Pargas of Crescent City, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1971

194 N.L.R.B. 616 (N.L.R.B. 1971)

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pargas of Crescent City, Inc., and Teamsters, Ware-
housemen & Auto Truck Drivers Local 684,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
Petitioner. Cases 20-RC-9660 and 20-RC-9661
December 16, 1971
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director on December 16,
1970, an election by secret ballot was conducted in the
above-entitled proceeding on December 29, 1970,
under the direction and supervision of the Regional
Director for Region 20 (San Francisco, California).
Upon the conclusion of the election, a tally of ballots
was furnished the parties in accordance with National
Labor Relations-Board Rules and Regulations.
The tally of ballots shows that there were approxi-
mately 10 eligible voters, 5 of whom cast ballots for
the Petitioner and 4 cast ballots for the Intervenor.'
One ballot was challenged.
The challenged ballot is sufficient to affect the
results of the election and, on January 6, 1971, the
Petitioner filed objections to conduct affecting the
results of the election. The Regional Director con-
ducted an investigation of the Petitioner's objections
and the challenged ballot, and, thereafter, on March
12, 1971, issued and served on the parties his Report
on Challenged Ballot and Objections. In his report,
the Regional Director found all of the Petitioner's
objections to be without merit and recommended to
the Board that they be overruled in their entirety. He
further recommended that the challenge to the ballot
cast by Margaret W. Kellenberg be overiuled and that
the Board direct that her ballot be opened and
counted. Thereafter, Petitioner timely filed Excep-
tions to Report on Challenged Ballot and a brief in
support thereof, but no exceptions were filed to the
Report on the Objections.
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.
Upon the entire record in this proceeding, the Board
finds:
1. The Employer is engaged in commerce within
1 Ward's Propane Service Employees'Association.
2 In the absence of exceptions thereto, we adopt pro forma the Regional
Director's recommendations to overrule the objections.
3 E.g., International Metal Products Company, 107 NLRB 65; Browne
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. Petitioner and Intervenor are labor organiza-
tions 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) and (7) of the Act.
4. The parties stipulated, and we find, that the
following 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 driver-salesmen, servicemen and clerical em-
ployees employed by the Employer at its Crescent
City, California operation, excluding all other
employees, guards and supervisors as defined in
the Act.
5. The Board has considered the Regional Direc-
tor's report and exceptions to the challenged ballot,
and hereby adopts the Regional Director's findings
and recommendations.2
The recommendation of the Regional Director,
which we have adopted, rests upon a long, well-
established line of Board decisions holding that the
mere coincidence of a family relationship between an
employee and a member of management does not
without more warrant the exclusion of that employee
from a bargaining unit in which his inclusion would
otherwise be appropriate.3 The Scandia case4 relied
upon by our dissenting colleague to support his
proposed reversal of the Regional Director, is wholly
distinguishable from this case, as the relationship
there involved the partial owner of a closely held
corporation, who was in effect a partner-owner of the
enterprise, whereas here the relationship involves a
manager who is not at all an owner. Nor do our
colleague's other arguments persuade us that we
should abandon the present policy of considering
each case on its own facts, and return the virtually per
se exclusionary rule that existed prior to the decision
in International Metal Products, supra.
Mrs. Kellenberg would of course be excluded
from the unit if because of her relationship she
enjoyed a special status which allied her interests to
those of management.5 The Regional Director found,
however, that Mrs. Kellenberg did not enjoy such a
status, and neither the Petitioner nor our colleague
cite any facts which would warrant a contrary
conclusion. In these circumstances we find no basis
for reversing the Regional Director's conclusions as to
Mrs. Kellenberg's eligibility.
and Buford, 145 NLRB 765; Supermarket of Dunbar, Inc., 178 NLRB 206.
4 Foam Rubber City #2 of Florida, Inc., d/b/a Scandia, 167 NLRB 623.
5 International Metal Products, supra
194 NLRB No. 101
PARGAS OF CRESCENT CITY, INC.
As we have adopted the Regional Director's
recommendation that the challenge to the ballot of
Margaret W. Kellenberg be overruled, and because
this ballot may affect the results of the election, we
shall direct the Regional Director to open and count
Kellenberg's ballot and cause to be served on the
parties a revised tally of ballots including therein
count of said ballot.
DIRECTION
It is hereby directed that, as part of his investigation
to ascertain the representative for purposes of
collective bargaining with the Employer, the Regional
Director for Regional 20 shall, pursuant to the
Board's Rules and Regulations, open and count the
ballot cast by Margaret W. Kellenberg, prepare and
cause to be served upon the parties a revised tally of
ballots, including therein the count of the above-
mentioned ballot, and thereafter proceed in accord-
ance with Section 102.70 of the Board's Rules and
Regulations.
MEMBER JENKINS, dissenting:
The sole issue herein is the voting eligibility of
Margaret W. Kellenberg, wife of the Employer's local
manager. Her ballot was challenged by the Petitioner
on the basis of, inter alia, the fact that she is the wife of
the Employer's local manager. The Employer's
establishment has only 10 employees in the unit of
driver-salesmen, servicemen, and clerical employees.
The Employer's local manager appears to be the only
supervisor and only management representative at
this facility who possesses authority concerning terms
and conditions of employment of the employees
there.
Mrs. Kellenberg has been employed at the present
establishment at least since 1961, performing book-
keeping and related clerical functions in the office on
a part-time basis. She works an average of over 30
hours per week, is paid on an hourly basis, and works
under the immediate supervision of the manager (her
husband) and the office manager. There is no
evidence, and no contention, that she has or exercises
any supervisory or managerial authority..
Section 2(3) of the Act provides that "the term
employee . . . shall not include . . . any individual
employed by his . . . spouse ...." Although Mrs.
Kellenberg is not employed by her husband but by the
Employer corporation at the plant where her-husband
is the manager, I am of the opinion that this
relationship suffices to preclude her being an
"employee" within the meaning of the Act. I believe
this situation is comparable to excluding the wife of a
partial owner of a closely held corporation .6
617
The practice of excluding close relatives of manage-
ment rests on a further practical ground.
Under Section 9(b) of the Act, we are charged by
Congress with the responsibility to find units appro-
priate for collective bargaining that assure to employ-
ees the fullest, freedom in exercising the rights
guaranteed by the Act. Moreover, the Board may, as a
matter of discretion, exclude employees from a unit
where the circumstances establish a different
"community of interest." In implementing this re-
sponsibility the Board has traditionally included in
the bargaining unit those employees who have a
community of interest with their fellow employees,
but we have excluded individuals whose interests are
more closely identified with those of management.
This is the same reason that supervisors as defined in
the Act are excluded from appropriate units-their
interests are basically allied with management.
In determining whether employees, who are not
expressly excluded by the Act from units of rank-and-
file employees, should nevertheless be excluded, the
Board must balance the statutory right of an employ-
ee to engage in collective bargaining and the right of a
collective bargaining agent for unit employees to seek
and achieve legitimate gains for them. The inclusion
of a close relative of management in a bargaining unit
with other employees in a particular plant may as
effectively hinder the employees in organizing them-
selves and bargaining collectively as would the
intrusion of any representative of management. Thus,
the wife of the manager in a small plant (only 10
employees involved herein) may effectively deal with
her husband as management, regarding hours of
employment, wages, etc., on a different basis than an
employee who must deal with management through a
statutory representative because that employee has no
effective alternative, such as a family tie. Here, for
example, the wife of the manager, if eligible to vote,
could well deprive nonfamily employees of the very
representation which a majority of those employees
desire, even though the other employees hardly have
the same access to management. Plainly, in the
selection of a bargaining representative, the direct
interest the wife of a manager may have in the
economics of the establishment could be in conflict
with employees whose primary interest is in wages
and similar direct economic returns.
Not only may Mrs. Kellenberg's inclusion in the
unit hinder or bar the employees in their organization-
al efforts, but her future participation in union
matters would necessarily be suspect and possibly
divisive. Her presence at union meetings would,
considering the likelihood of her conveying informa-
tion to the Employer (her husband, the only employer
6 See Foam Rubber City #2 of Flonda Inc., d/b/a Scandia, 167 NLRB
623.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
official at this facility ), inhibit adequate and accurate
expression of views and freedom of action on the part
of the membership ; and even if it did not, communi-
cation of such internal matters could effectively
undermine or impair the ability of the Union to
achieve its legitimate goals. Indeed , in the eyes of the
other employees in the unit a wife of the manager,
although she may work alongside those employees,
,learly has interests intimately allied with manage-
nent . Accordingly , the employees well may view with
suspicion her membership in the bargaining unit,
especially where , as here , the employing enterprise is
small. The disruption and friction necessarily attend-
ant upon her participation in union matters would
impair , and interfere with the union's ability to
represent the others in the unit to the fullest extent. In
these circumstances, I would sustain the challenge of
the ballot case by Margaret W. Kellenberg, the wife of
the manager , and direct that it remain unopened and
uncounted.