Helfrich Vending, Inc.

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Helfrich Vending, Inc. and Local 215, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men, and Helpers of America. Cases 25-CA-5527 and 25-RC-5289 March 12, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On October 26, 1973, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a supporting Brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Helfrich Vending, Inc., Evansville, Indiana, its officers, agents, succes- sors, and assigns, shall take the action set forth in said recommended Order. IT IS ALSO ORDERED that the challenges to the ballots of Walter Burdick and Jack Miller be sustained and that the ballot of Ronald Smith be opened and counted. IT IS FURTHER ORDERED that, in the event the revised tally of ballots in Case 25-RC-5289 shows that the Union has received a majority of valid ballots cast, a Certification of Representative shall issue. However, in the event that the revised tally of ballots shows that the Union has not received a majority of the valid ballots cast, the election conducted on April 11, 1973, shall be set aside, and a second election shall be directed in accordance with the rules, regulations, and practices of the Board. In the circumstances of this case, we find it unnecessary to rely on the presence of Steven Helfrich , Adam Helfrich, and their attorney in the warehouse area dung the election as grounds for setting aside the election. DECISION AND REPORT AND RECOMMENDATIONS AS TO THE DISPOSITION OF CHALLENGED BALLOTS AND OBJECTIONS TO AN ELECTION HERBERT SILBERMAN , Administrative Law Judge: These consolidated proceedings were heard in Evansville, Indian- a, on August 7 and 8, 1973. All parties were represented at the hearing by counsel. Following the close of the hearing briefs were received from the General Counsel, the Employer, and the Union. The Pleadings The complaint in Case 25-CA-5527, dated June 8, 1973, and amended on July 23, 1973, alleging that Helfnch Vending, Inc., herein called the Employer or the Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, is based upon a charge filed on April 17, 1973, by Local 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union. In substance, the complaint, as amended, alleges that the Company has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act by (1) interrogating its employees concerning union activities; (2) warning employees that if the Union should win the pending representation election, part-time employees would be dismissed; and (3) engaging in surveillance of its employees by stationing its officers in such a position within its warehouse that employees who were seeking to vote in the election conducted by the National Labor Relations Board on April 11, 1973, were required to pass the officers in order to reach the area where the balloting was taking place. In its answer the Employer denies that it has engaged in the alleged unfair labor practices. With respect to the representation proceeding, Case 25-RC-5289: A petition requesting certification of repre- sentatives was filed by the Union on January 22, 1973. Thereafter, the parties entered into a stipulation for certification upon consent election which was approved by the Regional Director. Pursuant thereto, an election was conducted on April 11, 1973, in the premises of the Company among the employees in the following unit: All employees of the Employer at its Evansville, Indiana, establishment, but excluding all office clerical employees, professional employees, guards and super- visors as defined in the Act. The tally of ballots shows that of approximately 36 eligible voters, 17 votes were cast for the Union, 16 votes were cast against the Union, and 3 ballots were challenged. The challenged ballots are sufficient in number to affect the results of the election. On April 17, 1973, the Union filed timely objections to the election. The Regional Director caused an investigation of the challenges and the objections to be made and on June 8, 1973, issued his report thereon. The report shows that the Union challenged the ballots cast by Ronald Smith, Walter 209 NLRB No. 99 HELFRICH VENDING, INC. Burdick, and Jack Miller. The report recommends that the challenge to the ballot of Ronald Smith be overruled. The report further shows that the ballots cast by Walter Burdick and Jack Miller were challenged by the Union on the ground that they are supervisors within the meaning of the Act. As the challenges raise questions of fact that can best be resolved by direct testimony, the report recom- mends that a hearing be held to resolve the issues. The report also shows that the Union's objections to the election relate to conduct that is alleged to constitute unfair labor practices in Case 25 -CA-5527. The Regional Director, therefore, issued an order directing a hearing with respect to the objections to the election and the challenges and consolidating said hearing with the hearing in Case 25-CA-5527. Thereafter, the Employer filed exceptions to the Regional Director's report. On July 6, 1973, the Board issued a Decision and Order overruling the objections and adopting the Regional Director's findings, conclusions, and recommendations.' Upon the entire record in the cases and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer, an Indiana corporation, is engaged in preparing food, distributing food items by means of mechanical vending machines, and related activities. Its offices, warehouse, and principal place of business are located in Evansville, Indiana. During the 12 months preceding the issuance of the complaint, which period is representative of the Company's operations, the Employer, in the course and conduct of its business, purchased directly from States outside the State of Indiana, and caused to be shipped to its Evansville facility through channels of interstate commerce, goods and materials valued in excess of $50,000. During the same period of time the Company sold and distributed products valued in excess of $500,000 of which in excess of $50,000 were sold at enterprises each of which annually produces and ships goods valued in excess of $50,000 from their locations in the State of Indiana directly to points outside the State. The Employer admits, and I find, that it is engaged in commerce within the :Weaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Company maintains vending machines which m The Regional Director'; report, adopted by the Board, directs that Case 25-RC-5289, following the hearing before and Decision by the Administrative Law Judge, shall be transferred to and continued before the Board in Washington, D.C. 2 The eligibility list which was used in the April 11. 1973, election lists 37 597 provide food and related items for employees in factory and commercial establishments. The vending equipment is installed in the customers' premises under contractual arrangements between the Employer and the respective business organizations. The Company's offices, warehouse, garage, machine repair area, and kitchen are housed in a single facility in Evansville, Indiana, herein referred to as the plant. Its customers are located within a radius of 15 miles from its plant. As the vending machines require frequent restocking, some on a daily basis, and regular mechanical maintenance, the Company has established three service routes: one that includes the Alcoa plant at Newburgh, Indiana, which is the Company's largest customer, and the surrounding area; the second that embraces the city of Evansville; and the third that includes plants located in Mount Vernon, Indiana, and the surrounding area. The Company was organized in 1950 by Adam Helfrich, who now is its president. At that time Adam Helfrich owned and operated a service station. He began the Company with seven vending machines which he personal- ly attended in his spare time. As the Company's business prospered additional vending machines were acquired. By 1958 Adam Helfrich had begun to devote full time to the Company's business and had hired another man to help him. In August of that year the employee quit and Adam Helfrich's son, Stephen, who is now secretary-treasurer, joined his father in the business. The Company continued to grow and in January 1962 Walter Burdick was hired. Until then the Company's business was conducted exclu- sively by the members of the Helfrich family. Later additional employees were hired. Of those, the person still employed with the longest continuous service is Jack Miller who was hired about 8 years ago. In 1971, the Company started its own commissary where it prepares food. Louise Hawes, who is a supervisor within the meaning of the Act, was hired to operate the kitchen. As of the date of the election, April 11, 1973, the Company employed more than 40 persons 2 and owned about 586 vending machines. The Company's office, clerical, and financial functions are done principally by Adam Helfrich, his wife, his daughter, the office manager, Glen Rowley, and a bookkeeper. There are four warehouse employees who perform the customary warehouse func- tions of receiving goods and preparing goods for the routemen to load onto their trucks. William Sartain, who has the longest service in the warehouse, acts as leadman and, as described by Stephen Helfrich, "is in kind of charge over the overall general maintenance of the warehouse and the facilities." However, Adam Helfrich, who spends his working time at the Evansville plant, exercises general supervision over the warehouse activities. There is no contention that Sartain is a supervisor and he voted in the election without challenge. Eight women are employed in the kitchen to cook and to perform related activities under the supervision of Louise Hawes. The work of the remaining employees principally involves service of employees, including Walter Burdick and Jack Miller. Their Job classifica- tions were described by testimony at the hearing. Unless otherwise stated all references in this Decision to the number of employees in the various job classifications will be based on the eligibility list 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the vending equipment. Two are collectors. As their title implies they collect the money from the vending machines. Seven women are employed as hostesses. They work at the customers' premises3 performing such functions a_s clean- ing and replenishing vending machines and assisting persons who use the vending machines. The remaining employees are the routemen who service the vending machines. They receive the food items and other merchan- dise at the warehouse which they load onto their trucks in the evening and the next morning drive to the various stops on their route where they replenish and clean the vending machmes4 and make minor repairs as necessary. There are 16 routemen including Walter Burdick and Jack Miller. The latter two normally do not clean or stock vending machines. However, they regularly inspect the machines and the areas where the machines are installed for cleanliness, for adequacy of merchandise, and generally to insure that the Company's operations are being satisfacto- rily performed. Burdick and Miller also repair the vending machines and do preventive maintenance work on the equipment. An issue in these cases is whether Burdick and Miller are supervisors as defined by the Act. They are salaried employees. But the following six employees who voted in the election without objection also are salaried: James Barber, Carl Bennett, Donald Edwards, James Garner, Roger Seitz, and Darrell Williams. Bennett and Garner are collectors and the other four are routemen. All salaried employees are listed on the Company's records as supervisors. Salaried employees are paid for overtime work on a straight-time basis instead of at a rate of time and a half, they have better insurance coverage than the hourly paid employees, and they have personal use of company vehicles. However, all salaried employees, including Burdick and Miller, wear the same uniforms as the hourly paid employees. According to Stephen Helfrich, being placed on salary is in the nature of a promotion and the employees who have received such recognition are those who have performed their jobs well, who have demonstrat- ed an interest in the welfare of the Company, and who are prepared to accept additional responsibility.5 The fact that Burdick and Miller are listed on company records as supervisors and are paid salaries does not necessarily determine their status as supervisors under the Act because the other six salaried employees admittedly are not supervisors. Probably because the Employer is a family owned enterprise which over a period of less than 25 years has grown from a one-man operation to its present size, there is no formal delineation of employee duties and responsibili- ties. Adam Helfrich spends almost all his working time in the Evansville Plant. He assumes principal responsibility for the financial and clerical functions of the business. Also, he oversees the warehouse employees and in a general way the other activities in the Plant. Stephen Helfrich is primarily concerned with customers' service and equipment repair. He testified that he is in charge of 3 The hostesses are not required to report to the Evansville plant. 4 In the few establishments where hostesses are assigned the latter clean the vending machines and replenish the stock However , the routemen deliver the merchandise to those locations all personnel, does the hiring and firing, establishes all wage rates, and decides upon all other employee benefits. He spends about 30 to 45 percent of his working time at the Evansville Plant and 90 percent of his remaining time servicing the Alcoa route. Because of the limitations on his time Helfrich visits the stops on the Mount Vernon and Evansville routes approximately once each quarter. Thus, unless Burdick and Miller are supervisors-Burdick is assigned to the Mount Vernon route and Miller to the Evansville route-the ioutemen and hostesses on these two routes work without supervision. Stephen Helfrich testi- fied, "The people do not need supervision, they know their jobs. They are inspected, but they are not supervised." According to Stephen Helfrich, if there are problems, the employees on the Mount Vernon route report them to Walter Burdick or Donald Edwards and the employees on the Evansville route report them to Jack Miller or Roger Seitz. B. Status of Walter Burdick and Jack Miller It is the Employer's position that the only supervisors are Stephen Helfrich, Adam Helfrich, the latter's wife and daughter, Glen Rowley, and Louise Hawes. Louise Hawes supervises the kitchen employees. Adam Helfrich, his wife, his daughter, and Glen Rowley supervise the office and the clerical work. Adam Helfrich also supervises the ware- house operations. Stephen Helfrich supervises the route- men and hostesses .6 Stephen Helfrich testified that the work of the routemen "is the heart of our company because without them, we could not sell our product. Somebody has to put the product on the shelves and this is where sales are generated so this is where the entire finances come from which operate our Company." Routemen, according to Stephen Helfrich, are expected to maintain a neat and presentable appearance which will give a good image to the customers. They are expected to keep their trucks properly stocked so that they can replenish the vending machines as needed and are expected to keep the vending machines clean at all times. In addition, the routemen are supposed to keep the areas where the vending machines are located free of trash, to see that machines have an adequate supply of coins, and to make minor repairs to machines. More difficult repairs are made by Miller, Burdick, and Stephen Helfrich. Stephen Helfrich testified that he is "the one who tells the routemen what to do." However, because he inspects the Evansville and Mount Vernon routes no more than once each quarter, Stephen Helfrich necessarily depends upon others for information regarding the condition of the machines and the performance of the employees on these routes. The others upon whom he depends for such information are Burdick and Jack Miller. Stephen Helfrich testified that it is his custom to discuss the day-to-day operations of these routes each morning and each afternoon with both Burdick and Miller. They report to Stephen Helfrich about the condition and the cleanliness of the equipment and the adequacy of the service. He also S Stephen Helfrich testified that salaried employees are expected "to report anything that would be derogatory about the Company to me." 6 Stephen Helfnch's testimony indicates that at the present time he, rather than his father, is the principal operating official of the Company HELFRICH VENDING, INC. testified that he depends upon Burdick and Miller for information regarding the performance of the employees.? Also, Stephen Helfrich testified that any personnel action he takes regarding the routemen and the hostesses is based almost entirely upon the reports he receives because he has only limited opportunity for personal observation. The authority of Walter Burdick and Jack Miller is the same. Neither Burdick nor Miller was called as a witness. Therefore, the evidence developed concerning their duties and authority is derived from the testimony of Stephen Helfrich and the various employees who were called as witnesses. Stephen Helfrich sought to establish that Miller and Burdick are responsible for inspecting, maintaining, and repairing equipment. According to Stephen Helfrich, they have "the authority to do anything that would be necessary to insure the functioning of the equipment ...." The position of the Company is that any authority Burdick and Miller exercise over other employees is routine and incidental to their primary function of inspecting and repairing the vending machines. Thus, according to Stephen Helfrich, if Burdick or Miller notices that a routeman has not properly serviced a machine because either it was not cleaned or not adequately stocked, Miller or Burdick, as the case may be, gets in touch with the routeman and the latter is expected to remedy the situation. More evidence was adduced at the hearing regarding Burdick's activities than Miller's. As of April 11, 1973, nine employees were assigned to the Mount Vernon route to service about six or seven customer stops. Three were hostesses, two of whom were assigned to the Babcock & Wilcox plant and one to the GE plant. One employee, Carl Bennett, made the collections and the remaining five employees were routemen. Three of the routemen were hourly paid and two were salaried employees. The hourly paid employees were Daniel Hale, William Bayne, and Stanley Niemeier. The latter was a part-time employee. The salaried employees were Donald Edwards and Walter Burdick. Burdick, who has the longest continuous service with the Company aside from members of the Helfrich family, is paid $190 per week. Except for Miller who receives the same salary, the next highest paid employee is Donald Edwards who receives $150 per week and then Roger Seitz who receives $140 per week. Unlike other routemen, Burdick normally drives a station wagon instead of a truck. Except for emergencies Burdick does not clean or restock vending machines .8 Although Stephen Helfrich testified that the routemen and hostesses require no direction in the performance of their duties, he also testified that if they encounter any problems they report their difficulties to the office or to the salaried employees. Stephen Helfnch testified that because he visits the customer stops on the Mount Vernon route only slightly more than once per quarter he relies primarily on Burdick and Edwards for information as to how well the accounts 4 Stephen Helfrich testified that he also receives reports from Donald Edwards and the other salaned employees 8 Edwards, the other salaned employee on the Mount Vernon route, like the hourly paid routemen, drives a truck and delivers stock 9 According to Stephen Helfrich it is the duty of all employees to report 599 are being serviced and as to the performance of the employees. Normally, Helfrich meets with Burdick every morning and afternoon to discuss the operations of the route and with Edwards once each day for the same reason. Burdick has reported incidents of employee misconduct to Stephen Helfrich .9 Thus, with respect to Wyman Crow, Burdick made derogatory reports about his neatness, the cleanliness of his machines, and the service of his accounts. According to Stephen Helfrich, he also received derogatory reports about Crow from Edwards, Jack Miller, and James Stevens, another routeman. After making a personal investigation of the matter and because there were shortages of cash from the machines serviced by Crow, Helfrich discharged Crow. On one occasion Burdick recommended that Roger Seitz, then an employee on his route, be advanced. About a month later Stephen Helfrich promoted Seitz to a salaried position. Helfrich testified that in deciding upon the promotion he gave consideration to Burdick's recommen- dation, but he also had obtained a favorable impression of Seitz and had received information about Seitz' perform- ance from Edwards. Seitz testified that when Stephen Helfrich informed him of his promotion Helfrich men- tioned that Burdick was pleased with the job he had been doing. According to Stephen Helfrich, only he has authority to give employees time off, to transfer employees, and to otherwise affect their employment. As Helfrich is not always available, a routeman or a hostess who wishes time off or other- personal consideration may in the first instance make the request to Burdick or Edwards who then presents the matter to Helfrich. But when Helfrich is unavailable Burdick has authority to grant such requests. Several employees were called as witnesses who gave testimony reflecting upon their relationship with Burdick and Miller. Thus, Daniel Hale testified that in February 1973, when Crow was terminated, he told Donald Edwards that he would like to be assigned to Crow's route, which was in the Mount Vernon area, instead of continuing as a substitute driver. Edwards said he would relay the request to Burdick. Several days later, on a Friday afternoon, Burdick informed Hale that starting on Monday Hale would take over the vacant Mount Vernon route.10 Also, about 3 days after Hale began what he understood was a permanent assignment on the Mount Vernon route he was directed by Stephen Helfnch to substitute for an absent driver on the Alcoa route. The next day when Hale returned to the Mount Vernon route Burdick said that he had had nothing to do with the previous day's transfer, that he was upset about the shifting of routemen, and that Hale "was to confer with him no matter what Steve [Helfrich] said." Hale further testified that he was employed twice by the Company. When he returned the second time Stephen Helfrich informed him that Burdick was still supervisor of the Mount Vernon route and any problems Hale might to him any incident involving another employee's misconduct. iu Hale testified that on all prior occasions when his route was changed (presumably as he was a substitute driver this happened with some frequency) Burdick informed him that the decision would be made by Stephen Helfnch 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have he should take up with Burdick . Hale explained that he understood the problems to which Helfrich was referring were problems with equipment . Hale testified that he performs his day-to-day work without any supervision. Hale also testified that once Burdick asked him to assist another employee install a dollar bill changer, which he did, and which required him to work overtime . Another time Burdick instructed him to return to a stop and fill some vending machines which were low in merchandise. Hale lastly testified that when he wanted to be off during the July 4 weekend he arranged with another employee, James Stevens, to cover his route and then sought and obtained Burdick's approval. According to Helfrich, anyone who is scheduled to work on a Saturday or a Sunday and wishes to take the day off is required to find another qualified employee to cover his route, and approval of the substitution then is customary. Roger Seitz testified that he became ill while at work two or three times and on each of these occasions he obtained permission from Burdick to leave early . Seitz also testified that twice, when the merchandise was not ready to load onto his truck in the evenings , he obtained Burdick's permission to leave work a half hour early and to report a half hour early the next morning to load his truck. On both occasions Burdick initialed Seitz' timecards. Seitz also testified that while he was on the Mount Vernon route he routinely received instructions from Burdick regarding the performance of his work such as to do extra cleaning and "things like that." Michael Allgood testified that one day , after April 1973, Burdick asked him to help uncrate a vending machine, and another time Sartain, stating that he was relaying a request from Burdick, asked Allgood to help exchange a machine at a customer's location. In a similar vein Wyman Crow testified that when Darlene McDurmon, a hostess at the GE plant, had an accident Burdick instructed him to fill her Coke machines ; another time Burdick instructed him to deliver merchandise to the hostesses at the GE and Babcock & Wilcox plants; and at other times Burdick told him to keep his machines in better condition . Crow also testified that Burdick once gave him permission to leave work early in order to visit his dentist . Crow further explained that he made the request to Burdick because Stephen Helfrich from whom he normally would have sought such permission was not available. However, Crow also testified that "Don Edwards told me that Walt Burdick was my supervisor in Mount Vernon." ii James Stevens testified that once, after he had punched out and was leaving the Plant , Burdick directed him to return and to load his truck, which he did. Stevens explained that he had not loaded his truck because he had not used much stock during the day. Stanley Niemeier testified that he receives his instruc- tions from Burdick. In addition to instructions about normal matters of service, which from time to time required him to alter his route schedule, once Burdick informed him that the power at the GE Plant was going to be shut down and that he should remove the food from the vending machines to avoid spoilage . On another occasion Burdick instructed Niemeier to try to fix a coffee machine at a customer location . Also, during Easter, Burdick gave Niemeier the day off on Saturday because so few people were working in the customers' plants. Miller's functions and authority are essentially the same as Burdick's. He is the senior employee on the Evansville route. There are between 20 and 30 customers plants on that route . There are three route drivers including a part- time driver, a collection man, and three hostesses. Stephen Helfrich inspects the vending machine installations on this route no more than once a quarter. As with Burdick, Stephen Helfrich usually speaks with Jack Miller each morning and afternoon about subjects relating to the route . Where Miller observes any deficiency he normally instructs the routemen to correct the matter. In Helfrich's absence, Miller has authority to take appropriate action such as permitting an employee to take time off or assigning an employee to cover the route of an absent employee. With evident reluctance Stephen Helf- rich testified that in connection with personnel actions that are taken two or three times each year he gives considera- tion to Miller's favorable comments about the performance of the employees, and further, that several employee transfers were effected upon Miller's recommendation. Stephen Helfrich, who was the only witness called by Respondent, sought to deprecate the supervisory duties and authority of Burdick and Miller by averring that they are responsible for the functioning of equipment, not people, by emphasizing his own managerial control and belittling the weight given to their views and recommenda- tions in regard to personnel matters, and by suggesting that Donald Edwards and Roger Seitz perform similar func- tions, thereby attenuating their authority . I am uncon- vinced by Helfrich's testimony. In explaining the duties and authority of Burdick and Miller he was unsuitably selective in the presentation of the facts; he sought to characterize their positions rather than describe their responsibilities ; and, in general, he seemed to shape his testimony to harmonize with his picture of the Employer's case rather than to give a simple and straightforward recitation of the facts. As an example, when asked to describe what Burdick does, Helfrich first testified, "He services the machines." When pressed to give more detail Helfrich testified, "He also resupplies machines with change. He checks with the hostesses as well as the routemen to see if there are any mechanical problems with the machines they may be aware of that he is not aware of." Only after Helfnch's attention was directed to the fact that he normally visits the customer stops on the Mount Vernon route not more than once a quarter did Helfrich admit that Burdick had any duties other than attending to mechanical equipment . Helfrich then acknowledged that he obtains and relies on reports he receives from Burdick concerning the Company's operations on the Mount Vernon route. To dilute the importance of that function Helfrich attributed the same responsibility to Edwards. But on further questioning, it developed that Helfrich meets with Burdick twice each day to discuss the operations of his route while he sees Edwards no more than once a day. 11 To illustrate how differently the employees viewed the positions of Burdick and Edwards, Crow testified that Don Edwards "wasjust another routeman to my knowledge " HELFRICH VENDING, INC. Further, Edwards' reports are necessarily more limited than Burdick's because Edwards is only able to report about the operations at his own customer stops, while Burdick visits all the customers, including Edwards' customers, on the Mount Vernon route. I do not accept Helfnch's testimony that the employees on the Mount Vernon and Evansville routes work without any supervision. The work of the hostesses and routemen is largely repetitive and therefore it is not necessary for a supervisor to direct their activities on a minute-by-minute basis. However, he service of the routes is the heart of the Company's, business. Inspections are made to insure that the employees on the routes are performing their duties satisfactorily. Arid the persons who regularly make such inspections on the Mount Vernon and Evansville routes are Burdick and Miller. When something goes awry-such as when an employee fails to clean a vending machine or does not have the machine properly stocked-the direction of Burdick and Miller to correct the deficiency is understood by the employees to be an order with which they must comply-not merely a suggestion from a coworker that can be ignored. Both Miller and Burdick direct employees to perform duties which are not part of their normal assigned work. The record is replete with examples of nonroutine work done by employees upon the instructions of Burdick or Miller which at times involved compensable overtime. The evidence is clear that the employees understand that Burdick and Miller are their supervisors.12 When employees want special consideration such as time off or a transfer they apply in the first instance to Burdick and Miller. Furthermore, Burdick and Miller stand apart from all other employees on their routes, including Edwards and Seitz. They are paid 25 to 80 percent more than the other employees including Edwards and Seitz. They drive station wagons, not trucks. They do not normally perform the delivery and stocking functions of the routemen. Furthermore, Helfnch has no practical opportunity to observe and to evaluate the employees on the Mount Vernon and Evansville routes. He acknowledg- es that his personnel actions are determined by the information he receives from others. The only others whom he consults regularly who have extended experience with the Company and who have the acknowledged confidence of the Helfrich management are Burdick and Miller. Thus, when Seitz was informed of his promotion by Stephen Helfrich, the latter told Seitz that it was upon the recommendation of Burdick. I find that the recommenda- tions of Miller and Burdick regarding personnel matters, including discipline, promotion, and transfer of employees, are effective and prompt appropriate management action. I also find that Burdick and Miller have the authority responsibly to direct the work activities of the employees on their respective routes. The employees understand that they have such authority and accept their orders. Accord- ingly, I further find that Burdick and Miller are supervisors within the meaning of Section 2(11) of the Act. C. Interference, Restraint, and Coercion 601 The complaint alleges that during the preelection period and on the day of the election the Company engaged in conduct which unlawfully infringed upon employees' rights. Anthony Velotta, who worked part time as a janitor for the Company, testified that about a week before the election Stephen Helfrich came to the kitchen area and engaged him in a conversation about the organizational campaign. According to Velotta, Helfrich "asked me how I felt about the whole thing and I told him I was undecided. I hadn't made up my mind yet. And then he told me if the election came out to favor a Union that part-time help would probably be let go and they would hire one full-time worker to work my job and Mike's [Michael Allgood's] job." Stanley Niemeier, who worked part time as a routeman, testified that about a week before the election, at the request of Stephen Helfrich, he met Helfrich in the parking lot at Indiana State University in Evansville. According to Niemeier, the conversation turned to the union activities of the employees and Helfrich asked him what he thought about the Union. Niemeier answered that he had not made up his mind. Helfrich said that he was treating the employees fairly and if they had any complaints about their pay or their conditions of work they should have seen him about the complaints rather than go to the Union and try to get the Union in. Helfrich also stated that "if the Union got in, it may not be necessary to have part-time workers. He said I may be out of a job if the Union won the election." Helfrich also sought to disparage the Union by showing Niemeier pictures of the new and presumably elaborate union building and by referring to the wealth of the Union's president and to the fact that the latter owned a boat, an airplane, and a camp on a Kentucky lake. Lastly, according to Niemeier, Helfrich said to him that the latter had nothing against the Union except that the Union had a bad strike record and that he did not want the threat of a strike hanging over his head. Daniel Hale, who was employed as a routeman, testified that on the morning of the election he was summoned to Stephen Helfrich's office. Helfrich told Hale that Helfrich wanted to beat the Union by a wide margin and that he did not believe the Union could do anything for the employees. Helfrich asked Hale how he felt about being represented by the Union. Hale did not respond. Helfrich then said that he hoped he could have Hale's support in the election and "those people that would support the company in this election, he felt they would have a future with the company." Helfnch testified that during the preelection period he spoke with most of the employees. Concerning his conversation with Velotta, Helfrich did not deny asking the latter how he felt about the Union. However, according to Helfrich, Velotta said that he was torn between the view of his father who opposed unions and the opinion of his uncle who favored unions. Helfrich also admitted that there was discussion about what would happen to part-time help. In that regard Helfrich testified, "I had mentioned about part- 12 For instance, James Stevens and Michael Allgood testified without any qualification that Jack Miller was their supervisor 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time help and that I was not sure at this time what would happen to our part-time help. I do know that in negotiating Union contracts and so forth that there are minimum hours . . . . And due to the contract and how it would be negotiated, I would not be able to comment exactly how part-time help would be affected but that it could be affected." Helfrich did not deny that he said that if the Union won the election part-time help would probably be dismissed and one full-time employee would be hired to do Velotta's and Michael Allgood's work. Helfrich's version does not differ substantially from Niemeier's version of their conversation. Regarding part- time employees, Helfrich testified, "I told them I didn't know how it would affect their job but it definitely could affect their job due to whatever type of contract we would have with the Union if they were successful in winning the election." Helfrich's testimony regarding his conversation with Dale is substantially in accord with Hate's testimony. According to Helfrich, "I had told him that I would very much like to see that the Company would win the majority or landslide victory-that all the employees would vote for the Company, but I knew this was a hypothetical situation and it wouldn't take place. But I felt that the Company had been growing. It had been prospering through the years but we had a better chance to prosper without a Union rather than have a Union. But I told him I was not against the Union but I was against strikes. And I felt like if we had a strike, it would be the biggest blow that we could have to our Company. . . . I mentioned that if we would win the election, employees with the Company could have a good future with the Company because I thought we could go ahead and work toward better things." The differences are insubstantial between the testimony of Velotta, Niemeier, and Hale regarding their individual conversations with Stephen Helfrich and Helfrich's testi- mony concerning the same events. However, to the extent that there are conflicts I credit the three employees rather than Helfrich.13 Helfrich warned Velotta and Niemeier that part-time employees might lose their jobs should the Union prevail in the forthcoming representation election. In substance, Helfnch's explanation for his statements to Velotta and Niemeier is that if the Union won the election its contract demands would probably compel the discharge of part-time employees. However, the record does not establish that Stephen Helfrich had any way of knowing what demands the Union might make upon the Company in connection with the negotiation of a collective-bargain- ing agreement or that the Union's demands might compel the Company to eliminate part-time employees. Such prediction on Helfrich's part, therefore, was purely speculative and unlawful. As the Supreme Court stated in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618(1969): [An etiiiployer's prediction about the consequences of 13 Helfnch's testimony, particularly when being questioned by opposing counsel, was evasive Instead of giving direct , straightforward replies to the questions asked him, his answers tended to be conclusionary and tended to avoid or omit factual content which he believed adverse to the Company's position I consider that Stephen Helfrich was an unreliable witness. 14 Although there is no specific allegation in the complaint that the unionization ] must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrable probable consequences beyond his con- trol . . . in case of unionization.... If there is any implication that an employer may . . . take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion ... . Similarly, Helfnch's statement to Hale that people who supported the Company in the election would have a future with the Company constituted an unlawful promise of benefits in order to wean employees' support away from the Union.14 Although nothing concrete was promised to Hale, Helfnch's remark to him did not detract from the necessary tendency of the statement to cause employees to expect better terms of employment which might make union representation unnecessary. As the Board stated in Reliance Electric Company, 191 NLRB 44, "such cautious language, even refusal to commit Respondent to specific corrective action, does not cancel the employees' anticipa- tion of improved conditions if the employees oppose or vote against the unions." I also find that Helfrich's questioning employees regard- mg their union sentiments in the context of the other remarks he made to them constituted unlawful interroga- tion. "When a supervisor with expressed anti-union sentiments asks an employee about his union affiliation and the union sympathies of his fellow workers, there is going to be a most natural coercive effect on the questioned employee." N.LRB. v. Louisiana Manufactur- ing Company, 374 F.2d 696, 700 (C.A. 8, 1967). Further exacerbating the unlawful impact of the interrogation is that it occurred so close in time to the election . Regarding interrogation in such circumstances, the Board has stated: We are reluctant to dismiss as trivia any interrogation of employees as to how they intend to vote in a pending representation election. Such conduct tends to under- mine the very purpose of a Board-conducted election, i.e., the opportunity for an employee to cast a secret ballot without the necessity of publicly declaring his position toward a proposed bargaining representa- tive.15 Burdick also is alleged to have engaged in unlawful interrogation. The evidence adduced by General Counsel in this regard is undenied. Anthony Velotta testified that on Saturday, April 7, 4 days before the election, Burdick asked him how he was going to vote. Velotta answered that he had not made up his mind. During the conversation Burdick also said to Velotta that a union is not good for a small company because should there be a strike the Company made unlawful promises of benefits, Hale's testimony with respect to the subject was substantially corroborated by Stephen Helfrich In the circumstances, it is appropriate in this Decision to make findings concerning the promise of benefits made by Helfrich as the matter was fully litigated at the hearing. 15 Clark Punting Company, Inc., 146 NLRB 121, 122. HELFRICH VENDING, INC. Company would lose its accounts as the vending machines would not then be serviced. Daniel Hale testified that approximately 2 weeks before the election Burdick asked him how many drivers would vote for the Union. Hale replied that possibly more were in favor of the Union than were against it . Two or three days later Burdick joined Hale while the latter was finishing his lunch. During their conversation, Burdick asked Hale how he felt about the Union . Hale responded that there were good points and bad points to both sides. These inquiries by Burdick regarding the voting intentions of employees with whom he was speaking and their knowledge of the voting intentions of other employees in the context of "an atmosphere of restrained but clearly evident disapproval of a union" constitute unlawful interrogation within the meaning of Section 8(a)(1) of the Act.16 The final allegation of the complaint relates to alleged surveillance. During the period that the polls were open on April 11, 1973, Stephen Helfrich, Adam Helfrich, and their attorney stationed themselves in the warehouse area. The layout of the premises is such that in order to vote the employees had to pass through this area . During this time James Stevens was offered a cup of coffee by Stephen Helfrich, which Stevens declined, and Stanley Niemeier was greeted by Stephen Helfrich who asked Niemeier if he had voted. I do not agree with General Counsel that this conduct constituted a violation of Section 8(a)(1). Howev- er, such conduct does furnish grounds for setting aside the election . In Performance Measurements Co. Inc., 148 NLRB 1657, 1659, the Board held that "the continued presence of the Employer's president at a location where employees were required to pass in order to enter the polling place was improper conduct not justified by the fact that for part of the time he was instructing supervisors on the release of employees for voting purposes . We find that by this conduct the Employer interfered with the employees' freedom of choice in the election ." 17 Further, in Michem, Inc., 170 NLRB 362, the Board decided that any conversation, regardless of the innocence of its content, with prospective voters waiting to cast their ballots vitiates the election. The Board explained "[t]he final minutes before an employee casts his vote should be his own, as free from interference as possible. Furthermore, the standard here applied assures that no party gains a last minute advantage over the other, and at the same time deprives neither party of any important access to the ear of the voter. . . . This rule is nothing more than a preventive device to enforce the ban against electioneering in polling places normally applied in political elections and in our representation elections." IV. THE REPRESENTATION PROCEEDINGS A. The Objections I have found that during the period of approximately 2 weeks before the election, which was held on April 11, 1973, the Employer engaged in various conduct constitut- ing unfair labor practices. The nature of the conduct, which is described above, is such to have had a coercive 16 L C Cassidy & Son, Inc v. N.LP-B., 415 F 2d 1358, 1361 (C A. 7, 1969). 603 impact on the employees and tended to prevent them from making a rational election decision. Also, I have found that the conduct of company officials in stationing themselves in the warehouse during the time the balloting was taking place so that employees going to and from the polling booth were required to pass them, and in engaging employees in conversation during this period, constitute further interference with the conduct of the election. Accordingly, I recommend that the election conducted among the employees of the Company on April 11, 1973, in the unit described above be set aside. B. The Challenged Ballots As I have found that Walter Burdick and Jack Miller are supervisors within the meaning of Section 2(11) of the Act I shall recommend that the challenges to their ballots be sustained. In accordance with the Decision and Order of the Board dated July 6, 1973, I shall recommend that the ballot of Ronald Smith be opened and counted. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with the Company's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that the Company has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. By threatening employees with reprisals should the Union win a representation election, by promising the employees benefits should the Union lose a representation election, and by coercively questioning employees about their union sympathies, their voting intentions, and the voting intentions of other employees, the Company has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in these proceedings, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 11 But see Colonial Lincoln Mercury Sales, Inc, 197 NLRB 54 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 18 Helfrich Vending, Inc., Evansville, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees that part-tune workers might be discharged, or threatening employees with other reprisals, should Local 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, win a represent- ation election. (b) Promising employees benefits if Local 215, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization, should lose a representation election. (c) Coercively questioning employees regarding their union sympathies or voting intentions or the sympathies or voting intentions of other employees. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its place of business in Evansville, Indiana, copies of the attached notice marked "Appendix." 19 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Company's representative, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO RECOMMENDED that the challenges to the ballots of Walter Burdick and Jack Miller be sustained and that the ballot of Ronald Smith be opened and counted. IT IS FURTHER RECOMMENDED that, in the event that the revised tally of ballots in Case 25-RC-5289 shows that the Union has received a majority of valid ballots cast, a Certification of Representative shall issue. However, in the event that the revised tally of ballots shows that the Union has not received a majority of the valid ballots cast, the election conducted on April 11, 1973, shall be set aside and a second election shall be directed in accordance with the rules, regulations, and practices of the Board. 18 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 19 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to discharge part-time employees or threaten employees with other reprisals should Local 215, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, win a representation election conducted among our employ- ees. WE WILL NOT promise employees benefits should Local 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, lose a representation election conducted among our employees. WE WILL NOT coercively question our employees regarding their union sympathies or their voting intentions in any representation election, or regarding their knowledge of the union sympathies or voting intentions of other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. HELFRICH VENDING, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.