Continental Motors Corp.

National Labor Relations Board - Board Decisions

Apr 26, 1948

77 N.L.R.B. 345 (N.L.R.B. 1948)

In the Matter of CONTINENTAL MOTORS CORPORATION, EMPLOYER and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA ( UAW-CIO), AND ITS
LOCAL 113, PETITIONER
Case No. 7-R-,?r306
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
April 26, 1948
On Julie 19, 1947, pursuant to the Decision and Direction of Elec-
tion in the above-entitled proceeding I issued by the Board on May 8,
1947, an election by secret ballot was conducted under the direction and
supervision of the Regional Director for the Seventh Region.
At the close of the election, a Tally of Ballots was furnished the
parties by the Regional Director. The Tally shows that there were
approximately 90 eligible voters and that 85 cast votes, of which 42
were for the Petitioner, 39 against the Petitioner, and 4 were chal-
lenged.
On June 23, 1947, the Employer filed objections to the conduct of
the election. Thereupon, in accordance with the Board's Rules and
Regulations, the Regional Director conducted an investigation as to
the challenges, which could affect the outcome of the election, and as
to the Employer's objections. On July 15, 1947, the Regional Director
issued and duly served upon the parties his Report on Objections and
Challenged Ballots. The Regional Director recommended therein
that the challenges to the ballots of N. F. Mohr and Edward R. Goud-
berg be sustained on the ground that the employment relationship
of these two individuals was permanently severed prior to the election
and that the challenges to the ballots of William Cayan and Carl
Van Dam be overruled on the ground that the names of these em-
ployees were inadvertently omitted from the eligibility list prepared
by the Employer . No exceptions having been filed to these recom-
' 73 N. L. R. B. 888.
77 N. L . R. B., No. 50.
345
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations, we hereby adopt them, and accordingly find that the
ballots of N. F. Mohr and Edward R. Goudberg are invalid and that
the ballots of William Cayan and Carl Van Dam are valid. However,
as the ballots of Cayan and Van Dam cannot now affect the outcome
of the election, we shall not direct that they be opened and counted.
In his Report on Objections and Challenged Ballots, the Regional
Director further recommended that the Employer's objections to the
conduct of the election be overruled. The Employer has excepted to
this recommendation. In addition, on February 2, 1948, the Employer
filed a Motion for Reconsideration of Determination of Bargaining
Unit, to which the Petitioner thereafter filed its Answer and Objec-
tions.
SUPPLEMENTAL FINDINGS OF FACT
1. OBJECTIONS TO CONDUCT OF ELECTION
The following findings of fact contained in the Regional Director's
Report on Objections and Challenged Ballots are uncontroverted in
the Employer's Exceptions :
Shortly before the close of balloting at the election on June 19, 1947,
10 individuals presented themselves at the polls asserting a right to
vote. They did not appear on the eligibility list prepared by the Em-
ployer. The observers for both the Employer and the Petitioner chal-
lenged all 10 of these persons on the ground that they are supervisors.
The Board agents permitted them to vote after each of them had
signed a statement on his challenged ballot envelope indicating his
supervisory status. At the counting of the ballots, the Board agent
destroyed the said 10 ballots together with the challenged ballot en-
velopes on the ground that no interested party asserted eligibility and
that each of the 10 persons freely admitted facts rendering him in-
eligible. The Employer has not withdrawn its challenges and does
not presently assert the eligibility of these persons.
The Regional Director, in recommending that the Employer's objec-
tions be overruled, concludes that the Board agent would have been
justified under the circumstances in refusing ballots to these 10 per-
sons in the first instance and that, in the absence of any contention
that these persons are not supervisors, no issue exists. The Em-
ployer's objections and its Exceptions to Report on Objections, in sub-
stance, criticize the procedural aspect of the Board agent's conduct
but claim no prejudice other than the fact that the individuals in
question insist upon having a right to vote.
On the basis of the undisputed facts in the report of the Regional
Director, we find that these 10 persons are supervisors, hence ineligible
CONTINENTAL MOTORS CORPORATION 347
to vote.2 The exclusion of their ballots by the Board agent, therefore,
constituted no such prejudice to any of the parties as would warrant
setting aside the election. Accordingly, we find no merit in the Em-
ployer's objections and hereby overrule them.
II. MOTION FOR RECONSIDERATION OF DETERMINATION OF BARGAINING UNIT
The Employer's Motion requests that the Board not certify the
Petitioner in the absence of a showing that the professional employees
in the unit have manifested their desire to be included therein pur-
suant to Section 9 (b) (1) of the Act.' In its Decision and Direction
of Election issued herein, the Board found appropriate a unit of
All employees in the Product Engineering Departments (in-
cluding automotive and aircraft) ; Experimental Engineering
Departments (including automotive and aircraft) ; Tool Design
Departments (including process and plant layout) ; and Blue-
print Room; but excluding secretarial employees (typists and
stenographers), field engineers, Supervisor and of Dynamometer
Testing, Foreman of Mechanics, Chief of Procurement, Experi-
mental Engineer, Specification Engineer, Chief Draftsman, Su-
pervisor of Tool Design, Assistant Chief Engineer, and all other
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees
or effectively recommend such action.
The Employer asserts that all the employees in the unit are profes-
sional except those in the Blueprint Room.4 However, we deem it
unnecessary to pass upon the accuracy of this assertion. The record
clearly shows that the bargaining unit, described above, is composed
predominantly of professional employees within the meaning of Sec-
tion 2 (12) of the Act.5 We believe, therefore, that Section 9 (b) (1)
2 Cf. Matter of Lewis-Shepard Co , 74 N. L. R. B 534.
J Section 9 (b) (1) provides : "The Board shall decide in each case whether, in order to
assure to employees the fullest freedom in exercising the rights guaranteed by this Act,
the unit appropriate for the purposes of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof : Provided , that the Board shall not ( 1) decide
that any unit is appropriate for such purposes if such unit includes both professional
employees and employees who are not professional employees unless a majority of such
professional employees vote for inclusion in such unit ; . . .
4 Insofar as the record shows, of the 90 employees in the unit at the time of the election,
9 were employed in the Blueprint Room.
5 Section 2 (12) provides : "The term 'professional employee ' means- ( a) any employee
engaged in work (1) predominantly intellectual and varied in character as opposed to
routine, mental, manual , mechanical , or physical work ; ( ii) involving the consistent exercise
of discretion and judgment in its performance ; ( iii) of such a character that the output
produced or the result accomplished cannot be standardized in relation to a given period
of time ; ( iv) requiring knowledge of an advanced type in a field of science or learning
customarily acquired by a prolonged course of specialized intellectual instruction and
study in an institution of higher learning or a hospital , as distinguished from a general
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not apply to the facts in this case .3 Accordingly, the Employer's
Motion is hereby denied.
Inasmuch as the Petitioner has secured a majority of the valid votes
cast, we shall certify it as the collective bargaining representative of
the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that International Union, United Automo-
bile, Aircraft and Agricultural Implement Workers of America
(UAW-CIO), Local 113, has been designated and selected by a ma-
jority of the employees in the unit described in Section II, above, as
their representative for the purposes of collective bargaining and that,
pursuant to Section 9 (a) of the Act, the said organization is the
exclusive representative of all such employees for the purposes of
collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
MEMBER REYNOLDS took no part in the consideration of the above
Supplemental Decision and Certification of Representatives.
academic education or from an apprenticeship or from training in the performance of
routine mental , manual, or physical processes ;
"(b) any employee , who (i ) has completed courses of specialized intellectual instruction
and study described in clause (iv) of paragraph (a), and (ii) is performing related work
under the supervision of a professional person to qualify himself to become a professional
employee as defined in paragraph (a)."
6 See Matter of Union Switch and Signal Company, 76 N L R. B. 205.