Holm Tractor & Equipment Co.

National Labor Relations Board - Board Decisions

Feb 13, 1951

93 N.L.R.B. 222 (N.L.R.B. 1951)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HOLM TRACTOR & EQUIPMENT COMPANY and INTERNATIONAL ASSOCIA-
TION OF MACFIINISTS, DISTRICT LODGE No. 95, LOCAL LODGE No. 1596,
PETITIONER. Case No. 20-RC-1054. February 13, 1951
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 Harry Bamford, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby afhrnied.'
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 Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer, a California corporation with its principal office
and place of business in Petaluma, California, is engaged in selling,
repairing, and servicing tractors, farm implements, dairy equipment,
and refrigeration units and pumps. During the year ended January
31, 1950, the Employer's purchases amounted to approximately
$235,000, of which 60 percent, or approximately $141,000, represented
shipments directly from outside the State of California, and 25
percent, or approximately $58,750, represented shipments of products
from within the State but manufactured outside the State. All sales
of $283,557.82 were made within the State, mainly to farriers in the
immediate area.
The Employer principally sells and services equipment manufac-
tured by the Caterpillar Tractor Company and the John Deere Plow
Company, under dealer agreements with those companies.2 Of the
Employer's total purchases during the period referred to above,
approximately 22 percent represented shipments from Caterpillar and
39 percent, from Deere. Of the Employer's total sales, about 18
percent represented Caterpillar products and 36 percent, Deere
products. The Employer is assigned specific, exclusive territories for
i The Employer moved to dismiss the petition on the grounds that (1) It had not been
served with a copy of the original petition, and (2 ) its operations are too small and local
in character to warrant the assertion of iuiisdiction by the Board We find no merit in
these contentions As to (1), the Employer, which was duly served with a copy of the
amended petition, was afforded full opportunity to litigate all issues at the hearing, does
not plead surprise, and has not demonstrated that it was prejudiced in any manner Cf
Public Motors Go, 90 NLRB No 273, Grocers' Bsstuat Company, Die, 85 NLRB 603 As
to (2), for the reasons set forth in section 1 . iafru , we shall assert jurisdiction herein
Accordingly, the Employer's motion to dismiss is hereby denied
2 The Caterpillar and Deere products are generally complementaiy and noncompetitive
Although not precluded from so doing, Caterpillar and Deere dealer, in the Northern Cali-
fornia area usually do not handle competing tractor, , although competini: ancillary
equipment is often handled
93 NLRB No. 34.
HOLM TRACTOR & EQUIPMENT COMPANY 223
the handling of the Caterpillar and Deere products.-' The agreements
with both Caterpillar and Deere accord those companies a substantial
degree of control over the operations of the Employer. Thus, for
example, the Employer is required to render full sales, financial, and
inventory reports to the manufacturers and to make its books available
upon demand. Joint advertising efforts are provided for, and the
Employer's sales and service facilities and efforts must be satisfactory
to the manufacturers.
We find that the Employer is engaged in commerce. We further
find that, because of its agreements with Caterpillar and Deere, the
Employer operates as an integral part of multistate enterprises, and
that, pursuant to the Board's recently announced policy,4 it will effec-
tuate the policies of the Act to assert jurisdiction in this case.5
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 employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The parties agree generally that a unit composed of all repair
and service employees of the Employer at its Petaluma operation,
excluding the salesmen, office employees, parts man, guards, and su-
pervisors, is appropriate. They disagree, however, as to the follow-
ing personnel whom the Employer would exclude from, and the Pe-
titioner would include in, the unit :
The shop foreman.-This individual is responsible for the work
of the approximately two mechanics and two helpers in the Employ-
er's shop. He spends the major portion of his time performing
manual work. However, unlike the mechanics and helpers, he is paid
a monthly salary and does not punch a time clock. Moreover, it ap-
pears that he has authority effectively to recommend the hire and dis-
charge of employees." Accordingly, we find that the shop foreman
is a supervisor within the meaning of the Act and we shall, therefore,
exclude him from the unit.'
Re frigeration and dairy equipment servicemnan.-This employee
spends the major portion of his time away from the Employer's plant,
installing and maintaining refrigeration and dairy equipment. He
3 The territory is specified in the agreement with Deere. and is covered by separate con-
tracts with the distributors of Caterpillar The latter Caterpillar contracts provide for
profit-sharing on out-of-territory sales . No similar provision is contained in the Deere con-
tract , although it is customary for Deere dealers not to solicit actively outside their
specified areas.
4 The Borden Company , Southern Division , 91 NLRB 628
6 Hallam & Boggs Truck and Implement Company , 92 NLRB 1339.
6 Although this authority is rarely exercised, the record shows that, on at least one occa-
sion, a shop employee was laid off only after agreement by the shop foreman and the
general manager as to the individual to be selected for such layoff.
7 Cf. Valley Tractor and Equipment Company, 92 NLRB 240.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is frequently assisted in his duties by one of the two shop helpers
whom the parties agree are within the unit. Although the service-
man works under separate immediate supervision and on different
equipment, we are of the opinion that his interests are closely related
to those of the other repair and service employees and we shall in-
clude him in the unit."
We find, therefore, that all repair and service employees of the
Employer at its Petaluma, California, operation, including the re-
frigeration and dairy equipment serviceman, but excluding salesmen,
office employees, parts man, guards, shop foreman, and all other super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
8 See Coca - Cola Bottling Company of Southeast Arkansas , 90 NLRB No 125
TAMPA TIMES COMPANY and INTERNATIONAL MAILERS UNION. Case
No. 10-CA-1035. February 14, 1951.
Decision and Order
On November 22, 1950, Trial Examiner Stephen S. Bean issued his
Intermediate Report 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 certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, together with a support-
ing brief, and a motion to reopen the record.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
and exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except as indicated below.2
' 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 Houston, Reynolds,
and Stvles)
2 The Respondent ' s request for oral argument is hereby denied as the record , including
the brief filed by the Respondent , in our opinion , adequately presents the issues and the
positions of the parties
The Respondent' s motion to reopen the record is denied , as the matters which the Re-
spondent proposes to introduce in evidence at the reopened hearing are not, in our opinion,
relevant to the decision of the issues in this case.
93 NLRB No. 39.