Pandick Press Midwest, Inc.

PANDICK RESS MIDWEST, INC. 473 Pandick Press Midwest, Inc. and Chicago Typo- graphical Union No. 16, affiliated with Interna- tional Typographical Union, AFL-CIO, Peti- tioner. Case 13-RC-15259 August 25, 1980 DECISION AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered ob- jections and challenges to an election held on De- cember 13, 1979,1 and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the ex- ceptions and briefs and hereby adopts the Regional Director's findings and recommendations, as modi- fied herein. In his report, the Regional Director recommend- ed that the challenges to six ballots be overruled and the challenge to one ballot be sustained. The Regional Director further recommended that the Employer's Objection I be sustained,2 and that, if, upon counting the overruled challenged ballots, the Petitioner had obtained a majority, the election be set aside based on this objection. We agree with the Regional Director's recommendation to over- rule the challenges to the ballots of employees Barlin, Mikels, Ryan, Whitlow, and Assarian, 3 and to sustain the Employer's Objection . For the fol- lowing reasons, however, we disagree with his rec- ommendations to overrule the challenge to the ballot of Cathyann Garippa and to sustain the chal- lenge to the ballot of Elizabeth Pflum. ' The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election The tally was 18 for, and 12 against. the Petitioner; there were 7 challenged ballots, a sufficient number to affect the results. 2 He made no recommendations as to the remaining five objections. 3 Member Truesdale is of the opinion that the challenge to the ballot of employee Sandra Assarian raises substantial and material issues of fact. and would remand this proceeding to the Regional Director for a hearing on that challenge if Assarian's ballot is found to be determinative. In this regard, he notes that the Regional Director found no evidence contary to the Employer's assertion that Assarian had worked continuously as a typesetter in the composing room with the exception of a brief period during the summer of 1979. However. in an affidavit given to the Board (attached to the Petitioner's exceptions to the Regional Director's report), employee Caroline Mann asserts that Assarian attended one of the union meetings in or about November 1979. and. while problems in the com- posing room were being discussed. stated that she did not understand what the complaining was about, but then indicated "I don't work in that department " Mann continued: "Eddie Shont, one of the union repre- sentatives chairing the meeting, and organizer, asked her lAssarian] 'You don't work in that department?' and she replied 'No. I don't work in that department."' Mann also refers o a statement by the Employer's vice president. Bob Jay. to the effect that Assarian was his administrative as- sistant. Based primarily on this affidavit, Member Truesdale believes that the Petitioner has raised issues of fact concerning Assarian's status which could best be resolved at a hearing if necessary. 251 NLRB No. 58 i. The Petitioner challenged the ballot of Cath- yann Garippa on the ground that, since she is the daughter of one of the Employer's officials, she lacks a community of interest with other unit em- ployees. Relying on Adam D. Goettl and Gust Goettl, d/b/a International Metal Products Company, 107 NLRB 65 (1953), the Regional Director con- cluded that, despite her father's position in the Em- ployer's management, Cathyann Garippa is not an employee enjoying a special status allying her with the interests of management. The Regional Direc- tor therefore recommended that Cathyann Garippa be permitted to vote in the election and that the challenge to her ballot be overruled. We disagree with this recommendation. Cathyann Garippa has worked as a typesetter for the Employer in Chicago since September 10, 1979. She is the daughter of Frank Garippa, whose title is president of the Employer's operations. The elder Garippa is not a corporate officer or an owner of the Employer and claims to own less than 1 percent of the Employer's open stock. The Employer contends that, despite Frank Gar- ippa's title, his position is equivalent to that of a plant manager at its Chicago facility. Cathyann Garippa lives at home with her father and pays no room and board, although she asserts that she is fi- nancially independent. She has the privilege of her work hours beginning and ending 2 hours before other employees on her shift, but it appears that at least some other employees have their hours varied to meet their personal needs. 4 Otherwise, Cathyann Garippa does not appear to enjoy any special privi- leges because of her relationship with her father. Concededly the elder Garippa does not possess a significant ownership interest in the Employer. Nevertheless, he is apparently the top-ranking rep- resentative of the Employer at its Chicago facility. Additionally, Cathyann Garippa lives at home with her father and presumably has virtually daily con- tact with him, contact which must affect the char- acter of her relationship to the workplace. Thus, it appears that Cathyann Garippa has access to man- agement which, although it may not always result in easily identifiable special privileges, gives her a status and an area of interest distinct from that of other employees. Accordingly, we conclude that, as the daughter of the Employer's highest manage- ment representative in Chicago, Cathyann Garippa does not share a community of interest with the rest of the unit, and her inclusion in the unit would inhibit the other employees from enjoying "the ful- lest freedom in exercising the rights guaranteed by 4 There is no evidence of the employment status of the other employ- ees who have their hours varied to accommodate their personal needs PANDCK PRESS MIDWEST. INC. 473 474 DECISION OF NATIONAL LABOR RELATIONS B()ARI) this Act" as provided in Section 9(b). We therefore sustain the challenge to Cathyann Garippa's ballot. 5 2. Elizabeth Pflum was challenged by Petitioner on the basis that she was not on the Employer's payroll on the eligibility date of the election. The Regional Director found that, although Elizabeth Pflum was employed in the composing room on the election eligibility date (which was October 7, 1979), she did not at that time share in the benefits received by other full-time employees, and hence was a temporary employee. Accordingly, he found that she lacked a community of interest with the unit employees, and recommended that the chal- lenge to her ballot be sustained. We disagree. Pflum was initially hired on February 5, 1979, and, about a month later, began working in the composing room. She was laid off from April or May until August 1979. Upon being recalled, Pflum worked for about 2 weeks in the shipping and mailing department, and then returned to the composing room where she was still working on the eligibility date. She did not receive the pension and hospitalization benefits offered other employ- ees. According to Pflum, in November she was told by the Employer that she was a regular full- time employee and would thereafter receive the fringe benefits offered by the Employer. Pflum then began receiving her paychecks from New York like the other regular employees, rather than paychecks issued in the Employer's Chicago office as she had received prior to that time. There is no evidence of any other difference between the terms and conditions of her employment and those of the other employees. It appears that the only significant differences between Pflum and other employees in the com- posing department on the eligibility date were her failure to receive fringe benefits offered other em- ployees, and the fact that her paycheck was issued by a different facility of the Employer. The Board has held, however, that these factors alone are not sufficient to render an employee temporary and in- eligible for inclusion in a unit of regular full-time employees. 6 More importantly, Pflum worked a regular schedule, performed duties that are a regu- lar part of the Employer's operation, and had no definite or contemplated date of termination. Ac- cordingly, we conclude that Pflum was not a tem- porary employee, and we overrule the challenge to her ballot.7 ' Chairman Fanning concurs in sustaining this challenge. He notes that Garippa's affidavit states that she has borrowed money from her father in connection with a "car loan" and this is being repaid by deductions from her weekly salary, apparently without interest. Other affidavits refer to no loan privileges to employees. In addition to the fact that Garippa lives at home without paying room and board, the Chairman concludes that she has an area of interest not shared by other unit employees. Cf. Tops Club. Inc., 238 NLRB 928 (1978). 3. Since we find merit in the Employer's Objec- tion 1, if the revised tally ordered below reveals that the Union has obtained a majority, we shall set the election aside and order a new election.8 DIRECTION The Regional Director is hereby directed to open and count the ballots of Sandra Assarian, Jean Barlin, Kellie Mikels, Lorna Ryan, Keith Whitlow, and Elizabeth Pflum; to prepare and serve on the parties a revised tally of ballots; and to issue a certification of results if the tally shows that the Union has not obtained a conclusive ma- jority. In the event that the Union has received a con- clusive majority, a second election by secret ballot shall be conducted among the employees in the unit found appropriate, at such time as the Region- al Director deems appropriate. The Regional Di- rector for Region 13 shall direct and supervise the election, subject to the National Labor Relations Board Rules and Regulations, Series 8, as amended. Eligible to vote are those in the unit who were em- ployed during the payroll period ending immedi- ately before the date of issuance of the Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike which commenced less than 12 months before the election date and who retained their status as such during the eligibility period and their replacements. Those in the military services of the United States may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been dis- charged for cause since the designated payroll period and employees engaged in a strike who have been discharged for cause since the com- mencement thereof, and who have not been rehired or reinstated before the election date, and employ- ees engaged in an economic strike which com- menced more than 12 months before the election date and who have been permanently replaced. 9 Those eligible shall vote whether or not they desire to be represented for collective-bargaining purposes by Chicago Typographical Union No. 16, affiliated with International Typographical Union, AFL-CIO. 6 F. P. Packaging, Inc., 236 NLRB 239, 241 (1978). See P. Sand and Gravel Company, 222 NLRB 83. fn. 2 (1976). 8 As noted at fn. 3 above, Member Truesdale believes that substantial issues have been raised concerning the status of Sandra Assarian Hence. he would open and count he ballots of employees Harlin. Mikes. Ryan. Whitlow, and Pflum. If Assarian', ballol were still determinative, he would hold a hearing on her status He agrees. hossever. that if any final tally shows the Petitioner has swon the election then he would direct second election. I [Excelsior Footllote onmitted from publication PNDICK TRESS MIDW'ES, INC. 475 MEMBER PENELIO, dissenting in part: Contrary to my colleagues, I would overrule the challenge to the ballot of employee Cathyann Gar- ippa. It is well settled that "the mere coincidence of a family relationship between an employee and a member of management does not, without a show- ing of special status for the employee, warrant the exclusion of that employee from a bargaining unit where the employee's inclusion in the unit would be otherwise appropriate." 10 In the present case, the record reveals that em- ployee Garippa is the daughter of Frank Garippa. Frank Garippa is in charge of the Employer's Chi- cago plant, which is equivalent to the position of plant manager. He is not a corporate officer, and f lbopi Club. nct. 238 NLRB 928 (19781. iyerhaeuser (ompanon Sof DLspoah/le Divion. 211 NR1 112 (q74k and Pargas of CrOewct ('tr In.. 194 NlRF3 61(q19711 owns less than I percent of the Employer's open stock. Futhermore, employee Garippa is subject to the same terms and conditions of employment as other employees, and does not enjoy any special privileges because of her relationship with her father. The mere fact that employee Garippa lives with her parents without paying room and board is insufficient, given her financial independence, to warrant her exclusion from the unit." According- ly, I would overrule the challenge to her ballot.'2 l' Tops Club. Inc., supra I cannot agree ith Chairman Fanning that an emploee's Sec 7 rights call be eliminated by a mere personal loan from a parent to a member of the family living at home that is repaid through payroll deduction The loan has no bearing on their relationship at the workplace other than the method of repayment. Moreov er. there is no eidence in this record that loan privileges have been requested by other employees and denied 12 For the reasons fully explicated in my dissenting opinion in Mercury Industries, Inct.. 238 NLRB 896 (1978), 1 would overrule the Emplo)er's Objection I. and, in the event that the Petitioner obtains a majority of the valid votes cast, I would remand this case to the Regional Director for further investigation and disposition of the remaining objections filed by the Employer. ANDICK PRESS MIDEST, [N 475