Herboth Tractor Co.

National Labor Relations Board - Board Decisions

Aug 31, 1948

79 N.L.R.B. 431 (N.L.R.B. 1948)

In -the Matter of HERBOTH TRACTOR Co., EMPLOYER and OPERATING
ENGINEERS , LOCAL UNION No. 3 OF INTERNATIONAL UNION OF
OPERATING ENGINEERS , PETITIONER
In the Matter Of WEAVER TRACTOR CO., EMPLOYER and OPERATING
ENGINEERS, LOCAL UNION No. 3 OF INTERNATIONAL UNION OF
OPERATING ENGINEERS, PETITIONER
In the Matter Of ZUMWALT, TRACTOR & EQUIPMENT Co., EMPLOYER and
OPERATING ENGINEERS , LOCAL UNION No. 3 OF INTERNATIONAL
UNION OF OPERATING ENGINEERS, PETITIONER
Cases Nos. 2O-RC-30, 20-RC-31, and 2O-RC-32, respectively.-
Decided August 31,1948
DECISION
® AND
DIRECTION OF ELECTIONS
Upon petitions duly filed, a hearing in this consolidated case was
held before a hearing officer of the National Labor Relations Board.,.
The hearing officer's rulings made at the hearing are free from preju-
dicial 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 this case, the Board finds :
I. THE BUSINESS OF THE EMPLOYERS
Weaver Tractor Co. is a California corporation selling at retail and
servicing Caterpillar, John Deere, and similar equipment. During
1947 it purchased more than $400,000 of Caterpillar equipment through
a California distributor, and more than $200,000 of John Deere equip-
ment in like manner. This Employer's sales of more than $3,000,000
1 The successor to the Herboth Tractor Co . was not represented at the hearing on March
8, 1948, and on March 16 the Board granted the Petitioner permission to withdraw its
petition, and closed Case No. 20-RC-30.
* Chairman Herzog and Members Reynolds and Murdock.
79 N. L. R. B., No. 58.
431
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were made within the State, except for a small portion estimated as 1
to 5 percent.
Zumwalt Tractor & Equipment Co. Is a partnership doing business
in California and consisting of I. G. Znmwalt, George R. Zumwalt,
Lionel Zumwalt and I. G. Zumwalt, Jr. It is engaged in the same
type of business as Weaver. Its total purchases of Caterpillar and
John Deere equipment in 1947 exceeded $1,000,000, of which less than
5 percent were orders placed direct to the factory rather than through
a California distributor. This Employer's total sales during 1947
exceeded $2,225,000 and all were made within the State.
Both Employers sell largely to farmers, although some sales are
made to construction companies and Government agencies, and Weaver
sells to loggers. Employees, of Weaver's branch office at Woodland
and Zumwalt's^main office-at Colusa are concerned in these proceeditf .
In view of the record in these cases and our holding in Matter of
Liddon White Ti wk Coinnpany, Inc.. 76 N. L. R. B. 1181, we find that
the Employers are engaged in commerce within the meaning of the
National Labor Relations Act. °
II. THE ORGANIZATION INVOLVED
It
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
III. THE QUESTIONS CONCERNING REPRESENTATION
The Zumwalt Tractor & Equipment Co. refuses to recognize the
Petitioner as the exclusive bargaining representative of employees of
the Employer until the Petitioner has been certified by the Board in an
appropriate unit.
The Weaver Tractor Co. urges as a bar to the proceeding involving
it a contract of indefinite duration, executed January 21, 1946, between
it and the Tractor & Equipment Employees Association. The Asso-
ciation did not intervene; although it was served with notice of the
hearing. Inasmuch as the contract in question had been in effect for
more than 2 years at the time of the hearing, it constitutes no bar to
the petition in case No. 20-RC-31.2
We find that questions affecting commerce existed concerning the
representation of employees of both Employers, within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
2 Matter o f Filtrol Corporation 74 N L R B 1307
HERBOTH TRACTOR CO.
IV. THE APPROPRIATE UNITS
433,
The,Petitioner hr Case No . 20-Rc-31 requests a unit of shop and
parts department employees at the Woodland , California , branch of
Weaver. Weaver would have the unit include all its employees except
supervisors , in accordance with its agreement with the Tractor &
Equipment Employees Association referred to in Section III 3 Thus,
Weaverwould include salesmen and office clerical employees in the unit.
Weaver has 18 employees in its Woodland shop and 9 in the parts
department . Shop employees include mechanics , helpers, and ap-
prentices , welders, machinists , and set-up men. These employees work
interchangeably at repair and assembly of equipment and are paid on
an hourly basis. The parts -department employees unpack and store
parts , fill orders , and account for parts . They are paid bi-weekly on
the basis of a 40-hour week. Only a wire netting divides the parts
department and repair shop , and employees front both sometimes sub-
stitute for salesmen , although commissions on such sales go to the
absent salesmen . A stenographer and 2 bookkeepers do office work
and help out on shop accounting. There are 2 salesmen who work in
the vicinity of Woodland ' on a salary and commission basis. They
have some knowledge of mechanics and make adjustments to equip-
ment in the field when necessary.
In the absence of a compelling argument to the contrary , the Board
will not in this case depart from its practice of excluding clerical em-
ployees and salesmen from a unit of manual'workers 3 We find that
the unit of shop and parts department employees requested in Case
No. 20-RC-31 is appropriate.'
In Case No. 20-RC-32 the Petitioner requests a unit of shop and
parts department employees at the headlluarters o-f Zumwalt at Colusa,
California . Znnlwalt would prefer a unit limited to shop employees.
At Colusa it has 5 5) mechanics who do work similar to Weaver's shop
employees and 8 employees Iii the parts department , Iuciudmlg 2 girls
who do typing, ordering , and record work. Six meu do the physical
work in connection with storage and distribution of parts . The other
non-supervisory employees are 9 office workers and 4 salesmen. The
mode of paying employees and the type of work are the same as in
the Weaver establishment . Zumwalt suggested no reason for exclud-
ing parts -department employees , and we think that a unit consisting
of employees in both departments , excluding the 2 girls in the parts
3 The contract specifies no unit , merely referring to "employees "
+Matter of The Boatman Co., 62 N L R B 1112 Matter of Kallahe, and Mee, Inc.
75 N L . R B 802 , Matter of Schiefin ( Co , 68 N L R. B 671 Matter of International
Harvester Co 72 N I, R B 1002
5 Matter of Ferguson -Steere Motor Co , 76 N I, R B 1122
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departments who are clerical workers, is appropriate in this case as
well as the Weaver case.
We find that (1) all shop and parts-department employees of the
Weaver Tractor Company at its Woodland Branch, excluding clerical
employees, salesmen'and supervisors; and (2) all shop and parts de-
partment employees of the Zumwalt Tractor & Equipment Co. at it's
Colusa office, excluding clerical employees, salesmen , and supervisors,
each constitutes a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Weaver Tractor Co. at Woodland,
California, and with Zumwalt Tractor & Equipment Co. at Colusa,
California, separate elections by secret ballot shall be conducted as
early as possible, but not later than thirty (30) days from the date of
this Direction, under the direction and supervision of the Regional
Director for the Twentieth Region, and subject to Sections 203.61 and
203.62, of National Labor Relations Board Rules and Regulations-
Series 5, among the employees in the units found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period immedi-
ately preceding the date of this Direction, 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 reinstated prior to the date of the election, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be represented by Operating Engineers
Local Union No. 3 of International Union of Operating Engineers,
for the purposes of collective bargaining.
6 Zumwalt agreed with the Petitioner at the hearing to exclude the 2 girl employees in
the parts department if the Board should find the remaining parts-department employees
were properly within the unit.