International Metal Products Co.

INTERNATIONAL METAL PRODUCTS COMPANY 65 who was charged with the proper conduct of the election, acquiesced, and did not pursue the matter further. On the basis of the present record we are not able to determine the status of the receiver-checker and his eligibility to serve as an observer in a Board-conducted election. The Employer's packing season, moreover, is too short to make an adequate investigation and determination of the issue, and to conduct another election. Accordingly, under all the circumstances, the Board concludes it would not effectuate the policies of the Act to set this election aside. 3 Because no labor organization won the election, we shall therefore issue a certification of results of election to that effect. This action, however, is without prejudice to the Peti- tioner to file a new petition for representation and certification of representatives prior to the time when the 1954 packing season opens.4 [The Board certified that a majority of the valid ballots was not cast for United Fresh Fruit and Vegetable Workers, Local Industrial Union No. 78, CIO, and that this labor organization is therefore not the exclusive representative of the employees of the Employer in the unit heretofore found appropriate.] Member Murdock took no part in the consideration of the above Supplemental Decision and Certification of Results of Election. 3Chairman Farmer would overrule this objection on the ground that the Union waived its right to object by withdrawing its objection prior to the election. 4 We consider that the 39 ballots cast for the Petitioner in the recent election constitute a sufficient showing of interest among employees in the appropriate unit to support the enter- tainment of a new petition. ADAM D. GOETTL AND GUST GOETTL, d/b/a INTERNA- TIONAL METAL PRODUCTS COMPANY' and UNITED STEELWORKERS OF AMERICA, CIO, Petitioner. Case No. 21 - RC-3187. November 16, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Floyd C. Brewer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the National Labor Relations Act. 2. The labor organizations involved claim to represent certain employees of the Employer. i The Employer's name appears as amended at the hearing. 107 NLRB No. 23. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Sections 2 (6) and (7) of the Act. 4. The parties are in general agreement that a unit of all production and maintenance employees at the Employer's evaporative cooler manufacturing plant, Phoenix , Arizona, ex- cluding office clerical employees, watchmen, guards , profes- sional employees , foremen, and all other supervisors as defined in the Act, is appropriate. Apart from a disagreement as to phraseology to be used in the description of certain clericals ,' the only issue concerns the status in the unit of certain individuals who are related by blood or marriage to the partners, Adam and Gust Goettl. The Employer listed the names and relationships of the individuals involved,' and, relying upon the Sexton Welding case,4 urged that all but those expressly excluded from the definition of "employee" under Section 2 (3) of the Act, should be included in the bargaining unit and should be deemed eligible to vote in the election , unless otherwise excluded . Thus, the Employer would exclude only a son, Donald Goettl, under Sec- tion 2 (3) of the Act, and a brother, John Goettl, who is the plant superintendent . The Petitioner and Intervenor, Sheet Metal Workers International Association, Local 359, AFL, relying upon the Board ' s decision in the recent Mueller case, 5 as well as the decision in an earlier proceeding involving this Employer, 6 contend that the relatives of management involved herein are ineligible to vote and should be excluded from the unit. The Board has, over a period of years, evolved a policy of excluding from bargaining units certain relatives of manage- ment in addition to those specifically excepted under the defini- tion of "employee" in Section 2 (3) of the Act. This policy, having its authority in the Board ' s discretionary powers in determining the appropriate unit under Section 9 (b), developed from a determination that certain close relatives of manage- ment lacked a sufficient community of interest with other employees in t4 a bargaining unit to warrant their inclusion 2 The Employer objected to listing among the inclusions the term "plant clericals " because it was not sure what employees that term would cover . However , the Employer did not urge the exclusion of any job classification which would fall within this general term, and the only category of employee referred to at the hearing which may fall within the term "plant clercial" was shipping and receiving employees whom the Employer indicated it would regard as part of production and maintenance . As the disagreement appears to be one of unit description rather than scope, we shall eliminate the phrase "plant clericals," and specifically include shipping and receiving employees However, this is not intended to exclude any classification of em- ployee customarily included in production and maintenance units as plant clericals 3 Involved are individuals with relationships to Adam and Gust Goettl as follows: Donald Goettl, son; John Goettl, brother; Albert Goettl, brother, George Thomas, brother-in-law; Emil Goettl, nephew; Phillip Goettl, nephew; Ernie Bauer, nephew by marriage, Ralph Hill, nephew by marriage; and Barbara Ann Goettl, neice by marriage. 4N L R. B v. Sexton Welding Co , 203 F. 2d 940 (C A. 6), denying enforcement of 100 NLRB 344 5 P. A. Mueller and Sons, Inc., 105 NLRB 552. 6International Metal Products Company, 104 NLRB 1076. INTERNATIONAL METAL PRODUCTS COMPANY 67 therein. However , it appears that what was originally an evaluation and weighing of interests , wherein recognition was given to ties created by family kinship, became under this policy an irrebutable conclusion that the mere existence of such a relationship within a given area negated the possibility of the existence of any community of interest. Reexamination of this policy leads us to the conclusion that its automatic application does not warrant continuation. We are convinced that the mere coincidence of a family relationship between an employee and his employer does not negate the mutuality of employment interest which an individual shares with fellow employees, absent evidence that because of such relationship he enjoys a special status which allies his interests with those of management . In the instant case, Donald Goettl, employed by his parent , and John Goettl, a supervisor , are not employees within the meaning of Section 2 (3) of the Act and accordingly are excluded from the unit herein found appropriate. All other relatives listed in this case are employees within the meaning of Section 2 (3) of the Act. As we have found that family relationship, in and of itself, is an insufficient ground upon which to establish a finding of a lack of interest in common with other employees in the unit, we find that all relatives who are employees within the meaning of the Act, and not dis- qualified on other grounds , are properly a part of the appro- priate unit , and are entitled to vote in the election herein directed. We find that all production and maintenance employees at the Employer's evaporative cooler manufacturing plant at Phoenix, Arizona, including leadmen and shipping and receiving em- ployees, but excluding Donald Goettl, all office clerical em- ployees, watchmen, guards , professional employees, Plant Superintendent John Goettl, foremen, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] Member Murdock, dissenting in part: I would continue the Board precedent of excluding from bargaining units close relatives of management, as a sound, salutary, and time-tested practice which has existed from the earliest days of Board history, which was left unchanged and sanctioned by the Congress in the 1947 amendments to the Act, and which the Board only recently reiterated and reexplicated in its decision in P. A. Mueller and Sons, Inc ., 105 NLRB 510. The Mueller case (in which I did not participate ) sets forth in clear terms the essential factors which, in my view, still require the result adhered to by the Board in the past, in these words: 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board's policy of excluding such near relatives [a son and nephew of the corporation president] is based on Section 9 (b) of the Act, under which the Board must in every case determine the unit appropriate for bargaining purposes. In making this determination, the Board long has excluded fromthe appropriate unitthose employees who lack sufficient interests in common with the employees included in the unit. The Board early decided in this con- nection that the familial bond between an employer and em- ployee is in certain cases so close as to'remove the near relative from the "community of interest" shared by the other employees. The interests of such near relatives are identified not with their fellow-workers, but with manage- ment itself. The practice of excluding close relatives of management rests on a further practical ground. Pursuant to Section 9 (b), the Board must determine the bargaining unit that will "assure to employees the fullest freedom in exercising the rights guaranteed by this Act," including the right to organize among themselves and to bargain collectively without interference, restraint or coercion. The inclusion of a close relative of the employer in a bargaining unit with the other employees in a particular plant may as effectively hinder the employees in organizing themselves and bargaining collectively as would the intrusion of any representative of management. In the eyes of the other employees, a son or nephew of the employer, although he may work with other workers, is intimately allied with management . Accordingly, the employees well may view with suspicion his membership in the bargaining unit, especially where, as here, the employing enterprise is small and closely held. The Board's interpretation of Section 9 (b) as granting it discretion to exclude close relatives prevailed under the original Act. Congress did not in any respect alter this practice in the amended Act. [Citation of cases omitted.] These were the uncomplicated considerations underlying the practice of excluding close relatives of management which in essence the Board consistently relied upon through the years, as a reading of the cases clearly shows. The early Board cases are in this respect indistinguishable from the later ones. I can find no supporting basis for the purported summary historical analysis of Board precedents which the majority makes as follows: ". . . it appears that what was originally an evaluation and weighing of interests, wherein recognition was given to ties created by family kinship, became under this policy an irrebuttable conclusion that the mere existence of such a relationship within a given area negated the possibility of the existence of any community of interest." If the suggestion of INTERNATIONAL METAL PRODUCTS COMPANY 69 my colleagues is that such a consluion should be rebuttable, what evidence is there in this case to rebut the conclusion? But it appears that a new rule is announced in the majority decision in this case which establishes in practical effect the "irrebuttable conclusion" for the inclusion of close relatives of management in the unit . Thus, under the new rule, to warrant exclusion from the unit of a close relative (other than "any individual employed by his parent or spouse "--Section t (3) of the Act), it must be affirmatively shown that "because of such relationship he enjoys a special status which allies his interests with those of management ." Such evidence, it appears to me, is virtually foreclosed . For it must be appre- ciated that apart from the fact itself of the existence of a close family relationship , there is as a practical matter little probative evidence that can effectively be offered to establish the necessary link with management to justify exclusion under the new rule . Moreover , as a matter of good administration I see no reason why the Board should clutter up its records and unnecessarily multiply the issues to be decided in making unit determinations by making microscopic examinations of the exact extent to which each relative involved in a case has achieved some special status Dr benefit by reason of the familial bond . If the contention is made that John Doe has received a raise or been given a promotion after 6 months because he is a close relative of the employer and the employer asserts that it was because the quality of his work was of a higher order than that of his other employees , are we to dissipate our energies to litigate fully and decide such questions? I do not read (nor does the majority opinion even so contend) the language in the amended Act which explicitly excludes from the definition of employee " any individual employed by his parent or spouse " as requiring , that an individual employed by his son , or daughter , or brother , or sister , or other close relative , must be included in the unit , excepting only where it can be affirmatively and indpendently , shown that because of the family relationship , the interests of such an individual are allied with management. Accordingly , I would exclude from the unit in this case those individuals who would have been excluded under past holdings of the Board as close relatives of the em- ployer. I further note that the action of the majority in changing the Board' s rule on the exclusion of close relatives in this case prejudices the Petitioner and Intervenor who were not under notice at the time of the hearing thatthey had a burden to show that special status had been accorded the relatives here in order to get them excluded.