Flint Oil Co.

National Labor Relations Board - Board Decisions

Feb 10, 1950

88 N.L.R.B. 634 (N.L.R.B. 1950)

In the Matter of DANIEL W . SUFFERT AND FLOYD M. GLOVER, D/B/A
FLINT OIL COMPANY,' EMPLOYER and OIL WORKERS INTERNATIONAL
UNION, CIO,2 PETITIONER
Case No. 7-RC-694.-Decided February 10, 1950
DECISION
AND
DIRECTION OF ELECTION
0
Upon a petition duly filed, a hearing was held before Francis E.
Burger, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
. 2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit of all employees of the Employer, ex-
cluding commission drivers,3 confidential employees, and supervisors
as defined in the Act. The four commission drivers intervened at the
hearing for the purpose of asserting their right to be included in the
appropriate unit. The Employer, although otherwise agreeing with
the unit sought by the Petitioner, took a neutral position as to the
inclusion of the commission drivers. However, the Employer, con-
} The name of the Employer appears as amended at the hearing.
$ The petition was filed by Local 389 of the Petitioner. At the hearing, without objection,
the petition was amended to substitute the international for the local as Petitioner.
8 Also referred to in the record as farm drivers.
88 NLRB No. 131. -
634
FLINT OIL COMPANY 635
trary to the contention of the Petitioner, would exclude the bulk
plant agent as a supervisor.
The Employer is engaged at Flint, Michigan, in the wholesale and
retail distribution of petroleum products, and the sale and distribu-
tion of tires, batteries, and other accessories. All of its operations are
conducted at a warehouse and office located on the same site. Three
salaried truck drivers make deliveries within the city of Flint, while
the four commission drivers cover territories in the surrounding coun-
ties. All the drivers load their trucks at the warehouse, where the
dispatching functions are performed by the bulk plant agent. The
only other person working out of the warehouse is an employee who
delivers accessories by truck to customers of the Employer. A sales
supervisor is the operating head of the Employer's business. The
office force consists of an office manager, a bookkeeper, and a clerk.
The commission drivers report to the plant for work at the begin-
ning of each day, load their trucks under the direction of the bulk
plant agent, and cover territories separately assigned to them. In
many cases they merely deliver oil or gasoline to customers who have
sent their orders to the Employer's office. However, the commission
drivers spend considerably more time than the salaried drivers in pro-
moting the sale of products handled by the Employer. The commis-
sion drivers are under the immediate supervision of the sales supervisor
and only receive occasional instructions from the bulk plant agent.
Each of the commission drivers has a contract with the Employer,
terminable by either party on 5 days' notice, in which the driver is
referred to as an "Agent." Under this contract, each driver agrees to
give his exclusive time and attention to "said employment," to comply
with such instructions and rules and policies as the Employer may give
him, and to perform faithfully such duties as may be required of him
by the Employer in connection with the proper sale and delivery of
its products. Each commission driver supplies and maintains his own
truck, but the tanks on three of the trucks are furnished by the
Employer. The trucks are garaged at the warehouse. The Employer
assumes customer credit risk, but the commission driver may be held
liable for credit extended without the Employer's prior approval.
The Employer deducts social security and withholding taxes from the
earnings of the commission drivers.
The Petitioner in effect contends that the commission drivers should
not be included in the unit because they are independent contractors,
not employees, and because, even if they are employees, their duties
are substantially different from those of the salaried drivers 4 As to
A The Petitioner stated at the hearing that it was willing to represent the commission
drivers if they were included in the unit.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the first contention, we have previously held that commission drivers
in this industry, working under substantially the same contractual
relationships as the commission drivers here, are employees and not
independent contractors.5 We so find here. As to the Petitioner's
second contention, however, the record discloses that the commission
drivers are essentially salesmen. Although we have included selling
and nonselling employees in the same unit where the parties have
agreed on the composition of the unit,6 it is our general policy to
exclude selling personnel from plant-wide units when the question
has been raised by any party and the record clearly indicated the
separate work interest of such salesmen.7 Ili view of this policy,
and in view of the fact that the Employer does not oppose the Peti-
tioner's request for exclusion of the commission drivers, we shall
exclude such drivers from the unit.
The bulk plant agent works in the warehouse where one of his
chief functions is to check the loads of drivers and dispatch the trucks.
He is responsible for checking inventories, and spends a large part
of his time unloading tank cars, loading trucks, and doing other non-
supervisory work around the warehouse. However, it is clear from
the record that the bulk plant agent has authority effectively to recom-
mend the hire, discharge, and discipline of the salaried drivers. Al-
though the present bulk plant agent has had no occasion in the year
he has held the job to recommend any of these things, his immediate
predecessor did cause the discharge of a salaried driver. We find that
the bulk plant agent is a supervisor within the meaning of the Act.
We find that all employees of the Employer at its place of business
in Flint, Michigan, excluding commission drivers, confidential em-
ployees," the bulk plant agent and other supervisors 9 as defined in
the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
5 Standard Oil Company (Indiana), 81 NLRB 1381 . See Steinberg & Company, 78
NLRB 211, 221 . The fact that these drivers supply their own trucks is not, in itself,
enough to establish an independent contractor status , or provide a basis for their exclusion
from the appropriate unit. Walter Holm & Company , 87 NLRB 1169; Lyons Auto
Supply, 86 NLRB 633.
8 Florida Coca -Cola Bottling Company, 87 NLRB 201 ; Pepsi-Cola, Louisville Bottlers,
Inc., 86 NLRB 1299 ;Raleigh Coca-Cola Bottling Works, 80 NLRB 768.
7 Deep Rock, Inc., 83 NLRB 694; Fairmont Foods Company, 81 NLRB 1092 ; Rockford
Coca -Cola Bottling Co., 81 NLRB 579; Carnation Company of Texas, 78 NLRB 519;
Standard Oil Company (Indiana ), supra.
s Excluded as a confidential employee is the bookkeeper who acts as personal secretary
to the copartners.
9 Excluded as supervisors are the office manager and the sales supervisor.
FLINT OIL COMPANY
DIRECTION OF ELECTION
637
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bargain-
ing, by Oil Workers International Union, CIO.