Fresno Auto Auction, Inc.Download PDFNational Labor Relations Board - Board DecisionsOct 19, 1967167 N.L.R.B. 878 (N.L.R.B. 1967) Copy Citation 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fresno Auto Auction , Inc. and General Teamsters Local 431, International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers of America, Petitioner . Case 20-RC-7515 October 19, 1967 DECISION AND DIRECTION OF ELECTION BY MEMBERS BROWN, JENKINS, AND ZAGORIA Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Allen W. Teagle. Thereafter, only the Petitioner filed a brief in support of its position. 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 Hearing Officer's rulings made at the hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the National Labor Relations Board finds: 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 labor organization involved claims 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 all motor vehicles in the State of California and else- where. As a convenience to its dealer customers, 4343 North Motel Drive, and all detail shop em- ployees employed at its location at 300 South Fruit Avenue, Fresno, California, excluding the public relations man, office clerical employees, guards, and supervisors as defined in the Act. The Em- ployer does not contest the unit's composition ex- cept that he would exclude the deliverymen as su- pervisors. He contends, however, that the majority of the drivers and the detail shop employees are casual labor or temporary, part-time employees. The Employer is a California corporation en- gaged in the wholesale auctioning of used-motor vehicles for dealers engaged in the retail sale of motor vehicles in the State of California and else- where. As a convenience to its dealer customers, the Employer offers a free pickup and delivery ser- vice in transporting vehicles to be auctioned from the dealer's location to the auction yard and redelivery of unsold vehicles back to their initial lo- cation. The Employer also operates, at another lo- cation in Fresno, a so-called detail shop, where cer- tain vehicles to be auctioned are cleaned and other- wise refurbished prior to auctioning. This work is performed pursuant to dealer contracts. The auc- tion yard is a 7-acre tract upon which is located the auction barn, containing two auction rings and of- fice quarters, and surrounded by a parking area. An average of 12 to 15 drivers is employed weekly to move vehicles from the consigning dealers' lots to the auction barn and to return unsold units to the dealers following the auction. They are recruited, generally, by telephone from a list of drivers who have either previously worked for the Employer or have applied at the yard. A majority of drivers have appeared more or less regularly over a period of several weeks or months, but with ap- proximately one-third of them working in less than three weekly pay periods in the 6 months preceding the date of the hearing. The Employer does not know from week to week how many drivers will be available for the weekly auction or who they will be, apart from a relatively few of them who, on the basis of past records, may be expected to show up for work. Nor does he know how many he will need until a day or two before the auction. The number required will vary depending upon the number of cars consigned to auction by the dealers. The drivers are hired for work on Tuesday, Wed- nesday, and Thursday of each week, as needed, but with no commitment to work any particular number of hours or days. Some drivers, on occasion, have worked on other days of the week. The number of hours they work in a given week ranges from' 1 or 2 to upwards of 35. The average will approximate 15 to 20. They are paid on an hourly basis with no overtime pay. They receive no fringe benefits other than Federal social security credits and unemploy- ment compensation payments. Many of them hold regular full-time jobs elsewhere and many of them are housewives attracted by the opportunity of sup- plementing the family income. They are paid on Friday of each week and carried on the Employer's payroll as "drivers, part-time help." The drivers are taken to their assigned pickup points in two groups, usually, each group travelling in a so-called carryall operated by a "deliveryman" who is in general charge of getting the consigned vehicles to the auction yard. Additionally, the two deliverymen are responsible for the deportment of the drivers, the safety of the vehicles picked up, and for determining the most efficient route to be taken in distributing the drivers among the dealers' loca- tions. On occasion, deliverymen may take over vehicles disabled enroute to the yard and otherwise assist in transporting them to the auction site. When not so engaged, they perform other duties in and about the auction yard, including the driving of cars through the auction rings and sometimes driving them in from the consignor as any other driver would do. They also call drivers from their lists, as directed by their superiors, initial the drivers' 167 NLRB No. 124 FRESNO AUTO AUCTION, INC. 879 timecards, and report any driver misconduct. Their rate of pay is somewhat higher than that of the drivers. They are assigned to their jobs from the ranks of the drivers and are generally more ex- perienced in the work involved. Like the drivers, however, they are not hired on a permanent basis and their jobs may be taken over, in a particular week or weeks, by any of the more experienced drivers, if they do not report for work. The proposed unit would also include so-called starters who are employed in the auction yard on the day of the sale, to start vehicles with dead bat- teries or other defects preventing their immediate movement through the auction rings. At other times they may work as drivers or at odd jobs around the yard. They are not hired exclusively for this type of work but are selected from among the drivers for this particular duty. The detail shop employees, like the drivers, deliverymen, and starters, are employed only as needed and with no fixed schedule. The number employed in a given week will vary from 1 to 14, with the average amounting to 7 or 8. The shop was set up to service cars consigned for ultimate auction pursuant to a contract with a single large dealer. Upon completion of the contract, the shop was ex- pected to be closed until such time as another con- tract with the same dealer was executed. Detail shop employees do not drive cars or perform any other work in connection with the auction yard. They are engaged solely in washing, cleaning, buffing, painting engines, and making minor adjust- ments'to vehicles that are then driven to the auction yard, some 3 miles distant, by the drivers. Their hourly pay is somewhat higher than that of the drivers because of the greater skills involved, and some of them are paid on a piecework basis. The record clearly demonstrates that, while the number and identity of the drivers, deliverymen, and detail shop employees fluctuates from week to week, a substantial number of the group have re- ported and worked fairly regularly over a period of several months preceding the hearing. The record shows that approximately 120 to 125 drivers and deliverymen were employed between July 1, 1966, through April 10, 1967. During that period, some 70 of them worked in three or more consecutive weekly pay periods, with many of them working in 10 or more consecutive weeks. This is scarcely the pattern of a temporary, part-time, or casual work force, as contended by the Employer. The same is generally true with respect to the detail shop em- ployees where 9 out of 20 employed there between February 27 and April 10, 1967, worked in three or more consecutive pay periods. In determining the relative permanence or regu- larity of the employment in the proposed unit, we believe this fact outweighs those considerations having to do with the individual's freedom to deter- mine his own work schedule or to report for work intermittently. Similarly, the fact that they are car- ried on the payroll as part-time workers does not, in our view, alter the character of the work force as a cohesive group of individuals with a strong mutual interest in their working conditions. The Employer contends that the deliverymen are in fact supervisors and should be excluded from the unit. We cannot agree. While it is true they perform certain duties of a supervisory nature, they are, primarily, of a routine variety performed either at the direction or with the full knowledge of their im- mediate managerial supervisors. There was con- flicting testimony that they had authority to hire and fire drivers or at least make effective recommenda- tions of such actions. On the other hand, the full record discloses that the hiring they do consists of calling drivers when needed from lists maintained for that purpose, and doing so only upon the request of the general manager or other management offi- cial. They conduct no employment interviews, and apparently make no effective disciplinary recom- mendations. They make work assignments only to the extent of delivering drivers to their pickup loca- tions and telling them which cars to deliver to the auction yard. Their work has, at times, been per- formed by other drivers. The deliverymen, on occa- sion, have served as drivers in getting vehicles to the auction yard. Considering the entire record as to the status of the deliverymen, it becomes clearly apparent that their work is more closely analogous to that of leadmen or dispatchers.' On the basis of the foregoing, we find no merit in the Employer's contention that the deliverymen should be excluded from the unit. We will, therefore, include them. Among the eight full-time employees at the Em- ployer's auction yard is one, John Gaddis, described as a public relations man. Gaddis is on a regular salary with an added bonus arrangement and, although he does not work a fixed number of hours, he is expected to devote at least 40 hours a week to his job. His primary function is that of calling on dealers and prospective buyers, for which he is furnished a car and given an expense account. On auction days he may be called upon to serve as an auctioneer or to perform the necessary clerical work in connection with the sales. While having no voice in determining company policies, various aspects of his job call for the exercise of completely independent judgment. It is abundantly clear that there is no community of interest between Gaddis and other members of the proposed unit. Ac- cordingly, we will exclude the position of public relations man from the unit, as requested by the Petitioner. In view of the foregoing, we find the following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:2 'Sieves Sash & Door Co, 164 N LRB 46$. Eastern Greyhound Lines ' The unit description conforms to that set forth in the petition as 138 N LRB 8 amended at the hearing 880 DECISIONS OF NATIONAL All motor vehicle drivers, deliverymen, and star- ters employed by Fresno Auto Auction, Inc., at its auto auction yard located at 4343 North Motel Drive, Fresno, California, and all detail shop em- ployees of Fresno Auto Auction, Inc., at its detail shop at 300 South Fruit Avenue, Fresno, Califor- nia, excluding public relations man, supervisors, guards, and office clerical employees. With respect to voter eligibility requirements, the Petitioner proposes that the Board find eligible to vote all drivers and starters who have been em- ployed in 25 percent or more of the weekly pay periods in the quarter, presumably preceding the election, and who were employed in the pay period immediately preceding the Direction of the Elec- tion. The proposal does not cover detail shop em- ployees but there is no reason apparent from the record why their eligibility to vote should not be similarly determined. In the absence of any objec- tion to Petitioner's proposed eligibility formula by the Employer, we will adopt it with certain modifi- cations designed to reach the unit nucleus. In ac- See Hondo Drilling Company N S.L, 164 NLRB 416. In view of the nature of the Employer's employment practices, we direct that both the Union and the Employer cooperate to the fullest ex- tent with the Regional Director for Region 20 in the preparation and com- pilation of an election eligibility list containing the names and addresses of all eligible voters In addition. , we shall require that an election eligibility list, containing the names and addresses of all known eligible voters, be filed by the Employer with the Regional Director for Region 20 within 7 days after the date of this Decision and Direction of Election, and that a LABOR RELATIONS BOARD cepting the Petitioner's formula as modified, we are not unmindful of the fact that the Employer ex- periences a high turnover among the employees in the unit and that many of them are transients, more or less, who do not seek reemployment or who do so sporadically. The record establishes, however, that many of the unit employees work on a regular basis though they may not be hired as full-time regular employees. Many others have a history of substantial employment, indicating, in our judgment, the likelihood of future employment with the Employer. While we recognize the inherent dif- ficulties of defining or determining what constitutes a continuing employment interest , in the circum- stances here presented, we believe the formula as modified will meet the essential objective in cases of this kind, of giving full effect to the voting rights of those employees who have a reasonable ex- pectancy of future employment with the Employer.3 [Direction of Election4 omitted from publica- tion.] supplemental list, containing the names and addresses of the remaining eligible voters , be filed by the Employer with said Regional Director within 7 days after the issuance of the Notice of Election by the Regional Director No extension of time to file these lists shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with these requirements shall be grounds for setting aside the elec- tion whenever proper objections are filed Excelsior Underwear Inc , 156 NLRB 1236 Copy with citationCopy as parenthetical citation