Uyeda v. Brooks

• Decision Date: 17 August 1966
• Docket Number: No. 16498.,16498.
• Citation: 365 F.2d 326
• Parties: Yoshio UYEDA, Plaintiff-Appellee, v. Jerome H. BROOKS, Acting Regional Director, Seventh Region, National Labor Relations Board, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

365 F.2d 326 (1966)

Yoshio UYEDA, Plaintiff-Appellee, v. Jerome H. BROOKS, Acting Regional Director, Seventh Region, National Labor Relations Board, Defendant-Appellant.

No. 16498.

United States Court of Appeals Sixth Circuit.

August 17, 1966.

Lawrence Joseph, N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Stephen B. Goldberg, Atty., N.L.R.B., Washington, D. C., on brief, for appellant.

Milton Roberts, Detroit, Mich., for appellee.

Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and CECIL, Senior Circuit Judge.

WEICK, Chief Judge.

This appeal is from a summary judgment entered by the District Court which ordered the Acting Regional Director of the National Labor Relations Board to set aside a certification of a bargaining representative. The certification was issued by the Acting Regional Director pursuant to Section 9 of the National Labor Relations Act as amended, 29 U. S.C. § 151 et seq. A motion filed by appellee to dismiss this appeal on the ground that the issues had become moot, was denied, 6 Cir., 348 F.2d 633.

The facts are that on November 1, 1963, appellee's employer, Mitchiyoshi Uyeda, doing business as Udaco Manufacturing Company, entered into an agreement with United Steelworkers of America, AFL-CIO, for a consent election to determine whether the production and maintenance employees of Udaco Manufacturing Co. desired to be represented by the union in collective bargaining. This agreement was approved by the Acting Regional Director. The agreement specified that the appropriate bargaining unit was "all production and maintenance employees of the Udaco Manufacturing Company" and stipulated that the election was to be held in accordance with the rules, regulations and applicable policies of National Labor Relations Board under the appropriate statutory mandate. It further provided:

"* * * the determination of the Regional Director shall be final and binding upon any question, including questions as to the eligibility of voters * * *."

The election was held on November 14, 1963, and a total of seven ballots was cast: three for the union, two against the union, and two were challenged. The two challenged ballots were those of Toshio Uyeda and Yoshio Uyeda, brothers of Mitichiyoshi Uyeda, the owner of the Udaco Manufacturing Co. Their ballots were challenged by the union, first, on the ground that they were supervisors, and later, because they were relatives of the employer. After an investigation into the challenges, the Acting Regional Director sustained the latter allegation and did not count the two brothers' votes in the representation election. He therefore certified the union as the collective bargaining representative of the employees who had voted.

Yoshio Uyeda brought the present action in the District Court to compel the Acting Regional Director to cancel the certification, to count his ballot in the election, and to redetermine the results on that basis. After denying the defendant's motion to dismiss the complaint for lack of jurisdiction over the subject matter, or for summary judgment, the District Court granted plaintiff's motion for summary judgment, relying for both holdings on the decision of this Court in N.L.R.B. v. Sexton, 203 F.2d 940 (6th Cir. 1953).

The underlying issue in this appeal relates to the jurisdiction of the District Court to hear and determine the case. The basic rule as laid down by the Supreme Court in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L. Ed.2d 210 (1958), and followed in subsequent cases, is that District Courts have jurisdiction over representation matters only when it is shown that the National Labor Relations Board has acted in excess of its delegated powers or in contravention of a specific prohibition of the National Labor Relations Act. Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); American Metal Prods. Co. v. Reynolds, 332 F.2d 434 (6th Cir. 1964). See also McCulloch v. Sociedad Nacional, etc., 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963).

Thus the ultimate question here is whether or not the Acting Regional Director has so acted by invalidating appellee's ballot.

Appellee raises two points in regard to the action of the Acting Regional Director: First, that he transgressed the provisions of the Act in excluding appellee from the definition of an employee under Section 2(3), 29 U.S.C. § 152(3) because of appellee's family relationship with the employer, and Second, that he acted in excess of his power in altering the composition of the appropriate bargaining unit specified in the agreement for a consent election.

As to the first point, the statutory definition of an employee in Section 2 (3) specifically excludes "any individual employed by his parent or spouse." Appellee, relying on N.L.R.B. v. Sexton, supra, contends that this specification of excluded family relationships prohibits the Acting Regional Director from using any other relationship (here, that of a brother) as a basis, in whole or in part, for denying his claim to the status of an employee entitled to vote in the representation election.

This Court in Cherrin Corp. v. N.L. R.B., 349 F.2d 1001 (6th Cir. 1965), cert. denied, 382 U.S. 981, 86 S.Ct. 557, 15 L.Ed.2d 471 (1966), upheld the right of the Board to exclude an employee from the bargaining unit of a small family-owned corporation because she enjoyed a special status with the employer in part because she was the daughter of one stockholder-officer and related to the other owners. We said 349 F.2d at pages 1004-1005:

"It is, therefore, now recognized that family relationship of an employee to persons constituting the corporation is not sufficient for exclusion of such employee from the bargaining unit. There has to be more. It must be established that such relationship of an employee to management can be considered only if the employee enjoys a special status as a result thereof."

In Cherrin the Court upheld the Board's determination of special status on facts not nearly so strong as those involved here. In the present case the post-challenge investigation by the Acting Regional Director revealed that both appellee and his brother, Toshio, were paid on a salary basis, while all other employees of the brother, Mitchiyoshi, were paid on an hourly basis at varying rates. It was also found by the Director that while records were kept of hours worked by other employees, no such data was available as to the working time of the brothers of the employer. Finally, while not strictly relevant to appellee, the Director found that appellee's brother, Toshio, was granted a leave of absence of almost six months to care for the father of the three brothers, during which time he continued to receive his weekly salary of $125. This last finding raises at least an inference as to the special relationship of all within the family unit (not just Toshio) and especially since they all lived under the same roof during much of this time.

Appellee's emphasis on Section 2(3) and the careful phrasing of the language excluding one employed by a parent or a spouse, is misplaced. In Cherrin the Court stated the rationale of its decision in terms of the Board's power under Section 9 of the Act, 29 U.S.C. § 159, to determine which employees constitute an appropriate bargaining unit:

"* * * it would not be an arbitrary and capricious decision of the Board to exclude an employee from the unit and voting, upon various reasonable grounds, including family relationship to the owners." 349 F.2d 1001, 1004

It is clear that the employee involved there was not held to be excluded from the statutory category of "employees", but rather from the different classification of "appropriate bargaining unit." In the present case it is interesting to note that the Director's finding does not state that the brothers were not employees, but that they "were not eligible to vote in the election."

This difference is the key to the use of the family relationship plus special status test. The touchstone of an appropriate bargaining unit is the finding that all of its members have a common interest in the terms and conditions of employment, to warrant their inclusion in a single unit to choose a bargaining agent. See N.L.R.B. v. Ideal Laundry & Dry Cleaning Co., 330 F.2d 712 (10th Cir. 1964).

In view of the finding that an employee (even one within the statutory definition) enjoys a special status that allies his interests with the management and not with the rest of the employees, the exercise of the Board's broad discretion under Section 9 to exclude such employee, is clearly not in excess of its delegated power, nor is it in contravention of a specific prohibition of the Act. Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); Metropolitan Life Ins. Co. v. N.L.R.B., 330 F.2d 62 (6th Cir. 1964) vacated on other grounds, 380 U.S. 525, 85 S.Ct. 1326, 14...