Cherner Motor Co.

National Labor Relations Board - Board DecisionsJan 17, 1940

19 N.L.R.B. 609 (N.L.R.B. 1940)

In the Matter of CHERNER MOTOR COMPANY and LODGE No. 193, INTER- NATIONAL ASSOCIATION OF MACHINISTS Case, No. R-107--Decided January 17, 1940 Automotive Sales, Service, and Repair Industry-Investigation of Representa- tives: controversy concerning representation of employees : controversy concern- . ing appropriate unit-Unit Appropriate for Collective Bargaining : automotive maintenance, repair, conditioning , and reconditioning mechanics and helpers in- cluding such employees in the service and used -car departments and paint shop, but excluding foremen and supervisory employees ; classification comports with jurisdiction of the union-Election Ordered Mr. Charles Y. Latimer, for the Board. Guy and Brooks, by Mr. Walter B. Guy and Mr. Louis H. Mann, of Washington, D. C., for the Company. Mr. Paul R. Hutchings, Mr. John G. Forsythe, and Mr. H. A. Schrader, of Washington, D. C., for the Union. Mr. William 7'. Little, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 23, 1939, Lodge. No. 193, International Association of Machinists,' herein called Lodge 193, filed with the Regional Director for the Fifth Region (Baltimore, Maryland) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Cherner Motor Company, Washington, D. C., herein called the Company, and requesting an investigation and, certification of representatives pursuant to Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, herein called the Act. On October 25, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board. Rules and Regulations-Series 2, ordered an investigation and authorized the Regional. Director to con- duct it and to provide for an appropriate hearing upon due notice. 1 Designated as Lodge # 193 Int'l . Ass'n . of Mach. In the notice of hearing. 19 N. L. R. B., No. 62. 609 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 30, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and Lodge 193. Pursuant to notice, a hearing was held from November 6 to 8, 1939, inclusive, before Henry W. Schmidt, the Trial Examiner duly designated by the Board. The Board, the Company, and Interna- tional Association of Machinists and Lodges 193 and 1486 thereof, herein collectively called the Union, were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing, counsel for the International Asso- ciation of Machinists, herein called the International, moved to amend the petition by substituting Lodge 1486 for Lodge 193, the original petitioner. The motion was granted without objection on the repre- sentation that Lodge 193 had changed its name to Lodge 1486. Sub- sequently it was shown that Lodge 193 is still in existence and that Lodge 1486 is a new organization chartered by the International to succeed to the jurisdiction of Lodge 193 over automotive employees in the District of Columbia.2 The Company then moved to dismiss the petition and counsel for the Board moved to substitute the Inter- national as the petitioner in the case. The Trial. Examiner reserved ruling on both motions. Lodge 1486 is the successor to Lodge 193 in its jurisdiction over automotive employees and is the lodge to which the Company's em- ployees either belong or will shortly be transferred. Both Lodge 193 and Lodge 1486 are locals or branches of the same International and the change of petitioners in no wise affects the issues presented at the hearing. In a proceeding such as the present, which has as its purpose the determination of the employees' representatives for the purposes of collective bargaining, the Company cannot be prejudiced by the change of petitioners under the circumstances here involved. The Trial Examiner's ruling granting the original motion to substitute Lodge 1486 for Lodge 193 as the petitioner is hereby affirmed, and the subsequent motions to dismiss and amend on which ruling was reserved, are hereby denied. During the course of the hearing tho Trial Examiner made several rulings on other motions and on objec- tions to the admission of evidence. The Board has reviewed the rul- ings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 22, 1939, the Company filed a brief which has been considered by the Board. Pursuant to a request therefor by the Company and upon notice to all parties, a hearing was had before the Board at Washington, D. C., on December 14, 1939, for the purposel 2 The transfer of members , including those among the Company 's employees, from Lodge 193 to Lodge 1486 was in progress at the time of the hearing. CHERNER MOTOR COMPANY ' 611 of oral argument. The Company. and the Union were. . represented by counsel and participated in the argument.,. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Cherner Motor Company, a Delaware corporation, maintaining plants, and offices in Washington, D. C., is engaged in the business of selling and servicing automobiles and operating service stations in the District of Columbia. The Company does an annual business which it estimates will amount to over $1,000,000 in 1939, and employs approximately .110 employees, We find. that the Company is engaged in trade, traffic, and com- merce in the District of Columbia. - H. THE ORGANIZATIONS INVOLVED Lodge No. 193, International Association of Machinists is a labor organization which, prior to October 1, 1939, admitted to membership employees of the Company as well as those of other employers in the District of Columbia. On October 1, 1939, Lodge 1486, International Association of Ma- chinists was chartered. Lodge 1.486 is a labor organization which admits only mechanics, machinists, and their helpers and apprentices employed in the automotive industry in the District of Columbia, including such employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION Between February and July 1939, a group of mechanics employed by the Company were on strike. On June 29, 1939, the Company and Lodge 193 entered an agreement whereby Lodge 193 was recog- nized as the representative of its members and both parties reserved the right to petition the Board for a certification of representatives. Thereafter on September 23, 1939, after a controversy had arisen concerning the proposed discharge of several employees, the present petition was filed. On September 29, 1939, the Company's attorney, in a letter to the Regional Director, questioned the propriety of the unit proposed by Lodge 193 and asked for a hearing on the matter. We find that a question has arisen concerning the representation of, employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce within the District of Co- lumbia, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT In its petition, as amended, the Union alleged that automotive maintenance, repair, conditioning, and reconditioning employees, in- cluding such employees in the service and used-car departments and paint shop, but excluding foremen and supervisory employees, con- stitute an appropriate unit. It is apparent from the record, how- ever, that the Union does not seek to include in the unit all such employees, but only mechanics and helpers. This is a reasonable basis for classification and comports with the jurisdiction of the Union. We find that such a unit composed exclusively of mechanics and helpers is appropriate. At the hearing, the Company and the Union agreed upon the inclusion of 26 employees, but disagreed as to the following 15 employees who the Company claimed are included in the above-described unit : Supervisory employees G. H. Spence and F. F. Smith are admittedly supervisory em- ployees in charge of about 41 and 20 employees respectively. The Union contends that R. E. Purchase is a supervisory employee and introduced evidence that he has charge of the mechanics working on the night shift as well as other employees on the service lane. The Company contends that Purchase is not a supervisory employee. The other service-lane employees with whom the Company seeks to classify Purchase receive salaries varying between $32.50 and $37.50 per week. Purchase receives $52.50. We find that Purchase is a supervisory employee. L. Springman is employed in the Company's used-car warehouse. The testimony of witnesses called by the Union that Springman is engaged primarily in office and supervisory work is not inconsistent with the testimony of Isador Peake, the Company's general manager, that he collaborates with one Albritton in making estimates on the repair of used cars, supervises the work of the men engaged in cleaning used cars, passes the instructions of the used-car sales manager on to the mechanics, and does some manual work himself. On one occasion the Company identified Springman as a shop foreman. We find that, Springman is a supervisory employee. Smith, Spence, Purchase, and Springman being supervisory em- ployees, all four will be excluded from the above-described bargaining unit. CHERNER MOTOR* COMPANY Service-station attendants 613 H. Weiss admittedly devotes two-thirds of his time to the duties of a gas or service-station attendant. The Company contends that P. Buchen and R. E. Brown are service-lane attendants and should be included in the unit as such along with the other service-lane attendants whom the parties have agreed to include. The Union. contends that Brown and Buchen are service-station manager and service-station attendant respectively. The service-lane employees examine customers' cars, diagnose the trouble, make minor adjust- ments themselves and if major repairs are required they send the cars to the shop with directions as to the repairs to be made. The Union claims that such a position is frequently given to mechanics and that the other service-lane attendants are mechanics who on occasion work with the other mechanics in the shop. There is no testimony that Buchen and Brown are mechanics. The Company admits that Buchen. is a service-station attendant who, on occasion, lubricates cars and works on the grease racks and in the gas station, but contends that he also does the same work as the service-lane employees except for 10 per cent of his time devoted to service-sta- tion work. Buchen's salary is practically the same as Weiss' and considerably less than the other service-lane attendants. We find that Buchen is primarily a service-station attendant. Brown is de- nominated by the Company as a service-station attendant, service- lane attendant, and electrician. The Union contends that he is in charge of the Company's service stations. The Company admits that he devotes some of his time to service-station work and that he super- vises the equipment at the Company's other stations, but contends that he, like Buchen, does the same work as the other service-lane employees except for 10 per cent of his time devoted to the service station. Peake testified that Buchen, whom we have found to be a service-station attendant, is Brown's assistant. Although Brown's salary is considerably in excess of Buchen's and is comparable to that of the service-lane employees, that may well be explained by the supervisory nature of some of his duties. It would ' appear that Brown is Buchen's superior and otherwise is in much the same situation as Buchen. We find that Brown is primarily a service- station attendant. The Union and the teamsters union have an agreement whereby employees' performing the duties of service-station attendants fall outside the jurisdiction of the Union and within the jurisdiction of the teamsters union. Weiss, Buchen, and Brown are therefore ineligi- ble for membership in the Union and have not designated the Union to represent them. We shall accordingly exclude them from the unit. 283030-41-vol. 19-40 614 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD Miscellaneous employees R. Borden is a tool or shop clerk . As such, he writes requisitions for the materials required by the mechanics and takes care of the Company's tools . M. L. Ashworth and S. Gray are denominated by the Company as used-car utility men . They perform such minor mechanical work as can be done in the open without shop facilities, such as changing wheels, spark -plugs, and batteries and cleaning- car- buretors.. It is admitted that all three are not mechanics or helpers. The appropriate unit as defined above is comprised exclusively of mechanics and helpers . We shall . accordingly exclude Borden, Ash- worth, and Gray from the unit. . Peake testified that J. Dillard is a mechanic engaged in conditioning cars and that J. Hicksen and T. E. Perkins are employed at the Com- pany's branch sales and service stations as a mechanic and mechanic's helper respectively . Dillard and Perkins receive the regular rate of pay for mechanics and helpers . Although Hicks en did not receive the overtime ordinarily paid a mechanic , Peake testified that he was probably compensated in time off . The witnesses called by the Union to refute the Company 's testimony concerning Hicksen and Perkins have had little opportunity to observe the work of such men. We find that Dillard, Hicksen , and Perkins are employed as mechanics and mechanics ' helpers and we shall accordingly- include them . in the unit. M. Albritton is employed at the Company 's used-car warehouse where he examines used cars , determines their mechanical condition, makes minor repairs, and tests cars after the mechanics have com pleted major repairs. His duties would appear to be much the same as the employees in the service lane, described above, who , all parties agree, should be included . The Union's contention that his duties are supervisory is not supported by the record . We. shall accordingly include him in the unit. W. Love, according .to the Company, is a painter 's helper and should be included in the unit along with G. W. Douglas , the painter, who, all parties agree, should be included . The witnesses called by the Union testified that he masks and sands fenders and otherwise pre- pares cars for painting . Peake testified that he also paints fenders and truck chassis. It was stipulated that Spence , the service super- visor , and Love would testify to the same effect as Peake. Although Love does not receive the prevailing wage for a mechanic 's helper, that is not persuasive in the face of the admitted nature of-his duties. We find that ' Love is a painter 's helper and we shall - accordingly include him in the unit. We find that all the automotive maintenance , repair, conditioning; and reconditioning mechanics and he] pers employed by the Com- pany including such employees in the service and used-car depart- CHERNER MOTOR COMPANY 615 ments and paint shop, but excluding foremen and supervisory em- ployees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Com- pany the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing the Union claimed that 18 employees of approxi- mately 31 within the classifications of the appropriate unit as herein found, had authorized the International to act as their representative for the purpose of collective bargaining. The Company showed that all of these employees are not members of Lodge 1486, but that some are still members of Lodge 193. While there is no reason why Lodge 1486 cannot represent the members of Lodge 193 if the latter so desire,' we believe that the question concerning representation can best be resolved by means of an election by secret ballot. The Union requests that the pay roll of the week of September 22 be used to determine eligibility to vote in the election. No, reason appears in the record why a more current date should not be used. We shall accordingly direct that those eligible to vote in such elec- tion will be those persons in the appropriate unit who were employed during the pay-roll period immediately preceding the date of this Decision and Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vaca- tion, and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Cherner Motor Company, Washington, D. C., within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All automotive maintenance, repair, conditioning, and recondi- tioning mechanics and helpers employed by the Company including such employees in the service and used-car departments and paint shop, but excluding foremen and supervisory employees, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. O See Matter of Luckenbach Steamship Company, Inc., et at. and Gatemen, Watchmen, and Miscellaneous Waterfront Workers Union, Local 38-124; International Longshoremen's Association, 2 N. L. R. B. 181. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Cherner Motor Company, Washington, D. C., an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Fifth Region, acting in this matter as agent of the National Labor Rela- tions Board and subject to Article III, Section 9, of said Rules and Regulations, among all automotive maintenance, repair, conditioning, and reconditioning mechanics and helpers employed by the Company during the pay-roll period immediately preceding the date of this Direction of Election, including such employees in the service and used-car departments and paint shop, employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding foremen and supervisory employees and those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Lodge 1486, International Association of Machinists, affiliated with the American Federation of Labor, for the purposes of collective bargaining.