# National Labor Relations Board v. Action Automotive, Inc.

> Supreme Court of the United States · April 15, 1985 · 469 U.S. 490

URL: https://www.frixlaw.com/law-library/cases/9429829

## Case

- **Full name:** National Labor Relations Board v. Action Automotive, Inc.
- **Court:** Supreme Court of the United States
- **Decided:** April 15, 1985
- **Citations:** 469 U.S. 490; 105 S. Ct. 984; 83 L. Ed. 2d 986; 1985 U.S. LEXIS 46
- **Precedential status:** Published
- **Opinion:** Dissent by Stevens
- **Judges:** Burger, Brennan, White, Marshall, Blackmun, Powell, Stevens, Rehnquist, O'Connor
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9429829

## Opinion text

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 pro-management and hostile to union representation. In § 2(3) of the Act, 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, 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.
*500 During the period between 1935 and 1947 a policy of excluding pro-management employees from bargaining units might have been consistent with provisions of the Wagner Act which emphasized the employees’ right to organize. 3 Since the Taft-Hartley Act of 1947, 4 however, § 7 of the Act 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 278 .
*501 Although the Board has broad “discretion to define collective-bargaining units,” ante, at 497, § 9(b) of the Act now requires that such decisions shall “assure to employees the fiillest 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 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 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. 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, 171 (1981). 7 In contrast, the Court’s “expanded community of interest standard” 8 for determining a relative’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, 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. 10 Except under those circumstances, I seriously doubt whether the employees at Action Automotive, Inc. — especially those who oppose *503 organization of the unit by the union — would view “with suspicion,” ante, at 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.
“The term ‘employee’. .. shall not include . . . any individual employed by his parent or spouse . . . .” 29 U. S. C. § 152 (3).
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).
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, 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”).
Labor Management Relations Act, 1947, § 101, 61 Stat. 136 .
“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).
See Chemical Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 172-173 (1971); Kalamazoo Paper Box Corp., 136 N. L. R. B. 134, 137 (1962). See generally R. Gorman, Labor Law 68-74 (1976).
Cf. NLRB v. Yeshiva University, 444 U. S. 672, 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. 1 and 2, supra; NLRB v. Sexton, 203 F. 2d 940 (CA6 1953) (per curiam).
NLRB v. Caravelle Wood Products, Inc., 504 F. 2d 1181, 1187 (CA7 1974).
“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 811 (2d ed. 1977). In this context, “virtually every Board decision . . . favors one side or the other,” ante, at 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 ease, 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”).
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 (CA61965), cert. denied, 382 U. S. 981 (1966); NLRB v. Sexton, 203 F. 2d, at 940 .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9429829. Public record. Not legal advice.