Bill Heath, Inc.Download PDFNational Labor Relations Board - Board DecisionsMar 30, 195089 N.L.R.B. 67 (N.L.R.B. 1950) Copy Citation In the Matter of BILL HEATFI, INC., EnMPLOYEII and INTERNATIONAL. ASSOCIATION OF MACHINISTS, DISTRICT Lol)c.r No. 727, PETITIONER Case No. t1-ZRC-1120.-Decided March 30, 1950 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Jack R. Berger, hearing officer. At the written request of the Petitioner, the Regional Director, on February 10, 1950, served subpenas on the Employer, on Bill Heath, on the Ford Motor Company, Long Beach, California,. and on W. B. Williams, its sales office manager. Four days before the hearing was scheduled to open each of these parties filed a petition with the Regional Director to revoke the subpenas. The. Regional Director did not grant the petitions to revoke the subpenas, and desig- nated the chief law officer for the Twenty-first Region to appear specially for him at the hearing in order to oppose the petitions. The Employer's attorney, upon ascertaining at the opening of the. hearing that the Regional Director had not ruled on the petitions, requested that the question of the hearing officer's authority to rule thereon be submitted to the Board, and that the hearing be continued until the Board had had an opportunity to decide the issue. The hearing officer' denied the request for continuance, and after argument by all parties, denied the petitions to revoke the subpenas. The parties did not thereafter respond to the subpenas. It is the Employer's contention that the hearing officer had no authority to rule on the petitions to revoke the subpenas under Section 203.58 (c) of the Board's Rules and Regulations, because the petitions were filed before the hearing was opened., Although Section 203.58 Section 203.55 (c) reads in part as follows: (c) Applications for subpenas may be filed in writing by any party, with the regional director if wade prior to hearing, or with the hearing officer if made at the hearing. . . . The regional director or the hearing officer, as the case may be, shall forthwith grant the subpenas requested. Any person subpenaed, if he does not intend to comply with the subpena, shall, within 5 days after the date of service of the subpena, petition in writing to revoke the subpcna. Such petition shall be filed with the regional director : Provided,, however, That if the evidence called for is to be produced at a hearing and the hearing has opened, the petition to revoke shall be filed with the hearing officer. . . . The regional director or the hearing officer„ 89 NLRB No. 12. 67 889227-51-vol. 89--6 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) requires that the petitions to revoke the subpenas be filed with the Regional Director before the hearing, it does not require that he act on. it within any stated time. By failing to act before the opening of the hearing, the Regional Director in effect referred the decision to the hearing officer. We see nothing improper in the Regional Director's postponing decision on a petition to revoke subpenas, or on other motions filed before the hearing opens, where the subject matter of such preliminary motions is germane to the issues to be developed at the hearing and therefore within the province of the hearing officer to rule on. We affirm the hearing officer's ruling as to his authority to grant or deny the petitions to revoke subpenas, and we also affirm his denial of the petitions themselves.2 The other rulings made by the hearing officer at the hearing are also free from prejudicial error and are hereby affirmed.-3 The hearing officer referred to the Board the Employer's request that he be disqualified because of bias and prejudice. The motion is denied for the reasons stated in Angelus Chevrolet Co., 88 NLRB 929, and in Masters Pontiac Company, Inc., 88 NLRB 932, in both of which cases the same attorney who represents the Employer herein, made similar motions with respect to the same hearing officer. The hearing officer also referred to the Board the Employer's motion to dismiss the petition because of an alleged failure to establish that the Employer was engaged in interstate commerce. The motion is hereby denied for the reasons given in paragraph numbered 1, below. 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 Styles]. Upon the entire record in this case, the Board finds : 1. The Employer refused to respond to the subpenas served upon it requiring it to produce books and records with respect to its business, and further failed to testify at the hearing with respect thereto. From evidence introduced by the Petitioner, however, we are satisfied that the Employer has in the past year sold a substantial number of new as the case may be, shall revoke the subpena if, in his opinion, the evidence whose production is required does not relate to any matter , under investigation or in ques- tion in the proceedings or the subpena does not describe with sufficient particularity the evidence whose production is required. 2 The contentions of the Employer ' s attorney, who also represented the other parties served with subpenas , with regard to the revocation of the subpenas are without merit, and require no further discussion herein. 3 One of the motions made by the Employer was to strike a statement of the attorney who represented the Regional Director at the hearing in which he set forth in some detail the allegedly dilatory tactics used by the Employer's attorney in this proceeding and in other proceedings in which he had represented automobile dealers in the Los Angeles area. We specifically affirm the hearing officer ' s ruling that this statement remain in the record. BILL HEATH, INC. 69 Ford cars and trucks from its establishment in North Hollywood, California. Although the record contains no evidence as to the ex- istence of a sales or franchise agreement between the Employer and the Ford Motor Company, we take cognizance of the normal market-, ing practice in the automobile industry of distributing new cars and trucks only through dealers who are assigned to defined sales terri- tories. As the Employer does not deny that it has sold new Ford cars, we shall presume, in the absence of any contrary evidence, that such sales were made in accordance with some type of distributor arrangement, either written or oral, with the Ford Motor Company. We find, therefore, that the Employer 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 all employees of the Employer at its establishment in North Hollywood, California, excluding sales- men, office and clerical employees, professional employees, guards, and supervisors. The Employer took no position with respect to the appropriateness of the unit. We find that all employees of the Employer at its establishment in North Hollywood, California, excluding salesmen, office and clerical employees, professional employees, guards, 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.5 DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses 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 the unit found appropriate in paragraph numbered 4, above, who were employed during the payroll period immediately preceding the date of this Direction of Election, including employees who did not work during said payroll period because they were ill or on vacation or tem- 4 Angelus Chevrolet Co., 88 NLRB 929; Masters Pontiac Company , Inc., 88 NLRB 932; Johns Brothers , Inc., et al ., 84 NLRB 294 ; M. L. Townsend , 81 NLRB 739. 1 Jack Taylor and Paul Bullard , d/b/a Butte Motors, 85 NLRB 1336. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porarily 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 bar- gaining, by International Association of Machinists, District Lodge No. 727. Copy with citationCopy as parenthetical citation