Enterprise Products Co.Download PDFNational Labor Relations Board - Board DecisionsMay 8, 1973203 N.L.R.B. 502 (N.L.R.B. 1973) Copy Citation 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Enterprise Products Company and Teamsters Freight & Tank Line Employees Local Union No . 988 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 23-CA-3990 May 8, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 12, 1972, Administrative Law Judge Alba B. Martin issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions ' of the Administrative Law Judge and to adopt his recommended Order. unit consisted of only those including drivers stationed at Respondent's only terminal near Houston, Texas, or wheth- er such unit must also include drivers in other parts of Texas and Louisiana; and whether the Union represented a major- ity in the smaller group in December 1970. The General Counsel and the Union now seek a bargaining order based upon cards signed before the Union lost an election on February 26, 1971. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the helpful briefs filed by the General Counsel, the Respon- dent Company, and the Union, I make the following: FINDINGS OF FACT 1. JURISDICTION Enterprise Products Company,2 Respondent herein, is a Texas corporation having its principal office in Houston, Texas, and a fractionation plant and truck terminal at Mont Belvieu , Texas , where it is engaged in the production, trans- portation , and marketing of liquid petroleum gas products such as propane and butane. During the 12 months prior to issuance of the complaint , a representative period, Respon- dent had gross revenues in excess of $500,000 and sold and shipped products valued in excess of $50,000 in interstate commerce . Respondent is now , and has been at all times material herein , an employer engaged in interstate com- merce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. i In agreeing with the Administrative Law Judge that the sole appropriate unit herein must include Respondent's employees at Eunice , Bossier City, Keller, and Odessa, we note additionally that Respondent 's operations and supervision are highly centralized, with a substantial degree of interchange or contact among the employees , and that working conditions and benefits are the same for all employees. DECISION STATEMENT OF THE CASE ALBA B. MARTIN. Administrative Law Judge: This pro- ceeding was tried at Houston, Texas, on September 6 and 7, 1972, upon a charge filed June 4, 1971, by the Union, and a complaint issued May 26, 1972. The question is whether Respondent violated Section 8(a)(5) of the Act' when it failed to bargain with the Union in December 1970 and January 1971. Issues litigated were whether an appropriate 1 "The Act" refers to the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. 11 THE LABOR ORGANIZATION Teamsters Freight & Tank Line Employees Local Union No. 988 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Surrounding Events A genuine self-organizational attempt arising out of a dispute with management was made on December 15, 16, and 17, 1970, by the employees and drivers at the Mont Belvieu Terminal and plant, herein called the Terminal, when the employees sought out the Union and 26 of them signed cards authorizing the Union to represent them. They talked among themselves of trying to sign up all of Respondent's employees, including its 13 drivers stationed elsewhere in Texas and Louisiana. None of the peripheral drivers was signed. Respondent countered this organizational movement with unfair labor practices, which were litigated before Ad- ministrative Law Judge (then Trial Examiner) Paul E. Weil. His Decision was issued on October 8, 1971, and was af- firmed by the Board on April 24, 1972.3 Litigated in these 2 'Me complaint named this company and also Enterprise Fractionation Company as parties respondent. At the hearing it developed that the latter company was dissolved and merged into Enterprise Products Company in December 1971 3 Cases 23-CA-3835, 3929, 23-RC-3550 203 NLRB No. 89 ENTERPRISE PRODUCTS COMPANY cases were violations of Section 8(a)(3) and (1) of the Act, but not of Section 8(a)(5). The Union and the General Counsel contend that the violations found therein were so serious and pervasive as to make the holding of a fair elec- tion improbable under the Gissel doctrine.4 The Union filed its petition for an election on December 16, 1970, and sent its demand letter to Respondent on De- cember 17. The election was held under a Stipulation for Certification Upon Consent Election entered into by the Company and the Union on February 26, 1971. The Union lost the election, on February 26, 1971, 43 to 3, with 13 challenged ballots. The Union's objections to conduct af- fecting the election were litigated before Judge Weil, and in his Decision , affirmed by the Board , the election was set aside and a new election ordered. Thereafter the Union withdrew its petition on May 24, 1972, and the complaint herein was issued May 26, 1972. B. The Question of the Appropriate Unit and the Union's Majority In my judgment the controlling issue in the case is wheth- er the 13 additional drivers stationed elsewhere than at the Terminal must be included in any appropriate unit which includes the drivers at the Terminal. The General Counsel conceded and the proof is absolute that if they are included the Union did not at anytime represent a majority. Upon the preponderance of the evidence, I conclude that the 13 additional drivers must be included. This is based upon the fact that all of Respondent's drivers shared a common com- munity of interest, that they had much more in common than not in common. At the material time, in the middle of December 1970, Respondent's drivers were stationed, some 30 of them, at the Terminal; 9 of them in Southern Louisiana at Eunice, Louisiana; 2 at Bossier City near Shreveport in Northern Louisiana; I at Keller near Fort Worth, Texas; and I at Odessa in West Texas. The dispute erupted between the Terminal employees and management, but as those employ- ees were organizing themselves into the Union they dis- cussed trying to sign up the additional 13 drivers also. A key General Counsel witness, Peter Linn, admitted on cross- examination that "our main concern was to get everybody." In fact, however, events moved rapidly and none of the 13 were signed up. In both the petition and the demand letter the Union included in its asserted appropriate unit only the employees and drivers "employed at" the Terminal. Re- spondent was willing to consent to an election only if the additional drivers and all dispatchers were included in the unit and the Union joined in the stipulation for consent election on that basis. The election was held in the larger group. In the instant case the General Counsel would include in an appropriate unit all production and maintenance em- ployees at the Terminal, including truckdrivers, dispatchers, and mechanics, but he would exclude the drivers and dis- patcher. at Eunice. I find that they should be included. All of Respondent's drivers hauled the same raw and ° N.L R B. v. Gissel Packing Company, 395 U.S. 575. 503 finished products, though over different routes and differ- ent parts of Texas and Louisiana. The 30 or so drivers at the Terminal loaded at points between Houston and Corpus Christi, Texas, between Beaumont, Texas, and Lafayette, Louisiana, and in the area of Tyler and Carthage, Texas; and about 80 percent of their delivery points were the "ma- jor refineries" around Houston, Texas City, and Beaumont- Port Arthur, Texas. The Eunice drivers loaded around Eun- ice and Lafayette, Louisiana, and delivered in the Beaumont area and at the Terminal. The Bossier City driv- ers loaded in Northern Louisiana, and made 30 percent of their deliveries at Tyler, Texas, 40-50 percent at Beaumont, and 20-30 percent at the Terminal. The Keller driver loaded in North Texas and Southern Oklahoma, and delivered at Keller. The Odessa driver made a very short run in that area. Respondent had only one equipped terminal, and this was the Terminal at Mont Belvieu, Texas, about 35 miles east of Houston and about 50-55 miles west of Beaumont and Port Arthur. The Terminal had office facilities, a dis- patch office, a truck repair shop unlimited in its capacity to repair trucks, and a drivers' waiting room. Seven employees, including a foreman and a parts man worked in the shop. Six employees worked at the fractionation plant. One of the several dispatchers was on duty at all times at the Terminal. Insofar as the drivers were concerned and in other re- spects, the Mont Belvieu Terminal was the center of Respondent's operations, and the Terminal Manager was a man of authority. Repairs to all of Respondent's trucks, wherever situated, were made there, or elsewhere as de- termined by the terminal manager. Drivers waiting around while their trucks were being repaired could commingle and talk. The 30 or so drivers stationed at the Terminal were dis- patched from there and, presumably, spent some time around the Terminal communicating with others. In the normal course of their work each Eunice driver was at the Terminal every 2 or 3 days and he was there for about 1 1/2 hours hooking up and unloading. Each Bossier City driver was at the Terminal about twice a week for 1 1/2 hours each time. About 20 loads per day arrived at the Terminal and only one truck was unloaded at a time. Waiting time was the norm. Drivers waiting around frequently mingled and talked. All of the Company's drivers had the same fringe bene- fits: The same insurance benefits, the same vacation rights. The terminal manager at Mont Belvieu scheduled vacations for all the drivers, as well as for all other employees. Any employee could arrange with the terminal manager to work during his vacation and receive vacation pay. All drivers were paid at the same mileage rate, except the driver at Odessa, whose trip was only 6 miles long, and who was paid according to the number of trips he drove. All other drivers drove much longer distances, some of them hundreds of miles. All drivers' trip reports and ICC reports were handed in or mailed to the Terminal, where the trip reports were checked for accuracy before being sent to the Company's accounting office in Arkansas. The cost-of-living allowance was the same for all drivers who, for company reasons, had to lay over at night. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Presumably the trucks stationed at the Terminal got most of their gas and oil at the Terminal. The drivers of the other trucks kept track of their gas and oil and tire expenses and turned these into the Terminal with their "field reports." In the event of an accident, the driver involved, wherever situated, would report the accident to the terminal manager at the Terminal and would make out an accident report and submit it to the terminal manager . Sometimes the terminal manager would go to the scene of the accident. Most of the Company's drivers, those from Mont Belvieu, Eunice, and Bossier City, also had opportunity to commin- gle and talk as they met at the "major refineries" at Beau- mont and Port Arthur, including the Texaco and BP refineries at Port Arthur. In the winter months, because of the normal congestion at this season, the average stop for unloading at these refineries took 2-1/2-3 hours. In the winter, when the events herein were occurring, Respondent went into each refinery with 20-25 loads per day, 15-20 of which were driven by drivers out of the Terminal, and the rest by drivers from Eunice and Bossier City. Each Eunice driver delivered to this area about once every other day, and the Bossier drivers delivered about 50 percent of their loads to this area. The history of the individuals at Eunice, Bossier City, Keller, and Odessa in December 1970 further shows that they shared the same community of interest with the other drivers in Respondent's system. Seven of the nine drivers at Eunice had previously worked for Respondent's president at another company and were hired by Respondent at its Mont Belvieu Terminal . The other two were hired in Eun- ice. All nine worked at the Terminal for several months before going to Eunice . Of the two drivers at Bossier City, one was hired by Respondent at the Terminal and was sent to Bossier on temporary assignment . The other lived in Bossier and was hired there . Respondent 's Keller operations started in November 1970. Since then Respondent has had several drivers at Keller, one at a time . All drivers at Keller have been sent up there from the Terminal. Respondent's Odessa job stopped in March 1971 and there was no need for a driver there until Respondent began work on a newjob there about June 1971. Meanwhile the Odessa driver was used at the Terminal and at Bossier City before he returned to the new job out of Odessa. In addition, to fulfill a need, another, additional truck and driver were sent from the Terminal to Odessa to work for a week in January 1971. Thus, most of Respondent 's peripheral drivers were trained by the Company at the Terminal, were sent to their stations from the Terminal, and have a continuing relationship with it. In addition to the above, for the last quarter of 1970 Respondent paid Texas unemployment compensation in- surance on the Eunice Louisiana drivers as well as the Texas drivers . It began paying Louisiana insurance on the Eunice drivers in February 1971. Suggesting that the Eunice drivers were in a separate community of interest was the fact that beginning during the organizational period and continuing since with a 2- month interruption in January and February 1971, one of the drivers at Eunice served also as a dispatcher through whom any change of routine was coordinated in the first instance . Two drivers were assigned to each truck, and they were referred to as "breaking" drivers. The trucks ran 24 hours per day, and routinely a driver approaching the end of his day's work called his "breaking" partner who met the trucks, usually in Eunice, and started on his day's work. If someone was ill or unavailable , the dispatcher-driver filled in for him or made other arrangements within the group of Eunice drivers; or, this failing, he called the dispatcher at the Terminal for help. The dispatcher-driver did his coordi- nating from phones at a truck stop in Eunice daytimes and at his home nighttimes . He had the same fringe benefits as the other drivers. It was normal for the dispatcher at the Terminal to assign a trip to a Eunice driver, but he would coordinate this with the dispatcher-driver at Eunice. Also, if the Eunice trucks could not for any reason handle particu- lar runs the Terminal dispatcher would have his Terminal trucks handle them , because some of them were making the same runs . The dispatcher-driver at Eunice sent the Eunice drivers' trip reports to the Terminal rather than the drivers themselves. In the light of the considerations establishing that all of Respondent 's drivers have enough in common to share a common community of interest, the facts set forth in the paragraph above do not establish that the Eunice drivers should not be included in the overall appropriate unit or that they alone or with the Bossier City, Keller and Odessa drivers constitute a separate appropriate unit. Not to in- clude the peripheral drivers would be giving controlling weight to the extent to which the employees organized, con- trary to the injunction of Section 9(c)(5) of the Act. The uncontradicted evidence was that when they were signing Teamster cards on December 15 and 16 the employees dis- cussed trying to sign up the peripheral drivers also; that they wanted to sign up all the drivers; but that they did not do so. They didn't sign up any of them. All of those who signed up worked at or out of the Terminal. Thus it appears, and I find, that all of Respondent's driv- ers, wherever situated, had more in common with each other than not in common and shared a common community of interest . All had the same skills , handled the same kind of raw materials and finished products with the same kind of trucks . All but one were paid at the same mileage rate of pay. Almost all were trained at the Terminal and assigned from there. Almost all of them were assigned two men to a truck and worked hours most suitable to the runs they were driving. Although the Eunice drivers automatically spelled each other and the Terminal and Bossier drivers were dis- patched by the Terminal dispatcher, all drivers were subject to assignments by the Terminal dispatcher and he or the Terminal Manager were consulted if anything went wrong. The Terminal dispatcher talked to the Keller driver about once a week and with the Odessa driver when the occasion called for it. All drivers but two had frequent opportunities to meet and discuss their common interest at the Terminal and at the refineries in Beaumont and Port Arthur. All had the same fringe benefits , including insurance and vacations, and all made out the same kind of trip reports which were turned into the Terminal for checking. All made out ICC reports and they too went to the Terminal. All had the same unemployment compensation insurance at the material time herein. Upon the entire record I believe and hold that all the ENTERPRISE PRODUCTS COMPANY 505 drivers must be included in a unit which includes the 30 Terminal drivers, and that a unit of the Terminal employees only which does not include the drivers at Eunice, Bossier, Keller, and Odessa, is not an appropriate unit. It follows that at no time did the Union represent a majority of the employees in an appropriate unit and that Respondent did not, therefore, violate Section 8(a)(5) and (1) of the Act. Therefore the complaint should be dismissed.' CONCLUSIONS OF LAW 1. Enterprise Products Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Freight & Tank Line Employees Local Union No. 988 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America ' In view of the findings and conclusions herein, it is unnecessary for me to resolve the question as to whether the Union represented a majority of the employees at the Terminal, excluding the peripheral drivers. is a labor organization within the meaning of Section 2(5) of the Act. 3. At no time material herein has the Union represented a majority of the employees in a unit appropriate for the purposes of collective bargaining. 4. At no time material herein has Enterprise Products Company refused to bargain collectively with a union which represented a majority of the employees in a unit appropri- ate for the purposes of collective bargaining. Upon the foregoing findings of fact and conclusions of law, upon the entire record considered as a whole, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:6 ORDER The complaint is dismissed in its entirety. 6In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations, be adopted by the Board and becomes its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. Copy with citationCopy as parenthetical citation