Gulf Refining Co.

In the Matter of GULF REFINING COMPANY and FEDERAL LABOR UNION No. 22191, AFFILIATED WITH THE AMERICAN FEDERATI02T OF LABOR Case No. R-1915.-Decided July 22,, 1940 Jurisdiction : oil refining and distributing industry. Investigation and Certification of Representatives : existence of question where employer refuses to accord full recognition to union and requests that cer- tification be obtained; election necessary. Contract terminable on one month's notice, or notice by Board's Regional Director that contracting union uo longer represents a majority in the unit covered by the contract. Employees who have been with the Company less than six months, and have not yet acquired seniority rights held eligible to vote although one union requests their exclusion. Unit Appropriate for Collective Bargaining : all_ employees ,of'the Company at its refinery at Toledo. Ohio, including laboratory workers and excluding clerical and supervisory employees and specifically named employees. Laboratory workers who are eligible for membership in the unions- in- volved and are paid on a basis similar to other employees in the unit and have been previously bargained for by the union now requesting their exclusion, included within the appropriate unit. Mr. Edwin J. Lynch, Mr. John W. Hackett, Mr. John Froelich, Mr. William Stwrr, and Mr. Frank Dexter, of Toledo, Ohio, for the Federal. Mr. Lowell Goerlich, dlr. Edward Lamb, and Mr. Clyde P. Derby, of Toledo, Ohio, and Mr. R. L. Bruce, of Fort Worth, Tex., for the International. Mr. Eldon Young, of Houston, Tex., for the Company. Mr. William Strong, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 8. 1940, Federal Labor Union No. 22191, herein called the Federal, filed with the Regional Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting coin- merce' had arisen concerning the representation of employees of-Gulf 25 N. L. R. B., No 83 745 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Refining Company, herein called the Company, at its refinery in Toledo, Ohio, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, herein called the Act. On June 15, 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, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for, an appro- priate hearing upon due notice. On June 17, 1940, the Regional Director issued a notice of hearing,, copies of which were duly served upon the Company, the Federal, and Oil Workers International Union, Local No. 346, affiliated with the Congress of Industrial Organizations, herein called the Interna- tional. Pursuant to notice a hearing was held on June 21, 1940, at Toledo, Ohio, before Max W. Johnstone, the Trial Examiner duly designated by the Board. The Company, the Federal, and the, Inter- national were duly represented by counsel, and the Federal and In- ternational also by representatives; all 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. During the course of the hearing, the Trial Examiner ruled upon several motions and objections to the admission of evidence. The Board ,has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. , The rulings are hereby affirmed. On July 5, and on July 11, 1940, ,the Federal and the International filed briefs which the Board has -duly considered. Upon the entire record in the case, the Board makes the,following : FINDINGS OF FACT 1. THE BUSINESS OF, THE COMPANY Gulf Refining Company is a corporation organized under the laws of the State of Delaware, and is a wholly owned subsidiary of Gulf Oil Corporation. The Company is engaged in refining, selling, and distributing petroleum products. The- raw materials used by the Company in the, refining process are for the most part crude oil, of which in excess of 20,000 barrels are used each day. Over 50 per cent of such crude oil comes from without the State of Ohio. ' The finished products of the Company are petroleum products, such as gasoline, kerosene, fuel oil, and coke. In excess of 20,000 barrels of such fin- ished products are produced each day, over 50 per cent of which are sold and distributed to points outside the State of Ohio. GULF REFINING COMPANY 747 The Company employs more than 250 employees. At the hearing all parties stipulated that the, Company is engaged in interstate commerce within the meaning of the Act. 11. THE ORGANIZATIONS INVOLVED Federal Labor Union No. 22191 is a labor organization affiliated `Ilth the American Federation of Labor. Oil Workers International UnionLocal No. 346, is a labor organ- ization affiliated with the Congress of Industrial Organizations. Both labor organizations admit to membership employees of the Company, excluding clerical and supervisory employees. III. THE QUESTION CONCERNING REPRESENTATION On October 19, 1939, the International and the Company entered into a collective agreement which recognized the-International as the exclusive bargaining agent of all the Company's employees at the plant involved herein, except clerical and supervisory employees. By its terms this agreement remained in effect until April 19, 1940, and will continue in effect until terminated upon one month's notice by either party, or until such time as written notice is given to the Company by the Regional Director that the International no longer represents a majority of the employees in the agreed unit. On April 24, 1940, the Federal requested the Company to recognize it as the exclusive barganung agent of the Company's employees. On April 30, 1940, the Company informed the Federal that it would not recognize the Federal unless and until the latter has been cer- tified by the Board as the exclusive' bargaining agent' of the, Company's employees. From the statement of an agent of the Board, introduced into evidence, it appears that the Federal and the International have substantial membership among the employees of the Company. We find that a question has arisen concerning the representation of 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 rela- tion 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. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPPROPRLITE UNIT The Federal desires a unit composed of all the employees at the Toledo refinery, excluding clerical and supervisory employees. The International would also exclude laboratory workers. The Company has taken no position as to the laboratory workers. The Company employs 6 laboratory workers. These laboratory workers make viscosity and distillation tests. They have been selected by the Company from among the more capable employees. A high- school education is preferred for this task, but not all six have a high-school education. They are not required to be chemists, and perform their duties under the supervision of an assistant chemist, who is, in turn, supervised by a chemist. The laboratory workers are paid on an hourly basis, as are the other refinery employees, and their names appear on the Company's general hourly pay roll. The laboratory in which they work is housed in a separate building, across the street from the refinery. The laboratory workers appear to be eligible, for membership in the International-as well-as- in-the Federal. The International also appears to have bargained on behalf of the laboratory workers. We find that the laboratory workers belong within the appropriate unit. The parties agreed and we find that the 25 persons named in Appen- dix "A" are supervisory employees. They will therefore be excluded from the unit. The International contends that the 10 persons named in Appendix "B" are also supervisory employees. The Federal dis- agrees with this contention. These 10 employees exercise supervisory authority over groups ranging in size between 1 and 8 men. They direct the employees whom they supervise in the performance of the latter's duties, prepare time sheets showing the work performed, the rates of pay, and the distribution of such pay to each of the employees, and sign such sheets as "foreman." While they do not exercise orig- inal authority to hire or discharge, they report to higher supervisory officials --var-ious• infractions of company rules by the employees under them and also recommend discharges. We find that the 10 persons named in Appendix "B" are supervisory employees and that they should be excluded from the appropriate unit.' We find that all employees of the Company at its refinery at Toledo, Ohio, including laboratory workers, and excluding clerical employees, the employees named in Appendix "A" and Appendix "B" and other supervisory employees, constitute a unit appropriate for the 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 ' See Matter of Kingsley Lumber Co and Lumber and Sawnill Workers Local No 2879, 13 N. L. R B. 174; Matter of Rnls Manufactar ing Corp and United Electrical . Radio cC Machine Workers of America, 11 N. L R B. 696 GULF REFINING COMPANY 749 to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation can best be resolved by means of an election by secret ballot and we shall direct the holding of such an election. The International would exclude from the election 7 employees named in Appendix "C," Who were employed less than 6 months before May 12, 1940. The Federal would permit them to vote . Although these 7 employees may not have obtained seniority rights prior to May 12, it is clear that they have a substantial interest in the outcome of the election. They will therefore be eligible to participate in the election. The parties are agreed and we find that the pay roll for the period ending May 12, 1940, shall be used as a basis for determining eligibility to participate in the election . We shall direct that the employees within the appropriate unit whose names appear on the pray roll for the period ending May 12, 1940 , including the employees named in Appendix "C" and employees who did not work during such pay-roll period because they were ill or on vacation and employees who during such pay-roll period were or have since been temporarily laid off and excluding employees who have since quit or been discharged for cause, shall be eligible to vote 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 Gulf Refining Company, at its refinery at Toledo, Ohio, within the meaning of Section 9 (c) and Section 2 F6) and (7) of the National Labor Relations Act. 2. All the employees of the Company at its refinery at Toledo, Ohio, including laboratory workers, and excluding clerical employees, the employees named in Appendix "A" and Appendix "B," and other 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 Re- lations Act and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining, 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 Eighth Region, acting in the matter as agent for the National Labor Relations Board and subject to Article III, Sec- tion 9 (c), of said Rules and Regulations , among all employees of the Company at its refinery at Toledo, Ohio, who were employed by the Company during the pay-roll period ending May 12, 1940, including the employees named in Appendix "C", employees who were not employed during the pay-roll period because they were ill or on vacation, and employees who were or have since been tem- porarily laid off, and excluding employees who have since quit of been discharged for cause, and further excluding clerical employees, the employees named in Appendix "A" and Appendix " B," and other supervisory employees, to deteriuiue whether they desire to be represented by Federal Labor Union No. 22191, affiliated with the American Federation of Labor, or by Oil Workers International Union, Local No. 346, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. APPENDIX A J. Gafford J. Houd D. Heffner C. Kilo E. Callihan F. Thorndyke W. Johnson F. Schutte S. Hayes W. Morton W. Ries S. Howard T. Doliii Robert Gerrald R. Caulkins C. Pfeiffer H. Quinnlan C. Eddy W. Armstrong R. Williams 0. Locke J. Sheppard A. Goodwin D. Hinch 0. Ruff R. Tipton A. Elder Ray Portman Harry Bailey J. Zoll APPENDIX B F. Purcell J. Toth H. Falvey D. Bryan E. Poulson GULF REFINING COMPANY 751 APPENDIX C S. Cobb Phillip Fonner Charles Leadford Fred Schoepf L. R. Vosberg Ralph Dixon Charles C. Martin MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Direction of Election.