Herman M. Brown Service Co.

National Labor Relations Board - Board Decisions

May 16, 1956

115 N.L.R.B. 1371 (N.L.R.B. 1956)

HERMAN M . BROWN SERVICE " COMPANY 1371
Union, the latter has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (2) of the Act and the Respondent Company.:
has engaged in and is engaging in unfair labor practices within the meaning, of,
Section 8 ( a) (1) and (3) of the Act.
4. The unfair labor practices found herein are unfair labor practices affecting-
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Herman M. Brown Service Company and District Lodge 118,
International Association of Machinists, AFL-CIO, and Local..
90, General Teamsters and Truck Drivers, Helpers and Ware -
housemen, AFL-CIO,' Joint-Petitioners . Case No. 18-RC-2709.,
May 16, 1956
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 L. C. Howg, hear-
ing 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. Herman M. Brown Service Company, hereinafter referred to
as Service Company, installs and services heavy construction machin-`
ery which is sold by Herman M. Brown Company, hereinafter re-
ferred to as Sales Company. Sales Company purchases and sells con-
struction machinery pursuant to exclusive franchise agreements with
10 to 12 leading manufacturers of such machinery. Service Company
not only prepares such machinery for use by the purchasers but also`
services such machinery. It also stocks parts which it purchases
from the same 10 or 12 manufacturers with which Sales Company has
exclusive statewide franchises, and sells these parts as part of its;
general repair-services.
Herman M. Brown Company was originally a sole proprietorship
engaged primarily in the sale of construction machinery. In about
1950 it decided to expand its service operations, and in order to place
the service department on a self-supporting basis it was decided 'to
form two corporations, the corporation referred to herein as Sales
Company and the corporation referred to herein as Service Company.
Herman M. Brown is president of both corporations, Ben Brown,
Herman's brother, is vice president of both corporations, William D.
Sampson is treasurer of both corporations, and Archie Rhoden is
secxetary.of both corporation?.. Both corporations have their ma n
office in Des Moines, Iowa, in the -same-building, a building owned by-
Sheridan _Realty Company, it company in. which Herman M. Brown
3 The Joint Petitioners ' names appear as amended at the hearing.
115 NLRB No. 214.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
holds the controlling interest.. Service Company maintains plants in
Cedar Rapids and Sioux City, Iowa, which are located in buildings
owned by Sheridan Realty Company. Herman M. Brown signs all
checks for both the Service Company and Sales Company. He gen-
erally approves personnel action initiated by the managers of the two
corporations. He testified that he would probably engage in collec-
tive bargaining with unions for both corporations when, and if, it
became necessary.
In view of the integration of operations and the common ownership
and officers and the fact that ultimate control of policies, including
labor relations, resides in one individual, we find that Service Com-
pany and Sales Company constitute a single employer for jurisdic-
tional purposes.
During the last year preceding the hearing, Service Company pur-
chased goods directly from points outside the State of Iowa valued
at approximately $750,000; its sales to points outside the State of
Iowa totaled approximately $40,000. Sales Company's direct pur-
chases from outside the State of Iowa during the same period totaled
approximately $2,500,000, and, its sales to points outside. the State
of Iowa totaled approximately $250,000. As the Employer's direct
outflow and direct inflow are substantially in excess of the minimum
amounts required under the Jonesboro 2 standards we find that it will
effectuate the purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Employer contends that as the petition was filed by two
unions as Joint-Petitioners, it should be dismissed on the general
grounds that the Board should not allow joint petitions, and that in any
event the showing of interest does not show that 30 percent of the
employees have requested the two unions to represent them jointly.
With respect to the first contention the Board has long followed the
practice of permitting joint petitions and sees no justification for de-
parting from that policy in the instant case . By its second contention,
the Employer seeks to litigate the showing of interest, which is mat-
ter for administrative determination and not litigable in this proceed-
ing. In any event we have recently found that it is immaterial
whether authorization cards in support of a joint petition be con-
strued as indicating a desire for representation by the labor unions
comprising the joint petitioners, individually or jointly.3 Accord-
ingly, the motions to dismiss on these grounds are denied.
2 Jonesboro Grain Drying Cooperatiive, 110 NLRB 481. The Employer 's contention that
it is a retail enterprise within the meaning of Hogue and Knott Supermarkets , 110 NLRB
543, is without merit. See Trea$ure State,Equiprnent,Company, 114 NLRB 529.
3 The Stioklesa Corporation, 115 NLRB 979.
HERMAN M . BROWN SERVICE COMPANY 1373
We find a question affecting commerce exists concerning the repre-
sentation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Joint-Petitioners seek to represent a unit of employees in
the Employer's service and parts departments, at the Employer's Des
Moines operations. The Employer contends that the unit should be
limited to the service department employees, because the parts de-
partment employees do not have sufficient community of interests
with the service department employees.
The record discloses the following information with respect to the
duties of the parts department employees ' : '
Parts pickers: Employees Champlin and Myrtle pick parts from
bins and deliver them to the servicemen in the service department.
They also replace parts in the bins. They spend very little time on
other duties.
Employees Proudfit and Hughes spend 95 percent of their time
posting records to inventory cards and processing parts invoices. They
work at special tables in the parts department. The purpose of these
records is to enable the Employer to keep a record of each item sold
and received. These employees spend 5 percent of their time picking
parts from the bins for customers and waiting on the parts counter.
Employee Gwinn serves as a counterman and sells parts to the public.
He picks parts from the bins, writes up orders, and completes the
transaction with the customers. He spends about 30 percent of his
time picking parts.
The parties stipulated that employees Juanita Osborn and Ruth
Jean Morrow are office clerical employees, though they work in the
parts department, and that Virgil Freed, the assistant parts depart-
ment manager, is a supervisor within the meaning of the Act. As
this stipulation is not inconsistent with record testimony, we accept it,
and accordingly, we exclude these employees from the unit hereinafter
found appropriate.
The parties also agreed that Milo D. Tomlinson is a supervisor
within the meaning of the Act. However, the record shows that
Tomlinson is a stock control clerk who is in charge of the stocking of
parts. He determines which parts need to be ordered and has general
control of where they are to be stocked. Though Tomlinson may in-
form the parts department manager as to whether other employees
are doing their work properly, the manager makes independent
investigations before taking any action. We find that the record is
inconsistent with the parties' agreement that Tomlinson is a
supervisor.
Generally the Board groups parts department employees together
with service department employees for collective-bargaining pur-
1374 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD
poses.' We see no reason to deny , Petitioner 's request .for such a unit
in this instance .' Accordingly , we shall include the employees Champ-
lin and Myrtle (parts pickers ), Proudfit and Hughes, and Gwinn
(counterman ) who we find are not office clerical employees,' contrary
to the contentions of the Employer , and Tomlinson ( stock- control
clerk ) in the unit hereinafter found to be - appropriate under the gen-
eral designation of parts department employees. -
We find that all journeyman mechanics , their helpers and appren-
tices, including electricians , grinders and metal men, and parts depart-
ment employees , dock men, janitors and truckdrivers employed by
the Employer at its Des Moines , Iowa, operations, but excluding of-
fice clerical employees , professional employees, guards, and super-
visors as defined in the Act , constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text of Direction of Election omitted from publication.]
* Mack Motor Truck Corporatwn, 94 NLRB 1284 ; Edwards Motor Company, Inc., 94
NLRB 372; Babb Motors, 108 NLRB 1140.
5 See Mack Motor Truck Corporation, supra, and Edwards Motor Company, Inc., supra.
Crenshaw's, Inc. and/or Gulf ' Southern Corporation and/or
Banana Exchange Company ' and International Union of
United Brewery, Flour, Cereal , Soft Drink , & Distillery Work-
ers of America , AFL-CIO, Petitioner . Case No. 10-RC-3345.
May 17, 1956
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 Edwin R. Hancock,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed .2
3 The Employer 's name appears as amended at the hearing.
7 At the close of the hearing the Employer moved that the petition be dismissed on the
following grounds: ( 1) The Petitioner is not in compliance with the filing requirements
of Section 9 (h) of the Act; ( 2) the hearing was directed on behalf of a nonexistent Peti-
tioner; (3) the hearing proceeded without a waiver being filed to pending unfair labor
practice charges by a party to the proceeding ; ( 4) the unit was amended by the parties
without a recheck of the Petitioner 's showing of interest ; and (5 ) the Board lacks juris-
diction over the Employer. The hearing officer referred the motion to dismiss to the
Board.
Grounds ( 1) and ( 5) are rejected for reasons set forth hereinafter in the text of this
Decision . Grounds ( 2) and ( 3) arise out of the fact that at the hearing the Petitioner
amended its designation in the petition to reflect the merger of AFL and CIO. Contrary
to the contention of the Employer , this amendment did not change the identity of the
Petitioner, and the notice of hearing and waiver filed by the Petitioner , both indicating
the Petitioner 's affiliation as CIO, were sufficient to warrant further proceedings. As to
115 NLRB No. 217.