Martin J. Barry, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1949

83 N.L.R.B. 1146 (N.L.R.B. 1949)

I
In the Matter Of MARTIN J. BARRY, INC., EMPLOYER and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS , LODGE No. 199; PETITIONER
Case No. 5-RC-265.-Decided June 6,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed; hearing in this matter was held before
Harold G. Biermann, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Reynolds, Murdock, and
Gray].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act .2
2. The Petitioner is a labor organization claiming to represent
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. The following employees of the Employer at its Baltimore,
Maryland, plant, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act : 3
All automotive maintenance employees, including automotive and
truck mechanics, apprentices, helpers, brake men, battery men, metal
The hearing officer properly denied the Employer 's motion that the Board disclose the
contents of the Field Examiner 's report of his investigation of the petition , so that evidence
as to the adequacy of the Petitioner 's showing of interest would be in the record. See
Matter of J. I. Case Company, 80 N. L. R. B. 223.
2 Matter of IAddon White Truck Company, Inc., 76 N . L. R. B. 1181.
8 At the hearing, the Employer questioned the competency of the Petitioner to represent
employees who are not mechanics , on the ground that the Petitioner is not authorized by its
constitution to represent them. We find no merit in this contention . The Board has
repeatedly held that the willingness of a petitioner to represent employees is controlling
under the Act, not the eligibility of employees to membership , or the exact extent of the
Petitioner 's constitutional jurisdiction . Moreover, there is no showing that the Petitioner
will not accord adequate representation to the employees in the unit. See Matter of
Conroe Creosoting Company , 78 N. L. R. B. 821.
83 N. L. R. B., No. 163.
1146
MARTIN J. BARRY, INC. 1147
men,4 lubrication men, drivers, car washer-porters, tiremen, and gaso-
line pump men, but excluding parts department employees, salesmen,
office and clerical employees, and supervisors as defined in the Act .5
5. A few months before the date of the hearing the Employer laid
off a number of employees because of a curtailment of its sales and
service work. The Petitioner contends that these employees should be
permitted to vote in the election. The Employer takes the position
that their employment was finally terminated and that-it does not
anticipate an increase in business to warrant rehiring them. As the
record establishes that there is no reasonable expectancy of reemploy-
ment of these laid-off employees by the Employer, we find them ineli-
gible to participate in the election hereinafter directed .6
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses 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 Re-
lations Board Rules and Regulations-Series 5, as amended, among the
employees in the unit found appropriate in paragraph numbered 4,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll 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 reinstated prior to the date of the election, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be represented, for purposes of collective
bargaining, by International Association of Machinists, Lodge No.
199.
4 The Employer classifies the automotive mechanics , brake men, battery men, and metal
men as mechanics.
6 The Employer would exclude from the unit the car washer -porters, gasoline pump men,
tire men , and drivers upon the ground that they are unskilled workers. However, the
record discloses that these employees and the others sought by the Petitioner constitute,
in effect, a group of service department employees all of whom are under the supervision
of the service manager and are engaged in maintaining , servicing, and repairing automo-
biles. In view of the fact that there has been no history of collective bargaining at this
plant and that the employees involved herein constitute a functionally homogeneous group,
we shall include the car washer -porters, gasoline pump men, tire men, and drivers in the
unit found appropriate . Cf. Matter of Hull-Rodell Motors, Inc., 79 N. L. R. B. 1408.
6 Matter of Waterman Steamship Corporation, Repair Division, 78 N. L . R. B. 40.