Mike O'Connor Chevrolet-Buick-GMC Co., Inc.

808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mike O'Connor Chevrolet-Buick-GMC Co., Inc., and Pat O'Connor Chevrolet-Buick-GMC Co., Inc.' and General Drivers, Warehousemen and Helpers Local Union No. 534, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Cases 17-CA-5505 and 17-RC-7077 September 26, 1975 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On March 14, 1974, the Board issued a Decision, Order, and Certification of Representative in the above-entitled proceeding,' wherein, among other things, it sustained the challenge to Dave Martin's ballot on the ground that he was a managerial em- ployee with different interests from the other em- ployees in the unit, found it unnecessary to de- termine the remaining challenged ballot of Bill Glenn, since it could no longer affect the results of the election, and went on to certify the Union as the exclusive collective-bargaining representative. The Board sought enforcement of its order before the Eighth Circuit Court of Appeals. However, that court denied enforcement 2 of the Board's order, finding, inter alia, that the parties had previously or- ally stipulated that Dave Martin was in the unit and that the Board should have given that agreement ef- fect since it did not violate established Board policy. In conclusion, the court remanded "to the Board with directions to it to count Martin's ballot and then, if necessary, to rule on Glenn's eligibility to vote and thereafter to take such actions as are consis- tent with this opinion." The Board, having decided to accept the remand, advised the parties that they could submit statements of position with respect to the issues raised by the remand. Both the Respondent and the Union sub- mitted timely statements of position. Pursuant to the provisions of Section 3(b) of the '209 NLRB 701 (1974). 2 N.L.R B v. Mike O'Connor Chevrolet-Buick-GMC Co, and Pat O'Con- nor Chevrolet-Bwck-GMC Co, Inc, 512 F.2d 684 (C A 8, 1975). National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Having reviewed the record, including the court's decision and denial of the Board's petition for re- hearing, and the parties' statements of position, we have decided to treat the court's decision as the law of this case. As a consequence, we shall direct that the ballot of Dave Martin be opened and counted. We have also decided to rule now on the challenge to the ballot of Bill Glenn, since we believe that, if he is determined to be eligible to vote in the election in Case 17-RC-7077, his ballot should be opened and counted together with Martin's. As was noted in the original Board decision in this proceeding, the Union appeared to concede that it failed to substantiate its challenge to Glenn's ballot. We have reviewed the record on- this issue and find no reason to sustain the challenge to Glenn's ballot. Accordingly, we find that he is eligible to vote in the election and we shall direct that his ballot also be counted. ORDER It is hereby ordered that, as part of the investiga- tion to ascertain a representative for the purposes of collective bargaining in Case 17-RC-7077, the Re- gional Director for Region 17 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Decision, open and count the ballots of Dave Martin and Bill Glenn, and thereafter prepare and cause to be served on the parties and the Board a revised tally of ballots, in- cluding therein the count of the above-mentioned ballots. Upon serving the revised tally of ballots, the Regional Director shall issue the appropriate certifi- cation and transfer these proceedings back to the Board for any further consideration that the Board may deem necessary; specifically, in the event a cer- tification of representative issues, whether in Case 17-CA-5505 certain alleged unilateral changes made by Respondent in its employees' terms and condi- tions of employment constitute a violation of Section 8(a)(5) and (1) as alleged in the complaint.' 7 Such changes were found by the Board to be violative of Sec. 8(a)(5) in the prior decision but were not passed upon by the court because of the way the court disposed of the other 8(a)(5) issue posed in the case. 220 NLRB No. 122