The Fuller Automobile Co.

National Labor Relations Board - Board Decisions

Mar 27, 1950

88 N.L.R.B. 1452 (N.L.R.B. 1950)

In the Matter of THE FULLER AUTOMOBILE COMPANY D/B/A THE
FULLER AUTOMOBILE COMPANY AND FULLER MANUFACTURING &
SUPPLY COMPANY, EMPLOYER and INTERNATIONAL UNION, UNITED
AUTOMOBILE WORKERS OF AMERICA, AND LOCAL No. 829, A. F. L.,
UNION 1
Case No. 9-RM-41.-Decided March 27, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Alan A.
Bruckner, 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 [Chairman Herzog and Mem-
bers Houston and Reynolds].
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. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. The question concerning representation :
The Union contends that a collective bargaining. agreement be-
tween it and the Employer, executed in June 1947, constitutes a bar
to this proceeding. The Employer contends that the contract is no
longer in effect, and cannot therefore operate as a bar.
By its terms the contract was to remain in effect until May 31, 1949,
and was to continue from year to year thereafter, unless either party
gave at least 30 but not more than 45 days' notice of desire to change
its terms before May 31, 1949, or any subsequent anniversary date
of the contract. The contract also provides that in the event of such
' The.name of the Union has been corrected, as the record indicates that the International
and its Local desire joint certification rather than alternative certification as would appear
from the petition filed by the Employer.
88 NLRB No. 245.
1452
THE FULLER AJUTOMVIOBILE CO. AT D FULLER MFG. & SUPPLY CO. 1453
notice, the agreement was to remain in effect until agreed changes were
incorporated therein. On March 28 and April 18, 1949, the Employer
gave notice to the Union of its desire to change the provisions of the
contract. Some meetings were thereafter held at which proposals-and
'counterproposals were submitted, but no agreement was reached.
It is clear that the April 18 notice, given to the Union by the Em-
ployer in accordance with the terms of the agreement, forestalled auto-
matic renewal of the 1947 contract. It is equally clear that although
the contract may still be in effect, the notice of desire to change its
terms transformed it at best into a contract of indefinite duration, and
therefore not a bar to a present determination of representatives 2
Accordingly, we find that a question affecting commerce exists con-
cerning 'the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Employer seeks two separate bargaining units, comprising,
generally, (1) employees of its automobile sales and service agency,
known as The Fuller Automobile Company, and (2) employees of its
motor reconditioning division, known as Fuller Manufacturing &
Supply Company. In support of this position, it, contends that the
personnel and business policies of the two divisions are different. The
Union contends that a single unit, including both groups of em-
ployees, is appropriate because of the history of bargaining on that
basis. The parties agree that the control clerk, new and used car
and truck salesmen, parts panel salesmen, office clerical employees,
and supervisors should be excluded from the unit or units found ap-
propriate; they disagree as to the inclusion or exclusion of six body
shop employees, three foremen, two service writers, a watchman, two
group leaders, a swing man, and two car jockeys.
The Employer is a corporation located and doing :business in
Cincinnati, Ohio. Under the name of The Fuller Automobile Com-
pany, herein called the Automobile Company, it sells and services
new and used cars and trucks and sells automobile parts and accesso-
ries; it also.owns and operates a public parking garage, known as the
Braunstein garage. Under the name of Fuller Manufacturing & Sup-
ply Company, herein called the Manufacturing Company, it recon-
ditions and sells automobile motors and connecting rods.3 The Auto-
mobile Company is located in a building on Reading, Road which
J. E. Kimsey. d/b/a Kimsey. Manufacturing Company, 87 NLRB 051 ;,,Worthy Paper
Company Association , 80 NLRB 19 ; General Aviation Equipment Co., Inc., 52 NLRB 394.
8 The Employer originally carried on its reconditioning operations, as well as its auto-
mobile agency , under the name of The Fuller Automobile Company. In 1944 , it organized
the Manufacturing Company as a separate division of the corporation , registered under its
own name, to take over the work of the reconditioning department.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
originally housed the Employer's entire plant. The Manufacturing
Company occupies a building on Central Avenue and part of the
Braunstein garage building on Hamer Street.
Until April 1948, the two companies were under common manage-
ment. Since that time, an executive committee has managed the busi-
ness and determined the policies of the Automobile Company; William
Thompson, general manager of the Manufacturing Company, has
performed the same functions for it. The executive committee has
no jurisdiction or control over the Manufacturing Company, and
Thompson has no present connection with the Automobile Company.4
Both are responsible to, and consult with, the president of the corpora-
tion.5
The Automobile Company pays income and social security taxes
and workmen's compensation for both companies. However, the
Manufacturing Company has its own bookkeeping department, keeps
its own financial and personnel records, makes up separate financial
reports, and has its own bank account; it also has a separate contract
with the Ford Motor Company. It sells some motors to the Automo-
bile Company, but such sales are handled in the same manner as sales
to other customers. There is no interchange of employees between
the two companies, but there have been some transfers from one to the
other. In general, the employees of the Manufacturing Company do
not have the skills required of employees of the Automobile Company.
On the above facts, standing alone, we might find two units appro-
priate. Since 1941, however, all employees of the Employer, irrespec-
tive of the division in which they are employed, have been covered, as
a single unit, by successive contracts between the Employer and the
Unions and in 1948 they were all included in the voting unit in a union
authorization proceeding under Section 9 (e) (1) of the Act.7 The
changes in management in April 1948 do not convince us that bargain-
ing on this broader basis is no longer feasible. Furthermore, no labor
organization is seeking to represent the employees of either the Auto-
mobile Company or the Manufacturing Company in a separate unit.
On the entire record, therefore, we are convinced and find,that a single
over-all unit is appropriate.
A question remains as to the inclusion or exclusion of certain em-
ployees.
4 From early 1946 until April 1, 1948, Thompson was general manager of both the
Automobile Company and the Manufacturing Company.
5 The only officers of the corporation are president and vice president. The vice president
appears to be active only in the management of the Automobile Company.
6 Since the formation of the Manufacturing Company, three such contracts have been
executed , the most recent being the 1947 contract , discussed in paragraph numbered 3, above.
Fuller Automobile Company and Fuller Manufacturing k Supply Company, 88 NLRB
1452.
THE FULLEIR AiUTOMOBILE CO. AND FULLER MFG. & SUPPLY CO. 1455
Body Shop Employees
The Union would include six body shop employees whom the Em-
ployer would exclude as employees of an independent contractor.
Joseph Guerrea , formerly the Employer's used car reconditioning
manager, operates a paint and body shop in space provided by the
Employer on the second floor of its Reading Road building. The
Employer furnishes heat , light, and power; permits Guerrea to use
certain tools, machinery , and equipment belonging to the Employer;
handles the collection of the body shop accounts ; and advertises its
services . All of Guerrea 's work is done on service orders originating
at the Employer 's service desk , and most of it is done for the Employer.
However, he has as customers other used car dealers , whose business
he has procured through personal solicitation , and the Employer
places no restriction on the amount of such work handled. Except in
the case of certain installation jobs which must be done in accordance
with specifications of the Ford Motor Company, Guerrea fixes the
prices charged for his services . He furnishes his own materials, pur-
chases new tools and equipment needed, and pays for repairs on the
Employer 's equipment . He is responsible for the work performed and
for any damage to customers ' cars while in the shop.
All body shop employees work exclusively in that shop and under
Guerrea's sole supervision . He hires, discharges , and disciplines
them , keeps and computes their time , sets their hours , arranges their
vacations , directs their work, pays their wages , and makes workmen's
compensation, unemployment insurance , and social security pay-
ments for them . He maintains his own payroll and keeps his own
records. The Employer receives 25 percent of the gross receipts of
the shop . The other 75 percent , less expenses , goes to Guerrea.$
It also appears that these employees were permitted to vote in the
union authorization election among the Employer 's employees in
1948 ; that some of them are covered by the Employer's group insur-
ance plan; and that the Employer has participated in discussions of
their grievances , and has, in some cases , recognized their right to
plant-wide seniority . Guerrea himself has never entered into a gen-
eral bargaining contract with the Union ; but he has, in the past, rec-
ognized it as the representative of the body shop employees , has dis-
cussed grievances with it, and has negotiated wage rates for the body
shop employees to be incorporated in wage schedules agreed on by
the Employer and the Union.
8 The control and method of operation of the body shop, described herein, have been the
same since 1945. Between 1945 and 1949, Guerrea operated the shop together with a
partner under written contract with the Employer . Since August 1949 , he has carried on
individually , and expects to make substantially the same contract alone.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although a few of the facts in this case, particularly the enjoy-
ment by some body shop employees of group insurance and seniority
privileges granted by the Employer, point to an employer-employee
relationship between them and the Employer, we believe that the
record as a whole compels a conclusion that, within the meaning of
the Act, they are employees of Guerrea. As we have previously
stated, "an employer-employee relationship exists where the person
for whom the services are performed reserves the right to control
the manner and means by which the result is accomplished [but that]
an employer-independent contractor relationship exists where the con-
trol is merely limited to the result to be accomplished and does not
apply to the method and manner of the services rendered." 9 It is
clear that with respect to the day-to-day operation of the body shop as
well as the fixing of these employees' working conditions, Guerrea
exercises complete control. We find, therefore, that he operates the
body shop as an independent contractor, and that the shop employees
in question are his employees and not employees of the Employer.
Accordingly, we shall exclude them from the unit.
Foremen
The Union would exclude three individuals, Ralph Dent, Lyle Conn,
and Luther Sumner, on the ground that they are supervisors. The
Employer takes no position regarding them.
Dent is foreman of 11 mechanics who work on customers' cars. He
receives or himself writes up orders for car repairs. He then assigns
the jobs to the mechanics, helps them with their work, and is respon-
sible for it. He tests the cars after repair, and if he finds any defec-
tive because of poor workmanship, has authority to reassign the job
to the mechanic, who reworks.it without pay.
He reports his . complaints- about mechanics' work to the service
manager, who considers them in judging the efficiency of- the me-
chanics. Through the assignment of jobs, he may affect the earnings
of the mechanics. Approximately 90 percent of Dent's time is spent
in direction and 10 percent in physical labor.
Conn is foreman of the new car "get ready" and used car recondi-
tioning department. He gives directions to the four mechanics and
four or five porters in that department, helps them with the work,
and is responsible for the efficiency of the department. He does not
reprimand employees himself; but if they do not cooperate with him,
he reports to the service manager,,who investigates the report. Like
Dent, Conn has authority in some cases to give employees time off
9 Morris Steinberg and Julian Leslie Steinberg , a Louisiana Partnership, d/b/a Stein-
berg & Company, 78 NLRB 211.
THE FULLER A,UTOMOBILEI CO. AND FULLER MFG. & SUPPLY CO. 1457
without consulting the service manager. He spends about 75 percent
of his time in directing and 25 percent in helping on rush jobs.
Dent and Conn are salaried employees. Although neither of them
has power to hire or discharge any employees or otherwise cause
changes in their employment status, we are satisfied that they exercise
sufficient control over the employees whose work they direct so as to
be considered supervisors as defined in the Act. We will therefore
exclude them from the unit.
Sumner, although referred to as a foreman, is listed as a lube man.
He writes up orders for work in the lubritorium, tries to sell custo-
mers whatever they need, and tells two employees what is to be done.
He has no authority to reprimand the employees, to report on their
efficiency, or to give them time off. He spends approximately 90 per-
cent of his time in directing their work, and the other 10 percent in
writing up orders and checking cars to see what is needed. His hours
and working conditions are the same as those of the other employees
in the department.
In view of the routine nature of the work performed in the lubri-
torium, we believe that Sumner's duty to direct 'the work of the other"
two employees is itself only routine in character. As he was not
shown to have any other indicia of supervisory authority, we find that,
he is not a supervisor, and we shall therefore include him in the unit.
Service Writers
The Employer would include two service writers. The Union
contends that they should be excluded as clerical workers, and also
because they assertedly have some supervisory duties.
The service writers receive customers who drive into the shop- for
service, write up their orders, diagnose mechanical troubles, give esti-
mates as to the cost of repairs, and attempt to sell the customers any-
thing needed to keep their cars in good running condition. They also
road-test cars when customers are not satisfied with the work done,
and rewrite the orders if they find anything wrong. In the absence
of the foreman, service writers may give a mechanic an order and
tell him to do the job, but they have no authority to criticize the me-
chanics or to make recommendations regarding them, and make no
reports on them. Although, like the manager and foreman, they are
paid on a salary basis, and wear white uniforms, they work on the
same floor and approximately the same hours as the mechanics,10 and
like them are under the supervision of the service manager.
O The mechanics work from 8 a. m. to 5 p: m. One of the service writers works from
7:30 a. m. to 5 :80 V. m. ; the other, from 8: 30 a. in. to 5:30 p. m.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon these facts, we find that the service writers are not supervisors
as defined in the Act. Furthermore, their interests and working con-
ditions appear to be more closely allied to those of the mechanics in
the service department than to those of clerical employees. We shall
therefore include them in the unit.
Watchman
The Employer contends that a watchman at the Reading Road
building should be excluded from the unit. The Union contends that
he should be included, as he has been in the past.
The watchman is on duty from 6 o'clock at night until 5 or 6 o'clock
in the morning. He watches the road and building, punching a clock
at about eight stations every hour. He. wears a police officer's cap
and, after the other employees have left the building, carries a gun.
Although his principal duty is to protect the Employer's property, he
also turns on the stoker in the morning and removes clinkers; however,
these duties take only from 15 minutes to half an hour a day. As prac-
tically all his time is devoted to protecting the Employer's property,
we find that he is a guard within the meaning of the Act. Accord-
ingly, we shall exclude him from the unit."'
Group Leaders and Swing Man
The Union would exclude as supervisors two group leaders, Ray
Rohrer and Ed Myer, and a swing man, Jake Golfman. The Em-
ployer admits that until recently they were foremen, but contends that
since September 30, 1949, when there was a general reduction in per-.
sonnel, they have had no supervisory duties or authority.
Rohrer is group leader on the second floor of the Central Avenue
building, where there are eight or nine other employees. He has the
duty of telling these employees what to do, and of seeing that the
various operations of the department are carried out. However, he
spends 80 to 90 percent of his time in physical work, performing the
same operations as the other employees; he has no authority to repri-
mand, or to hire, discharge, or recommend such action; and he makes
no reports on efficiency.
Myer is group leader in the motor-tear-down department in the
Hamer Street building. He has the duty of seeing that the work there
is properly processed; but except for making occasional notations as
to the receipt of motors from dealers, he spends practically all his time
in physical work. He makes no reports on the quality of the work
81 F. C. Mason Company, 86 NLRB 71; cf. Radio Corporation of America (R. C. A. Victor
Division ), 76 NLRB 826.
THE FULLER AUTOMOBILE CO. AND FULLER MFG. & SUPPLY CO. 1459
done; the employees do not consult him when they want time off; and
he has no authority to hire, discharge, or effectively recommend such
action.
Golfman is a swing man on the second floor of the Central Avenue
building. He has no employees under his supervision, and has no right
to hire, discharge, or make recommendations regarding any employees.
As foremen, Rohrer, Myer, and Golfmen were paid salaries. Now
they are paid by the hour, although they receive slightly higher rates
of pay than the other employees in their departments. On these facts,
we find that Rohrer, Myer, and Golfman are not supervisors within
the meaning of the Act. We shall therefore include them in the unit.
Car Jockeys
The Union would include two individuals referred to as car jockeys,
who are employed at the Braunstein garage. The Employer contends
that they should be excluded because (1) they have no community of
interest with other employees of the Employer, and (2) they are
guards within the meaning of the Act. It further contends that one
of the men, Al Braunstein, Jr., is a supervisor, and should be excluded
on that ground.
Braunstein, who formerly owned the garage, is employed as man-
ager. As such, he solicits business, sets rates for parking, bills cus-
tomers, and makes collections. He also gives directions to the only
other employee, Earl Gilbert, and supervises his work. He has author-
ity to hire and discharge, and has actually exercised such authority.
Both Braunstein and Gilbert assist customers in parking their cars
and get the cars when called for. They spend approximately 25 per-
cent of their time in such work. They also have the duty of watching
the cars to see that they are not molested. They do not work on any
other operations of the Employer, and have practically no contact with
other employees 12 Braunstein is on duty from 6 a. in. to 2°30 p. in.,
but usually stays at the garage another half hour or 45 minutes to give
Gilbert directions; Gilbert is on duty from 2:30 p. in. to 11 p. in. Both
are hourly paid, but Braunstein also receives a commission on storage.
On these facts, we find, as the Employer contends, that Braunstein
is a supervisor. Accordingly, we shall exclude him from the unit. As
Gilbert's protective duties appear to be merely incidental to his other
activities, we do not agree that he is a guard within the meaning of the
Act. Nor do we believe that his interests are so different from those of
the other employees of the Employer as to require his exclusion from
the unit. We shall therefore include him.
lI Although the'tear -down department of the Manufacturing Company is located in the
same building , it is separated from the garage by a partition.
882191-51-93
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all employees of the Employer at Cincinnati, Ohio,
including the lube man,13 service writers, group leaders," the swing
man,15 and the car j ockey,'° but excluding body shop employees, the
control clerk, new and used car and truck salesmen, parts panel sales-
men, office clerical employees, and all guards and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
5. Determination of representatives :
The parties disagree as to the voting eligibility of 37 employees of
the Manufacturing Company who were laid off on September 30, 1949.
The Employer contends that they have been permanently laid off and
are therefore ineligible. The Union argues that they should be per-
mitted to vote because, as it asserts, they have acquired rights, under
the Union's contracts with the Employer, to be recalled to jobs with
either the Automobile Company or the Manufacturing Company be-
fore any new employees are hired.
As we have previously held, the criterion for determining the eligi-
bility of laid-off employees to vote is whether or not, at the time of
the election, they have a reasonable expectancy of further employ-
ment with the Employer in the near future.17 In this case, the record
clearly shows that the layoff resulted from the discontinuance by the
Manufacturing Company of the reconditioning of certain automobile
parts, an operation on which it had been sustaining losses for some
months. At the time of the layoff, all the employees of the Manufac-
turing Company were told that it would be permanent, and those
involved were given separation slips stating that the reason for their
separation was "cessation of operations." According to the testimony
of General Manager Thompson, the Manufacturing Company does
not expect to resume the reconditioning of small parts or to recall any
of the laid-off employees, and if any of them should apply when extra
help is needed, they will be considered as new applicants. There is
also testimony in the record that the Automobile Company has no
present plans to hire additional employees in any of the classifications
included in the unit.
In the circumstances, even assuming that the laid-off employees are
entitled to preference if vacancies occur or new positions are created,18
we are of the opinion that they have no reasonable expectancy of
13 Luther Sumner.
14 Ray Rohrer and Ed Myer.
16 Jake Golfman.
16 Earl Gilbert.
17 Hudson Motor Car Company, 87 NLRB 452.
l6 Under the 1947 contract, laid-off employees would apparently be entitled to such
preference. As previously noted, however, the Employer contends that the contract has
expired.
THE FULLER AUTOMOBILE CO. AND FULLER MFG. & SUPPLY CO. 1461
reemployment in the near future. Accordingly, we find them ineligible
to vote in the election hereinafter directed.19
DIRECTION OF ELECTION 20
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
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said payroll 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 employees on strike;
who are not entitled to reinstatement, to determine whether or not they
desire to be represented, for purposes of collective bargaining, by Inter-
national Union, United Automobile Workers of America, and Local
No. 829, A. F. L.
30 Hudson Motor Car Company, supra; United States Rubber Company ( Milan Plant,
Footwear Division ), 86 NLRB 338 ( Supplemental Decision and Direction ) ; F. C. Mason
Company, 86 NLRB 71; Martin J. Barry, Inc., 83 NLRB 1146.
20 The compliance status of International Union, United Automobile Workers of America,
Local No. 829, A. F. L., has lapsed since the hearing in this manner. In the event it fails to
renew its compliance with Section 9 (f), (g), and ( h) within 2 weeks from the date of
this Direction , the Regional Director is to advise the Board to that effect . No election
shall be conducted unless and until compliance has been renewed.