Marvin Witherow Trucking

National Labor Relations Board - Board Decisions

May 2, 1977

229 N.L.R.B. 412 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marvin Witherow Trucking and International Wood-
workers of America, Local 3-90, AFL-CIO,
Petitioner. Case 19-RC-8031
May 2, 1977
DECISION AND DIRECTION
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered determinative chal-
lenges in an election held on December 10, 1976,1
and the Regional Director's report recommending
disposition of same.2 The Board has reviewed the
record in light of the exceptions and brief and hereby
adopts the Regional Director's findings and recom-
mendations, as herein modified.
The Regional Director's report indicates that the
Employer is a sole proprietorship owned by Marvin
Witherow and his wife. The challenged voter herein,
William Witherow, is the father of Marvin Witherow
and has worked as a part-time truckdriver for his son
since March 1976. Prior to the time that he began
working for the Employer, William Witherow sold
two trucks and the corresponding logging trailers to
his son, Marvin. According to the Regional Director,
these "transactions appear to have been at arms
length, inasmuch as they included a fair price for the
machinery plus 10% interest." The Regional Direc-
tor's investigation disclosed that William Witherow
works when the regular drivers are either off from
work or ill, or when his son, Marvin, must attend to
his management functions. Since beginning his
employment, the number of hours that William
Witherow has worked per month has ranged from a
high of 55 to a low of 18. Although, due to his greater
experience, he is paid $1 an hour more than the other
employees, he does not participate in the Employer's
insurance program, as do the full-time drivers,
because of his part-time status.
Based on the above-stated facts, the Regional
Director recommended sustaining the challenge to
William Witherow's ballot on the grounds that,
although he shared a limited community of interest
with the other employees, it was manifest that he
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: two for and two against the
Petitioner; there were two challenged ballots.
2 The challenge to the ballot of Keith Cannon is not before us in this
proceeding. The Regional Director for Region 19 issued a complaint in Case
19-CA-9075 alleging that Cannon was discharged in violation of Sec.
8(a)(l) and (3) of the Act. Consequently, the Regional Director found that
229 NLRB No. 64
enjoyed a special status which allied his interests with
those of management.
While we agree with the recommendation of the
Regional Director, we do so for different reasons.
Contrary to the Regional Director, we do not find
the above facts support a finding that William
Witherow enjoys a special status with respect to job-
related benefits or privileges. Rather, in our view, he
has a community of interest separate from that of his
fellow employees and, therefore, we shall exclude
him from the unit on that basis.
Several factors, all of which have been carefully
considered, lead us to the conclusion that we have
reached herein. It is clear from the foregoing that
Marvin Witherow, the son of William Witherow, the
challenged voter herein, is a sole proprietor who is
intimately involved in all phases of his business
enterprise. It is also apparent, in view of the
relatively small size of the unit, that the absence of a
driver, for whatever reason, could operate as a
critical impediment to the success of the Employer's
business. The risk that such a problem will effect the
Employer's operations herein is substantially less
because of the availability of William Witherow to
drive for the Employer whenever the circumstances
require his assistance. A final factor warranting
consideration is that when William Witherow is
working the ratio of relatives to nonrelatives working
for the Employer is high. Thus, if William Witherow
is included in the unit, the Witherow family would
have considerable potential to influence the other
employees with respect to whether they wish to be
represented for collective-bargaining purposes.
Under these circumstances and in view of the
familial bond existing between father and son herein,
we are of the opinion that William Witherow would
have a greater affinity with the interests of manage-
ment than he would with the interests of his fellow
employees. It would contradict human experience to
contend that the relationship between William and
Marvin Witherow is merely that of Employer and
part-time employee. While this relationship may not
always result in easily identifiable special privileges
or working conditions, it establishes an area of
interest not shared by the other employees. 3 Accord-
ingly, as William Witherow does not have a sufficient
community of interest with the other employees, we
resolution of the issues raised by the above-mentioned complaint would be
dispositive of Cannon's eligibility and, since his ballot is determinative, he
directed that further investigation of Cannon's challenge be consolidated for
hearing with the complaint in Case 19-CA-9075. No exception has been
filed with regard to the Regional Director's disposition of the ballot cast by
Cannon.
3 See ParisoffDrive-In Market, Inc., 201 NLRB 813, 814 (1973).
412
agree with the Regional Director's recommendation
that the challenge to his ballot be sustained.4
DIRECTION
It is hereby ordered that the ballot of William
Witherow remain unopened and uncounted. In view
of the fact that the ballot cast by Keith Cannon is
determinative of the election held herein, we order
4 See N. LR.B. v. Caravelle Wood Products, Inc., 504 F.2d 1181 (C.A. 7.
1974), enfg. 200 NLRB 855 (1972), wherein the court indicated that the
Board may, under a community-of-interest standard, exclude employees
from a unit on the basis of family relationship, provided appropriate factual
413
that it be remanded to the Regional Director for
Region 19 for the purpose of arranging a consolidat-
ed hearing with Case 19-CA-9075, as indicated in
the Regional Director's report on challenged ballots
and as ordered by him in his order consolidating
cases and notice of consolidated hearing on com-
plaint and challenged ballot.
findings support the Board's conclusion. Similarly, the court pointed out
that under this test it was not necessary to prove that the employee in
question received special job-related benefits.
MARVIN WITHEROW TRUCKING