Soerens Motor Co.

National Labor Relations Board - Board DecisionsOct 30, 1953

106 N.L.R.B. 1388 (N.L.R.B. 1953)

1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclude Lafaw from the unit. Oswald is temporarily assigned to the builders' hardware department and spends most of his time performing clerical work in the builders' hardware office. Thus, he records price changes for the use of the billing department and maintains inventory records. Although Oswald is performing his present duties on a temporary basis, the record reveals that he will continue to perform similar clerical work after the completion of this assignment. Accord- ingly, as the parties have agreed to exclude all office clerical employees from the unit, we shall also exclude Oswald.' We find that all selling and nonselling employees at the Employer's main building and warehouses in Allentown, Pennsylvania , including retail store clerks , repair and sales- men, glass room clerks, stock clerks, decorators , displaymen, elevator operators , warehousemen , shipping clerks, and freight handlers, but excluding truckdrivers, outside salesmen and house salesmen, buyers and buyer trainees,' office clerical employees,' guards, and all 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. [Text of Direction of Election omitted from publication.] 7 Montgomery Ward & Company, Inc., 100 NLRB 1351. 8 Including Lafaw. 9 Including Oswald. SOERENS MOTOR COMPANY and UNITED AUTOMOBILE SALESMEN, LOCAL 174, CIO, AFFILIATED WITH UNITED OPTICAL & INSTRUMENT WORKERS, Petitioner. Case No. 13-RC-2584. October 30, 1953 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election, an election was conducted on April 21, 1952, under the direction and supervision of the Regional Director for the Thirteenth Region, among certain employees of the Employer. At the close of the election, a tally of ballots was furnished each of the parties in accordance with the Board's Rules and Regulations. The tally shows that 5 valid ballots were cast for the Petitioner, 4 valid ballots were cast against the Petitioner, 1 ballot was challenged, and no ballots were void. On April 24, 1952, the Employer filed objections to the conduct of the election and conduct affecting the results of the election. As the challenged ballot was sufficient in number to affect the results of the election, and the objections were timely filed, the Regional Director, acting pursuant to the Board's Rules and Regulations, investigated the issues raised by the challenge and objections, and on August 24, 1953, issued his 106 NLRB No. 242. SOERENS MOTOR COMPANY 1389 report on challenges and objections, recommending that the challenge be sustained, that the objections be overruled, and that the Petitioner be certified. Thereafter, the Employer filed exceptions to that part of the Regional Director's report which recommended that the objections be overruled. The Board has considered the Regional Director's report, the exceptions, and the entire record in the case, and hereby adopts the findings , conclusions , and recommendations of the Regional Director, with the following additions and modifi- cations. 1. The Employer is engaged in commerce within the meaning of the Act. 2. A question affecting commerce exists concerning the representation of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 3. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All new- and used-car salesmen, excluding all office and clerical employees, mechanics , management , and supervisors as defined in the Act. 4. The Regional Director recommended that the challenge to the ballot of Paul Rademacher be sustained, because he was no longer an employee of the Employer on the date of the election., In the absence of any exception thereto, we adopt this recommendation. 5. The Employer' s objections are, in substance : ( 1) Because Paul Rademacher was discharged on January 28, 1952, he was no longer an employee on the date of the election, and he was therefore not eligible to serve as a Petitioner observer at the election under the election agreement, which required that observers be [nonsupervisory] employees of the Employer; and (2) because Rademacher was secretary of the Petitioner at the time of the election, his presence at the election as an observer exerted undue influence, and had a coercive effect, upon the voters in the election. The Regional Director found, and we agree, that inasmuch as Rademacher's discharge was the subject matter of an unfair labor practice charge at the time of the election, he was entitled to be considered an employee for the purpose of acting as an observer at the election .' It is true, as pointed out by the Employer, that the observer objected to in the Tri-Cities case,' which was also cited by the Regional Direc- tor in support of his finding, had been discharged but was not the subject of a charge, and that case is therefore not directly applicable to the instant case . In the California Almond Growers Exchange case,' however, the observers objected to 'California Almond Growers Exchange, 73 NLRB 1367, 1373. 2 Tri- Cities Broadcasting Company, 74 NLRB 1107, 1110. 3Supra. 1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were, as here , dischargees who were the subject of charges, and the Board held that they were entitled to be considered employees during the pendency of the charges. Accordingly, we find that Rademacher did meet the requirement of the election agreement that observers be employees , and that he properly acted as an observer in this respect. The Regional Director found, and we agree , that Rademacher properly acted as an observer even though he was an officer of the Petitioner . The Employer concedes that the presence of a union official as an observer at an election is proper, if such official is otherwise qualified .4 The Regional Director erroneously found that a union official must be an eligible voter to otherwise qualify . The only qualification in the elec- tion agreement , which governed the selection of observers, was that observers be nonsupervisory employees. As we have found above that Rademacher was entitled to be con- sidered as an employee in this respect , we find that he was otherwise qualified to act as an observer . Accordingly, we find that Rademacher properly acted as an observer , despite his status as a union official , and that the presence of such an official at the election as an observer did not exert undue influence , or have a coercive effect , upon the voters. 6. The Employer contends in its exceptions that the election should be set aside on the additional grounds that : (1) About a month after the election , 8 of the 9 eligible employees sent a letter to the Regional Director , the Petitioner , and the Employer, repudiating the election and the Petitioner; and ( 2) about 16 months have elapsed since the election took place. The Board has held that a repudiation by employees of an election , made, as here , only about a month after the election, may not overturn and void the election results, because con- clusive effect must be given to the results of a Board-conducted election for a reasonable period . I We find, therefore , that the alleged repudiation here does not constitute a basis for setting aside the election. As indicated by the Regional Director, disposition of the challenge to Paul Rademacher ' s ballot, which was sufficient to affect the results of the election , turned upon , and had to await , the decision of the Board in the unfair labor practice case6 as to whether his discharge was unlawful . That decision was not issued until August 7, 1953.' As the lapse of time since the election is thus almost wholly attributable to dis- position of the unfair labor practice case before the results of the election could be determined conclusively , we find no merit in the Employer's contention that the election should be set aside because 16 months have elapsed since the election. 4N. L. R. B. v. Huntsville Mfg. Co ., 203 F. 2d 430 (C. A. 5). 6Radiant Lamp Corporation , 74 NLRB 1338, 1343. 6Cases Nos . 13-CA-1021, 13-CA-1107. 7106 NLRB 652. MICHIGAN LIMESTONE DIVISION 1391 As we have sustained the challenge to Paul Rademacher's ballot, and overruled the objections, and as the tally of ballots shows that the Petitioner secured a majority of the valid votes cast in the election, we shall certify the Petitioner as the bargaining representative of the employees in the appropriate unit. [The Board certified United Automobile Salesmen, Local 174, CIO, affiliated with United Optical & Instrument Workers, as the designated collective bargaining representative of the Employer's new- and used- car salesmen, excluding all office and clerical employees, mechanics, management, and super- visor as defined in the Act. Member Rodgers took no part in the consideration of the above Decision and Certification of Representatives. MICHIGAN LIMESTONE DIVISION, UNITED STATES STEEL CORPORATION and UNITED STONE AND ALLIED PROD- UCTS WORKERS OF AMERICA, CIO, Petitioner. Case No. 18-RC-1996. November 2, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Lloyd R. Fraker, 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 Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question exists concerning the representation of em- ployees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' 4. The Petitioner seeks to represent employees at the Employer's mining site at Cedarville, Michigan, known as 1 We find no merit in the contention of the Employer and the intervenors herein (United Construction Workers, UMW, and its Local No. 448), that their current contract for em- ployees at the Employer's Calcite plant constitutes a bar to an immediate determination of representatives among employees at the Employer's Cedarville operations sought by the Petitioner. The contract was executed on August 1, 1952, to expire on June 24, 1954. It was made expressly applicable "only to the Calcite plant of the Company," but extended by oral agreement to cover employees at the Employer's new operations at Cedarville, which were started after the execution of the contract. Under these circumstances, the contract may not bar a present determination of representatives among Cedarville employees in an appropriate bargaining unit. Price National Corporation, 102 NLRB 1393, and cases cited therein. 106 NLRB No. 246.