Missouri Electric Works, Inc.

124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Missouri Electric Works, Inc. and Donald A. Fuhrm- ann, Petitioner, and Local # 1, International Broth- erhood of Electrical Workers, AFL-CIO. Case 14-RD-407 June 27, 1974 DECISION AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 14 on October 10, 1973,1 an election was conducted on October 29. Upon the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 11 eligi- ble voters, 11 valid ballots were cast, of which 1 was for and 1 against the Petitioner and 9 were challenged. The challenged ballots are sufficient in number to affect the results of the election. In accordance with the National Labor Relations Board's Rules and Regulations the Regional Director conducted an investigation and on November 27 is- sued and duly served upon the parties his Report on Challenged Ballots and Recommendations in which he recommended that certain challenges be overruled and others be sustained. Thereafter, the Employer and the Union filed timely exceptions to the Regional Director's Report. On February 12, 1974, the National Labor Rela- tions Board issued an Order directing hearing for the purposes of receiving evidence to resolve the issues raised by the Employer's and Union's exceptions, and providing that the Hearing Officer should prepare and cause to be served upon the parties a report con- taining resolutions of the credibility of witnesses, find- ings of fact, and recommendations to the Board as to the disposition of said issues.2 Pursuant to the Board's order a hearing was held on March 12 and 13, 1974, before Michael B. Ryan, Hearing Officer. All parties participated in the hear- ing and were afforded full opportunity to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues. On April 4, 1974, the Hearing Officer issued and served upon the parties his Report and Recommendations on Challenged Bal- lots, in which he overruled three and sustained four challenges. Pursuant to the provisions of Section 3(b) of the i All events herein occurred in 1973, except as otherwise stated 2 In the absence of exceptions, the Board adopted, pro forma, the Regional Director's recommendation that the ballots of Gary Delay and John Eldridge be opened and counted after the other seven challenges have been resolved National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. 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 pur- poses of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent 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 fol- lowing 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 production and maintenance employees and truckdrivers employed at the Employer's facility in Cape Girardeau, Missouri, excluding office clerical and professional employees, guards, and supervisors as defined in the Act. 5. The Board has duly considered the Employer's and Union's challenges, the Hearing Officer's report, the Employer's and Union's exceptions thereto, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Hearing Officer.' DIRECTION It is hereby directed that the Regional Director for Region 14 shall, pursuant to the Board's Rules and Regulations, and within 10 days of the date of this Decision and Direction, open and count the ballots of 3 We adopt the recommendation of the Hearing Officer to sustain the challenge to the ballot of Thomas Giles solely on the ground that Giles is not an employee, within the meaning of the Act, Cerm Motor Sales, Inc, 201 NLRB 918 We note that Thomas' parents are the sole owners of all of the capital stock of the business Thus, there can be no doubt that Thomas Giles is employed solely by his parents, who are the sole owners of the business. We find it unnecessary to pass on the additional findings of the Hearing Officer that Giles had no community of interest with the other employees. In the absence of exceptions we adopt, pro forma, the Hearing Officer's recommendation that the challenges to the ballots of Luther Rhymer, Jim- my Lancaster, and Kenneth Menz be overruled In adopting the above recommendation of the Hearing Officer to sustain the challenge to Giles on the ground that Giles is not an employee, Chairman Miller observes that, while there has been some judicial criticism with respect to the Board's Foam Rubber City doctrine (Foam Rubber City #2 of Florida, Inc, doing business as Scandia, 167 NLRB 623) wherein it interpreted the statutory exclusion of "any individual employed by his parent or spouse" to extend to children of "substantial" shareholders, he perceives no arguable basis for not applying the statutory exclusion based on the facts of the instant case For this reason, he concurs in the decision of his colleagues to find it unnecessary to pass on the additional findings of the Hearing Officer that Giles had no community of interest with the other employees 212 NLRB No. 19 MISSOURI ELECTRIC WORKS, INC. 125 employees Gary Delay, John Eldridge, Luther Rhym- It is hereby ordered that the above-entitled matter er, Jimmy Lancaster, and Kenneth Menz, and there- be, and it hereby is, remanded to the Regional Direc- after issue a revised tally of ballots, and an tor for Region 14 for the purpose of carrying out the appropriate certification based thereon. Board's direction herein.