Weaver Motors

National Labor Relations Board - Board Decisions

Mar 13, 1959

123 N.L.R.B. 209 (N.L.R.B. 1959)

WEAVER MOTORS 209
As we have overruled the objections to the election, and as the
Petitioner has failed to secure a majority of the valid ballots cast,
we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for United Papermakers and Paperworkers, AFL-CIO, and
that said labor organization is not the exclusive bargaining repre-
sentative of the employees of the Stark Industrial Park, Charleston,
South Carolina, plant of The American Sugar Refining Company
(Domino Bag) in the unit found appropriate.]
Norman Weaver and Harold Weaver, Partners, d/b/a Weaver
Motors; Galesburg Lincoln-Mercury Co.; J. E. Trapp, R. A.
York, and John McCreery, a partnership d/b/a McCreery
Motor Sales; Crown Motors, Inc.; Inman -Swanson Motors,
Inc. ; Puckett Buick Company , Petitioners and Local Union
No. 15, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers and Lodge No. 2085, International
Association of Machinists , AFL-CIO. Cases Nos. 13-RM-411,
13-RM-412, 13-RM-413, 13-RM-414, 13-RM-415, and 13-RM-
416.1 March 13, 1959
DECISION, ORDER, AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the
National Labor Relations Act, a consolidated hearing 2 was held
before Robert G. Mayberry, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error and
are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with these cases to a three-member panel [Chairman Leedom and
Members Rodgers and Bean].
Upon the entire record in these cases,2 the Board finds :
1. In these cases, the Unions either contest the Board's jurisdic-
tion or take no position on this question.
Each of the Employer-Petitioners herein is primarily engaged
at Galesburg, Illinois, in the retail sale and repair of automotive
equipment. During the year preceding the filing of the petitions,
1 The Employer-Petitioners in these cases will hereinafter be called , respectively, weaver,
Galesburg Lincoln , McCreery, Crown , Inman- Swanson, and Puckett Buick.
a As it is the Board's practice to consolidate cases for purposes of hearing , where, as
here, they have common Issues and facts , we overrule the Unions ' objection to the con-
solidation of the instant cases.
3 Because in our opinion the record adequately sets forth the issues and the positions of
the parties , the Unions ' request for oral argument is hereby denied.
4 The petitions herein were filed on October 15, 1958.
123 NLRB No. 26.
508889-60-vol. 123-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each Employer did a gross volume of business in excess of $500,000,
and therefore met the Board's jurisdictional standards for a retail
enterprise. We therefore find that each Employer is engaged in
commerce within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction over each.5
2. The labor organizations involved claim to represent certain
employees of the Employers.
3. The Unions move to dismiss the petitions on the ground that
they do not claim to represent a majority of the employees of any
of the Employers. The Employers assert in effect that the current
picketing by the Unions is inconsistent with such disclaimer. The
Unions contend that the picketing is merely for the purpose of
organizing employees involved herein. The pertinent facts are as
follows :
During the spring of 1956, the Unions requested several retail
automobile concerns in Galesburg, including Brown Motors, Inc.,'
herein called Brown, and all the Employers herein except Crown,
to recognize them jointly as the collective-bargaining representatives
of their shop employees. In each case recognition was refused. There-
after, beginning about May 1956, pickets appeared at the places
of business of the concerns involved. The signs that the pickets
carried read substantially as follows : "Strike-Union Garage Em-
ployees Not Working- AFL-CIO,," and "Unfair To Organized
Labor-No Members Have Been Employed at This Garage Since
May 15, 1956-AFL-CIO." The first of these signs was carried
at McCreery until about January 1957 and at Puckett Buick and
Brown until about August 1957. The record does not disclose how
long or at what locations the second sign was carried; it was not
being used at the time of the hearing.' From about the beginning
of the picketing in May 1956, until about the middle of 1957, there
were at one time or another signs at virtually all the locations
involved to the effect that Galesburg Trades and Labor Assembly
or various local lodges of the Machinists supported the "Auto.
Mechanics' Strike."
On August 2, 1957, the Board issued its Decision and Direction
of Election in Galesburg Automobile Dealers Association, Case No.
13-RM-329,8 involving some 11 Galesburg retail automobile con-
cerns, including several of the instant Employers, and the same
Unions as those involved herein. On August 6, the Regional Direc-
tor, in accordance with the Decision therein,9 dismissed the petition.
5 Carolina Supplies and Cement Co., 122 NLRB 88.
8 See footnote 10, infra.
7 The hearing was held on December 2, 3, 'and 18, 1958.
8 Unpublished.
8 The Decision conditioned the holding of the election upon the Unions' acceptance of a
multlemployer unit. The Unions , however, would not assent to such a unit.
WEAVER MOTORS 211
Picketing and other activities continued to be carried on after
the issuance of the Board's decision. In the fall of 1957 and in
the spring of 1958, pickets at one of Weaver's locations, at Inman-
Swanson, at Crown,'° and at Galesburg Lincoln carried signs indi-
cating that a strike was in progress. Another sign carried at the
last-named concern at the same time as the strike sign read : "Unfair
to Organized Labor-AFL-CIO." About October 30, 1958, a simi-
lar sign replaced the strike sign at Inman-Swanson. ' From about
February or March 1958, until about December 4, 1958, a sign
reading "Strike-Teamsters Local 15" was carried at Puckett Buick.
On or about December 4, the pickets at this location stopped carrying
such sign and began using another reading "No Strike." During
the week before the opening of the hearing, a sign bearing the word
"Strike" was carried at one of Weaver's plants. At the time of
the hearing, held, as noted above, on December 2, 3, and 18, 1958;
picketing was being conducted at the premises of all the Employers
except those of McCreery; there had been no picketing at McCreery's
premises in the last 10 or 12 months.
In April and May 1958, the Unions and the Employers met in
efforts to solve their difficulties. On each occasion, the Unions made
it clear that a solution would necessarily be based on recognition.
In this connection, the record contains two documents: (1) A reso-
lution bearing, among others, the printed signatures of representa-
tives of the two Unions here involved and stating, among other
things, that it was passed by unanimous vote of the delegates to
the Galesburg Trades and Labor Assembly on April 2, 1958, and
that the Unions had been on strike against the new car dealers
of Galesburg since May 1956; and (2) a handbill captioned
"NOTICE ! To All Union Members," stating that several new car
dealers, including all the instant Employers, operated nonunion
shops and refused to recognize and bargain with the Unions. In
April 1958, this handbill was distributed by pickets at the premises
of several Galesburg automobile dealers, including those of Gales-
burg Lincoln, and it was also generally distributed throughout the
city.
The Unions in effect admit that their original demands and pick-
eting were for the purpose of recognition. However, they assert
that after August 2, 1957, the date of issuance of the Board's
Decision and Direction of Election in Galesburg Automobile Dealers
Association, supra, they changed the purpose of their picketing
to an attempt to organize the employees involved. At the hearing,
io In March 1958, Crown Motors, Inc., one of the Employers herein, acquired the capital
stock of Brown and began operating a retail automobile business in the same building
where Brown had been located. In April 1958 the Unions requested that Crown recognize
them as the collective-bargaining representative of its shop employees; recognition was.
refused.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a representative of the Unions stated that they did not claim to
represent a majority of the employees of any of the Employers.
The Unions' denial that they now claim to represent the employees
would be sufficient to remove the questions concerning representation
necessary to support the Employers' petitions, provided that such
disclaimer is clear and unequivocal and that the Unions are not
engaged in conduct inconsistent with such disclaimer."' Admittedly,
the Unions began picketing in order to obtain recognition. There-
fore, the issue at hand is whether the purpose of the picketing was,
as they allege, changed to organization of the employees after the
issuance of the Board's decision in the earlier case. However, it
appears that both before and after the issuance of that decision,
the main theme of the signs carried by the pickets remained essen-
tially the same in most instances-that employees were on strike.
In April and May 1958, some 8 or 9 months after the issuance of
the prior decision in August 1957, the Unions at the meetings noted
above continued to demand recognition. The resolution of the Gales-
burg Trades and Labor Assembly adopted in April 1958 and the
handbill distributed at the premises of Galesburg automobile dealers
and generally throughout the city at about the same time indicate
that the Unions were picketing in protest against the Employers'
failure to recognize and bargain collectively with them. Accord-
ingly, we find that the disclaimer was ineffective with respect to
all the Employers who were being picketed at the time of the hear-
ing. The only Employer not being picketed at that time was Mc-
Creery. As there had been no picketing at its premises for a period
of 10 to 12 months prior to the hearing, we find that the disclaimer
was effective as to it, and we will therefore dismiss the petition in
Case No. 13-RM-1413. Accordingly, we find that questions affecting
commerce exist concerning the representation of employees of all
the. Employers except McCreery within the meaning of Section
9(c) (1) and Section 2(6) (7) of the Act .12
4. The petitions herein sought single-employer units. The Unions
submitted to the Board the question whether an Associationwide
unit, including employees of all the members of Galesburg Auto-
mobile Dealers Association, was appropriate. It is well established
that presumptively single-employer units are appropriate, and to
defeat a claim for such units in favor of a broader unit a con-
trolling history of collective bargaining on the broader basis must
exist. Therefore, as there is no history of collective bargaining
on a multiemployer basis, we find that the single-employer units
urged by the Employers are appropriate." We shall therefore con-
11 New Pacific Lumber Co ., 119 NLRB 1307.
12 New Pacific Lumber Co., supra.
13 Arden Farms, etc., 117 NLRB 318.
WEAVER MOTORS 213
sider the contention of the parties, if any, with respect to these
separate units.
Weaver Motors, Case No. 13-RIAI-411
This Employer contends that a single unit, including shop em-
ployees at both its plants, is appropriate. The Unions contend that
only a separate unit of such employees at each plant is appropriate.
However, the Employer indicated its willingness to abide by the
Board's action, if it found such separate units appropriate.
The Employer operates a new car showroom and service garage
on South Seminary Street in Galesburg and a truck and service
garage and used car lot on Grand Avenue in the same city. The
plants are about 11/2 miles apart. At its South Seminary Street
plant, the Employer sells new Plymouths and DeSotos and does
most of its repair work on passenger cars. At its truck and service
garage and used car lot, the Employer sells new International Har-
vester Trucks and used trucks and passenger cars, and does most of
its truck repair work. At the new-car showroom and service garage,
the Employer has approximately 15 employees, including 3 sales, 3
office clericals, and some 8 or 9 shop employees. The latter include
four mechanics, two wash and cleanup men, a partsman, a bodyman,
and a greasemaii and mechanic's helper. At the truck and service gar-
age, the Employer has approximately nine employees, including one
salesman and about eight shop employees. The latter include five
mechanics, a partsman, and two helpers. All employees work under
the overall supervision of the two partners constituting the firm.
One of the partners spends the greater part of his time at the South
Seminary Street location; the other spends the greater part of his
time at the Grand Avenue location. Shop employees at each loca-
tion work under separate immediate supervision. All employees
are paid from a single bank account, have similar benefits, and work
about the same hours. Those in the same or similar work classifica-
tions are paid at substantially the same wage rates at both plants.
The salesmen sell indiscriminately at both. Almost every day shop
employees are temporarily transferred from one plant to another;
occasionally, if, for example, one plant has a special tool lacking at
the other, repair jobs are transferred. In these circumstances, in-
cluding the proximity of the two plants, the frequent transfers be-
tween them, the similar benefits and wage rates, and the fact that
there is no history of collective bargaining, we find that a single
unit, including employees at both locations, is appropriate.14
At the hearing, the parties agreed as to the categories to be in-
cluded in the unit. In accordance with the agreement, and on the
record in this case, we find that the following employees of the
14 The B. F. Goodrich Company, 112 NLRB 757.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer constitute an appropriate unit within the meaning of
Section 9(b) of the Act : All shop employees at the Employer's new-
car showroom and service garage and at its truck and service garage
and used car lot at Galesburg, Illinois, including partsmen, me-
chanics, bodymen, wash and cleanup men, and greasemen and helpers,
but excluding office clerical employees, professional. employees, sales-
men, guards, foremen, and supervisors as defined in the Act.
Galesburg Lincoln-Mercury Co., Case No. 13-RM-412
In substantial accord with the agreement of the parties, we find
that the following employees of this Employer constitute an appro-
priate unit within the meaning of Section 9(b) of the Act: All shop
employees, including mechanics, parts helpers, and polish men at
the Employer's garage at Galesburg, Illinois, but excluding office
clerical employees, professional employees, salesmen, guards, the
service manager, and supervisors as defined in the Act.
Crown Motors Inc., Case No. 13-RM-414
We find, in substantial accord with the agreement of the parties,
that the following employees of this Employer constitute an appro-
priate unit within the meaning of Section 9(b) of the Act: All shop
employees at the Employer's garage at Galesburg, Illinois, includ-
ing mechanics, lubrication employees, bodymen, painters, wash and
polish employees, and the parts helper, but excluding office clerical
employees, professional employees, salesmen, guards, the service man-
ager, the parts manager, and supervisors as defined in the Act.
Inman-Swanson Motors, Inc., Case No. 13-RM-415
The parties in effect agree that a unit of shop employees at this
Employer's Galesburg garage is appropriate, but disagree as to the
unit placement of the parts helper. The Employer would include
him. The Unions would exclude him, on the ground, in substance,
that the Employer's parts manager is a supervisor 15 and that the
Employer is training the parts helper to be his successor.
Normally, the Employer employs both a parts manager and parts
helper. However, at the time of the hearing the parts manager had
been on an indefinite leave of absence for about 7 months, because
he was busy building a house. He had left the Employer's employ
with the understanding that he "might" return and the Employer
anticipated that he would do so in 3 or 4 months. During his ab-
sence, the helper had assumed a substantial part of his nonsuper-
visory duties. Primarily, the parts helper supplies parts to
mechanics and keeps an inventory. All shop employees, including
25 We find, in substantial agreement with the parties, that the parts manager is a
supervisor within the meaning of the Act, and we will exclude him.
WEAVER MOTORS 215
the parts helper, work about the same hours and are hourly paid.
All work under the immediate supervision of the service manager.
The wages of the parts helper are about the same as those of some
of the mechanics and 20 to 30 percent lower than the wages of certain
other mechanics. The parts helper has no independent authority to
buy merchandise on behalf of the Employer or to hire or discharge
employees or even to recommend such action. At the hearing, the
Employer's president referred to him as an "apprentice learning the
business" and testified in effect that he did not know whether the
helper would succeed to all the duties of the parts manager, includ-
ing his supervisory duties, when he had acquired full knowledge of
the job. As the record shows that the parts helper presently has
none of the statutory powers of a supervisor, we find that he is not
now a supervisor. Moreover, under the circumstances of this case,
we find that the possibility of his elevation to supervisor in the
future does not warrant his exclusion from the unit. We therefore
include him.16
Upon the entire record in this case, we find that the following
employees of the Employer constitute an appropriate unit within
the meaning of Section 9(b) of the Act: All shop employees at the
Employer's garage at Galesburg, Illinois, including mechanics, wash
and polish employees, and the parts helper, but excluding office
clerical employees, professional employees, salesmen, guards, the
service manager, the parts manager, and supervisors as defined in
the Act.
Puckett Buick Co., Case No. 13-RM-416
The parties in effect agree on the appropriateness of a unit of
shop employees at this Employer's Galesburg garage, but disagree
as to the parts manager. The Employer would include him, while
the Unions would exclude him on the ground that he is a supervisor
or managerial employee. The parts manager orders parts from the
factory, distributes them to the mechanics, sells them to customers,
both retail and wholesale, who come to the Employer's garage for
that purpose, and keeps an inventory. All shop employees, including
the parts manager, work under the immediate supervision of the
service manager. The parts manager receives a salary plus a com-
mission on the accessories that he sells. His earnings are approxi-
mately one-half those of the service manager and considerably less
than those of the mechanics. Except during inventory periods, he
is the Employer's only parts employee and even then the additional
parts employees work under the supervision of the service manager.
It does not appear that the parts manager has any of the powers of
a supervisor as set forth in Section 2(11) of the Act. Accordingly,
11 International General Electric , S.A., Inc., 117 NLRB 1571, 1581.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we find that he is not a supervisor. However, as he has the power
to pledge the Employer's credit in ordering parts, we find that he
is a managerial employee, and will exclude him.,'
Upon the entire record in this case, we find that the following
employees of the Employer constitute an appropriate unit within
the meaning of Section 9(b) of the Act : All shop employees at the
Employer's garage at Galesburg, Illinois, including mechanics, car
polishers, the lubrication man, and the car washer, but excluding
office clerical employees, professional employees, salesmen, the part-
time janitor, guards, the parts manager, the service manager, and
all other supervisors as defined in the Act.
[The Board dismissed the petition in Case No. 13-RM-413.]
[Text of Direction of Elections omitted from publication.]
17 Sunnyland Packing Co., etc., 113 NLRB 162, 165.
Jimmy Ray Rush , An Agent of Local Union 5367 of the United
Steelworkers of America , AFL-CIO ; Sam Dixon, Jr., An Agent
of Local Union 5367 of the United Steelworkers of America,
AFL-CIO ; Windol Atchison, An Agent of Local Union 5367
of the United Steelworkers of America, AFL-CIO; James
Mitchell , An Agent of Local Union 5367 of the United Steel-
workers of America , AFL-CIO ; Local Union 5367 of the
United Steelworkers of America, AFL-CIO and Mark Louis
Taliaferro , Attorney [ Cosper Manufacturing Company, Inc.]
Local Union 5367 of the United Steelworkers of America, AFL-
CIO and C. V. Stelzenmuller , Attorney. Cases Nos. 10-CB-577,
10-CB-578, 10-CB-579, 10-CB-580, 10-CB-581, and 10-CB-611.
March, 16, 1959
DECISION AND ORDER
On February 20, 1958, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondents filed exceptions to the Intermediate Report., Subse-
quently, the Respondents filed a motion to reopen the record.2 The
' After the issuance of the first Intermediate Report, the Respondents also requested
oral argument . This request is hereby denied as the record, exceptions , and brief ade-.
quately present the issues and the positions of the parties.
2 The Respondents excepted to the denial by the Trial Examiner of requests to compel
the General Counsel to produce certain written statements of witnesses who testified.
By order of September 10, 1958, the Board sustained the exception and ordered the
123 NLRB No. 27.