Socony-Vacuum Oil Co.

National Labor Relations Board - Board Decisions

Feb 7, 1944

54 N.L.R.B. 1164 (N.L.R.B. 1944)

In the Matter Of WADHAM'S DIVISION OF SOCONY-VACUUM OIL COiir-
PANY and SERVICE STATION ATTENDANTS, BULK PLANT AND GARAGE
EMPLOYEES, LOCAL UNION #982, A. F. OF L.
Case No. 13-R-2137.-Decided February 7, 1944
Messrs. J. H. Marshutz and Herbert T. Korth, of Milwaukee, Wis.,
for the Company.
Messrs. A. G. Goldberg and Joseph Caminiti, of Milwaukee, Wis.,.
for the AFL.
Miss Gladys Wallernan and Mr. Gregory J. Strike, of Green Bay,
Wis., for the CUA.
Miss Frances Lopinsky, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Service Station Attendants, Bulk
Plant and Garage Employees, Local Union #982, A. F. of L., herein,
called the AFL, alleging that 'a question affecting commerce had!
arisen concerning representation of employees of Wadham's Division
of Socony-Vacuum Oil Company, Milwaukee, Wisconsin, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Bernard Cushman, Trial_
Examiner. Said hearing was held at Milwaukee, Wisconsin, on De-
cember 3, 1943. The Company, the AFL, and Petroleum Workers,
Union of Wisconsin, affiliated with the Associated Unions of America,
CUA, herein called the CUA, appeared and participated. All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues..
The CUA moved to dismiss the petition on the ground that a contract
between it and the Company constitutes a bar to a present determin-
ation of representatives. For reasons hereinafter given, the motion
is denied. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were.
afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following
54 N. L. R. B., No. 178.
1164
WADHAM'S DIVISION OF SOCONY-VACUUM OIL COMPANY 1165
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Socony-Vacuum Oil Company is a New York corporation , having
its main offices in New York City. The Wadham 's Division of that
corporation is engaged in the manufacture and distribution of petro-
leum products , and operates over an area covering the States of
Wisconsin, Michigan , Minnesota , and Iowa. During the year ending
August 31 , 1943, the Division purchased approximately $9,000,000
worth of materials , 95 percent of which was shipped to it from points
outside the State of Wisconsin . During the same period the Division
sold approximately $15,000,000 worth.of products about 93 percent of
which was sold in the State of Wisconsin.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Service Station Attendants, Bulk Plant and Garage Employees,
Local Union #982, AFL, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees
.of the Company.
Petroleum Workers Union of Wisconsin, affiliated ,with Associated
Unions of America, CUA, is a labor organization admitting to mem-
,bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In 1938 the CUA' was certified by the Wisconsin Labor Relations
Board as the exclusive representative of all employees of the Com-
pany in four separate units: (1) filling station attendants, (2) plant
workers, (3) truck drivers, and (4) outside maintenance men. Since
that time the CUA and the Company have executed annual agree-
ments covering the employees in these four units. In July 1943 the
AFL requested recognition as the exclusive representative of the
plant workers of the Company. The Company replied that it would
recognize the AFL only after certification. The AFL thereupon
filed with the Board a petition for investigation and certification
which was dismissed by the Regional Director for the reason that
the AFL at that time did not submit sufficient evidence to indicate
that it represented a substantial number of employees of the Company
in the unit. On August 31, 1943, the then existing contract between
1 The name of the Union at that time and until the present name was adopted on Novem-
ber 6, 1943 , was Milwaukee County Independent Petroleum Workers Union of Wadham's
'Oil Company.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the CUA and the Company expired. On October 29, 1943, the AFL
filed its petition in the instant case and on October 30, the Company
received notice of the filing of said petition. Thereafter, on Novem-
ber 15, 1943, the Company and the CUA executed a contract covering
the plant workers, effective from September 1, 1943, to October 3.1:,
3944.
The Company and the CUA aver that the contract executed in No-
vember 1943 is a bar to a present determination of representatives,
contending that the Board's dismissal of the July petition resolved
all questions of representation raised by the AFL's request for recog-
nition; that the AFL was thereby precluded from further asserting
a claim of representation, and that the Company was then free to.
execute a binding contract with the CUA. There is no merit in these
contentions. The dismissal of the petition filed by the AFL in July
was without prejudice; the AFL has since that time submitted fur-
ther evidence of representation.2 Since the Company had notice of
claims of the AFL prior to the signing of the contract, said contract
is no bar to this proceeding.3
A statement of the Field Examiner introduced into evidence at the
hearing indicates that the AFL represents a substantial number of
employees in the unit hereinafter found appropriate.4
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.
IV. THE APPROPRIATE UNIT
The AFL in its petition requests a, unit consisting of "all Bulk Plant
employees of the Company at its Milwaukee Division, exclusive of all
supervisory employees, office, clerical, salesmen and truck drivers."'
The Company operates two plants in the city of Milwaukee, one t
lubricating oil and manufacturing plant, located at South 38th and
West Orchard Streets, known as the West Plant; the other a main
terminal and bulk plant located on Jones Island, known as the Jones
Island Plant. The plants are approximately 7 miles apart. The,AFL
would include in the appropriate unit only the employees at the West
Plant, while the Company and the CUA would include the loaders
2 See Matter of Geo. L . Mesker Co , 51 N. L. R. B. 528.
8 See Matter of Eecor, 46 N. L R. B. 1035.
4 The Field Examiner reported that the AFL submitted 24 designation cards, all of which
bore apparently genuine original signatures , 19 of which correspond with the names of
persons listed on the Company's pay roll for October 21, 1943, which contained the names
of 65 persons in the appropriate unit. The Company and the CUA assert that the Field
Examiner ' s report , on its face, refutes the AFL's claim of substantial representation. Since
the CUA's contracts provide for loss of seniority by employees who lose good standing
in the CUA, we find that the showing made by the AFL is sufficient. Sep. utter of Sayle.&
Finishing Plants, Inc., 49 N. L. R. B. 532.
WADHAM'S DIVISION OF -SOCONY-VACUUM OIL COMPANY 1167
and the checkers at the Jones Island Plant. The Jones Island Plant
was not acquired by the Company until 1940. At that time the Com-
pany and the CUA extended the plant workers' unit to include the
loaders and checkers at that plant.5 During the years 1941 and 1942,,
'14 employees were transferred from the West Plant to the Jones.
Island Plant, which employed 10 loaders and checkers during that
period. Each plant has a separate superintendent but all hiring is,
done at' the West Plant. The maintenance employees at the West
Plant perform the maintenance work at the Jones Island Plant.°
Since the loaders and checkers at the Jones Island Plant have been
represented in the same unit with employees in the West Plant from
the time that the former plant has been in operation, and in view of
the fact that the work of those loaders and checkers is similar to that
done by employees at the West Plant, we shall include them in the unit.
The AFL would exclude and the Company and the CUA would in-
clude foremen, assistant foremen, and powerhouse employees in- the.
unit. All these employees have been covered by the CUA contracts
with the Company.
There are about eight foremen employed by the Company. They
spend on an average of 75 percent of their time in manual labor but
are paid approximately $8 per week more than the ordinary employees.
All foremen have a right to recommend hire, discharge, and discipline..
The assistant foremen spend about 90 percent of their time in manual
labor. They substitute for the foremen in the latters' absences but at
no time do they have the right to make recommendations concerning
the status of employees. We find that the foremen are supervisory
employees and shall exclude them , from the unit, but that the powers,
and authority of the assistant foremen are not such as to warrant
placing them in the same category. We shall, accordingly, include
assistant foremen in the unit.
The powerhouse employees comprise a second-class engineer and
three firemen. The AFL's basis for their exclusion is the fact that
another AFL union has jurisdiction over such employees. In view
of the long history of bargaining in which the powerhouse employees
have been apart of the plant unit, we shall include them in the unit.
The Company employs seasonal drivers to supplement its staff of
truck drivers during its peak season in delivering fuel oil.. The
amount of time these drivers spend on the road varies from 4% to•
111/2 months. During the rest of the year such drivers are employed
in the plant performing production work. Prior to the time that
The other employees at Jones Island are clerical employees and truck drivers whom all
parties would exclude
6 The maintenance men involved in the unit are to be distinguished from the employees
represented by the CUA in a separate maintenance unit, herein referred to as outside
maintenance men The outside maintenance men service the filling stations
J168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company consolidated its pay roll they were carried on the plant
pay roll when working in the plant and on the drivers' pay roll when
driving. They are presumably paid according to the rate of the job
being performed. The Company and the CUA contend that the sea-
.sonal drivers are part of the truck drivers' unit and should be ex-
.eluded from the plant unit. The AFL insists that inasmuch as they
spend varying amounts of time in the plant, at least those who
,spend a major portion of their time in the plant should be included
in the plant unit. Although the Company contends that it considers
these employees as drivers, it is our opinion that, to the extent that
-they devote their working time performing the functions of plant
-workers, subject to the wage rates and working conditions established
through collective bargaining or otherwise for the plant workers,
they are necessarily a part of the plant unit. We hold that they are
included in the appropriate unit during such periods as they are
engaged in work in the plant. The question of the eligibility of the
,seasonal drivers to vote in the election will be considered in Section
V, infra.
We find that all plant employees of the Company in its Milwaukee
Division, including loaders and checkers at the Jones Island plant,
assistant foremen, and powerhouse employees but excluding all office
and clerical employees, salesmen, outside maintenance men, filling
station attendants, truck drivers, foremen, and all other supervisory
employees with authority to hire, promote, discharge, discipline or
otherwise effect changes in the status of employees or effectively
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 -(b) of
-the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
"has- arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth
in the Direction.
We are of the opinion, and we find, that only those seasonal drivers
who-during the past year or so much thereof as they have been in
-the Company's employ, have worked in the plant at least 50 percent
.Of their time have a sufficiently substantial interest in the conditions
of employment in the plant unit and in the outcome of the election
in that unit to entitle, them to vote in the election hereinafter
directed. Accordingly, seasonal truck drivers in the Company's
employ at the time of the election who have worked in the plant
WADHAM'S DIVISION OF SOCONY-VACUUM OIL COMPANY 1169.
more than 50 percent of their time (1) during the 12 months pre-
ceding the date of this Direction, or (2) during the period of their
employment if less than 12 months, are eligible to vote in the
election.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Wadham's Divi-
sion of Socony-Vacuum "Oil Company, Milwaukee, Wisconsin, an elec-
tion 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 Rela-
tions Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, and the findings in Section V, above, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work
during said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in pel ccon at the polls, but ex-
cluding any who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election,
to determine whether they desire to be represented by Service Station
Attendants, Bulk Plant and Garage Employees, Local Union #982,
A. F. of L., or by Petroleum Workers Union of Wisconsin, affiliated
with Associated Unions of America, CUA, for the purposes of col-
lective bargaining, or by neither.
CHAIRMAN MiLLrs took no part in the consideration of the above
Decision and Direction of Election.
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