Standard Oil Co.

National Labor Relations Board - Board Decisions

May 9, 1942

40 N.L.R.B. 1233 (N.L.R.B. 1942)

In the Matter of STANDARD OIL COMPANY (INDIANA ) and OIL
WORKERS INTERNATIONAL UNION, AFFILIATED WITH THE C. I. O.
Case No. R-3714.-Decided May 9, .194E
Jurisdiction : petroleum distributing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord petitioner recognition until certified by the Board ; employees
laid off in the spring and recalled in the fall, and employees who have been
laid off for not more than one year prior to Direction of Election held eligible
to vote; election necessary.
Unit Appropriate for Collective Bargaining : divisional sales unit of Company
comprising all employees of larger bulk stations, including commissioned
drivers, station agents of smaller bulk stations, all clerical employees, and
excluding all supervisory employees, salesmen, and helpers of smaller bulk
station agents ; all station agents of smaller bulk stations who although they
exercise a degree of discretion and latitude in their work and ha` e consider-
able responsibility are included in unit since their duties and working condi-
tions are not readily distinguishable from the commissioned drivers of the larger
bulk stations; all clerical employees at the main office of the Company are
included since their duties and working conditions are no different than those
of clerks employed at the larger bulk stations; further both of the above
groups have been covered by collective bargaining agreements, as part of a
division-wide unit, _
Mr. Jerome J. Brooks, for the Board.
Mr. Merwin Bristol, of Chicago, Ill., for the Company.
Sugar & Tucker, by Mr. Jack N. Tucker, of Detroit, Mich., for the
O. W. I. U.
Mr. Alex S. Ross, of Detroit, Mich., for the Council.
Miss Melvern R. Krelow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Oil Workers International Union,
affiliated with the C. I. 0., herein called the O. W. I. U., alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Standard Oil Company (Indiana), Detroit,
Michigan, herein called the Company, the National Labor Relations
40 N. L. R. B, No 219.
1233
455771-42-vol. 40-78
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board provided for an appropriate hearing upon due notice before
Will Maslow, Trial Examiner. Said hearing was held at Detroit,
Michigan, on April 8, 1942. The Board, the Company, the O. W.
I. U., and Central States Petroleum Council, Local 102, herein called
the Council, appeared, participated, and were afforded full,oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's
rulings, made at the hearing, are free from prejudicial error and are
hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Standard Oil Company (Indiana) is engaged in the business of
manufacturing, transporting, and marketing petroleum products.
This proceeding concerns employees of the Company at, its Detroit
Sales Division where the Company is engaged in marketing within
the State of Michigan products manufactured elsewhere. The Com-
pany's sales of such products in 1941 exceeded $17,000,000. The
Company admits that in the operation of its Detroit Sales Division
it is engaged in commerce within the meaning of the National Labor
Relations Act.
H. THE ORGANIZATIONS INVOLVED
Oil workers International Union, affiliated with the C. I. 0., is
a labor organization admitting to membership employees of the
Company.
Central States,Petroleum'Council, Local 102, is an unaffiliated labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated that a question concerning representation
had arisen in that the O. W. L. U. requested the Company to recog-
nize it as sole bargaining agent of employees in a unit alleged to be
appropriate, and that the Company denied the request until the
O. W., I. U. is certified by the Board)
? In the petition filed by the 0 W I U. the date of its request for recognition is
stated as ' October 31, 1941. At that time there was no sole recognition contract in
existence Subsequently on December 17, 1941, the-Company and the Council entered
into a contract in which the Council is recognized as sole bargaining agent of the Com-
pany 's employees at'the Detroit Sales Division , excluding supervisory employees Although
the patties have stipulated the existence of a question concerning representation, and
although neither the Company nor the Council contends that their contract is a bar to
STANDARD Olt COMPANY (-INDIANA) 1235
A 'report prepared by the Regional Director introduced in evidence
at the hearing shows that the 0. W. I. U. and the Council each repre-
sents a substantial number of employees of the Company in the unit
it alleges as appropriate.2
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Company's Detroit Sales Division comprises a main office,
8 "A" bulk stations, and 87 "B" bulk stations. The "A" stations,
each in charge of an agent, employ from 2 to 50 employees. The
"B" stations are also each in charge of an agent, but are not otherwise
staffed, except, as will appear, by employees hired as helpers by
the "B" station agents at their own option.
The 0. W. I. U. and the Council agreed at the hearing that all
employees in the "A" stations, including commissioned drivers, and
clerical employees employed at the "A" stations, should be included
in the unit; that all supervisory employees, and salesmen, and em-
ployees of "B" station agents should be excluded. The parties are
in disagreement concerning the "B" station agents,3 and the clerical
employees at the main office. The 0. W. I. U. would exclude, and
the Council include, them. The Company takes no position con-
cerning the appropriate unit. The disputed groups are covered in
the existing collective bargaining agreement between the Company
and the Council, and were covered in an earlier agreement between
them which was in effect from June 17, 1937,,to June 16, 1940.
1. "B" station agents
.The 0. W. I. U. contends that "B" station agents are either actual
or potential employers of labor, are responsible for stock which is
this proceeding , the Company reserved the right to make such contention in the event
the Board should find an appropriate bargaining unit differing fiom that clamed by the
0. W I U Since it appears that the O. W. I U. made yits request for representation
prior to the execution of the contract in question , we find that the contract is in no
event a bar to a present determination of representatives
2 The Regional Director reported that the 0 W I U . presented application cards
(dated between July 1941 and February 1942 ) and a dues roster (dues payments made
in October , November, and December , no year indicated ) bearing 94 apparently genuine
signatures of persons appearing on the Company 's pay lolls of November 26, 1941, and
December 3, 1941 There are approximately 200 employees in the unit alleged by the
0 W I U . to be appropriate The Regional Director further repotted that the Council
presented application cards dated ' betweeii 1937 and 1941, bearing 284 apparently genuine
signatures of persons appearing on, the Company 's pay lolls of November 26, 30, and
December 3, 19111. These pay molls list 482 employees in the unit alleged by the Council
to be appropriate Of the application cards presented , 143 bear the apparently genuine
signatures of persons appearing on the Company 's pay iolls.referied to above, in the unit,
alleged by the 0 W I U. to be appropriate.
3 The Company s "A" station agents are clearly supeivisory , and fall within the agreed
exclusions
1236 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
assigned to them, -and; to a large extent, are responsible _for the busi-
ness under their control. It also contends that these persons should
be represented by a separate organization.
"B" stations are small buildings adjacent to 4, 5, or 6 tanks of a
capacity from 10,000 gallons to 17,000 gallons, and are usually located
on the outskirts of town. These stations receive carload deliveries of
gasoline and refined oils and distribute and sell directly to customers
in tank "wagon" lots. The Company leases the property on which
the stations are located and owns the equipment used. As to the
trucks which are used for deliveries, and which are referred to as
tank "wagons," the chassis belongs to the "B" station agent and the
"body" to the Company. The Company rents the chassis from ,the
agent.
Individual employment contracts are entered into between the
Company and "B" station agents. These contracts provide, intra alia,
that (1) agents, will protect company property to prevent losses by
theft and to see that equipment is not removed except on approved
authority; (2) unauthorized credit extended by the agent can at
any time be discontinued by the Company; (3) if such unauthorized
credit customers do not pay, the agent is held responsible; (4) the
Company will lease a truck equipped for delivery and the agent
will personally operate said truck, and in the event of his inability
to operate it, he may, with consent of the Company, employ at his
own expense a driver to operate said truck during that time; (5) the
agent will employ, at his own expense, suitable drivers to operate such
other trucks as the Company may lease; (6) the agent agrees to carry
liability insurance and fire and theft insurance, the premiums on
which he must pay; (7) agent agrees to furnish a fidelity bond; (8)
the agent is responsible for the acts of his employees, and (9) termi-
nation of services by the agent is on 10 days' notice; discharge by
the Company may be at any time without notice, for cause, the
Company to be-thd sole judge.
The "B" station agent is in complete charge of his station. He
is paid on a commission basis. He controls his hours and the manner
in which he works with the qualification that he is accountable for a
certain volume of sales and profits. His duties are to check his
orders in the morning, load his "wagon," and deliver the mer-
chandise. He has direct contact with customers and is expected-
to be on the alert to sell additional merchandise. He accounts to
the main office for all monies received. As to sales efforts, he re-
ports to a salesman , who is his superior. This salesman's functions-
are to sell merchandise and to work with and train the agent. He
has authority to give orders to the agent and reports to the Com-
pany on the activities of the agent.
STANDARD OIL COMPANY (INDIANA) 1237
Workmen's Compensation and Social Security payments, 'for the
benefit of "B" station agents are made, by the Company.. "B" station
agents are included in the Company's retirement plan.
A "B" station agent hires helpers if his business warrants it.
He will either hire a helper to run his truck while he is engaged in
other duties, or if he puts on an additional truck, he will hire such
helper to operate it. He makes his own arrangements with his help-
ers as to hours, wages and working conditions, and himself pays
his helpers. He does not have to consult the Company when' he
hires or discharges such helpers. The record discloses, however, that
there are only about 45 helpers employed. It follows that in about
half of the "B" stations, the agent has no helper. In the remaining
stations there are one or more helpers.
There are about 20 commissioned drivers employed by the Com-
pany in the "A" stations, whom the 0. W. I. U. wishes to include in
the unit. The duties and conditions of employment of these drivers
are similar in many respects to those of the "B" station agents whom
the 0. W. I. U. desires excluded from the unit. The drivers enter
into employment contracts with the Company which are almost
identical with the contracts of the "B" station agents. They have
territory which is geographically divided by streets and work within
the confines of that territory. However, while making deliveries of
their orders, they may also "peddle." They carry and pay for lia-
bility, fire, and theft insurance, as do the "B" station agents. They
may also extend unauthorized credit but are held responsible for
any loss. They are subject to the control of the "A" station agent
in charge of the stations from which they operate.
To summarize, it -appears that the "B" station agents exercise a
degree of discretion and latitude in their work and have considerable
responsibility. In addition some of them are actually employers of
helpers. On the other hand, they have been covered by collective
bargaining agreements between the Company and the Council for
years, as part of a Division-wide unit; their duties and working con-
ditions are not readily distinguishable from those of the "A" station
commissioned drivers whom both unions desire to include in the
unit; most of them employ no helpers, and such helpers as are em-
ployed are in any event excluded from the unit by agreement. Under
all the circumstances we shall include "B" station agents in the unit.
2. Main office clerical employees
The 0. W. I. U. further contends that the clerical employees in
the main office at 1011 Fourth Street, Detroit, should be excluded from
-the unit because they are located at considerable distance from "A"
stations, receiving reports upon which they work "second hand" from
1238 DECISIONS OF• NATIONAL LABOR, RELATIONS BOARD
;the"A" station,, clerks who accumulate them as the result of actual
contact with operations. It also contends that these employees should
be represented by a separate organization. None of these employees
are members of O. W'. I. U. and it has not solicited them for
membership.'
1 As of March 31, 1942, there were 116 clerical employees at the Com-
pany's - main office . The main office is divided into departments and
the employees in these -departments are all engaged in clerical work.
Clerical employees at "A", stations are included in the unit by the-
stipulation between the u nions . Their work involves the-maintenance
of records in connection with sales , and ,the keeping of inventory
of stocks. Most of them have direct contact with the truck drivers
who handle the merchandise of the Company. They also have charge
of collection of monies that come in to the "A " stations and make
reports on those collections. They are responsible for the checking
in and out of the drivers and for the checking of merchandise in
accordance with the orders. Upon the driver's return, these clerks
must check to see that the driver has tickets to account for every-
thing which went out of the station 'on the truck originally. The
clerks actually gauge the trucks themselves . They make an inventory
of the merchandise in storage at least once a day. Their titles are
warehouse clerks and warehouse cashiers.
New employees are usually hired for "A" station clerical work,
which work is considered a training period for these employees,
.-who may be promoted or transferred to the main office in the-future.
,Main office employees may go to "A " stations for experience, or may
be transferred and placed in charge of accounting work there. ' Oc-
,casionally • new employees are hired for the main office and are trained
there for main office work. If an "A"' station empl'oyee is absent be-
cause of illness, the Company usually supplies a main office clerical
employee for the period of his absence. In connection with vacations
of the clerical employees. in the "A" stations, the Company- will
occasionally hire persons from ,' the outside : Main office employees,
whose. positions ' are eliminated due to seasonal decline, are usually
,transferred - t6 "A",',stations , -where they substitute for persons -on
-vacation.
The main office clerical employees and the clerical employees in the
"A" stations are under the charge of the Company's office manager.
Here, again, there is no clear difference between the duties and
working conditions of the main office clericliL employees and those
of clerks employed at the "A " stations whom both unions would
include. These employees , too; have for years been - covered by col-
lective bargaining contracts as part of a Division -wide unit. We
shall include them in the unit. -
STANDARD OIL COMPANY . ( INDIANA ) r 1239
We find that all "A?' station employees , including-commissioned
drivers, all "B" station agents, and all clerical employees of the
Company at its Detroit Sales Division , excluding all supervisory
employees , salesmen, and helpers of "B" station agents , constitutea
unit appropriate for the purposes of collective bargaining , within
the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The record discloses that the O. W. I. U. desires an election irre-
spective of the scope of the.nnit found appropriate by the Board.
We find that the question concerning representation which has arisen
can best be resolved by an election by secret ballot.
It appears from the record that fuel -oil drivers are laid off in the
spring, maintain their seniority , and are always recalled in the fall.
In accordance with the Company 's policy, these drivers are not con-
sidered temporary employees . The parties agree and we shall direct
that these drivers shall be eligible to vote. The parties further stipu-
lated that any person who has been . laid off for not more than 1
year at the time of our Direction of Election should be allowed to
vote. Such persons will be eligible to vote , within the category of
employees temporarily laid off.
We shall direct that the employees of the Company eligible to
vote in the election shall be those in the appropriate unit who were
employed during the pay-roll period immediately preceding the date
of our Direction of Election herein, subject to the limitations and
additions set forth in said Direction.
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
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Standard Oil
Company ( Indiana ), Detroit, Michigan , 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 , under the direction and super-
vision of the Regional Director for the Seventh Region, acting in
this matter as agent for the National Labor Relations Board and
subject to Article III, Section 9, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the date of this Direction, including fuel-oil drivers and any other
such employees as did not work during said pay-roll period because
they were ill or on vacation or in the active military service or
training of, the United States, or temporarily laid off, but excluding
any who have since quit or been discharged for cause, to determine
whether they desire to be represented by Oil Workers International
Union, affiliated with the C. I. 0., or by Central States Petroleum
Council, Local 102, for the purposes of collective bargaining, or by
neither.