Gulf Oil Corp.

In the Matter of GULF OIL CORPORATION and GULF EMPLOYEES ASSOCIATION OF NEw ENGLAND In the Matter of GULF OIL CORPORATION and OIL WORKERS INTER- NATIONAL UNION, LOCAL 381, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS In the Matter of GULF OIL CORPORATION and OIL WORKERS INTER- NATIONAL UNION, LOCAL 381, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Cases Nos. R-1562, R-1563, and R-1564, respectively. Decided January 11, 1940 Oil Distributing Industry-Investigation of Representatives: controversy con- ,cerning representation of employees: company refused to negotiate a contract pending certification of rival labor organizations-Unit Appropriate for Collec- tive Bargaining: production employees exclusive of supervisory and clerical throughout marketing division ; division-wide unit ; functional coherence and interdependence ; organization substantially throughout the, division ; disposi- tion of petition requesting plant units to be determined by results of election throughout division-Election Ordered: ballot, name of union to be omitted from, unless Board notified within 10 days of its desire to be placed on. Mr. Edward Schneider, for the Board. Mr. Clarence S. T. Folsom, of New York City, for the Company. Grant ' Angof, of Boston, Mass., by Mr. Samuel E. Angoff , for the International. Mr. Ralph M. Goldstein, of Boston, Mass., for the Association. Mr. Edward Scheunemann, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 28, 1939, Gulf Employees Association of New England, herein called the Association, filed with the Regional Director for the First Region (Boston, Massachusetts), a petition, and on August 7, 1939, an amended petition, alleging that a question affecting com- Inerce had arisen concerning the representation of employees of the Boston division of Gulf Oil Corporation, herein called the Company. 19 N. L. R. B., No. 38. 334 GULF OIL CORPORATION 335 On September 27, 1939, 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 Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 6, 1939, the Regional Director issued a notice of hearing on the petition. On October 10, 1939, the Oil Workers International Union, Local 381, affiliated with the Congress of Industrial Organizations, herein called the International, filed petitions, and on October 17, 1939, amended petitions, alleging that questions affecting commerce had arisen concerning the representation of employees of the Company in its Forest Hills, Massachusetts, and Chelsea, Massachusetts, plants, respectively. These petitions and the petition filed by the Associa- tion requested an investigation and certification of representatives pursuant to ,Section 9 (c) of the National Labor Relations Act; 49 Stat. 449, herein called the Act. On October 11, 1939, the Company, the Association, and the Inter- national at a conference with Edward Schneider, attorney for the Board, agreed to consolidation of the three cases and to waive fur- ther notice of hearing on the petitions filed by the International. On October 12, 1939, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Sections 3 and 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation, authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and further or- dered that the cases be consolidated for purposes of a hearing. Pursuant to the notice and to the agreement above referred to, a hearing was held on October 16, 17, and 18, 1939, at Boston, Massa- chusetts, before Joseph L. Maguire, the Trial Examiner duly desig- nated by the Board. The Board, the Company, the Association, and the International were represented by counsel and participated in the bearing. Full opportunity to be heard, to examine and to cross- examine witnesses was afforded all parties. During the course of, the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board on November 13, 1939, at Washington, D. C. The Company was represented by counsel and presented argument. Upon the argument and upon the entire record in the case, they Board makes the following : 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company was incorporated in Pennsylvania August 9, 1922, succeeding a company of the same name incorporated in New Jersey February 13, 1907. It 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 facil- ities. It operates refineries at Port Arthur, Texas; Fort Worth, Texas; Sweetwater, Texas; Staten Island, New York; Philadelphia, Pennsylvania; Pittsburgh, Pennsylvania; Toledo, Ohio; and Cincin- nati, Ohio. The Company's principal sales offices are located at Bos- ton, Massachusetts; New York City; Philadelphia, Pennsylvania; Pittsburgh, Pennsylvania; Toledo, Ohio; Detroit, Michigan; Louis- ville, Kentucky; Atlanta, Georgia; New Orleans, Louisiana; and Houston, Texas. The Company markets a line of over 650 different petroleum products, principally in 29 States comprising the New England, Middle and South Atlantic, South Central, and East North Central areas. Its sales are handled through over 1,100 distributing plants and 35,000 retail outlets. Approximately 2,000 tank cars and 1,250 tank trucks are engaged in delivering the Company's products. Through its foreign subsidiaries, the Company markets petroleum products throughout central and western Europe, including the Scandinavian Peninsula. It also owns a substantial interest in the United Petroleum Securities Corporation, which controls important refining and marketing facilities in France. The Company owns and operates a fleet of steamships, motorships, ocean-going barges and tugs, and river, lake, and harbor vessels, engaged in transportation of crude oil from Port Arthur, Texas, and Venezuela to refineries on the eastern seaboard, and in the distribution of refined oils to more than 60 terminals located along the Atlantic and Gulf coasts, on the Great Lakes, and on inland waterways. The Company's pipe-line system serves practically all important fields in Texas, New Mexico, Oklahoma, Kansas, Louisiana, and Arkansas, connecting with the Company's refineries in Texas and extending from Oklahoma east to its refineries at Cincinnati; and through outside connections, to Toledo and Pittsburgh.' The Boston division of the Company has jurisdiction over the Com- pany's marketing operations in Maine, Vermont, and Rhode Island, and parts of New Hampshire, Massachusetts, Connecticut, and New ' The Board and the Company agreed at the hearing that the above statement of the business of the Company, taken from Matter of Gulf. Oil Corporation and International Brotherhood of Boilermakers, Iron Shipbuilders, Welders and Helpers of America, 4 N. L. R. B. 133, be used in this case. GULF OIL CORPORATION 337 York. Approximately 1,182 persons are employed in the division under the supervision of a division manager with headquarters in Boston. During the. year 1938, all of the products marketed by the Company in the Boston division, totaling $20,000,000 in value, were shipped from points outside the Boston division. The products are shipped from refineries, outside the Boston division, to terminal plants located at Chelsea, Massachusetts; Beverly, Massachusetts; Portland, Maine; and Providence, Rhode Island. Some of them are then shipped in barges to other terminal plants, and from these and the original terminals are then transported to the Company's bulk dis- tributing plants, and generally from the bulk distributing plants to service stations located in the States covered by the Boston division. The Boston division includes 4 original terminals, approximately 3 barge terminals, 27 bulk stations, and 13 service stations in the 7 above-mentioned States. IT. THE ORGANIZATIONS INVOLVED Gulf Employees Association of New England is a labor organiza- tion admitting to membership only employees of the Company. Oil Workers International Union, Local 381, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about April 20, 1939, the Association requested the Company to sign a collective bargaining contract with it as the exclusive repre- sentative of the employees of the Company. On October 11, 1939, the International also requested the Company to enter into a signed agreement. The Company refused both requests until a labor organi- zation or organizations was certified by the Board as exclusive bar- gaining representative of employees of the Company, in one or more units. We find that a question has arisen concerning the representation of the employees of the Company. 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 re- lation 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. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT A. Division unit The Association desires that we designate a unit for collective bar- gaining to comprise all of the Company's plants in the Boston market- ing division, including the service stations. The International urges that the terminal and bulk plant at Chelsea and the bulk plant at Forest Hills, Massachusetts, be established as separate units. The Company agrees substantially with the International that the indi- vidual plants are appropriate units. The Boston division of the Company is one of a number of market- ing divisions into which the management of the Company is divided. It is managed by a division manager and several assistant managers. They administer for the division the policies of the Company, with respect to the conduct of the business, and of employee-relationships, which policies are determined by the central management of the Company in Pittsburgh. Within the division the plants are functionally interrelated. Oil and allied products are shipped from refineries outside the division to ,the four deep-water terminals of the division. From these terminals some of the oil is relayed by barge to three smaller terminals, and from those terminals and from the larger ones, the oil is transported to bulk storage plants. From the bulk plants it is then transported to the small service stations located throughout the division. The plants vary greatly in size, from a few bulk and terminal plants em- ploying as many as 100 persons each to many service stations employ- ing as few as 3 or 4 persons. In some respects, each of the approximately 46 plants within the division is autonomous. Pay rolls and checks are made out at the individual plants and reported to the division office. The agent or superintendent in charge of each plant, has power to hire and discharge subject to a veto by the division manager. Seniority problems, if any, and grievances are also handled by the person in charge of each plant. The Association admits to membership all employees of the Boston division excluding only clerks in the main Boston office, supervisory employees and station chief clerks. It has organized 11 locals in Maine, Massachusetts, and Rhode Island around the large plants which are all located in those States. The locals are composed of 'employees from all the large plants and also some of the smaller ones in those States. The Association has no members at present among the em- ployees of the Company's few plants in Vermont, New Hampshire, and tConnecticut.2 Those plants, however, are small, employ very 2 Although the Boston division also includes a small part of New York, the Company's pay roll in evidence shows no employees of the Company in New York. GULF O'IL CORPORATION 331 few persons, and are largely dependent on the large plants in the other States which have been organized. The International has or- ganized only among the employees of two of the larger bulk and terminal plants located-at Forest Hills and Chelsea, Massachusetts.. It does not admit employees of the Company's service stations. There is no substantial history of collective bargaining between the Company in its Boston division and any labor organization on either a division-wide or plant basis. On January 2, 1938, the Association requested a conference with representatives of the Company in order to discuss grievances and working conditions for the entire division. During February and March 1938 and at various times thereafter sev- eral conferences were held. On March 10, 1939, the Association sub- mitted a proposed contract to the Company. The Company refused to negotiate any bilateral agreement with the Association on the ground that it was unwilling to sign an .agreement until the Associa- tion was certified by the Board as the bargaining representative desig- nated by a majority of the employees involved. On April 20, 1939, the Company issued to the Association three identical statements of policy on conditions governing employment. The statements recited that the Company recognized the Association as "the representative of its membership in the Boston division," in the States of Massachu- setts, Maine, and Rhode Island, respectively, "for the purposes of bar- gaining on wages, hours, and other terms and conditions of employ- ment." The conditions set out by the Company in its statements, with the exception of the provision with respect to vacations, had been in effect prior to the negotiations between the Company and the Association. On October 10, 1939, the International requested the Company to negotiate contracts with it covering employees in the Forest Hills and Chelsea plants, respectively. The Company refused to enter into nego- tiations until an election had been conducted by the Board. The record discloses no negotiations on wages, hours, or working condi- tions between the Company and the International. The International has collective bargaining agreements, however, with several other large oil companies in Massachusetts on a. plant basis. Since it appears that the Boston division is a functionally coherent system consisting of some large and some very small plants, that the Association has organized among the employees at all the larger plants and in some of the smaller plants as well, and that a unit covering employees throughout the entire division would afford an opportunity for employees in the smaller plants and service stations to be repre- 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rented, we conclude that a. division-wide unit is appropriate.3 At the same time plant units for the larger plants of the Company may not be inappropriate if the employees in the division do not desire yet to be represented by an exclusive representative in a unit comprising the entire division.' Consequently, we shall not dismiss the petitions of the International unless it appears as a result of the election herein directed, that organization has proceeded sufficiently to designate an exclusive representative for the division-wide unit.. If the election shows that the employees do not desire at this time to be represented exclusively in the division unit we shall then consider further the appropriateness of the plant unit on the basis of the petitions filed by the International. B. Inclu9ion and exclusion -within the unit The International and the Association agree that executives, super- visory employees, clerks in the main Boston office, and station chief clerks should be excluded from the unit. The International desires that we exclude, and the Association that we include, all other clerks, janitors, employees of the construction department, and service-sta- tion employees. Since the nature of the work performed and the character of the duties and training of the clerks distinguishes them from the other employees, we shall exclude them from the unit. Since the janitor, construction, and service station employees are manual workers, and appear to have interests in common with the other em- ployees within the unit, and since the only organization organized on a division basis, the Association, desires the inclusion of these, em- ployees, we shall include them within the unit. We find that all the non-supervisory employees of the Company in its Boston marketing division exclusive of executives and clerks, con- stitute a unit appropriate for purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of -their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE Dh:rERMINATION OF REPRESENTATIVES Neither union submitted convincing proof that it represented a ma- jority of the employees in the unit herein found appropriate. We find 3 Cf. Matter of Iowa Southern Utilities Co. and Utility Workers Organizing Committee Local 109, 15 N. L. R. B. 580; Matter of Postal Telegraph-Cable Corporation of New York et at. and Commercial Telegraphists' Union, 9 N. L. R. B. 1060; Matter of Ten- nessee Electric Power Company and International Brotherhood of Electrical Workere, 7 N. L. R. B. 24; Matter of Wiscokcin Power and Light Company and United Electrical, Radio. and Machine Workers of America, Local No. 113/1, 6 N. L. R. B. 320. Cf. Matter of Iowa Southern Utilities Co. and Utility Workers' Organizing Committee Local 109, 15 N. L. R. B. 580. GULF :OIL CORPORATION 341 that the question which has arisen concerning representation of em- ployees of the Company can best be resolved by holding an election by secret ballot. Since the record shows that the International has not organized throughout the unit herein found appropriate, and since its petitions only requested certification at two separate plants, we shall not pro- vide for the participation of the International in our Direction of Election. If the International desires to participate, however, and files with the Board within 10 days from the date of this Direction a request that its name be placed on the ballot, we shall amend the Direc- tion to order that the International be placed upon the ballot. We hereby grant to the International leave to file such request within 10 days from the date of this Direction. The record shows that the pay roll of September 30, 1939, best re- flects the normal number of persons employed by the Company throughout the year. No objections were raised by any of the parties to the use of this pay roll to determine the employees eligible to par- ticipate in the election. We shall, therefore, provide that all non- supervisory employees of the Company employed in the appropriate unit during the pay-roll period ending September 30, 1939, including the janitor, the construction department and service-station employees, any employees who did not work during that period because they were ill or on vacation, and any who were then or have since been tem- porarily laid off, but excluding executives and clerks, will be eligible to participate in the election. 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 the Gulf Oil Corporation in its Boston mar- keting division, within the meaning of Section 9 (c) and Section 2 (6) and (7). of the Act. 2. All non-supervisory employees of the Company in its Boston marketing division, excluding executives and clerks, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the 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, it is hereby 283030-I1-vol. 19---23 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation ordered 'by the Board to `ascertain representatives for collective bargaining with Gulf. Oil Corporation in its Boston marketing division, 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 of Election under the direction and supervision of the Regional Director for the First .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 the non-supervisory employees of the Com- pany in its Boston marketing division who were employed during the pay-roll period ending September 30, 1939, including the janitor, the construction department and service-station employees, any em- ployees who did not work during that period. because they were ill or on vacation, and any who were then or have since been tempo- rarily laid off , but excluding executives and clerks, to determine whether or not they desire to be represented • by Gulf Employees Association of New England for the purposes of collective bar- gaining. MR. WILLIAM M. LEISERSON dissenting : The Association has organized and has a substantial membership among the employees of the Boston division of the Company iii Maine, Massachusetts, and Rhode Island, but not in the other States of the Boston division. The Association has secured from the Com- pany three identical statements of policy recognizing the Association as "the representative of its membership in the Boston division" in Maine, Massachusetts, and Rhode Island respectively "for the pur- poses of bargaining on wages, hours and other terms and conditions of employment." Since there has been no bargaining with the Asso- ciation for employees in Vermont, New Hampshire, and Connecticut and the Association has no authorizations from employees in these States, I do not think it proper to include them in the bargaining unit. The International has organized and has a substantial membership among the employees of the Chelsea and Forest Hills plants. The record reveals that the Company has treated the large plants at Forest Hills and Chelsea as one unit for pay-roll and accounting purposes, and for efficiency in management, even though there is a superintendent in charge of each station. The International stated at the hearing that while it believed Chelsea and Forest Hills plants should be considered separate units, it was nevertheless willing to proceed to an election if the Board decided they should be consid- ered as one unit. The International would exclude the employees at Framingham, a small relay station for Forest Hills, and Somerville, GULF OIL CORPORATION 343 where the Chelsea trucks are garaged. These employees are super- vised from Forest Hills and Chelsea and work in close cooperation with the employees at those plants. Moreover, there are only ap- proximately 17 employees at Somerville and Framingham. Clearly the Framingham station and the Somerville garage are only append- ages of Chelsea and Forest Hills. Under these circumstances and in the absence of - any exclusive bargaining agreement or custom or practice establishing a different unit, I am of the opinion that either a unit comprising the employees of Maine, Massachusetts, and Rhode Island, or a unit comprising the employees at Chelsea, Forest Hills, Framingham, and Somerville would be appropriate. I am therefore of the opinion that the em- ployees in these four localities should be given an opportunity to determine for themselves whether to be represented in a unit includ- ing these four localities or in a unit including the three above-men - ,tioned. States, and that a.finding as to the appropriate unit should await the outcome of this election. - X