Respondent, a retail automobile parts and gasoline dealer, is a
closely held corporation owned equally by three brothers, who serve
as officers and are actively involved in running the business. In
1981, a union filed with the National Labor Relations Board a
petition requesting that a representation election be held among
respondent's employees. Thereafter, an election was held and the
union received a plurality of the votes, but enough ballots were
challenged on each side to place the outcome in doubt. Among the
ballots challenged by the union were those of one owner's wife, who
works as a clerk at the same location as her husband and
occasionally takes coffee breaks in his office, and of the owners'
mother, who is a cashier at one of respondent's stores and lives
with one of the owners. Concluding that the wife's interests were
different from those of other clerical employees and that the
mother's interests were more closely aligned with management than
with the employees, but without making a finding that the wife and
mother enjoyed special job-related benefits, the Board's hearing
officer recommended that the union's challenge to the ballots be
sustained. The Board adopted this recommendation and, after all
qualified votes were counted, certified the union as the exclusive
bargaining representative. When respondent refused to bargain, the
union filed charges with the Board, which held that respondent had
violated §§ 8(a)(1) and (5) of the National Labor Relations Act
(Act), and ordered respondent to bargain. The Court of Appeals
denied enforcement of the Board's order, holding that the Board had
no authority under § 9(b) of the Act to exclude employees from a
bargaining unit based solely on their close family relationship
with those who own and operate the business, that an employee's
family ties may be a factor justifying exclusion only when the
employee receives job-related benefits that flow from the
relationship, and that, in this case, there was insufficient
evidence that the wife and mother enjoyed such benefits.
Held: The Board did not exceed its authority in
excluding from collective bargaining units close relatives of
management, without making a finding that the relatives enjoy
special job-related privileges. Pp.
469 U. S.
494-499.
(a) The Board's policy of considering a variety of factors in
deciding whether an employee's familial ties are sufficient to
align his interests
Page 469 U. S. 491
with management so as to warrant his exclusion from a bargaining
unit, is a reasonable application of the Board's standard whereby,
in defining bargaining units, its focus is on whether the employees
share a "community of interest." The Board's decision to exclude
some family members is entitled to deference, and is not
inconsistent with the Act's fundamental structure or policies. Nor
does the Board's policy of excluding close relatives of management
without a showing of special job-related benefits run afoul of the
Act's mandate that the Board remain "wholly neutral" as between the
contending parties in a representation election. Pp.
469 U. S.
494-498.
(b) On the facts of this case, the Board could reasonably
conclude that the wife's and mother's interests were more likely to
be aligned with the family's business interests than with the
employees' interests. Pp.
469 U. S.
498-499.
717 F.2d 1033, reversed.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which REHNQUIST and
O'CONNOR, JJ., joined,
post, p.
469 U. S.
499.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether the National Labor
Relations Board may exclude from a collective bargaining unit
employees who are relatives of the owners of a closely held
corporation that employs them, without a finding that the employees
receive special job-related benefits.
I
Respondent Action Automotive, Inc., is a retail automobile parts
and gasoline dealer with stores in a number of Michigan cities.
Action Automotive is a closely held corporation owned equally by
three brothers, Richard, Robert, and James Sabo. The Sabo brothers
are actively involved in the
Page 469 U. S. 492
daily operations of the business. They serve as the
corporation's officers, make all policy decisions, and retain
ultimate authority for the supervision of every department.
In March, 1981, the Retail Store Employees Union, Local 40 (the
Union), filed with the Board a petition requesting that a
representation election be held among Action Automotive's
employees. Action Automotive and the Union agreed to elections in
two bargaining units -- one consisting of employees at the
company's nine retail stores and the other comprising clerical
employees at the company's headquarters. The elections were held on
May 29, 1981, and the Union received a plurality of votes in each
unit; [
Footnote 1] enough
ballots were challenged by each side, however, to place the outcome
of the elections in doubt. We are concerned only with the Union's
challenge to the ballots of Diane and Mildred Sabo.
Diane Sabo is the wife of Action Automotive's president and
one-third owner, Richard Sabo. She works as a general ledger clerk
at the company's headquarters in Flint, Michigan. She resides with
her husband and both work at the same office. Unlike other clerical
workers, she works part time and receives a salary. She also is
allowed to take breaks when she pleases, and she often spends her
break in her husband's office.
Mildred Sabo is the mother of the three Sabo brothers who own
and manage Action Automotive. She is employed as a full-time
cashier at the company's store in Barton, Michigan. Mildred Sabo
lives with James Sabo, secretary-treasurer of the corporation, and
she regularly sees or telephones her other sons and their families.
She earns 25 cents per hour more than any other cashier, but she is
also one of the company's most experienced cashiers.
In light of these facts, the Board's hearing officer concluded
that Diane Sabo's interests are different from those of other
clerical employees in the company's headquarters,
Page 469 U. S. 493
and that Mildred Sabo's "interests are more closely aligned with
management than with the employees of Action Automotive." App. to
Pet. for Cert. 36a. He reached this conclusion without finding that
Diane and Mildred Sabo enjoy special job-related benefits.
Believing that such a finding was not a prerequisite to excluding
the two women from the bargaining units, the hearing officer
recommended that the Union's challenge to their ballots be
sustained.
The Board adopted the hearing officer's recommendations
[
Footnote 2] and, after all
qualified votes were counted, certified the Union as the exclusive
bargaining representative for the two units. When Action Automotive
refused to bargain, the Union filed charges with the Board. The
Board, relying on its earlier certification decision, found that
Action Automotive had violated §§ 8(a)(1) and (5) of the National
Labor Relations Act (Act), 61 Stat. 140, 141, 29 U.S.C. §§
158(a)(1) and (5), and ordered the company to bargain with the
Union. 262 N.L.R.B. 423 (1982).
The United States Court of Appeals for the Sixth Circuit denied
enforcement of the Board's order. 717 F.2d 1033 (1983). The panel,
apparently feeling bound by the Circuit's prior decisions,
see,
e.g., NLRB v. Hubbard Co., 702 F.2d 634 (1983), held that the
Board had no authority under § 9(b) of the Act to exclude employees
from a bargaining unit based solely on their close family
relationship with those who own and operate the business. The court
held that an employee's family ties may be a factor justifying
exclusion from a bargaining unit only "when the employee receive[s]
job-related benefits or other favorable working conditions which
flow from the relationship." 717 F.2d at 1035. Under this standard,
the court concluded that there was insufficient evidence that Diane
and Mildred Sabo enjoy special job-related
Page 469 U. S. 494
benefits, and that the Board erred in excluding them from the
units.
The Sixth Circuit's holding conflicts with the decisions of
other Circuits [
Footnote 3] and
restricts the Board's statutory authority to define bargaining
units. We granted certiorari, 466 U.S. 970 (1984), and we
reverse.
II
Section 9(b) of the Act vests in the Board authority to
determine "the unit appropriate for the purposes of collective
bargaining." 61 Stat. 143, 29 U.S.C. § 159(b). The Board's
discretion in this area is broad, reflecting Congress' recognition
"of the need for flexibility in shaping the [bargaining] unit to
the particular case."
NLRB v. Hearst Publications, Inc.,
322 U. S. 111,
322 U. S. 134
(1944). The Board does not exercise this authority aimlessly; in
defining bargaining units, its focus is on whether the employees
share a "community of interest."
See South Prairie Construction
Co. v. Operating Engineers, 425 U. S. 800,
425 U. S. 805
(1976) (per curiam); 15 NLRB Ann.Rep. 39 (1950). A cohesive unit --
one relatively free of conflicts of interest -- serves the Act's
purpose of effective collective bargaining,
Pittsburgh Plate
Glass Co. v. NLRB, 313 U. S. 146,
313 U. S. 165
(1941), and prevents a minority interest group from being submerged
in an overly large unit,
Chemical Workers v. Pittsburgh Plate
Glass Co., 404 U. S. 157,
404 U. S.
172-173 (1971).
The Board has long hesitated to include the relatives of
management in bargaining units because "their interests are
sufficiently distinguished from those of the other employees."
Louis Weinberg Associates, Inc., 13 N.L.R.B. 66, 69
(1939). From the earliest days of the Wagner Act, ch. 372, 49 Stat.
449
et seq., until 1953, the Board automatically excluded
close relatives of a manager or owner of a closely
Page 469 U. S. 495
held company.
See, e.g., Jerry and Edythe Belanger, 32
N.L.R.B. 1276, 1279, and n. 4. (1941). This bright-line approach
was abandoned, however, in
International Metal Products
Co., 107 N.L.R.B. 65, 67 (1953), and now the Board considers a
variety of factors in deciding whether an employee's familial ties
are sufficient to align his interests with management and thus
warrant his exclusion from a bargaining unit. [
Footnote 4]
For instance, a relevant consideration is whether the employee
resides with or is financially dependent on a relative who owns or
manages the business; such an employee is typically excluded from
the unit.
See, e.g., Pandick Press Midwest, Inc., 251
N.L.R.B. 473, 473-474 (1980). The greater the family involvement in
the ownership and management of the company, the more likely the
employee-relative will be viewed as aligned with management and
hence excluded. [
Footnote 5]
See factors listed in
NLRB v. Caravelle Wood Products,
Inc., 466 F.2d 675, 679 (CA7 1972). The Board, of course, is
always concerned with whether the employee receives special
job-related benefits such as high wages or favorable working
conditions.
See, e.g., Holthose Furniture Corp., 242
N.L.R.B. 414, 415-416 (1979). When other criteria satisfy the Board
that the employee-relative's interests are aligned with management,
however, he may be excluded from the unit even though he enjoys no
special job-related benefits.
E.g., Marvin Witherow
Trucking, 229 N.L.R.B. 412, 412-413 (1977).
Our review is limited to whether the Board's practice of
excluding some close relatives who do not enjoy special
Page 469 U. S. 496
job-related benefits has a "reasonable basis in law."
NLRB
v. Hearst Publications, Inc., supra, at
322 U. S. 131.
In reviewing Board decisions, we consistently yield to the Board's
reasonable interpretations and applications of the Act,
see
NLRB v. City Disposal Systems, Inc., 465 U.
S. 822,
465 U. S.
829-830 (1984);
Sure-Tan, Inc. v. NLRB,
467 U. S. 883,
467 U. S. 891
(1984). Indeed, the Board's orders defining bargaining units are
"rarely to be disturbed."
Packard Motor Car Co. v. NLRB,
330 U. S. 485,
330 U. S. 491
(1947).
The Board's policy regarding family members, although not
defined by bright-line rules, is a reasonable application of its
"community of interest" standard. [
Footnote 6] Close relatives of management, particularly
those who live with an owner or manager, are likely to "get a more
attentive and sensitive ear to their day-to-day and long-range work
concerns than would other employees."
Parisoff Drive
Market, 201 N.L.R.B. 813, 814 (1973). And it is reasonable for
the Board to assume that the family member who is significantly
dependent on a member of management will tend to equate his
personal interests with the business interests of the employer.
Ibid. The very presence at union meetings of close
relatives of management could tend to inhibit free expression of
views and threaten the confidentiality of union attitudes and
voting.
See generally ibid.; NLRB v. Hendricks County Rural
Electric Membership Corp., 454 U. S. 170,
454 U. S.
193-194 (1981) (POWELL, J., concurring in part and
dissenting in part).
It can be argued that the Board's policy is overbroad -- that
excluding from bargaining units only those family members who
receive special job-related benefits adequately serves the Act's
objectives. However, we do not make labor policy under § 9(b);
Congress vested that authority in the Board,
Page 469 U. S. 497
which brings its extensive experience in the administration of
the Act to bear on questions of unit determinations.
See NLRB
v. Hendricks County Rural Electric Membership Corp., supra, at
454 U. S. 190;
Packard Motor Car Co. v. NLRB, supra, at
330 U. S.
492-493. We do not require "mathematical precision,"
NLRB v. Hearst Publications, Inc., supra, at
322 U. S. 133,
and are not prepared to second-guess the Board's informed judgment
that a bargaining unit's community of interest may be diluted by
circumstances other than divergent job-related benefits.
The Board's decision to exclude some family members is not
inconsistent with the fundamental structure or policies of the Act.
Congress knows how to limit the Board's discretion to define
collective bargaining units. For example, § 9(c)(5) of the Act
states that "the extent to which the employees have organized shall
not be controlling" in determining whether a unit is appropriate.
29 U.S.C. § 159(c)(5). By contrast, there is no express direction
that the Board define bargaining units only by reference to
job-related benefits such as wages and working conditions. We are
not authorized to bind the Board in ways not mandated by
Congress.
Action Automotive's extensive reliance on § 2(3) of the Act is
misplaced. Section 2(3) excludes from the Act's definition of
"employee" "any individual employed by his parent or spouse."
[
Footnote 7] 61 Stat. 138, 29
U.S.C. § 152(3). Such a person is completely outside the scope of
the statute, and may not invoke its protection.
See, e.g.,
Campbell-Harris Electric, Inc., 263 N.L.R.B. 1143, 1143-1144,
enf'd, 719 F.2d 292 (CA8 1983). Family members who fall
within the Act's broad definition of "employee," however, have no
statutory
Page 469 U. S. 498
right to be included in collective bargaining units under §
9(b). The Board is free to exclude from bargaining units persons
who are statutory "employees" otherwise protected by the Act.
[
Footnote 8]
See, e.g.,
Hendricks County Rural Electric Membership Corp., supra, at
454 U.S.
454 U. S.
190-190.
Nor does the Board's policy of excluding close relatives of
management without a showing of special job-related benefits run
afoul of the Act's mandate that the Board remain "wholly neutral"
as between the contending parties in representation elections,
see NLRB v. Savair Mfg. Co., 414 U.
S. 270,
414 U. S. 278
(1973). Strictly speaking, the Board does not exclude a family
member from a bargaining unit because he is likely to vote against
the union. Rather, the family member is excluded, if at all,
because the Board determines, on the basis of objective factors,
that he lacks common interests with fellow employees who are not so
related. In some cases, the Board's policy may have the effect of
favoring union representation; however, a disparate impact does not
violate the principle of neutrality. Indeed, virtually every Board
decision concerning an appropriate bargaining unit --
e.g., the proper size of the unit -- favors one side or
the other.
The Board, in applying its general policy to the facts of this
case, did not abuse its discretion. Diane Sabo resides with her
husband, the president and one-third owner of Action Automotive;
Mildred Sabo, the mother of the three owners, lives with one of her
sons. All three owners are closely related and actively involved in
running the business on a day-to-day basis. Diane Sabo works at the
same office with her husband and occasionally takes her coffee
breaks in his office. Mildred Sabo has daily contacts with her
sons. Certainly their participation in the collective bargaining
units would be viewed with suspicion by other employees. On these
facts, the Board could reasonably conclude that Diane and Mildred
Sabo's interests are more likely to be aligned with the
business
Page 469 U. S. 499
interests of the family than with the interests of the
employees.
We hold that the Board did not exceed its authority in excluding
from collective bargaining units close relatives of management,
without a finding that the relatives enjoy special job-related
privileges. The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
The vote in the unit consisting of retail store employees was
20-18; the vote in the clerical unit was 4-3.
[
Footnote 2]
The Board, disagreeing with the hearing officer, found that
Diane Sabo does enjoy special job-related benefits. The Court of
Appeals for the Sixth Circuit set aside this finding, and the
Board, for purposes of review in this Court, no longer rests its
decision on this ground.
[
Footnote 3]
See NLRB v. H. M. Patterson & Son, Inc., 636 F.2d
1014 (CA5 1981);
Linn Gear Co. v. NLRB, 608 F.2d 791 (CA9
1979);
NLRB v. Caravelle Wood Products, Inc., 504 F.2d
1181 (CA7 1974).
[
Footnote 4]
The Board's policy is not undermined by the fact that it has
modified and refined its position; an agency's day-to-day
experience with problems is bound to lead to adjustments.
See
NLRB v. Bell Aerospace Co., 416 U. S. 267,
416 U. S.
294-295 (1974).
[
Footnote 5]
Compare Parisoff Drive-In Market, Inc., 201 N.L.R.B.
813 (1973) (excluding children of corporation's vice-president and
significant shareholder),
with Pargas of Crescent City,
Inc., 194 N.L.R.B. 616 (1971) (including wife of local manager
with no ownership interest).
[
Footnote 6]
At least since
International Metal Products Co., 107
N.L.R.B. 65 (1953), the Board has not excluded an employee simply
because he was related to a member of management.
[
Footnote 7]
In the context of corporations, the Board has limited the § 2(3)
exclusion to the children or spouses of an individual with at least
a 50% ownership interest.
See Cerni Motor Sales, Inc., 201
N.L.R.B. 91 (1973). The Board's decision in this case, therefore,
is not premised on the view that Diane and Mildred Sabo are not
"employees" within the meaning of § 2(3).
[
Footnote 8]
The Court of Appeals implicitly recognized as much by noting
that employee-relatives may be excluded from a unit if they receive
job-related privileges.
JUSTICE STEVENS, with whom JUSTICE REHNQUIST and JUSTICE
O'CONNOR join, dissenting.
In my opinion, bargaining unit determinations should be based on
job characteristics, and not on an employee's opinion about unions.
Antiunion sentiment may be based on religious views, political
convictions, individual respect or hostility, or family
considerations. If the characteristics of an employee's job are the
same as those of pro-union employees, that employee has the same
right to membership in the bargaining unit as a union official or
his wife.
The majority's decision prevents the two employees involved in
this litigation from participating in the decision to choose or
reject representation solely because the extent of their family
relations indicates that they are likely to be promanagement and
hostile to union representation. In § 2(3) of the Act, [
Footnote 2/1] however, Congress has already
offered its view of the significance of family relationships for
federal labor policy. Except for the children or spouses of sole
proprietors, partners, and majority shareholders, [
Footnote 2/2] family members related to owners or
management personnel are entitled to participate as any other
"employee" in the system of labor relations established by the
Act.
Page 469 U. S. 500
During the period between 1935 and 1947, a policy of excluding
promanagement employees from bargaining units might have been
consistent with provisions of the Wagner Act which emphasized the
employees' right to organize. [
Footnote
2/3] Since the Taft-Hartley Act of 1947, [
Footnote 2/4] however, § 7 of the Act [
Footnote 2/5] has provided equal protection for the
employee's right not to join a union as for the right to support a
union. In
NLRB v. Savair Manufacturing Co., 414 U.
S. 270 (1973), the Court emphasized the significance of
this language:
"Any procedure requiring a 'fair' election must honor the right
of those who oppose a union, as well as those who favor it. The Act
is wholly neutral when it comes to that basic choice. By § 7 of the
Act, employees have the right not only to 'form, join, or assist'
unions, but also the right 'to refrain from any or all of such
activities.' 29 U.S.C. § 157."
Id. at
414 U. S.
278.
Page 469 U. S. 501
Although the Board has broad "discretion to define collective
bargaining units,"
ante at
469 U. S. 497,
§ 9(b) of the Act now requires that such decisions shall "assure to
employees the fullest freedom in exercising the rights guaranteed
by this [Act]." 29 U.S.C. § 159(b). The pro-union rationale of
today's decision is fundamentally inconsistent with "the statutory
right of employees to resist efforts to unionize a plant."
NLRB
v. Savair Manufacturing Co., 414 U.S. at
414 U. S.
280.
To be sure, the majority purports to rely on "objective factors"
in determining whether the relative "lacks common interests with
fellow employees who are not so related,"
ante at
469 U. S. 8, but
in practice, such persons will not "be identifiable by any standard
other than probable opposition to the union at election time."
NLRB v. Caravelle Wood Products, Inc., 504 F.2d 1181, 1189
(CA7 1974) (Stevens, J., concurring). The community of interests
standard ordinarily applied by the Board to bargaining unit
determinations is directed to the nature of the employee's job and
the existing terms and conditions of his employment. [
Footnote 2/6] Likewise, confidential
employees are excluded from bargaining units when, "in the course
of [their] employment," they gain access to confidential
information concerning labor relations.
NLRB v. Hendricks
County Rural Electric Membership Corp., 454 U.
S. 170,
454 U. S. 171
(1981). [
Footnote 2/7] In contrast,
the Court's "expanded community of interest standard" [
Footnote 2/8] for determining a
relative's
Page 469 U. S. 502
right to participate in the bargaining unit inquires into
matters of personal life that are no more relevant to federal labor
policy than the employee's eating and recreational habits or
political views.
If the Board's bargaining unit determinations are not to be made
on the basis of ill-concealed indicators of the employee's views on
the virtues of union representation, [
Footnote 2/9] employees who are relatives of owners and
management must only be excluded from the unit if their family
relationship has resulted in special privileges in the workplace.
[
Footnote 2/10] Except under
those circumstances, I seriously doubt whether the employees at
Action Automotive, Inc. especially those who oppose
Page 469 U. S. 503
organization of the unit by the union -- would view "with
suspicion,"
ante at
469 U. S. 498,
the inclusion of the two relatives here. The Board does not contest
the Court of Appeals' rejection of its factual finding that the two
relatives "enjoyed a special status so as to disqualify them from
voting." 717 F.2d 1033, 1036 (CA6 1983) (per curiam). Thus, no
legitimate reason has been established to exclude them from the
bargaining unit.
I respectfully dissent.
[
Footnote 2/1]
"The term
employee' . . . shall not include . . . any
individual employed by his parent or spouse. . . ." 29 U.S.C. §
152(3).
[
Footnote 2/2]
Construing § 2(3), the Board has held that such persons are not
"employees" covered by the Act.
Cerni Motor Sales, Inc.,
201 N.L.R.B. 918 (1973);
Foam Rubber City #2 of Florida,
Inc., 167 N.L.R.B. 623, 623-624 (1967).
[
Footnote 2/3]
Section 9(b) of the Wagner Act provided that the Board, in
making unit determinations should "insure to employees the full
benefit of their right to self-organization and to collective
bargaining." National Labor Relations Act § 9(b), 49 Stat. 453. The
Board interpreted this language as a mandate to promote union
organization:
"Wherever possible, it is obviously desirable that, in a
determination of the appropriate unit, we render collective
bargaining of the Company's employees an immediate
possibility."
Botany Worsted Mills, 27 N.L.R.B. 687, 690 (1940).
See NLRB v. Metropolitan Life Insurance Co., 380 U.
S. 438,
380 U. S. 441
(1965). During this same period, the Board adopted a regular policy
of automatically excluding family members from bargaining units.
See, e.g., Louis Weinberg Associates, Inc., 13 N.L.R.B.
66, 69 (1939) ("son and daughter of the president and
vice-president of the Company" excluded from bargaining unit
"where, as here, the only union involved desires their
exclusion").
[
Footnote 2/4]
Labor Management Relations Act, 1947, § 101 , 61 Stat. 136.
[
Footnote 2/5]
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection,
and shall also have the
right to refrain from any or all of such activities. . .
."
29 U.S.C. § 157 (emphasis added).
[
Footnote 2/6]
See Chemical Workers v. Pittsburgh Plate Glass Co.,
404 U. S. 157,
404 U. S.
172-173 (1971);
Kalamazoo Paper Box Corp., 136
N.L.R.B. 134, 137 (1962).
See generally R. Gorman, Labor
Law 68-74 (1976).
[
Footnote 2/7]
Cf. NLRB v. Yeshiva University, 444 U.
S. 672,
444 U. S. 682
(1980) ("judicially implied exclusion [from the Act] for
managerial employees' who are involved in developing and
enforcing employer policy"). Moreover, the explicit instructions of
Congress in § 2(3) limit the authority of the Court and the Board
to imply additional exclusions in this context. See nn.
469
U.S. 490fn2/1|>1 and 469
U.S. 490fn2/2|>2, supra; NLRB v. Sexton, 203 F.2d
940 (CA6 1953) (per curiam).
[
Footnote 2/8]
NLRB v. Caravelle Wood Products, Inc., 504 F.2d 1181,
1187 (CA7 1974)
[
Footnote 2/9]
"Frequently, [unit] determinations, like the drawing of election
districts in other contexts, have been the decisive factor in
determining whether there would be any collective bargaining at all
in a plant or enterprise. Unions and employers have sought to
gerrymander accordingly."
B. Meltzer, Labor Law 311 (2d ed.1977). In this context,
"virtually every Board decision . . . favors one side or the
other,"
ante at
469 U. S. 498,
and the Board must be especially circumspect to avoid reliance on
illegitimate factors in determining the size of the election unit.
In at least one case, an Administrative Law Judge explicitly relied
on relatives' pro-union sentiments to include them in the
bargaining unit over the employer's objection.
Trash Removers,
Inc., 257 N.L.R.B. 945, 946 (1981) ("The basic theory
underlying those decisions in which the Board has excluded
relatives of the boss is that they are shown, by the record, to be
aligned with management, as distinguished from being antimanagement
or prounion. That is why it is always the union that requests their
exclusion"), order adopted by the Board,
id. at 945.
See also Pet. for Cert. 11 (relatives' access to
management "lessens the likelihood that they would vote in favor of
union representation").
[
Footnote 2/10]
See International Metal Products Co., 107 N.L.R.B. 65,
67 (1953) ("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"),
overruled in Foam Rubber City #2 of
Florida, Inc., 167 N.L.R.B. at 624, n. 10.
See also NLRB
v. Hubbard Co., 702 F.2d 634, 636 (CA6 1983);
Cherrin
Corp. v. NLRB, 349 F.2d 1001, 1004 (CA6 1965),
cert.
denied, 382 U.S. 981 (1966);
NLRB v. Sexton, 203 F.2d
at 940.