Economy Cash Stores, Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1973

202 N.L.R.B. 930 (N.L.R.B. 1973)

930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Economy Cash Stores , Inc. a /k/a Cardinal Food Town
and Retail Store Employees Union Local 560,
chartered by Retail Clerks International Associa-
tion , AFL-CIO, Petitioner . Case 19-RC-6348
April 6, 1973
DECISION, DIRECTION, AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on November 16, 1972, under the direc-
tion and supervision of the Regional Director for
Region 19 among the 'employees in the stipulated
unit. At the conclusion of the election, the parties
were furnished a tally of ballots which showed that,
of approximately 16 eligible voters, 17 cast ballots, of
which 8 were for and 6 were against the Petitioner,
with 3 challenged ballots. The challenged ballots are
sufficient in number to determine the results of the
election.
Pursuant to the provisions of Section 3(b) of 'the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In accordance with the Rules and Regulations of
the National Labor Relations Board, the Regional
Director conducted an investigation and issued and
duly served on the parties his Report on Challenged
Ballots with recommendations in which he recom-
mended that the challenges to two ballots be
sustained and the challenge to one ballot be
overruled' and the Petitioner be' certified as the
collective-bargaining representative of the employees
involved. Thereafter, the Employer filed timely
exceptions to the Regional Director's report.
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
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. X question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all
full-time and part-time employees of the Employer at
The Regional Director overruled the challenge to the ballot of Louis
Lounsberry. However, in view of our disposition of this case we find it
unnecessary to pass on his recommendation that the challenge to her ballot
be overruled.
202 NLRB No. 131
its retail store located at its Cardinal Food Store in
American Falls, Idaho, employed as retail store
employees, but excluding all meat department
employees, managers, assistant managers, guards
and supervisors as defined in the Act, as amended,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
5. The Board has considered the Regional Direc-
tor's report, and the Employer's exceptions thereto,
and hereby adopts the Regional Director's findings
and recommendations as modified herein.
The Regional Director's investigation disclosed
that the Employer is a closely held corporation
engaged in the business of operating a retail food
store. Margaret C. Toevs,' president of the corpora-
tion, is the Employer's principal stockholder, owning
approximately 80 percent of the outstanding stock.
She is. not active in the management of the store.
Aaron Farnsworth, the Employer's secretary-treasur-
er, owns or is entitled to approximately 11.2 percent
of the Employer's stock, and his brother Jay
Farnsworth, the Employer's vice president, owns or
is entitled to 9.2 percent of the stock. They are the.
comanagers of the corporation's retail food store in
American Falls, Idaho, the employees of which are
involved in the instant proceeding.
Two of the challenged voters-Cindy and Alan
Farnsworth-are the teenage daughter and son of
Jay Farnsworth, and niece and nephew of Aaron
Farnsworth. The two children, who presumably live
at home with their parents, work part time in the
store. Cindy works in the bakery department under
the management of her father and uncle, and Alan
works as a boxboy in the grocery department under
the supervision of the grocery department manager.
On the basis of these facts, the Regional Director
sustained the challenges to the ballots of the two
children. Relying on the Board's decision in Foam
Rubber City #2 of Florida, Inc., d/b/a Scandia,2 he
concluded that Cindy and Alan were not employees
within the meaning of the Act,3 and that their
interest were more closely aligned with those of
management4 than with the employees included in
the unit. The Employer has excepted to these
findings.
While we agree with the Regional Director's
conclusions, we do so for different reasons. We do
not find it necessary to decide herein' whether the
challenged individuals are "employees" within the
meaning of that term as used in Section 2(3) of the
Act. For, under Section 9(b) of the Act, the Board
2 167 NLRB 623.
3 The Regional Director specifically found that the two children were
employed by their parents within the meaning of Sec. 2(3) of the Act.
4 Citing Caravelle Wood Products, Inc., 200 NLRB No. 118.
I
CARDINAL FOOD TOWN 931
has the responsibility to determine the unit appropri-
ate for collective bargaining, "in order to assure to
employees the fullest freedom in exercising the rights
guaranteed by the Act. . . ." The Board has long
held that the best way to assure this freedom is to
include in the unit found appropriate only those
employees who share a community of interest. In
reviewing the facts before us, we-conclude that the
two Farnsworth children, whose ballots are chal-
lenged, have a community of interest separate from
that of their fellow employees and should be
excluded on that basis.5
Jay Farnsworth, father of the two challenged
voters, owns approximately 9 percent of the Employ-
er's stock (2 percent in his name and approximately
7.2 percent due under an incentive bonus stock plan).
Approximately. 5 percent of the stock (with an
additional 6.2 percent due under the incentive bonus
stock plan) is owned by their uncle, Aaron Farns-
worth, and the balance is owned by the corporation
president, Margaret C. Toevs, who is not directly
engaged in the day-to-day management of the store.
Thus, we are not confronted with a situation where
the indentity of interest between the challenged voter
and the corporation's management, in this case the
voters' parent and' uncle, may or may not be shown
to exist. As we indicated in Parisoff, where two of the
owners are members of the same family and related
to one another as well as to the challenged employ-
ees, and in addition are the comanagers of the
business, we believe it more likely that the business
interests of the corporation will be synonymous with
the interests of the family to which the employees
belong. Their interests as members of the governing
family may well outweigh their interests as employ-
ees of the corporation and, to that extent, their
interests may be entirely different from the interests
of the other employees whose sole stake in the
corporation is that they work there.
We also note that the challenged employees' parent
is not only a shareholder and its vice president but is
also active in the day-to-day management of the
Employer. In . these circumstances, it is a virtual
certainty that such individuals would get a more
attentive and sensitive ear to their day-to-day and
long-range work concerns than would other employ-
ees. While this accessibility to management may not
always result in easily identifiable special privileges
or favorable working conditions, the fact that they
5 ParisoffDrive-In Market, Inc., 201 NLRB No. 102.
6 See N . L. R. B. v . Caravelle Wood Products, Inc., 466 F .2d 675 (C.A. 7),
where the court indicated that the Board could consider the aforementioned
have this peculiar access gives them a status and area
of interest not shared by the rest of the employees.
Finally, as we stated in Parisoff, supra,
. . . we consider it relevant that all the voters
here in question [presumably] live at home with
their parents. Generally, where children are still
living with parents they are also dependent upon
them, and with dependence there is a consider-
able potential for influence. Moreover, aside from
the likely dependence, children living with a
parent who is active in managing the corporation
can reasonably be expected to be exposed to
information about personnel problems, labor
relations dealings, and even corporate profitabili-
ty. In some of the above respects they may be
comparable to confidential employees, whom we
traditionally exclude from the unit.
For the foregoing reasons, we conclude that the
interests of the two Farnsworth children are more
closely allied with those of management than with
those of their fellow employees.6 Accordingly, we
shall sustain the challenges to their ballots and direct
that they remain unopened and uncounted.
As we have adopted' the Regional Director's
recommendations that the Petitioner's objections be
overruled and the challenges to the ballots sustained,
and as the Petitioner has received a majority of the
valid ballots cast, we shall, accordingly, certify the
Petitioner as the representative of the employees in
the unit found appropriate.
DIRECTION
It is hereby directed that the ballots of Cindy
Farnsworth and Alan Farnsworth remain unopened
and uncounted.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Retail Store Employees
Union Local 560, chartered by Retail Clerks Interna-
tional Association, AFL-CIO, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for' the purposes of- collective
bargaining in respect to rates of pay, wages, hours ' of
employment, or other conditions of employment.
factors, among others , in making unit determinations under Sec . 9(b) of the
Act.