Novi American Inc.-Atlanta

NOVI AMERICAN INC.-ATLANTA Novi American Inc.-Atlanta and International Leath- er Goods, Plastics and Novelty Workers Union, AFL-CIO, Petitioner. Case I0-RC-I 1136 January 25, 1978 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Pursuant to the provisions of a Stipulation for Certification Upon Consent Election, executed by the parties and approved by the Regional Director for Region 10 on July 7, 1977, an election by secret ballot was conducted on July 27, 1977, among the employees in the appropriate unit. Upon the conclu- sion of the election a tally of ballots was furnished to the parties in accordance with the Board's Rules and Regulations, Series 8, as amended. The tally of ballots showed that, of approximately 53 eligible voters, 24 cast ballots for the Petitioner, 20 cast ballots against the Petitioner, 4 ballots were chal- lenged, and 2 were void. The challenged ballots were sufficient in number to affect the results of the election. No objections to the conduct of the election or to conduct affecting the results of the election were filed. Pursuant to Section 102.69 (d) of the Board's Rules and Regulations, the Regional Director for Region 10, on August 5, 1977, issued an "Order Directing Hearing on Challenged Ballots and Notice of Hear- ing" in which he ordered the designated Hearing Officer to prepare and cause to be served on the parties a report containing resolutions of the credibil- ity of the witnesses, findings of fact, and recommen- dations to the Board as to the disposition of said challenges. Pursuant thereto, a hearing was held before Hear- ing Officer Diane B. Williams of the National Labor Relations Board. On September 8, 1977, the Hearing Officer issued her report and recommendations on challenged ballots in which she overruled the chal- lenges to the ballots of M. D. Southerland, D. C. Goodnight, J. M. Jones, and Mark Johnston. There- after, the Petitioner filed timely exceptions to the Hearing Officer's report, contending that the Hear- ing Officer erred in overruling the challenges to the ballots of all the above-named individuals. 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. I In view of our disposition of the challenge to the ballot of Mark Johnston, the three remaining challenged ballots are insufficient in number 234 NLRB No. 52 The Board has considered the entire record in this case and makes the following findings: i. 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 concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(cX 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 bar- gaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at its Chamblee, Georgia, facility, including all shipping and receiving em- ployees, but excluding all office clericals, profes- sional employees, guards, and supervisors as defined in the Act. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the record, including the Hearing Officer's report and recommendations on challenged ballots, the Petition- er's exceptions and brief, and the Employer's reply brief in response to the Petitioner's exceptions. For the reasons set out below, we find merit in the Petitioner's exception to the Hearing Officer's recom- mendation overruling the challenge to the ballot of Mark Johnston and, therefore, we shall sustain the challenge to his ballot.' The ballot of Mark Johnston was challenged by the Board agent conducting the election held herein because his name did not appear on the list of eligible voters. The Hearing Officer overruled the challenge, finding that Mark Johnston did not possess special benefits that allied his interest with that of management. For the reasons set forth hereinafter, we disagree. The record reveals the regional manager, Charles M. Johnston, exercises overall supervisory authority at the Employer's facility in Chamblee, Georgia. 2 His son, Mark Johnston, who is also on the Employer's payroll, is a 17-year-old high school student residing in his father's home. According to the testimony of Charles M. John- ston, Mark Johnston commenced working for the to affect the results of the election herein. Inasmuch as they are not determinative, we find it unnecessary to pass upon them. 2 Charles M. Johnston, however, does not own any of the Employer's stock. 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer in the summer of 1976 at the age of 16. Up until the time that Mark was hired, the Employer had never hired an employee under the age of 17. In response to the Hearing Officer's query as to why Mark Johnston was hired at that age, Charles M. Johnston replied: "Well, there was work that he could do in the summer and it was a means of giving him some employment." 3 Mark Johnston terminated his employment when school began in the fall of 1976, but returned to work during the months of October, November, and December of that year. When asked if his son's return "coincided with school vacation," Charles M. Johnston stated: "It quite possibly could have. I [sic] may better have coincided with his need for money." After another break in his employment, Mark John- ston resumed working for the Employer on June 12, 1977, and continued to work a regular schedule throughout that summer. The record indicates that at the time of the hearing held herein, he was expected to continue his employment, on a full-time basis, when school commenced in the fall of 1977. Although Mark Johnston's rate of pay is the same as that of the other employees in the shipping and receiving department who perform similar work, and, although he receives the same fringe benefits, he is the only regular employee paid out of the Employer's "contract labor" ledger. The evidence indicates that normally only new employees, who commence em- ployment after a pay period has already begun, are paid out of this ledger. Thereafter, new employees are placed on the regular payroll and all the usual payroll taxes are automatically deducted. When he was first questioned as to why Mark Johnston was paid out of the "contract labor" ledger, Charles M. Johnston stated: "in a calendar year, [he] will not make sufficient money to pay income tax," and that, under these conditions, "I'd rather not deduct it." He later testified, however, that it was the decision of the Employer's office manager to pay Mark Johnston out of this fund, rather than his own. Whoever actually made the decision to pay Mark Johnston out of the "contract labor" ledger, the record indicates that Mark's father expected his son to make enough money in 1977 to pay income tax. Notwithstanding this expectation, the Employer continued to pay Mark out of the "contract labor" fund in 1977, at least up until the time of the hearing held herein. As a result of being paid in this manner, Mark Johnston is not carried on the Employer's regular payroll and consequently neither social security nor income taxes are deducted from his paychecks. In contrast, the two other high school students who were employed at the time of the election herein, appear to have 3 The record reveals that it was not until 1977 that the Employer began to hire individuals below the age of 17 for summer employment. been carried on the Employer's regular payroll since their names were included on the eligibility list which had been prepared from that payroll. As noted above, Mark Johnston is expected to continue his employment during the 1977-78 school year. The record discloses that, in order to accommo- date him in this regard, the Employer will almost certainly adjust his hours of employment so as not to conflict with his school schedule. In fact, the record indicates that his hours will not coincide with either of the Employer's two regularly scheduled shifts. While four other employees work hours which are slightly different than the regular shift hours, it is clear that they do so at the request of the Employer and not of their own volition. Although the Employ- er contends that other employees would be granted the privilege of adjusting their working hours for personal reasons, if they so requested, it was unable to name any employee, other than Mark Johnston, to whom this privilege had actually been extended. It is a settled principle that the "mere coincidence of a family relationship between an employee and a member of management does not, without a showing of special status for the employee, warrant the exclusion of that employee from a bargaining unit where the employee's inclusion in the unit would be otherwise appropriate." 4 Applying this principle to the instant case, we conclude, contrary to the Hearing Officer, that Mark Johnston does, in fact, possess a special status that allies his interest with that of management and, therefore, we shall sustain the challenge to his ballot. In so concluding, we rely principally on the fact that he is paid in a manner, unlike that of the other employees, which clearly operates to his benefit. In addition, we rely on the following as further indicia of Mark Johnston's special status: (I) he was hired at age 16, at a time prior to that when the Employer regularly began to hire employees of that age; (2) he was reemployed during the fall of 1976, during school vacations or whenever he was in "need of money;" and (3) at the time of the hearing held herein, it appeared as if only he, out of all the Employer's employees, would be able to adjust his working nours in the future in order to suit his personal convenience. In reaching our conclusion herein, we have taken into account the fact that all of the privileges enumerated above were afforded to Mark Johnston with the knowledge and approval of his father, Charles M. Johnston. Under these circum- stances, we reverse the finding of the Hearing Officer that Mark Johnston does not enjoy any special benefits as a result of his relationship with the Employer's regional manager. 4 Weyerhauser Company, Soft Disposable Division, 211 NLRB 1012 (1974); see also Pargas of Crescent City, Inc., 194 NLRB 616(1971). 422 NOVI AMERICAN INC.-ATLANTA Accordingly, since the Petitioner has received a majority of the ballots cast, we shall certify the Petitioner as the collective-bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for International Leather Goods, Plastics and Novelty Workers Union, AFL- CIO, and that, pursuant to Section 9(a) of the Act, the foregoing labor organization is the exclusive representative of all the employees in the following appropriate unit for the purpose of collective bar- gaining and with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All production and maintenance employees employed by the Employer at its Chamblee, Georgia facility, including all shipping and receiv- ing employees, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 423