Lyons Auto Supply

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-4164.-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.