Pandick Press Midwest, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1980

251 N.L.R.B. 473 (N.L.R.B. 1980)

PANDICK RESS MIDWEST, INC. 473
Pandick Press Midwest, Inc. and Chicago Typo-
graphical Union No. 16, affiliated with Interna-
tional Typographical Union, AFL-CIO, Peti-
tioner. Case 13-RC-15259
August 25, 1980
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Pursuant to authority granted it under Section
3(b) of the National Labor Relations Act, as
amended, a three-member panel has considered ob-
jections and challenges to an election held on De-
cember 13, 1979,1 and the Regional Director's
report recommending disposition of same. The
Board has reviewed the record in light of the ex-
ceptions and briefs and hereby adopts the Regional
Director's findings and recommendations, as modi-
fied herein.
In his report, the Regional Director recommend-
ed that the challenges to six ballots be overruled
and the challenge to one ballot be sustained. The
Regional Director further recommended that the
Employer's Objection I be sustained,2 and that, if,
upon counting the overruled challenged ballots, the
Petitioner had obtained a majority, the election be
set aside based on this objection. We agree with
the Regional Director's recommendation to over-
rule the challenges to the ballots of employees
Barlin, Mikels, Ryan, Whitlow, and Assarian, 3 and
to sustain the Employer's Objection . For the fol-
lowing reasons, however, we disagree with his rec-
ommendations to overrule the challenge to the
ballot of Cathyann Garippa and to sustain the chal-
lenge to the ballot of Elizabeth Pflum.
' The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election The tally was 18 for, and 12 against. the
Petitioner; there were 7 challenged ballots, a sufficient number to affect
the results.
2 He made no recommendations as to the remaining five objections.
3 Member Truesdale is of the opinion that the challenge to the ballot
of employee Sandra Assarian raises substantial and material issues of fact.
and would remand this proceeding to the Regional Director for a hearing
on that challenge if Assarian's ballot is found to be determinative. In this
regard, he notes that the Regional Director found no evidence contary to
the Employer's assertion that Assarian had worked continuously as a
typesetter in the composing room with the exception of a brief period
during the summer of 1979. However. in an affidavit given to the Board
(attached to the Petitioner's exceptions to the Regional Director's report),
employee Caroline Mann asserts that Assarian attended one of the union
meetings in or about November 1979. and. while problems in the com-
posing room were being discussed. stated that she did not understand
what the complaining was about, but then indicated "I don't work in that
department " Mann continued: "Eddie Shont, one of the union repre-
sentatives chairing the meeting, and organizer, asked her lAssarian] 'You
don't work in that department?' and she replied 'No. I don't work in that
department."' Mann also refers o a statement by the Employer's vice
president. Bob Jay. to the effect that Assarian was his administrative as-
sistant. Based primarily on this affidavit, Member Truesdale believes that
the Petitioner has raised issues of fact concerning Assarian's status which
could best be resolved at a hearing if necessary.
251 NLRB No. 58
i. The Petitioner challenged the ballot of Cath-
yann Garippa on the ground that, since she is the
daughter of one of the Employer's officials, she
lacks a community of interest with other unit em-
ployees. Relying on Adam D. Goettl and Gust
Goettl, d/b/a International Metal Products Company,
107 NLRB 65 (1953), the Regional Director con-
cluded that, despite her father's position in the Em-
ployer's management, Cathyann Garippa is not an
employee enjoying a special status allying her with
the interests of management. The Regional Direc-
tor therefore recommended that Cathyann Garippa
be permitted to vote in the election and that the
challenge to her ballot be overruled. We disagree
with this recommendation.
Cathyann Garippa has worked as a typesetter for
the Employer in Chicago since September 10, 1979.
She is the daughter of Frank Garippa, whose title
is president of the Employer's operations. The
elder Garippa is not a corporate officer or an
owner of the Employer and claims to own less
than 1 percent of the Employer's open stock.
The Employer contends that, despite Frank Gar-
ippa's title, his position is equivalent to that of a
plant manager at its Chicago facility. Cathyann
Garippa lives at home with her father and pays no
room and board, although she asserts that she is fi-
nancially independent. She has the privilege of her
work hours beginning and ending 2 hours before
other employees on her shift, but it appears that at
least some other employees have their hours varied
to meet their personal needs. 4 Otherwise, Cathyann
Garippa does not appear to enjoy any special privi-
leges because of her relationship with her father.
Concededly the elder Garippa does not possess a
significant ownership interest in the Employer.
Nevertheless, he is apparently the top-ranking rep-
resentative of the Employer at its Chicago facility.
Additionally, Cathyann Garippa lives at home with
her father and presumably has virtually daily con-
tact with him, contact which must affect the char-
acter of her relationship to the workplace. Thus, it
appears that Cathyann Garippa has access to man-
agement which, although it may not always result
in easily identifiable special privileges, gives her a
status and an area of interest distinct from that of
other employees. Accordingly, we conclude that,
as the daughter of the Employer's highest manage-
ment representative in Chicago, Cathyann Garippa
does not share a community of interest with the
rest of the unit, and her inclusion in the unit would
inhibit the other employees from enjoying "the ful-
lest freedom in exercising the rights guaranteed by
4 There is no evidence of the employment status of the other employ-
ees who have their hours varied to accommodate their personal needs
PANDCK PRESS MIDWEST. INC 473
474 DECISION OF NATIONAL LABOR RELATIONS B()ARI)
this Act" as provided in Section 9(b). We therefore
sustain the challenge to Cathyann Garippa's
ballot. 5
2. Elizabeth Pflum was challenged by Petitioner
on the basis that she was not on the Employer's
payroll on the eligibility date of the election. The
Regional Director found that, although Elizabeth
Pflum was employed in the composing room on
the election eligibility date (which was October 7,
1979), she did not at that time share in the benefits
received by other full-time employees, and hence
was a temporary employee. Accordingly, he found
that she lacked a community of interest with the
unit employees, and recommended that the chal-
lenge to her ballot be sustained. We disagree.
Pflum was initially hired on February 5, 1979,
and, about a month later, began working in the
composing room. She was laid off from April or
May until August 1979. Upon being recalled,
Pflum worked for about 2 weeks in the shipping
and mailing department, and then returned to the
composing room where she was still working on
the eligibility date. She did not receive the pension
and hospitalization benefits offered other employ-
ees. According to Pflum, in November she was
told by the Employer that she was a regular full-
time employee and would thereafter receive the
fringe benefits offered by the Employer. Pflum
then began receiving her paychecks from New
York like the other regular employees, rather than
paychecks issued in the Employer's Chicago office
as she had received prior to that time. There is no
evidence of any other difference between the terms
and conditions of her employment and those of the
other employees.
It appears that the only significant differences
between Pflum and other employees in the com-
posing department on the eligibility date were her
failure to receive fringe benefits offered other em-
ployees, and the fact that her paycheck was issued
by a different facility of the Employer. The Board
has held, however, that these factors alone are not
sufficient to render an employee temporary and in-
eligible for inclusion in a unit of regular full-time
employees. 6 More importantly, Pflum worked a
regular schedule, performed duties that are a regu-
lar part of the Employer's operation, and had no
definite or contemplated date of termination. Ac-
cordingly, we conclude that Pflum was not a tem-
porary employee, and we overrule the challenge to
her ballot.7
' Chairman Fanning concurs in sustaining this challenge. He notes that
Garippa's affidavit states that she has borrowed money from her father in
connection with a "car loan" and this is being repaid by deductions from
her weekly salary, apparently without interest. Other affidavits refer to
no loan privileges to employees. In addition to the fact that Garippa lives
at home without paying room and board, the Chairman concludes that
she has an area of interest not shared by other unit employees. Cf. Tops
Club. Inc., 238 NLRB 928 (1978).
3. Since we find merit in the Employer's Objec-
tion 1, if the revised tally ordered below reveals
that the Union has obtained a majority, we shall set
the election aside and order a new election.8
DIRECTION
The Regional Director is hereby directed to
open and count the ballots of Sandra Assarian,
Jean Barlin, Kellie Mikels, Lorna Ryan, Keith
Whitlow, and Elizabeth Pflum; to prepare and
serve on the parties a revised tally of ballots; and
to issue a certification of results if the tally shows
that the Union has not obtained a conclusive ma-
jority.
In the event that the Union has received a con-
clusive majority, a second election by secret ballot
shall be conducted among the employees in the
unit found appropriate, at such time as the Region-
al Director deems appropriate. The Regional Di-
rector for Region 13 shall direct and supervise the
election, subject to the National Labor Relations
Board Rules and Regulations, Series 8, as amended.
Eligible to vote are those in the unit who were em-
ployed during the payroll period ending immedi-
ately before the date of issuance of the Notice of
Second Election, including employees who did not
work during that period because they were ill, on
vacation, or temporarily laid off. Also eligible are
employees engaged in an economic strike which
commenced less than 12 months before the election
date and who retained their status as such during
the eligibility period and their replacements. Those
in the military services of the United States may
vote if they appear in person at the polls. Ineligible
to vote are employees who have quit or been dis-
charged for cause since the designated payroll
period and employees engaged in a strike who
have been discharged for cause since the com-
mencement thereof, and who have not been rehired
or reinstated before the election date, and employ-
ees engaged in an economic strike which com-
menced more than 12 months before the election
date and who have been permanently replaced. 9
Those eligible shall vote whether or not they
desire to be represented for collective-bargaining
purposes by Chicago Typographical Union No. 16,
affiliated with International Typographical Union,
AFL-CIO.
6 F. P. Packaging, Inc., 236 NLRB 239, 241 (1978).
See P. Sand and Gravel Company, 222 NLRB 83. fn. 2 (1976).
8 As noted at fn. 3 above, Member Truesdale believes that substantial
issues have been raised concerning the status of Sandra Assarian Hence.
he would open and count he ballots of employees Harlin. Mikes. Ryan.
Whitlow, and Pflum. If Assarian', ballol were still determinative, he
would hold a hearing on her status He agrees. hossever. that if any final
tally shows the Petitioner has swon the election then he would direct
second election.
I [Excelsior Footllote onmitted from publication
PNDICK TRESS MIDW'ES, INC. 475
MEMBER PENELIO, dissenting in part:
Contrary to my colleagues, I would overrule the
challenge to the ballot of employee Cathyann Gar-
ippa.
It is well settled that "the mere coincidence of a
family relationship between an employee and a
member of management does not, without a show-
ing of special status for the employee, warrant the
exclusion of that employee from a bargaining unit
where the employee's inclusion in the unit would
be otherwise appropriate." 10
In the present case, the record reveals that em-
ployee Garippa is the daughter of Frank Garippa.
Frank Garippa is in charge of the Employer's Chi-
cago plant, which is equivalent to the position of
plant manager. He is not a corporate officer, and
f lbopi Club. nct. 238 NLRB 928 (19781. iyerhaeuser (ompanon Sof
DLspoah/le Divion. 211 NR1 112 (q74k and Pargas of CrOewct ('tr
In.. 194 NlRF3 61(q19711
owns less than I percent of the Employer's open
stock. Futhermore, employee Garippa is subject to
the same terms and conditions of employment as
other employees, and does not enjoy any special
privileges because of her relationship with her
father. The mere fact that employee Garippa lives
with her parents without paying room and board is
insufficient, given her financial independence, to
warrant her exclusion from the unit." According-
ly, I would overrule the challenge to her ballot.'2
l' Tops Club. Inc., supra I cannot agree ith Chairman Fanning that
an emploee's Sec 7 rights call be eliminated by a mere personal loan
from a parent to a member of the family living at home that is repaid
through payroll deduction The loan has no bearing on their relationship
at the workplace other than the method of repayment. Moreov er. there is
no eidence in this record that loan privileges have been requested by
other employees and denied
12 For the reasons fully explicated in my dissenting opinion in Mercury
Industries, Inct.. 238 NLRB 896 (1978), 1 would overrule the Emplo)er's
Objection I. and, in the event that the Petitioner obtains a majority of the
valid votes cast, I would remand this case to the Regional Director for
further investigation and disposition of the remaining objections filed by
the Employer.
ANDICK PRESS MIDEST, [N 75