Burton-Lingo Co.

National Labor Relations Board - Board Decisions

Aug 28, 1950

91 N.L.R.B. 5 (N.L.R.B. 1950)

In the Matter of BURTON-LINGO COMPANY, EMPLOYER and NEW MEXICO
STATE COUNCIL OF LUMBER AND SAWMILL WORKERS, AFL, PETI-
TIONER and TRUCK DRIVERS, CHAUFFEURS AND WAREHOUSEMEN AND
HELPERS, LOCAL 941, AFL, PETITIONER
Cases Nos. 33-RC-170 and 33-RC-190.-Decided August 28, 1950
DECISION AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act a. consolidated hearing was held before Harry W. Clay-
ton, Jr., hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The business of the Employer :
The Employer is a Texas corporation engaged in the lumber and
building materials business, and operates lumber yards at 31 locations,
and 1 wholesale jobbing house, all in the State of Texas. The value
of all materials purchased in 1949 amounted to $3,801,691.03, of which
34 percent was received from out of the State. The total sales of the
Company during 1949 amounted to $5,039,770.90, of which $1,376.35
represented sales to out-of-State buyers. The Company engages in no
manufacturing or processing operations. .
The present proceeding involves only the Employer's yard located in
El Paso, Texas. In the year 1949, the purchases of the El Paso yard
amounted to $208,657.61, of which $33,433.18, or . approximately 11
percent, was purchased from sources outside the State of Texas. Dur-
ing the same period, the Company's El Paso yard sales amounted to
$286,507.76.
We have heretofore generally held that enterprises of the type here
involved are essentially local in' character and have not asserted juris-
diction over them absent a substantial amount of out-of-State sales.'
We do not, however, believe that this Employer is an essentially
local enterprise. On the contrary, we are convinced that an enterprise
of the size of this Employer which causes over $1,000,000 worth of
material to move into interstate commerce annually, has a definite
' Hawkeye Lumber Company , 89 NLRB 1515; Everett Stein Company , 89 NLRB 496.
91 NLRB No. 12.
5
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impact upon interstate commerce and that an interruption of an Em-
ployer's operations by a labor dispute would have a substantial effect
upon such commerce. Accordingly, we find that the operations of the
Employer affect commerce within the meaning of the Act and that it
would effectuate the policies of the Act to assert jurisdiction in this
case.'
2. The labor organizations named below claim to represent em-
ployees of the Employer.
3. A question affecting commerce.exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act for the following reasons :
4. The Employer employs three employees to operate the Company's
trucks. These employees possess commercial drivers' licenses, and
spend about 50 percent of their time away from the yard making
deliveries to the Employer's customers. The other half of their time
these drivers do the same work as the yardmen, hereinafter discussed.
The Company also employs five yardmen who unload materials, help
store it away, assist the drivers to load orders on the trucks, accompany
drivers in making deliveries, help the drivers unload the trucks, keep
the stock in order, and clean up the premises. On about 75 percent of
the trips away from the yard, a yardman accompanies the driver to
assist in unloading the delivery. Although the yardmen drive the
trucks inside the yard, they do not have commercial driver's licenses,
and are not allowed to operate the Employer's trucks outside the yard.
The Petitioner in Case No. 33-RC-190, Truck Drivers, Chauffeurs,
Warehousemen and Helpers, Local 941, AFL, seeks a unit comprised
of only the Employer's truck drivers, having amended at the hearing
its petition which originally sought both "warehousemen (previously
described herein as yardmen) and drivers." The Petitioner in Case-
No. 33-RC-170, New Mexico State Council of Lumber and Sawmill
Workers, AFL, seeks a unit composed of all yardmen. On the other
hand, the Company alleges that because of the small size of the Com-
pany's El Paso operations and the overlapping functions of its em-
ployees, the units sought are not appropriate.
In view of the community of interests of the employees in the units
petitioned for, there is no basis for placing these employees in separate
bargaining units. On the contrary, the similarity of working condi-
tions and the overlapping functions of the yardmen and the drivers
impel us to the conclusion that only a unit inclusive of both categories
of employees is appropriate.'
z To the extent that it is inconsistent with our decision herein, the decision in the
IIatekeye Lumber case, supra, is hereby overruled.
3 See Edward Hines, Inc., 90 NLRB No. 168.
BURTON-LINGO COMPANY 7
However, the petition of Local 941 , as originally filed, is sufficiently
broad to include both - categories of employees ; furthermore it appears
that Local 941 has produced a showing of interest adequate to support
a petition covering such a unit . We shall, therefore, direct an election
among the employees of the Employer in the following unit :
All truck drivers and yardmen employed by the Burton-Lingo Com-
pany at its El Paso Yard , excluding all other employees, supervisors,
and Guards within the meaning of the Act.
[Text of Direction of Election omitted from publication in this
volume.],
CHAIRMAN HERZOG and MEMBER MURDOCK took no part in the con-
sideration of the above Decision and Direction of Election.