Futuramik Industries, Inc.

FUTURAMIK INDUSTRIES 185 Futuramik Industries, Inc. and International Ladies Garment Workers Union, Petitioner. Case 39- RC-481 7 April 1986 DECISION AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON The National Labor Relations Board has consid- ered objections to, and determinative challenges in, an election held 3 February 1984 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 93 for and 86 against the Petitioner, with 23 chal- lenged ballots, and 1 void ballot. The Board has reviewed the record in light of the exceptions and briefs, and has adopted the hearing officer's findings and recommendations as modified.' 1. We agree with the hearing officer that Peti- tioner's Objection (a) should be sustained, but only for the following reasons. To determine whether employee Mercedes San- chez had apparent authority to act for the Employ- er, the Board considers whether, under all the cir- cumstances, the employees would reasonably be- lieve that Sanchez' conduct reflected company policy and thus that she spoke and acted for man- agement. See Community Cash Stores, 238 NLRB 265, 266 (1978); B-P Custom Building Products, 251 NLRB 1337, 1338 (1980). Here, during all three company campaign meetings, Sanchez stood along- side President Joseph Ramondetta Sr., facing the employees, and, during at least one meeting, an- swered questions directed to Ramondetta without interference. This scenario placed Sanchez in a po- sition in which employees could reasonably believe that her statements were on behalf of the Employer and reflected its policies.2 The hearing officer also found, and we agree, that Sanchez, acting as the Employer's agent, threatened to report certain employees to the Wel- fare Department and the Immigration Service if the ' Absent exceptions, we adopt, pro forma, the hearing officer's recom- mendations that Petitioner's Objections (b), (c), and (d) be overruled, that the challenges to the ballots of William Henry, Ada Rivera, Edwin Molina, Lenny Molina Gonzales, Pedro Irizarry, Edwin Ortiz, Maria L Garcia, Timothy Chillone, Ray Hanson, Stella Rzewnicki , Gonzalo Rivera, Robert Bell , Jose Velazquez , and Froilen Feliz be overruled, and that the challenge to the ballot of Zolio Gonzalez be sustained At the hearing, the Petitioner withdrew its challenges to the ballots of Dacobo Alberenia, Clifford Grover, Gus Schindler, and Kevin Daniel 2 In finding that Sanchez acted as the Employer's agent, we do not find it necessary to rely on the Employer's alleged knowledge of San- chez' threats and failure to disavow them employees chose union representation.3 We find that such threats made to employees by an agent of the Employer are objectionable conduct warrant- ing setting aside the election.' In so finding, we do not adopt the hearing officer's observation that the majority of the unit employees are Spanish speak- ing and that, thus, there is more than a remote pos- sibility that some are aliens. Although we do not presume that Spanish-speaking persons are aliens, the Board has held that such coercive statements do not lose their effect merely because there is no direct evidence that some employees are illegal aliens. 5 2. The hearing officer recommended that the Pe- titioner's challenge to Gloria Trefethen's ballot be sustained. We agree, but only for the following rea- sons. The issue presented concerns Gloria Trefethen's status as the wife of a company official and partial owner. In applying the Supreme Court-approved6 "expanded community-of-interest test," to deter- mine whether relatives of owners of closely held corporations should be included in the unit, the Board considers such relevant factors as "how high a percentage of stock the parent or spouse owns, how many of the shareholders are related to one another, whether the shareholder is actively en- gaged in management or holds a supervisory posi- tion, how many relatives are employed as com- pared with the total number of employees, whether the relative lives in the same household or is par- tially dependent on the shareholder." NLRB v. Caravelle Wood Products, 466 F.2d 675, 679 (7th Cir. 1972), remanded 200 NLRB 855 (1972), enfd. 504 F.2d 1181 (7th Cir. 1974), rehearing denied 510 F.2d 257 (7th Cir. 1974). Futuramik is a closely held corporation dominat- ed by the Ramondetta family whose members to- gether own 86 percent of the outstanding corporate stock. Daniel Trefethen, the husband of the chal- lenged voter, owns approximately 10 percent of the 8 The hearing officer found that Sanchez' threatening remarks were made to approximately 30 people both on election day and on the day before the election The record contains apparently conflicting testimony Employees Juan Salgado and Luis Quinones signed an unworn statement indicating that Sanchez made certain threatening remarks on the date of the election However, although Salgado testified that Sanchez made the threatening statements on election day in the presence of "at least 20 per- sons," while employee Luis Quiones testified that the statements were made "several days before or a day before the election to at least 10 to 12 persons " We therefore find that Sanchez' threatening remarks were made on at least one occasion , either on election day or on a day shortly before the election , and that at least 10 to 20 people heard her comments * See Westside Hospital, 218 NLRB 96, 97 (1975), Sure-Tan, Inc, 234 NLRB 1187, 1191 (1978), motion to clarify denied 246 NLRB 788 (1979), enfd as modified 672 F 2d 592 (7th Cir 1982), affd in part and revd in part on other grounds 104 S Ct 2803 (1984) Westside Hospital, 218 NLRB at 96-97 See NLRB v Action Automotive, 105 S.Ct 984 (1985). 279 NLRB No. 21 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer's stock. There is no consanguinity be- tween the Ramondetta and Trefethen families. Daniel Trefethen is, however, vice president of the corporation, and he is actively engaged in the day- to-day management of the Employer. As plant manager, he is responsible for all three production and maintenance shifts. Gloria Trefethen works in the Quality Control Department and her supervi- sor, Paul Kasputis, reports to Daniel Trefethen or Ed Gianzenetti, vice president and sales manager. Furthermore, Gloria Trefethen lives in the same household as Daniel Trefethen and to some degree presumably is dependent on him. These facts, particularly Daniel Trefethen's prominence in company management and his sig- nificant ownership interest, indicate that Gloria Trefethen's interests are more closely aligned with those of management rather than with those of the employees. Close relatives who live with a partial owner are certain to "get a more attentive and sen- sitive ear to their day-to-day and long-range work concerns than would other employees."7 In Cardinal Food Town, 202 NLRB 930 (1973), under similar circumstances, the Board sustained the challenges to the ballots of the children of the employer's vice president and 9.2 percent owner, who also managed the day-to-day operations of the employer. Applying the factors set forth in NLRB v. Caravelle Wood Products, supra, 466 F.2d at 679, the Board found the interests of the children were more closely allied with those of management than with those of their fellow employees. The Board emphasized that not only was the father a share- r Action Automotive, supra, 105 S Ct at 988 (quoting Parisoff Drive-In Market, 201 NLRB 813, 814 (1973)) holder, but he was also active in the daily manage- ment of the company-" Accordingly, we shall exclude Trefethen from the unit and sustain the challenge to her ballot.9 DIRECTION IT IS DIRECTED that the Regional Director for Region 1 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this direction, open and count the ballots of William Henry, Ada Rivera, Edwin Molina, Lenny Molina Gonzales, Pedro Irizarry, Edwin Ortiz, Maria L. Garcia, Dacobo Alberenia, Clifford Grover, Gus Schindler, Kevin Daniel, Timothy Chillone, Ray Hanson, Stella Rzewnicki, Gonzalo Rivera, Robert Bell, Jose Velazquez, and Froilen Feliz, and, there- after, serve on the parties a revised tally of ballots. If the revised tally shows that the Petitioner has re- ceived a majority of the valid ballots cast, the Re- gional Director shall issue a certification of repre- sentative. If the revised tally of ballots shows that a major- ity of the votes are cast against the Petitioner a second election by secret ballot shall be held among the employees in the unit found appropriate and whenever the Regional Director deems appro- priate. [Direction of Second Election omitted from pub- lication.] 8 Accord Ellis Funeral Homes, 255 NLRB 891 (1981) (excluding daughter of corporation's secretary-treasurer and 20-percent owner), Pan- soff Drive-In Market, 201 NLRB 813 (1973) (excluding children of corpo- ration's vice president, manager, and 25-percent owner) 9 We adopt the hearing officer's recommendation that the challenges to the ballots of John Ramondetta and David Matson be sustained, but we rely solely on the finding that they were not employed on election day