Sinclair Refining Co.

National Labor Relations Board - Board Decisions

Apr 2, 1951

93 N.L.R.B. 1115 (N.L.R.B. 1951)

SINCLAIR REFINING COMPANY 1115
Order
Upon the basis of the entire record in this case, it is ordered that
the petition filed in the instant matter be, and it hereby is, dismissed.
SINCLAIR REFINING COMPANY and OIL WORKERS INTERNATIONAL
UNION, CIO , PETITIONER . Case No. 7-RC-1121. April 2, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held, before Harold L. Hudson,
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 Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Houston and
Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. No 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, for the following
reasons:
The Petitioner seeks to represent a unit of truckers operating under
a "commission marketer" agreement with the Employer in the metro-
politan Detroit, Michigan, area. The Employer contends that the
truckers are independent contractors and are therefore outside the
coverage of the Act.
The Employer operates a bulk oil plant at Detroit and a pipeline
terminal at Dearborn, a suburb of Detroit. The petitioner is pres-
ently the bargaining representative for a unit of salaried employees
at both the bulk plant and the terminal. The truckers involved in
this proceeding deliver both gasoline and fuel oil from the Dear-
born terminal in their own trucks to the Employer's customers, and
are paid a fixed amount per gallon delivered. The salaried truck
drivers are occupied mainly in delivering gasoline and petroleum
products other than fuel oil. They drive only equipment owned by
the Employer.
In 1947 Sinclair discontinued its former practice of having salaried
employees deliver fuel oil, and entered into agreements with truckers
93 NLRB No. 199.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who owned suitable hauling equipment or would buy it. Some of
the salaried employees bought the trucks and tanks used in this
operation and became owner-operators paid on a commission basis,
and individually responsible for the cost of operating and main-
taining their own equipment.
In 1949'a new agreement was drawn up, which is now in effect,
setting out in detail the relationship of the parties. It provides that
each commission marketer shall furnish the necessary trucks and
labor and pay all expenses necessary for hauling those Sinclair prod-
ucts which are turned over to him for delivery. He may not handle
competing petroleum products, and may not permit his handling of
noncompeting materials to interfere with his obligations under the
agreement. Deliveries are made to Sinclair customers on terms
set by Sinclair. The marketer may not extend credit without Sin-
clair's permission, and becomes liable for any losses sustained through
violation of that provision. Deliveries are made in a nonexclusive
territory, and the marketer is not paid any commission for sales which
he may effect. He is required to make a daily report to Sinclair
accounting for all stocks, sales, deliveries, collections, and remittances.
He must comply with Federal, State, and municipal laws, regula-
tions, etc. which affect or regulate the handling or sale of Sinclair
products, and must also comply with Sinclair's safety recommenda-
tions regarding the transportation of flammable products. - The
marketer also accepts full and exclusive liability for workmen's com-
pensation insurance, and for payment of all taxes based on wages
paid to his employees, agreeing, wherever possible, to accept volun-
tary coverage under such taxing statutes in order to relieve Sinclair
of any possible liability. The agreement is for an indefinite term,
and may be terminated by either party at any time with or without
cause. The marketer may not assign the agreement without Sinclair's
consent.
There were 19 commissioned marketer agreements in effect at the
date of the hearing. Four of these were with corporations, all of
whom operate their own gasoline stations or sell to their own retail
outlets. The corporation marketers haul principally for their own
account, although on occasion they may deliver either gasoline or
fuel oil to Sinclair customers in the same manner as the individual
truckers. Another of the marketers is a partnership operating four
trucks, driven by the two partners and by employees whom the part-
nership hires and pays from its own funds. Another agreement is
with an individual truck owner who hires a driver whom he super-
vises and pays. The remaining agreements are with individuals, each
of whom owns and drives his own truck in handling Sinclair products.
Most of the truckers deliver for Sinclair only during the heating
season, doing no other work for the Company the remainder of the
SINCLAIR REFINING COMPANY 1117
year. They have no fixed time to report each day, but usually ar-
range in advance with the company dispatcher at the Dearborn
terminal a reporting time which is mutually convenient. Upon re-
porting, their trucks are loaded with oil or gasoline, and they are
handed their delivery orders. The trucker may make his deliveries
in any order he desires, except that he is expected to make emergency
deliveries, so designated by the dispatcher, as quickly as possible.
After his deliveries are completed, he returns to the terminal either
to pick up another load or to make his daily report and accounting.
The marketers' trucks are not garaged at the Sinclair terminal, and
each trucker pays for all maintenance, repairs, and supplies required
by his truck. The Company pays no social security taxes, and does
not withhold income taxes, from his remuneration. The truckers
carry their own property damage and public liability insurance, which
they may obtain from any source. Most of them obtain their policies
through the Company which gives them lower rates and the oppor-
tunity of paying their premiums in six installments through the year.
A few truckers who were once salaried employees of Sinclair have
continued their participation in a group life insurance program which
Sinclair provides for its employees. The truckers who were not in-
cluded in the program at the time they signed commission marketer
agreements are not, however, eligible to participate. The truckers
all display their names on their trucks while many also have a Sinclair
design painted thereon.
The standards to be applied in determining who is an independent
contractor are the ordinary tests of the law of agency, which the
Board recently had occasion to discuss in the Steinberg case? These
are, in the main, formulations, devised to meet a variety of situations,
of the basic question as to "right of control" : Namely, whether the
Employer has the right to exercise control of the methods and manner
by which a specified result is to be accomplished.
Although some elements of the relationship between the truckers
and the Company suggest an employment relationship, we are per-
suaded from the record as a whole that the truckers involved herein
are independent contractors. In particular, we note that four of
the marketers are corporations with employees of their own and that
at least one of the corporations is presently bargaining with this
Petitioner as representative of its employees. Two other marketers
are also employers of drivers who are engaged in delivering Sinclair
products. Further, the truckers, corporate, partnership, or individ-
ual, all own their own trucks, tanks, pumps, and meters ; they receive
'Steinberg f Company, 78 NLRB 211, reversed 182 F 2d 850 (C A 5, 1950)_
Although the court of appeals came to a conclusion opposite to that of the Board, it
nevertheless applied many of the same standards and criteria relied on by the Board.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no other compensation from the Company than the gallonage rate
fixed in the agreement and do not share in any benefits granted to
salaried employees; 2 they pay all their own expenses; neither their
hours nor days of work are fixed by the Company; they determine
for themselves the order and manner in which their deliveries are
to be effected; their trucks all carry their names; the Company does
not account for those taxes which arise from an employment relation-
ship; and the truckers pay all taxes and license fees required in their
hauling operations.
Upon the foregoing facts and the entire record, we conclude that
the truckers petitioned for herein are independent contractors and not
employees within the meaning of the Act.3 We shall therefore dis-
miss the petition herein.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed. -
2 The participation in a group life insurance plan by a few of the truckers is a holdover
from the period when they were salaried employees . It does not appear that the Company
contributes any part of the premium on their policies.
2 Nelson-Ricks Creamery Company, 89 NLRB 204 ; Spickelmier Company, 83 NLRB 452.
Cf Flint Oil Company , 88 NLRB 634 , and Standard Oil Company ( Indiana ), 81 NLRB 1381
where the Boaid found petroleum haulers operating in a substantially different manner
to be employees.
PATERSON FIRE BRICK COMPANY and UNITED BRICK AND CLAY WORK-
ERS or AMERICA, AFL, PETITIONER. Case No. 6-RC-4.94. April 2i,
1951
Second Supplemental Decision and Order
On January 4, 1951, the Board directed that a hearing be held on
objections to conduct affecting the results of the election, filed herein
by the Petitioner,' and that the hearing officer designated to conduct
the hearing should prepare and cause to be served upon the parties
a report containing resolutions of credibility of witnesses, findings
of fact, and recommendations to the Board as to the disposition of
said objections.
On January 30, 1951, and pursuant to the order of the Board, a
hearing was held before Lloyd R. Fraker, hearing officer. The Board 2
has reviewed the rulings made by the hearing officer and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
I The revised tally of ballots showed that 28 votes were cast for, and 35 votes against,
the Petitioner.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated Its
powers in connection with this case to a three -member panel [ Members Houston , Murdock,
and Styles].
93 NLRB No 203.