Laris Motor Sales, Inc.

National Labor Relations Board - Board Decisions

May 21, 1953

104 N.L.R.B. 1106 (N.L.R.B. 1953)

1 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that International Union, United
Automobile, Aircraft & Agricultural Implement Workers of
America, CIO, has been designated and selected by a majority
of employees of the Employer in the unit heretofore found
appropriate as their representative for the purposes of bargain-
ing, and that pursuant to Section 9 (a) of the Act, the said
organization is the exclusive bargaining agent 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.
LARIS MOTOR SALES, INC. and DALL NOLDER, Petitioner
and INTERNATIONAL ASSOCIATION OF MACHINISTS,
LODGE 1060, DISTRICT 63, AFL
LARIS MOTOR SALES, INC. and FRED VARLICKI, Petitioner
and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, AUTOMOTIVE CHAUFFEURS, PARTS &
GARAGE EMPLOYEES, LOCAL 926, AFL. Cases Nos.
6-RD-83 and 6-RD-84. May 21, 1953
DECISION , ORDER , AND DIRECTION OF ELECTION
Upon petitions for decertification duly filed under Section
9 (c) of the National Labor Relations Act, a hearing was
held before Joseph C . Thackery , hearing officer . The hearing
officer's rulings are free from prejudicial error and are
hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National
Labor Relations Act, the National Labor Relations Board has
delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Murdock
and Peterson].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act.
2. The Petitioners , employees of the Employer , assert
that the Unions are no longer the representatives of certain
employees of the Employer, as defined in Section 9 (a)
of the Act . The Unions are labor organizations which are the
currently recognized representatives of the employees in
question.
3. In Case No. 6-RD - 84, the Union contends , among others,
that the petition should be dismissed on the ground that the
Petitioner , Varlicki , is admittedly a supervisor . The Peti-
tioner urges his right to file the petition on the ground that
he became a member of the Union upon the demand of the
Employer's representative who stated that the Union in-
sisted upon Varlicki ' s membership in the Union.
104 NLRB No. 142
LARIS MOTOR SALES, INC. 1 107
We find merit in the Union's position. Varlicki testified
that he had always acted in a supervisory capacity both
before and after the certification of the Union. The question
of whether an unfair labor practice has been committed in
compelling Varlicki to join the Union is not before us. We
therefore find, in conformity with established Board policy,
that as Varlicki is a supervisor within the meaning of the
Act, he is ineligible to represent the Employer's employees
in this proceeding.'
As no question affecting commerce exists in Case No.
6-RD-84 concerning the representation of the employees
of the Employer, within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act, we shall therefore dis-
miss the petition in this case.'
In Case No. 6-RD-83, a question affecting commerce
exists concerning the representation of employees of the
Employer, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.'
4. The appropriate unit:
In Case No. 6-RD-83, the Union moved to dismiss the
proceeding on the ground that the unit of service employees
sought to be decertified and limited to the employees of the
Employer alone, is inappropriate. The Employer and the
Petitioner urge that the unit is appropriate because the
Employer had resigned from the Association at a proper
time.
The Union (IAM) was certified in May 1951 for the unit in
question. Thereafter, the Allegheny County Automotive Service
Association, of which the Employer was a member, bar-
gained jointly with the Union on behalf of its employer-
members, and on May 5, 1952, the Association and the Union
executed a contract effective until May 4, 1953, unless
renewed under its 60-day automatic renewal provision. On
March 3, 1953, Nolder filed the instant petition, and on March
11, 1953, the Employer resigned from the Association.
The Union contends that the unit is inappropriate on the
ground that the Employer's resignation was received after
the filing of the petition and was therefore untimely and upon
the further ground that the resignation was tendered at the
request of and upon the insistence of the Petitioner. The
Employer admits it resigned at the request of the Petitioner,
who, on behalf of himself and other employees, threatened
to quit if the Employer did not resign from the Association. 4
On the issue of the timeliness of the resignation, the
evidence shows that the contract between the Association
i Coast Drum and Box Company, 96 NLRB 1135.
2 For a consideration of other issues raised by the Union, see Case No. 6-RD-83, infra.
9There is no contention that Petitioner Nolder in Case No . 6-RD-83 is a supervisor or
that he is otherwise incapable of maintaining the decertification petition in that proceeding
covering a different group of employees.
4 The Petitioner testified that he and his fellow employees wished to leave the Union
on the ground that under the union contract they were allowed to work only 40 hours a
week, which did not enable them to earn an adequate livelihood , and for this reason urged
the Employer to leave the Association or they would quit.
1 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Union will expire May 4, 1953,5 and that the Em-
ployer resigned on March 11, less than 2 months from this
expiration date. The Board has held that resignation by
an employer from an association near the end of the con-
tract term is appropriate. B Nor do we find merit in the
contention that the Employer's resignation was untimely
because it occurred subsequent to the filing of the petition.
In the absence of evidence that the Employer evinced an
intention to continue the joint bargaining, we will give effect
to an Employer' s expressed desire either before or at the
date of the hearing to pursue an individual course of action
in its labor relations, despite a history of multiemployer
bargaining. '
We also find no merit in the Union's contention that the
Employer's resignation was improper because tendered as
a result of the Petitioner's alleged coercive conduct. What
the Union is here contending is that the acts of the Petitioner
and his fellow workers are, in effect, violations of Section 8
(b) (2) of the Act. Such contention is, however, not properly
before us, as it does not appear that any unfair labor practice
charges to this effect have been filed or that any complaint
has issued thereon. It is well established in Board decisions
that the Board may not consider in a representation case
the merits of unfair labor practice charges upon which the
General Counsel had not seen fit to issue a complaint.'
Although the Board will not process a decertification
petition where it appears that the petition was inspired or
fostered by the employer,' there is no evidence in this
record that the Employer either inspired or fostered the
present petition which was filed independently by the Peti-
tioner without aid or suggestion from the Employer. The
mere fact that since the filing of the petition, the Employer
has indirectly aided the Petitioner by resigning from the
Association, thereby making possible an appropriate unit
within the scope of the decertification petition, is not, in
our view, equivalent to a finding that the Employer inspired
or fostered such petition. to
We find, in accordance with the agreement of the parties,
that the following employees of the Employer constitute a
5 There is no specific evidence that the contract was not renewed under the automatic
renewal provision. However, there is no contention of a contract bar on the ground that the
contract had been renewed . In view thereof and because the Union 's representative stated
at the hearing, which took place after the automatic renewal date, that the contract would
expire on May 4, 1953, we infer that written notice had been given to reopen the contract
as required by the renewal provision.
6 Engineering Metal, Products Corporation, 92 NLRB 823; cf. W. S. Ponton, of N. J., Inc.
95 NLRB 581.
7 Stamford Wall Paper, Inc., 92 NLRB 1173; Milk and Ice Cream Dealers of Greater
Cincinnati Area, 94 NLRB 23.
6Times Square Stores Corporation, 79 NLRB 361.
9Morganton Full Fashioned Hosiery Company et aL, 102 NLRB 134, and cases cited
therein.
io In determining whether or not a decertification petitioner is to be considered the agent
of the employer, the Board has looked primarily to the relationship existing as of the time
of filing the petition. See Kraft Foods Company, 97 NLRB 1097.
FULLANA CONSTRUCTION CO., INC. 1 109
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act:
All journeymen mechanics employed at the Employer's plant
at Ambridge, Pennsylvania, including mechanics' helpers,
mechanic apprentices, maintenance men, body and fender
mechanics, helpers and apprentices and their group leaders,
but excluding all office and clerical employees, salesmen,
service employees, parts department employees, washers,
lubrication men, janitors, towing employees, undercoating
employees, service station employees, guards, professional
employees, and supervisors as defined in the Act.
ORDER
IT IS HEREBY ORDERED that the petition filed herein in
Case No. 6-RD-84, be, and it hereby is, dismissed.
[Text of Direction of Election omitted from publication.]
FULLANA CONSTRUCTION CO., INC. (EXTENSION SAN
AGUSTIN PROJECT, RIO PIEDRAS) and UNION DE TRABA-
JADORES DE LA CONSTRUCTION Y RAMAS ANEXAS DE
PUERTO RICO, (UGT), Petitioner. Case No. 24-RC-542.
May 21, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Francisco
Romero, 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, Murdock, and
Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. No 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, for the
following reasons:
The Petitioner seeks the establishment of a bargaining unit
of the employees working in the Employer's construction
project called Extension San Agustin Project. The Employer
contends that an election 1 held on August 14, 1952, in a unit of
1 That election was conducted by order of the Board in Fullana Construction Company,
24-RC- 336, issued July 17, 1952.
104 NLRB No. 153.
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