Coulter Jones & Son

National Labor Relations Board - Board Decisions

May 4, 1950

89 N.L.R.B. 1146 (N.L.R.B. 1950)

In the Matter Of COULTER JONES & SON, EMPLOYER and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS , DISTRICT LODGE No. 727,
PETITIONER
Case No. 21-RC-1137.Decided May 4,1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Jack R. Berger,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed, except as noted
below.,
The hearing officer referred to the Board the Employer's request
that he be disqualified for bias and prejudice. The motion is denied
for the reasons stated in Angelus Chevrolet Co., 88 NLRB 929, and
I At the request of the Petitioner , the Regional Director served subpoenas on the Employ-
ers, Ted A. Jones and William C. Jones , officials of the Employer , and on V. H . Sutherlan,
an official at Los Angeles, California , of the Oldsmobile Division , General Motors Corpora-
tion. The subpoenas on the Employer and its officers were personally served on March 3,
1050, while the subpoena on Sutherlan was sent to him by registered mail on the same day.
At the hearing on March 6, the attorney for the Employer and its officials stated that his
clients would not then respond to the subpoenas because the 5-day period for filing petitions
to revoke subpoenas, allowed by Section 203.58 (c) of the Board's Rules and Regulations,
had not yet expired. The hearing officer thereupon continued the hearing to March 10 to
give the subpoenaed parties the benefit of the full 5-day period within which to decide
whether they would respond thereto, or file petitions to revoke. At the continued hearing,
the Employer, Ted A. Jones, and William C. Jones, filed individual petitions to revoke the
subpoenas served on them.
The hearing officer found that the petitions were filed untimely, but denied them on the
merits as if they had been timely filed. We overrule the finding that the petitions to revoke
were untimely filed. Section 203.5S (c) allows a party who does not intend to comply with
a subpoena served upon it, a period of 5 days after the date of service to petition in writing
to revoke it. As to those parties who were personally served on March 3, the 5-day period
provided for filing petitions to revoke included March 10, because under Section 203.86 of
the Rules and Regulations , March 4 and 5, a Saturday and Sunday , may not be counted as
part of the 5-day period . Sutherlan to whom a subpoena was sent by registered mail
on March 3 was entitled, under the same section, to an additional 3 days within which to
file his petition: The ruling that the petitions to revoke were untimely filed was not, how-
ever, prejudicial to the parties involved, as the hearing officer ruled on the sufficiency of
the petitions despite his belief that he did not have to accept them. The parties thereby
obtained the ruling on the merits of their petitions to which they were entitled. We affirm
the hearing officer 's ruling denying the petitions to revoke the subpoenas , for the reasons
stated in Bill Heath, Inc., 89 NLRB 67.
89 NLRB No. 136.
1146
COULTER JONES & SON 1147
in Masters Pontiac Co., 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 peti-
tion 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 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. After their petitions to revoke the subpoenas were denied, the
Employer, Ted A. Jones, and William C. Jones, refused to respond to
the subpoenas which required them to testify and to produce books
and records with respect to the Employer 's business . The record es-
tablishes, however, that the Employer operates under a standard form
of dealer agreement with the Oldsmobile Division of General Motors
Corporation,2 and that it has been incorporated in the State of Cali-
fornia primarily to operate an automobile dealership. We are satis-
fied from the testimony of those witnesses who are employees of the
Employer, that the Employer receives new Oldsmobile cars and GMC
trucks, both from within California and from other States. In the
absence of any evidence to the contrary, we take cognizance of the
normal practice in the industry that an automobile dealer who oper-
ates under an agreement with a manufacturer, receives new cars for
the purpose of selling them. No testimony was offered with respect to
the value of the purchases and sales made by the Employer either
within the State or outside, but we find nevertheless that the Em-
ployer is engaged in commerce within the meaning of the Act because
it is a franchised dealer of General Motors Corporation.3
2. The labor organization involved claims to represent certain
employees 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. We find that all employees of the Employer at its establishment
at Burbank, California, excluding salesmen , office and clerical em-
2 Although the agreement was not introduced in evidence, nor its existence stipulated to
by the Employer, we rely for our finding on a telegram in the record from the General
Counsel of General Motors Corporation to the Regional Director for the Twenty -first Region
of the Board stating that the Employer does operate under such an agreement.
3 Bill Heath, Inc., supra ; Wray Bros., 89 NLRB 592 ; M. L. Townsend, 81 NLRB 739.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, 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.'
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes 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
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated 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.
4 Wray Bros ., supra; B. B. Burns Co., Inc., 85 NLRB 1025; Adams Motors, Inc., 80
NLRB 1518.
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