Yarbrough Motor Co.

National Labor Relations Board - Board Decisions

Sep 13, 1949

85 N.L.R.B. 1296 (N.L.R.B. 1949)

In the Matter of YARBROUGH MOTOR COMPANY, EMPLOYER and DISTRICT
LODGE No. 46, INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER
Case No. 10-RC-5?5
SUPPLEMENTAL DECISION
ORDER
AND --
SECOND DIRECTION OF ELECTION
September 13, 19J,9
Pursuant to a Decision and Direction of Election issued herein 1 an
election by secret ballot was conducted on May 27, 1949, under the
direction and supervision of the Regional Director for the Tenth
Region, among the employees of the Employer' in the unit found
appropriate. At the close of the election, a Tally of Ballots was fur-
nished the parties. The tally shows that 18 ballots were cast, of
which 7 were for the Petitioner, 7 were against the Petitioner, and
4 were challenged.
Thereafter, the Petitioner filed timely objections to conduct affect-
ing the results of the election. After an investigation, the Regional
Director issued, on July 15, 1949, his "Report on Challenged Ballots
and Objections to Conduct Affecting the Results of the Election,"
in which he recommended that: (1) the challenges to the four ballots
be sustained; and (2) the election beset aside and a new election
conducted. On July 22, 1949, the Employer filed Exceptions to the
Regional Director's Report.
. Upon the basis of the Petitioner's Objections to the Conduct of the
Election, the Regional Director's Report on Challenges and Obj ec-
tions, the Employer's exceptions and the entire record in the case,
the Board 2 finds :
The Challenged Ballots
Two of the challenged ballots were cast by Arthur Camp, shop
foreman, and Paul Bradford, body shop foreman. The Decision
Unpublished.
' 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 Members Reynolds and Gray].
85 N. L. R. B., No. 212.
1296 -
YARBROUGH MOTOR COMPANY 1297
and Direction of Election specifically excluded these two individuals
from the unit as supervisors. As no reason appears for overruling
our decision as to their supervisory status, we hereby adopt the Re-
gional Director's recommendation and sustain the challenges to the
ballots of Camp and Bradford.
The other two challenged ballots were cast by G. W. Bennett and
G. W. Harbin, service salesmen. "Salesmen" were excluded from the
appropriate unit in our Decision and Direction of Election. Service
salesmen fall within the "salesmen" classification. We therefore find
that Bennett and Harbin were not entitled to vote at the election; and,
in accordance with the recommendations of the Regional Director,
sustain the challenges to their ballots.
The Objections to the Conduct o l the Election
The Petitioner objected to the conduct of the election upon the
ground, among others, that two employees, Mobley and Dalton, voted
despite the fact that they had been hired after the close of the eligi-
bility period set forth in the Direction of Election. The Decision and
Direction of Election issued May 12, 1949, provided, in accordance
with.our usual practice, that only those employees were eligible to
vote who were employed during the pay-roll. period immediately pre-
ceding the date of issuance of the Direction of Election. The Em-
ployer's pay-roll period which immediately preceded May 12 ended
on May 5, 1949. Through error, the field examiner in charge of the
election fixed upon May 11., as the end of the pay-roll period preceding
the date of issuance of the decision, and used that period in determin-
ing eligibility to vote. As a result, Mobley and Dalton who began
working on May 6 and May 9 respectively, were permitted to cast
unchallenged ballots. As a tie vote resulted, their ballots may have
been decisive in the election. Except for the error of the field exam-
iner in using the wrong eligibility date, they would not have been
permitted to vote without challenge. As the election was not con-
ducted in accordance with our direction, with possible prejudicial
results, we shall set aside the results of the May 27 election and direct
a new election.3
ORDER
IT IS HEREBY ORDERED that the election held on May 27, 1949, among
employees of Yarbrough Motor Company, Atlanta, Georgia, be, and
it hereby is, set aside.
8 Matter of Wayne Hale, 62 N. L. R. B. 1393.
In view of our disposition of the case, we find it unnecessary to consider the other objec-
tions raised by the Petitioner.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SECOND DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes 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 Second Direction of Election, under the
direction and supervision of the Regional Director for the Tenth
Region and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations , among the employees in the
unit heretofore found appropriate, who were employed during the
pay-roll period immediately preceding the date of this Second Direc-
tion 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 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 Dis-
trict Lodge No. 46 , International Association of Machinists.