Toyota Midtown, Inc.

TOYOTA MIDTOWN, INC. Toyota Midtown, Inc. and Local 868, an affiliate of the International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America Petitioner. Case 2-RC-17643 DECISION AND DIRECTION TO OPEN AND COUNT CHALLENGED BALLOTS BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered determinative chal- lenges in an election held on May 20, 1977,' and the Hearing Officer's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Hearing Officer's findings2 and recommendations.3 DIRECTION It is hereby directed that the Regional Director for Region 2 shall, within 10 days from the day of this Decision, open and count the challenged ballots of Robin Goldin and Robert Crugnale, and thereafter prepare and cause to be served on the parties a revised tally of ballots, upon which basis she shall issue the appropriate certification. MEMBER JENKINS, dissenting in part: One of the two ballots challenged by the Petitioner was that of Robin Goldin on the ground that he does not share a community of interest with the included employees. I am in agreement with the Petitioner on this point and cannot accept the Hearing Officer's recommendation that this challenge be overruled. Robin Goldin is employed as one of the Employ- er's new car salesmen. The manager of these salesmen is Gerald Goldin, Robin's father. The older Goldin, in addition, is a major stockholder of the Employer, owning 16-2/3 percent of the stock in this closely held corporation, and holds the position of corporate vice president. i The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was two for, and one against, the Petitioner. There were two challenged ballots. There were approximately five eligible voters. 2 The Petitioner has excepted to certain credibility findings made by the Hearing Officer. We have reviewed the record carefully and are unable to conclude that the Heanng Officer's resolution of credibility issues are clearly in error. His credibility findings are therefore adopted. The Coca- Cola Bottling Company of Memphis, 132 NLRB 481 (1961). 3 Contrary to the view of our dissenting colleague, we find Robin Goldin On these facts, I conclude that Robin Goldin is not an employee under the statutory definition of employee contained in Section 2(3) of the Act. This section provides that "[t]he term 'employee' ... shall not include. . .any individual employed by his parent .... " See my dissent in Weyerhaeuser Company, Soft Disposable Division, 211 NLRB 1012 (1974). Furthermore, I would also base his exclusion from the unit on the ground that, being the son of an owner, major official, and manager of the Employer, he does not share a community of interest with the included salesmen, and that his inclusion in the unit would inhibit the other employees from enjoying "the fullest freedom in exercising the right guaran- teed by this Act" as provided in Section 9(b). Robin Goldin's probable perception of a separate self-interest stems from two distinctive features flowing from his relationship to his father. First, because his father is a major stockholder, the son's inclusion in the family of such an owner may cause him to define his interests more in terms of his family relationship to an owner rather than in terms of his interest as an employee. Such an identification with an owner may well cause him to perceive his interest as being entirely different from the interests of individuals whose sole connection with the Employer is due to the employment relation. Second, because his father directly manages the work of this individu- al, coming into frequent contact with him on a day- to-day basis, it is apparent that the familial relation- ship will tend to affect the character of their relationship in the workplace. The son's access to management differs markedly from that of the rest of the other employees and as a result he may well be treated more favorably than the other employees. Both of these rationales have been previously cited by the Board in excluding the children of managers and partial owners and I see no reason why a different position should be taken in this case. Economy Cash Stores, Inc. a/d/a Cardinal Food Town, 202 NLRB 930 (1973). is not employed by his parent within the meaning of Sec. 2(3) of the Act, because Goldin's father does not own 50 percent or more of the Employer's stock. Cerni Motor Sales, Inc., 201 NLRB 918 (1973). Although Goldin's father is the Employer's manager. Goldin is married. financially indepen- dent, lives apart from his father, and is subject to the same terms and conditions of employment as the other salesmen. It was not shown that Goldin enjoys a special status which allies his interests with those of management, and, therefore. he is properly included with other employees in the unit, with whom he shares a community of interest. Weyerhaeuser Cornpan), SofJ Disposable DivisJon, 211 NLRB 1012 (1974). 233 NLRB No. 106 797