Burton-Lingo Co.

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.