Ellis Funeral Homes, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1981

255 N.L.R.B. 891 (N.L.R.B. 1981)

ELLIS FUNERAL HOMES, INC, 891
Ellis Funeral Homes, Inc. and Miscellaneous Driv-
ers, Helpers and Public Employees Union,
Local No. 610, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Petitioner.
Case 14-RC-9285
April 13, 1981
DECISION AND CERTIFICATION OF
REPRESENTATIVE
Pursuant to a petition filed on October 15, 1980,1
and a Stipulation for Certification Upon Consent
Election, an election by secret ballot was conduct-
ed on November 14, under the direction and super-
vision of the Regional Director for Region 14
among the employees in the stipulated unit. At the
conclusion of the election, the parties were fur-
nished a tally of ballots which showed that of ap-
proximately six eligible voters, six cast ballots, of
which two were for and one was against the Peti-
tioner, with three challenged ballots. The chal-
lenged ballots are sufficient in number to determine
the results of the election.
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 Chal-
lenged Ballots with recommendations in which he
recommended that the challenges to two ballots be
sustained and the challenge to one ballot be over-
ruled. Thereafter, the Petitioner filed a timely ex-
ception 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. A question affecting commerce exists concern-
ing the representation of the employees of the Em-
ployer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All office clerical employees including secre-
taries, clerk typists and receptionists employed
by the Employer at its 1905 Union and 2820
Stoddard, St. Louis, Missouri, facilities, ex-
cluding all other employees, professional em-
ployees, guards and supervisors as defined in
the Act.
i All dates are in 1980, unless others ise indicated
255 NLRB No. 119
5. The Board has considered the Regional Direc-
tor's report and the Petitioner's exception and sup-
porting brief and hereby adopts the Regional Di-
rector's findings 2 and recommendations, to the
extent consistent herewith.
The Regional Director's investigation disclosed
that the Employer is a corporation engaged in the
retail sale of funeral services. From 1973 to 1979,
the Employer's stock totaling 20 shares was owned
in its entirety by Fulton E. Culkin. Upon his
demise in October 1979, Culkin bequeathed all of
the stock to certain current employees. In this
regard, President Robert Jones received 35 percent
of the stock or 7 shares, Vice President Ted Foster
and Secretary Treasurer Georgia Cobb each re-
ceived 20 percent of the stock or 4 shares each,
General Manager Rodney Ockleberry received 10
percent of the stock or 2 shares, and employees
Vivian Cunningham, Odetta Riley, and Robert
Smith each received 5 percent of the stock or 1
share each. The officers of the corporation are also
members of the corporation's board of directors
and, in this capacity, they determine all of the Em-
ployer's personnel policies regarding hiring, dis-
charging, and disciplining of employees as well as
wage rates and wage increases for employees.
The challenged voter, Sheila Cobb, is the daugh-
ter of Georgia Cobb, the secretary-treasurer of the
corporation and a member of the three-member
board of directors. Georgia Cobb is responsible for
day-to-day supervision of the four clerical employ-
ees who comprise the collective-bargaining unit in
this case. Additionally, she is the bookkeeper for
the Employer and therefore responsible for all
monetary transactions including the preparation
and distribution of paychecks.
Sheila Cobb obtained employment with Ellis Fu-
neral Home approximately 4 years ago. She has not
resided with her mother at any time during her em-
ployment. Cobb currently works on a full-time
basis as the assistant bookkeeper and is under the
direct supervision of her mother, as are all clerical
employees. Her duties include general clerical
functions, including mailing bills to customers,
posting accounts receivable and accounts payable,
and preparing a monthly summary of accounts. She
works in the same general vicinity as the other
clerical employees.
When Sheila Cobb began her employment with
the Employer, she earned $125 per week and
through yearly increases eligible to all employees,
she now earns $170 per week. (The other employ-
ees in the unit earn between $140 and $200 per
2 In the absence of exceptions we adopt. pro forma. the Regional Di-
rector's recommendations that the challenges to the ballots of Vivian
Cunningham and Odetta Riley he sustained.
ELLIS FUNERAL HOMES. INC. sql
892 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
week.) Cobb works the same hours and must
follow the same procedure concerning absence,
lateness, or taking time off as other employees in-
cluded in the unit. She receives only those benefits
and privileges offered other employees. On the
basis of these facts, the Regional Director recom-
mended that the challenge to Sheila Cobb's ballot
be overruled. The Regional Director concluded
that inasmuch as Sheila Cobb does not receive dis-
proportionate wages to those of other unit employ-
ees, receives no special benefits or favored treat-
ment, and has not resided with her mother at any
time during her employment, the mere coincidence
of the relationship to her mother as a member of
management and minority shareholder does not
warrant her exclusion from the unit. The Petitioner
excepts to this finding, arguing, inter alia, that
Sheila Cobb does not share a community of interest
with bargaining unit employees by virtue of her
special relationship to management as the daughter
of a substantial shareholder and management offi-
cial of the Employer. We find merit in this excep-
tion.
Under Section 9(b) of the Act, the Board has the
responsibility to determine the unit appropriate for
collective bargaining, "in order to assure to em-
ployees the fullest freedom in exercising the rights
guaranteed by the Act .... " The Board has long
found the best way to assure this freedom is to in-
clude in the unit only those employees who share a
community of interest. In reviewing the facts
before us here, we conclude that Sheila Cobb has a
community of interest separate from that of her
fellow employees and should be excluded from the
unit on that basis.
We note that Georgia Cobb, mother of chal-
lenged voter Sheila Cobb, owns 20 percent of the
Employer's stock, which in this case makes her the
second largest shareholder of the Employer. She
also serves on the three-member board of directors
and, in this capacity, she participates in decisions
setting management policy and deciding employee
discipline and employee wages. Additionally,
Georgia Cobb is the day-to-day, direct supervisor
of all the clerical employees including her daugh-
ter. The combination of these factors, in conjunc-
tion with a bargaining unit of only four employees,
makes it a virtual certainty that Sheila Cobb will
get a more attentive and sensitive ear to her day-
to-day and long range work concerns than other
clerical employees. 3 While this accessibility to
3 See Parisoff Drve-ln Market Illc., 201 NLRB 813, 814 (1973). In his
report, the Regional Director cited Tops Club, Inc.. 238 NLRB 928
(1978), and Weyerhaeuser Company. Soft Disposable Division, 211 NLRB
1012 (1974), in overruling the challenge to Sheila Cobb's ballot. We find
these decisions distinguishable. In Tops Club, Inc., the Board found the
challenged voters were not children of a member of the board of direc-
management may not always result in easily identi-
fiable special privileges or favorable working con-
ditions, the fact that she has this peculiar access
gives her a status and area of interest not shared by
other clerical employees.
Consequently, for the foregoing reasons, we con-
clude that the interests of Sheila Cobb are more
closely allied with those of management than with
those of her fellow employees. 4 We shall sustain
the challenges to her ballot and direct that it
remain unopened and uncounted.
Accordingly, as the tally shows that the Petition-
er has obtained a majority of the valid votes cast,
we shall certify it as the exclusive bargaining repre-
sentative of the employees in the appropriate unit.
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
votes have been cast for Miscellaneous Drivers,
Helpers and Public Employees Union, Local No.
610, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, and 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
with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
CHAIRMAN FANNING dissenting:
I do not agree that the challenged voter herein
does not share a community of interest with bar-
gaining unit employees. My colleagues find that as
a result of a combination of factors, it is a virtual
certainty, speculative though that may be, that the
challenged voter will receive special attention.
Those factors are: an unusually small bargaining
unit; supervision of that bargaining unit by the
tors or a person responsible for day-to-day management of the employer's
operations and the children were under the direct supervision of a nonre-
lative. The entire unit in that case had 42 employees. In Weyerhaeuser.
the challenged voter's father was neither on the board of directors nor
her direct supervisor and the unit consisted of 26 employees.
While Member Jenkins does not disagree with the distinctions drawn
above between Tops Club and Weyerhaeuser and the present situation, he
notes that he dissented in any event in both those cases from the major-
ity's overruling the challenges to the ballots involved there. He notes fur-
ther that, consistent with his dissent in Toyota Midtown, Inc., 233 NLRB
797 (1977), he would find that Sheila Cobb is not an employee under the
definition of "employee" set out at Sec. 2(3) of the Act. He would ex-
clude her on this additional basis, also.
4 See NL.R.B. v. Caravelle Wood Products Inc., 466 F.2d 675 (7th Cir.
1972), wherein the court indicated that the Board may, under a communi-
ty-of-interest standard, exclude employees from the unit on the basis of a
family relationship, provided appropriate factual findings support the
Board's conclusions Similarly, the court pointed out that under this test
it was not necessary to prove that the employee in question received spe-
cial job-related benefits.
ELLIS FUNERAL HOMES, INC. 893
challenged voter's mother; the challenged voter's
mother owns 20 percent of the employer's stock;
and the challenged voter's mother serves on a
three-member board of directors which makes deci-
sions on management policy, employee discipline,
and wages. But no special status has been shown.
In Toyota Midtown, Inc., 233 NLRB 797 (1977),
the Board included a challenged voter in a bargain-
ing unit, with which he shared a community of in-
terest. The bargaining unit was relatively small.
The challenged voter's father was a major stock-
holder of the employer, who held the position of
corporate vice president and directly managed em-
ployees in the bargaining unit. Moreover, the chal-
lenged voter in Toyota Midtown lived apart from
his relative. Likewise, the challenged voter in the
instant case has lived apart from her mother during
the entire employment period. Furthermore, her
pay is not disproportionate to the wages of other
employees in the unit, and she is subject to the
same personnel procedure as the other employees.
I do not believe that the instant case is distin-
guishable from Toyota Midtown. Accordingly, I
would order that the challenged ballot be counted.