Lyons Auto Supply

National Labor Relations Board - Board Decisions

Oct 19, 1949

86 N.L.R.B. 633 (N.L.R.B. 1949)

In the Matter of J. W. LYONS, D/B/A LYONS AUTO SUPPLY , EMPLOYER
and GENERAL DRIVERS AND WAREHOUSE EMPLOYEES , LOCAL UNION
No. 581 , PETITIONER
Case No. 18-RC-41 64.-Decided October 19, 194.9
DECISION
AND
ORDER
Upon a petition duly filed, a hearing was held before Erwin A.
Peterson, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Gray].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.2
2. The labor organization involved claims to represent employees
of the Employer.
3. No question affecting commerce exists concerning the represen-
tation 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:
The Employer maintains a service and repair shop at Grand Forks,
North Dakota, selling automobile parts, tires, and gasoline, and em-
ploying, in connection with its business, truck drivers and driver-
salesmen. Truck drivers and some driver-salesmen operate Em-
ployer-owned trucks. Other driver-salesmen operate their own auto-
mobiles in their work.
The Petitioner seeks a unit of the Employer's truck drivers and
driver-salesmen who operate Employer-owned trucks, excluding
driver-salesmen who operate their own automobiles and supervisors.
• 1 The petition and other formal papers were amended at the hearing to show the correct
name of the Employer. -
2 Matter of Acorn Products Corporation , S3 N. L. R. B. 271.
86 N. L. R. B., No. 86.
633
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer contends that all driver-salesmen should be included
in the same unit.
At the time of the hearing, the Employer employed one truck driver
and eight driver-salesmen. All driver-salesmen sell and deliver mer-
chandise to the 'Employer's customers at their respective .places of
business. Driver-salesmen who use Employer-owned trucks, of whom
there are two, "specialize" in the sale and delivery of welding equip-
ment and solder ; however, they also sell and deliver other merchan-
dise. Driver-salesmen who use their own automobiles for their work,
of whom there are six, sell and deliver the various kinds of merchandise
offered for sale by the Employer, including welding supplies.
Driver-salesmen who use their own automobiles are engaged on a
full-time basis in the same general work as other driver-salesmen.
They receive a higher base pay to compensate for the use of their auto-
mobiles. The Employer directs and supervises these driver-salesmen
in the same manner in which it controls its other driver-salesmen.
There is no evidence in the record that driver-salesmen using their
own automobiles exercise independent judgment or discretion in the
performance of their duties. All driver-salesmen receive commis-
sions at the same rate. All spend the greater part of the working
day away from the Employer's place of business; all have virtually
the same interests and working conditions; and all operate under the
same "office supervision." Under these circumstances we are of the
opinion that driver-salesmen who use their own automobiles in their
selling activities are properly to be included in the same bargaining
unit with other driver-salesmen.3
We therefore find that the unit sought by the Petitioner, from which
driver-salesman who operate their own automobiles in their work
are excluded, is not an appropriate bargaining unit. Because it ap-
pears that the Petitioner has restricted its organizational activity
within the narrower unit sought in its petition and does not indicate
an adequate showing of interest among employees in the unit which
we have indicated is appropriate, we shall dismiss the petition without
prejudice.
ORDER
Upon the entire record in the case, the National Labor Relations
Board hereby orders that the petition herein be, and it hereby is,
dismissed without prejudice.
'Cf. Matter of The Borden Company, Case No . 16-RC-256, Supplemental Decision and
Direction , issued April 1, 1949 ; Matter of Rockford Coca-Cola Bottling Co., 81 N. L. R. 33.
579 ; Matter of Caskey Baking Company , 80 N. L . R. B. 374.