Parisoff Drive-In Market, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1973

201 N.L.R.B. 813 (N.L.R.B. 1973)

PARISOFF DRIVE-IN MARKET, INC.
Parisoff Drive-In Market, Inc. and Retail Store
Employees Union Local 782, chartered by Retail
Clerks International Association , AFL-CIO, Peti-
tioner. Case 17-RC-6829
February 12, 1973
DECISION, DIRECTION, AND
CERTIFICATION OF REPRESENTATIVE
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on April 5, 1972, under the direction and
supervision of the Regional Director for Region 17
among the employees in the stipulated unit. At the
conclusion of the election, the parties were furnished
a tally of ballots which showed that, of approximate-
ly 23 eligible voters, 23 cast ballots, of which 11 were
for and 9 were against the Petitioner, , with 3
challenged ballots. The challenged ballots are suffi-
cient in number to determine the results of the
election. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the
election.
In accordance with the Rules and Regulations of
the National Labor Relations Board, the Regional
Director conducted an investigation and on May 25,
1972, issued and duly served on the parties his
Report on Challenged Ballots and Objections with
Recommendations in which he recommended that
the objections be overruled, the challenges be
sustained, and the Petitioner be certified as the
collective-bargaining representative of the employees
involved. Thereafter, the Employer filed timely
exceptions to the Regional Director's Report.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes 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 concern-
ing 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 all
employees of the Employer at its retail store located
at 3022 South Belt, St. Joseph, Missouri, but
excluding all meat department employees, janitors,
office clerical employees, professional employees,
and guards and supervisors as defined in the Act, as
amended, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
1 167 NLRB 623.
813
5. The Board has considered the Petitioner's
objections, the Regional Director's Report, and the
Employer's exceptions thereto, and hereby adopts
the Regional Director's findings and recommenda-
tions as herein amplified.
The Regional Director 's investigation disclosed
that the Employer is a closely held family corpora-
tion engaged in the business of operating a supermar-
ket. All of the Employer 's outstanding stock is owned
by four Parisoff brothers and their mother, with each
of the brothers owning 20 percent of the stock in his
own right, and 5 percent jointly with his mother. The
four brothers constitute the sole officers of the
Employer, and with their mother make up the board
of directors.
The challenged voters-Mimi, Jana, and Matt
Parisoff-are children of Gus Parisoff , who is vice
President of the corporation , and manager of three
departments in the store. The three children, who live
at home with their parents, work part time in the
store. Mimi works in the drug department managed
by her father, and the other two children work in
departments managed by their uncles . On the basis
of these facts, the Regional Director sustained the
challenges to the ballots of the three children.
Relying on the Board's decision in Foam Rubber City
#2 of Florida, Inc., d/b/a Scandia,1 he concluded
that the children were not employees within the
meaning of the Act , and therefore found it unneces-
sary to determine whether or not the children
enjoyed a special status with the Employer. The
Employer excepts to these findings.
While we agree with the Regional Director's
conclusions, we do so for different reasons. We do
not find it necessary to decide herein whether the
challenged individuals are "employees" within the
meaning of that term under Section 2(3) of the Act.
For, under Section 9(b) of the Act, the Board has the
responsibility to determine the unit appropriate for
collective bargaining , "in order to assure to employ-
ees the fullest freedom in exercising the rights
guaranteed by the Act ...." The Board has long
found 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. In
reviewing the facts before us here, we conclude that
the three Parisoff children, whose ballots are chal-
lenged herein , have a community of interest separate
from that of their fellow employees and should be
excluded on that basis.
We note, first, that though Gus Parisoff, father of
the three challenged voters, owns but 25 percent of
the Employer's stock (20 percent outright and 5
percent jointly), the remainder of the stock is owned
201 NLRB No. 102
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the uncles and the grandmother of the challenged
voters. Where the parent of the challenged voter is
but one of a number of unrelated owners, an identity
of interest between the voter and the corporation's
management may or may not be shown to exist.
Where, however, all the owners are members of the
same family and related to one another as well as to
the questioned employee, we believe it more likely
that the business interests of the corporation will be
synonymous with the interests of the family to which
the employee belongs. His interests as a member of
the governing family may well outweigh his interests
as an employee of the corporation and, to that
extent, his interests may be entirely different from
the interests of the other employees whose sole stake
in the corporation is that they work there.
We note also that here the challenged individuals'
parent is not only a substantial shareholder and its
vice president, but is also active in the day-to-day
management of the Employer. In these circum-
stances, it is a virtual certainty such individuals
would get a more attentive and sensitive ear to their
day-to-day and long-range work concerns than
would other employees. While this accessibility to
management may not always result in easily identifi-
able special privileges or favorable working condi-
tions, the fact that they have this peculiar access
gives them a status and area of interest not shared by
the rest of the employees.
Finally, we consider it relevant that all the voters
here in question live at home with their parents.
Generally, where children are still living with parents
they are also dependent upon them, and with
dependence there is a considerable potential for
influence. Moreover, aside from the likely depend-
ence , children living with a parent who is active in
2 See N LR.B v Caravelle Wood Products, Inc., 466 F 2d 675 (C A. 7,
August 8, 1972). where the court indicated that the Board could use the
managing the corporation can reasonably be expect-
ed to be exposed to information about personnel
problems , labor relations dealings, and even corpo-
rate profitability. In some of the above respects they
may be comparable to confidential employees, whom
we traditionally exclude from the unit.
Consequently, for the foregoing reasons, we con-
clude that the interests of the three Parisoff children
are more closely allied with those of management
than with those of their fellow employees .2 We shall
sustain the challenges to their ballots and direct that
they remain unopened and uncounted.
As we have adopted the Regional Director's
recommendations that the Petitioner's objections be
overruled and the challenges to the ballots sustained,
and as the Petitioner has received a majority of the
valid ballots cast, we shall, accordingly, certify the
Petitioner as the representative of the employees in
the unit found appropriate.
DIRECTION
It is hereby directed that the ballots of Mimi, Jana,
and Matt Parisoff remain unopened and uncounted.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Retail Store Employees
Union Local 782, chartered by Retail Clerks Interna-
tional Association, AFL-CIO, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment.
aforementioned factors, among others, in making unit determinations under
Sec. 9(b) of the Act.