Seven of these salesmen work out of the South Washington branch office, con- tacting dealers for bulk sales, while three of them are employed as fuel-oil salesmen, servicing dwellings, hotels, and similar customers. The salesmen are paid on a salary basis, plus gas and oil for their own automobiles and $25 per month for automobile expense.. They are sometimes paid additional money as sales contest prize awards. The -O. W. I. U. has not extended its organizational activities to include the The parties are also agreed, and we find, that all production and maintenance employees should be excluded from the unit. ° Inasmuch as these three employees are in the divisional office, the Company agreed to their inclusion subject to its objection to the inclusion of any divisional employees.. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD salesmen . We are of the opinion that the salesmen are not einpl'oyed primarily as clerical employees, and that their duties are substantially different from the duties performed by the Company 's clerical em- ployees. We shall, accordingly , exclude these employees from the unit. I Lubrication Engineer. The Company would include, while the 0. W. I. U. would exclude, the lubrication engineer.' The lubrica- tion engineer is employed in the divisional office as a consultant salesman. He aids and advises the engineers of various operating- company customers in their selection of. petroleum products best suited to their needs. He is paid a salary substantially higher than the salary of the average clerical employee of the Company. We are of the opinion that the duties of the lubrication engineer are primarily technical rather than clerical, and shall exclude him from the unit. We find that all clerical employees of the Company employed in its South Washington and Rosslyn , Virginia, plants, its South Wash- ington branch office, and its South Washington divisional office and Rosslyn divisional warehouse , including fuel-oil dispatchers, the telephone operator, the office assistant ,, and the stenographer, but excluding the divisional -warehouse foreman, salesmen, the lubrica- tion engineers the branch -office manager, plant superintendents, the divisional-office manager and assistant , the chief accountant, the credit manager, the divisional engineer, and all production and maintenance employees , constitute a unit , appropriate for the pur- poses of collective bargaining and that such unit will insure to the employees of the Company the full benefit of their right to self- organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of the employees of the Company can best be resolved by an election by secret ballot, and we shall so direct . The Company and the 0. W. I. U. are agreed that eligibility to vote in the election be determined by the Company's pay roll of January 15, 1941. No reason appears in the record why such pay roll should not be used. We shall, accordingly , direct that all employees of the Company within the appropriate unit who were employed during the pay-roll period ending January 15, 1941, subject to the limitations and addi- tions set forth in the Direction of Election shall be eligible to vote; AMERICAN OIL COMPANY CONOLnSiONS OF LAW 253 1. A question affecting commerce has arisen concerning the repre- sentation of employees of'American Oil Company, Baltimore, Mary- land, within the meaning of Section 9 (c) and Section 2 (6) and ,7) of the National Labor Relations Act. 2. All clerical employees of American Oil Company, Baltimore, Maryland, employed in its South Washington and Rosslyn, Virginia, plants, its South Washington branch office, and its South Washing- ton divisional office and Rosslyn divisional warehouse, including the fuel-oil dispatchers, the telephone operator, the office assistant, and the stenographer, but excluding the divisional-warehouse foreman, salesmen, the lubrication engineer, the branch-office manager, plant superintendents, the divisional-office manager and assistant, the chief accountant, the credit manager, the divisional engineer, and all pro- duction and maintenance 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 amended, it is hereby DIRECTED that, 'as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with American Oil Company, Baltimore, Maryland, 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 Director for the Fifth Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among all clerical employees of the Company employed in its South Washington and Rosslyn, Virginia, plants, and its South Washington divisional office and Rosslyn divisional' warehouse, who were employed during the pay-roll period ending January 15, includ- ing the fuel-oil dispatchers, the telephone operator, the office assist- ant, the stenographer, and employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding the divisional-warehouse foreman, salesmen, the lubrication engineer, the branch-office manager, plant superin- tendents, the divisional-office manager and assistant, the chief ac- 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD countant, the credit manager, the divisional engineer, all production and maintenance employees, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Oil Workers International Union, Local #403 (CIO), for the purposes of collective bargaining. CHAIRMAN MIILis took no part in the consideration of the above Decision and Direction of Election. In the Matter of AMERICAN OIL COMPANY and OIL WORKERS INTERNATIONAL UNION, LOCAL #403 (C I. 0.) Case No. R-3469 SUPPLEMENTAL DECISION AND ORDER Mardi. 27, 1942 On February 26, 1942, the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceeding.' Pursuant to the Direction of Election , an election by secret ballot was conducted on March 16, 1942, under the direction and supervision of the Regional Director for the Fifth Region (Baltimore , Maryland). On March 17, 1942, the Regional Director , acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, issued and duly served upon the parties an Election Report on the ballot. No objections to the conduct of the ballot or the Election Report have been filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Total on eligibility list-------------------------------------- 29 Total ballots cast -------------------------- ------- 26 Total ballots challenged ------------------------------------- 1 Total blank ballots ------------------------------------------ 0 Total void ballots- ------------------------------------------ 0 Votes cast for Oil Workers International Union , Local #403 (CIO)---------------------------------------------------- 10 Votes cast against Oil Workers International Union, Local #403 (CIO)----------------------------------' ----------------- 15 The results of the election show that no collective bargaining repre- sentative has been selected by a majority of the employees. The peti- tion for investigation and certification of employees of American Oil Company, Baltimore, Maryland, will therefore be dismissed. 139 N. L. R. B 247. 39 N. L R. B., No. 44a 255 , 448105-42-vol. 39-18 ,256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER By virtue of Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY ORDERED that the petition for investigation and certifica- tion of representatives of employees of American Oil Company, Balti- more, Maryland, filed by Oil Workers International Union, Local #403, C. 1. 0., be, and it hereby is, dismissed.