Marvin Witherow Trucking

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marvin Witherow Trucking and International Wood- workers of America, Local 3-90, AFL-CIO, Petitioner. Case 19-RC-8031 May 2, 1977 DECISION AND DIRECTION BY MEMBERS JENKINS, PENELLO, AND WALTHER 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 December 10, 1976,1 and the Regional Director's report recommending disposition of same.2 The Board has reviewed the record in light of the exceptions and brief and hereby adopts the Regional Director's findings and recom- mendations, as herein modified. The Regional Director's report indicates that the Employer is a sole proprietorship owned by Marvin Witherow and his wife. The challenged voter herein, William Witherow, is the father of Marvin Witherow and has worked as a part-time truckdriver for his son since March 1976. Prior to the time that he began working for the Employer, William Witherow sold two trucks and the corresponding logging trailers to his son, Marvin. According to the Regional Director, these "transactions appear to have been at arms length, inasmuch as they included a fair price for the machinery plus 10% interest." The Regional Direc- tor's investigation disclosed that William Witherow works when the regular drivers are either off from work or ill, or when his son, Marvin, must attend to his management functions. Since beginning his employment, the number of hours that William Witherow has worked per month has ranged from a high of 55 to a low of 18. Although, due to his greater experience, he is paid $1 an hour more than the other employees, he does not participate in the Employer's insurance program, as do the full-time drivers, because of his part-time status. Based on the above-stated facts, the Regional Director recommended sustaining the challenge to William Witherow's ballot on the grounds that, although he shared a limited community of interest with the other employees, it was manifest that he I The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was: two for and two against the Petitioner; there were two challenged ballots. 2 The challenge to the ballot of Keith Cannon is not before us in this proceeding. The Regional Director for Region 19 issued a complaint in Case 19-CA-9075 alleging that Cannon was discharged in violation of Sec. 8(a)(l) and (3) of the Act. Consequently, the Regional Director found that 229 NLRB No. 64 enjoyed a special status which allied his interests with those of management. While we agree with the recommendation of the Regional Director, we do so for different reasons. Contrary to the Regional Director, we do not find the above facts support a finding that William Witherow enjoys a special status with respect to job- related benefits or privileges. Rather, in our view, he has a community of interest separate from that of his fellow employees and, therefore, we shall exclude him from the unit on that basis. Several factors, all of which have been carefully considered, lead us to the conclusion that we have reached herein. It is clear from the foregoing that Marvin Witherow, the son of William Witherow, the challenged voter herein, is a sole proprietor who is intimately involved in all phases of his business enterprise. It is also apparent, in view of the relatively small size of the unit, that the absence of a driver, for whatever reason, could operate as a critical impediment to the success of the Employer's business. The risk that such a problem will effect the Employer's operations herein is substantially less because of the availability of William Witherow to drive for the Employer whenever the circumstances require his assistance. A final factor warranting consideration is that when William Witherow is working the ratio of relatives to nonrelatives working for the Employer is high. Thus, if William Witherow is included in the unit, the Witherow family would have considerable potential to influence the other employees with respect to whether they wish to be represented for collective-bargaining purposes. Under these circumstances and in view of the familial bond existing between father and son herein, we are of the opinion that William Witherow would have a greater affinity with the interests of manage- ment than he would with the interests of his fellow employees. It would contradict human experience to contend that the relationship between William and Marvin Witherow is merely that of Employer and part-time employee. While this relationship may not always result in easily identifiable special privileges or working conditions, it establishes an area of interest not shared by the other employees.3 Accord- ingly, as William Witherow does not have a sufficient community of interest with the other employees, we resolution of the issues raised by the above-mentioned complaint would be dispositive of Cannon's eligibility and, since his ballot is determinative, he directed that further investigation of Cannon's challenge be consolidated for hearing with the complaint in Case 19-CA-9075. No exception has been filed with regard to the Regional Director's disposition of the ballot cast by Cannon. 3 See ParisoffDrive-In Market, Inc., 201 NLRB 813, 814 (1973). 412 agree with the Regional Director's recommendation that the challenge to his ballot be sustained.4 DIRECTION It is hereby ordered that the ballot of William Witherow remain unopened and uncounted. In view of the fact that the ballot cast by Keith Cannon is determinative of the election held herein, we order 4 See N. LR.B. v. Caravelle Wood Products, Inc., 504 F.2d 1181 (C.A. 7. 1974), enfg. 200 NLRB 855 (1972), wherein the court indicated that the Board may, under a community-of-interest standard, exclude employees from a unit on the basis of family relationship, provided appropriate factual 413 that it be remanded to the Regional Director for Region 19 for the purpose of arranging a consolidat- ed hearing with Case 19-CA-9075, as indicated in the Regional Director's report on challenged ballots and as ordered by him in his order consolidating cases and notice of consolidated hearing on com- plaint and challenged ballot. findings support the Board's conclusion. Similarly, the court pointed out that under this test it was not necessary to prove that the employee in question received special job-related benefits. MARVIN WITHEROW TRUCKING