Culligan Soft Water Service

2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and recommendations and finds no merit in the Employer's objec- tions and exceptions.' Accordingly, as the tally shows that the Petitioner has obtained a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representative of the employees in the appropriate unit. [The Board certified the United Steelworkers of America, AFL- CIO, as the designated collective-bargaining representative of the employees at the Employer's Corpus Christi, Texas, facility in the unit found apprdpriate:] 1In the objections referred to the Board by the Regional Director , the Employer con- tends, in substance, that the Board did not have the matter before it when it directed that the impounded ballots be opened and counted , that this action was inconsistent with the Board's order impounding the ballots ; that, because of the time lapse and turnover of personnel, the ballots no longer represented the true wishes of the employees ; and that by the Board's action the Employer was placed at a disadvantage in the pending election at its San Antonio plant. We find no merit in these contentions and therefore overrule the Employer 's objections. John J. Harris & Scotty Harris, d/b/a Culligan Soft Water Service and Chauffeurs, Teamsters & Helpers, Local 186, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers , of America, Petitioner. Case No. 21-RC- 9018. October 19, 196, DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hearing Officer Max Stein- feld. 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer sells, leases, and services water-softening equip- ment under a franchise from Culligan, Inc., a corporation engaged in a nationwide operation whose main plants and offices are in North- brook, Illinois. The Employer contends that the Board should not as- sert jurisdiction herein. In the calendar year 1963 the Employer's gross sales were approxi- mately $400,000, of which about $20,000, or approximately 5 percent, were to business and commercial establishments. These sales fall within the Board's established definition of "nonretail" operations- 1 This case was transferred to the Board by the Regional Director for Region 21. 149 NLRB No. 2. CULLIGAN SOFT WATER SERVICE 3 i.e., purchases not made for the satisfaction of the purchasers' "per- sonal wants or those of his family and friends." 2 During this same period, the Employer purchased products from the Culligan, Inc., plant in San Bernardino, California,,in the amount of $112,000. These products consisted basically of tanks, which, together with various smaller parts such as fittings, valves, and rubber caps, are manu- factured in Illinois and shipped to the San Bernardino plant, where they are assembled into serviceable units and then sent to the, Em- ployer's plant in Ventura, California. Plastic jackets, manufactured in San Bernardino, are placed on the tanks for insulation and appearance. The Employer's enterprise does not meet the Board's retail jurisdic- tional standard of a minimum gross volume of $500,000 per year. However, the Board's established policy for determination of whether it will assert jurisdiction over such an operation, if it also includes some nonretail sales, is to apply the nonretail standard to the Employer's total operations, unless the nonretail aspect of the Employer' s business is de minimis 3 We find that the Employer's $20,000 in nonretail sales is not de rninimis 4 The Board's nonretail jurisdictional standard requires $50,000 inflow or outflow, direct or indirect, across State lines.' The only question here is whether the Employer's purchase from Culligan, Inc., satisfies the indirect inflow test. In contending that it does not, the Employer sought to establish that the products purchased from the San Bernar- dino plant of Culligan, Inc., had-been "materially'altered" there after shipment from Illinois, and were consequently removed from the stream of commerce for purpose of indirect inflow. We do not agree. In Kenneth Chevrolet Company, et•al.,6 we stated the general rule for assertion of jurisdiction over an employer who purchased products alleged to be part of an indirect 'stream of inflowing commerce.: We consider a product as`being a part'of an indirect stream of in- flowing commerce only when it is delivered to the ultimate pur- chaser in the same form as when it entered the State. The flow is stopped when the form is materially altered, or . . . when the items become part of an entirely different product. The Board concluded therein that automobiles assembled in one State from parts received from other States were "entirely different prod- 2 See Roland Electric Company v. Walling, 326 U S. 647, 673-675; J. S. Latta d Son, 114 NLRB 1248 ; Bussey-Williams Tire Co., Inc, 122 NLRB 1146-1147 8 The T. H. Rogers Lumber Company, 117 NLRB 1732, 1733 ; Appliance Supply Com- pany, 127 NLRB 319, 320; Joseph Crowden, et at., d/b/a Indiana Bottled Gas Company, 128 NLRB 1441. ' Harry Polltins, d/b/a Harry's Television Sales and Service, 143 NLRB 450. Cf. Yakima Cascade Fuel Co, et at, 126 NLRB 1316. 5 Siemons Mailing Service, 122 NLRB 81. 6 110 NLRB 1615. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ucts" from the component parts. It therefore declined to assert jurisdiction. In the present case we cannot conclude that the products purchased by the Employer were in fact "materially altered," or so entirely dif- ferent from the products manufactured in and shipped from Illinois as to remove them from a proper application of the Board's indirect in- flow standard.' Unlike an automobile, the water-softening device is relatively simple and uncomplicated. Comparatively few parts are involved. The basic unit is a tank, which is shipped, as are necessary valves and fittings, from Illinois to Culligan's San Bernardino plant. There the valves and fittings are attached. We do not regard the mere addition of these valves and fittings as a material alteration or a sufficient transformation of the original product within the meaning of Kenneth Chevrolet. We find, therefore, that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purpose of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Employer's business is relatively small. There are no hard and fast lines drawn between jobs, and all employees are expected to, and do, perform whatever tasks may be required. Thus, for ex- ample, all employees may be called on to use their truckdriver licenses. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of the Act : All installation men, regeneration men, and route servicemen, excluding confidential and managerial employees, professional employees, guards, and supervisors, as defined in the Act, and all other employees. [Text of Direction of Election omitted from publication.] MEMBER LEEDOM, dissenting : I would not assert jurisdiction. While I agree with my colleagues that the Board's nonretail standard is applicable here, I cannot agree that the Employer's purchases satisfy the Board's indirect inflow test, the only available basis under that standard for taking jurisdiction. 7 See Combined Century Theatres, Inc , et at., 120 NLRB 1379, and George Schuwirth, 140 NLRB 459 FREDERICK STEEL COMPANY 5 The Employer purchases water-softening devices within the State from Culligan, Inc. It is apparent that the water-softening device is not delivered to the Employer in the same form as when it enters the State. The several items consisting of a tank, valves, fittings, and rubber caps, which come to Culligan, Inc., from outside the State, do not represent all the components of the water-softening device. To them is added another component, a plastic jacket, which is manufac- tured by Culligan, Inc., within the State and which serves to provide insulation and appearance to the device. All these parts are then as- sembled by Culligan, Inc., into a serviceable unit which constitutes the product delivered to the Employer. In the light of the foregoing, al- though the Board is here concerned with a less complicated product than the automobile involved in the Kenneth Chevrolet case, the fact remains that, in both instances, the product was materially altered through the assembly within the State of the components coming from outside the State so as to render it usable and salable within the State. I would, therefore, contrary to my colleagues, find that the Kenneth Chevrolet case is controlling here. Accordingly, as the flow in commerce was stopped when components of the water-softening device entered the State, I would find that the water-softening de- vices purchased by the Employer were not indirect inflow and that the petition should be dismissed for lack of jurisdiction. Frederick Steel Company and Truck Drivers, Chauffeurs and Helpers Local Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case No. 9-CA-2979. October 20, 1964 DECISION AND ORDER On June 1, 1964, Trial Examiner Rosanna Blake issued her De- cision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Decision. There- after, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial 149 NLRB No. 1. .