Missouri Electric Works, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1974

212 N.L.R.B. 124 (N.L.R.B. 1974)

124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Missouri Electric Works, Inc. and Donald A. Fuhrm-
ann, Petitioner, and Local # 1, International Broth-
erhood of Electrical Workers , AFL-CIO. Case
14-RD-407
June 27, 1974
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 14 on October 10, 1973,1 an election was
conducted on October 29. Upon the conclusion of the
election, the parties were furnished with a tally of
ballots which showed that of approximately 11 eligi-
ble voters, 11 valid ballots were cast, of which 1 was
for and 1 against the Petitioner and 9 were challenged.
The challenged ballots are sufficient in number to
affect the results of the election.
In accordance with the National Labor Relations
Board's Rules and Regulations the Regional Director
conducted an investigation and on November 27 is-
sued and duly served upon the parties his Report on
Challenged Ballots and Recommendations in which
he recommended that certain challenges be overruled
and others be sustained. Thereafter, the Employer
and the Union filed timely exceptions to the Regional
Director's Report.
On February 12, 1974, the National Labor Rela-
tions Board issued an Order directing hearing for the
purposes of receiving evidence to resolve the issues
raised by the Employer's and Union's exceptions, and
providing that the Hearing Officer should prepare
and cause to be served upon the parties a report con-
taining resolutions of the credibility of witnesses, find-
ings of fact, and recommendations to the Board as to
the disposition of said issues.2
Pursuant to the Board's order a hearing was held on
March 12 and 13, 1974, before Michael B. Ryan,
Hearing Officer. All parties participated in the hear-
ing and were afforded full opportunity to examine
and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. On April 4, 1974, the
Hearing Officer issued and served upon the parties his
Report and Recommendations on Challenged Bal-
lots, in which he overruled three and sustained four
challenges.
Pursuant to the provisions of Section 3(b) of the
i All events herein occurred in 1973, except as otherwise stated
2 In the absence of exceptions, the Board adopted, pro forma, the Regional
Director's recommendation that the ballots of Gary Delay and John Eldridge
be opened and counted after the other seven challenges have been resolved
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. The labor organization involved claims to repre-
sent 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) and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees and
truckdrivers employed at the Employer's facility
in Cape Girardeau, Missouri, excluding office
clerical and professional employees, guards, and
supervisors as defined in the Act.
5. The Board has duly considered the Employer's
and Union's challenges, the Hearing Officer's report,
the Employer's and Union's exceptions thereto, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Hearing Officer.'
DIRECTION
It is hereby directed that the Regional Director for
Region 14 shall, pursuant to the Board's Rules and
Regulations, and within 10 days of the date of this
Decision and Direction, open and count the ballots of
3 We adopt the recommendation of the Hearing Officer to sustain the
challenge to the ballot of Thomas Giles solely on the ground that Giles is not
an employee, within the meaning of the Act, Cerm Motor Sales, Inc, 201
NLRB 918 We note that Thomas' parents are the sole owners of all of the
capital stock of the business Thus, there can be no doubt that Thomas Giles
is employed solely by his parents, who are the sole owners of the business.
We find it unnecessary to pass on the additional findings of the Hearing
Officer that Giles had no community of interest with the other employees.
In the absence of exceptions we adopt, pro forma, the Hearing Officer's
recommendation that the challenges to the ballots of Luther Rhymer, Jim-
my Lancaster, and Kenneth Menz be overruled
In adopting the above recommendation of the Hearing Officer to sustain
the challenge to Giles on the ground that Giles is not an employee, Chairman
Miller observes that, while there has been some judicial criticism with respect
to the Board's Foam Rubber City doctrine (Foam Rubber City #2 of Florida,
Inc, doing business as Scandia, 167 NLRB 623) wherein it interpreted the
statutory exclusion of "any individual employed by his parent or spouse" to
extend to children of "substantial" shareholders, he perceives no arguable
basis for not applying the statutory exclusion based on the facts of the instant
case For this reason, he concurs in the decision of his colleagues to find it
unnecessary to pass on the additional findings of the Hearing Officer that
Giles had no community of interest with the other employees
212 NLRB No. 19
MISSOURI ELECTRIC WORKS, INC. 125
employees Gary Delay, John Eldridge, Luther Rhym- It is hereby ordered that the above-entitled matter
er, Jimmy Lancaster, and Kenneth Menz, and there- be, and it hereby is, remanded to the Regional Direc-
after issue a revised tally of ballots, and an tor for Region 14 for the purpose of carrying out the
appropriate certification based thereon. Board's direction herein.