Economy Cash Stores, Inc.

930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Economy Cash Stores , Inc. a/k/a Cardinal Food Town and Retail Store Employees Union Local 560, chartered by Retail Clerks International Associa- tion, AFL-CIO, Petitioner. Case 19-RC-6348 April 6, 1973 DECISION, DIRECTION, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on November 16, 1972, under the direc- tion and supervision of the Regional Director for Region 19 among the 'employees in the stipulated unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that, of approximately 16 eligible voters, 17 cast ballots, of which 8 were for and 6 were against the Petitioner, with 3 challenged ballots. The challenged ballots are sufficient in number to determine the results of the election. 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. In accordance with the Rules and Regulations of the National Labor Relations Board, the Regional Director conducted an investigation and issued and duly served on the parties his Report on Challenged Ballots with recommendations in which he recom- mended that the challenges to two ballots be sustained and the challenge to one ballot be overruled' and the Petitioner be' certified as the collective-bargaining representative of the employees involved. Thereafter, the Employer filed timely exceptions to the Regional Director's report. Upon the entire record in this case, the Board finds: 1. 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 Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. X question affecting commerce exists concern- ing the representation of the 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 all full-time and part-time employees of the Employer at The Regional Director overruled the challenge to the ballot of Louis Lounsberry. However, in view of our disposition of this case we find it unnecessary to pass on his recommendation that the challenge to her ballot be overruled. 202 NLRB No. 131 its retail store located at its Cardinal Food Store in American Falls, Idaho, employed as retail store employees, but excluding all meat department employees, managers, assistant managers, guards and supervisors as defined in the Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. The Board has considered the Regional Direc- tor's report, and the Employer's exceptions thereto, and hereby adopts the Regional Director's findings and recommendations as modified herein. The Regional Director's investigation disclosed that the Employer is a closely held corporation engaged in the business of operating a retail food store. Margaret C. Toevs,' president of the corpora- tion, is the Employer's principal stockholder, owning approximately 80 percent of the outstanding stock. She is. not active in the management of the store. Aaron Farnsworth, the Employer's secretary-treasur- er, owns or is entitled to approximately 11.2 percent of the Employer's stock, and his brother Jay Farnsworth, the Employer's vice president, owns or is entitled to 9.2 percent of the stock. They are the. comanagers of the corporation's retail food store in American Falls, Idaho, the employees of which are involved in the instant proceeding. Two of the challenged voters-Cindy and Alan Farnsworth-are the teenage daughter and son of Jay Farnsworth, and niece and nephew of Aaron Farnsworth. The two children, who presumably live at home with their parents, work part time in the store. Cindy works in the bakery department under the management of her father and uncle, and Alan works as a boxboy in the grocery department under the supervision of the grocery department manager. On the basis of these facts, the Regional Director sustained the challenges to the ballots of the two children. Relying on the Board's decision in Foam Rubber City #2 of Florida, Inc., d/b/a Scandia,2 he concluded that Cindy and Alan were not employees within the meaning of the Act,3 and that their interest were more closely aligned with those of management4 than with the employees included in the unit. The Employer has excepted to these findings. While we agree with the Regional Director's conclusions, we do so for different reasons. We do not find it necessary to decide herein' whether the challenged individuals are "employees" within the meaning of that term as used in Section 2(3) of the Act. For, under Section 9(b) of the Act, the Board 2 167 NLRB 623. 3 The Regional Director specifically found that the two children were employed by their parents within the meaning of Sec. 2(3) of the Act. 4 Citing Caravelle Wood Products, Inc., 200 NLRB No. 118. I CARDINAL FOOD TOWN 931 has the responsibility to determine the unit appropri- ate for collective bargaining, "in order to assure to employees the fullest freedom in exercising the rights guaranteed by the Act. . . ." The Board has long held that the best way to assure this freedom is to include in the unit found appropriate only those employees who share a community of interest. In reviewing the facts before us, we-conclude that the two Farnsworth children, whose ballots are chal- lenged, have a community of interest separate from that of their fellow employees and should be excluded on that basis.5 Jay Farnsworth, father of the two challenged voters, owns approximately 9 percent of the Employ- er's stock (2 percent in his name and approximately 7.2 percent due under an incentive bonus stock plan). Approximately. 5 percent of the stock (with an additional 6.2 percent due under the incentive bonus stock plan) is owned by their uncle, Aaron Farns- worth, and the balance is owned by the corporation president, Margaret C. Toevs, who is not directly engaged in the day-to-day management of the store. Thus, we are not confronted with a situation where the indentity of interest between the challenged voter and the corporation's management, in this case the voters' parent and' uncle, may or may not be shown to exist. As we indicated in Parisoff, where two of the owners are members of the same family and related to one another as well as to the challenged employ- ees, and in addition are the comanagers of the business, we believe it more likely that the business interests of the corporation will be synonymous with the interests of the family to which the employees belong. Their interests as members of the governing family may well outweigh their interests as employ- ees of the corporation and, to that extent, their interests may be entirely different from the interests of the other employees whose sole stake in the corporation is that they work there. We also note that the challenged employees' parent is not only a shareholder and its vice president but is also active in the day-to-day management of the Employer. In . these circumstances, it is a virtual certainty that such individuals would get a more attentive and sensitive ear to their day-to-day and long-range work concerns than would other employ- ees. While this accessibility to management may not always result in easily identifiable special privileges or favorable working conditions, the fact that they 5 ParisoffDrive-In Market, Inc., 201 NLRB No. 102. 6 See N. L. R. B. v . Caravelle Wood Products, Inc., 466 F.2d 675 (C.A. 7), where the court indicated that the Board could consider the aforementioned have this peculiar access gives them a status and area of interest not shared by the rest of the employees. Finally, as we stated in Parisoff, supra, . . . we consider it relevant that all the voters here in question [presumably] live at home with their parents. Generally, where children are still living with parents they are also dependent upon them, and with dependence there is a consider- able potential for influence. Moreover, aside from the likely dependence, children living with a parent who is active in managing the corporation can reasonably be expected to be exposed to information about personnel problems, labor relations dealings, and even corporate profitabili- ty. In some of the above respects they may be comparable to confidential employees, whom we traditionally exclude from the unit. For the foregoing reasons, we conclude that the interests of the two Farnsworth children are more closely allied with those of management than with those of their fellow employees.6 Accordingly, we shall sustain the challenges to their ballots and direct that they remain unopened and uncounted. As we have adopted' the Regional Director's recommendations that the Petitioner's objections be overruled and the challenges to the ballots sustained, and as the Petitioner has received a majority of the valid ballots cast, we shall, accordingly, certify the Petitioner as the representative of the employees in the unit found appropriate. DIRECTION It is hereby directed that the ballots of Cindy Farnsworth and Alan Farnsworth remain unopened and uncounted. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Retail Store Employees Union Local 560, chartered by Retail Clerks Interna- tional Association, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for' the purposes of- collective bargaining in respect to rates of pay, wages, hours ' of employment, or other conditions of employment. factors, among others, in making unit determinations under Sec . 9(b) of the Act.