Angelus Chevolet Co.

National Labor Relations Board - Board Decisions

Mar 7, 1950

88 N.L.R.B. 929 (N.L.R.B. 1950)

In the Matter of ANGELUS CHEVROLET Co., EMPLOYER and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, LODGE No. 1186, DISTRICT No.
94, PETITIONER
. Case No. 21-EC-1050.-Decided March 7, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Jack R. Berger,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed .1 The Em-
ployer's motions to dismiss the proceeding for lack of due process are
hereby denied 2
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Murdock].
I The Employer moved that the hearing officer disqualify himself because of his refusal
to produce a certificate of authority to hear the case in conformity with the Administrative
Procedure Act (Public Law 404, 79th Cong., Chap . 324; 5 U. S . C. A. Sec. 1001 , et seq.).
This 'notion was referred to the Board . Since proceedings involving the certification of
employees ' representatives are specifically excepted from Sections 5, 7, and 8 of the Admin-
istrative Procedure Act, there is no basis for the Employer 's motion. Accordingly, it is
hereby denied . See Deep Oil Development Company, 74 NLRB 941.
Nor is there any basis for the Employer 's request that the hearing officer be disqualified
because of bias and prejudice . As representation proceedings are investigatory rather than
adversary , it is the hearing officer ' s function to produce a full presentation of factual mate-
rial upon which the Board can decide the issues involved . The hearing officer's statement
at the opening of the hearing made clear his neutral functions and responsibilities with
respect to this case . The record does not disclose bias, prejudice , or incapability on his
part. Nor does it disclose that any party was denied the opportunity to introduce perti-
nent evidence , or was otherwise prejudiced . The Employer 's request is therefore denied.
Cf. Monticello Charm Tred Mills , Incorporated, 80 NLRB 378 ; Stokely Foods, Inc., 78
NLRB 842. .
2 At the hearing , in response to an inquiry by the hearing officer as to whether the Em-
ployer intended to comply with a subpena duces tecum and a subpena ad testificandum,
served upon the Employer by registered mail pursuant to the provisions of the Act, the
Employer contended that the subpenas were illegally served and stated that it would not
comply therewith . Whereupon , the Employer moved to dismiss the entire proceeding
because of lack of due process . We deem this motion wholly lacking in merit. Irrespective
of the legality of service of these subpenas ( which we find were properly served under
Section 11 ( 4) of the Act ), since they were neither responded to nor enforced , no prejudice
in this connection could possibly have resulted to the Employer . Other motions to dismiss
for lack of due process , made by . the Employer at various stages of the hearing , are equally
without merit and are hereby denied.
88 NLRB No. 174.
929
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record 3 in this case, the Board finds :
1. The Employer, at its plant in Highland Park, California, oper-
ates a sales and service agency for Chevrolet automobiles, under the
customary form of sales agreement between the Employer and the
Chevrolet Division of General Motors Corporation. Deliveries of
automobiles, trucks, and parts are made to the Employer from the
Chevrolet assembly plant at Van Nuys, California, and also from as-
sembly plants outside the State of California, including the Chevrolet
factory at Flint, Michigan. Although the Employer refused to pro-
duce any information concerning its business, or to testify with respect
thereto, we find, from the evidence adduced from other sources, that,
it is engaged in commerce within the meaning of the Act 4
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
4. The petitioner requests a unit of automotive mechanics, repair-
men, apprentices, and helpers, at the Employer's Highland Park,.
California, plant. Although, at the hearing, the Employer questioned.
the appropriateness of the unit sought, in its brief it abandons its pre-
vious contentions and now takes no position with regard to the appro-
priateness of the unit.
We find that all automotive mechanics, repairmen, apprentices, and.
helpers, at the Employer's Highland Park, California, plant, but ex-
cluding all other employees, and 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.'
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the.
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was.
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in thet
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date of
II The Petitioner's reply brief, filed herein without permission of the Board, was not
considered.
4 Adams Motors, Inc., 80 NLRB 1518, and cases cited therein. See also, Johns Brotherso.
Inc., et at., S4 NLRB 294 (Member Murdock dissenting).
Liddon White Truck Company, Inc., 76 NLRB 1181.
ANGELUS CHEVROLET CO. 931
this Direction of Election, including employees who did not work dur-
ing said payroll period because they were ill or on vacation or, tempo-
rarily laid off, but excluding those employees who have since quit or
been discharged for cause and have not been rehired or reinstated prior
to the date of the election, and also excluding employees on strike who
are not entitled to reinstatement, to determine whether or not they
desire to be represented, for purposes of collective bargaining, by
International Association of Machinists, Lodge No. 1186, District
No. 94.
882191-81-60