Tide Water Associated Oil Co., Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1947

74 N.L.R.B. 581 (N.L.R.B. 1947)

In the Matter of TIDE WATER ASSOCIATED OIL COMPANY, INC., EbI-
PLOYER and ORANGE AND BLACK ASSOCIATES, INC., PETITIONER
Case Alo. 1-R-3474.-Decided July 23, 1947
Craivath, Swaine, and Moore, by Messrs. Matthew F. McCue, John
H. Morse, and R. I. Galland, of New York City, for the Employer.
Mr. William G. Sweeney, of Boston, Mass., for the Petitioner.
Miss Frances Steyer, of counsel to the Board.
DECISION
AND
ORDER
Upon a petition duly filed, hearing in this case was held at Boston,
Massachusetts, on March 21, 1947, before Leo J. Halloran, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Tide Water Associated Oil Company, a Delaware corporation, is
engaged in the business of producing, transporting, refining and mar-
keting petroleum and petroleum products throughout the United
States and in foreign countries. In addition, the Employer sells tires,
batteries, and automobile accessories at its various stations.
The Employer's total sales of crude oil and petroleum products for
the year 1946 amounted to $216;302,144. In the Employer's New
England Department, which is the only geographical division in-
volved in this proceeding, sales of gasoline and oil for the 12 months
preceding November 30, 1946, amounted to $14,048,534, and sales of
tires, batteries, and accessories amounted to $655,585.
Bulk petroleum products for the New England Department are or-
dinarily shipped by tanker from the Employer's plant at Bayonne,
New Jersey, or from the Gulf of Mexico to marine terminals located
in the New England States, and thence by rail or truck to the pur-
74 N. L. R. B., No. 112. 581
5'82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chasers or to bulk distributing plants within the said States. Tires,
batteries, and accessories are ordinarily shipped directly to the bulk
plants from manufacturers located outside the New England States.
We find, contrary to the contention of the Employer, that it is en-
gaged in commerce within the meaning of the National Labor Rela-
tions Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is an unaffiliated labor organization, claiming to
represent employees of the Employer.
III. THE ALLEGED APPROPRIATE UNIT
The Petitioner seeks a unit comprising automotive and fuel oil and
industrial oil salesmen of the Employer 's plants at Portland, Maine;
East Providence , Rhode Island; Manchester and Laconia , New Hamp-
shire; and Fitchburg , Fall River , Lowell, Revere, South Braintree
and Worcester, Massachusetts , excluding supervisory employees.
.Subject to its contention that its salesmen are managerial and super-
visory employees ,' the Employer urges that an appropriate unit of
industrial salesmen and/or automotive and fuel oil salesmen should
necessarily include all salesmen in its New England Department and
should not be limited , as in the unit proposed by the Petitioner , to sales-
men at the particular plants in the New England Department, named
above.
As noted in Section I, above, the Employer is engaged in the business
of producing , refining, and marketing petroleum and petroleum prod-
ucts throughout the United States and in foreign countries . In addi-
tion , the Employer sells tires, batteries , and automobile accessories at
its various stations , and maintains producing facilities , bulk plants,
service stations , and a sales organization which extends throughout °
the United States.
The instant proceeding concerns salesmen in the New England De-
partment , of whom there are two types : (1) automotive and fuel oil
salesmen ; and (2 ) industrial oil salesmen.
(1) The automotive and fuel oil salesmen aye employed in the Em-
ployer's New England Sales Department . This Department is
divided into 16 sales districts , which, in turn , are subdivided into 44
automotive sales territories and 10 fuel oil sales territories. While
each salesman is responsible to his District Sales Supervisor , automo-
tive and fuel oil sales activity in the various sales districts is planned,
' We find no merit in the Employer's contention that salesmen are managerial and super-
visory employees The evidence does not indicate that salesmen exercise any managerial
or supervisory functions.
TIDE WATER ASSOCIATED OIL COMPANY, INC. 583
coordinated, and, to a large extent, directed from the New England
Department Sales Office at Boston. The entire budget for such sales
activities is allocated on a department-wide basis. Throughout the
Department, the terms and conditions of employment are the same for
all automotive and fuel oil salesmen, respectively. Salesmen through-
out the Department are hired and discharged by the Department Sales
Manager, who also regulates promotions and salary increases. Sales-
men from one district of the Department are frequently transferred
to another district, on a temporary basis, to assist in sales drives, and
there have been approximately 14 to 15 permanent transfers of sales-
men between districts in the past 10 years.
(2) Similarly, industrial oil salesmen are employed in the Em-
ployer's New England Industrial Products Sales Department for in-
dustrial oil sales, a wholly separate organization from the New Eng-
land Sales Department for automotive and fuel oil sales. In the for-
mer there are 9 sales districts, 7 of which are covered by salesmen.
These salesmen are responsible directly to the New England Depart-
ment Industrial Products Sales Manager, who regulates their salaries,
promotions, working conditions, and activities from the industrial
sales department office at Boston. In the case of automotive and fuel
oil salesmen in the New England Sales Department and industrial oil
salesmen in the New England Industrial Products Sales Department,
respectively, the Departments, whose operations and policies are de-
partment-wide in scope, rather than component districts, describe
functionally homogeneous groups of employees. As disclosed above,
the New England Sales Department comprises 16 sales districts, which
are subdivided into 44 automotive sales territories and 10 fuel oil sales
territories. Of these, the proposed unit would encompass 9 sales dis-
tricts, 26 automotive sales territories, and 7 fuel oil sales territories.
The New England Industrial Products Sales Department comprises
9 sales districts, 7 of which are covered by industrial oil salesmen. Of
these 7 salesmen, only 4 are included within the proposed unit.
The Petitioner, however, contends that, although its proposed unit
of salesmen admittedly cuts across operational lines of the two sales
departments, it is geographically co-extensive with an established bar-
gaining unit of accounting and operating employees and.therefore
appropriate as a bargaining unit.
The Employer has bargained collectively with the Petitioner with
respect to its operating and accounting personnel in the New England
area since April 1939. -It is true that with the exception of the New
England Departmental office in Boston, the proposed unit for sales-
men includes salesmen at the Employer's plants covered in the unit for
the Employer's operating and accounting employees.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the case of operating and accounting personnel, however, each
,district operates as a separate and autonomous administrative sector.
There is no transfer of personnel from one district to another. Each
district has its own budget, from which its operating and accounting
employees are paid, and the local district supervisors take care of hir-
ing and discharging such personnel. Bargaining on a district or
multi-district basis has therefore proved satisfactory for operating
and accounting personnel and thus establishes a pattern or precedent
for units of other employees who may fall within similar administra-
tive lines. Inasmuch as salesmen do not fall within such lines, we are
not persuaded that this unit pattern already established for operating
and accounting personnel has a direct bearing on the scope of the unit
for salesmen. On the basis of the evidence herein, we believe that the
unit appropriate for bargaining for automotive and fuel oil and/or
industrial oil salesmen in the New England area of the Employer's
operations should be coextensive with the sales department or depart-
ments in which such salesmen may function as employees and that a
unit less than department-wide in scope is inappropriate for bargain-
ing purposes.2
IV. THE ALLEGED QUESTION CONCERNING REPRESENTATION
Since the bargaining unit sought to be established by the Petitioner
is inappropriate, as found in Section III, above, we find that no ques-
tion has arisen concerning the representation of employees of the Em-
ployer within an appropriate unit within the meaning of Section 9
,(c) of the National Labor Relations Act.
ORDER
Upon the basis of the above findings of fact and the entire record in
the case, the National Labor Relations Board hereby orders that the
petition for investigation and certification of representatives of em-
ployees of Tide Water Associated Oil Company , Inc., Boston , Massa-
chusetts , filed herein by Orange and Black Associates , Inc., be, and it
hereby is , dismissed.
2 See Matter of Uarco, Incorporated, 74 N. L. R. B 385 ; Matter of Wyeth, Incor-
porated, 73 N. L. R. B. 684.