Modern Heat & Fuel Co.

National Labor Relations Board - Board Decisions

May 16, 1950

89 N.L.R.B. 1345 (N.L.R.B. 1950)

In the MATTER OF MODERN HEAT & FUEL COMPANY, EMPLOYER and
FUEL WORKERS UNION, LOCAL 100, PETITIONER
Case No.4-RC-580.Decided May 16,1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before E. Don Wilson,
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 Styles].
Upon the entire record in this case, the Board finds :
1. The Employer, a Pennsylvania corporation, is engaged in the
sale and delivery of fuel oil, and in the sale, installation, and servicing
of oil burners and oil burning equipment. Its annual purchases are
in excess of $1,000,000, including oil burners valued in excess of
$100,000, of which 90 percent is received from points outside the
State of Pennsylvania, and replacement parts valued in excess of
$300,000 of which 10 percent is obtained from out-of-State sources.
The remainder of its purchases consist of industrial and domestic
fuel oil, 80 percent of which is obtained from the Gulf Oil Company.,,
The Employer's annual sales are in excess of $2,000,000. The record
does not show the proportion of income received from sales of fuel
oil, replacement parts, and oil burners. It does show, however, that
90 percent of the oil burners and replacement parts are sold locally,
and that 98 percent of the domestic fuel oil is sold to local home owners.
But 10 percent of the oil burners and replacement parts are sold out-
side the State of Pennsylvania and a substantial portion of the indus-
trial fuel oil is sold to manufacturing and industrial firms.
' The Board has asserted jurisdiction over Gulf Oil Company and Gulf Refining Company.
See Gulf Oil Company, 65 NLRB 1396, and Gulf Refining Company, 67 NLRB 1299.
89 NLRB No. 171.
1345
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, contrary to the contention of the Employer, that it is
engaged in commerce within the meaning of the National Labor Rela-
tions Act.'
2. The labor organization named below claims to represent em
ployees 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.3
4. The Petitioner seeks to, represent the Employer's dispatcher-
clerks and dispatcher-clerk-towermen, on whose .behalf it requests a
self-determination election for the purpose of including t)tem in a unit
of the Employer's truck drivers whom it now represents. Contending
that the. dispatchers involved are essentially office-clerical employees,
the Employer opposes inclusion of these employees in the same bar-
gaining unit with its truck drivers. and urges that the petition be dis-
missed. The Employer also asserts that some of the dispatchers are
supervisors and must therefore be excluded from any bargaining unit.
As set forth above, the Employer sells fuel oil to private and com-
mercial consumers and also sells and services oil burners and related
equipment. As the deliveries are made by company-owned trucks,
the employees include truck drivers, automobile mechanics, service and
installation men, and janitors, as well as an office clerical staff.4 The
drivers and the servicemen are assigned to various zones throughout
the city of Philadelphia; their work is determined by .a, prearranged
delivery and service schedule, and by telephone dispatch orders which
they receive during the course of the day.
The dispatcher-clerks, seven employees, work in the main office.
Their duties are varied. They receive telephone calls for fuel oil and
for maintenance service, record the orders, and transmit them to truck
drivers and servicemen. Most of this relaying of calls to the field
workers-called dispatching-is done by telephone; sometimes the
drivers are handed the call slips in person at the office location. The
dispatcher-clerks also perform purely clerical duties, such as filing
papers, drawing up contracts, sending out mail, preparing drivers'
orders, and generally looking after all aspects of the scheduled delivery
system. . Some of the dispatcher-clerks perform more clerical work
x Cf. Whitl^'Mountain Polaer Company, 85 NLRB 962.
3 The Employer asserts that as an election has been held in a production and mainte-
nance unit, within the past 12 months,. this petition is precluded by Section 9 (c) (3) of
the Act. We find no merit in this contention as the employees here involved were excluded
from the voting group, in the earlier election.
4 Following a consent election, the Petitioner was certified as baiggaining agent for; and
now represents, truck drivers, automobile mechanics, service and installation men, and
janitors (Case No. 4-RC-499).
MODERN HEAT & FUEL COMPANY 1347
than others; thus, employee Brecht dispatches drivers' between 90 and
95 percent of his time, while Stockert and Dunlop, who are on duty at
night, spend almost all of their time on office record work. Between
these extremes are the remaining four dispatcher-clerks,, who spend
between 10 and 50 percent of their time dispatching.. Working side
by side with the dispatchers in the office are purely office clerical
employees whom the Petitioner does not seek to represent.
The dispatcher-clerk-towermen, three in number, are located at the
Employer's Bulk Plant, about 11/2 miles distant from the office. These
employees record the amount of fuel oil drawn by the drivers as they
refill their trucks during the day. They also assist in the refilling of
trucks by turning certain valves and pushing buttons. They obtain
receipts from the drivers, and, at the end of the day, tabulate the day's
activities and turn in a report to the Bulk Plant supervisor. They
also transmit calls, which are relayed to them from the office, to the
drivers personally.
The petitioner's argument for inclusion of these dispatchers in the
same unit with truck drivers is based primarily upon the assertion
that, like plant clericals, their interests are more closely related to
those of truck drivers than to .those of the office clerical workers. How-
ever, in those cases in which we have held that plant clericals have the
same interests in working conditions as do production employees, an
essential fact was the direct and continuous contact between the two
groups and the common location of their work assignments .5 Unlike
such plant clericals, the dispatcher-clerks here involved are not only
permanently assigned to work side by side with purely office clerical
employees, but they have no personal contact with the drivers or with
other employees in the existing unit except for occasional personal
delivery of called orders at the main office. Further, a substantial
portion of their time is devoted to office clerical work which is not
related to the activities of the drivers. As the only substantial com-
munication between the dispatcher-clerks and the truck drivers is by
telephone, we believe that the dispatcher-clerks do not have a sufficient
common interest in working conditions with the employees in the truck
driver group to warrant their inclusion in the same units
The dispatcher-clerk-towermen, oil the other hand, deal and coop-
erate with the truck drivers throughout their day's work. Indeed,
although their duties include some clerical work, these employees are
located apart from the other clerical workers and have no contact with
any employees other than the drivers. We agree with the Petitioner's
6 Chrysler Corporation, 76 NLRB 55; Brown Fence and Wire Co., 57 NLRB 485; The
Baldwin Conipany , 54 NLRB 1.020.
6 Richfield Oil Corporation, 59 NLRB 1554.
889227-51-vol. 89-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assertion that these employees have a greater interest in their working
conditions in common with the drivers than with the office clericals,
and may, if they so desire, be included in the same unit with the
drivers.7
Accordingly, we shall direct an election among all dispatcher-clerk-
towermen, excluding dispatcher-clerks, all other employees, and all
supervisors as defined in the Act. However, we shall make no final
unit determination at this time. If a majority of such employees select
the Petitioner, they will be taken to have indicated their desire to be
included in the production and maintenance unit now represented by
the Petitioner.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes 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
voting group described 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 Fuel Workers Union, Local 100.
' No contention was made, nor does the record show, that any of the dispatcher-clerk-
towermen possess any supervisory attributes. In view of our above finding with respect
to the dispatcher-clerks, we deem it unnecessary to pass upon the Employer's contention
that dispatcher-clerks are supervisors within the meaning of the Act.