Hagedorn Pontiac Co.

National Labor Relations Board - Board DecisionsNov 18, 1953

107 N.L.R.B. 97 (N.L.R.B. 1953)

BOGALUSA MOTORS, INC. 97 BOGALUSA MOTORS, INC.; A. G. NEWBAUER & A. L. HAGEDORN d/b/a HAGEDORN PONTIAC COMPANY; 1 LAWRENCE GUIDRY d/b/a GUIDRY'S AUTO SERVICE;' HOLLAND MOTORS, INC.; LINDSLEY-FEIBER MOTOR CO., INC.; WESLEY MOTOR COMPANY, INC.; 1 A. E. KNIGHT, JR. & BRUCE WHITE d/b/a WHITE-KNIGHT MOTORS;' H. C. McKOY d/b/a McKOY LINCOLN-MER- CURY COMPANY;, A. E. KNIGHT, SR., d/b/a MAGIC CITY MOTORS' and PINE TREE LODGE 1983, INTER- NATIONAL ASSOCIATION OF MACHINISTS, AFL, and LOCAL UNION NO. 5, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, Joint Petitioners. Cases Nos. 15-RC-965, 15-RC-966, 15-RC-967, 15-RC-968, 15- RC-969, 15-RC-970, 15-RC-971, 15-RC-972, and 15-RC- 973. November 18, 1953 DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Joseph Smolen, hearing officer. The Employers have moved that these cases be remanded for rehearing because of the alleged prejudice and bias of the hearing offi- cer, particularly in questioning witnesses to an unnecessary and inappropriate extent . As representation proceedings are investigatory rather than adversary , it is a hearing officer's function to see that the record contains a full presentation of factual material upon which the Board can decide the issues involved. While the record does not disclose bias, prejudice, partiality, or incapability on the part of the hearing officer, we do not condone his conduct in monopolizing the questioning of witnesses , testifying as to his own experience on an irrelevant matter , and introducing and permitting the introduc- tion of extraneous issues. However , the record does not disclose that any party was denied the opportunity to introduce pertinent evidence, or was otherwise prejudiced. As the record is adequate for decision, we find no merit in the Employer's motions relating to the conduct of the hearing.: The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby adopted.3 ' The Employer 's name appears in the caption as amended at the hearing. 2 See Ravenna Arsenal, Inc â€ž 98 NLRB 1. SThe hearing officer referred to the Board the following Employers' motions: (1) To deconsolidate and dismiss the petitions on the ground that the consolidation was improper; (2) to dismiss the petitions on the ground that there was no satisfactory showing of com- pliance; (3) to dismiss the petitions on the ground that there was no showing that a competent representative of Local Union No. 5, was present at the hearing to represent that union; (4) to dismiss the petitions on the ground that there was no adequate showing of interest designating a joint petitioner ; (5) to find legal bias and prejudice on the part of the hearing officer for participating in the hearing by questioning witnesses to an "unnecessary and inappropriate extent" ; and (6) to dismiss the petitions for lack of jurisdiction over the 107 NLRB No. 30. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in these cases, the Board finds: 1. Each Employer has a nonexclusive franchise for the sale of nationally distributed automobiles , parts, and equipment. Some also have similar franchises for the sale of farm and truck equipment . The contracts with the manufacturers all provide specifically for capital requirements , place of busi- ness, service facilities , and advertising details. Each Em- ployer makes substantial purchases directly from outside the State, ranging in dollar volume from $ 90,000 to $ 630,000. Only one Employer, Lindsley- Feiber Motor Co., Inc., has a direct inflow of goods or materials from outside the State totaling more than $500 , 000 a year .4 Virtually all sales are local. The Employers contend that they are not engaged in opera- tions affecting commerce. Under the principal standards established by the Board in October 1950, for determining whether or not it would effectuate the policies of the Act to assert jurisdiction over particular employers in commerce, the Board would , and hereby does, assert jurisdiction over each Employer on the ground that its establishment operates as "an integral part of a multistate enterprise." 5 2. The labor organizations named below claim jointly to represent certain employees of each of the Employers. 3. A question affecting commerce exists concerning the representation of certain employees of each of the Employers, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioners generally request units comprising all service department employees , body and trim shop employees, parts department employees , and, where employed , service- station attendants and helpers, excluding all office and plant Employers involved. Motions ( 1), (2), and (4) relate to matters for administrative determi- nation, not litigable by the parties. Bill Daniels , Inc., et al ., 88 NLRB 572; Lion Oil Company, 76 NLRB 565; and The Baldwin Locomotive Works, 76 NLRB 922. They are, therefore, denied Motions ( 3) and (4) are based upon the Employers' contention that it is improper for the Board to entertain a petition jointly signed by two unions , and, presumably, that it would be improper for the Board to certify the Petitioners jointly. We see no reason to depart from the Board ' s past practices in such cases The names of the Petitioners will appear jointly on the ballot and, if they are successful in the elections directed hereinafter, they will be certified jointly as the bargaining representative of the employees in any such appropriate unit . The fact that the Employer may then insist that the Petitioners bargain jointly for such employees as a single unit neither constitutes them a single labor organi- zation , within the meaning of Section 9 (f), (g), and (h), nor precludes one union from com- petently representing the other at the hearing . Accordingly, we deny these motions. See White Motor Company, 86 NLRB 380, and cases cited at footnote 4, therein. Motions (5) and ( 6) are denied for the reasons set forth in the body of the decision. 4For the reasons stated in his dissent in Klinka's Garage, 106 NLRB 969, Chairman Farmer would not assert jurisdiction over any of the present Employers other than Lindsley- Feiber Motor Co., Inc. 5See Sixteenth and Seventeenth Annual Reports , pp. 15 and 39 and pp . 9, 13-15, and cases cited therein ; Howell Chevrolet Co., 95 NLRB 410, enfd. 204 F. 2d 79 (C. A. 9), certiorari pending. Board Member Rodgers joins in this decision but is not to be deemed thereby as agreeing with the Board' s present jurisdictional standards. BOGALUSA MOTORS INC. 99 clerical employees , automobile salesmen, and the statutory exclusions . The Employers , on the other hand , generally contend that the appropriate unit should be all employees, including office clericals and salesmen , with the statutory exclusions. Although the Board has found that the unit urged by the Employers may be appropriate ,6 the Board has in the past made a policy of not including office clericals in a unit with the shop employees of an automobile dealer , and of excluding salesmen from such a unit unless some participating labor organization desired their inclusion . ? In the past , the Board has included clericals and salesmen in the same unit or found each to be a separate appropriate unit.8 In the event that there was only one employee who was outside the requested unit, the Board normally included such employee, whether a sales- man or a clerk.9 The Employers contend that the Board should reexamine this decisional pattern and find appropriate , as it does in retail stores , a unit of all employees. 10 In support of this position , the Employers note that many automobile dealers maintain small and closely knit establishments in which the relationship between the salesman and the mechanic who services the salesman ' s customers' cars or repairs them is as close as that between the salesman and the office clericals. We find merit in this contention . Accordingly , we find that all employees, including salesmen and clerks, with the statutory exclusions , constitute the unit appropriate for purposes of collective bargaining in automobile retail and service estab- lishments. 11 Particular problems remain to be decided on a case-to-case basis. In Bogalusa Motors, Inc ., the Petitioners contend that Donahue, a semimonthly -paid parts department employee is a supervisor , but that Browder, the body shop foreman is not. The record clearly establishes that Donahue does not have authority to hire, fire , discipline , change pay , or effec- tively recommend such action . He does not grant time off and his only direction of work is routine instructions to the junior parts man or helper . We agree with the Employer' s contention that Donahue is not a supervisor within the meaning of Section 6See Nash Boulevard Corp., 98 NLRB 156 ; Massachusetts Motor Car Co., 90 NLRB No. 186 (not reported in the printed volumes of Board Decisions). 7 Hanna Motor Company, 94 NLRB 105. 8 Nash Boulevard Corp., supra. 9 See Hill & Co., 76 NLRB 158; Paisley Steamship Co., 55 NLRB 945. io Sears , Roebuck and Co., 66 NLRB 285; Denver Dry Goods Company, 74 NLRB 1167; Sears , Roebuck and Co., 90 NLRB No. 15 (not reported in the printed volumes of Board Decisions). "Board Member Murdock would grant the requested units for the reason that such units are not only traditional to establishments engaged in the sale and repair of automobiles but also one uniformly held appropriate for the purposes of collective bargaining . Dunlap Chev- rolet Company, 91 NLRB 115, and cases cited therein. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 (11) of the Act, and is therefore within the unit. On the other hand , Browder does have authority to hire, and has hired 2 of the 3 employees presently working in the body shop. He also transfers employees and responsibly directs work. We therefore find that he is a supervisor , and shall exclude him. In Hagedorn Pontiac Company, our unit finding above eliminates the questions relating to the inclusion or exclusion of the single clerical employee, the 2 service station gas attendants , and Easterling , and Fierabend , 2 employees who spend a substantial portion of their working time doing parts department or repair work but who also do a significant amount of sales work . The Petitioners contend , and the Employer denies, that Parnell , Easterling and Fierabend are supervisors . Although 1 mechanic testified that LeBlanc, the former owner , had told him that Parnell was the shop foreman , the record establishes that , since the change in management in June 1953 , Parnell has had no supervisory authority. The record fails to support the allegation that either Easterling or Fierabend is vested with supervisory authority. Accordingly we shall include them. The Employer in Holland Motors, Inc., seeks to exclude Stogner as the supervisor in the body shop . As the record establishes that Stogner has authority effectively to recom- mend hiring and discharging employees and may on his own initiative lay off employees in the body shop, we find, con- trary to the Petitioners ' contention , that Stogner is a super- visor and we shall , therefore , exclude him. In Wesley Motor Company, Inc., there were two eligibility problems. In view of our finding that salesmen should be included in the appropriate bargaining unit, we need not, and do not, determine whether McKay is principally employed as a salesman , as the Petitioner contends , or as a parts depart- ment employee, as the Employer contends . The Petitioners also seek to exclude Ottis Bates on the ground of his relation- ship to Hiram Wesley , the Employer ' s president . Bates is married to Wesley ' s wife's sister . The Employer contends, and we agree , that this degree of relationship is not a basis for exclusion when as here , there is no affirmative showing that the employee involved enjoys a special status which allies his interests with those of management. Accordingly, we shall include Bates. 12 The Petitioners would exclude Miss Dillon from the unit in White-Knight Motors because she is the aunt of one of the partners and an office clerical . As there is no evidence that she enjoys a special status allying her interests with those of management because of her relationship , we shall include her. 19 The Employer would exclude, and the Petitioners would include, Bertoniere , whom the Employer asserts to be 12 See International Metal Products Company. 107 NLRB 65. 1lSee footnote 12, supra. BEARING & RIM SUPPLY CO 101 a supervisor. The record establishes that Bertoniere assigns work to other employees and has the authority effectively to recommend hiring and discharging employees. Accordingly, we find that he is a supervisor and shall exclude him. The sole problem in McKoy Lincoln-Mercury Company relates to the propriety of including Pearce, an employee who regularly works not only in the parts department but also as the payroll clerk and as a part-time salesman. We note that the performance of such multiple functions by a single employee is persuasive evidence in support of our finding that all employees constitute the appropriate unit. In Magic City Motors, the parties disagree as to the inclusion or exclusion of Stone, the head mechanic in the repair shop, and Hopkins, the son-in-law of the owner. The Employer would include both. The Employer admitted that Stone can transfer other employees to different tasks but contends that such transfers can be effected bynonsupervisors. However, the Employer also admitted that Stone can effectively recommend that a probationary employee be made permanent or released. We therefore find that Stone is a supervisor within the meaning of the Act, and shall exclude him. Like the Employer, we think the relationship between Hopkins and A. E. Knight, Sr., insufficient, in the absence of a showing that he is accorded disparate and preferential treatment, to warrant his exclusion. 14 We find that all employees of each of the Employers at its Bogalusa, Louisiana, establishment, excluding guards, professional employees, and supervisors as defined in the Act, constitute separate units, appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Elections omitted from publication.] 14 Ibid. BEARING & RIM SUPPLY CO. and CECIL SALING, M. F. SCHOENBERG, ARLO L. MC FARLAND, CLYDE ENGLUNG, and DONALD W. LINDQUIST, Petitioners and WAREHOUSE- MEN, GARAGE and SERVICE STATION EMPLOYEES' LOCAL UNION NO. 334, A. F. of L.' Case No. 19-RD-64. November 18, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition for decertification duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Eugene R. Ormsbee, hearing officer. The hearing 1 The name of the Union appears as corrected at the hearing. 107 NLRB No. 34.