Cooley Sons Co.

National Labor Relations Board - Board Decisions

Jan 7, 1953

102 N.L.R.B. 59 (N.L.R.B. 1953)

COOLEY SONS CO. 59
direct the Regional Director to open and count the 9 ballots 5 with
respect to which the Petitioner has withdrawn its challenges.
There remain the ballots of James F. Black and Lillian Overstreet
which were challenged by the Board agent because the voters' names
did not appear on the eligibility list. The Regional Director, in his
report on challenged ballots, recommended that the challenge to the
ballot of James F. Black be sustained and that the challenge to the bal-
lot of Lillian Overstreet be overruled .6 As indicated above, no excep-
tions were filed to these recommendations. In keeping with customary
Board practice, we shall adopt the recommendations made by the
Regional Director; the challenge to the ballot of James F. Black is
sustained and the challenge to the ballot of Lillian Overstreet is over-
ruled. We shall direct that the latter ballot be opened and counted.
Direction
IT IS HEREBY DIRECTED that, as part of the investigation to ascertain
representatives for the purposes of collective bargaining with the
Employer, the Regional Director for the Ninth Region shall, within
ten (10) days from the date of this Direction, open and count the
ballots of Vaught Disponett, Willard Mitchell, Herk Caruthers, Em-
mett Robinson, Floyd Hawkins, Edwin Hyatt, Bertha Medley, Vernon
Hostetter, Ed Wilson, and Lillian Overstreet; and thereafter prepare
and cause to be served upon the parties a supplemental tally of bal-
lots, including therein the count of the ballots described above.
CHAIRMAN HERZOG and MEMBER PETERSON took no part in the con-
sideration of the above Supplemental Decision and Direction.
These ballots were cast by the employees , except for Lillian Overstreet , listed in the
direction below.
e The Regional Director found that James F. Black had been discharged and was no
longer an employee of the Employer . (He found that Lillian Overstreet was on authorized
leave-of-absence at the time of the election and therefore eligibl3 to vote.
COOLEY SONS Co. and UNITED AUTOMOBILE WORKERS OF AMERICA, AFL,
PETITIONER . Case No. 13RC-960. January 7,1963
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 Frances P. Dom, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
n The hearing officer referred to the Board the Employer 's motions to dismiss the petition
because (1) there was no proof of showing of interest and (2) no demand or refusal of
102 NLRB No. 11.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Herzog and Members Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.'
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In its original petition the Petitioner sought to represent all
employees at the Employer's West Bend, Wisconsin, sales and service
agency except salesmen and office clerical employees. At the hearing
it amended its petition to exclude part-time employees regardless of
the type of work they perform. Except for opposing the exclusion
of the part-time employees the Employer agrees that the unit de-
scribed in the amended petition is appropriate. The parties dis-
agree, however, as to the particular employees included within the
unit description. The Petitioner contends that the unit comprises
only 2 employees, mechanics who are principally engaged in repair-
ing tractors. Most of their work is performed in the Employer's
shop, but they make some repairs at the premises of customers. Ap-
parently the part-time employees whom the Petitioner would exclude,
2 in number, perform the same type of work as the 2 mechanics
or shop employees whom it seeks to represent .3 In addition to in-
cluding the 2 shop employees and the 2 part-time employees, the
Employer would include 2 employees whom it described respectively
as serviceman and partsman.
The serviceman is principally engaged in the mechanical work of
setting up the component parts of farm machinery into finished
machines ready for sale, and in repairing or otherwise servicing
recognition shown. The motions are denied because ( a) showing of interest is of admin-
istrative concern only (0. D. Jennrings Co., 86 NLRB 516) and the Board is administratively
satisfied that the showing of interest is sufficient, and (b ) the filing of a petition is a suffi-
cient demand to raise a question of representation . By moving at the hearing to dismiss the
petition the Employer made it clear that recognition was dependent on certification by the
Board . Advance Pattern, Company (on reconsideration ), 80 NLRB 29 ; J. I . Case Company,
80 NLRB 223.
2 Under dealers' contracts between the International Harvester Company and the Em-
ployer for the sale and service of trucks and farm machinery , International Harvester
maintains a substantial degree of control over the manner in which the Employer operates
its business in the retail sale of these International Harvester products . Such purchases
from International Harvester constituted more than 80 percent of the Employer 's total
purchases in 1951. For this reason , we find that in fact the Employer operates as an
integral part of a multistate enterprise even though the contracts may not provide any
exclusive sales territory for the Employer. Hallam d Boggs Truck & Implement Co.,
95 NLRB 1443.
8It is clear that one of the part-time employees performs the same type of work, but
the record is not clear as to the other.
COOLEY SONS CO. 61
farm machinery. This phase of the serviceman's work takes up about
60 percent of his time and differs from that of the shop mechanics
only in that it involves much more complex machinery and that a
greater portion of his repair work is done at customers' premises'
He also helps out in the parts department and spends from 10 to 25
percent of his time, depending on the season, in selling farm machinery.
The partsman spends 50 percent of his time in assembling parts for
the men working on the machinery, checking in the stock, keeping
it in order, and selling parts.' The record does not, however, indi-
cate what specific percentage of his time is devoted to selling. An
additional 10 percent of his time is spent in repair work, and the
remaining 40 percent in bookkeeping and making out the payrolls
and other clerical work.
One part-time employee is an engineering student in his junior year
at college. Throughout his college course he has worked full time
as a repairman for the Employer during the summer and other vaca-,
tion periods, and usually every other Saturday during the college
term. He expects to continue this program for at least 2 years more.
The only other part-time employee was hired on the day of the
hearing. He is to work half time every workday, but no statement
was given of the character of his work. The Petitioner apparently
contends that he is a temporary employee because he is 19 years old
and subject to being inducted into the Armed Forces. The Em-
ployer obviously knew when employing him that his employment
would terminate in the event of induction.
Although we have found that purely sales and clerical employees
may be excluded from units comprising all other employees at sales
and service agencies, we have customarily included partsmen in such
a unit because of the interrelation of the work of service department
and parts department employees where, as here, they are under the
same supervision and one of the parties objects to their exclusion.6
As the Board's unit descriptions are customarily based on function-
ally related occupational categories, all employees performing the
work of the service and parts department categories are necessarily
included in the unit and entitled to representation irrespective of the
number of hours of employment' We find, therefore, that the serv-
iceman, the partsman, and the part-time student employee, as well
as the two mechanics, are within the unit and entitled to representa-
tion for so much of their work as falls within the service and parts
department classifications. Because all these employees appear reg-
4 From spring until fall the time spent on repairing customers' machinery on their farm
averages 10 to 25 percent for the shop mechanic, 25 to 50 percent for the serviceman.
5 The partsman does not maintain the inventory record.
0 Charles Smith Nash Company, 86 NLRB 511.
7 Lone Star Boat Mfg. Co., 94 NLRB 19.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ularly to devote a substantial portion of their time to the work of
classification within the unit, we find that they are also eligible to vote
in the election.8
As mentioned above, the Petitioner raised a question as to the in-
clusion of the newly hired part-time employee in the unit, apparently
asserting that his employment is only temporary. Although the rec-
ord is not clear as to this employee's duties, it appears that he must
spend at least a portion of his time at work in the service department.
Upon being hired, the employee was apparently assured of employ-
ment until called up for service in the Armed Forces. As that con-
tingency may not arrive for an indefinite period, if at all, we believe
that he cannot be said to be without a reasonable prospect of continued
employment at work within the unit. We find that he is not a tem-
porary employee, and if in fact he regularly spends a substantial
portion of time at work within the unit, he is eligible to vote in the
election.
Accordingly, we find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act: all employees of the Employer
at South Bend, Wisconsin, including regular part-time employees,
but excluding all sales and office clerical employees and all supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
P Loss Star Boat Mfg. Co., supra.
CHASE BRASS & COPPER CO., INCORPORATED ( CLEVELAND MILL DIVISION)
and OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL No. 17,
A. F. OF L., PETITIONER . Case No. 8-RC-1800. January 7, 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 Edward A. Grupp, 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Styles, and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
102 NLRB No. 14.