O. Z. Hall Motors, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1951

94 N.L.R.B. 1180 (N.L.R.B. 1951)

1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We believe that the record in this case reveals a schism or intraunion
split, so that the normal bargaining relationship between the Em-
ployer and the heretofore exclusive representative of its employees has
become a matter of confusion, and the relationship between them can
no longer be said to promote stability in industrial relations 3
We find that a question affecting commerce exists concerning the
representation of the Employer's employees within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act4
4. In accordance with the agreement of all the parties, we find that
the following employees at the Employer's Lockport, New York, plant,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
All production and maintenance employees, excluding office, clerical,
and professional employees, temporary construction employees, sales-
men, sales engineers, sales servicemen, technical drafting room staff,
chemists, laboratory workers and their helpers, guards, executives, and
all other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
3 Boston Machine Works , 89 NLRB 59 ; Harrisburg Railway Co., 94 NLRB 1028.
In view of our finding that the contract is no bar for the reasons set forth above, we
need not pass upon the other contentions raised by the Petitioner at the hearing.
4 With regard to the Employer 's contention that if the Board directs an election, the
winning labor organization should be bound by the current contract between it and the
Intervenor , we reaffirm our position that it is not the Board ' s function to pass upon this
question in a representation proceeding . Boston Machine Works , supra ; Harrisburg Rail-
way Co ., supra.
0. Z. HALL MOTORS, INC. and INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS, PETITIONER. Case No. 10-RC-1270. June 13, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John S. Patton, 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 [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer, an Alabama corporation with a place of business
in Birmingham, Alabama, is engaged in the sale and servicing of
new and used automobiles and trucks, and the sale of parts, tires, and
94 NLRB No. 183.
0. Z. HALL MOTORS, INC. 1181
accessories. The Employer has a franchise from the Ford Motor
Company. During the year 1950, the Employer purchased more than
$1,000,000 worth of new automobiles, parts, accessories, and tires, all
of which were shipped to it from points outside the State. During
the same period, the Employer's sales were in excess of $1,500,000 and
were all within the State.
We find that the Employer is engaged in commerce within the mean-
ing of the Act, and that it will effectuate the policies of the Act to
assert jurisdiction in this case.'
2. The Petitioner is a labor organization claiming to represent
certain 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 Petitioner seeks a unit 2 composed of the Employer's body
shop employees, porter, and service department employees, including
automotive mechanics, lubrication man, underseal men, helpers, and
car washer, but excluding service salesmen, parts men, tire changers,
automobile salesmen, office employees, service department cashier,
parts department cashier, guards, watchmen, technical and profes-
sional employees, executives, service manager, assistant service man-
ager, and all supervisors as defined in the Act. The Employer would
exclude the body shop employees as employees of an independent con-
tractor. The Employer also disagrees with the Petitioner in that it
opposes the exclusion of various other job classifications discussed
below. There is no history of collective bargaining affecting any of
the employees involved herein.
Body shop employees. One Hughes, formerly an employee in the
Employer's used car reconditioning department, operates a body shop
under the Employer's name 3 about 2 blocks from the Employer's main
establishment. The Employer provides the building, furnishes power
and equipment, and advertises the services of the body shop. The.
Employer also keeps Hughes' books, handles his payroll, issues pay
checks to the body shop workers, and reports them for social security
purposes as its employees. Hughes supplies the labor and materials
and pays 25 percent of the gross profit to the Employer. The Em-
ployer has no control over the prices charged by Hughes, who in turn
must follow the Ford manual when that make of automobile is re-
paired.
The body shop employees are under the supervision and control of
Hughes who determines broad policy and methods of operation.
1 Hanna. Motor Company, 94 NLRB 105 ; Baxter Bros., 91 NLRB 1480.
3 The Petitioner 's original unit proposal was amended at the hearing.
3 The telephone directory lists under the name of the Employer the main office and the
paint and body department ( the body shop).
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some body shop employees participate in the same group insurance
plan as employees at the main plant. Others receive about the same
compensation as the mechanics of the Employer's service department.
Hughes has the authority to hire and discharge the employees of the
body shop. However, the Employer retains the right to discharge
any of these employees, if they, are. "detrimental to the business."
And the Employer may suggest that certain jobs be accelerated in
,order to suit a customer's convenience.
On the basis of the foregoing, especially the integrated operation of
the body shop under the Employer's name, the use by Hughes of the
Employer's equipment and premises, the enjoyment by some employees
of the group insurance privilege, and the Employer's power to termi-
nate the employment relationship of particular employees,4 we find
that Hughes is not an independent contractor but a supervisor of the
Employer and that the body shop employees are employees of the
Employer. We shall include them in the unit.
Parts men. The Employer has three parts men who work under
the manager in the parts department, which is located between the
service and sales departments. They distribute parts to the mechanics
in the service department and sell parts and accessories to wholesale
and retail customers. Their duties include taking, inventory, and
looking up prices which they enter on appropriate cards. An addi-
tional employee is training for the position of parts man by working
on the parts truck in pickup and delivery. The parts department em-
ployees along with the service department employees participate in
the Employer-wide vacation, group insurance, and hospitalization
programs.
From the foregoing facts, we find that these employees work in a
department which is closely related to the service department and
have substantial interests in common with the employees therein. We
shall therefore include them in the unit.'
Service salesman. One employee in the service department is a
full-time salesman.6 As such he must have mechanical experience
and basic mechanical knowledge. He receives customers who desire
service, diagnoses mechanical troubles, gives estimates as to the cost
of repairs, and makes out the necessary repair orders. We find,
therefore, that he is an integral part of the service department with
4 The Board attaches paramount significance to this factor . Wade & Paxton , 89 NLRB
829. Cf. Phillips Chemical Company, 90 NLRB 76; The Fuller Automobile Company
d./b/a The Fuller Automobile Company and Fuller Manufacturing & Supply Company, 88
NLRB 1452.
Manna Motor Company, supra ; Tuscaloosa Truck and Tractor Company , Inc., 92
NLRB 706.
° See discussion infra as to the service manager and assistant service manager, part of
whose time is spent in the capacity of service salesmen.
O. Z. HALL MOTORS, INC. 1183
duties and interests which link him with the other employees in that
department.7 The record reveals that this position is 'temporarily
vacant. Accordingly, if at the time of the election this job has been
filled, the service salesman should be included in the unit.
Parts department cashier and service department cashier. These
employees handle cash payments and in general perform all the
clerical duties which pertain to their departments. Each is located
in, or adjacent to, her own department. They work in close contact
with the employees in both departments. As they are plant, rather
than office, clericals whose interests are directly aligned with those of
other employees in the unit, we shall include them in the unit."
Tire changers. The record contains no indication of duties other
than those normally performed by employees in that class. The
Board has on many occasions in similar cases included tiremen in a
unit with the classifications here requested .9 We shall therefore, in
accord with this practice of the Board, include the tire changers in
the unit.
Automobile salesmen.' The 14 salesmen in the sales department
work on a commission basis and devote most of their time to selling
new and used cars and trucks. They also solicit service work for
the service department. We do not believe that there is sufficient
reason in this case to depart from the usual Board practice of exclud-
ing salesmen from a unit of manual workers 10 We shall therefore
exclude the automobile salesmen from the unit.
O ffiice employees. The bookkeeper, billing clerk, payroll men, and
telephone operator constitute a separately located department which
is under the immediate supervision • of the office manager. The tele-
phone operator performs the usual duties of such an employee and
also spends some time in soliciting business by telephone. The remain-
ing employees in the department have the normal duties of office
clericals and work on records which are submitted by the various
departments. The record reveals no reason for departing from the
Board's usual policy of excluding office clericals and telephone opera-
tors from a unit of manual workers and we shall therefore exclude
them from the unit 11
There remains for consideration the question of determining
whether the service manager, assistant service manager, and parts
manager should be excluded as supervisors.
7 Hanna Motor 'Company, supra; 'Ivy-Russell Motor Company, 90 NLRB No. 260.
9Hanna Motor Co ,, .,,any, supra; Ivy-Russell Motor Company, supra; Public Motors Co.,
90 NLRB No. 273.
Strickler Motors and ) ¢sco Auto Company and Pasco-Kennewick Automobile Dealers
Association, 87 NLRB 1313, and cases cited therein.
'0 Hanna Motor Company, say, ra ; Dunlap Chevrolet Company, 91 NLRB 111.5.
11 Hanna Motor Company, 8 upra; Dunlap Chevrolet Company, supra.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service manager and assistant service manager. The 18-man serv-
ice department is under the over-all supervision of the service manager.
and assistant service manager. As already noted; they devote part
of their day to acting as service salesmen. They also direct the work
of the mechanics, make assignments, and have the power to reject
work that is unsatisfactory. The assistant manager trains the me-
chanics, gives them technical advice, and can order them to perform
work in the manner determined by him. In the absence of the service
manager, the assistant manager takes his place. Both are paid a
salary plus commission. Although neither of them has the power to
hire or discharge any employees, or effectively to recommend such
action, we are satisfied that they exercise sufficient control over the
employees whose work they direct to warrant the conclusion that they
are supervisors as defined in the Act.12 We shall therefore exclude
them from the unit.
The parts manager. He directs the parts department and makes
assignments. It appears that his duties, hours, and working con-
ditions are substantially the same as those of the other parts men
except that he also does the buying for the department. He does not
have the authority to hire or discharge employees, or effectively to
recommend such action. As he was not shown to have any indicia of
supervisory authority, we find that lie is not a supervisor, and we
shall therefore include him in the unit.13
We find that all service department employees, parts department
employees, and body shop employees at the Employer's main estab-
lishment and its body shop, Birmingham, Alabama, including auto-
motive mechanics, lubrication man, underseal man, helpers, car
washer, porter, tire changers, service salesman,14 service department
cashier, parts department cashier, parts department manager, but
excluding office employees, automobile salesmen, guards, watchmen,
technical and professional employees, executives, service manager,
assistant service manager, body shop supervisor'15 and all other super-
visors as defined in the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section
(b) of, the Act. -
[Text of Direction of Election omitted from publication in this
volume.]
12 The Fuller Automobile Company d/b/a The Fuller Automobile Company and Fuller
Manufacturing & Supply Company, supra.
23 Tuscaloosa Truck and Tractor Company, Inc., Supra.
1* See discussion of this classification , supra.
15 Hughes.