Holthouse Furniture Corp.

National Labor Relations Board - Board Decisions

May 21, 1979

242 N.L.R.B. 414 (N.L.R.B. 1979)

DECISIONS OF NATIONAL ABOR RELATIONS BOARD
Holthouse Furniture Corp. and Chauffeurs, Team-
sters, Warehousemen and Helpers Local Union No.
135, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Petitioner. Case 25 RC 6978
May 21, 1979
DECISION AND DIRECTION TO OPEN AND
COUNT CHALLENGED BALLOTS
BY CHAIRMAN FANNING AND MI:MBERS PENE.LO
AND TRUESDAI.E
Pursuant to a stipulation upon consent election ex-
ecuted by the parties and approved by the Regional
Director for Region 25 of the National Labor Rela-
tions Board, an election by secret ballot was con-
ducted in the above-entitled proceeding on October
27, 1978, under the direction and supervision of said
Regional Director. Upon the conclusion of the elec-
tion, a tally of ballots was furnished the parties in
accordance with the Board's Rules and Regulations,
Series 8, as amended.
The tally of ballots shows that of approximately 14
eligible voters, six votes were cast for and four against
the Petitioner. There were four challenged ballots and
no void ballots. The challenged ballots were sufficient
in number to affect the results of the election. No
objections to conduct of the election or to conduct
affecting the results of the election were filed.
Pursuant to Section 102.69(d) of the Board's Rules
and Regulations, the Regional Director for Region
25, on November 14, 1978, issued a report entitled
"Report on Challenged Ballots, Order Directing
Hearing, and Notice of ltearing," directing that a
hearing he held for the purpose of receiving evidence
to resolve the issues raised by the challenged ballots.
On December 5 and 6, 1978, a hearing was held
before Hearing Officer Richard J. Simon. On March
22, 1979, the Hearing Officer issued his report on
challenged ballots and recommendations wherein he
recommended that the challenges to the ballots of Jef-
frey Holthouse, Jerry Holthouse, David Schroeder.
and Albert Jones be overruled. The Petitioner filed
timely exceptions and a supporting brief wherein it
excepted to the Hearing Officer's recommendations
that the challenges to the ballots of these fbur individ-
uals be overruled. The Employer filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding 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 pur-
poses of the Act to assert jurisdiction herein.
2. Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) ana (7) of the Act.
4. The following employees constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time truckdrivers
and warehousemen, including carpet and furni-
ture service workers employed by the Employer
at its 5980 National Road East, Richmond, Indi-
ana, facility; but excluding all office clerical em-
ployees, all receptionists, all salesmen, all buyers,
all professional employees, all guards and super-
visors as defined in the Act.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the rec-
ord, including the Hearing Officer's report and rec-
ommendations on challenged ballots, the Petitioner's
exceptions and brief, and the Employer's reply brief
in response to the Petitioner's exceptions. For the rea-
sons set frth below, we find merit in the Petitioner's
exceptions to the Hearing Officer's recommendations
that the challenges to the ballots of Jeffrey Holthouse
and Jerry Holthouse be overruled. We shall therefore
sustain the challenges to the ballots of these individ-
uals. We further find. in agreement with the Hearing
Officer, that the challenges to the ballots of David
Schroeder and Albert Jones should be overruled. We
shall therefore order that their ballots be opened and
counted.
The ballots of Jeffrev Holthouse and Jerry Holt-
house were challenged on the basis that these individ-
uals were relatives of members of management, and
that they did not work with sufficient regularity to be
included in the unit.
Jerry Holthouse is the son of S. L. Holthouse, one
of the Employer's two vice presidents, who is active in
the day-to-day management of the Employer's opera-
tions. Jeffrey Holthouse is the son of Thomas Holt-
house, who serves as a buyer for the Employer.
S. I,. Holthouse and Thomas Holthouse are mem-
bers of the Employer's board of directors. The re-
maining members of the board of directors at times
material to this proceeding were Siegfried J. Holt-
house,' father of S. L. Holthouse; G. Howard Holt-
house, father of Thomas Holthouse; Flora Holthouse,
sister-in-law of Siegfried J. Holthouse and G. Howard
Siegfried J. Illhuuse died on D)ecmber 3, 197. 2 days prior to the
commlencement oit the hearing
242 NLRB No. 58
414
HOLTHOUSE FURNITURE CORP.
Holthouse; and Jack Edwards, son-in-law of Flora
Holthouse. As of the day of the election. Siegfried J.
Holthouse served as the Employer's president, G.
Howard Holthouse served as secretary-treasurer, and
Flora Holthouse served as vice president.
Of approximately 3,544 shares of stock outstand-
ing, the members of the board of directors and the
wives of board members Siegfried J. Holthouse, G.
Howard Holthouse, and Jack Edwards own approxi-
mately 1,340 shares.2 An additional 827 shares are
owned by other sons and daughters of Siegfried J.
Holthouse, G. Howard Holthouse, and Flora Holt-
house,3 and approximately 374 shares are owned by
grandsons and granddaughters of Siegfried J. Holt-
house, G. Howard Holthouse, and Flora Holthouse. 4
The record does not reflect whether the members of
the board of directors are authorized to vote any
shares not personally held by them. Nor does the rec-
ord reflect who owns or who is authorized to vote the
remaining shares.
Jeffrey Holthouse and Jerry Holthouse are high
school students who are employed in the Employer's
warehouse on a part-time basis.5 They live at the
homes of their respective parents. As reflected herein,
they each own a small number of shares of stock of
the Employer.
Ronald Holthouse, the Employer's controller, testi-
fied that Jeffrey Holthouse, Jerry Holthouse, and Al-
len Edwards 6 perform their work under a common
schedule. He testified that he had personally arranged
their work schedules on several occasions in the past
and in doing so had taken into consideration "any
special activities or any special vacation request that
they might have."7 He testified that during the school
year these three individuals work hours that generally
range from 5 to 9 p.m., Monday through Friday;
from noon to 6 p.m. on Saturday: and from 12:30 to
5 p.m. on Sunday. In addition, the record reflects that
they work in rotation, making it possible for each of
2 S L. Holthouse owns 121.5 shares, and Thomas Holthouse and his wife.
Joy, own 103.5 shares. The combined total referred o in this group includes
the stock owned by Siegfried J. olthouse at the time of his death.
I Of these shares, 955 are held jointly by Ronald iolthouse. son of G
Howard Holthouse, and his wife, Regina
' Jeffrey Holthouse. grandson of G. Howard Holthouse, owns 21 shares,
and Jerry Holthouse, grandson of Siegfried J. Holthouse. owns 12 shares
'While there was testimony that they worked on a full-time basis during
the summer, the Employer's records showed that hey rarely worked as
many hours as regular full-time employees during the summer months of
1978.
, Allen Edwards is the son of Jack and Marcia Edwards Marcia Fdw ards
is the daughter of Flora Holthouse and is a stockholder Allen Edw.ards is a
high school student who works for the t'mploycr on aI hasis similar to that ,of
Jeffrey flolthouse and Jerry Holthouse. The record does not indicate
whether he ',oted in the election. In addition to being a member of the
Employer's board of directors. Jack Edwards ser.es as ssista;nt store super-
visor for certain of the Em ploy er's retail stores
As part-time employees who are attending high school. Jeflrey liolt-
house, Jerry llolthouse and Allen Edwards do not receise paid ,acations as
do other part-time emplosees and tull-time employees within the unit.
them to avoid working more than one shift or work
period during a weekend.
Ronald Holthouse stated that during the summer
months two of these three employees "generally"
work from 8 a.m. to 5 p.m. "or a regular shift," Mon-
day through Friday, while the third works from 5 to 9
p.m., Monday through Friday. As during the school
year, they rotate their workdays, thereby dividing
evening work. The record reflects that the hours of
full-time employees normally begin during the period
from 7 to 8 a.m. and end during the period from 3:30
to 5 p.m. each day, Monday through Saturday.
Employee Marvin Vance gave uncontradicted tes-
timony that on one occasion Jerry Holthouse ar-
ranged to switch his scheduled workday with another
part-time employee so that he could attend a concert.
While the Employer introduced records which
showed that on one occasion Vance worked on his
regularly scheduled day off and was off duty on a
regularly scheduled workday during the same work-
week, there is no showing in the record that this
change occurred for Vance's personal convenience.
Vance further gave uncontroverted testimony that
Jerry Holthouse and Jeffrey Holthouse have lunch
with their fathers about two or three times per week
while they are at work during the summer months.
The record shows that Jeffrey Holthouse. Jerry
Holthouse, and Allen Edwards work under the same
supervision and perform the same functions as do
other warehouse employees who are admittedly
within the unit.
Upon consideration of the record herein, we find
that the interests of Jeffrey Holthouse and Jerry Holt-
house are more closely allied with those of manage-
ment than with those of their fellow employees. They
are related to persons who, collectively own at least
70 percent of the outstanding stock of the Employer.
They are, in addition to being stockholders them-
selves, closely related to certain officers. members of
the board of directors, and persons actively engaged
in the day-to-day management of the Employer's op-
erations who, in turn, are closely related to other offi-
cers and directors of the Company."' Furthermore.
they live at home with their parents and hae social
contact with their fathers at work. It also appears that
they frequently perform work in the warehouse when
no full-time employees or other part-time employees
are present. In these circumstances, we find that they
do not share a community of interest with other em-
ployees. Furthermore, we find that they enjoy a spe-
cial status as result of their relationships to members
Ihe Emplober's time records ndicate that there are fewer lull-time em-
plosees working on Saturda and Monday than on Tuesday through rday
In his reply brief, t-mploer's counsel sriates "Almittledl. 75 per cent of
the corporate stock is held bh indildlualIs who ctln Ira~te their ancestrs to a
coemmon great grandfather "
i ( Plrisfl Drte n 'lorket, Inc, 201 N I RH B 813 19731
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of management." They are in the unique position of
being able to adjust their regularly scheduled hours
for their own personal convenience. We shall there-
fore sustain the challenges to their ballots.'2
As we have adopted the Hearing Officer's recom-
mendation that the challenges to the ballots of David
Schroeder and Albert Jones be overruled, and be-
cause their ballots may affect the results of the elec-
tion, we shall order the Regional Director to open
" Cf. Novi American, Inc.,-Atlania, 234 NLRB 421 (1978).
2 Member Truesdale agrees that the challenges to the ballots of Jeffrey
Holthouse and Jerry Holthouse should be sustained for the reasons given but
would also sustain the challenges for the reasons set forth in his dissent in
Tops Club, Inc., 238 NLRB 928 (1978).
and count the ballots of Schroeder and Jones and to
cause to be served on the parties a revised tally of
ballots including therein the count of said ballots.
ORDER
It is hereby ordered that the Regional Director for
Region 25 shall, pursuant to the Board's Rules and
Regulations, within 10 days from the date of this Or-
der, open and count the ballots of David Schroeder
and Albert Jones, prepare and cause to be served on
the parties a revised tally of ballots, and issue an ap-
propriate certification based on the revised tally of
ballots.
416