Community Motors

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Board expresses no opinion as to whether it would render a decision on the merits of the controversy which is the subject of the State court action. McCarthy Enterprises, Inc., t/a Community Motors and Local 401, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, Peti- tioner. Case No. 4-RC-4163. July 15, 1960 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 Joseph F. Rosenthal, 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 Leedom and Members Bean and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act., 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commrece 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. In agreement with the stipulation of the parties, and our resolu- tion below of the sole dispute between them over the unit placement of the service expeditor ,2 we find the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All auto mechanics, body repair men, lubrication men, the car jockey, used car lot attendant, car washer, underseal man, used car mechanic, used car reconditioner, parts clerk, and service expediter at the Em- i The Employer stipulated that it is in the retail trade ; its gross volume of business in 1959 was $1,000,000; and it purchased new automobiles in 1959 from outside the State of Pennsylvania in the amount of $798,000 . In view of the foregoing and contrary to the assertion of the Employer , we find that it is engaged in commerce within the mean- ing of the Act and that it would effectuate the policies of the Act to assert jurisdiction herein. Carolina Supplies and Cement Co., 122 NLRB 88. 2 The Petitioner, contrary to the Employer, would exclude the service expediter as supervisory . The record shows that this employee works in the service department under the service manager and that his duties involve assisting the service manager in writing up orders , delivering job orders to the mechanics , and doing miscellaneous simple repair work in the shop. There is no evidence that the service expediter has any authority to hire, fire, discipline employees, or effectively to recommend such action. In view of the foregoing, we find that the service expediter is not a supervisor , and we shall include him in the unit. 128 NLRB No. 8. COMMUNITY MOTORS 61 ployer's Kingston, Pennsylvania, shop, but excluding all other em- ployees, office clerical employees, salesmen, watchmen, guards, and supervisors as defined in the Act. 5. The parties are in dispute as to the voting eligibility of six individuals discharged by the Employer on January 20, 1960, and five others subsequently hired at various times between January 20 and February 15, 1960. For reasons hereinafter indicated, we shall permit all of these employees to vote subject to challenge. The record in the instant case and the administrative files of the Board show that the Petitioner filed unfair labor practice charges on behalf of the six employees discharged on January 20 and the General Counsel has decided to issue a complaint alleging discriminatory dis- charges with respect to all six.3 In accordance with the Board's usual procedure,4 the Regional Director is hereby instructed to challenge and segregate the ballots of the employees named in the foregoing un- fair labor practice charges. Their ballots will not be considered unless determinative of the results of the election. If determinative, the final disposition of this case will await the determination of the pending unfair labor practice charges. By allowing these persons to vote, subject to challenge, we are not to be taken as having passed in any way on the issues involved in the charges and the complaint. The record further shows that, following the January 20 layoff or discharges of the above six individuals, the Employer hired five new employees at dates and under circumstances which tend to support the Petitioner's contention that these newly hired employees consti- tuted replacements for five of the six individuals who are the subject of the unfair labor practice charges .5 In light of these circumstances and the Petitioner's contention that the layoffs and the hirings of the individuals involved were part of a scheme to dissipate the organiza- tional strength of the Union and/or to influence the results of the election, we further instruct the Regional Director to challenge and segregate the ballots of these or any other employees hired in the unit found appropriate since January 20, 1960, where he has reasonable cause to believe that such newly hired employees constitute replace- ments for the six individuals named in the unfair labor practice 3 Case No 4-CA-2094 was filed on February 26, 1960. The Petitioner filed with the Board a request to proceed with the instant representation case despite the pendency of these charges. 4 Hunt Heater Corporation, 113 NLRB 167 , and cases cited therein. 5 The new employees began working as follows • Felix Jastrzemski , January 25, 1960; Bernard Rollman, February 1, 1900, Jerry O'Brien, February 8, 1960; Joseph Enosh, February 11, 1900; and Theodore Rydzewski , February 15, 1960 . Enosh, Jastrzemski, and Rollman are classified as auto mechanics , Rydzewski as used-car mechanic, and O'Brien as parts clerk. The Employer contends that the parts clerk and used-car mechanic, both of whom the Petitioner would find to be new employees replacing the alleged discriminatees , are not replacements of the laid-off employees . As the record does not contain sufficient information upon which to make a determination as to their status, we shall place them with the other employees whose ballots the Regional Director shall challenge. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges.' By allowing these persons to vote, subject to challenge, we are not to be taken as having passed in any way on the issues involved in the charges. [Text of Direction of Election omitted from publication.] 'Cf. Sioux City Brewing Company, 85 NLRB 1164 ; Lock Joint Tube Company, 127 NLRB 1146. Fisherman's Cooperative Association, et al.' and Nick Trutanich (Sunbeam) and John Vilicich (California ) and Frank Iacono (Frankie Boy) and Joseph Monti, Petitioner and Seine and Line Fisherman's Union of San Pedro, affiliated with Sea- farers' International Union of North America, AFL-CIO 2 Mike Trama and Santo Trama (Sandy Boy) and Fisherman's Union, Local 33, International Longshoremen & Warehouse- men's Union,3 Petitioner. Cases Nos. 21-RD-457, 21-RD-454, 21-RD-.155, 21-RD-462, and 21-RC-6233. June 15, 1960 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, hearings were held before Louis S. Eberhardt, hearing officer.4 The hearing officer's rulings made at the hearings 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 these cases to a three- member panel [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in these cases,' the Board finds : 1. The petitions request elections among employees working aboard vessels operating out of San Pedro, California, harbor, engaged in 1 Herein called the Association or the Co-op . The petition in Case No . 21-RD-457, as amended, also designated as employers the individual boatowners listed in Appendix A attached hereto. 2 Herein called Seine and Line. 9 Herein called Local 33. 4 The decertification petitions in Cases Nos. 21-RD-454, 21-RD-455, 21-RD-457, and 21-RD-462 were consolidated by the Regional Director of the Twenty -first Region, and a 10-day hearing was held on the consolidated cases in January and February 1960. The hearing in Case No. 21-RC-6233 was conducted separately on March 9 , 1960. Seine and Line has moved that Case No. 21-RC-6233 be consolidated with the decertification proceeding. As the parties involved in Case No. 21 -RC-6233 agreed to incorporation therein of the record in the decertification cases, and as the appropriate unit placement of the employees involved in Case No. 21-RC-6233 has been raised as an issue in the decertification proceeding , we hereby grant Seine and Line's motion to consolidate the representation cases for decisional purposes . Seine and Line also moved to consolidate herewith Case No. 21-CB-879. We find, however. that it would not effectuate the policies of the Act to delay proceedings in the instant representation cases pending resolution of the issues in the unfair labor practice proceeding . See Krist Gradi8, et at., 121 NLRB 601, 615. This motion is therefore denied. 5 The request of Seine and Line for oral argument is denied, as the record and Seine and Line's brief adequately present the issues and the positions of the parties. 128 NLRB No. 11.