International Metal Products Co.

National Labor Relations Board - Board Decisions

Nov 16, 1953

107 N.L.R.B. 65 (N.L.R.B. 1953)

INTERNATIONAL METAL PRODUCTS COMPANY 65
who was charged with the proper conduct of the election,
acquiesced, and did not pursue the matter further. On the basis
of the present record we are not able to determine the status
of the receiver-checker and his eligibility to serve as an
observer in a Board-conducted election. The Employer's
packing season, moreover, is too short to make an adequate
investigation and determination of the issue, and to conduct
another election. Accordingly, under all the circumstances,
the Board concludes it would not effectuate the policies of the
Act to set this election aside. 3
Because no labor organization won the election, we shall
therefore issue a certification of results of election to that
effect. This action, however, is without prejudice to the Peti-
tioner to file a new petition for representation and certification
of representatives prior to the time when the 1954 packing
season opens.4
[The Board certified that a majority of the valid ballots was
not cast for United Fresh Fruit and Vegetable Workers, Local
Industrial Union No. 78, CIO, and that this labor organization is
therefore not the exclusive representative of the employees of
the Employer in the unit heretofore found appropriate.]
Member Murdock took no part in the consideration of the
above Supplemental Decision and Certification of Results of
Election.
3Chairman Farmer would overrule this objection on the ground that the Union waived its
right to object by withdrawing its objection prior to the election.
4 We consider that the 39 ballots cast for the Petitioner in the recent election constitute a
sufficient showing of interest among employees in the appropriate unit to support the enter-
tainment of a new petition.
ADAM D. GOETTL AND GUST GOETTL, d/b/a INTERNA-
TIONAL METAL PRODUCTS COMPANY ' and UNITED
STEELWORKERS OF AMERICA, CIO, Petitioner. Case
No. 21 - RC-3187. November 16, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Floyd
C. Brewer, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
2. The labor organizations involved claim to represent
certain employees of the Employer.
i The Employer's name appears as amended at the hearing.
107 NLRB No. 23.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Sections 2 (6) and (7) of the Act.
4. The parties are in general agreement that a unit of all
production and maintenance employees at the Employer's
evaporative cooler manufacturing plant, Phoenix , Arizona, ex-
cluding office clerical employees, watchmen, guards , profes-
sional employees , foremen, and all other supervisors as
defined in the Act, is appropriate. Apart from a disagreement
as to phraseology to be used in the description of certain
clericals ,' the only issue concerns the status in the unit of
certain individuals who are related by blood or marriage to
the partners, Adam and Gust Goettl.
The Employer listed the names and relationships of the
individuals involved,' and, relying upon the Sexton Welding
case,4 urged that all but those expressly excluded from the
definition of "employee" under Section 2 (3) of the Act, should
be included in the bargaining unit and should be deemed eligible
to vote in the election , unless otherwise excluded . Thus, the
Employer would exclude only a son, Donald Goettl, under Sec-
tion 2 (3) of the Act, and a brother, John Goettl, who is the
plant superintendent . The Petitioner and Intervenor, Sheet
Metal Workers International Association, Local 359, AFL,
relying upon the Board ' s decision in the recent Mueller case, 5
as well as the decision in an earlier proceeding involving this
Employer, 6 contend that the relatives of management involved
herein are ineligible to vote and should be excluded from the
unit.
The Board has, over a period of years, evolved a policy of
excluding from bargaining units certain relatives of manage-
ment in addition to those specifically excepted under the defini-
tion of "employee" in Section 2 (3) of the Act. This policy,
having its authority in the Board ' s discretionary powers in
determining the appropriate unit under Section 9 (b), developed
from a determination that certain close relatives of manage-
ment lacked a sufficient community of interest with other
employees in t4 a bargaining unit to warrant their inclusion
2 The Employer objected to listing among the inclusions the term "plant clericals " because
it was not sure what employees that term would cover . However , the Employer did not urge
the exclusion of any job classification which would fall within this general term, and the only
category of employee referred to at the hearing which may fall within the term "plant clercial"
was shipping and receiving employees whom the Employer indicated it would regard as part of
production and maintenance . As the disagreement appears to be one of unit description rather
than scope, we shall eliminate the phrase "plant clericals," and specifically include shipping
and receiving employees However, this is not intended to exclude any classification of em-
ployee customarily included in production and maintenance units as plant clericals
3 Involved are individuals with relationships to Adam and Gust Goettl as follows: Donald
Goettl, son; John Goettl, brother; Albert Goettl, brother, George Thomas, brother-in-law;
Emil Goettl, nephew; Phillip Goettl, nephew; Ernie Bauer, nephew by marriage, Ralph Hill,
nephew by marriage; and Barbara Ann Goettl , neice by marriage.
4N L R. B v. Sexton Welding Co , 203 F. 2d 940 (C A. 6), denying enforcement of 100
NLRB 344
5 P. A. Mueller and Sons, Inc., 105 NLRB 552.
6International Metal Products Company, 104 NLRB 1076.
INTERNATIONAL METAL PRODUCTS COMPANY 67
therein. However , it appears that what was originally an
evaluation and weighing of interests , wherein recognition was
given to ties created by family kinship, became under this
policy an irrebutable conclusion that the mere existence of such
a relationship within a given area negated the possibility of
the existence of any community of interest.
Reexamination of this policy leads us to the conclusion that
its automatic application does not warrant continuation. We are
convinced that the mere coincidence of a family relationship
between an employee and his employer does not negate the
mutuality of employment interest which an individual shares
with fellow employees, absent evidence that because of such
relationship he enjoys a special status which allies his interests
with those of management . In the instant case, Donald Goettl,
employed by his parent , and John Goettl, a supervisor , are not
employees within the meaning of Section 2 (3) of the Act and
accordingly are excluded from the unit herein found appropriate.
All other relatives listed in this case are employees within
the meaning of Section 2 (3) of the Act. As we have found that
family relationship, in and of itself , is an insufficient ground
upon which to establish a finding of a lack of interest in common
with other employees in the unit, we find that all relatives who
are employees within the meaning of the Act, and not dis-
qualified on other grounds , are properly a part of the appro-
priate unit , and are entitled to vote in the election herein
directed.
We find that all production and maintenance employees at the
Employer's evaporative cooler manufacturing plant at Phoenix,
Arizona, including leadmen and shipping and receiving em-
ployees, but excluding Donald Goettl, all office clerical em-
ployees, watchmen, guards , professional employees, Plant
Superintendent John Goettl, foremen, and all other supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
Member Murdock, dissenting in part:
I would continue the Board precedent of excluding from
bargaining units close relatives of management, as a sound,
salutary, and time-tested practice which has existed from the
earliest days of Board history, which was left unchanged and
sanctioned by the Congress in the 1947 amendments to the Act,
and which the Board only recently reiterated and reexplicated
in its decision in P. A. Mueller and Sons, Inc ., 105 NLRB 510.
The Mueller case (in which I did not participate ) sets forth
in clear terms the essential factors which, in my view, still
require the result adhered to by the Board in the past, in these
words:
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board's policy of excluding such near relatives [a
son and nephew of the corporation president] is based on
Section 9 (b) of the Act, under which the Board must in
every case determine the unit appropriate for bargaining
purposes. In making this determination, the Board long
has excluded fromthe appropriate unitthose employees who
lack sufficient interests in common with the employees
included in the unit. The Board early decided in this con-
nection that the familial bond between an employer and em-
ployee is in certain cases so close as to'remove the near
relative from the "community of interest" shared by the
other employees. The interests of such near relatives are
identified not with their fellow-workers, but with manage-
ment itself.
The practice of excluding close relatives of management
rests on a further practical ground. Pursuant to Section
9 (b), the Board must determine the bargaining unit that
will "assure to employees the fullest freedom in exercising
the rights guaranteed by this Act," including the right to
organize among themselves and to bargain collectively
without interference, restraint or coercion. The inclusion
of a close relative of the employer in a bargaining unit
with the other employees in a particular plant may as
effectively hinder the employees in organizing themselves
and bargaining collectively as would the intrusion of any
representative of management. In the eyes of the other
employees, a son or nephew of the employer, although he
may work with other workers, is intimately allied with
management . Accordingly, the employees well may view
with suspicion his membership in the bargaining unit,
especially where, as here, the employing enterprise is
small and closely held.
The Board's interpretation of Section 9 (b) as granting
it discretion to exclude close relatives prevailed under
the original Act. Congress did not in any respect alter
this practice in the amended Act. [Citation of cases
omitted.]
These were the uncomplicated considerations underlying
the practice of excluding close relatives of management which
in essence the Board consistently relied upon through the years,
as a reading of the cases clearly shows. The early Board cases
are in this respect indistinguishable from the later ones. I can
find no supporting basis for the purported summary historical
analysis of Board precedents which the majority makes as
follows: ". . . it appears that what was originally an evaluation
and weighing of interests, wherein recognition was given to
ties created by family kinship, became under this policy an
irrebuttable conclusion that the mere existence of such a
relationship within a given area negated the possibility of the
existence of any community of interest." If the suggestion of
INTERNATIONAL METAL PRODUCTS COMPANY 69
my colleagues is that such a consluion should be rebuttable,
what evidence is there in this case to rebut the conclusion?
But it appears that a new rule is announced in the majority
decision in this case which establishes in practical effect the
"irrebuttable conclusion" for the inclusion of close relatives
of management in the unit . Thus, under the new rule, to
warrant exclusion from the unit of a close relative ( other than
"any individual employed by his parent or spouse "--Section
t (3) of the Act), it must be affirmatively shown that "because
of such relationship he enjoys a special status which allies
his interests with those of management ." Such evidence, it
appears to me, is virtually foreclosed . For it must be appre-
ciated that apart from the fact itself of the existence of a
close family relationship , there is as a practical matter little
probative evidence that can effectively be offered to establish
the necessary link with management to justify exclusion under
the new rule . Moreover , as a matter of good administration I
see no reason why the Board should clutter up its records and
unnecessarily multiply the issues to be decided in making unit
determinations by making microscopic examinations of the
exact extent to which each relative involved in a case has
achieved some special status Dr benefit by reason of the familial
bond . If the contention is made that John Doe has received a
raise or been given a promotion after 6 months because he is
a close relative of the employer and the employer asserts that
it was because the quality of his work was of a higher order
than that of his other employees , are we to dissipate our
energies to litigate fully and decide such questions?
I do not read ( nor does the majority opinion even so contend)
the language in the amended Act which explicitly excludes from
the definition of employee " any individual employed by his
parent or spouse " as requiring , that an individual employed by
his son , or daughter , or brother , or sister , or other close
relative , must be included in the unit , excepting only where it
can be affirmatively and indpendently , shown that because of
the family relationship , the interests of such an individual are
allied with management. Accordingly , I would exclude from the
unit in this case those individuals who would have been excluded
under past holdings of the Board as close relatives of the em-
ployer.
I further note that the action of the majority in changing the
Board ' s rule on the exclusion of close relatives in this case
prejudices the Petitioner and Intervenor who were not under
notice at the time of the hearing thatthey had a burden to show
that special status had been accorded the relatives here in order
to get them excluded.