This case is before us on the petition of Linn Gear Company [Linn Gear] for review of a summary judgment and order granted by the National Labor Relations Board [Board] (29 U.S.C. § 160(f)), and cross-application of the NLRB for enforcement of that judgment order (29 U.S.C. § 160(e)).
The NLRB on a motion for summary judgment found that Linn Gear violated § 8(a)(1) and (5) of the National Labor Relations Act [the Act], 29 U.S.C. § 158(a)(1) and (5), by refusing to bargain with the International Association of Machinists & Aerospace Workers [the Union].
ISSUE
In the final analysis, the principal issue presented on this appeal is whether a genuine issue of fact is presented by the record. If so, the case must be reversed.
BACKGROUND
On March 10, 1977, the Union filed a representation petition with the Board, seeking certification as the collective bargaining representative of Linn Gear’s employees. Linn Gear and the Union, pursuant to an agreement for consent election agreed that the appropriate bargaining unit included “all employees of the employer excluding office clerical employees, salesmen, professional employees, guards and supervisors as defined in the Act.”
On April 21, 1977, the Regional Director of the NLRB conducted an election in the bargaining unit. The tally of the ballots showed fifty-four votes cast in favor of the Union, forty-five votes cast against the Union, and nine challenged ballots. Because the challenged ballots were sufficient in number to affect the outcome of the election, the Regional Director “investigated,” but did not hold a formal hearing. The ballot of one Brian Hartl was challenged by the Union on the ground that as the son of the owner of the stock of Saber Sprocket, the company with the controlling interest in Linn Gear, he was not properly included in the bargaining unit and, therefore, was ineligible to vote. From the facts gathered, the Regional Director concluded that since Brian Hartl’s father was not only the ma *793 jority stockholder of the controlling company, but was also president of and active in the management of Linn Gear, and inasmuch as Brian, although paying for his board and room, was living at home, it was a virtual certainty that he would be closer to the family than to the Union. Consequently, Brian did not share a community of interest with the other employees.
The Board, in granting summary judgment and in holding that Linn Gear was not entitled to a hearing on its contention that the vote of Brian should have been counted, relied entirely on
Pittsburgh Plate Glass Co. v. NLRB,
However, the fact that the Board may have entered the summary judgment for the wrong reason does not, on this record, prevent us from considering the appeal and deciding whether the summary judgment was properly entered on the merits.
After announcing its view that Pittsburgh Plate Glass was controlling, the Board proceeded to enter findings of fact and conclusions of law on the merits. In doing so, it necessarily found as a matter of law that the Regional Director properly sustained the challenge to the vote of Brian Hartl. Evidently the general counsel recognizes the weakness of the Board’s conclusion that Pittsburgh Plate Glass was controlling and on this appeal has proceeded to argue the case on the merits. In these circumstances, we shall proceed to decide whether a genuine issue of fact was presented which would prevent the entry of summary judgment.
SUMMARY JUDGMENT
The grant of a summary judgment is proper only where there is no genuine issue of material fact, or where viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law.
Alson Mfg. Aero. Div. of Alson Indus., OMC.
v.
NLRB,
Numerous inferences favorable to Linn Gear’s position may be drawn from the paucity of facts on the record before us. At the time of the election, Brian Hartl was 22 years old. He may be a maverick and have little contact with his family. He may come and go from his residence and take meals at different times from his father. Even if he does eat with his father, Brian may very well be at odds with him on the issues concerning the employees, the Union, and the company. It is entirely possible that Brian enjoys a very good relationship with the other employees in the bargaining unit, and shares many of their concerns and ideas. He may have little or no contact with his father while at work. In short, a hearing is necessary to shed light on these matters which bear directly on the question of whether Brian Hartl shares a community interest with his fellow employees.
The failure of the Board to hold a hearing in conformity with its notice, combined with its insistence on the entry of a summary judgment, deprives us of the benefit of the trier of facts’ conclusions on the credibility of witnesses, including that of Brian Hartl on: (1) his relationship to the Union; (2) his communication with other Union members; (3) his relationship with his fa *794 ther and other members of his family; (4) special favors, if any, granted to him as an employee; and (5) any other pertinent facts. On the present record, we find ourselves in a vacuum and hold that on the admitted facts, the pleadings and other material before us, a genuine issue of material fact was presented as to whether Brian Hartl should have been included in the unit and his vote counted. Consequently, the entry of summary judgment was improper and the case must be remanded for a hearing before the Board. That being the case and because this circuit has never expressed itself on the standards to be applied by the Board to a factual background similar to that before us, we deem it appropriate to fix guidelines to be applied by the Board to the facts adduced in the hearing on the remand.
ANALYSIS AND GUIDELINES
In determining whether to include or exclude a blood related employee from a designated bargaining unit, the Board has sometimes utilized 29 U.S.C. § 152(3), which in pertinent part provides:
“(3) The term ‘employee’ shall include any employee, . . . but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse . . .” [Emphasis supplied.]
and at other times 29 U.S.C. § 159(b), which in pertinent part provides:
“(b) The Board shall decide in each ease whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided . . . [Specific exclusions not here appropriate.]”
The Board has not always indicated why it chose one section over the other, but has traveled a zig-zag course in making its determination.
For example, in early Board decisions, employees employed by corporations were excluded from the unit because of their familial relationships with corporate officers for the reason that they lacked a community of interest with the other employees in the bargaining unit. Examples of this type of holding are
Louis Weinberg Associates,
Subsequent to
Sexton,
the Board began requiring more than mere “family relationship” before it would exclude particular employees from a bargaining unit. It commenced inquiring into whether the employee enjoyed some “special status or privilege, benefit, or favored treatment as a result of the blood relationship with management.”
See International Metal Products Co.,
This leads us to a discussion of the two cases which we feel should control our decision and fix proper guidelines for the Board to follow in this circuit. These are the Seventh Circuit cases of
NLRB v. Caravelle Wood Products, Inc.,
In
Caravelle I,
the court noted that the Board had not been consistent in its application of
Foam Rubber City No. 2
by pointing to
Buckeye Village Market, Inc.,
In criticizing the Board’s decision in Foam Rubber City No. 2, the Caravelle I court used the following language:
“The Foam Rubber City formulation which excludes children and spouses of ‘substantial’ shareholders of closely held corporations, has proved so elastic that it virtually repeals the statutory language. We must refuse to enforce the order to bargain because it was based on the exclusion of [seven blood related employees] as ‘employees’ under section 2(3).”466 F.2d at 678 . [Emphasis supplied.]
In other words, the Caravelle I court refused to expand the exclusionary category of § 2(3) so as to automatically exclude a shareholder’s blood related employee from the bargaining unit.
Beyond that, the Caravelle I court refused to follow the Board’s suggestion to automatically exclude the blood related employees from the bargaining unit under the provisions of § 9(b) of the Act, 29 U.S.C. § 159(b) (1965). The court there went on to say that it saw no reason to give the Board total discretion under § 9(b) to accomplish what it could not do under § 2(3). In reversing and remanding to the Board, the Caravelle I court directed a review of the various factors which would indicate how strong the employee’s identification might be with the owner of the business as against the interests of the employees, specifically mentioning the following:
“There are a number of factors the Board might consider under section 9(b): how high a percentage of stock the parent or spouse owns, how many of the shareholders are related to one another, whether the shareholder is actively engaged in management or holds a supervisory position, how many relatives are employed as compared with the total number of employees, whether the relative lives in the same household or is partially dependent on the shareholder.”466 F.2d 675 at 679.
In
Caravelle II,
the Seventh Circuit approved the Board’s decision which reaffirmed its earlier ruling that six employees should be excluded from the unit, not because of “job-related” factors, but because of the pattern of family ownership and control over the business which would indicate that the related employees may not share a common interest in the terms and conditions of employment. The court concluded that
Caravelle I
fashioned an “expanded community of interest” test under § 9(b) of the Act. Even since
Caravelle II
was decided, the NLRB and the courts have alternated between the job-related “special status” test
(Tops Club, Inc.,
While we have held that § 9(b) of the Act vests the Board with broad discretion in
*796
determining the appropriate bargaining units “ ‘in order to assure to employees the fullest freedom in exercising the rights guaranteed by this [Act]’ ”
NLRB v. Don Burgess Construction Corp.,
CONCLUSION
Inasmuch as the Regional Director failed to hold a hearing to determine the status of Brian Hartl and failed to articulate the guidelines, if any, he used in concluding that the Hartl vote should not be counted, and because on a hearing additional evidence might be adduced, as well as different inferences drawn from the facts, we hold that the record presented a genuine issue of fact preventing the entry of a summary judgment.
Consequently, the summary judgment must be vacated and the cause remanded to the Board to re-examine the nine challenged ballots. Re-examination of Brian Hartl’s ballot will require a hearing under the guidelines that we have laid down, unless the Board shall determine, after examination of the other ballots, that the Hartl ballot was irrelevant.
The order is vacated and the cause is remanded to the Board for further proceedings consistent with the views herein expressed.