Cherner Motor Co.

National Labor Relations Board - Board Decisions

Mar 2, 1940

21 N.L.R.B. 28 (N.L.R.B. 1940)

In the Matter of CHERNER MOTOR COMPANY and LODGE No. 193,
INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. R-1627
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
March 2, 1940
On January 17, 1940, the National Labor Relations Board, herein
called the Board, issued its Decision and Direction of Election in-the
above-entitled proceedings.' Pursuant to the Direction of Election,
an election by secret ballot was conducted on January 31, 1940, at
Washington, D. C., under the direction and supervision of the Re-
gional Director for the Fifth Region (Baltimore, Maryland). On
February 1, 1940, the Regional Director, acting pursuant to Article
III, Section 9, of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, issued an Election Report, copies of
which were duly served upon the parties.
As to the balloting and its results, the Regional Director reported
as follows :
Total number of eligible voters_______________________________ 30
Total number of ballots cast_________________________________ 30
Total number of votes for Lodge 1486, International Associa-
tion of Machinists (A. F. of L.) ---------------------------- 16
Total number of votes against Lodge 1486, International Associa-
tion of Machinists (A. F. of L.) ---------------------------- 13
Total number of blank ballots ________________________________ 0
Total number of void ballots________________________________ 0
Total number of challenged ballots___________________________ 1
On February 6, 1940, Cherner Motor Company, herein called the
Company, filed Objections to the Election Report. In its Objections,
it contended that since the Board had ruled that F. F. Smith should
be excluded from the appropriate unit, and M. Albritton included
therein, the Regional Director erred in permitting Smith to vote
and refusing to count the challenged ballot of Albritton. On February
8, 1940, the Union filed a motion to dismiss the Company's Objections.
119 N. L. R B. 609
21 N. L. R. B., No. 4.
28
CHERNER MOTOR COMPANY 29
On the same day,the Regional Director, acting pursuant to Article III,
Section 9, of National Labor Relations Board Rules and Regulations-
Series 2, as amended, issued and duly served upon the parties his Re-
port on Objections in which he found no merit in the Company's
contention.
In considering the cases of Smith and Albritton in our original
Decision and Direction of Election, we said :
(G. H. Spence and) F. F. Smith are admittedly supervisory
employees in charge of about 41 and 20 employees respectively .. .
Smith (Spence, Purchase, and Springman) being supervisory
employees, all four will be excluded from the above-described
bargaining unit.
M. Albritton is employed at the Company's used-car warehouse
where he examines used cars, determines their mechanical condi-
tion, makes minor repairs, and tests cars after the mechanics have
completed major repairs. His duties would appear to be much
the same as the employees in the service lane, described above,
who, all parties agree, should be included. The Union's conten-
tion that his duties are supervisory is not supported by the record.
We shall accordingly include him in the unit.
We defined the appropriate unit to consist of "all automotive mainte-
nance, repair, conditioning, and reconditioning mechanics and helpers
employed by the Company including such employees in the service
and used-car departments and paint shop, but excluding foremen and
supervisory employees."
On January 4, the Union notified the Board that Smith had been
relieved of supervisory responsibilities and Albritton had assumed
them. On January 25 the Regional Director informed the Company
of the Union's claim and stated that he would permit Smith to vote
and exclude Albritton from the list of eligible voters if such claim
were correct. In his Report on Objections, the Regional Director
stated that he had investigated the Union's allegations and had found
that such changes in duties had in fact been made. At no time did the
Company deny that Smith had ceased to perform supervisory func-
tions, nor did it deny that Albritton had assumed them.
In the light of the finding of the appropriate unit in the original
Decision and the discussion of Albritton's and Smith's duties, it is
clear that the issue with respect to them was whether or not their posi-
tions were supervisory. Thus when Albritton replaced Smith, the
finding which had determined that the position occupied by Smith
was supervisory governed Albritton's case and he was properly ex-
cluded from the unit. So also, when Smith assumed the duties of a
non-supervisory employee, he was properly included in the unit.
Moreover, since the Company failed to challenge Smith's ballot at the
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
polls although full opportunity to do so was afforded, it cannot make
such challenge now.
At the election, the Union challenged the vote of D. E. Edelen.
The Regional Director did not pass on the issue raised by the challenge.
In its Objections the Company claims that Edelen's vote should,.have
been counted. In view of the fact that Edelen's vote cannot affect
the results of the election, it is unnecessary to decide the issue thus
raised.
We find that the Objections of the Company raise no substantial
and material issue with respect to the conduct of the election. The
Objections are hereby overruled.
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9,
of National Labor Relations Board Rules and Regulations-Series 2,
as amended,
IT IS HEREBY CERTIFIED that Lodge No. 1486, International Associa-
tion of Machinists, affiliated with the American Federation of Labor,
has been designated and selected by a majority of the automotive
maintenance, repair, conditioning, and reconditioning mechanics and
helpers including such employees in the service and used-car depart-
ments and paint shop, but excluding foremen and supervisory em-
ployees of Cherner Motor Company, Washington, D. C., as their
representative for the purposes of collective bargaining, and that, pur-
suant to Section 9 (a) of the Act, Lodge No. 1486, International
Association of Machinists, affiliated with the American Federation
of Labor, is the exclusive representative of all such employees for the
purposes of collective barganing with respect to rates of pay, wages,
hours of employment, and other conditions of employment.