American Chemical Corp.

National Labor Relations Board - Board Decisions

Nov 26, 1974

215 N.L.R.B. 94 (N.L.R.B. 1974)

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Chemical Corporation and Congreso de
Uniones Industriales de Puerto Rico, Petitioner.
Case 24-RC-5376
November 26, 1974
DECISION AND DIRECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret-ballot election was con-
ducted on May 31, 1974,` among the employees in the
stipulated unit described below. The tally of ballots
furnished the parties show that of approximately 32
eligible voters, 11 cast ballots for and 4 cast ballots
against the Petitioner, and 17 were challenged.
Thereafter, the Employer filed objections to the
conduct of the election.
As the challenged ballots were sufficient in number
to affect the results of the election, the Regional Direc-
tor, in accordance with the National Labor Relations
Board Rules and Regulations, conducted an investiga-
tion and on August 7 issued and served upon the parties
his Report on Objectionsz and Challenged Ballots, in
which he recommended that the challenged ballots of
10 employees including Georgina Cubas, Teodoro Col-
lazo, and Abel Seda be sustained; that the other 7
challenges3 be overruled and the ballots opened and
counted; and that a revised tally of ballots be issued.
Thereafter, the Employer filed a request for review
in the nature of exceptions to the Regional Director's
recommendation that the challenges to the ballots of
Cubas, Collazo, and Seda be sustained.
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.
1. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the policies
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 concerning
the representation of the 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 constitute a unit appropriate for the
All dates below refer to 1974
2 As indicated in the report, the Regional Director granted the Employer's
request for withdrawal of its objections.
3 Jose de Soto , Ramon Niebla, Angel Manuel Diaz Cruzado, Ramon
Elpidio Narvaez, Orlando Rodriguez Calderon, Francisco Santos, and Jose
Vizcarrondo Castro
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees at the
Employer's plant in Urb. Industrial Luchetti, Baya-
mon, Puerto Rico, excluding all office clerical em-
ployees, guards, and supervisors as defined in the Act.
5. The Board has considered the Regional Director's
report, the Employer's request for review, and hereby
adopts the Regional Director's findings and recom-
mendations, as modified herein.
The Regional Director found as follows with respect
to Collazo and Seda: They were employed by the Em-
ployer on May 23 as permanent replacements for two
economic strikers. As they began their employment
after the eligibility date of May 22, they were ineligible
to vote.
The Employer, which concedes that Collazo and
Seda did not start working until the morning of May
23, contends, inter alia, that they were hired on May
22 and were therefore eligible to vote.
In determining employee eligibility, the Board has
long adhered to the rule that, in order to be eligible to
vote, an individual must be employed and working on
the established eligibility date, unless absent for one of
the reasons set out in the direction of election or the
stipulation for certification upon consent election.'
Under this rule, the Board has held consistently that
employees who are hired on the eligibility date, but do
not report for work until a later date, are ineligible to
vote. Thus, even assuming that Collazo and Seda were
hired on the eligibility date of May 22, we find that they
were ineligible to vote. Accordingly, we agree with the
Regional Director that the challenges to their ballots
should be sustained.
However, for the reasons given below, we find merit
in Respondent's contention that Georgina Cubas was
eligible to vote.
The Regional Director made the following findings
concerning Georgina Cubas:
She is the sister of President Jose M. Cubas and has
been employed in the Puerto Rico plant since it was
opened 12 years ago. Prior thereto, Cubas was em-
ployed as a supervisor at her brother's plant in Cuba.
Georgina Cubas is the only part-time female produc-
tion employee and her duties consist of packing items
for shipment or distribution. Due to her poor health,
her brother, among other company officials, reduced
her workweek from the normal 40 hours to 20 and she
rides to and from the plant with her brother who also
works 20 hours weekly because of his advanced age of
78 years. She lives with her husband, a salesman for the
firm, in a house immediately adjacent to that occupied
by her brother. Of the 23 employees in the unit, 19 earn
4 See RoyN Lotspeich Publishing Co., 204 NLRB 517 (1973), and cases
cited therein.
AMERICAN CHEMICAL CORPORATION
a lower wage than Georgina Cubas but the Employer
alleges her higher wage is due to her seniority, a state-
ment borne out by comparison with other long term
hourly paid employees' wages.
The second largest single block of stock in the firm
is controlled by members of the Cubas family.
However, this interest does not constitute a majority of
the stock and Georgina Cubas does not appear as a
stockholder.
The Regional Director concluded, "in view of the
special circumstances surrounding [Georgina tubas']
employment at the plant, [that] she cannot share a
community of interest with other unit employees...."
The Employer contends that Georgina Cubas does
not enjoy a special status at the Employer's plant which
allies her interests with those of management. We
agree.
It is well settled that the mere coincidence of a family
relationship between an employee and a member of
management does not negate the mutuality of employ-
ment interest which an individual shares with fellow
employees, ' absent evidence that because of such rela-
tionship the employee in question enjoys a special
status which allies the employee's interests with those
of management.'
Contrary to the Regional Director, we find no evi-
dence of special status. As his report states, the higher
wage rate received by Georgina Cubas stems from her
seniority and is not attributable to her kinship with the
Employer's president. Nor is there any evidence to
show that the adjustment in her hours was not available
to other employees who were in poor health. Although
the Cubas family owns a minority of the Employer's
stock, Georgina Cubas herself is not a stockholder and
there is no evidence that she is economically dependent
on her brother.' Accordingly, in the absence of a
demonstration of special status for this employee, we
find that Georgina Cubas was eligible to vote in the
election. We shall therefore direct that the Regional
Director open and count the ballot of Georgina Cubas
as well as those of the seven employees whose chal-
lenges were overruled and prepare and serve upon the
parties a revised tally of ballots.
DIRECTION
It is hereby directed that the Regional Director for
Region 24 shall, within 10 days from the date of this
Direction, open and count the ballots of Georgina
5 Adam D. Goettl and Gust Goettl, d/b/a International Metal Products
Corporation , 107 NLRB 65 , 66-67 ( 1953), Pargas of Crescent City, Inc., 194
NLRB 616 ( 1971), Weyerhaeuser Company, Soft Disposable Division, 211
NLRB 1012 (1974)
6 Cf Caravelle Wood Products, Inc, 200 NLRB 855 (1972 ), Economy
Cash Stores, Inc, a/k/a Cardinal Food Town, 202 NLRB 930 (1973)
95
Cubas, Jose de Soto, Ramon Niebla, Angel Manuel
Diaz Cruzado, Ramon Elpidio Narvaez, Orlando Ro-
driguez Calderon, Francisco Santos, and Jose Vizcar-
rondo Castro, and thereafter prepare and serve upon
the parties a revised tally of ballots, upon the basis of
which he shall issue the appropriate certification.
MEMBER FANNING, dissenting in part and concurring in
part:
Contrary to my colleagues, I would adhere to the
Regional Director's conclusion that Georgina Cubas,
sister of the Employer's president, Jose M. Cubas, was
ineligible to vote in the election because she does not
share a community of interest with the other employees
in the appropriate unit.'
Under Section 9(b) of the Act, the Board has the
responsibility of determining the unit appropriate for
collective bargaining "in order to assure to employees
the fullest freedom in exercising the rights guaranteed
by the Act. . . ." The Board has long held that the
best way to assure this freedom is to include in the
unit found appropriate only those employees who
share a community of interest with each other.'
Members of the Cubas family control the second
largest block of the Employer's stock. As indicated
above, the top official of the Employer is President Jose
M. Cubas. In addition to his granting Georgina Cubas
the privilege of a reduced workweek, the president and
his sister regularly ride to and from the plant together
and live in adjoining homes.
As the Board recognized in ParisoffDrive-In Market,
supra, and Cardinal Food Town, supra, where the own-
ers of a substantial block of an employer's stock are
members of the same family and related to one another
as well as to the challenged employee and one of the
owners is president of the company, it is' more likely
that the business interests of the company will be syn-
onymous with the interests of the family to which the
employee belongs. Thus, Georgina Cubas' interest as a
member of the governing family may well outweigh her
interest as an employee, and, to that extent, her interest
may be entirely different from the interest of the other
employees whose sole stake in the Company is that they
work there.
As the brother of Georgina Cubas is the president
and active in the management of the Employer, it is a
"virtual certainty" that as his sister she "would get a
more attentive and sensitive ear to [her] day-to-day and
long-range work concerns than would other
employees."' While her accessibility to management
7 However, I agree with my colleagues ' adoption of all other recommenda-
tions of the Regional Director
8 Economy Cash Stores, Inc., a/k/a Cardinal Food Town, supra; Parisoff
Drive-In Market, Inc., 201 NLRB 813 (1973), Caravelle Wood Products,
Inc., supra.
9 Cardinal Food Town, supra.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through her kinship and daily companionship with the
president may not always result in easily identifiable
special privileges or favorable working conditions, the
fact that she has this special access to him and is herself
a member of the governing family gives her a status and
area of interest not shared by the rest of the employees.
In view of the foregoing, I would conclude that the
interests of Georgina Cubas are more closely allied
with those of management than with those of her fellow
employees . Accordingly, I would sustain the challenge
to her ballot and direct that it remain unopened and
uncounted.
I