Midway Lincoln-Mercury, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1969

180 N.L.R.B. 58 (N.L.R.B. 1969)

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midway Lincoln-Mercury , Inc. and District Lodge
71, International Association of Machinists &
Aerospace Workers, AFL-CIO; and Local 552,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Case 17-RM-421
December 12, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Patrick E. Rooney, Hearing
Officer. Following the hearing, and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations , Series 8, as amended,
and by direction of the Regional Director for
Region 17, this case was transferred to the Board
for decision. The Employer-Petitioner has filed a
timely brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, including the
brief filed herein, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved herein claim
to represent certain employees of the Employer.
3. Machinists Lodge 71 contends that the petition
was untimely filed with regard to its contract with
the Employer and must therefore be dismissed on
grounds of contract bar. We find no merit in this
contention.
Machinists Lodge 71 and Teamsters Local 552
were jointly certified on Janaury 11, 1968, in Case
17-RC-5630, as the joint representatives of the
Employer' s service department and maintenance
department employees. After joint negotiations, the
Employer, on January 16, 1968, entered into a
contract with Machinists Lodge 71 purporting to
cover all employees who are members of that Union'
who are employed in the service department, and a
contract with Teamsters Local 552 purporting to
cover all the remaining employees in the service and
parts departments. The Machinists' contract is
effective through October 18, 1969, and the
Teamsters' contract through November 18, 1969.
In view of our finding that this contract is not a bar for the reasons
On August 13, 1969, the Employer filed a petition
(Case 17-RM-418) asserting that its service
department employees no longer wished to be
represented by Machinists Lodge 71. At the
Regional Office's suggestion that the unit described
was inappropriate, the Employer withdrew that
petition on August 28, 1969. The next day, August
29, the Employer filed the petition in this case,
asserting that its service and maintenance
department employees no longer wished to be
represented by Machinists Lodge 71 and Teamsters
Local 552.
The parties agree that the unit described in the
instant petition is the same as the unit involved in
Case 17-RC-5630, and that it is an appropriate unit:,
The parties also stipulate . that the Employer's
current contracts with Machinists Lodge 71 and
Teamsters Local 552 cover the employees in this
unit, and were negotiated and administered by the
Unions jointly.
In Leonard Wholesale Meats, Inc., 136 NLRB
1000, 1001, the Board, modifying Deluxe Metal
Furniture Company, 121 NLRB 995, 1001,
established a period, from 90 to 60 days before the
expiration of a contract, during which a petition for
an election among the employees in the unit covered
by the contract would be considered timely filed.
The Board reserved the 60 days immediately prior
to the expiration of the contract as an insulated
period during which the parties could negotiate and
execute a new or amended contract without the
disruption of established labor-management
relations caused by a rival petition.
Machinists Lodge 71, although it filed no brief
with the Board, had contened at the hearing that the
instant petition must be dismissed because it was
filed during the 60-day period preceding the
termination date of its contract with the Employer.
However, it is clear that the petition was timely with
regard to the Teamsters Local 552 contract, and as
the two labor organizations are joint representatives
of all the employees in the unit covered by both
contracts, which were jointly negotiated and
administered, we find that it was timely as to both.3
To require the petition to be filed 90 to 60 days
before the expiration date of both contracts, whose
expiration dates are 30 days apart, would render it
virtually impossible for these employees to exercise
a right enjoyed by others to change representatives
at regular intervals if they so desire. Such an unfair
stated below, we find it unnecessary to determine whether it is invalid as a
bar because it is a "members only" contract . See Appalachian Shale
Products Co, 121 NLRB 1160, 1164.
'In view of the agreement to the appropriateness of the single -employer
unit, we find it unnecessary to rule on the Machinists ' contention at the
hearing that the Employer 's purported withdrawal on September 30, 1969,
from Motor Car Dealers Association of Greater Kansas City of authority
to represent the Employer in collective-bargaining negotiations was
improper
3Although not crucial to our determination herein , we note that
Machinists Lodge 71 received notice of the existence of a question
concerning representation among these employees prior to the insulated;
period of its contract by virtue of the petition filed in Case 17-RM-418.
180 NLRB No. 10
MIDWAY LINCOLN-MERCURY, INC.
result was not intended by the Board and would not
effectuate the policies of the Act . We therefore find
no contract bar to the instant petition.
Accordingly , we find that a question affecting
commerce exists concerning the representation of
certain employees of the Employer within the
meaning of Sections 9(c)(1) and 2 (6) and (7) of the
Act.
4. The parties stipulated , and we find , that the
following employees of the Employer constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All service and maintenance department
employees , including mechanics , painters , porters,
washmen , partsmen , parts drains, body
mechanics , and tubemen ; excluding all other
59
employees, office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
[Direction of Election4 omitted from publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear inc.. 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed than an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 17 within 7
days of the date of this Decision and Direction of Election The Regional
Director shall make the list available to all parties to the election No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed