Liddon White Truck Co., Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1948

76 N.L.R.B. 1181 (N.L.R.B. 1948)

In the Matter of LIDDON WHITE TRUCK COMPANY, INC., EMPLOYER and
INTERNATIONAL ASSOCIATION OF MACHINISTS , PETITIONER
Case No. 10-R-2794.Decided April 6,19.148
Mr. Juds on Harwood, of Nashville, Tenn., for the Employer.
Mr. John W. Carlton, of Birlnington, Ala., and Mr. H. C. Summers,
Jr., of Nashville, Tenn., for the Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Nash-
ville, Tennessee, on October 28, 1947, before William M: Pate, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board snakes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE EMPLOYER
Liddon White Truck Company, Inc., a Tennessee corporation, has
its sole office and place of business in Nashville, Tennessee, where it is
engaged in the retail sale of White motor trucks, accessories, and parts,
and in the repair and servicing of White and other makes of trucks.
All trucks and accessories sold by the Employer are shipped to it from
points outside the State of Tennessee., In addition, practically all parts
used by the Employer are also shipped to it from outside the State.
During the first 6 months of the 1947 calendar year, $150,000, or approx-
imately 40 per cent, of the Employer's total receipts resulted from the
sale of White trucks. Although during this period all truck sales were
made to buyers Within the State of Tennessee, the record discloses that
sales are at times made to purchasers outside the State of Tennessee. A
1 The fact that title might not have passed to the Employee until after delivery of the
trucks and accessories is not material here . See Williams Motor Co0npany v N L R B.,
128 F (2d) 960, 963 (C C A 8) and cases cu ed.
76 N. L. R B., No 165
1181
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract which the Employer has with the manufacturer, the White
Motor Company of Cleveland, Ohio, defines the Employer' s sales ter-
ritory as including southern Kentucky as well as sections of Tennessee.
In the Employer's service department, with whose employees this
proceeding is concerned, many of the trucks repaired and serviced by
such employees are engaged in the transportation of goods in interstate
commerce.
The Employer contends that it is a local enterprise and as such
is not engaged in interstate commerce within the meaning of the Act.
However, as illustrated above, the Employer relies almost entirely on
interstate shipments for merchandise which it either retails or uses in
its service department.2 Although we have on occasion refused as a
matter of discretion to assume jurisdiction over enterprises similar
to the Employer's on the ground that the investigation and processing
of such cases by the Board would not effectuate the policies of the
Act,a we are of the opinion that at the present time the policies of
the Act can best be effectuated if the organizational activities of the
employees herein involved are conducted within, rather than without,
the framework of the Act.4 Upon the basis of *the foregoing, we find
that the Employer is engaged in commerce within the meaning of the
National Labor Relations Act.5
II. TIIE ORGANIZATION INVOLVED
The Petitioner is an unaffiliated labor organization claiming to
represent employees of the Employer.
2 The courts have continually regarded such an inflow of goods in interstate commerce
as sufficient to bring an enterprise within the Board's jurisdiction . N L R B. v. Fain-
blatt, 306 U . S 601 ; N. L. R B v. Suburban Lumber Co, 121 F (2d ) 829, 831 (C C A
3) ; N. L R . B. v Robert S. Green, rite , 125 F . ( 2d) 485 (C. C A. 4), N. L R. B. V. Kudile,
130 P. ( 2d) 615 (C C A 3) ; and Williams v N L. R B, supra In the Williams case a
.retail auto sales agency was involved
See, for example, Matter of IZerff Motor Company , 74 N. L R B 1007
The Board has asserted jurisdiction over retail auto sales agencies in the past. See
Matter of Newton Chevrolet , Inc, 37 N. L. R B. 334.
5In making this finding, we disagree with the intimation conveyed by our dissenting
colleagues that the majority opinion represents a depaiture from an established policy.
During recent years, situations which presented an issue as to the local character of an
euiployei ' s operations were approached on a case-to -case basis. As a result , in some of
these situations the Board refrained , in the exercise of its discretion , from asserting nuis-
diction ( See cases cited in footnote 5 of the dissenting opinion ) In other instances, how-
ever, the Board believed that the policies of the Act could best be effectuated by assuming
,lursdiclion over enterprises as essentially local in nature as the operations involved
lies "in See, for example , Matter of Raleigh Coca Cola Bottling Works , 65 N L R B 1010
(1946 ) ; Matter of Desnmond's Iris, 68 N. L R B 379 ( 1946 ) ; Matter of Omar, Incorpo-
rated, 69 N. L . R B 1126 ( 1946 ) ; Matter of Coopersville Cooperatsi.e Elevator Company,
73 N L It B 480 (1947 ) ; Matter of Foreman if Claik, 74 N L. R . B. 77 (1947 ) ; Matter
of Coca -Cola Bottling Company of Arkansas , 74 N. L R B . 1098 ( 1947 ) ; and Matter of
But net - Binford1Luniber Conipanij, Inc, 75 N. L R . B 421 (1947).
LIDDON WHITE TRUCK COMPANY, INC.
III. THE QUESTION CONCERNING REPRESENTATION
1183
The Employer in effect 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.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
Iv. THE APPROPRIATE UNIT
The Petitioner seeks a unit of all mechanics and mechanic trainees
and helpers engaged in repairing and servicing automotive equip-
ment in the Employer's service department in Nashville, Tennessee.
The Employer is in agreement that the unit sought is appropriate,
except that, in its view, the unit should include two stockroom clerks
whom the Petitioner would exclude.
The Employer would include the two stockroom employees on the
nnrcund that they supply parts to the mechanics and on occasions
install those parts, which activities it is alleged closely bind the inter-
ests of the stockroom clerks with those of the mechanics. However, the
record discloses that stockroom employees install parts very rarely,
and then only in emergencies. It also appears that the mechanics rely
upon the helpers to procure parts from the stockroom and conse-
quently are not wholly dependent upon the stockroom employees in
that respect. Moreover, a substantial part of the stockroom em-
ployees' time is spent in over-the-counter sales to customers. The
importance of this sales work is emphasized by the fact that the senior
stockroom employee receives in addition to a regular salary a lump
sum remuneration based upon the Employer's receipts. We are of
the opinion, especially in view of their sales activities, that the employ-
ment interests of the stockroom employees are distinguishable from
those of the service department mechanics, trainees, and helpers.
Accordingly, we shall exclude them from the unit.
We find that all mechanics and mechanic trainees and helpers
employed in the Employer's service department at Nashville, Ten-
nessee, excluding all stockroom employees, the showroom and office
porter, clerical employees, and all supervisors, constitute a unit appro-
priate for the purpose of collective bargaining within the meaning of
Section 9 (b) of the Act.
0 These helpers are sometimes referred to as service department porters.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Liddon White Truck Company,
Inc., Nashville, Tennessee, an election by secret ballot shall be con-
ducted 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 Tenth Region, and subject to Sections
203.61 and 203.62, of National Labor Relations Board Rules and Regl-
lations-Series 5, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
'rho 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 ex-
cluding employees on strike who are not entitled to reinstatement,
to determine whether or not they desire to be represented by Inter-
national Association of Machinists, for the purpose of collective
bargaining.
CIIAIRiMAN HERZOG and MEMBER MURDOCK , dissenting :
We would grant the Employer's motion to dismiss, rather than exer-
cise jurisdiction in this case of a retail automobile dealer. We do not
question our colleagues' conclusion that it is constitutionally possible
to assert the Federal power here, but we say that it is administratively
unwise to do so. The fact that this Board may do something does not
mean that it must or should.
We would maintain the policy of self-abnegation enunciated in the
Herff Motors case,' decided less than a year ago, rather than return
to doctrine that has lain quietly interred since Newton Chevrolet issued
in 1941.2 The amended statute contains no language compelling a sud-
den expansion of this Board's jurisdiction, nor can we discover new
policy considerations sufficient to warrant our intervening in a con-
troversy inherently local in character.3
x 74 N L R B. 1007 (1947), decided by the Chairman and Member Reynolds , Member
Houston dissenting.
2 37 N. L R. B 334
3 The Board ' s recent assertion of jurisdiction over the building -construction industry,
which appears to have more local attributes than the trade involved here, is justified by
special considerations . In enacting the amendments to the Act, the 80th Congress directed
particular attention to jurisdictional disputes and other practices that were conspicuously
characteristic of the building trades If constitutional power exists , as we believe it does,
the Board would be derelict in its duty if it (lid not exercise that power at a point that was
`he express subject of Congressional concern
LIDDON WHITE TRUCK COMPANY, INC. 1185
An agency that received 12,500 new cases in the most recent 6-month
period and closed its books on March 1 with 9,500 cases pending'
ought not, in our opinion, to embark upon a search for new fields to
conquer. There is more than enough to do. We believe that it would
be better for the Board to concentrate attention upon expediting
action on cases in important industries, rather than dissipate its ener-
gies upon matters that would normally be the concern of the States.
If it be said that certain States do not now have the necessary machin-
ery available, we reply that the unrestrained expansion of Federal
jurisdiction is the most likely way to assure the perpetuation of that
condition.
Although this case relates only to a retail automobile dealer, we also
voice concern at the general change in policy that it portends.
Throughout 1945, 1946, and 1947 the old Board, in administering the
Wagner Act, refrained from exercising jurisdiction in situations that
have an essentially local flavor.5 Chairman Herzog would adhere
under the new law to the practice that he thought proper under the
old, and Mr. Murdock would take no different course.
* N L R B. Press Release S-18, issued March 14, 1948
Matter of S. & R Baking Co , Inc, 65 N L R. B 351 ; Matter of Mason & Son Coal Co.,
72 N L R B 195 : Matter of F C Congdon , 74 N L. R B. 1081; Matter of Cousins Tractor
Company, 72 N L R B 857 . See also the Chairman 's dissenting opinion in Matter of
Jacob SIineidcr Pattern Works , 64 N L R B 787 , 790 (1945).