American Steel Buck Corp.

National Labor Relations Board - Board Decisions

Dec 24, 1953

107 N.L.R.B. 554 (N.L.R.B. 1953)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I have indicated above, the legislative history demon-
strates that Congress intended by Section 10 (k) to give the
Board the function of arbitrating jurisdictional disputes. As
I stated in my opinion in Juneau Spruce, although the Act con-
tains no standard to guide the Board in making such deter-
mination , the Congress must have known that custom in the
trade and in the area , the constitutions and agreements of the
contending labor organizations themselves , the technological
evolution of the disputed task, and like criteria are those
customarily employed by trade unions and interunion arbi-
trators in adjusting jurisdictional differences . In this case there
not only appears to have been a jurisdictional award by the
parent organization , but a Board certification also is involved.
If I were to undertake to make a determination in this case,
I could not concur in the majority's failure to consider such
factors.
However, for the reasons appearing above, I would hold that
the Board should not make any determination at this stage of the
case, but rather that it should quashthe notice of hearing under
Section 10 (k) and leave the General Counsel free to process the
pending Section 8 (b) (4) (D ) charge in his discretion.
AMERICAN STEEL BUCK CORPORATION and ARCHITEC-
TURAL & ENGINEERING GUILD, LOCAL 66, AMERICAN
FEDERATION OF TECHNICAL ENGINEERS, AFL, Peti-
tioner. Case No. 2-RC-5760. December 24, 1953
AMENDED AND SUPPLEMENTAL DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIDES
Pursuant to a Decision and Direction of Election ,' issued on
July 23, 1953 , an election by secret ballot was conducted on
August 20, 1953, under the direction and supervision of the
Regional Director for the Second Region, among the employees
of the Employer in the unit found appropriate in the Decision.
At the conclusion of the election, the parties were furnished
a tally of ballots, which showed that of approximately 7 eligible
voters, 5 cast valid ballots for the Petitioner, 2 cast valid
ballots against the Petitioner, and 3 ballots were challenged.
As the challenged ballots were sufficient in number to
affect the results of the election, the Regional Director, pur-
suant to Section 102.61 of the Board's Rules and Regulations,
conducted an investigation of the challenged ballots. On
September 11, 1953, the Regional Director issued and duly
served upon the parties his report on challenged ballots,
recommending that the Board sustain the challenges to the
ballots of Norman Ross, Herman Starobin, and A. David Ross.
Thereafter, on September 16, 1953, the Employer filed ex-
'Not reported in printed volumes of Board Decisions.
107 NLRB No 121.
AMERICAN STEEL BUCK CORPORATION 555
ceptions to the Regional Director ' s report. ' On September 18,
1953, the Petitioner filed a statement of its position.
The Board agent challenged the ballots of A. David Ross,
Norman Ross , and Herman Starobin be. ause their names did
not appear on the eligibility list submitted before the election.
The Regional Director in reliance upon the Decision and
Direction of Election, which specifically excluded Norman
Ross, the nephew of the Employer ' s general manager and
treasurer , and Herman Starobin , the son of the Employer's
president , as close relatives of management , sustained the
challenges to their ballots. The Regional Director also sustained
the challenge to the ballot of A. David Ross on the ground that
this employee was a close relative of management and a
supervisor within the meaning of the Act.
The Employer contends that these employees are eligible
to vote and that the Board ' s rule disqualifying close relatives
of management from voting is contrary to the provisions of
the Act. It does not, however, deny or controvert the Regional
Director's finding that A. David Ross is a supervisor.
A. David Ross, who is in charge of the engineering depart-
ment, testified at the representation hearing that he was a
supervisor and was responsible for the hiring and discharging
of several named employees.3 As a result of this testimony,
the Employer's counsel, although he originally sought A. David
Ross's inclusion in the unit , conceded that Ross was an
"acknowledged supervisor and therefore should be excluded."
In view of the foregoing, we find, in agreement with the
Regional Director, that A. David Ross is a supervisor within
the meaning of the Act. Accordingly, we will sustain the
challenge to his ballot.4
Norman Ross , the nephew of the Employer ' s general manager
and treasurer , acts in the capacity of a liaison man between
the employees in the engineering department and management.
As the chief designer, he assigns work at the direction of his
supervisor, A. David Ross, hears employee complaints which
are then transferred to his superiors for adjustment, and
reparts to management the general problems encountered by
the engineering department . All reports and recommendations
by Norman Ross are independently investigated by A. David
Ross or the general manager.
L The Employer 's request for an oral hearing is denied because in our opinion the record
and exceptions adequately present the issues and the positions of the parties
3A. David Ross testified that he hired Murray Kahn, Irving Sussman, and Norman Ross
and that he was responsible for the discharge of Bill Williams Witness Murray Kahn also
testified that he was fired by A David Ross
4However, we do not agree with the Regional Director that A. David Ross should be excluded
from the unit or held ineligible to vote merely because of his family relationship with
officers of the Employer International Metal Products Company, 107 NLRB No 23 In that
case, a majority of the Board (Member Murdock dissenting) reexamined the question of the
eligibility of relatives of management to vote and held that where a relative is not excluded
from the statutory definition of "employee," he will be eligible to vote unless, because of
his family relationship, he "enjoys a special status which allies his interest with those of
management."
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record of the - representation hearing also reveals that
when Norman Ross assumed his duties as chief designer,
he informed employees in the engineering department that
they should come to him for the settlement of grievances
and to discuss requests for wage increases . The general
manager admitted that Norman Ross had the authority to
hear grievances but denied that Ross had the authority to
adjust them.5
In these circumstances , it is clear that Norman Ross enjoys
a special status which allies his interests with those of
management .6 For this reason , we will sustain the challenge
to his ballot.
Herman Starobin is the son of the Employer ' s president.
As it does not appear that Herman Starobin's father is the
owner of the corporate Employer, we find that he is an em-
ployee and not an "individual employed by his parent" within
the meaning of Section 2 (3) of the Act, and is therefore included
in the unit.T As there is no evidence that, because of his
relationship to an officer of the corporation , Herman Starobin
enjoys a special status which allies him with management,
we further find that he is eligible to vote and that the challenge
to his ballot should be overruled. However, as this ballot will
not affect the results of the election , we will not order that
it be opened but will certify the Petitioner as the duly elected
collective - bargaining representative of the employees in the
appropriate unit.
We will also amend the Board ' s Decision and Direction of
Election to include Herman Starobin in the unit and to exclude
A. David Ross and Norman Ross for the reasons set forth
above.
[The Board amended the Decision and Direction of Election
of July 23, 1953, by including Herman Starobin and excluding
A. David Ross and Norman Ross.]
[The Board certified Architectural & Engineering Guild,
Local 66, American Federation of Technical Engineers, AFL,
as the designated collective - bargaining representative of the
employees of American Steel Buck Corporation in the unit
found to be appropriate.]
5 A David Ross also testified that he was aware that Norman Ross had instructed employees
to discuss their grievances with him, although he did not know that Norman Ross had made
statements pertaining to wage increases There is no evidence that the Employer took any
steps to countermand these instructions.
6Cf. International Metal Products Company, supra.
7Cf P. A Mueller and Sons, Inc ., 105 NLRB 552 . Member Murdock would exclude Herman
Starobin from the appropriate unit for the following reason : While it may be true that Starobin
technically is not "employed by his parent," the fact that he is the son of the Employer's
president so closely identifies him with the Employer that the same considerations which
motivated Congress to exclude individuals employed by their parents from the coverage of
the Act should, Member Murdock believes , cause the Board, in the exercise of its discretion,
to exclude Starobin from the unit in this case . See N L. R B v Hofmann, 147 F. 2d 679
(C. A 3)