Cherner Motor Co.

In the Matter of CHERNER MOTOR COMPANY and LODGE No. 193, INTERNATIONAL ASSOCIATION OF MACHINISTS Case No. R-1627 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES March 2, 1940 On January 17, 1940, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Election in-the above-entitled proceedings.' Pursuant to the Direction of Election, an election by secret ballot was conducted on January 31, 1940, at Washington, D. C., under the direction and supervision of the Re- gional Director for the Fifth Region (Baltimore, Maryland). On February 1, 1940, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, issued an Election Report, copies of which were duly served upon the parties. As to the balloting and its results, the Regional Director reported as follows : Total number of eligible voters_______________________________ 30 Total number of ballots cast_________________________________ 30 Total number of votes for Lodge 1486, International Associa- tion of Machinists (A. F. of L.) ---------------------------- 16 Total number of votes against Lodge 1486, International Associa- tion of Machinists (A. F. of L.) ---------------------------- 13 Total number of blank ballots ________________________________ 0 Total number of void ballots________________________________ 0 Total number of challenged ballots___________________________ 1 On February 6, 1940, Cherner Motor Company, herein called the Company, filed Objections to the Election Report. In its Objections, it contended that since the Board had ruled that F. F. Smith should be excluded from the appropriate unit, and M. Albritton included therein, the Regional Director erred in permitting Smith to vote and refusing to count the challenged ballot of Albritton. On February 8, 1940, the Union filed a motion to dismiss the Company's Objections. 119 N. L. R B. 609 21 N. L. R. B., No. 4. 28 CHERNER MOTOR COMPANY 29 On the same day,the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations- Series 2, as amended, issued and duly served upon the parties his Re- port on Objections in which he found no merit in the Company's contention. In considering the cases of Smith and Albritton in our original Decision and Direction of Election, we said : (G. H. Spence and) F. F. Smith are admittedly supervisory employees in charge of about 41 and 20 employees respectively .. . Smith (Spence, Purchase, and Springman) being supervisory employees, all four will be excluded from the above-described bargaining unit. M. Albritton is employed at the Company's used-car warehouse where he examines used cars, determines their mechanical condi- tion, makes minor repairs, and tests cars after the mechanics have completed major repairs. His duties would appear to be much the same as the employees in the service lane, described above, who, all parties agree, should be included. The Union's conten- tion that his duties are supervisory is not supported by the record. We shall accordingly include him in the unit. We defined the appropriate unit to consist of "all automotive mainte- nance, repair, conditioning, and reconditioning mechanics and helpers employed by the Company including such employees in the service and used-car departments and paint shop, but excluding foremen and supervisory employees." On January 4, the Union notified the Board that Smith had been relieved of supervisory responsibilities and Albritton had assumed them. On January 25 the Regional Director informed the Company of the Union's claim and stated that he would permit Smith to vote and exclude Albritton from the list of eligible voters if such claim were correct. In his Report on Objections, the Regional Director stated that he had investigated the Union's allegations and had found that such changes in duties had in fact been made. At no time did the Company deny that Smith had ceased to perform supervisory func- tions, nor did it deny that Albritton had assumed them. In the light of the finding of the appropriate unit in the original Decision and the discussion of Albritton's and Smith's duties, it is clear that the issue with respect to them was whether or not their posi- tions were supervisory. Thus when Albritton replaced Smith, the finding which had determined that the position occupied by Smith was supervisory governed Albritton's case and he was properly ex- cluded from the unit. So also, when Smith assumed the duties of a non-supervisory employee, he was properly included in the unit. Moreover, since the Company failed to challenge Smith's ballot at the 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD polls although full opportunity to do so was afforded, it cannot make such challenge now. At the election, the Union challenged the vote of D. E. Edelen. The Regional Director did not pass on the issue raised by the challenge. In its Objections the Company claims that Edelen's vote should,.have been counted. In view of the fact that Edelen's vote cannot affect the results of the election, it is unnecessary to decide the issue thus raised. We find that the Objections of the Company raise no substantial and material issue with respect to the conduct of the election. The Objections are hereby overruled. By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY CERTIFIED that Lodge No. 1486, International Associa- tion of Machinists, affiliated with the American Federation of Labor, has been designated and selected by a majority of the automotive maintenance, repair, conditioning, and reconditioning mechanics and helpers including such employees in the service and used-car depart- ments and paint shop, but excluding foremen and supervisory em- ployees of Cherner Motor Company, Washington, D. C., as their representative for the purposes of collective bargaining, and that, pur- suant to Section 9 (a) of the Act, Lodge No. 1486, International Association of Machinists, affiliated with the American Federation of Labor, is the exclusive representative of all such employees for the purposes of collective barganing with respect to rates of pay, wages, hours of employment, and other conditions of employment.