N.L.R.B. v. Hubbard Co.

Citation702 F.2d 634
Decision Date22 March 1983
Docket NumberNo. 81-1674,81-1674
Parties112 L.R.R.M. (BNA) 3238, 96 Lab.Cas. P 14,149 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The HUBBARD COMPANY, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Elliott Moore, Deputy Associate Gen. Counsel, Ralph Simpson (argued), N.L.R.B., Washington, D.C., for petitioner.

Donald M. Mewhort, Jr., Timothy C. McCarthy (argued), Toledo, Ohio, for respondent.

Before KENNEDY, JONES and CONTIE, Circuit Judges.

PER CURIAM.

The National Labor Relations Board petitions for enforcement of an order directing the Hubbard Company (Company) to bargain with Toledo Typographical Union No. 63, International Typographical Union, AFL-CIO (Union). The Company opposes enforcement on the grounds that the Union was improperly certified as the employees' bargaining representative. For the reasons stated below, we deny the Board's petition for enforcement.

I.

In April 1980, a representation election was held among the Company's production, maintenance and delivery employees at its Defiance, Ohio facility. The record indicates that all twenty-two eligible voters cast ballots. The final tally showed that eleven employees voted for the Union, ten opposed the Union, and one ballot--that of Steven Hall, son-in-law of the Company's president and majority stockholder--was challenged by the Union on the basis that he was either not an "employee" under section 2(3) of the National Labor Relations Act (Act), 29 U.S.C. Sec. 152(3), or that his interests were more closely allied with management than with the unit employees. 29 U.S.C. Sec. 159(b).

Since the challenged ballot could have affected the outcome of the election, the Regional Director conducted an administrative investigation pursuant to 29 C.F.R. Sec. 102.69(c)(1). The Director's report indicated that Hall is the son-in-law of the president and majority stockholder of the Company, and that the contesting parties had stipulated before the election that Mrs. Hall was not an eligible voter because of her relationship to her father. At the time of the election, Mr. and Mrs. Hall worked four ten-hour days, beginning at 2:30 p.m. Monday through Thursday, running the binding equipment on the Company's second shift. The only other people who worked during the second shift were two janitorial employees. Before the Halls, no other employee on either shift had worked a 4-day, 10-hour work week. Thus, the married couple who previously ran the binding equipment on the second shift worked five eight-hour days. The report also indicated that all supervisors and first shift employees leave the Company's facility by 6:00 p.m. each evening, and thus the Halls work without supervision during approximately two-thirds of their work day. 1

The Regional Director concluded that Hall did not share a community of interest with the other unit employees because of (1) Hall's family relationship with the Company's president and majority stockholder, (2) the Halls' unprecedented 4-day 10-hour work schedule, and (3) the Company's lack of supervision. Accordingly, the Director recommended that the Union be certified. The Company filed exceptions to the report and a supporting brief, which alternatively contended that the Regional Director's factual findings could not, as a matter of law, support a finding of special status in this case, and that the Board should order the Regional Director to hold a hearing to resolve other material issues of fact. 29 C.F.R. 102.69(f). The Board, however, adopted the Regional Director's Report and Recommendations without a hearing, and certified the Union as the exclusive representative of the unit employees.

The Company then refused to bargain with the Union. In December 1980, the Union filed an unfair labor practice charge which alleged that the Company violated section 8(a)(5) and (1) of the Act. The Company answered by denying that the Union had been elected by a majority of the bargaining unit employees. Thereafter, the general counsel filed a motion for summary judgment which alleged that the issues raised in the employer's answer had already been resolved in the representation proceeding, and thus there were no unresolved, material issues of fact. The Board granted the general counsel's summary judgment motion, and ordered the Company to bargain. The Board now seeks enforcement of its order from this court.

II.

The question presented is whether Hall enjoyed a "special status" at the workplace which allied his interests with those of management. Cherrin Corp. v. NLRB, 349 F.2d 1001, 1004 (6th Cir.1965), cert. denied, 382 U.S. 981, 86 S.Ct. 557, 15 L.Ed.2d 471 (1966). Since the Company admits it refused to bargain with the Union, the Board's order should be enforced if its finding of special status is supported by substantial evidence on the record as a whole. 29 U.S.C. Sec. 160(e); Harlan # 4 Coal Co. v. NLRB, 490 F.2d 117, 119, 125 (6th Cir.), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974); NLRB v. Connecticut Foundry Co., 688 F.2d 871, 878 (2d Cir.1982). In prior cases, this court has held that a finding of special status cannot be based solely on the existence of a family relationship between the employee and employer. Cherrin Corp., 349 F.2d at 1004; NLRB v. Sexton, 203 F.2d 940 (6th Cir.1953). Instead, such relationship can be considered only if the employee receives job-related benefits or other favorable working conditions on account of the relationship. 2 Cherrin Corp., 349 F.2d at 1004-05; see, e.g., NLRB v. Connecticut Foundry Co., 688 F.2d 871, 878-79 (2d Cir.1982); NLRB v. Jackson Farmers Inc., 432 F.2d 1042, 1044-45 (10th Cir.1970), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971); Uyeda v. Brooks, 365 F.2d 326, 329 (6th Cir.1966).

Notwithstanding the family relationship involved, the evidence of special status in this case consists of: (1) the Company's lack of supervision over Hall; and (2) the Halls' 4-day, 10-hour work week....

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    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
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    ...interests with management and thus warrant his exclusion from a bargaining unit." Id. at 495. Plaintiffs' reliance on NLRB v. Hubbard Co., 702 F.2d 634 (6th Cir. 1983) is unavailing for several reasons. (Doc. 32 at 6-7). First, Hubbard involved judicial review of the NLRB's decision to excl......
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    ...and Mildred Sabo enjoyed a "special status" at the work place which allied their interests with those of management. NLRB v. Hubbard Co., 702 F.2d 634 (6th Cir.1983); Cherrin Corp. v. NLRB, 349 F.2d 1001 (6th Cir.1965), cert. denied, 382 U.S. 981, 86 S.Ct. 557, 15 L.Ed.2d 471 (1966). This C......

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