Holthouse Furniture Corp.

DECISIONS OF NATIONAL ABOR RELATIONS BOARD Holthouse Furniture Corp. and Chauffeurs, Team- sters, Warehousemen and Helpers Local Union No. 135, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 25 RC 6978 May 21, 1979 DECISION AND DIRECTION TO OPEN AND COUNT CHALLENGED BALLOTS BY CHAIRMAN FANNING AND MI:MBERS PENE.LO AND TRUESDAI.E Pursuant to a stipulation upon consent election ex- ecuted by the parties and approved by the Regional Director for Region 25 of the National Labor Rela- tions Board, an election by secret ballot was con- ducted in the above-entitled proceeding on October 27, 1978, under the direction and supervision of said Regional Director. Upon the conclusion of the elec- tion, a tally of ballots was furnished the parties in accordance with the Board's Rules and Regulations, Series 8, as amended. The tally of ballots shows that of approximately 14 eligible voters, six votes were cast for and four against the Petitioner. There were four challenged ballots and no void ballots. The challenged ballots were sufficient in number to affect the results of the election. No objections to 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 25, on November 14, 1978, issued a report entitled "Report on Challenged Ballots, Order Directing Hearing, and Notice of ltearing," directing that a hearing he held for the purpose of receiving evidence to resolve the issues raised by the challenged ballots. On December 5 and 6, 1978, a hearing was held before Hearing Officer Richard J. Simon. On March 22, 1979, the Hearing Officer issued his report on challenged ballots and recommendations wherein he recommended that the challenges to the ballots of Jef- frey Holthouse, Jerry Holthouse, David Schroeder. and Albert Jones be overruled. The Petitioner filed timely exceptions and a supporting brief wherein it excepted to the Hearing Officer's recommendations that the challenges to the ballots of these fbur individ- uals be overruled. The Employer filed a reply brief. Pursuant to the provisions of Section 3(b) of the 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. Petitioner is a labor organization 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) ana (7) of the Act. 4. The following employees constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time truckdrivers and warehousemen, including carpet and furni- ture service workers employed by the Employer at its 5980 National Road East, Richmond, Indi- ana, facility; but excluding all office clerical em- ployees, all receptionists, all salesmen, all buyers, all professional employees, all guards and super- visors 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 rec- ord, including the Hearing Officer's report and rec- ommendations on challenged ballots, the Petitioner's exceptions and brief, and the Employer's reply brief in response to the Petitioner's exceptions. For the rea- sons set frth below, we find merit in the Petitioner's exceptions to the Hearing Officer's recommendations that the challenges to the ballots of Jeffrey Holthouse and Jerry Holthouse be overruled. We shall therefore sustain the challenges to the ballots of these individ- uals. We further find. in agreement with the Hearing Officer, that the challenges to the ballots of David Schroeder and Albert Jones should be overruled. We shall therefore order that their ballots be opened and counted. The ballots of Jeffrev Holthouse and Jerry Holt- house were challenged on the basis that these individ- uals were relatives of members of management, and that they did not work with sufficient regularity to be included in the unit. Jerry Holthouse is the son of S. L. Holthouse, one of the Employer's two vice presidents, who is active in the day-to-day management of the Employer's opera- tions. Jeffrey Holthouse is the son of Thomas Holt- house, who serves as a buyer for the Employer. S. I,. Holthouse and Thomas Holthouse are mem- bers of the Employer's board of directors. The re- maining members of the board of directors at times material to this proceeding were Siegfried J. Holt- house,' father of S. L. Holthouse; G. Howard Holt- house, father of Thomas Holthouse; Flora Holthouse, sister-in-law of Siegfried J. Holthouse and G. Howard Siegfried J. Illhuuse died on D)ecmber 3, 197. 2 days prior to the commlencement oit the hearing 242 NLRB No. 58 414 HOLTHOUSE FURNITURE CORP. Holthouse; and Jack Edwards, son-in-law of Flora Holthouse. As of the day of the election. Siegfried J. Holthouse served as the Employer's president, G. Howard Holthouse served as secretary-treasurer, and Flora Holthouse served as vice president. Of approximately 3,544 shares of stock outstand- ing, the members of the board of directors and the wives of board members Siegfried J. Holthouse, G. Howard Holthouse, and Jack Edwards own approxi- mately 1,340 shares.2 An additional 827 shares are owned by other sons and daughters of Siegfried J. Holthouse, G. Howard Holthouse, and Flora Holt- house,3 and approximately 374 shares are owned by grandsons and granddaughters of Siegfried J. Holt- house, G. Howard Holthouse, and Flora Holthouse. 4 The record does not reflect whether the members of the board of directors are authorized to vote any shares not personally held by them. Nor does the rec- ord reflect who owns or who is authorized to vote the remaining shares. Jeffrey Holthouse and Jerry Holthouse are high school students who are employed in the Employer's warehouse on a part-time basis.5 They live at the homes of their respective parents. As reflected herein, they each own a small number of shares of stock of the Employer. Ronald Holthouse, the Employer's controller, testi- fied that Jeffrey Holthouse, Jerry Holthouse, and Al- len Edwards 6 perform their work under a common schedule. He testified that he had personally arranged their work schedules on several occasions in the past and in doing so had taken into consideration "any special activities or any special vacation request that they might have."7 He testified that during the school year these three individuals work hours that generally range from 5 to 9 p.m., Monday through Friday; from noon to 6 p.m. on Saturday: and from 12:30 to 5 p.m. on Sunday. In addition, the record reflects that they work in rotation, making it possible for each of 2 S L. Holthouse owns 121.5 shares, and Thomas Holthouse and his wife. Joy, own 103.5 shares. The combined total referred o in this group includes the stock owned by Siegfried J. olthouse at the time of his death. I Of these shares, 955 are held jointly by Ronald iolthouse. son of G Howard Holthouse, and his wife, Regina ' Jeffrey Holthouse. grandson of G. Howard Holthouse, owns 21 shares, and Jerry Holthouse, grandson of Siegfried J. Holthouse. owns 12 shares 'While there was testimony that they worked on a full-time basis during the summer, the Employer's records showed that hey rarely worked as many hours as regular full-time employees during the summer months of 1978. , Allen Edwards is the son of Jack and Marcia Edwards Marcia Fdw ards is the daughter of Flora Holthouse and is a stockholder Allen Edw.ards is a high school student who works for the t'mploycr on aI hasis similar to that ,of Jeffrey flolthouse and Jerry Holthouse. The record does not indicate whether he ',oted in the election. In addition to being a member of the Employer's board of directors. Jack Edwards ser.es as ssista;nt store super- visor for certain of the Em ploy er's retail stores As part-time employees who are attending high school. Jeflrey liolt- house, Jerry llolthouse and Allen Edwards do not receise paid ,acations as do other part-time emplosees and tull-time employees within the unit. them to avoid working more than one shift or work period during a weekend. Ronald Holthouse stated that during the summer months two of these three employees "generally" work from 8 a.m. to 5 p.m. "or a regular shift," Mon- day through Friday, while the third works from 5 to 9 p.m., Monday through Friday. As during the school year, they rotate their workdays, thereby dividing evening work. The record reflects that the hours of full-time employees normally begin during the period from 7 to 8 a.m. and end during the period from 3:30 to 5 p.m. each day, Monday through Saturday. Employee Marvin Vance gave uncontradicted tes- timony that on one occasion Jerry Holthouse ar- ranged to switch his scheduled workday with another part-time employee so that he could attend a concert. While the Employer introduced records which showed that on one occasion Vance worked on his regularly scheduled day off and was off duty on a regularly scheduled workday during the same work- week, there is no showing in the record that this change occurred for Vance's personal convenience. Vance further gave uncontroverted testimony that Jerry Holthouse and Jeffrey Holthouse have lunch with their fathers about two or three times per week while they are at work during the summer months. The record shows that Jeffrey Holthouse. Jerry Holthouse, and Allen Edwards work under the same supervision and perform the same functions as do other warehouse employees who are admittedly within the unit. Upon consideration of the record herein, we find that the interests of Jeffrey Holthouse and Jerry Holt- house are more closely allied with those of manage- ment than with those of their fellow employees. They are related to persons who, collectively own at least 70 percent of the outstanding stock of the Employer. They are, in addition to being stockholders them- selves, closely related to certain officers. members of the board of directors, and persons actively engaged in the day-to-day management of the Employer's op- erations who, in turn, are closely related to other offi- cers and directors of the Company."' Furthermore. they live at home with their parents and hae social contact with their fathers at work. It also appears that they frequently perform work in the warehouse when no full-time employees or other part-time employees are present. In these circumstances, we find that they do not share a community of interest with other em- ployees. Furthermore, we find that they enjoy a spe- cial status as result of their relationships to members Ihe Emplober's time records ndicate that there are fewer lull-time em- plosees working on Saturda and Monday than on Tuesday through rday In his reply brief, t-mploer's counsel sriates "Almittledl. 75 per cent of the corporate stock is held bh indildlualIs who ctln Ira~te their ancestrs to a coemmon great grandfather " i ( Plrisfl Drte n 'lorket, Inc, 201 N I RH B 813 19731 415 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of management." They are in the unique position of being able to adjust their regularly scheduled hours for their own personal convenience. We shall there- fore sustain the challenges to their ballots.'2 As we have adopted the Hearing Officer's recom- mendation that the challenges to the ballots of David Schroeder and Albert Jones be overruled, and be- cause their ballots may affect the results of the elec- tion, we shall order the Regional Director to open " Cf. Novi American, Inc.,-Atlania, 234 NLRB 421 (1978). 2 Member Truesdale agrees that the challenges to the ballots of Jeffrey Holthouse and Jerry Holthouse should be sustained for the reasons given but would also sustain the challenges for the reasons set forth in his dissent in Tops Club, Inc., 238 NLRB 928 (1978). and count the ballots of Schroeder and Jones and to cause to be served on the parties a revised tally of ballots including therein the count of said ballots. ORDER It is hereby ordered that the Regional Director for Region 25 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Or- der, open and count the ballots of David Schroeder and Albert Jones, prepare and cause to be served on the parties a revised tally of ballots, and issue an ap- propriate certification based on the revised tally of ballots. 416