City Tire Co.

National Labor Relations Board - Board Decisions

Mar 25, 1957

117 N.L.R.B. 753 (N.L.R.B. 1957)

CITY TIRE COMPANY 753
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's opera-
tion at 6601 South Laramie Avenue, Chicago, Illinois, including
leaders, receiving and shipping room employees, and janitors, but
excluding all office and factory clericals, sales and engineering em-
ployees, guards, foremen, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
IBEW and had signed a contract with that union. In addition, the Petitioner sought to
withdraw its petition herein, and joined with the Employer and the IBEW in a motion
to dismiss on the ground that no question concerning representation presently exists.
These parties contend in support of the motion that the actions of the Regional Director
in dismissing the various above-described charges against the Employer, particularly the
charges in 13-CA-2245, are tantamount, under the Mid-West Piping rule, 63 NLRB 1060,
to findings by the General Counsel, acting through his agent, the Regional Director, that
no real question concerning representation existed when the Employer recognized the
IBEW ; and that, accordingly, under the Times Square doctrine, 79 NLRB 361, the Board
is foreclosed from finding that a question concerning representation now exists.
The latter contention, resting as it does on a false premise, is without merit. The
Regional Director did not find that no question concerning representation existed ;
rather, in dismissing the charges, he found only "insufficient evidence of violations."
Any number of possible underlying reasons, about which we will not here speculate, may
have impelled the latter conclusion. Accordingly, without deciding whether the Times
Square doctrine would necessarily have foreclosed the issue had the Regional Director
actually made a finding that no question concerning representation in fact existed, we
deny the motions. The Petitioner may, if it wishes, have its name removed from the
ballot. See Frank Foundries Corporation, 92 NLRB 1754, footnote 1.
Joe Gold and Newell Smith d /b/a City Tire Company and District
64, International Association of Machinists , AFL-CIO, Peti-
tioner. Case No. 1-RC-4715. March 25, 1957
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election
executed on November 1, 1956, and approved by the Regional Director
on November 2, 1956, an election by secret ballot was conducted on
November 8, 1956, under the direction and supervision of the Acting
Regional Director of the First Region of the National Labor Relations
Board among the employees in the unit herein found appropriate.
Following the election, the parties were furnished a tally of ballots.
The tally shows that, of the approximately 15 eligible votes, 14 cast
ballots, of which 6 were for the Petitioner, 1 was against the Petitioner,
and 7 ballots were challenged.
As the challenged ballots were sufficient in number to affect the
results of the election, the Acting Regional Director, pursuant to the
Board's Rules and Regulations, conducted an investigation and, on
December 7, 1956, issued and served upon the parties his report on
117 NLRB No. 117.
423784-57-vol. 117- 49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenged ballots. On December 17, 1956, the Employer filed ex-
ceptions to the Acting Regional Director's report, and on December,
20, 1956, the Petitioner filed a statement in support of the report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Murdock, Rodgers, and Bean].
Upon the basis of the entire record in this case, the Board finds the
following :
1. The Employer is engaged in commerce within the meaning of
the Act.
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 following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within the meaning of
Section 9 (b) of the Act: All employees employed by the Employer
at its tire sales and recapping operations in Providence, Rhode Island,
excluding executives, office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
In his report, the Acting Regional Director recommended that the
challenges to the ballots of Nicholas Narducci, Edward Haire, Chester
Adams, and Carlo Rainone be overruled, and that the challenges to
the ballots of Roland Jacquard and Stephen De Costo be sustained.
As no exceptions to the Regional Director's report have been filed with
respect to the foregoing challenged ballots, we hereby adopt the Re-
gional Director's recommendations.
Herbert Gold was challenged by the Petitioner as a supervisor. The
Regional Director's investigation disclosed that Gold performs general
work such as answering the telephone, receiving merchandise, pre-
paring customer orders for shipping, mounting tires and keeping the,
tire inventory in order, and that Gold works the same hours and under
the same working conditions as employees in the unit. However, as
his investigation further disclosed that Gold is the son of one of the
partners, the Regional Director concluded that Herbert Gold is not
an employee within the meaning of Section 2 (3) of the Act, and
recommended that the challenge to his ballot be sustained.
The Employer excepts to the Regional Director's finding and recom-
mendation as to the ballot of Gold, and contends, in principal part, that
(1) Gold is not excluded from the definition of "employee" under
Section 2 (3) of the Act; and (2) the Regional Director is foreclosed
from basing his recommendations on an issue not specifically raised
by the Petitioner's challenge. We find no merit in these contentions.
As to (1), the Board rule is that the son of a partner is not an employee
OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION 755
within the meaning of the Act.' As to ( 2), the Board rule is that
the jurisdiction of the Regional Director in making postelection
investigations is not limited to the specific issues raised by the parties.'
In view of the foregoing , we adopt the Regional Director 's recom-
mendation and sustain the challenge to the ballot of Gold.'
Inasmuch as we have sustained the challenges to the ballots of
Jacquard, De Costo, and Gold, and inasmuch as the ballots of Narducci,
Haire, Adams , and Rainone cannot affect the results of the election
even if opened and counted, we hereby adopt the Regional Director's
recommendation that these ballots not be opened.
As the tally of ballots shows that the Petitioner received a majority
of the valid ballots cast , and as the number of unopened ballots is in-
sufficient to affect the results of the election , we shall certify the
Petitioner as the collective-bargaining representative of the employees
in the appropriate unit.
[The Board certified District 64, International Association of
Machinists , AFL-CIO, as the designated collective -bargaining rep-
resentative of the employees of the Employer in the unit hereinabove
found appropriate.]
I International Metal Products Company , 107 NLRB 65. The Employer contends that
in International Metals the parties agreed to exclude the son of a partner and therefore
the issue of his unit placement was not raised . However, in that proceeding the Board
excluded the son of a partner from the unit, not because the parties had agreed to his
exclusion , but because Section 2 (3) of the Act specifically excludes from the definition
of employee "any individual employed by his parent "
2 Radiant Lamp Corporation , 116 NLRB 40; Hobart Manufacturing Company, 92
NLRB 203
8 We find no merit to the Employer 's additional argument that if the issue of the rela-
tionship had been raised prior to the signing of the election agreement , it would not have
entered into the election agreement but would have sought a hearing to determine the
eligibility of Gold The Employer is not here prejudiced by the lack of a preelection
hearing, because it admits that Gold is the son of one of the partners , and under these
circumstances , whether or not a preelection hearing had been held, the Board is precluded
under the Act from including Gold in the unit See 0 . E. Szek-ely and Associates, Inc,
117 NLRB 42.
Osceola County Co-Operative Creamery Association and Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO, Local No . 909. Case No.
18-CA-717. March 26,1957
DECISION AND ORDER
On September 21,1956, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
117 NLRB No. 120.