Vangas, Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1967

167 N.L.R.B. 805 (N.L.R.B. 1967)

VANGAS, INC. 805
Vangas, Inc. and General Teamsters Local 431,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
Petitioner . Case 20-RC-7409
October 16, 1967
DECISION AND DIRECTION OF ELEC-
TION
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended,
hearings were held before Hearing Officer Patricia
J. Kenny. The Employer and Petitioner thereafter
filed briefs in support of their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Petitioner seeks an election in a unit of
permanent full-time transport tank drivers em-
ployed at the Employer's five California terminals.
The Employer contends that the unit should be that
previously found appropriate by the Board:' All
employees of the Employer at its operations in
California, but excluding engineers, confidential
secretaries, guards, and supervisors as defined in
the Act. The Petitioner would participate in an elec-
tion in a unit larger than that requested.
The Employer is a California corporation en-
gaged in marketing liquid petroleum (LP) gas and
the sale, leasing, and maintenance of tanks which
hold the gas, appliances which burn it, and vehicles
which deliver it. The parent corporation, Vangas,
Inc., operates through 22 wholly-owned subsidi-
aries in California. Policy, service functions such as
bookkeeping and payroll, and central direction
Lome from the main office of Vangas, Inc., in
Fresno, California. There are 75 branches in
California, employing about 280 route salesmen,
servicemen (repairmen), and clerks. Route
salesmen from the branches deliver gas to the Em-
ployer's customers. There are five transport ter-
minals in California, from which the transport
drivers work (three are located near branches, and
the Employer intends to locate branches near all
terminals). Transport drivers haul LP gas from sup-
pliers to Vangas terminals and distribute it from ter-
minals to branches. They also do some contract
hauling for refining companies on a lease basis, and
deliver directly to those customers of the Employer
that have facilities to receive and store large quanti-
ties of gas at one time. Transport drivers operate
trucks with a 10,000-gallon capacity, while route
salesmen usually drive 1,500-2,500 gallon trucks.
In certain exceptional cases, involving only the Los
Angeles region, route salesmen, driving 5,000-gal-
Ion trucks, have picked up LP gas from suppliers.
The Employer contends that an overall unit of the
employees at its California branches, including
route salesmen, repairmen, and clerks in addition to
transport drivers, is the only appropriate unit. Ac-
cording to the Employer, all employees have similar
fringe benefits, participate in an integrated delivery
operation akin to a public utility because of
customers' reliance on regular service for heating
and other essential purposes, have a community of
employment interests, and meet frequently in the
performance of their duties.
Although they share some employment charac-
teristics with other groups, the record shows that
transport drivers are separated from other em-
ployees by different types of work, skills, training,
hours, locations, methods and amounts of payment,
and distinct lines of entrance into and advancement
in their employment. Transport drivers perform
over-the-road hauling, involving trips of up to 225
miles in large tractor-trailer rigs. They are based at
five terminals in California. Although they regularly
make deliveries to branches and spend approxi-
mately 2-1/2 hours unloading fuel, the Employer
requires them to stay by their trucks during the
process. Thus the only time they can join other em-
ployees at a branch is when they have time between
runs for a coffeebreak. Such contacts are further
limited by the likelihood that route salesmen and
repairmen would be away on their own duties even
during normal business hours; in addition, transport
drivers, who work on a 24-hour call basis, some-
times make deliveries at times when no other em-
ployees are on duty.2
Route salesmen, in contrast, schedule their own
trips, mainly to home consumers, and are responsi-
ble for selling the Employer's products and ser-
vices. The retail marketing division to which they
belong includes a sales promotion and training sec-
tion, apparently devoted to assisting them in the
sales aspect of their work. They work regular hours
and are paid on a salary basis. Their calls are nor-
Cases 20-RM-572 and 20-RC-5737, October 7, 1964 (not published 2 At the Employer's Fresno headquarters, transport drivers have a
in N LRB volumes) separate coffeeroom
167 NLRB No. 111
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mally made within a 50-mile radius of the branches
to which they are assigned.
Transport drivers are in the supply and wholesale
marketing division. They are hired and fired by ex-
ecutives and supervisors in that division, and given
all their assignments by dispatchers. The only
meetings they attend, dealing with safety practices
and the like, are within the division. In addition to
deliveries at Vangas branches, they make runs
between refinery and storage areas of various gas
suppliers, on a lease basis. About 10 percent of
their work is in deliveries to large customers, who
have storage facilities to handle full truckloads of
gas. No sales function is involved in these deliver-
ies; the transport drivers simply haul the product
to the assigned destination and unload. Transport
drivers are paid on a mileage basis, unlike other em-
ployees, and their average $11,000 return is well in
excess of the $9,000 earned by "top" route
salesmen . They have no fixed hours, working when
called by dispatchers. There is minimal interchange
between transport drivers and route salesmen, and
transfers are uncommon (recently, about one a
year). Some transport drivers have been promoted
to dispatching and supervisory positions in the
transport operation.
The Employer relies heavily on previous bargain-
ing history in an overall unit, and a 1964 unit deter-
mination by the Board.3 From 1956 to 1964,
California employees of Vangas (and its predeces-
sor corporation) were represented in a single unit by
an independent union . In 1964 the International
Union of Petroleum Workers, AFL-CIO, Local
No. 2, which claimed to be the successor to the in-
dependent union , participated with the present Peti-
tioner in a representation election. The Petitioner
asked for the same unit it has requested here, while
the Petroleum Workers sought an overall unit. The
Regional Director, after reviewing the facts, con-
cluded that the unit sought by the Petitioner might
have been appropriate if no union were seeking to
represent these employees in a broader unit, and
there had been no collective-bargaining history in
a broader, overall unit. On the basis of the Petrole-
um Workers' request for the broader unit, and the
uninterrupted 8-year history of bargaining in such
a unit, he found, however, that severance of the
transport drivers was not appropriate. The Board
affirmed. Both contending unions participated in
the election, but neither won a majority. There has
been no collective bargaining since.
We conclude in these circumstances that the
1964 determination, that the overall unit was ap-
propriate, is not controlling. While the 1964 deci-
sion rested on a continuous bargaining history,
there has now been a 3-year lapse in bargaining. No
union is now asking to represent workers in an
established, broader unit. In the interim, smaller
units have been found appropriate among the Van-
gas employees. Thus a Teamsters local was cer-
tified as the bargaining representative for
truckdrivers employed at a Vangas branch in 1966,4
and elections were ordered at two other Vangas
branches in 1967 for branch clerical employees,
route salesmen, and servicemen.5 Thus the former
overall unit has not only been abandoned by the
unions that formerly sought it, but has also been
broken by subsequent unit determinations. In addi-
tion, there was evidence that transport drivers are
separately represented in at least one other com-
pany in the LP gas distribution industry. The initial
1956 decision to conduct the election in an overall
unit -thus setting the stage for the overall unit bar-
gaining history that the Regional Director found
controlling in 1964-was based on an agreement by
Vangas' predecessor and the independent union.
Such consensual unit determinations are not con-
trolling when a proper petition is made for a dif-
ferent unit.6
In sum , we find that the transport drivers have
job patterns distinct from any other Vangas em-
ployees in geography, scheduling, nature of duties,
compensation, and other respects; and further that
their contact with other employees is infrequent. In
these circumstances we conclude that their in-
terests are sufficiently diverse from those of the
Employer's other employees to warrant their
establishment as a seprate appropriate unit where,
as here, there is no controlling bargaining history on
a broader basis. Therefore, we shall direct an elec-
tion in such a unit.
The Petitioner would exclude two dispatchers,
Fraley and Berry, as "management personnel."7
The Employer contends that these men should be
in the unit. These dispatchers do not hire or fire, nor
do they exercise any significant authority over
transport drivers other than dispatching them. The
basic decisions as to which drivers will get particu-
lar schedules for which they "bid" are made by
Wyatt, the superintendent of transport operations;
implementation by the dispatcher is "a routine, it is
automatic." Fraley and Berry earn about the same
amount as average transport drivers. We find no
evidence that Fraley and Berry exercise significant
independent judgment in their work, or have other
characteristics of managerial employees. Ac-
cordingly, we will include them in the unit.
We find the following employees of the Employer
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section
9(b) of the Act:
All transport tank drivers of the Employer in
' Supra, fn 1
4 Case 21-RC-9830
5 Case 31-RC-474
b Coca-Cola Bottling Company ofBaltimore , 156 NLRB 450
The parties stipulated that Beck, who also has dispatching duties,
would be excluded as a supervisor
VANGAS, INC. 807
California (Fresno , Los Angeles , Paso Robles, visors as defined in the Act.
Bakersfield , and Sacramento terminals) and i
transport tank driver dispatchers, but exclud - [ Direction of Election" omitted from publica-
ing all other employees , guards, and super- tion.]
" An election eligibility list, containing the names and addresses of all granted by the Regional Director except in extraordinary circumstances
the eligible voters , must be filed by the Employer with the Regional Failure to comply with this requirement shall be grounds for setting aside
Director for Region 20 within 7 days after the date of this Decision and the election whenever proper objections are filed Excelsior Underwear
Direction of Election The Regional Director shall make the list available Inc, 156 NLRB 1236
to all parties to the election No extension of time to file this list shall be