Herrall-Owens Co.

National Labor Relations Board - Board Decisions

Nov 20, 1950

92 N.L.R.B. 160 (N.L.R.B. 1950)

In the Matter of HERRALL-OWENS Co., EMPLOYER and INTERNATIONAL
ASSOCIATION OF MACHINISTS, CAPITOL CITY LODGE No. 1506,
'PETITIONER
Case No. 36-RC-461.-Decided November 20, 1950
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 Melton Boyd, 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 [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer, under franchise, from Pontiac Motor Division
of General Motors Corporation, is engaged' in the sale and servicing
of new and used automobiles and trucks, and in the sale of automotive
parts and accessories at Salem, Oregon.
During the year 1949, the Employer bought approximately $460,000
worth of new automobiles, tires, parts, accessories and similar mer-
chandise, 63 percent of which originated outside the State of Oregon.
The Employer orders new automobiles from Pontiac Motor Division
of General Motors Corporation in..Portland, Oregon, and receives
them directly from the supplier in California. The Employer orders
automotive parts and accessories, manufactured in various States,
from General Motors Parts Division in Portland, Oregon.
During the same period, the Employer made sales amounting to
approximately $590,000, very few of which were made to customers
outside the State of Oregon. The Employer's repair services were
available to both local and out-of-State customers.
Under these circumstances, we find, and the Employer agrees, that
the-Employer's operations affect commerce within the meaning of
the Act. We also find that it will effectuate the policies of the Act to
assert jurisdiction in this case.'
lAvedis Baxter and Ben Baxter, d / b/a Baxter Bros., 91 NLRB 1480.
92 NLRB No. 32.
160
!' HERRALL-OWE3^TS CO; 161
2. The labor organizations involved, claim : to represent certain
,employees of the Employer.
3. The Intervenor 2 contends that an agreement dated Novem-
ber 19, 1948, to be effective from October 1, 1948, to June 1, 1949, and
from year to year' thereafter in the absence of a 60-day notice to
terminate, signed by a representative of the Intervenor and one Dan
Hay, as the Employer's agent, constitutes a valid. existing contract
between the Employer and the Intervenor and a bar to a determina-
tion of representatives at this time. The Employer and the Petitioner
contend that Hay had no authority to sign the agreement for the
Employer and that the agreement is therefore invalid and cannot
constitute a bar..
Hay, whose authority to sign a binding contract for the Employer
is in issue, was a representative of Automobile Dealers Association
of Salem, Oregon, of which the Employer is a member. On Septem-
ber 24, 1948, Hay, as the Employer's agent, with the Employer's au-
thority, recognized the Intervenor as the exclusive bargaining agent
of the Employer's employees and thereafter "negotiated" terms for
it contract. On November 19, 1948, in the absence of the Employer's
vice president, Hay signed a contract as agent for the Employer.
This contract contained provisions relating to wage rates and adjust-
ments, working hours, and the settlement of grievances. On Novem-
ber 24, 1948, the Employer's vice president, on his return, immediately.
.sent letters to the Intervenor and to Hay, admitting Hay's authority
to negotiate for the Employer with the Intervenor as to terms, but
denying Hay's authority to conclude a contract on behalf of the
Employer, and repudiating the recently signed contract as invalid.
On December 6, 1948, the Employer filed a petition in Case No.
36-RM-29, alleging that the Intervenor and the Petitioner's Inter-
national both claimed recognition as exclusive representative of its
employees and requested an investigation and a certification of repre-
sentatives. Thereafter, the Employer recognized the Intervenor as
the exclusive bargaining representative of its employees, and with-
drew its petition. In January 1950, the Intervenor filed a UA peti-
tion, and on February 13, 1950, the Employer agreed to a consent
election in the UA proceeding. The Intervenor lost the election.
The Employer has given no effect to the collective bargaining agree-
ment negotiated and signed by Hay on November 19, 1948, and no
grievances have been processed by the Intervenor under the contract.
2International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, Local Union No. 324.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since November 19, 1948, the Employer unilaterally made changes:
in wage rates and working conditions of employees.
Under all the circumstances, we find that Hay did not have authority
to effect a valid bargaining contract for the Employer at the time
the contract was signed. We therefore find that the contract does,
not constitute a bar to an immediate determination of representatives.
A question affecting commerce exists concerning the representation
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 appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act: All hourly paid employees and the parts
manager and the assistant parts manager 3 at the Employer' s garage
and repair shop at Salem, Oregon, excluding salesmen , office and
clerical employees, guards, and supervisors.
[Text of Direction of Election omitted from publication in this
volume.]
.3 There is no evidence in the record that the parts manager or the assistant parts manager
has or exercises any of the powers of a supervisor as set forth in Section 2 (11) of the Act.
The parts manager and the assistant parts manager are paid on a salary basis. In
determining the appropriate bargaining unit , we do not, however , distinguish between em.
ployees paid on a salary basis and those paid on an hourly basis solely on the ground of the
difference lb mode of payment. Gunnison Homes , Inc., 72 NLRB 940 , and cases, cited
therein.