Graham Ford, Inc

National Labor Relations Board - Board Decisions

Jun 16, 1976

224 N.L.R.B. 927 (N.L.R.B. 1976)

GRAHAM FORD, INC
Graham Ford , Inc and Local 589, International Union
of Operating Engineers , AFL-CIO, Petitioner
Case 9-RC-10906
June 16, 1976
DECISION AND DIRECTION
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Acting Regional Director for Region 9
of the National Labor Relations Board, on August 4
1975, an election by secret ballot was conducted on
August 21, 1975, among employees in the stipulated
unit At the conclusion of the election, the parties
were furnished a tally of ballots which showed that
of approximately 65 eligible voters, 61 cast ballots, of
which 25 were for the Petitioner, 25 were against Pe-
titioner, and 11 were challenged The challenged bal-
lots were sufficient in number to affect the results of
the election Neither party filed objections to the
conduct of the election nor to conduct affecting the
results of the election
The Regional Director investigated the challenged
ballots and on January 6, 1976, issued his Report on
Election, Challenged Ballots, and Recommendations
to the Board He recommended that the challenges to
the ballots of Melvin Loudimilk and Ken Karg, Jr,
be sustained He further recommended that the
Board overrule the challenges to the ballots of John
Hannah, Dallas Lewis, David Jenkins, Paul Fowler,
Ken Cassin, Richard Mcllvain, and Ned Hart, that
these ballots be opened and counted, and that a re-
vised tally of ballots issue If the revised tally of bal-
lots shows that the Petitioner received a majority of
the valid votes cast plus the remaining unresolved
challenged ballot of Kimball, the Regional Director
recommended that an appropriate Certification of
Representative issue
In the event the revised tally of ballots shows that
the challenged ballot of Kimball is determinative of
the results of the election, the Regional Director rec-
ommended that a hearing be conducted to resolve
the issues raised by the challenge to this ballot
The Employer filed exceptions and a supporting
brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the entire record in this
case, including the Regional Director's Report on
927
Election, Challenged Ballots, and Recommendations
to the Board, and the Employer's exceptions and
brief, and hereby adopts the Regional Director's
findings, conclusions, and recommendations,' as
modified below
The Board agent challenged the ballot of Eugene
Kepler because his name was not on the eligibility
list In the discussion section of his report, the Re-
gional Director concluded that Eugene Kepler has a
sufficient community of interest with unit employees
to warrant his inclusion in the unit and, accordingly,
recommended that the challenge to his ballot be
overruled No exception was filed to this conclusion
However, in the "Conclusions and Recommenda-
tions" section of his report, as recited above, the Re-
gional Director apparently inadvertently failed to in-
clude Kepler's name on the list of overruled
challenges We shall therefore direct that Kepler's
ballot be opened and counted
In its exception no 2, the Employer alleges that
the Regional Director erred in concluding that Paul
Fowler, Ken Cassin, Richard Mcllvain, and Ned
Hart are properly included in the bargaining unit
and are eligible to vote It contends that the above
four employees are ineligible to vote because they are
part of the sales department and are excluded by the
language of the petition and Stipulation for Certifica-
tion Upon Consent Election The stipulation de-
scribes the unit as follows
All service department employees of the Em-
ployer at its Columbus, Ohio, location including
auto and truck mechanics, body shop mechan-
ics, service department car jockeys, and parts
department employees, but excluding all office
clerical employees, auto and truck salesmen, in-
dustrial salesmen, auto and truck lease salesmen
and clerks, service writers, guards, and supervi-
sors as defined in the Act
The above four challenged voters are part of the
sales department rather than of the service depart-
ment Hence they are not included in the unit of
"service department employees" which the parties
stipulated was appropriate for election purposes It
was therefore an error for the Regional Director to
dispose of these challenges on the basis of general
community of interest principles When parties stipu-
late the unit in which an election is to be held they
1 In the absence of exceptions thereto the Board adopts pro forma the
Regional Director s recommendation that the challenge to the ballot of Mel
vin Loudimilk be sustained that the challenges to the ballots of Eugene
Kepler John Hannah Dallas Lewis and David Jenkins be overruled and
that a hearing be conducted on the issues raised by the challenge to the
ballot of David Kimball in the event the revised tally of ballots shows that
the challenged ballot of Kimball is determinative of the results of the elec
tion
224 NLRB No 133
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"must be held to their agreements , as any other party
is held to an agreement " 2 Accordingly, we sustain
the challenges to the ballots of Paul Fowler, Ken
Cassin, Richard McIlvain,3 and Ned Hart
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purposes of
collective bargaining among certain employees of
Graham Ford, Inc, in the unit set forth in section 12
of the Stipulation for Certification Upon Consent
Election, the Regional Director for Region 9 shall,
pursuant to the Board's Rules and Regulations, with-
in 10 days from the date of this direction, open and
count the ballots of John Hannah, Dallas Lewis, Da-
vid Jenkins, and Eugene Kepler and, thereafter, pre-
2 Shoreline Enterprises of America Inc v N L R B 262 F 2d 933 943
(C A 5 1959)
3 By letter of March 30 1976 the Employer moved for the admission of
the proffered affidavit of Ken Karg Sr the director of the Employer s
service department The affidavit states that Richard McIlvain was not em
ployed on the payroll of the Employer until July 15 1975 after the eligibili
ty cutoff date of July 14 1975 We grant the motion and accept the affida
vit However in view of our disposition of the challenge to Mcllvain s ballot
hereinabove the question of Mcllvain s payroll date of employment by the
Employer is moot and we need not and do not now pass on this question In
the same affidavit of Ken Karg Sr it is stated that Ken Karg Jr the son
of Ken Karg Sr whose eligibility to vote in the election is in question is not
related to Gene Graham the majority stockowner and president of the
Employer Nevertheless we agree with the Regional Directors determina
tion that Ken Karg Jr is excluded from the unit and ineligible to vote for
the reasons stated by the Regional Director in his report
pare and cause to be served on the parties a revised
tally of ballots In the event that the revised tally of
ballots shows that a majority vote has been cast for
or against the Petitioner, including in the count the
unresolved challenged ballot of David Kimball, the
Regional Director shall issue an appropriate certifi-
cation
However, in the event that the revised tally of bal-
lots shows that the ballot of Kimball is determinative
of the election, the following shall be applicable
IT IS HEREBY FURTHER ORDERED that the Regional
Director direct that a hearing be conducted before a
duly designated Hearing Officer for the purpose of
receiving evidence to resolve the issues raised by the
unresolved challenge to the ballot of David Kimball,
as hereinabove determined
IT IS FURTHER ORDERED that the Hearing Officer
designated for the purpose of conducting the hearing
shall prepare and cause to be served upon the parties
a report containing resolutions of the credibility of
witnesses, findings of fact, and recommendations to
the Board as to the dispostion of such challenged
ballot Within 10 days from the date of issuance of
such report, either party may file with the Board in
Washington, D C, eight copies of exceptions thereto
Immediately upon the filing of such exceptions, the
party filing the same shall serve a copy thereof upon
the other party and shall file a copy with the Region-
al Director If no exceptions are filed thereto, the
Board will adopt the recommendations of the Hear-
ing Officer