Standard Oil Co. (Indiana)

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.