C & L Warehouse & Distributing Corp.

1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C & L Warehouse & Distributing Corp . and Produc- tion Workers Union, Local 148, AFL-CIO. Cases 22-CA-12390, 22-CA-12470, and 22- RC-8926 12 July 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 22 February 1985 Administrative Law Judge Julius Cohn issued the attached decision. The Charging Party filed exceptions. The Board has considered the decision and the record in light of the exceptions and has decided to affirm the judge's rulings, findings,' and conclu- sions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. - IT IS FURTHER ORDERED that Case 22-RC-8926 be remanded to the Regional Director for Region 22 to open and count the ballots of Joseph- Schi- fano and Joseph Flately and thereafter to issue a revised tally of ballots and the appropriate 'certifi- cation.' i The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings 2 In the absence of specific exceptions thereto, we adopt pro forma the judge's conclusion that the questioning of employee Baill by the Re- spondent's president and executive vice president as to whether Baill had signed a union card did not violate Sec 8(a)(1) of the Act DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge. This pro- ceeding was held in Newark, New Jersey, on November 17, 1983, and January 26, 1984. On a charge filed by the Production Workers Union, Local 48, AFL-CIO (the Union) the Regional Director for Region 22 issued a complaint in Case 22-CA-12390 on June 17, 1 ,983, pursu- ant to Section 10(b) of the National Labor Relations Act. Thereafter on July 29, 1983, the Regional Director issued an amended complaint, on a charge' filed by the Union, in Case 22-CA-12479, and in the same document ordered that the two cases be consolidated.' The complaint alleges that C & L Warehouse and Dis- tributing Corp. (Respondent or the Employer) violated I Case 22-CA-12390 had previously been consolidated with Case 22- RC-8926, discussed infra Section 8(a)(1) of the'Act by interrogating certain- of -its employees as to their union activities and threatening them with -discharge as punishment for a refusal to answer. Additionally, the complaint alleges that Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging two employees because they joined, support- ed, or assisted the Union and engaged in other forms of protected concerted activity. Respondent filed answers to the original complaint,and to the amended :complaint respectively, denying the commission of any unfair labor practices. At the hearing the General Counsel moved to amend the complaint to include an additional allegation that Respondent violated the Act by an unlawful interro- gation and I granted the motion. A petition in Case 22-RC-8926 having been filed by the Union, pursuant to a Stipulation for Certification Upon Consent Election, executed by the parties-and ap- proved by the Regional Director on March 2, 1983, an election was held on March 17, 1983, among employees in an appropriate unit consisting of. all production, main- tenance, and warehouse employees, employed by Re- spondent at its 'Bayonne, New Jersey location, excluding all office clerical employees, drivers, and professional employees, guards and supervisors as defined in the Act, and all other employees. The tally of the ballots revealed that, of approximately 19 eligible voters, 18 voted. No ballots were void, seven ballots were cast for the Union, six votes were against the'Union, and five ballots were challenged. Since the challenged ballots were sufficient to affect the outcome of the election, the Acting Regional Direc- tor for' Region 22 issued a report on July 15, 1983, dis- posing of two of the challenges2 and recommending that the challenges to the ballots of Joseph Schifano, Daniel Moorman, and John Jackson be resolved on the basis of record testimony before an administrative law judge. Ac- cordingly, the Acting Regional Director issued an order consolidating the hearing on the challenges with Case 22-CA-12390. Following timely exceptions filed by the Employer on July 27, 1983, the Board adopted the find- ings and recommendations of the Regional Director. All parties were given an opportunity to participate,- to introduce relevant evidence, to examine and cross-exam- ine witnesses, 3 to argue orally, and to file briefs. The General Counsel and Respondent both filed briefs which have been carefully considered. On the entire record of the case including my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a New Jersey corporation with an office and place of business in Bayonne, is engaged in the ware- 2 The Acting Regional Director recommended that the challenge to the ballot of one Joe Flately be overruled and that Flately's ballot be opened and counted on the disposition of the three remaining challenges As to the ballot of one Charles Williams, the Regional Director recom- mended that the challenge be sustained a Pursuant to an agreement between the parties , the witnesses were se- questered 275 NLRB No. 148 C & L WAREHOUSE CORP housing and distribution of wearing apparel and related products . During the 12 months immediately proceeding the issuance of the , complaint, Respondent, in the course and conduct of its business , shipped from its Bayonne, New Jersey facility . products, goods, and materials valued in excess of $50,000 directly to points outside the State of New Jersey. The complaint alleges, Respondent admits, and I find that Respondent is now , and has been at all times material herein, an employer engaged in com- merce within"the meaning of -Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning' of Section 2(5) of the Act, III. BACKGROUND Respondent's warehouse and distribution facility is owned and operated by its ,president, Archimede Schi- fano (Arky) and its executive vice president, Josephine Schifano (Sandy). Three individuals supervised Respond- ent's activities Robert Harris was the vice president in control of Respondent's day-to-day operations, who re- ported directly to Sandy and Arky. Hollis DaSilva, the general manager, was responsible to Harris while Dave Feurstein, the foreman , reported to Harris and DaSilva. In January 1983 Respondent employed approximately 15 general warehouse employees . Additionally, Respondent employed a clerical staff and truckdrivers. The latter group was represented by a Teamsters local with which Respondent had a collective-bargaining agreement. On Friday, January 21 , 1983, several of the warehouse employees signed cards designating the Union as their collective-bargaining representative. There is no evi- dence of union activity among Respondent's warehouse staff prior to this date. According to the uncontradicted account of employee Diane Williams (Diane) the em- ployees signed the cards during their lunch break outside Respondent's premises. The cards were then collected and turned over to a union organizer On that same day Arky received amailgram informing Respondent that the Union represented a majority of its employees and demanding an opportunity to prove its majority status and begin negotiations . Arky testified that he received this notice about 2 or 3 o'clock in the after- noon Markings on the mailgram, which was received into evidence, indicate that it was sent at 1 :31 p.m. About 4 o'clock in the afternoon, on that same day, the employees were gathered together whereupon Arky appeared and explained that Respondent had lost an im- portant account (MSA) and was consequently laying off the entire warehouse staff According to Arky and sever- al employees who testified , Arky asked employees to call in on Monday to see if any work was available On the stand, Arky explained the layoff was caused by the loss of a major account which was leaving and refus- ing to pay out its contract , thus causing Respondent great financial distress . It seems - that, about midway in the week of the layoff, the departing account, MSA, in- formed Arky by telephone that, it was planning to take 1057 its business elsewhere and was not going to pay for the coming month . Arky replied that MSA could not pull out without paying out the contract : Arky thought that the matter had been settled when , on-Friday, representa- tives of MSA telephoned him and reiterated that MSA was moving to another facility, without paying out its contract 4 Respondent had lost another important ac- count several months before. On the Sunday immediately following the layoff sever- al of Respondent 's employees, specifically Charles Wil- liams, Dave Bethea, Diane, Joyce Prentice, Elry Taylor, and John Jackson , whose status as Respondent's employ- ee will be discussed infra, met at the home of Sandy Wil- liams to decide on a course of action . The employees de- cided to seek help from the Union , which they did the next day. Bob Riccio, the union representative who had collected their cards, instructed them to set up a picket line and supplied them with signs. By 10 o'clock on Monday morning Taylor, Charles Williams, Diane, Bethea, and Jackson had begun picketing Respondent's premises, where they remained until 4 :30 in the after- noon, the end of the employer's working day. After picketing on Monday, the employees went to the home of Daniel Moorman , who had not been working on the day of the layoff and whose employment status with Re- spondent will also be discussed later. They explained why they were picketing and Moorman agreed to join them, which he did the following . morning. The picketing continued on Tuesday,' Wednesday, and Thursday and was terminated by Respondent 's decision, after consulting with counsel , to call all of its employees back to work. Several employees, among them Pablo Cruz and John Bail], both of whom testified , did not join the picketing . Instead they followed Arky's instructions and called in on Monday , whereupon they were asked to come to work. IV. THE ALLEGED UNFAIR LABOR PRACTICES A The 8(a)(1) Violations 1. The alleged interrogation of John Baill by Arky and Sandy Schifano John Baill testified that he returned to work on Tues- day, January 25, 1983,5 having called Harris on Monday to find out if work was available. On his way home from work on Tuesday Baill was confronted at the bus stop by Bethea, Jackson, Taylor, and Diane. According -to Baill, Bethea and Jackson challenged him to fight. The following day Baill called Arky to tell him what hap- pened and to inform him that he (Bail]) would not work for the duration of the strike because he was afraid to cross the picket line. 4 MSA, on January 26, sent Respondent a lawyer's letter instructing Respondent to release its merchandise to another warehouse , and express- ing the opinion that the arrangement between Respondent and MSA was terminable at will The dispute between MSA and Respondent was ulti- mately resolved by a March 17, 1983,settlement agreement , under which the parties, inter alia, agreed to release all claims against each other and MSA agreed to pay Respondent $ 18,000 5 Henceforth all dates refer to the year 1983 except December dates which refer to 1982 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Diane Williams, on the stand, denied that the incident at the bus stop occurred. I credit Baill's account. In the first place, -it is undisputed that Baill worked only the second day of the strike. In light of willingness to cross the picket line on Tuesday there is no reason he would have failed to report for work on Wednesday and Thurs- day had he not been afraid to break the strike. The infer- ence that Baill's absence was based on fear rather -than sympathy with the strikers is underscored by the fact that Bail] never joined the picketing. Furthermore, Arky corroborated the fact that Baill called during the strike and was "very upset" when he announced that he would not return to work until the strike was over. Finally, while Baill had no reason to fabricate the incident at the bus stop, Diane clearly had a.motive to deny an incident which cast herself and her friends in a very unfavorable light. Baill-further testified that after returning to work he was summoned to Sandy's office where Sandy and Arky asked him if he. had signed a union card. Baill replied truthfully that he had not. On the stand Arky admitted that he spoke to Baill. during the strike, but denied that he questioned Baill about the union card. According to Arky he summoned Baill to reassure him that despite Jackson's and Bethea's threats. there was nothing to worry about. On cross-examination Baill denied that Arky and Sandy referred to the threats, in Sandy's office, but said that they did talk to him about the threats when he called them during the strike. I find that even assuming the veracity of Baill's ac- count the questioning in Sandy's office did not violate the Act. In Rossmore House, 269 NLRB 1176 (1984), the Board reiterated the rule that interrogations violate the Act only where, "under all 'of the circumstances [they] reasonably tend to restrain, coerce, or interfere with rights guaranteed by the Act." See also Blue Flash Ex- press, ' 109 NLRB 591 (1954). In the instant case the questioning was brief, unaccom- panied by threats or the promise of benefits. Further- more Baill, by complaining about the threats he had re- ceived during the strike, opened the door to certain ques- tions regarding his relationship to the strikers. See Herb Kohn Electric Co., 272 NLRB 815 (1984). Respondent did not ask Bail] about other employees, and Baill himself, as an employee who was willing to cross the picket line so long as. it was safe to do so, was an unlikely target for a hostile investigation by the Employer. There- was thus little reason for Bail] to feel threatened by the inquiry, nor was it likely that Arky and -Sandy undertook to question him with' a coercive intent.' 2. The alleged interrogation-of Bail] by Joseph Schifano John Baill testified that one Friday after the election, Arky's and Sandy's newphew, Joseph Schifano, herein Joe; instructed Baill to clean while the other employees' picked up their paychecks and went to the bank. After Baill finished cleaning he picked up'his'check and Joe drove him to the bank. In the car Joe confronted him by saying, "We know how you voted." When Baill did not respond Joe commented that Arky was mad at Baill. Then Joe said, "You're going to lose your job, but I can save your job for you if you tell me who.all voted for the Union." Bail] replied,- "I'll see what I can do for you," but never supplied the requested informations The threshold question in• determining whether Re- spondent violated the Act through Joe's conduct in the car is whether Joe was a supervisor or agent of the Em- ployer. Section 2(11) of the Act defines 'supervisory status in terms of the following enumerated powers; "to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward or discipline `other employees or responsibly direct them, or to adjust their grievances, or effectively recommend such action." While authority- in just one of these areas may qualify an individual as a statutory supervisor, Penn Industries, 233, NLRB 928, 930-931 (1977), mere possession of any one or a combi- nation of these powers does not a supervisor make.. On the contrary, the Board has held that: [S]upervisory status exists only if the power is exer- cised with independent judgment on behalf of man- agement, and not'in a routine or, clerical manner "[T]he statute expressly insists that a supervi- sor (1) have authority (2) to use independent judg- ment (3) in performing such supervisory -functions- -(4) in the interest of management.' These latter re= quirements are conjunctive " Hydra Conduit Corp., 254 NLRB 433, 437 (1981) (cita- tions omitted). - The record in the instant case simply does not-support the conclusion that Joe met the' statutory requirements for supervisory status. In fact; the evidence suggests that, despite Joe's family relationship to his employers, he was essentially treated like any rank-and-file employee. Initially, Joe worked for Respondent sometime in 1980 or 1981, unloading trailers, picking-orders, and doing general warehouse work. He left Respondent's employ at some ' point for reasons which are not disclosed in the record.' Respondent rehired Joe in February 1983 'as a packer and a checker. Joe was_ initially assigned to the Serruchi account; on which he spent most of his time in the period preceding the election. According to Harris, Fuerstein, who supervised the Serruchi account, dis- persed orders to pickers who collected the jackets from the warehouse lines and brought them to a work table where two checkers made sure that the size and color were correctly picked according to the customer order. The order was given to Joe who counted the pieces and made sure that they were in the' correct boxes and- that the boxes were correctly labeled for the customer. The General Counsel contends that- Joe gave orders to other employees and had the authority to effectively rec- ommended discharge. In support of this point `Elry Taylor testified. that when he and Joe worked on the House of Nations' account'- together, sometime after the election, he would ask Joe if •he -could use the men's room' and Joe would give him permission Taylor also observed Joe giving orders, specifically to-an employee ' 6 Immediately after the first-day of these proceedings, on which Bail] testified, he left Respondent's employ Both Harris and Arky testified that Ball' left of his own volition and there is no evidence to the contrary C & L WAREHOUSE CORP. named Rubin and another employee named Al. Diane confirmed that Joe gave Rubin orders, noting that after Joe checked he would ask Rubin to pack the box. In ad- dition, according to Diane, Joe would sometimes tell Fuerstein that he needed Rubin and Fuerstein would in- struct Rubin to help Joe. Diane added that she herself sometimes took orders from Joe, such as when an order was incomplete and Joe would instruct her to get the missing jacket. Diane explained that she followed Joe's orders, because she was, afraid she would get in trouble if she failed to. Baill was also apparently under the impres- sion that Joe could get him in trouble or fired. Although Joe, Baill explained, was not a supervisor, he was "like a supervisor" in that if he told Arky or Sandy something, they would believe it. Baill observed Joe giving orders to other employees and took orders from Joe himself. As an example Bail] explained that Joe would ask him to pick up boxes Ad- ditionally, on the day Joe had confronted Baill in the car, he ordered Baill to clean . Baill and Diane both con- trasted Joe's position with that •of Joe Flately, another nephew whom Arky and Sandy employed. Both Diane and Bail] contended that while Flately was just like any other worker, Joe appeared to be in a position of author- ity. Diane noted on cross-examination however, that while Flately was a low-key easygoing person, Joe was a loud, boisterous type. Both DaSilva and Harris denied that Joe had any su- pervisory authority. In fact, they testified that when Joe was hired, Arky and Sandy emphasized that he was not to be treated like any rank-and-file employee. Contrary to accounts of Taylor, Baill, and Diane , Andrew No- vielli, a forklift driver, testified that Joe was, in fact, like any employee, with no special authority. Harris noted that Joe was finally asked to-leave Respondent's employ because he did 'not want to perform the physical work required of him. While the record tends to show that Joe was an agres- sive individual with a propensity for pushing people around, it certainly does not demonstrate supervisory status. On the contrary, the evidence shows that Joe and the rest of the warehouse staff were closely supervised by Harris, DaSilva, and Fuerstein and that Fuerstein di- rected Joe, and the other employees who worked on the' Serruchi account during the preelection period. This point is underscored by the fact that, according to Diane, when Joe needed help from Rubin, he would ask Fuerstein to make Rubin available. The record is devoid, in fact, of any evidence that Joe responsibly directed his colleagues on Respondent's behalf or had any authority to do so. At most, there is evidence that Joe, on an ad hoc basis, gave his colleagues routine instructions in the course' of performing his duties as a checker. Nor is there any evidence that Joe could effectively recommend dis- charge. ,The only evidence adduced in support of this contention were Baill's and Diane's unsubstantiated im- pressions that this was indeed the case. That Joe did not in fact possess this power is evident by the fact that, al- though Baill never supplied the information Joe demand- ed in the car, Baill retained his job. The record similarly fails to substantiate the General Counsel's contention that Joe was an agent of Respond- 1059 ent. The question of agency does not depend on the ex- istence of direct evidence that Respondent authorized or ratified Joe's conduct, but rather whether "under all the circumstances the employees would reasonably believe that [Joe] was reflecting company policy and speaking and acting for management " Community Cash Stores, 238 NLRB 265 (1978). See also Behiring International, Inc., 252 NLRB 354 (1980), revd. on other grounds 675 F.2d 83 (3d Cit. 1982). In the instant case the record fails to disclose a• reasonable basis for the belief that Joe was Respondent's agent. Both Diane and Taylor admitted that they were never told to obey Joe. Nor is there any evidence that any management official ever gave cre- dence, by word or deed, to the impression that Joe was the Employer's representative. Significantly, the impres- sion that Joe was more than a rank-and-file worker was not universal, as is evidenced by Novielli' s insistence on the stand that Joe was just like anyone else. The General Counsel argues that Respondent accord- ed special privileges to Joe which nutured the belief that Joe acted as its agent . For example, Taylor testified that although employees were not allowed to vist the offices without express permission, Joe freely entered these areas. Moreover, Taylor testified that, unlike the other warehouse workers, Joe frequently used the intercom system which connected the warehouse with the offices. Taylor also testified that he often observed Joe engaged in protracted conversations on the warehouse floor with supervisors, particularly DaSilva. Finally, Taylor report- ed that although employees were required to obtain per- mission before using the restrooms, Joe routinely used these facilities • without supervisory consent Diane cor- roborated Taylor's testimony that Joe enjoyed these privileges. • Harris and DaSilva denied that Joe was the recipient of special treatment . DaSilva testified that Joe was not permitted to leave the warehouse floor without permis- sion. Nor was he excused from the requirement that all male employees, except supervisors, be searched at the end of the day. This last point was corrborated by Andrew Novielli. DaSilva conceded that Joe may have used the intercom, but added that all employees could use it, although not many did. DaSilva also testified that, while he occasionally conversed with Joe in the ware- house, he did not engage in extended discussions with him, and the conversations were not different from those DaSilva had with other employees. Harris agreed that no special privileges were extended to Joe He denied that Joe was permitted free access to the offices and asserted that, on the single occasion that Joe was found in these areas without permission, he was questioned. In important respects Joe was treated like other employees According to Harris, Joe was paid on an hourly basis at approximately the same wage rate as other warehouse workers and received time-and-a-half for overtime. I find that Respondent did not give Joe special treat- ment thus creating the impression that Joe spoke and acted on its behalf. At most the evidence suggests that Joe was inclined to circumvent Respondent's procedures and cut corners wherever possible. There is, however, 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no -evidence that Respondent pursued a policy of ex- empting Joe" from rules which- it applied to other em- ployees Even assuming arguendo -that Respondent was particularly lenient with Joe on certain isolated issues, such as allowing him to use the men's room without per- mission, this minimal bestowal of special treatment would not support a reasonable belief that Joe spoke and acted on Respondent's behalf. - Finally, Joe's discussion with Baill,'in the car, did not take place under circumstances which would reasonably have led Baill to believe that Joe was echoing manage- ment's antiunion views. There is no evidence that any of Respondent's officials ever expressed antiunion senti- ments, made threats, or promised benefits In this context Joe's questions and threats were apparently the expres- sion of his personal hostility to the Union, and Baill had every reason to believe Joe's assertion, that he was in league with management on this issue, was mere boast- ing.7 In light of my finding that Joe was neither Respond- ent's supervisor nor agent, I reject the General Counsel's contention that it violated the Act by his alleged interro- gation of and threats to Baill. B. The 8(a)(3) Allegations The General Counsel contends that Jackson and Moorman were Respondent's employees on January 28, the date the warehouse workers resumed. their jobs after the strike, and were discriminatorily discharged on that date. Although it is not-alleged as an unfair labor prac- tice, the General Counsel offers the January 21 layoff as evidence that Respondent harbored animus toward the Union and its employees for engaging in union activities Respondent's position, that the layoff was in response to the loss of a major account, the General Counsel dis- misses as mere pretext. While the timing of. the layoff, hours after the Em- ployer received the Union's demand forr bargaining, is indeed suspicious,e in the absence of an allegation that such conduct violated the Act, it is unnecessary to make a determination as to the Employer's motive. Assuming arguendo that the layoff indeed demonstrated Respond- ent's animus toward the Union and its advocates, I would, still find that Jackson and Moorman had left Re- spondent's employ well before January 28, and in fact had been terminated for cause prior to the onset of any union activity. - 1. John Jackson - Jackson began working for Respondent in July 1982. According to Jackson, after the Thanksgiving recess in the fall of 1982 he did not return to work as the result of a back injury. Jackson testified that he called Harris the Monday after Thanksgiving to explain the reason for his absence and Harris instructed him to report. when he felt better Jackson returned to work on December 13 and informed Harris he had to appear in court-on December ' Cf Indian Head Lubricants, 261 NLRB 12 (1982) (son of employer's only two corporate officers was held to be an agent who echoed the an- tiunion sentiment clearly expressed by his parents) 8 See Ducth Boy, Inc, 262 NLRB 4 (1982) - 14 and 15 and consequently could only work half days on those dates. Harris said, "0 K come back when you get out of court." On the afternoon of December 15 Jackson called Harris who notified Jackson that work was slow and consequently he was laid off and did not have to come to work. That afternoon, when Jackson ar- rived at Respondent's premises to pick up his paycheck, he asked Harris whether 'he 'was laid off or terminated. Harris replied that Jackson was,too good aiworker to be terminated and he should"call'in later,. and agtain on Monday. In all, Jackson called six times, but work was never available Nevertheless each time Jackson 'called, Harris instructed him to keep on calling. ' During the strike Jackson joined the employees ' in picketing Respondent's premises. While on the picket line Jackson approached Harris and said, "You told me to call you " Harris replied, "Yeah, but you see what kind of predicament we're in." On January 28, the day Respondent recalled its warehouse staff, Jackson arrived at Respondent's premises. There, Jackson testified, Arky told him for the first time that he was terminated. At an- other, point in his testimony Jackson testified that Da- Silva discharged him. During the period that Jackson ostensibly believed he was laid off he learned that Respondent had hired two new employees. The first time, in December, Jackson called Harris and said, "I heard you hired somebody else." Harris replied that the new employee was just pushing a broom. Jackson responded that before, -when there was no work, everyone pushed a broom. Harris told Jackson to call back again at a later date. The next time Jackson learned that another new employee was hired, shortly before the strike, he did not confront Harris. On the stand Jackson testified he had been under- the impression that the second individual hired was a foreman. Harris' version of these events was markedly different. According- to Harris, Jackson's attendance began to fall off radically in November 1982. After the Thanksgiving recess, Jackson simply failed to return to work. -Harris denied that Jackson called in the Monday after Thanks- giving with an explanation for his absence. - When Jack- son did call, 2 weeks after Thanksgiving, he explained that he had run into severe personal problems which had since been solved. Harris agreed to let Jackson return and Jackson worked 1 full day. The next 2 days -Jackson worked only half days, explaining that he still had things to take care of At this point Harris realized he had erred in rehiring. Jackson and he consequently fired .the em- ployee. Jackson did not receive vacation pay for the Christmas shutdown which he would have gotten had he worked through December 23. Harris denied that he ever told Jackson to call him, although he testified that Jackson did call on more than one occasion with refer- ence to unemployment problems. In fact, Harris insisted he made it clear to Jackson that the discharge was per- manent although he avoided saying, "You're fired" for fear of igniting- Jackson's volatile temper. Harris testified that he saw Jackson on the picket line According to Harris Jackson shoved him with his elbow and said, "Can I come back to work?" To which Harris C & L WAREHOUSE CORP 1061 replied, "No Certainly not., I have some problems here You're not coming back to work here." - Harris denied receiving a telephone call from Harris after Al Comancho was hired in December. Nor did he tell Jackson that Al would do different work from what Jackson had been doing. All the warehouse employees, both Harris and Jackson testified, did all kinds of work, from sweeping to unloading, According to Harris, h6- fired Jackson because the latter was.unreliable. In addition, Harris noted, Jackson was a volatile person who created a bad atmosphere and this fact also played a role in the discharge In resolving the sharp differences between Harris' and Jackson's testimony I-credit Harris In discrediting Jack- son •I note that his testimony is fraught with ambiguity and' inconsistency At one point, for example, Jackson testified that Arky discharged him, while elsewhere Jackson reported that it was DaSilva who let him go. Similarly, Jackson testified that Harris had said that Al Comancho was hired to "push a broom," implying that this work was not suitable for Jackson Yet Jackson con- ceded that he himself had pushed a broom while in,Re- spondent's employ Jackson also testified that he failed to return to work after Thanksgiving because of a back injury, and yet mentioned in passing that he had taken another job during this period. The crucial point in my decision to credit Harris, how- ever, is that his story is simply more plausible than Jack- son's. Harris' account, that he terminated Jackson for ab- senteeism in the face of a 2-week unexcused absence, im- mediately followed by 2 half days, is both logical and be- lievable. By contrast, belief in Jackson's -account requires a number of unlikely or inexplicable assumptions. For ex- ample, according to. Jackson's account, Harris gave him an extended leave of absence, which he was apparently not required by the company policy to grant, and then immediately laid him off for lack of work when he re- turned There is no evidence that business was, in fact, slow at that time Moreover, it is clear from the undis- puted evidence that Harris hired two warehouse employ- ees during Jackson's testimony would compel the con- clusion that Harris deliberately and cruelly encouraged him in the mistaken belief that he would soon be rehired. In the absence of any evidence that Harris harbored per- sonal hostility toward Jackson, it is difficult to believe that Harris would do this. Finally, it would be inconceiv- able that Harris did not invite Jackson to return to work when the latter asked for his job back during the strike. Clearly, there was no lack of work during the strike and Respondent allowed any employee willing to cross the picket to do his job. That Jackson was not asked into the warehouse at this point is clear evidence that Respond- ent considered its connection with him permanently, sev- ered. 2. Daniel Moorman Moorman worked for Respondent as a loader and un- loader for approximately a year According to Moorman, after the Christmas shutdown, he called Harris on Janu- ary 3, and said he had fractured his ankle and would not be in to work. Harris instructed Moorman to report to work when he felt better. Approximately 2- weeks later Moorman reported for work, but Harris sent him home saying the leg was not sufficiently healed About -a week later Respondent's employees invited Moorman to join their picket line, which he did Moorman picketed all day, for 3 days.' When Moorman was not notified to, return to work with his colleagues he called Harris who terminated him. - . Harris' testified that after the Christmas shutdown Moorman simply failed to, return to work and did not call When, about 2-1/2 weeks later, the employee showed up on,the front steps, Harris terminated him. I credit-Harris' testimony that Moorman was terminat- ed before the strike for- not calling or reporting for work after the Christmas vacation. In making this determina- tion I note that Moorman was hardly a reliable witness. While he insisted that his single meeting with the Gener- al Counsel took place prior to the election, the typed statement he concededly brought with him to the meet- ing related, "I feel that my vote at the union election is valid." This reference to the election clearly indicates that Moorman's meeting with the General Counsel indeed followed the election, his insistance to the con- trary notwithstanding Moorman's account was moreover confusing and con- tradictory On being asked on cross-examination at what point his ankle had healed sufficiently to enable him to- work, Moorman answered he could not work until June - or July. However, when he was asked again if he could work in January, after the strike when he allegedly called Harris to ask for his job back, he replied, "I could work, but he told me I was terminated." Moorman's testimony is incredible in other respects. His account compels the belief that he walked a picket line all day, for 3 days with a limp, and with an injury so severe his employer did not allow him to work. Nor did any of his colleagues corroborate Moorman's assertion that he limped while on the picket line. Jackson, in fact, testified that he did not recall there being anything phys- ically'wrong with Moorman at that time. Finally, in crediting Harris' account about both Moor- man and Jackson I note that neither employee was a likely target for discrimination. While both employees joined the picket line, this was the limit to their involve- ment with the Union. It is consequently unlikely that when Respondent called its staff back to work, thus ending the strike, it would have singled out Moorman and Jackson and discharged them with an unlawful motive. V THE CHALLENGES A. Joseph Schifano The General Counsel asserts that as a supervisor under Section 2(11) of the Act. Joe was ineligible to vote in the election and his ballot should consequently remain closed Having already determined that Joe was not a statutory supervisor ' (See sec. IV A,2, supra.) I reject this as a basis for invalidating his vote Alternatively the General Counsel asserts that, as Sandy and Arky's nephew, Joe enjoyed certain privi- leges which destroyed his community of interest with the 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other warehouse employees and on this basis his ballot should not be counted. I also reject this attack on Joe's eligibility. The bare fact that an employee is related to the princi- pal of his employer does not affect his eligibility to vote. See, e.g., Toyota Midtown, Inc., 233 NLRB 797 (1977). Where however, the employee-relative enjoys a special status which affords him work privileges and advantages not shared by other employees and thus negates' any meaningful community of interest, his vote will not be counted. Groehn Spotting Fixtures Co., 224.NLRB 842, 843 (1976). Having already determined that Respondent did not pursue a policy of granting Joe special privileges and, in fact, in most important respects, treated him like other employees, I find Joe shared a community of inter- est with the warehouse staff and was entitled to vote. Even assuming arguendo that Respondent did not vigi- lantly police, Joe's unauthorized trips to the restroom or office areas, these lapses were not so serious as to de- stroy his identification with the bargaining unit.9 Ac- cordingly, I recommend that the challenge to his ballot be overruled. sick or disability leave and have retained their seniority also have this right. Keeshin Charter Service, 250 NLRB 780, 792-794 (1980). . Having determined that Jackson and Moorman were terminated for cause in mid-December and mid-January respectively, I find that neither was entitled to vote for any of the above-cited reasons. In view of the fact that both individuals had ceased to be employees well before the election I recommend that the challenges to their ballots-should be sustained. - CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3 The General Counsel has not proved by a prepon- derance of, the evidence that Respondent violated the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edio B. Moorman and Jackson Former employees who have a reasonable expectation of recall, at the time of a representation election, High Energy Corp., 259 NLRB 747 (1981), Higgins, Inc., 111 NLRB 797 (1955), or who have been discharged in vio- lation of the Act, Mitchell's Disposal Service, 260 NLRB 150 (1982), are eligible to vote Employees who are on B Cf Wilkes-Barre Wholesale Service, 246 NLRB 491 (1979) (brother of respondent's owner was excluded from the bargaining unit because he (1) was not required to punch in, (2) was paid more than $2 an hour above the rate for other warehousemen; (3) took long lunches, (4) worked on his personal property on respondent's time), Grohen Spotting Fixtures Co, supra (although nephew of owner was paid in the same way and at the same rate as other employees, he was ineligible to vote because he (1) had access to management which gave him the opportunity to discuss business problems including the union, (2) was minimally supervised, (3) made his own hours, (4) did not have to punch a clock) ORDER The complaint is dismissed in its entirety. IT IS FURTHER ORDERED that Case 22-RC-8926 be re- manded to the Regional Director to open and count the ballots of Joseph Schifano and Joseph Flately and to issue a revised tally of ballots and a certification of rep- resentative if Production Workers Union, Local 148, AFL-CIO has received a majority of the valid votes cast, or to issue a certification of results if the Union has not received a majority of the votes cast. 10 If no exceptions are filed as provided by Sec 10246 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses