Fresno Auto Auction, Inc.

National Labor Relations Board - Board Decisions

Oct 19, 1967

167 N.L.R.B. 878 (N.L.R.B. 1967)

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