Bill Allen Chevrolet, Inc.

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bill Allen Chevrolet, Inc. and District Lodge 71, In- ternational Association of Machinists & Aerospace Workers, AFL-CIO, Petitioner. Case 17-RC-6029 June 16, 1970 DECISION AND DIRECTION By MEMBERS FANNING, MCCULLOCH, AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, approved on May 15, 1969, an election by secret ballot was conducted on May 28, 1969, under the direction and supervision of the Regional Director for Region 17 among the em- ployees in the agreed unit. After the election a tally of ballots was issued, which showed that of approxi- mately 35 eligible voters, 32 cast ballots, of which 9 were for, and 8 were against, the Petitioner, 1 was void, and 14 were challenged. No objections to the election were filed by either party. Inasmuch as the challenged ballots were sufficient in number to af- fect the results of the election, the Acting Regional Director caused an investigation of the challenges to be made, and, thereafter, on October 10, 1969, issued and served on the parties his report on chal- lenged ballots and recommendation, order directing hearing on challenged ballots, and notice of hear- ing. In his report, the Acting Regional Director recommended to the Board that the challenges to the ballots of Vernon Cole, William Frakes, Charles Lawrence, Jack Masters, and William W. Smith be sustained, and ordered that a hearing be held for the purpose of receiving evidence to resolve the is- sues raised by the nine remaining challenges. No exceptions to the Acting Regional Director's re- port, or request for special permission to appeal from his order, having been filed by either party within the time provided therefor, the Board adopted his recommendation as contained in his re- port and, on October 28, 1969, ordered that the challenges to the ballots of Cole, Frakes, Lawrence, Masters, and Smith be sustained and that the issues raised with respect to the nine remaining chal- lenged ballots be processed pursuant to the Acting Regional Director's order and notice of hearing. Accordingly, a hearing was held before Hearing Officer Ronald Broun on October 28, 1969. All parties participated in the hearing and were given full opportunity to examine and cross-examine wit- nesses and to introduce evidence bearing on the is- sues. On December 19, 1969, the Hearing Officer is- sued his report on challenged ballots with findings and recommendations, in which he recommended that the Employer's two challenges be sustained and that the Petitioner's seven challenges be over- ruled. Thereafter, the Petitioner filed timely excep- tions to the report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning representation of the employees within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. We find, in accord with the stipulation of the parties, that the following employees constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All new and used car and truck salesmen em- ployed at Bill Allen Chevrolet, Inc.'s locations at 101 Armour Road and 1900 Armour Road, North Kansas City, Missouri, and 2646 Northeast Vivion Road, Kansas City, Missouri; excluding: office clericals, guards, all shop and parts employees, and supervisors as defined in the Act. 5. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the record, the Hearing Officer's Report, and the Petitioner's ex- ceptions thereto,' and, finding merit in two of the exceptions, concludes that the challenges to the ballots of William Seiger and Patrick Flynn should be sustained. We agree, however, with the Hearing Officer that the challenges to the ballots of Jack Crossley, J. T. Garzee, Richard Walker, and Roy Winbigler should be overruled and their ballots be counted. The Petitioner excepts, inter alia, to the Hearing Officer's conclusion, in the "Recommendations" section of his report, that the Petitioner's challenge to the ballot of William Seiger be overruled. This ' In the absence of exceptions to the Hearing Officer's recommendations to sustain the Employer's challenges to the ballots of Charles Chapman and Richard Utley and to overrule the Petitioner's challenge to the ballot of George Payne, these recommendations are adopted pro forma 183 NLRB No. 51 BILL ALLEN CHEVROLET, INC. recommendation was obviously an inadvertence on the part of the Hearing Officer, since, at the hear- ing, the Petitioner and the Employer agreed and stipulated to exclude Seiger from the unit, and their stipulation was received by the Hearing Officer. We therefore sustain the challenge to the ballot of Wil- liam Seiger and exclude him from the unit. The Petitioner excepts to the Hearing Officer's finding that the ballot of Patrick Flynn, the Em- ployer's finance and insurance man, should be opened and counted. In so excepting, the Petitioner contends, among other things, that Flynn's services are specialized and that he should therefore be ex- cluded from the unit. Flynn is in charge of arranging finance and in- surance for cars and trucks sold by the Employer. On occasion, he also sells cars. He is paid a salary plus a percentage of the finance and insurance charges. His monthly guarantee is $450, while most salesmen receive $500. The latter share with Flynn the commission from finance and insurance. Flynn attends at least some sales meetings, is subject to the same work rules and conditions as the regular salesmen , comes into daily working contact with unit salesmen , and deals directly with customers, to whom he sells services intimately related to the sale of the automobile itself. The Hearing Officer found that Flynn's services are concededly specialized, but that that fact in itself is not enough to justify ex- clusion from the unit, especially since Flynn shares such an extensive community interest with the unit L N L R B v J J Collins' Sons, Inc, 322 F 2d 523, 525 (C A 7) ' Member Fanning disagrees that the Hearing Officer erred in rejecting 411 members. The Hearing Officer therefore recom- mended that Flynn's vote should be counted. In the instant case, the unit as described and defined includes only "All new and used car and truck salesmen." On its face, the description does not include Flynn, concededly the Employer's finance and insurance man and not a car salesman. Thus, Factors which could have justified the job's in- clusion in the unit cannot serve as a basis for ignoring the clear, unambiguous and specific language defining and limiting the unit to the designated job classifications and their ap- prentices.' It is our conclusion, therefore, that the Hearing Of- ficer erred in rejecting the challenge to Flynn's bal- lot. We shall sustain it and exclude him from the unit.' DIRECTION It is hereby directed that the Regional Director for Region 17 shall, pursuant to the Board's Rules and Regulations, within 10 days of the date of this Direction, open and count the ballots of George Payne, Jack Crossley, J. T. Garzee, Richard Walker, and Roy Winbigler, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said ballots. Thereafter, the Regional Director is directed to certify the results of the election or to issue a certification to the Petitioner. the challenge to Flynn 's ballot and would affirm the Hearing Officer's find- ing as to Flynn and include him in the unit