The Dahl Oil Co., Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1975

221 N.L.R.B. 1311 (N.L.R.B. 1975)

DAHL OIL COMPANY 1311
The Dahl Oil Company ; Inc. and Local Union 305 of
Plumbers and Pipefitters/United Association of
Journeymen & Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, AFL-CIO, Petitioner. Case 1-RC-13894
December 31, 1975
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On July 29, 1975, the Acting Regional Director for
Region I issued a Decision and Direction of Election
in the above-entitled proceeding, in which he found
appropriate, in agreement with the Petitioner's
request, a unit limited to 14 oil burner servicemen
engaged in the installation and maintenance of oil
burning equipment at the Employer's Norwich,
Connecticut, location. Thereafter, in accordance with
Section 102.67 of the National Labor Relations
Board Rules and Regulations, as amended, the
Employer filed a request for review of the Acting
Regional Director's Decision on the grounds that, in
deciding to grant the unit limited to the 14 oil burner
servicemen sought, he made findings of fact which
are clearly erroneous and departed from precedent.
By telegraphic order dated August 28, 1975, the
request for review was granted and the election
stayed pending decision on review. Thereafter, the
Employer filed a brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review,
including the brief on review, and has decided to
affirm the Acting Regional Director's Decision and
Direction of Election (relevant portions of which are
attached hereto).' Accordingly, we shall remand the
case to the Regional Director for the purpose of
conducting an election pursuant to the Acting
Regional Director's Decision and Direction of
Election, except that the eligibility payroll period
therefor shall be that immediately preceding the date
of issuance of this Decision on Review.2
CHAIRMAN MURPHY , dissenting:
I cannot agree that a unit limited to oil burner
1 We agree with the Acting Regional Director that the recent decision in
R L Stott Company, and R L. Stott Heating and Aar Conditioning Company,
183 NLRB 884 (1970), controls the disposition of the instant case The
service employees in Stott were employed under conditions quite similar to
those present herein. There the Board found that the servicemen shared a
level of skill and working conditions which rendered them separate and
distinct from other employees. The Acting Regional Director here found,
and we agree, that application of Stott requires a finding that a separate unit
of servicemen is appropriate. Our dissenting colleague's attempt to
221 NLRB No. 207
servicemen is appropriate where, as here, the Em-
ployer is engaged in a small and highly integrated
operation in which all employees share common
working conditions and supervision, their work
duties overlap, and there is little difference in their
level of skill. In such circumstances, there is simply
no basis for finding that the oil burner servicemen
constitute a functionally distinct departmental unit.
The facts as found by the Acting Regional Director
and adopted by my colleagues clearly support and
compel a conclusion contrary to the one they reach.
Thus, in providing its, customers with two closely
related services, i.e., fuel delivery and servicing of oil
burners, the Employer employs only 36 employees:
the petitioned for unit of 14 servicemen engaged in
the repair and maintenance of oil burning equip-
ment; 15 oil delivery drivers; 4 maintenance employ-
ees; and 3 mechanics. All of these are under the
supervision of Employer's vice president, Richard
Burke, who is responsible for the overall control and
approval of hiring, layoffs, discharges, wage increas-
es, and overtime. All of them are paid the same
wages, use the same facilities, serve the same
probationary period, receive general wage increases
at the same time, work a basic 5-day, 40-hour week,
plus overtime, and are on call for emergencies. In
addition, no particular background or experience is
required of any employee prior to employment. All
job applicants are tested in the same manner and are
assigned wherever an opening exists. Neither the
servicemen nor any other employees undergo any
formalized training. Any skills acquired, in whatever
capacity, are learned on the job. Furthermore, the
facts establish that nonservice employees from all
classifications have transferred permanently to the
service department when openings have occurred .3
In addition to the above factors showing the close
relationship in terms, and conditions of employment
and employment opportunities, for all employees,
one of the most compelling considerations that
weighs against finding a separate unit of servicemen
to be appropriate is that the employees' work duties
overlap. Although there is conflict in the record with
respect to the extent to which that occurs, there is no
dispute that employees other than servicemen per-
form some service work, and that servicemen
perform some other function. Thus, drivers prime
distinguish the present case from Stott falls short of the mark. Nor do we
agree with her conclusion to the effect that otherwise Stott should be
overruled, as we are of the view, that the holding in Stott is correct
Accordingly, we agree with the Acting Regional Director that a unit limited
to the Employer's oil burner servicemen constitutes an appropriate
departmental unit
2 [Excelsior footnote omitted from publication 1
3 The absence of transfers in recent years is due to the fact that no
openings have been available in that department
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and start off new and out-of-order burners, bleed
pumps, and check relays and switches. The Employ-
er's maintenance crew is responsible for ,the cleaning
and adjusting of boilers on company premises, the
same type of work which servicemen perform for
customers. These maintenance employees also serv-
ice oil burners for mills in the area and for gasoline
stations which the Employer supplies. Similarly,
servicemen perform work normally done by employ-
ees in other classifications. Thus, servicemen change
the oil in their trucks, normally a mechanic's duty,
and perform electrical maintenance work around the
plant, normally a maintenance man's duty. During
the slow summer season, all classifications are used
to perform various tasks in order to provide them
with employment.4 Both drivers and servicemen have
occasion to answer no-heat calls when the cause of
the difficulty is not clearly ascertained. In those
situations when drivers are dispatched to customers
whose burners are not out of oil, they normally
perform some service work to remedy the difficulty.
Similarly, during cold winters, servicemen dispatched
to customers whose burners are not, in need of
servicing carry 5 to 10 gallons of oil used to,fill empty
tanks.
In view of all the foregoing, I believe that the
Acting Regional Director's and my colleagues'
reliance on R. L. Stott 5 is misplaced. While there are
certain similarities between that case and this, in
Stott the unit employees had a much higher degree of
skill than that required of the other Stott employees.
Essentially, the presence of that skill differential in
Stott rendered the former group of employees
distinct from the latter and sufficed to provide a
separate identity for them as an appropriate units In
the instant case, however, I cannot subscribe to the
supposition apparently drawn by my colleagues that
the servicemen here possess a level of skill far
exceeding that of the other employees, in the absence
of any showing that this is so . Rather the skills
required of the servicemen appear to be no greater
than those of the maintenance employees, and
perhaps not even greater than those of the drivers
and mechanics . In any event, any differences which
do exist are not sufficient to overcome the communi-
ty of interest shared by all the Employer's employees,
as evidenced by their ^ common terms and conditions
of employment, supervision, and overlapping duties.?
Thus, unlike the situation in Stott, the facts here do
not warrant finding a separate unit of servicemen to
be appropriate.8
Accordingly, since I do not find that the service-
men constitute a functionally distinct departmental
unit, I would dismiss the petition herein.
4 The Acting Regional Director found that this happens infrequently,
apparently relying on the testimony of two employees who so testified
However, Employer Vice President Burke , testified that this is a regular
occurrence.
a 183 NLRB 884 (1970).
6 A further distinction was the fact that the service employees in Stott
were paid different incentive rates from nonunit employees.
7 I note also that there is no history of collective bargaining for any
employees of the Employer, and that the unit found appropriate herein by
my colleagues is contrary to the industry practice in the area. Thus, the
service employees at each of the five other oil companies in the eastern
Connecticut area, all of which are similar in operation to this Employer, are
represented as part of facilitywide units.
8 In the event , however, that Stott may not be susceptible of distinction
from this case, and would be inconsistent with the result I would reach
herein, I would -overrule that decision
APPENDIX
The Employer is a Connecticut corporation en-
gaged in the retail and wholesale sale and distribu-
tion of fuel oil and the installation and service of oil
burning equipment. The Petitioner seeks a unit of
fourteen (14) servicemen who are engaged in the
installation and maintenance of oil burning equip-
ment., The Employer moved to dismiss the petition
on the grounds that (1) the employees petitioned for
are not a recognized craft, nor (2) do they constitute
a functionally distinct and homogeneous group of
employees entitled to separate representation. The
Employer's position is that the only appropriate unit
should include the fifteen (15) drivers who deliver oil,
four (4) maintenance men who maintain and repair
equipment at the Employer's facility, and three (3)
mechanics who repair and maintain the Employer's
vehicles. There is no history of collective bargaining
for any employees of the Employer nor does any
labor organization seek to represent, the employees
encompassed by the petition as part of a larger unit.
Although all employees are under ,the overall
supervision of Richard Burke, one of the Employer's
vice presidents, the servicemen are under the imme-
diate supervision of Louis Matheson, service depart-
ment supervisor. George Rice directly supervises the
drivers and Arnold Johnson the maintenance men and
mechanics."
All employees are given the same mechanical
aptitude test prior to employment, enjoy ' the same
benefits, use the same facilities , are paid at similar
wage rates, serve the same probationary period, are
given general wage increases at the same time, are all
entitled to a commission for bringing in new
business. All work a basic five-day 40-hour week,
plus overtime, and are on-call for emergencies.
Each department head evaluates the employees in
his respective department and makes up the sched-
ules for the employees in his department. Assign-
ments , during normal working hours, are given to
employees in each department by the department
heads, although emergency assignments and assign-
ments ' when employees are working on overtime,
such as Saturday mornings during the winter months,
DAHL OIL COMPANY 1313
are given by George Rice, the drivers' supervisor, or
Kenneth Dickey, the dispatcher.
No particular background or experience is required
for any employees prior to employment. Once hired,
employees are given on-the-job training to prepare
for an examination to- obtain particular licenses from
the state where required. There is no fixed appren-
ticeship program; however, it takes two years of on-
the-job training for servicemen to qualify to take an
exam for an oil burner installation and repair license.
Although'not clear from the record, it appears that
other classifications require less training to qualify
for license examinations.
The employees encompassed by the petition are
separately supervised and spend their time perform-
ing work not performed by other employees. Al-
though there was testimony that employees in other
classifications have become servicemen, the last time
this occurred was three or four years ago. During the
slow season, employees in all classifications are used
to perform various duties to provide them with
employment, but this happens infrequently. The
drivers may have the opportunity to start up an oil
burner after filling it, but do no installation,
maintenance, or repair work performed by the
servicemen. The servicemen, on occasion, change the
oil on their trucks, but this is work normally done by
the mechanics. In addition, during the busy oil
delivery season, mechanics drive delivery trucks.
There is no evidence that any other employees
perform the servicemen's work on any regular basis.
Although the servicemen and drivers both have
contact with customers, this occurs on different
occasions. Moreover, these two classifications do not
have substantial contact while performing their
normal functions.
In view of the above, especially the fact that the
servicemen are under separate immediate supervi-
sion, that their primary functions and duties are not
performed by others, and no labor organization seeks
to represent them as part of a larger unit, it is
concluded that the servicemen form a homogeneous
and functionally distinct departmental unit. Accord-
ingly, the unit as petitioned for is found appropriate,
and the Employer's motion to dismiss is denied. R. L.
Stott Company, 183 NLRB 884, 885; Sears, Roebuck
and Co., 160 NLRB 1435, 1437-38. It is not
necessary, therefore, to decide whether or not the
servicemen constitute a recognized craft unit.