Community Motors

National Labor Relations Board - Board Decisions

Jul 15, 1960

128 N.L.R.B. 60 (N.L.R.B. 1960)

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Board expresses no opinion as to whether it would render a
decision on the merits of the controversy which is the subject of the
State court action.
McCarthy Enterprises , Inc., t/a Community Motors and Local
401, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Independent, Peti-
tioner. Case No. 4-RC-4163. July 15, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Joseph F. Rosenthal, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
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 [Chairman Leedom and Members Bean and Jenkins].
Upon the entire record in this case, the Board finds :
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 commrece 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. In agreement with the stipulation of the parties, and our resolu-
tion below of the sole dispute between them over the unit placement
of the service expeditor ,2 we find the following employees constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All auto mechanics, body repair men, lubrication men, the car jockey,
used car lot attendant, car washer, underseal man, used car mechanic,
used car reconditioner, parts clerk, and service expediter at the Em-
i The Employer stipulated that it is in the retail trade ; its gross volume of business
in 1959 was $ 1,000,000; and it purchased new automobiles in 1959 from outside the
State of Pennsylvania in the amount of $798,000 . In view of the foregoing and contrary
to the assertion of the Employer , we find that it is engaged in commerce within the mean-
ing of the Act and that it would effectuate the policies of the Act to assert jurisdiction
herein. Carolina Supplies and Cement Co., 122 NLRB 88.
2 The Petitioner, contrary to the Employer, would exclude the service expediter as
supervisory . The record shows that this employee works in the service department under
the service manager and that his duties involve assisting the service manager in writing
up orders , delivering job orders to the mechanics , and doing miscellaneous simple repair
work in the shop. There is no evidence that the service expediter has any authority to
hire, fire, discipline employees , or effectively to recommend such action . In view of the
foregoing , we find that the service expediter is not a supervisor , and we shall include
him in the unit.
128 NLRB No. 8.
COMMUNITY MOTORS 61
ployer's Kingston, Pennsylvania, shop, but excluding all other em-
ployees, office clerical employees, salesmen, watchmen, guards, and
supervisors as defined in the Act.
5. The parties are in dispute as to the voting eligibility of six
individuals discharged by the Employer on January 20, 1960, and
five others subsequently hired at various times between January 20
and February 15, 1960. For reasons hereinafter indicated, we shall
permit all of these employees to vote subject to challenge.
The record in the instant case and the administrative files of the
Board show that the Petitioner filed unfair labor practice charges on
behalf of the six employees discharged on January 20 and the General
Counsel has decided to issue a complaint alleging discriminatory dis-
charges with respect to all six.3 In accordance with the Board's usual
procedure,4 the Regional Director is hereby instructed to challenge
and segregate the ballots of the employees named in the foregoing un-
fair labor practice charges. Their ballots will not be considered unless
determinative of the results of the election. If determinative, the final
disposition of this case will await the determination of the pending
unfair labor practice charges. By allowing these persons to vote,
subject to challenge, we are not to be taken as having passed in any
way on the issues involved in the charges and the complaint.
The record further shows that, following the January 20 layoff or
discharges of the above six individuals, the Employer hired five new
employees at dates and under circumstances which tend to support
the Petitioner's contention that these newly hired employees consti-
tuted replacements for five of the six individuals who are the subject
of the unfair labor practice charges .5 In light of these circumstances
and the Petitioner's contention that the layoffs and the hirings of the
individuals involved were part of a scheme to dissipate the organiza-
tional strength of the Union and/or to influence the results of the
election, we further instruct the Regional Director to challenge and
segregate the ballots of these or any other employees hired in the unit
found appropriate since January 20, 1960, where he has reasonable
cause to believe that such newly hired employees constitute replace-
ments for the six individuals named in the unfair labor practice
3 Case No 4-CA-2094 was filed on February 26, 1960. The Petitioner filed with the
Board a request to proceed with the instant representation case despite the pendency of
these charges.
4 Hunt Heater Corporation , 113 NLRB 167 , and cases cited therein.
5 The new employees began working as follows • Felix Jastrzemski , January 25, 1960;
Bernard Rollman, February 1, 1900, Jerry O'Brien, February 8, 1960; Joseph Enosh,
February 11, 1900; and Theodore Rydzewski , February 15, 1960 . Enosh, Jastrzemski,
and Rollman are classified as auto mechanics , Rydzewski as used-car mechanic, and
O'Brien as parts clerk. The Employer contends that the parts clerk and used-car
mechanic, both of whom the Petitioner would find to be new employees replacing the
alleged discriminatees , are not replacements of the laid-off employees . As the record
does not contain sufficient information upon which to make a determination as to their
status, we shall place them with the other employees whose ballots the Regional Director
shall challenge.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges.' By allowing these persons to vote, subject to challenge, we
are not to be taken as having passed in any way on the issues involved
in the charges.
[Text of Direction of Election omitted from publication.]
'Cf. Sioux City Brewing Company, 85 NLRB 1164 ; Lock Joint Tube Company, 127
NLRB 1146.
Fisherman 's Cooperative Association, et al.' and Nick Trutanich
(Sunbeam ) and John Vilicich ( California ) and Frank Iacono
(Frankie Boy) and Joseph Monti , Petitioner and Seine and
Line Fisherman 's Union of San Pedro , affiliated with Sea-
farers' International Union of North America, AFL-CIO 2
Mike Trama and Santo Trama (Sandy Boy) and Fisherman's
Union, Local 33, International Longshoremen & Warehouse-
men's Union ,3 Petitioner. Cases Nos. 21-RD-457, 21-RD-454,
21-RD-.155, 21-RD-462, and 21-RC-6233. June 15, 1960
DECISION, ORDER, AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9(c) of the National Labor
Relations Act, hearings were held before Louis S. Eberhardt, hearing
officer.4 The hearing officer's rulings made at the hearings are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in these cases,' the Board finds :
1. The petitions request elections among employees working aboard
vessels operating out of San Pedro, California, harbor, engaged in
1 Herein called the Association or the Co-op . The petition in Case No . 21-RD-457, as
amended , also designated as employers the individual boatowners listed in Appendix A
attached hereto.
2 Herein called Seine and Line.
9 Herein called Local 33.
4 The decertification petitions in Cases Nos . 21-RD-454, 21-RD-455, 21-RD-457, and
21-RD-462 were consolidated by the Regional Director of the Twenty -first Region, and
a 10-day hearing was held on the consolidated cases in January and February 1960. The
hearing in Case No. 21-RC-6233 was conducted separately on March 9 , 1960. Seine
and Line has moved that Case No. 21-RC-6233 be consolidated with the decertification
proceeding . As the parties involved in Case No. 21 -RC-6233 agreed to incorporation
therein of the record in the decertification cases, and as the appropriate unit placement
of the employees involved in Case No. 21-RC-6233 has been raised as an issue in the
decertification proceeding , we hereby grant Seine and Line's motion to consolidate the
representation cases for decisional purposes . Seine and Line also moved to consolidate
herewith Case No. 21-CB-879. We find , however. that it would not effectuate the policies
of the Act to delay proceedings in the instant representation cases pending resolution of
the issues in the unfair labor practice proceeding . See Krist Gradi8, et at., 121 NLRB
601, 615. This motion is therefore denied.
5 The request of Seine and Line for oral argument is denied, as the record and Seine
and Line's brief adequately present the issues and the positions of the parties.
128 NLRB No. 11.