A. E. Rogers Co.

National Labor Relations Board - Board Decisions

Mar 30, 1953

103 N.L.R.B. 1274 (N.L.R.B. 1953)

1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an intervening union by placing it in a much more favorable position
than it would have been in if it were a participant in a representation
proceeding instituted by another union. In my opinion, as the Peti-
tioner has neither a showing of interest adequate for a cross-petitioner
on the Employer's petition nor a sufficient showing to sustain its own
petition, there is no basis for directing an election in this case.
Accordingly, I would dismiss the petition.
A. E. ROGERS, D/B/A A. E. ROGERS Co. ;* ALFRED R. OLSTAD, D/B/A
OLSTAD MOTORS;* MCGRATH BUICK, INC.; T. R. LITCHFIELD AND
DONALD D. LITCHFIELD, COPARTNERS, D/B/A T. R. LITCHFIELD AUTO
SALES;* J. FRED KAPPUS, JR., D/B/A EAU CLAIRE MOTOR COMPANY;*
EAU CLAIRE LINCOLN MERCURY CO.;* MCDONALD MOTORS, INC., AND
GEORGE DOUGLAS MCDONALD, MICHAEL MCDONALD AND BRUCE MC-
DONALD, D/B/A MCDONALD BROTHERS ;* GEORGE S. GRINSEL AND
GERALD S. PIERCY, COPARTNERS, D/B/A GRINSEL NASH COMPANY;*
WOOD MOTOR COMPANY and LODGE No. 173, INTERNATIONAL Associ-
ATION OF MACHINISTS, AFL, PETITIONER. Cases Nos. 18-RC-1797,
18-RC-1798,18-RC-1799, 18-RC-1800,18-RC-1801,18-RC-1802,
18-RC-1807, 18-RC-1808, and 18-RC-1809. March 30, 1953
Decision and Direction of Elections
Upon separate petitions duly filed, a consolidated 1 hearing was held
in this case on February 10, 1953, at Eau Claire, Wisconsin, before
Clarence A. Meter, 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
Murdock and Peterson].
Upon the entire record in this case, the Board finds :
1. The business of the Employers:
The Employers are separate automobile dealers, each having a fran-
chise agreement with a nationwide manufacturer of automobiles.
These Employers each sell new and used automobiles and other auto-
motive equipment and perform service operations in Eau Claire, Wis-
consin, and vicinity. Other than Grinsel and Wood, each Employer
purchases motor vehicles and parts amounting to over $250,000 annu-
ally, more than 50 percent of which represents out-of-State purchases.
*The names of these Employers appear as amended at the hearing.
I All the captioned cases were consolidated for hearing by order of the Regional Director
dated February 3, 1953.
103 NLRB No. 118.
A. E. ROGERS CO. 1275
Each Employer's sales exceed $250,000 annually, less than 1 percent
of which represents out-of-State sales. Grinsel purchases more than
$250,000 annually, no part of which represents out-of-State pur-
chases; 2 while Wood purchases more than $500,000 annually, 10 per-
cent of which crosses States lines a
The Employers contend that the Board should not assert jurisdic-
tion herein,4 especially with regard to Grinsel and Wood as the lat-
ter two Employers make neither sales nor purchases in substantial
amounts across State lines. We do not agree with the Employers'
contention that the decision in N. L. R. B. v. Bill Daniels, Inc., et al.,
controls the disposition of the commerce aspect of this case. Even
assuming the applicability of that decision to this matter, the Board,
with due respect to the opinion of the Court of Appeals for the Sixth
Circuit, and particularly in view of contrary opinions voiced by other
courts of appeals,' is disposed to adhere to its original determination
in the Bill Daniels, Inc.' case until the Supreme Court of the United
States decides against the Board on such an issue . In that case as
in prior Board cases," the franchises which associate an employer with
a nationwide producer and distributor of automobiles are held to be
the controlling factor in the Board's jurisdictional findings. Ac-
cordingly, we find that each Employer is engaged in commerce with-
in the meaning of the Act .9 We further find that it will effectuate
the policies of the Act to assert jurisdiction in the several proceedings
involving these Employers.
In Case No. 18-RC-1807, McDonald Motors, Inc., a corporation,
and McDonald Brothers, a partnership, contend that they are not
a single employer within the meaning of the Act and that, according-
ly, absent a franchise agreement between the partnership and a nation-
wide producer of automobiles, the Board should not assert jurisdic-
tion over the partnership. The controlling stockholder in the corpo-
ration is George D. McDonald, while the partnership , engaged in
' Grinsel 's cars are purchased from a Nash manufacturing and assembly plant located in
the State of Wisconsin.
° Wood purchases only parts and accessories from outside the State . However , it has a
sales franchise from General Motors Corporation , Chevrolet Motor Division.
The issue as to whether McDonald Motors, Inc. and McDonald Brothers constitute a
single employer and whether the Board should assert jurisdiction as to the latter is
considered separately herein.
6202 F . 2d 579 ( C. A. 6), denying enft. 96 NLRB 1255 and 97 NLRB 98. Board's
petition for rehearing pending.
ON. L. R. B. v Howell Chevrolet Company, 204 F. 2d 79 (C. A. 9) enfg 95 NLRB 410;
N. L. R. B . v. Ken Rose Motors, Inc., 193 F. 2d 769 ( C. A. 1), enfg. 94 NLRB 868.
4 96 NLRB 1255 ; fhlbert Motor Sales , Inc., 97 NLRB 98.
s Harbor Chevrolet Co., 93 NLRB 1326 ; Kelly A . Scott, 93 NLRB 654.
s See cases cited in footnote 6, supra. See also N. L. R. B . v. Conover Motor Co., 192
F. 2d 779 (C. A. 10), enfg. 93 NLRB 867; N. L. R. B. v . Davis Motors, Inc., 192 F. 2d
782 (C. A. 10), enfg . 93 NLRB 206 ; N. L. R. B . v. M. L. Townsend, 185 F. 2d 378
( C. A. 9), enfg . 81 NLRB 739, cert . den. 341 U . S. 909 ; Baxter Brothers, 91 NLRB 1480.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
body conditioning of automobiles, is composed of George D. Mc-
Donald and his 2 sons, Michael McDonald and Bruce McDonald, only
1 of whom is active in the business. The 2 body-shop employees
employed by the partnership work in a shop adjacent to, but separate
from, the corporation's main building. For bookkeeping purposes,
billings and paychecks to the partnership's employees appear in the
name of the corporation. Both the corporation and the partnership
use the same office and clerical employees, and general overhead costs
are allocated between them. The partnership apparently uses the
parts department facilities of the corporation. Although the partner-
ship's services are open to the public, in practice the corporation ac-
cepts and estimates costs on body-service jobs, such work being there-
after turned over to the partnership. Although the Employers'
counsel denied that a contractual relationship existed between the
corporation and the partnership, there apparently is, in practice, a
service relationship between them. Moreover, the fact that both con-
cerns have common ownership and common counsel indicates that they
share common labor policies. Under all the circumstances, we are of
the opinion that the corporation and partnership constitute a single
employer within the meaning of the Act 10 In view of this Em-
ployer's operations as a whole, we find that it is engaged in commerce
within the meaning of the Act 11 Accordingly, we find that it will
effectuate the policies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to represent em-
ployees of the Employers.
3. Questions affecting commerce exist concerning the representa-
tion of the employees of the Employers within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act .12
4. We find that the following units are appropriate for collective-
bargaining purposes within the meaning of Section 9 (b) of the Act: 13
(a) All mechanics, helpers, and service department employees at
A. E. Rogers Company's sales and service agency, Eau Claire, Wis-
consin, excluding office employees, automobile salesmen, and super-
visors as defined in the Act.
(b) All mechanics, helpers, and service department employees at
Olstad Motors' sales and service agency, Eau Claire, Wisconsin, ex-
10 Lloyd A. Fry Roofing Company, 94 NLRB 62 ; Vulcan Tin Can Company, 94 NLRB 10;
L. W. Hayes, Inc., et al., 91 NLRB 1408.
11 See Goar's Service and Supply, 85 NLRB 2119.
12 The Employers attack the validity and sufficiency of the Petitioner 's showing of
interest and further claim that the Petitioner must produce evidence of its interest at
the hearing . As a showing of interest is an administrative matter not subject to collateral
attack and not litigable at the hearing, we reject the Employers ' contentions. W. F.
Schrafft d Sons Corp., 86 NLRB 77 ; Tennessee Packers, Inc., 87 NLRB 90.
Except for the unit placement of certain employees hereinafter referred to, the Peti-
tioner and the Employers agree upon the appropriateness of the separate employer units
herein.
A. E. ROGERS CO. 1277
eluding the service manager (working foreman), parts man, office
employees, automobile salesmen , and supervisors as defined in the Act.
(c) All mechanics, helpers, and service department employees at
McGrath Buick, Inc.'s sales and service agency, Eau Claire, Wiscon-
sin, excluding the service manager, parts department manager, part-
time janitor, part-time general service man,14 office employees, auto-
mobile salesmen, and supervisors as defined in the Act.
(d) All mechanics, helpers, and service department employees at
T. R. Litchfield Auto Sales' sales and service agency, Eau Claire, Wis-
consin, excluding the parts man, working shop foreman,'-' office em-
ployees, automobile salesmen, and supervisors as defined in the Act.
(e) All mechanics, helpers, and service department employees at
Eau Claire Motor Company's sales and service agency, Eau Claire,
Wisconsin, including the assistant foreman-mechanic, but excluding
the working shop foreman, office employees, automobile salesmen, and
supervisors as defined in the Act.
(f) All mechanics, helpers, and service department employees at
Eau Claire Lincoln Mercury Co.'s sales and service agency, Eau Claire,
Wisconsin, excluding the service manager, assistant service manager,
parts manager, parts runner-janitor, office employees, automobile
salesmen, and supervisors as defined in the Act.
(g) All mechanics, helpers, and service department employees at
McDonald Motors, Inc.'s sales and service agency and McDonald
Brothers' body shop, Eau Claire, Wisconsin, including body men,16
the used car salesman-serviceman, and partsman-salesman, but ex-
cluding the parts manager, inventory clerk-partsman, office employees,
automobile salesmen, and supervisors as defined in the Act.
(h) All mechanics, helpers, and service department employees at
Grinsel Nash Company's sales and service agency, Eau Claire, Wis-
consin, excluding the shop foreman, office employees, automobile
salesmen , and superviors as defined in the Act.
(i) All mechanics, helpers, and service department employees at
Wood Motor Company's sales and service agency, Eau Claire, Wis-
consin, including the part-time parts department employees, parts
counterman, service salesman, part-time wash and grease employee,
14 This employee is a college student who works part time intermittently . Because of
the casual and irregular character of his employment , we shall,' in agreement with the
parties, exclude him from this unit. Lundahl Motors, Inc., 85 NLRB 224.
ss There is a question as to whether the working shop foreman is a supervisor. The
Employer concedes that, in the absence of one of the partners, the working foreman
assigns work to employees and responsibly directs them in their work . About 20 percent
of his time is spent in such supervisory duties . We find that he is a supervisor as defined
in the Act and exclude him as such from the unit found appropriate herein . Snively
Groves, Inc., 98 NLRB 1146; Reade Manufacturing Company, Inc., 100 NLRB 87.
1e See paragraph 1, supra, wherein the Board found McDonald Motors, Inc., and
McDonald Brothers to be a single employer within the meaning of the Act . In view of
that finding and the fact that body men aie essentially service employees , they are
included in the unit.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and part-time used car lot man ," but excluding the working foreman,
office employees , automobile salesmen, and supervisors as defined in
the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
17 The part-time wash and grease employee and the part -time used car lot man are
both high school students who work primarily as washers . In the 2 weeks before the
hearing, each averaged more than 15 hours work per week . Both work regularly every
afternoon from 2 : 30 to 5 p. in. and Saturday morning. As these employees are
"washers," which job classification is normally included within a service or garage unit,
(see Wm. J. Silva Company, 85 NLRB 573 ), and as it is our usual policy to include
regular part-time employees in a unit ( see Worden-Allen Company/, 99 NLR$ 410), we
shall, despite the agreement of the parties, include both employees in the unit. See
Vevoda Motor Sales, 86 NLRB 573.
H. F. BYRD , INC. and AMERICAN FEDERATION OF LABOR , PETITIONER.
Case No. 5-RC-1135. March 30, 1953
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 Henry L. Segal, hearing offi-
cer. 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, 2 the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organization named below claims to represent certain
employees of the Employer.
3. The question concerning representation :
The Employer moved to dismiss this proceeding on the ground that
the cannery involved herein is incident to its farming operations, and
therefore its cannery employees are agricultural laborers within the
meaning of the Act. At its cannery, which is in the same "area of pro-
duction" as its farms or orchards, the Employer is engaged in an
extensive operation of processing apples, grown almost entirely by
it, into sauce, juice, butter, cider, and related products, and ware-
housing and shipping these products throughout the year. The can-
nery occupies 3 buildings containing 70,000 square feet and represents
1 The Employer 's motion to dismiss because the record fails to show the Petitioner's
interest is denied , as the showing of interest is an administrative matter that is not
litigable. P. J. Mallory & Co., Inc., 101 NLRB No. 10. Moreover , we are administra-
tively satisfied of the adequacy of that showing.
2 The Employer 's request for oral argument is denied , as the record and briefs ade-
quately present the issues and positions of the parties.
103 NLRB No. 119.