opinion: NATIONAL LABOR RELATIONS BOARD v. SEXTON.
  No. 11816.
  United States Court of Appeals Sixth Circuit.
  April 16, 1953.
  George J. Bott and A. Norman Somers, Washington, D. C., for petitioner.
  Robert T. Caldwell, Ashland, Ky., for respondent.
  Before ALLEN, MARTIN and McALLISTER, Circuit Judges.
  PER CURIAM.
  The above cause came on to be heard upon the record, the briefs of the parties, and the argument of counsel.
  The Board found that respondent refused to bargain collectively with the certified bargaining representative in violation of Section 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158(a) (1, 5). Only one of respondent’s reasons for refusal to bargain admits of validity. It appears that the Board excluded Henry Sexton, respondent’s nephew, from the bargaining unit in question and from participation in the election for the selection of a bargaining agent. The Board acted in accordance with what it considered its proper authority under Section 9 of the National Labor Relations Act, as amended, 29 U.S.C.A. § 159, to exclude from the appropriate unit those employees who do not have a sufficient interest in common with other employees to warrant their inclusion therein, and the above exclusion was based upon the said employee’s family relationship to the respondent. Section 2(3) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 152(3), sets forth what the term “employee” shall include, and specifically excludes a spouse or child of an individual employer as such an employee, but provides for no other exclusion on the basis of family relationship. The Act, therefore, having expressly set forth the individuals who are excluded from the term “employee” on the basis of family relationship, we find no justification for the exercise of discretion on the part of the Board, by virtue of Section 9 of the Act, to exclude from the appropriate bargaining unit and from participation in the election for the selection of a bargaining agent any persons on the basis of family relationship other than those specifically excluded under Section 2(3).
  Now, therefore, it is ordered, adjudged, and decreed that the order of the Board be denied enforcement for the reason that the Board improperly excluded Henry Sexton, respondent’s nephew, because of his family relationship to respondent, from the appropriate bargaining unit in question and from participation in the election for the selection of a bargaining agent; and the petition for enforcement of the order of the Board is, accordingly, denied.
instruction: What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".