The D. L. Dineen Sales & Service Corp.

National Labor Relations Board - Board Decisions

Oct 23, 1950

91 N.L.R.B. 1222 (N.L.R.B. 1950)

ID the Matter of TH E D. L. DINEEN SALES & SERVICE CORPORATION,.
EMPLOYER and ENTERPRISE ASSOCIATION METAL TRADES BRANCH,
LOCAL UNION 638, A. F. or L., PETITIONER ,
Case No. 2-RC-18,94.-Decided October 23, 1.950
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 I. L. Broadwin, 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 this case, the Board finds:
1. The business of the Employer :
The Employer, a New York corporation, is engaged in the business
of selling, installing, and servicing commercial refrigeration and air-
conditioning equipment, and installing and servicing refrigerators and
air-conditioning equipment for, domestic use. The Employer has
nonexclusive contracts -with Frigidaire Sales Corporation' under
which it services and sells Frigidaire equipment in Kings and Queens
Counties, New York City.2 The Employer also services equipment
produced by other manufacturers.
During 1949 the Employer purchased equipment and parts valued
at $190,209.47 from Frigidaire Sales Corporation. Of this amount,
$133,058.18 represented purchases of equipment and parts from a
Frigidaire warehouse within the State, which equipment 'and parts
were manufactured outside the State; $41,081.29 represented purchases
of equipment and parts shipped directly to the Employer from the
Frigidaire factory in Dayton, Ohio; and $16,070 represented replace-
ment units for domestic refrigerators shipped from outside the State.
During the same period, the Employer had gross earnings of $786,000,
of which about 70 percent represented sales of equipment and parts,
I Frigidaire Sales Corporation, a Delaware corporation, is a wholly owned subsidiary of
General Motors Corporation. It is the distributing agent for Frigidaire products manu-
factured by the Frigidaire Division of General Motors.
2 The service agreement between Frigidaire Sales Corporation and the Employer, which
includes the warranty service, is terminable at will by either party.. The method of termi-
nating the sales agreement is not set forth in the record. There is only one other concern
in this area operating under a similar arrangement with Frigidaire Sales Corporation.
91 NLRB No. 186.
1222
THE D. L. DINEEN SALES & SERVICE CORPORATION 1223
all made within the State, and less than 3 percent of which sales were
made to industrial manufacturing concerns.3 The Employer received
between $50,000 and $100,000 from Frigidaire Sales Corporation for
servicing equipment sold by Frigidaire with a warranty.'
The Board has recently determined that jurisdiction should be exer-'
cised over enterprises furnishing goods or services valued at more
than $50,000 per annum necessary to the operation of enterprises en-
gaged in producing or handling goods destined for out-of-State ship=
ment.5 In the instant case, the Employer furnishes services valued
annually at over $50,000, necessary to the effective operation of, and
for which it is paid directly by, Frigidaire Sales Corporation, a con-
cern clearly engaged in handling goods for out-of-State shipment.6
We therefore find, contrary to the Employer's contentions, that its
-operations affect commerce within the meaning of the Act, and that it
will effectuate the purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to represent certain 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 appropriate unit :
We find that all shop, installation, service and parts ,men 8 at the
Employer's Woodhaven and Richmond Hill, Long Island, New York,
plants, excluding clerical employees, guards, professional employees,
and supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
5. The Employer requests that only employees employed on the date
of the hearing in this case be eligible to vote in any election directed
herein. As the Employer has advanced no persuasive reasons in slip-
3 Less than 1 percent of its service business is performed on equipment in use by industrial
manufacturing concerns.
' In its brief , the Employer stated that approximately 15 percent of its servicing business
was performed on such equipment . This would amount to approximately $ 82,530.
See Hollow Tree Lumber Company, 91 NLRB 635.
e Cf. Refrigeration Service Inc., 90 NLRB No. 286.
° The Petitioner has waived any right to object to any election held in the present case
on the basis of any acts alleged as unfair labor practices in its charges filed in Case No.
2-CA-1109.
8 The Employer would include , and the Petitioner exclude, the parts men, who are engaged
mainly in furnishing parts to the service and installation men employed by the Employer.
The record discloses that the parts men have frequent contact with working conditions
substantially similar to, and interests closely related to those of the employees whom the
Petitioner seeks to represent . They are therefore included in the unit herein found
appropriate.
The Petitioner would also exclude one of the parts men, Paul Forbes , from the unit as
a supervisor . The record discloses that Forbes performs , for the most part, the same duties
as the other parts men and is not vested with any supervisory authority . He is therefore
included in the unit.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port of this request, we shall adhere to our usual practice of directing:
an election among those employed during the payroll period imme-
diately preceding the date of our Direction of Election, as set forth
below.
[Text of Direction of Election omitted from publication in this
volume.]