Fresno AG Hardware

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 412 (N.L.R.B. 1970)

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Rosetta and Jim Rosetta d/b/a Fresno AG
Hardware , Employer -Petitioner and Retail Clerks'
Union Local 1288 , Retail Clerks International
Association , AFL-CIO. Case 20-RM-1173
August 27, 1970
DECISION, ORDER, AND DIRECTION
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
Pursuant to stipulation for certification upon con-
sent election approved by the Regional Director for
Region 20 on May 16, 1969, an election was conducted
on June 5, 1969, in the above-entitled proceeding,
under the direction and supervision of said Regional
Director. At the conclusion of the election, the parties
were furnished with a tally of ballots which showed
that of approximately 44 eligible voters, 36 cast ballots,
of which 16 were cast for, and 14 were cast against
the Petitioner. There were six challenged ballots. The
challenged ballots are sufficient in number to affect
the results of the election. On June 12, 1969, the
Union filed timely objections to the election.
The Regional Director investigated the challenges
and the objections, and, on September 5, 1969, issued
and served on the parties his Report on Objections
and Challenged Ballots, and, on September 9, 1969,
a Supplemental Report on Objections and Challenged
Ballots, and, on September 9, 1969, a Supplemental
Report on Objections and Challenged Ballots. In his
Report, as supplemented, the Regional Director rec-
ommended to the Board that the objections be over-
ruled, and that the challenges to the ballots of Carl,
Regina, and Dennis Rosetti and Roger and Mary
Struthers be overruled and their ballots be opened
and counted. In view of his recommendation with
respect to the challenges to the aforementioned five
ballots, the Regional Director made no recommenda-
tion concerning the challenge to the ballot of Floyd
Struthers, since his ballot would not likely be determi-
native of the election results.
Thereafter, on September 19, 1969, the Union filed
timely exceptions to the Regional Director's Report
and Supplemental Report, requesting that all the chal-
lenges and several of the objections be sustained,
and the Union be certified, based upon the present
vote count, or that the election be set aside and
a new election be conducted.
On December 15, 1969, the National Labor Rela-
tions Board issued an Order Directing Hearing in
which it was ordered that a hearing be held on
the challenges and the objections.
On February 11 and 12, 1970, a hearing was held
at Fresno, California, before Hearing Officer Robert
G. Mayberry. The Employer, the Union, and the
Regional Director were represented by counsel, and
all parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues. Thereafter
the Employer and the Union entered into a stipulation
to certain additional facts which was made part of
the record.
On March 27, 1970, Hearing Officer Mayberry
issued his Report on Challenges and Objections, in
which he recommended that all the objections be
overruled, and that the challenges to the ballots of
Carl and Regina Rosetti, and Floyd and Mary Struth-
ers be overruled. The Hearing Officer recommended
that the challenges to the ballots of Dennis Rosetti
and Roger Struthers be sustained.
Thereafter the Employer filed timely exceptions
to the Hearing Officer's recommendation that the
challenges to the ballots of Dennis Rosetti and Roger
Struthers be sustained.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer
within the meaning of Section 9(c)(1) and Section
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 mean-
ing of Section 9(c) of the Act:
All full time and regular part -time selling and
nonselling employees of the Employer at its Fres-
no, California, location , excluding confidential
employees, guards and supervisors as defined
in the Act.
5. The Board has considered the Hearing Officer's
Report, the Employer's exceptions, and the entire
record in this case, and hereby adopts the findings
185 NLRB No. 57
FRESNO AG HARDWARE
and recommendations of the Hearing Officer except
as herein modified. i
We find merit in the Employer's exceptions to
the recommendations of the Hearing Officer that
the challenges to the ballots of Dennis Rosetti and
Roger Struthers be sustained.
Dennis Rosetti is the son of Carl and Regina Rosetti.
Carl Rosetti is a half-brother of owners James and
John Rosetta.
The Hearing Officer found that Dennis Rosetti
was accorded special treatment in three particulars,
and concluded that because of his family relationship
to the owners, the special priviliges "were of such
a nature and magnitude" as to cause his interests
to be more closely aligned with management than
with other rank-and-file employees. The recommenda-
tion that the challenge to Dennis Rosetti's ballot
be sustained was based on his receipt of holiday
pay "while other part-time employees were not granted
this benefit"; a $20 advance, "contrary to the Employ-
er's stated policy of not granting loans"; and the
Hearing Officer's finding that he "was permitted to
leave his automobile inside the Employer's premises
for 2 days while he made alterations on it."
In its exceptions, the Employer points out that
other employees, including nonrelatives, who are
included in the unit, used, its premises to repair their
automobiles. The record supports this assertion. The
Employer asserts also that an advance against earned
wages in no \way conflicts with its policy against
loans to employees, a different matter not at issue
here. We agree.
Finally, the Employer asserts that Dennis Rosetti
was treated no differently in regard to holiday pay
from other part-time employees who, like him, regular-
ly worked 30 or more hours per week.' The stipulation
provides, however, that "Part-time employees working
June 5, 1969, and who worked full time during the
summer vacation period were entitled to paid holidays
occurring during that time. Length of service did
not apply."
The Hearing Officer noted that of the part-time
employees, only Dennis Rosetti and Roger Struthers
(discussed below) received pay for the Easter and
Memorial bay holidays He indicated that Gregory
Heguiagaray, who was also paid for those 2 days,
was a full-time employee. The Employer asserts that
Heguiagaray was a part-time employee who regularly
i In the absence of exceptions thereto, we adopt pro forma the Hearne
Olti, 's recommendations to overrule the objections and the challenges to
the ballot„ f Carl and Regina Rosetti and Floyd and Mary Struthers
I The b. mplo)cr asserts that full-time employees worked 48 hours a week
The stipulation provides that part - time employees who regularly worked 30
hours or more per week were permitted to participate in the health insurance
plan after 30 continuous days on thejob
413
worked more than 30 hours per week. Although
the record is not entirely clear as to whether Heguiaga-
ray was a part-time or full-time employee, it does
not appear that any part-time employees other than
Dennis Rosetti and Roger Struthers who regularly
worked more than 30 hours per week de lied pay for
the two indicated holidays.
Roger Struthers is the son of Floyd avid Mary
Struthers. Mary Struthers is a sister of owners James
and John Rosetta. The Hearing Officer recommended
sustaining the Petitioner's challenge to his ballot,
finding he had received holiday pay and sick pay,
and that he was granted permission not to work
on two weekends, all benefits not granted to other
employees in similar circumstances.
Struthers was granted permission to be absent from
work for two weekends in 1969, one of them after
the election date. However, it appears that another
unit employee, not a relative of the owners, may
also have been given one such weekend off. Testimony
by another employee, that he was told a Sunday
off was difficult to arrange, was contradictory, and
even if true is insufficient to establish special treatment
of Struthers.
As indicated, the facts and considerations in respect
to holiday pay are identical to those considered in
connection with Dennis Rosetti, supra.
The Hearing Officer found that Struthers received
sick pay for 1 day, "a benefit not enumerated by
the Employer as being available to part-time employ-
ees, while part-time employee Barron reported on
his time card as being sick" for a day when he
was not paid. In its exceptions, the Employer argues
that "sick pay, like holiday pay and the entitlement
to participate in the Employee Health Insurance Pro-
gram, is a benefit given to all part-time employees
regularly working thirty or more hours per week,
after 30 days. Struthers regularly worked over thirty
hours per week, Barron did not. . ." The stipulation
provides that "Sick leave followed the same pattern
as vacations, with the same number of eligible days
and eligibility the same . . . No paid vacations were
given part-time employees in 1968 or 1969." Although
neither the stipulation nor the record support the
Employer's argument as to sick pay for part-time
employees, the record does not disclose that any
part-time employees in that category were denied
sick pay with the arguable exception of Barron on
one occasion.
It therefore appears that at most the only special
privileges granted these two employees consisted of
2 days' holiday pay for both and 1 day's sick pay
for Floyd Struthers. We find that these privileges,
if in fact special by reason of their family relationship
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the owners , were not substantial enough to cause
their interests to be more closely aligned with manage-
ment than with other rank -and-file employees, some
of whom, including these two employees ' parents,
are also relatives of the owners. International Metal
Products, 107 NLRB 65; cf. Cherrin Bros. Co., 147
NLRB 527, fn. 2, enfd. Cherrin Corporation v
N.L.R.B, 349 F.2d 1001 (C.A. 6, 1965), cert. denied
382 U.S. 981 (1966). Accordingly, we shall overrule
the challenges to the ballots of Dennis Rosetti and
Roger Struthers.
ORDER
DIRECTION
Inasmuch as the objections to the election and
challenges to ballots have been overruled , the Regional
Director for Region 20 shall , pursuant to the Board's
Rules and Regulations , within 10 days of the date
below , open and count the ballots of Carl Rosetti,
Regina Rosetti , Dennis Rosetti , Floyd Struthers, Mary
Struthers , and Roger Struthers , and thereafter prepare
and cause to be served on the parties a revised tally
of ballots, including therein the count of said ballots,
and on the basis thereof issue the appropriate certifica-
tion.
It is hereby ordered that the ubJeLtiuns and the
challenges be, and they hereby are , overruled.
MEMBER JENKINS , concurring:
Member Jenkins concurs in the result.