Herboth Tractor Co.

In -the Matter of HERBOTH TRACTOR Co., EMPLOYER and OPERATING ENGINEERS, LOCAL UNION No. 3 OF INTERNATIONAL UNION OF OPERATING ENGINEERS , PETITIONER In the Matter Of WEAVER TRACTOR CO., EMPLOYER and OPERATING ENGINEERS, LOCAL UNION No. 3 OF INTERNATIONAL UNION OF OPERATING ENGINEERS, PETITIONER In the Matter Of ZUMWALT, TRACTOR & EQUIPMENT Co., EMPLOYER and OPERATING ENGINEERS , LOCAL UNION No. 3 OF INTERNATIONAL UNION OF OPERATING ENGINEERS, PETITIONER Cases Nos. 2O-RC-30, 20-RC-31, and 2O-RC-32, respectively.- Decided August 31,1948 DECISION ® AND DIRECTION OF ELECTIONS Upon petitions duly filed, a hearing in this consolidated case was held before a hearing officer of the National Labor Relations Board.,. The hearing officer's rulings made at the hearing are free from preju- dicial 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-man panel consisting of the undersigned Board Members.* Upon the entire record in this case, the Board finds : I. THE BUSINESS OF THE EMPLOYERS Weaver Tractor Co. is a California corporation selling at retail and servicing Caterpillar, John Deere, and similar equipment. During 1947 it purchased more than $400,000 of Caterpillar equipment through a California distributor, and more than $200,000 of John Deere equip- ment in like manner. This Employer's sales of more than $3,000,000 1 The successor to the Herboth Tractor Co . was not represented at the hearing on March 8, 1948, and on March 16 the Board granted the Petitioner permission to withdraw its petition, and closed Case No. 20-RC-30. *Chairman Herzog and Members Reynolds and Murdock. 79 N. L. R. B., No. 58. 431 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were made within the State, except for a small portion estimated as 1 to 5 percent. Zumwalt Tractor & Equipment Co. Is a partnership doing business in California and consisting of I. G. Znmwalt, George R. Zumwalt, Lionel Zumwalt and I. G. Zumwalt, Jr. It is engaged in the same type of business as Weaver. Its total purchases of Caterpillar and John Deere equipment in 1947 exceeded $1,000,000, of which less than 5 percent were orders placed direct to the factory rather than through a California distributor. This Employer's total sales during 1947 exceeded $2,225,000 and all were made within the State. Both Employers sell largely to farmers, although some sales are made to construction companies and Government agencies, and Weaver sells to loggers. Employees, of Weaver's branch office at Woodland and Zumwalt's^main office-at Colusa are concerned in these proceeditf . In view of the record in these cases and our holding in Matter of Liddon White Ti wk Coinnpany, Inc.. 76 N. L. R. B. 1181, we find that the Employers are engaged in commerce within the meaning of the National Labor Relations Act. ° II. THE ORGANIZATION INVOLVED It The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTIONS CONCERNING REPRESENTATION The Zumwalt Tractor & Equipment Co. refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. The Weaver Tractor Co. urges as a bar to the proceeding involving it a contract of indefinite duration, executed January 21, 1946, between it and the Tractor & Equipment Employees Association. The Asso- ciation did not intervene; although it was served with notice of the hearing. Inasmuch as the contract in question had been in effect for more than 2 years at the time of the hearing, it constitutes no bar to the petition in case No. 20-RC-31.2 We find that questions affecting commerce existed concerning the representation of employees of both Employers, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 2 Matter o f Filtrol Corporation 74 N L R B 1307 HERBOTH TRACTOR CO. IV. THE APPROPRIATE UNITS 433, The,Petitioner hr Case No. 20-Rc-31 requests a unit of shop and parts department employees at the Woodland , California, branch of Weaver. Weaver would have the unit include all its employees except supervisors, in accordance with its agreement with the Tractor & Equipment Employees Association referred to in Section III 3 Thus, Weaverwould include salesmen and office clerical employees in the unit. Weaver has 18 employees in its Woodland shop and 9 in the parts department. Shop employees include mechanics , helpers, and ap- prentices , welders, machinists, and set-up men. These employees work interchangeably at repair and assembly of equipment and are paid on an hourly basis. The parts-department employees unpack and store parts, fill orders, and account for parts . They are paid bi-weekly on the basis of a 40-hour week. Only a wire netting divides the parts department and repair shop , and employees front both sometimes sub- stitute for salesmen , although commissions on such sales go to the absent salesmen . A stenographer and 2 bookkeepers do office work and help out on shop accounting. There are 2 salesmen who work in the vicinity of Woodland ' on a salary and commission basis. They have some knowledge of mechanics and make adjustments to equip- ment in the field when necessary. In the absence of a compelling argument to the contrary , the Board will not in this case depart from its practice of excluding clerical em- ployees and salesmen from a unit of manual'workers 3 We find that the unit of shop and parts department employees requested in Case No. 20-RC-31 is appropriate.' In Case No. 20-RC-32 the Petitioner requests a unit of shop and parts department employees at the headlluarters o-f Zumwalt at Colusa, California . Znnlwalt would prefer a unit limited to shop employees. At Colusa it has 5 5) mechanics who do work similar to Weaver's shop employees and 8 employees Iii the parts department , Iuciudmlg 2 girls who do typing, ordering, and record work. Six meu do the physical work in connection with storage and distribution of parts . The other non-supervisory employees are 9 office workers and 4 salesmen. The mode of paying employees and the type of work are the same as in the Weaver establishment. Zumwalt suggested no reason for exclud- ing parts-department employees , and we think that a unit consisting of employees in both departments, excluding the 2 girls in the parts 3 The contract specifies no unit , merely referring to "employees " +Matter of The Boatman Co., 62 N L R B 1112 Matter of Kallahe, and Mee, Inc. 75 N L. R B 802 , Matter of Schiefin ( Co , 68 N L R. B 671 Matter of International Harvester Co 72 N I, R B 1002 5 Matter of Ferguson -Steere Motor Co , 76 N I, R B 1122 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD departments who are clerical workers, is appropriate in this case as well as the Weaver case. We find that (1) all shop and parts-department employees of the Weaver Tractor Company at its Woodland Branch, excluding clerical employees, salesmen'and supervisors; and (2) all shop and parts de- partment employees of the Zumwalt Tractor & Equipment Co. at it's Colusa office, excluding clerical employees, salesmen, and supervisors, each constitutes a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with Weaver Tractor Co. at Woodland, California, and with Zumwalt Tractor & Equipment Co. at Colusa, California, separate elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twentieth Region, and subject to Sections 203.61 and 203.62, of National Labor Relations Board Rules and Regulations- Series 5, among the employees in the units found appropriate in Sec- tion IV, above, who were employed during the pay-roll period immedi- ately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by Operating Engineers Local Union No. 3 of International Union of Operating Engineers, for the purposes of collective bargaining. 6 Zumwalt agreed with the Petitioner at the hearing to exclude the 2 girl employees in the parts department if the Board should find the remaining parts-department employees were properly within the unit.