Mike O'Connor Chevrolet-Buick-GMC Co., Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1975

220 N.L.R.B. 808 (N.L.R.B. 1975)

808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mike O 'Connor Chevrolet-Buick-GMC Co., Inc., and
Pat O 'Connor Chevrolet-Buick-GMC Co., Inc.' and
General Drivers , Warehousemen and Helpers Local
Union No. 534, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America. Cases 17-CA-5505 and
17-RC-7077
September 26, 1975
SUPPLEMENTAL DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 14, 1974, the Board issued a Decision,
Order, and Certification of Representative in the
above-entitled proceeding,' wherein, among other
things, it sustained the challenge to Dave Martin's
ballot on the ground that he was a managerial em-
ployee with different interests from the other em-
ployees in the unit, found it unnecessary to de-
termine the remaining challenged ballot of Bill
Glenn, since it could no longer affect the results of
the election, and went on to certify the Union as the
exclusive collective-bargaining representative.
The Board sought enforcement of its order before
the Eighth Circuit Court of Appeals. However, that
court denied enforcement 2 of the Board's order,
finding, inter alia, that the parties had previously or-
ally stipulated that Dave Martin was in the unit and
that the Board should have given that agreement ef-
fect since it did not violate established Board policy.
In conclusion, the court remanded "to the Board
with directions to it to count Martin's ballot and
then, if necessary, to rule on Glenn's eligibility to
vote and thereafter to take such actions as are consis-
tent with this opinion."
The Board, having decided to accept the remand,
advised the parties that they could submit statements
of position with respect to the issues raised by the
remand. Both the Respondent and the Union sub-
mitted timely statements of position.
Pursuant to the provisions of Section 3(b) of the
'209 NLRB 701 (1974).
2 N.L.R B v. Mike O'Connor Chevrolet-Buick-GMC Co, and Pat O'Con-
nor Chevrolet-Bwck-GMC Co, Inc, 512 F.2d 684 (C A 8, 1975).
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.
Having reviewed the record, including the court's
decision and denial of the Board's petition for re-
hearing, and the parties' statements of position, we
have decided to treat the court's decision as the law
of this case. As a consequence, we shall direct that
the ballot of Dave Martin be opened and counted.
We have also decided to rule now on the challenge to
the ballot of Bill Glenn, since we believe that, if he is
determined to be eligible to vote in the election in
Case 17-RC-7077, his ballot should be opened and
counted together with Martin's. As was noted in the
original Board decision in this proceeding, the Union
appeared to concede that it failed to substantiate its
challenge to Glenn's ballot. We have reviewed the
record on- this issue and find no reason to sustain the
challenge to Glenn's ballot. Accordingly, we find
that he is eligible to vote in the election and we shall
direct that his ballot also be counted.
ORDER
It is hereby ordered that, as part of the investiga-
tion to ascertain a representative for the purposes of
collective bargaining in Case 17-RC-7077, the Re-
gional Director for Region 17 shall, pursuant to the
Board's Rules and Regulations, Series 8 , as amended,
within 10 days from the date of this Decision, open
and count the ballots of Dave Martin and Bill Glenn,
and thereafter prepare and cause to be served on the
parties and the Board a revised tally of ballots, in-
cluding therein the count of the above-mentioned
ballots. Upon serving the revised tally of ballots, the
Regional Director shall issue the appropriate certifi-
cation and transfer these proceedings back to the
Board for any further consideration that the Board
may deem necessary; specifically, in the event a cer-
tification of representative issues , whether in Case
17-CA-5505 certain alleged unilateral changes made
by Respondent in its employees' terms and condi-
tions of employment constitute a violation of Section
8(a)(5) and (1) as alleged in the complaint.'
7 Such changes were found by the Board to be violative of Sec . 8(a)(5) in
the prior decision but were not passed upon by the court because of the way
the court disposed of the other 8(a)(5) issue posed in the case.
220 NLRB No. 122