Southern Motors, Inc.

National Labor Relations Board - Board Decisions

Aug 14, 1958

121 N.L.R.B. 541 (N.L.R.B. 1958)

SOUTHERN MOTORS, INC. 541
Southern Motors, Inc. and General Drivers, Salesmen and Ware-
housemen 's Local Union #984, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America
and International Association of Machinists , District Lodge
#135, AFL-CIO, Joint-Petitioners . Case No. 32-RC-1113.
August 14, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES '
Pursuant to a Decision and Direction of Election 1 issued on April
21, 1958, an election by secret ballot was conducted on May 14, 1958,
under the direction and supervision of the Regional Director for the
Fifteenth Region among the employees in the unit found appropriate
by the Board. Following the election, the parties were furnished a
tally of ballots. The tally shows that of approximately 56 voters, 27
cast ballots for the Joint-Petitioners, 25 cast ballots against the Joint-
Petitioners, and 4 ballots were challenged.
No objections to the election or to the conduct of the election were
filed. As the challenged ballots were sufficient in number to affect the
results of the election, an investigation was made pursuant to Sec-
tion 102.69 of the Board's Rules of Regulations, Series 7, by the Re-
gional Director, who on June 6, 1958, issued his report on challenged
ballots. In his report the Regional Director recommended that the
challenges to the ballots of Walter Conaway, D. E. George, and John
'Isabell be sustained on the grounds that they are supervisors within
the meaning of the Act, and the challenge to the ballot of Joseph P.
Jolissaint be overruled on the grounds that he is not a supervisor
within the meaning of the Act. As no exceptions were filed to
the Regional Director's recommendations with respect to the ballots
of Isabell and Jolissaint, they are hereby adopted. The Regional
Director further recommended that as the ballot of Jolissaint could
not affect the result of the election his ballot not be opened and counted,
and that as the Joint-Petitioners received a majority of valid votes
cast in the election, they be certified as the exclusive representatives
of the employees in the unit heretofore found appropriate in this pro-
ceeding. On- June 17, 1958, the Employer filed timely exceptions to
the Regional Director's recommendations that the challenges to the
ballots of Conaway and George be sustained.
The Regional Director's report shows that Conaway, who is em-
ployed in the Employer's paint department, hired Keough, who works
in the paint shop, sets Keough's wage rate, and is responsible for the
flow of work as well as the entire paint process in the paint depart-
' Not published,
121 NLRB No. 62.
542 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
ment. The Regional Director concluded from the foregoing that
Conaway exercises independent judgment and can hire employees,
and recommended that the challenge to Conaway's ballot be sustained
on the grounds that he is a supervisor within the meaning of the Act.
The Regional Director's report shows that George, who is employed
in the body shop, recommended the hiring of the three employees
working in the body shop, assigns work, and is responsible for the
estimating of the body and paint work, for the flow and sequence of
work in the body shop, and for the entire operation of the body shop.
The Regional Director concluded from the foregoing that George
exercises independent judgment and can effectively recommend the
hiring of employees, and recommended that the challenge to the ballot
of George be sustained on the grounds that George is a supervisor
within the meaning of the Act.
In its exceptions the Employer in effect questions the validity of
the inferences the Regional Director has drawn from the evidence,
without alleging any additional facts. We find no merit to the ex-
ceptions, and we are satisfied that the evidence supports the Regional
Director's findings. '
Accordingly, in agreement with the Regional Director's recom-
mendations, we find that Conaway and George are supervisors within
the meaning of the Act and were therefore ineligible to participate in
the election.2
As we have sustained the challenges to three ballots and as the
ballot of Jolissaint, which was overruled, is insufficient to affect the
result of the election, we shall not pass on the challenge to his ballot,
which shall not be opened or counted.
As the Joint-Petitioners received a majority of the valid votes cast
in the election, we shall certify them jointly as the collective-bargain-
ing representatives of the employees in the unit heretofore found
appropriate in this proceeding.'
2It is noted that the authority and direction exercised by these two employees is simi-
lar to that exercised by Isabel] . whose challenge by the Employer on supervisory grounds
was sustained by the Regional Director.
In its initial decision in this proceeding , issued April 21, 1950 , the Board Included in
the unit found appropriate the Employer 's used-car service employees , thereby rejecting
the Employer 's assertion that such employees did not belong In the unit . On June 16,
1958, more than a month after the election herein, the Employer filed with the Board a
motion to reopen record, contending, In substance , that the used -car service employees
improperly voted In the election , for the asserted reason that they were no longer Its
employees . The Employer makes no claim that those employees were not in its employ
during the payroll period immediately preceding the direction of the election In this pro-
ceeding and has even failed to allege that these employees were not its employees on the
date of election . The Employer has, therefore, failed to show that the used -car service
employees were not eligible to vote in the election . Moreover , the Employer did not
challenge the ballots of these disputed employees at the time of the election Accord-
ingly, the Employer 's motion constitutes postelection challenges of the type which the
Board does not recognize . Flight Enterprises , Inc., 119 NLRB 1442 , and Sears Roebuck
and Co., 114 NLRB 762, 763. In all of these circumstances, the Employer's motion to
reopen record is hereby denied.
I
LOCAL 715 543
[The Board certified General Drivers, Salesmen and Warehous-
men's Local Union #984, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, and International
Association of Machinists, District Lodge #135, AFL-CIO, jointly,
as the designated collective-bargaining representatives of the em-
ployees in the unit heretofore found appropriate.]
MEMBERS BEAN and FANNING took no part in the consideration of
the above Supplemental Decision and Certification of Representatives.
Local 715, United Brotherhood of Carpenters and Millwrights,
AFL-CIO and Charles S. Wood and Co. Case No. ?2-CB-2
(formerly 2-CE-1555). August 15, 1958
DECISION AND ORDER
On October 19, 1956, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, a copy of
which is attached hereto, finding that the Respondent had not engaged
in any unfair labor practices, and recommending that the complaint
be dismissed in its entirety. Thereafter, the General Counsel filed
exceptions to the Intermediate Report and a supporting brief.
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 Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby -affirmed.' The Board has considered the Inter-
mediate Report, the General Counsel's exceptions and brief, and the
entire record in the case, and finds merit in the General Counsel's ex-
ceptions. We adopt the Trial Examiner's findings through section
III, C,'of the Intermediate Report, with the exception noted below .2
However, we reject his conclusions and recommendations except in-
sofar as they are expressly adopted in this decision.3
The General Counsel alleges that by participating with the Com-
pany in an arrangement, understanding, and practice, whereby car-
'Because the Respondent failed to file a timely answer to the original complaint, the
General Counsel filed a motion that the allegations therein be deemed to be admitted. No
exceptions having been filed to the Trial Examiner 's refusal to grant this motion, we
affirm his riling pro forma.
a The telephone conversation between Union Steward Schmidt and Union Business Agent
Fullagar , in which Fullagar told Schmidt to send Supervisor Scarinza down to the union
hall, occurred on May 3, rather than on May 4 as the Trial Examiner found.
a We agree with the Trial Examiner that the Company is engaged in commerce within
the meaning of the Act, and that the Respondent is a labor organization within the
meaning of the Act.
121 NLRB No. 60.