Earl McMillian Co.

National Labor Relations Board - Board Decisions

Feb 14, 1919

81 N.L.R.B. 639 (N.L.R.B. 1919)

In the Matter of EARL MOMILLIAN COMPANY, EMPLOYER and LODGE
744, DISTRICT 37, INTERNATIONAL ASSOCIATION OF MACHINISTS,
PETITIONER
Case No. 16-RC-221.Decided February 14,1919
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. 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-man panel consisting of the undersigned Board
Members.*
Upon the entire record in the case, the Board finds :
1. The Employer, a Texas corporation with its principal office
and plant located in Houston, Texas, is engaged in the business of
reconditioning Ford engines, fuel pumps, carburetors, and distrib-
utors, exclusively for Ford dealers. The Employer operates under
a franchise from the Ford Motor Company, covering the Houston
territory, which comprises the southern half of Texas from the border
of Louisiana to the border of Mexico at Del Rio, Texas. The Em-
ployer does business only with dealers located within the State of
Texas. The reconditioning is conducted on an exchange basis, the
dealer exchanging an old motor for each reconditioned motor.
New parts used by the Employer in reconditioning motors are
purchased from a Ford Motor Company distributor located in Hous-
ton, Texas. Cleaning materials, grinding materials, tools, and
machinery are purchased, for the most part, from distributors lo-
cated in Houston, Texas. All the parts purchased from the Ford
Motor Company, and most of the other materials, tools, and machinery
purchased by the Employer are manufactured outside the State.
During the year 1947, the Employer made sales amounting to
$492,047, and purchases amounting to $362,310.04, $10,223.04 of
"Chairman Herzog and Members Houston and Murdock.
81 N. L. R B., No. 114. 639
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which were made directly from sources outside the State.' From
January 1, 1948, to July 31, 1948, the Employer made sales amounting
to $515,740.12, and purchases amounting to $250,796.78, $9,569.98 of
which were made directly from sources outside the State. During
both the 1947 and the 1948 periods, the purchases made by the Em-
ployer from the Ford Motor Company distributor in Houston repre-
sented more than 60 percent in value of the Employer' s gross pur-
chases.
The Employer moved to dismiss the petition on the ground that its
operations are essentially local in character and do not affect com-
merce within the meaning of the Act. The Employer's motion was
based, in part. upon a ruling of the Wage and Hour Division of the
Department of Labor that the Employer's shop employees, the em-
ployees herein involved, are not covered by the Fair Labor Standards
Act. The application of that Act, however, is limited to employees
`.engaged in commerce or in the production of goods for commerce." 2
The Board's jurisdiction is not so limited, but extends to employers
and employees whose operations "affect commerce." We find, con-
trary to the Employer's contention, that it is engaged in commerce
within the meaning of the Act,3 and we shall therefore deny the Em-
ployer's motion to dismiss.
2. The labor organization named below claims to represent 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 following employees of the Employer at its Hempstead High-
way Plant in Houston, Texas, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act :
1 The Employer sends connecting rods for reconditioning on an exchange basis to a com-
pany located outside the State of Texas. The figures set forth above as representing the
Employer's out-of-State purchases cover payments for such reconditioning services as well
as purchases made outside the State of plant machinery and equipment.
2 29 U. S. C. § 206, 207.
a Cf. Matter of Liddon White Truck Company , Inc., 76 N. L. R. B . 1181 ; Matter of Puritan
Chevrolet, Inc., 76 N. L. R. B. 1243.
If this were a matter of first impression , Chairman Herzog would not exercise jurisdie-
tion in this case. He believes , however, that he is bound by the majority decision of the
full Board in the Liddon White case, to which he dissented early in 1948. He considers the
essential commerce facts and the character of the enterprise here to be indistinguishable
as a practical matter from those passed upon in the earlier case . The Chairman believes
that it would only serve to confuse the Board ' s Regional Offices, as well as employers and
labor organizations in the automobile retail trade , to draw the distinctions suggested in the
dissenting opinion.
EARL McMILLIAN COMPANY 641
All production and maintenance employees,' including all employees
engaged in the erection, installing, dismantling, and/or repairing of
machinery, but excluding all other employees, guards, watchmen, office
and clerical employees, professional employees, and all supervisors.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Sixteenth Region, and subject
to Sections 203.61 and 203.62 of National Labor Relations Board Rules
and Regulations-Series 5, as amended, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bargain-
ing, by Lodge 744, District 37, International Association of Ma-
chinists.
MEMBER MURDOCK, dissenting :
I would dismiss the petition because I believe that the employer's
operations are essentially local in character and that the effect on com-
merce is too slight for me to conclude that it would effectuate the poli-
cies of the Act to assert jurisdiction. The Employer's business is
reconditioning old automobile motors which come from within the
State and are sold within the State. This is plainly an enterprise
which in its main aspects is entirely local in character, and applicable
precedents would require dismissal.5 Except for a minute number
4 The parties stipulated that the following job classifications or employees in the following
job classifications (but not necessarily limited to the following job classifications) are
properly included within the meaning of "production and maintenance employees" : valve
assembly, porters , rod machine operators , engine assembly , parts men , boring bar operators,
valve disassembly , block honing , rod cut-back , fuel pump assembly , steam cleaning , engine
tester, cleaning department employees , carburetor assembly , valve machine operator, block
repair, valve seat grinder , crankshaft grinding , valve assembly, bore bar operator , oil pump
assembly , engine disassembly , C. S. grinder , distributor assembly , pin fitting, engine
inspection , small parts disassembly.
5 Matter of Richter Transfer Company , 80 N. L . R. B. 1246; Matter of Texas Construo-
tion Material , 80 N L. R B. 1248.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchased from sources outside the State, all the new parts used in
reconditioning the motors are purchased from the stock of a Ford
distributor within the State. The fact that these parts were orig-
inally manufactured outside the State does not change the essentially
local character of the Employer's business.
I cannot agree with my colleagues that this case is controlled by
Liddon White Truck Company r- and succeeding cases in which the
Board has asserted jurisdiction over retail automobile dealers. In
those cases, the Employer's main product-automobiles of substantial
value-regularly came from without the State for retail distribution.
There is no such flow of interstate commerce in the instant case, as the
main product, reconditioned motors, comes from within the State and
never leaves the State, and the new parts which are incidentally added
in the process are almost entirely purchased from local stocks within
the State.
8 76 N. L. R. B. 1181.