Standard Oil Co. (Indiana)

National Labor Relations Board - Board Decisions

Feb 6, 1945

60 N.L.R.B. 452 (N.L.R.B. 1945)

In the Matter Of STANDARD OIL COMPANY (INDIANA) and INDEPENDENT
UNION OF CARTAGE AND COMMISSION AGENTS AND DRIVERS OF THE
MILWAUKEE DIVISION OF STANDARD OIL COMPANY (INDIANA)
Case No. 13-R-736.-Decided February 6, 1945
Mr'. Merwin Bristol, of Chicago, Ill., for the Company.
Mr. Carl N. Hill, of Madison, Wis., for the Independent.
Mr. Alfred G. Goldberg, of Milwaukee, Wis., for Locals 95 and 43.
Mr. Thomas A. Ricci, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by Independent Union of Cartage and
Commission Agents and Drivers of'the Milwaukee Division of Stand-
ard Oil Company (Indiana), herein called the Independent, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Standard Oil Company (Indiana), Mil-
waukee, Wisconsin, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon-due no-
tice before Leon A. Rosell, Trial Examiner. Said hearing was held
at Milwaukee , Wisconsin, on December 13, 1944. The Company; the-
Independent, General Drivers and Helpers, Local 95, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, A. F. L., herein called Local 95, and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 43, A. F. L., herein called Local 43, appeared and
participated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing oh the issues. The Trial Examiner's rulings made at the,
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
60 N. L. R. B., No. 87.
452
STANDARD OIL COMPANY (INDIANA) 453
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 an Indiana corporation
engaged in the manufacture, distribution, and sale of petroleum
products in 15 -States of the United States. This proceeding solely
concerns certain of the Company's distribution employees in its Mil-
waukee Sales Division in the State of Wisconsin. ' During 1943 the
net sales of the Milwaukee Sales Division were in excess of $10,000,000,
and substantially all the products which it distributed during that
period were manufactured at and received from the Company's
refinery at Whiting, Indiana.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Independent Union of Cartage and Commission Agents and Driv-
ers of the Milwaukee Division of Standard Oil Company (Indiana) is
a labor organization admitting to membership employees of the
Company.
General Drivers and Helpers, Local 95, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
and International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 43, both affiliated with the Ameri-
can Federation of Labor, are labor organizations admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Independent
as the exclusive 'bargaining representative of certain of its employees
until the Independent has been certified by the Board in an appropriate
unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Independent represents a substantial number
of employees in the unit hereinafter found appropriate.'
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.
1 The Field Examiner reported that the Independent submitted 83 designations of author-
ity and that there are 120 employees in the unit it alleges to be appropriate.
The Field Examiner further"reported that Local 95 submitted 4 authorization cards and
that there are 4 employees in the unit it alleges to be appropriate . He also reported'that
Local 43 submitted 3 designation cards and that there are 3 employees in the unit which
Local 43 alleges to be appropriate.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT ; THE DETERMINATION OF REPRESENTATIVES
The Independent contends , and the Company agrees , that all com-
mission agents and commission drivers employed in-the Company's
Milwaukee Sales Division constitute a unit appropriate for collective
bargaining purposes . --Local 95 contends that all commission drivers
in Kenosha County, part of the territory covered by the Milwaukee
Sales Division , constitute an appropriate unit apart from the remain-
ing employees of the division ; it does not object to the inclusion within
its proposed unit of commission agents in Kenosha County. Simi-
larly, Local 43 seeks a separate unit of commission agents and com-
mission drivers in Racine County, also a part of the Milwaukee Sales
Division:
In its Milwaukee Sales Division , the Company maintains a number
of storage and distribution depots, called "A," "B," and "C" stations.
"B" stations , of which there are 97 in the Milwaukee Sales Division,
are small buildings adjacent to 4 or 5 tanks having a capacity of 10,000
to 17,000 gallons and are usually located on the outskirts of a town.
_ Thest "B" stations are operated by commission-agents who receive
carload deliveries of gasoline and other petroleum products and sell
directly to consumers . The Company leases the property on which the
"B" stations are located and owns the equipment used. The chassis of
the trucks which are used for deliveries . belong to the "B" station
agents and the body to the Company . "A" stations are large , and "C"
smaller, bulk stations, staffed entirely with salaried employees ex-
cept for commission drivers. In the Milwaukee Sales Division, the
Company employs 26 commission drivers who distribute its products
on the same basis as the commission agents except that they do not
operate their own stations , but fill up at "A'-' and "C " stations. In all
other respects, commission agents and commission drivers have virtu-
ally similar duties, skill , and working conditions.
The first labor organization that sought to represent the commission
agents and commission drivers in the Milwaukee , Sales Division on
a division-wide basis was the unaffiliated Cartage and Commission
Employees Union. In 1938 that organization achieved a working
agreement with the Company in which it was recognized as the "bar-
gaining agency for all employees who are represented by the Union in
the Milwaukee Division of the Company ." It never reached an agree-
ment with the Company regarding -wages. Thereafter , partly be-
cause of an "adjustment downward" in the rate of compensation of
certain commission employees in the division , a strike was called in
i The record discloses that the Company employs 123 commission agents and commission
drivers in the entire division, and that of these, 4 commission drivers and 1 commission
agent are employed ln5Kenosha County, and 2 commission=drivers and 3 commission agents
are employed in Racine County.
STANDARD OIL COMPANY (INDIANA) 455
August 1940. Out of this unsettled situation, International Brother-
hood of Chauffeurs, Teamsters, Warehousemen and Helpers, Local 442,
A. F. L., herein called Local 442, emerged. The strike was settled,
the Company made certain agreed reinstatements and back payment
of wages, and Local 442 entered into an agreement with the Company
for a consent election covering all commission agents and commission
drivers in the Milwaukee Sales Division. The election was held under
the supervision of a Board Regional Director and resulted, on October
30, 1941, in the designation by the Regional Director of Local 442 as
--bargaining representative of the employees in the unit agreed upon
between Local 442 and the Company. Subsequently, there were dis-
putes between the parties regarding terms of a proposed bargaining
agreement. Despite numerous conferences and a complete arbitration
proceeding, Local 442 and the Company never settled their differences
and never executed a collective bargaining contract. In 1944 the In-
dependent made its appearance among the employees of the division.
During all this time, and as far back as 1934, the commission drivers
in Kenosha County were active members of Local 95 and the commis-
sion drivers and commission agents in Racine County were active
members of Local 43. Local 95 attempted to bargain with the Com-
pany in 1936 on behalf of its commission drivers, but without success.
No members of these two small groups joined the unaffiliated Cartage
and Commission Employees Union. Their rates of pay were not
changed by` the Company in 1940, as were those of other similar em-
ployees in the Division. They, therefore, did not join in the 1940
strike. Nor did 'the members of Local 95 and Local 43 ever become
members of Local 442. Instead, they sent their representatives to the
various bargaining conferences which were held between Local 442
and the Company after the consent election, and two of their members
attended, and testified at, the various hearings in the arbitration pro-
ceeding that followed. Although the Company checked off dues from
wages of employees who individually authorized such action and for-
warded its monthly check to Local 442 for all such deductions, Locals
95 and 43 had separate agreements with Local 442, whereby Local 442
sent to each of them an amount equal to the check-offs authorized by
members of Local 95 and Local 43.
The Independent and the Company argue that the foregoing facts
reveal a pattern of collective bargaining on a division-wide basis which
precludes the establishment of a smaller unit or units, and that the
Milwaukee Sales Division is indivisible because of its integration.
Clearly, the record does not indicate that previous attempts to bargain
on a division-wide basis have tended to, stablize labor relations among
the commission''einployees involved herein. The Company's cottract
with the Cartage and Commission Employees Union did not accord
to that organization recognition as the representative of all commis-
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion employees in the division, and is therefore not controlling.3 Nor
do the Company 's negotiations with Local 442 establish a successful
pattern of labor relations, since no written contract ever resulted.4
With respect to other classifications of employees , there has been suc-
cessful bargaining'with the Company predicated upon units similar
to those sought by Local 95 and Local 43 herein. Since April 1942, the
Company has had a contract with Local 95 covering all salaried truck
drivers and warehousemen in Kenosha County', and , since March 1942,
it has had a separate contract with Local 43 covering the same classifi-
cation of employees in Racine. County. In addition , the record dis-
closes three other instances of successful collective bargaining premised
on units of employees carved out of the Milwaukee Sales Division.
Thus, for several years the Company has had (1) a contract covering
salaried truck drivers in the city of Milwaukee , ( 2) an agreement
covering salaried warehousemen and maintenance men in the city of
Milwaukee , and (3 ) another agreement covering salaried truck drivers
and warehousemen in the city of Madison.5
In view of all the foregoing facts, the commission agents and com-
mission drivers in Kenosha County, and those employed in Racine
County, may comprise two separate appropriate units, or the commis-
sion agents and commission drivers in the entire Milwaukee Sales Divi-
sion, may comprise n single unit for collective bargaining purposes.
Under these circumstances , we shall defer our determination of the
appropriate unit or units . Such determination shall depend, in part,
upon the results of the elections which we hereinafter direct.
We shall direct elections by secret ballot to be conducted among the
employees of the Company in the following groups who were employed
during the pay-roll period immediately preceding the date of our
Direction of Elections , subject to the limitations and additions set
forth therein : e
(1) All commission agents and commission drivers employed by the
Company in Kenosha County ; Wisconsin , excluding all supervisory
employees with authority to hire, promote , discharge , discipline, or
otherwise effect changes in the status of employees , or effectively rec-
ommend such action, to determine whether they desire to be repre-
sented by Independent Union of Cartage and Commission Agents and
Drivers of the Milwaukee Division of Standard Oil Company (In-
diana ) or by Local 95, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , A. F. L. for the
purposes of collective bargaining , or by neither;
3 See Matter of Sangamo Electric Company, 59 N L R B 364
4 See Matter of E. I DuPont de Nemoars and Company, 58 N. L. R. B 514
5In a number of other sales divisions the Company apparently has had successful bar-
gaining relations on the basis of units covering commission agents and commission drivers
on a division-wide basis.
9 Local 95 and Local 43 request that their names appear on the ballot as set forth in the
Direction of Elections. -
STANDARD OIL COMPANY (INDIANA) 457
(2) All commission agents and commission drivers employed by the
Company in Racine County, Wisconsin, excluding all supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend
such action, to determine whether they desire to be represented by In-
dependent Union of Cartage and Commission Agents and Drivers of
the Milwaukee Division of Standard Oil Company (Indiana), or by
Local 43, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, A. F. L., for the purposes of collec-
tive bargaining, or by neither ;
(3) All remaining commission agents and commission drivers em-
ployed by the Company in its Milwaukee Sales Division, Wisconsin,
excluding all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, to determine whether
or not they desire to be represented by Independent Union of Cartage
and Commission Agents and Drivers of the Milwaukee Division of
Standard Oil Company (Indiana),. for the purposes of collective
bargaining.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, 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 Com-
pany (Indiana), Milwaukee, Wisconsin, separate elections 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
supervision of the Regional Director for the Thirteenth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the following employees who were employed during the
pay-roll period immediately preceding the date of this Direction, 'in-
eluding employees who did not work during said pay-roll period be-
cause they were ill or on vacation or temporarily laid off, and including
employees in the armed forces of the United States who present them-
selves in person at the polls, but excluding those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the elections :
(1) All commission agents and commission drivers employed by the
Company in Kenosha County,- Wisconsin, excluding all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the -status of employees, or effectively
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend such action, to determine whether they desire to be repre-
sented by Independent Union of Cartage and Commission- Agents
_and Drivers of the Milwaukee Division of Standard Oil Company
,(Indiana), or by Local 95, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L., for the
purposes of collective bargaining, or by neither;
(2) All commission agents and commission drivers employed by the
-Company in Racine County, Wisconsin, excluding all supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend
such action, to determine whether they desire to be represented by
Independent Union of Cartage and Commission Agents and Drivers
of the Milwaukee Division of Standard Oil Company (Indiana), or
by Local 43, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A. F. L., for the purposes of
collective' bargaining, or by neither;
(3) All remaining commission agents and commission drivers em-
ployed by the Company in its Milwaukee Sales Division, Wisconsin,
excluding all supervisory, employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em
ployees, or effectively recommend such action, to determine whether
or not they desire to be represented by Independent Union of Cartage
and Commission Agents and Drivers of the Milwaukee Division of
Standard Oil Company (Indiana), for the purposes of collective-
bargaining.