Bill Allen Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1970

183 N.L.R.B. 410 (N.L.R.B. 1970)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill Allen Chevrolet , Inc. and District Lodge 71, In-
ternational Association of Machinists & Aerospace
Workers, AFL-CIO, Petitioner. Case
17-RC-6029
June 16, 1970
DECISION AND DIRECTION
By MEMBERS FANNING, MCCULLOCH, AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, approved on May 15, 1969, an
election by secret ballot was conducted on May 28,
1969, under the direction and supervision of the
Regional Director for Region 17 among the em-
ployees in the agreed unit. After the election a tally
of ballots was issued, which showed that of approxi-
mately 35 eligible voters, 32 cast ballots, of which 9
were for, and 8 were against, the Petitioner, 1 was
void, and 14 were challenged. No objections to the
election were filed by either party. Inasmuch as the
challenged ballots were sufficient in number to af-
fect the results of the election, the Acting Regional
Director caused an investigation of the challenges
to be made, and, thereafter, on October 10, 1969,
issued and served on the parties his report on chal-
lenged ballots and recommendation, order directing
hearing on challenged ballots, and notice of hear-
ing. In his report, the Acting Regional Director
recommended to the Board that the challenges to
the ballots of Vernon Cole, William Frakes, Charles
Lawrence, Jack Masters, and William W. Smith be
sustained, and ordered that a hearing be held for
the purpose of receiving evidence to resolve the is-
sues raised by the nine remaining challenges. No
exceptions to the Acting Regional Director's re-
port, or request for special permission to appeal
from his order, having been filed by either party
within the time provided therefor, the Board
adopted his recommendation as contained in his re-
port and, on October 28, 1969, ordered that the
challenges to the ballots of Cole, Frakes, Lawrence,
Masters, and Smith be sustained and that the issues
raised with respect to the nine remaining chal-
lenged ballots be processed pursuant to the Acting
Regional Director's order and notice of hearing.
Accordingly, a hearing was held before Hearing
Officer Ronald Broun on October 28, 1969. All
parties participated in the hearing and were given
full opportunity to examine and cross-examine wit-
nesses and to introduce evidence bearing on the is-
sues.
On December 19, 1969, the Hearing Officer is-
sued his report on challenged ballots with findings
and recommendations, in which he recommended
that the Employer's two challenges be sustained
and that the Petitioner's seven challenges be over-
ruled. Thereafter, the Petitioner filed timely excep-
tions to the report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning representation of the employees within the
meaning of Sections 9(c)(1) and 2(6) and (7) of
the Act.
4. We find, in accord with the stipulation of the
parties, that the following employees constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
All new and used car and truck salesmen em-
ployed at Bill Allen Chevrolet, Inc.'s locations
at 101 Armour Road and 1900 Armour Road,
North Kansas City, Missouri, and 2646
Northeast Vivion Road, Kansas City, Missouri;
excluding: office clericals, guards, all shop and
parts employees, and supervisors as defined in
the Act.
5. The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the record, the
Hearing Officer's Report, and the Petitioner's ex-
ceptions thereto,' and, finding merit in two of the
exceptions, concludes that the challenges to the
ballots of William Seiger and Patrick Flynn should
be sustained. We agree, however, with the Hearing
Officer that the challenges to the ballots of Jack
Crossley, J. T. Garzee, Richard Walker, and Roy
Winbigler should be overruled and their ballots be
counted.
The Petitioner excepts, inter alia, to the Hearing
Officer's conclusion, in the "Recommendations"
section of his report, that the Petitioner's challenge
to the ballot of William Seiger be overruled. This
' In the absence of exceptions to the Hearing Officer's recommendations
to sustain the Employer's challenges to the ballots of Charles Chapman and
Richard Utley and to overrule the Petitioner's challenge to the ballot of
George Payne, these recommendations are adopted pro forma
183 NLRB No. 51
BILL ALLEN CHEVROLET, INC.
recommendation was obviously an inadvertence on
the part of the Hearing Officer, since, at the hear-
ing, the Petitioner and the Employer agreed and
stipulated to exclude Seiger from the unit, and their
stipulation was received by the Hearing Officer. We
therefore sustain the challenge to the ballot of Wil-
liam Seiger and exclude him from the unit.
The Petitioner excepts to the Hearing Officer's
finding that the ballot of Patrick Flynn, the Em-
ployer's finance and insurance man, should be
opened and counted. In so excepting, the Petitioner
contends, among other things, that Flynn's services
are specialized and that he should therefore be ex-
cluded from the unit.
Flynn is in charge of arranging finance and in-
surance for cars and trucks sold by the Employer.
On occasion, he also sells cars. He is paid a salary
plus a percentage of the finance and insurance
charges. His monthly guarantee is $450, while most
salesmen receive $500. The latter share with Flynn
the commission from finance and insurance. Flynn
attends at least some sales meetings, is subject to
the same work rules and conditions as the regular
salesmen , comes into daily working contact with
unit salesmen , and deals directly with customers, to
whom he sells services intimately related to the sale
of the automobile itself. The Hearing Officer found
that Flynn's services are concededly specialized,
but that that fact in itself is not enough to justify ex-
clusion from the unit, especially since Flynn shares
such an extensive community interest with the unit
L N L R B v J J Collins' Sons, Inc, 322 F 2d 523, 525 (C A 7)
' Member Fanning disagrees that the Hearing Officer erred in rejecting
411
members. The Hearing Officer therefore recom-
mended that Flynn's vote should be counted.
In the instant case, the unit as described and
defined includes only "All new and used car and
truck salesmen ." On its face, the description does
not include Flynn, concededly the Employer's
finance and insurance man and not a car salesman.
Thus,
Factors which could have justified the job's in-
clusion in the unit cannot serve as a basis for
ignoring the clear, unambiguous and specific
language defining and limiting the unit to the
designated job classifications and their ap-
prentices.'
It is our conclusion, therefore, that the Hearing Of-
ficer erred in rejecting the challenge to Flynn's bal-
lot. We shall sustain it and exclude him from the
unit.'
DIRECTION
It is hereby directed that the Regional Director
for Region 17 shall, pursuant to the Board's Rules
and Regulations, within 10 days of the date of this
Direction, open and count the ballots of George
Payne, Jack Crossley, J. T. Garzee, Richard
Walker, and Roy Winbigler, and thereafter prepare
and cause to be served upon the parties a revised
tally of ballots, including therein the count of said
ballots. Thereafter, the Regional Director is
directed to certify the results of the election or to
issue a certification to the Petitioner.
the challenge to Flynn 's ballot and would affirm the Hearing Officer's find-
ing as to Flynn and include him in the unit