Kardon Chevrolet, Inc.

National Labor Relations Board - Board Decisions

May 16, 1980

249 N.L.R.B. 598 (N.L.R.B. 1980)

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kardon Chevrolet, Inc. and Donald M. Singer III,
Petitioner and Teamsters Local 676, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 4-RD-888
May 16, 1980
DECISION ON REVIEW AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 31, 1979, the Regional Director for
Region 4 of the National Labor Relations Board
issued a Decision and Direction of Election in the
above-entitled proceeding in which he directed a
decertification election in a unit of all full-time and
regular part-time new and used car and truck sales-
men. Thereafter, in accordance with Section 102.67
of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Union in-
volved filed a timely request for review of the Re-
gional Director's decision on grounds that his in-
clusion of part-time employees in the unit found
appropriate is a departure from officially reported
Board precedent and is clearly erroneous on sub-
stantial factual issues. The Employer filed a brief in
opposition to the Union's request for review.
By telegraphic order dated September 26, 1979,
the National Labor Relations Board granted the
Union's request for review. Pursuant to the Board's
procedures, the election was held as scheduled on
September 27, 1979, and the ballots were impound-
ed pending the Board's decision on review.
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 and makes the following findings:
The Employer, a New Jersey corporation, is en-
gaged in the retail sale and service of new and used
cars and trucks at its Mount Holly, New Jersey, lo-
cation. On October 4, 1972, the Board certified the
Union as collective-bargaining representative in a
unit of all full-time and regular part-time new and
used car and truck salesmen. Part-time salesmen
were specifically included in the unit due to the
fact that at the time of the election, September
1972, one part-time vehicle salesman, Fred Porter,
was then employed at the Employer's premises.'
Porter quit his employment in late 1975 or early
1976. Record evidence indicates that prior to the
Although the Union questioned the part-time status of employee
Porter, the record demonstrates that he was hired primarily to bring in
whatever customers he could through his outside social and business con-
tacts, and that, unlike the other salesmen, he did not work a full week of
35 to 40 hours, nor did he follow the set floor schedule.
249 NLRB 86
instant labor dispute no other part-time salesmen
have been employed.
Approximately 2 months after the Board's certifi-
cation, the parties entered into a collective-bargain-
ing agreement effective November 30, 1972,
through November 29, 1975. The contract was sub-
sequently extended by agreement of the parties
through April 12, 1979. The pertinent provisions of
the contract are as follows:
ARTICLE I SCOPE OF AGREEMENT
Section 2 Classification Covered
This agreement shall cover all vehicle sales-
men employed by the Employer ....
ARTICLE 26 MISCELLANEOUS
1. There shall not at any time be any part-time
salesmen.
17. Designated Man-Mr. Fred Porter will
enjoy all benefits agreed upon and entered in
the contract. His floor time will be scheduled
separately.
Paragraph 17 then sets out the salesmen's floor
schedule which requires each salesman to work the
floor approximately 37-1/2 hours a week on a ro-
tating shift basis.
The contract expired on April 13, 1979. The par-
ties were unable to reach agreement on a new con-
tract and, as negotiations continued, the approxi-
mately 17 full-time salesmen went out on strike on
May 4, 1979. The Employer has replaced these
striking employees with approximately 24 salesmen
who the Union alleges are part-time employees.
One such replacement, Donald Singer, filed the in-
stant decertification petition on May 15, 1979.
The Regional Director concluded that the par-
ties' change in unit description from all full-time
and part-time salesmen to "all vehicle salesmen,"
even when coupled with the fact that no part-time
salesmen were hired following Porter's resignation
in 1976, does not establish that the parties agreed
to modify the certified unit to exclude part-time
employees. Therefore, the Regional Director found
that the unit as originally certified remains the rec-
ognized unit and is the appropriate bargaining unit
for the decertification election.
The Union contends that the Regional Director
erred in failing to consider the applicable provi-
KARDON CHEVROLET, INC. 599
sions of article 26,2 and that, when such provisions
are considered in conjunction with the other evi-
dence presented, it is clear that the parties agreed
to alter the bargaining unit to exclude part-time
employees. We find merit in the Union's position.
When the parties executed their collective-bar-
gaining agreement less than 2 months after certifi-
cation in a unit of all full-time and regular part-
time salesmen, they described the unit as "all vehi-
cle salesmen" and thereby eliminated any specific
reference to part-time employees. Moreover, in
that same contract, the parties not only explicitly
prohibited the Employer from hiring any part-time
salesmen, but also created a special status for the
one current part-time salesman and specifically
granted him all contractual rights and benefits.
Such contract terms when considered together
strongly indicate that the parties intended to
remove part-time employees from the bargaining
unit. It would appear the parties understood by
such action that, unless they made special provision
2 See Duval Corporation, 234 NLRB 160 (1978), where the Board, in
concluding that the parties did not intend to merge the warehouse unit
into a broader unit, considered not only the entire collective-bargaining
agreement between the parties, but also the manner in which negotiations
were conducted and the separate identity of the warehouse employees.
for part-time Porter, who such a short time before
had participated in the election, he would lose all
contractual benefits. If part-time salesmen were still
included in the bargaining unit, no special provi-
sion for Porter would have been necessary. It is
also significant that, since the execution of the con-
tract in 1972, the Employer has not hired any part-
time employees.
In these circumstances we find that the parties
mutually agreed to modify the certified bargaining
unit to exclude part-time salesmen.3 Consequently,
we amend the unit found appropriate by the Re-
gional Director to exclude part-time salesmen.
ORDER
It is hereby ordered that this case be remanded
to the Regional Director for Region 4, and that
said Regional Director open and count the ballots
of the employees in the unit found appropriate
herein and issue the appropriate certification. The
ballots of the part-time salesmen, if any, shall
remain unopened.
a As we have excluded part-time employees from the appropriate bar-
gaining unit, we do not reach the Union's further contention that part-
time strike replacements should not be allowed to vote as they were
hired by the Employer for the purpose of padding the payroll in order to
influence the election results.
KARDON CHEVROLET, INC.