Pargas of Crescent City, Inc.

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pargas of Crescent City, Inc., and Teamsters, Ware- housemen & Auto Truck Drivers Local 684, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Petitioner. Cases 20-RC-9660 and 20-RC-9661 December 16, 1971 DECISION AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director on December 16, 1970, an election by secret ballot was conducted in the above-entitled proceeding on December 29, 1970, under the direction and supervision of the Regional Director for Region 20 (San Francisco, California). Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with National Labor Relations-Board Rules and Regulations. The tally of ballots shows that there were approxi- mately 10 eligible voters, 5 of whom cast ballots for the Petitioner and 4 cast ballots for the Intervenor.' One ballot was challenged. The challenged ballot is sufficient to affect the results of the election and, on January 6, 1971, the Petitioner filed objections to conduct affecting the results of the election. The Regional Director con- ducted an investigation of the Petitioner's objections and the challenged ballot, and, thereafter, on March 12, 1971, issued and served on the parties his Report on Challenged Ballot and Objections. In his report, the Regional Director found all of the Petitioner's objections to be without merit and recommended to the Board that they be overruled in their entirety. He further recommended that the challenge to the ballot cast by Margaret W. Kellenberg be overiuled and that the Board direct that her ballot be opened and counted. Thereafter, Petitioner timely filed Excep- tions to Report on Challenged Ballot and a brief in support thereof, but no exceptions were filed to the Report on the Objections. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within 1 Ward's Propane Service Employees'Association. 2 In the absence of exceptions thereto, we adopt pro forma the Regional Director's recommendations to overrule the objections. 3 E.g., International Metal Products Company, 107 NLRB 65; Browne the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. Petitioner and Intervenor are labor organiza- tions claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All driver-salesmen, servicemen and clerical em- ployees employed by the Employer at its Crescent City, California operation, excluding all other employees, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's report and exceptions to the challenged ballot, and hereby adopts the Regional Director's findings and recommendations.2 The recommendation of the Regional Director, which we have adopted, rests upon a long, well- established line of Board decisions holding that the mere coincidence of a family relationship between an employee and a member of management does not without more warrant the exclusion of that employee from a bargaining unit in which his inclusion would otherwise be appropriate.3 The Scandia case4 relied upon by our dissenting colleague to support his proposed reversal of the Regional Director, is wholly distinguishable from this case, as the relationship there involved the partial owner of a closely held corporation, who was in effect a partner-owner of the enterprise, whereas here the relationship involves a manager who is not at all an owner. Nor do our colleague's other arguments persuade us that we should abandon the present policy of considering each case on its own facts, and return the virtually per se exclusionary rule that existed prior to the decision in International Metal Products, supra. Mrs. Kellenberg would of course be excluded from the unit if because of her relationship she enjoyed a special status which allied her interests to those of management.5 The Regional Director found, however, that Mrs. Kellenberg did not enjoy such a status, and neither the Petitioner nor our colleague cite any facts which would warrant a contrary conclusion. In these circumstances we find no basis for reversing the Regional Director's conclusions as to Mrs. Kellenberg's eligibility. and Buford, 145 NLRB 765; Supermarket of Dunbar, Inc., 178 NLRB 206. 4 Foam Rubber City #2 of Florida, Inc., d/b/a Scandia, 167 NLRB 623. 5 International Metal Products, supra 194 NLRB No. 101 PARGAS OF CRESCENT CITY, INC. As we have adopted the Regional Director's recommendation that the challenge to the ballot of Margaret W. Kellenberg be overruled, and because this ballot may affect the results of the election, we shall direct the Regional Director to open and count Kellenberg's ballot and cause to be served on the parties a revised tally of ballots including therein count of said ballot. DIRECTION It is hereby directed that, as part of his investigation to ascertain the representative for purposes of collective bargaining with the Employer, the Regional Director for Regional 20 shall, pursuant to the Board's Rules and Regulations, open and count the ballot cast by Margaret W. Kellenberg, prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of the above- mentioned ballot, and thereafter proceed in accord- ance with Section 102.70 of the Board's Rules and Regulations. MEMBER JENKINS, dissenting: The sole issue herein is the voting eligibility of Margaret W. Kellenberg, wife of the Employer's local manager. Her ballot was challenged by the Petitioner on the basis of, inter alia, the fact that she is the wife of the Employer's local manager. The Employer's establishment has only 10 employees in the unit of driver-salesmen, servicemen, and clerical employees. The Employer's local manager appears to be the only supervisor and only management representative at this facility who possesses authority concerning terms and conditions of employment of the employees there. Mrs. Kellenberg has been employed at the present establishment at least since 1961, performing book- keeping and related clerical functions in the office on a part-time basis. She works an average of over 30 hours per week, is paid on an hourly basis, and works under the immediate supervision of the manager (her husband) and the office manager. There is no evidence, and no contention, that she has or exercises any supervisory or managerial authority.. Section 2(3) of the Act provides that "the term employee . . . shall not include . . . any individual employed by his . . . spouse ...." Although Mrs. Kellenberg is not employed by her husband but by the Employer corporation at the plant where her-husband is the manager, I am of the opinion that this relationship suffices to preclude her being an "employee" within the meaning of the Act. I believe this situation is comparable to excluding the wife of a partial owner of a closely held corporation .6 617 The practice of excluding close relatives of manage- ment rests on a further practical ground. Under Section 9(b) of the Act, we are charged by Congress with the responsibility to find units appro- priate for collective bargaining that assure to employ- ees the fullest, freedom in exercising the rights guaranteed by the Act. Moreover, the Board may, as a matter of discretion, exclude employees from a unit where the circumstances establish a different "community of interest." In implementing this re- sponsibility the Board has traditionally included in the bargaining unit those employees who have a community of interest with their fellow employees, but we have excluded individuals whose interests are more closely identified with those of management. This is the same reason that supervisors as defined in the Act are excluded from appropriate units-their interests are basically allied with management. In determining whether employees, who are not expressly excluded by the Act from units of rank-and- file employees, should nevertheless be excluded, the Board must balance the statutory right of an employ- ee to engage in collective bargaining and the right of a collective bargaining agent for unit employees to seek and achieve legitimate gains for them. The inclusion of a close relative of management in a bargaining unit with other employees in a particular plant may as effectively hinder the employees in organizing them- selves and bargaining collectively as would the intrusion of any representative of management. Thus, the wife of the manager in a small plant (only 10 employees involved herein) may effectively deal with her husband as management, regarding hours of employment, wages, etc., on a different basis than an employee who must deal with management through a statutory representative because that employee has no effective alternative, such as a family tie. Here, for example, the wife of the manager, if eligible to vote, could well deprive nonfamily employees of the very representation which a majority of those employees desire, even though the other employees hardly have the same access to management. Plainly, in the selection of a bargaining representative, the direct interest the wife of a manager may have in the economics of the establishment could be in conflict with employees whose primary interest is in wages and similar direct economic returns. Not only may Mrs. Kellenberg's inclusion in the unit hinder or bar the employees in their organization- al efforts, but her future participation in union matters would necessarily be suspect and possibly divisive. Her presence at union meetings would, considering the likelihood of her conveying informa- tion to the Employer (her husband, the only employer 6 See Foam Rubber City #2 of Flonda Inc., d/b/a Scandia, 167 NLRB 623. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD official at this facility), inhibit adequate and accurate expression of views and freedom of action on the part of the membership ; and even if it did not, communi- cation of such internal matters could effectively undermine or impair the ability of the Union to achieve its legitimate goals. Indeed , in the eyes of the other employees in the unit a wife of the manager, although she may work alongside those employees, ,learly has interests intimately allied with manage- nent. Accordingly, the employees well may view with suspicion her membership in the bargaining unit, especially where, as here, the employing enterprise is small. The disruption and friction necessarily attend- ant upon her participation in union matters would impair , and interfere with the union's ability to represent the others in the unit to the fullest extent. In these circumstances, I would sustain the challenge of the ballot case by Margaret W. Kellenberg, the wife of the manager, and direct that it remain unopened and uncounted.