Terraillon Corp.

366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Terraillon Corp. and Local 1922, International Brotherhood of Electrical Workers , AFL-CIO. Cases 29-CA-10339, 29-CA-10416, 29-CA- 10444, 29-CA- 10558, 29-RC-5873, and 29- RM-686 18 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 12 September 1984 Administrative Law Judge Raymond P. Green issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions as modified. The judge found that the Respondent's termina- tion of its longstanding practice of providing free lunches to its office clerical employees upon the ar- rival of merchandise by container trucks for un- loading violated Section 8(a)(1) of the Act. The termination of this practice occurred during the pendency of the representation cases, and the judge was not persuaded that the Respondent's purpose for discontinuing the practice was to save money. He found that the practice of providing free lunches on these occasions was a longstanding one, which he viewed as having become a term and condition of employment and not merely a gift. The judge also found that although there was no evidence presented by either side as to the value of the lunches, given the small number of employees involved (five) and the relative infrequency of the occasions when the lunches were given, the cost to the Company could not have been very significant. I The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative 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 reversing the findings In adopting the judge's recommendation that the challenge to Jay Fhg- stemn's ballot be sustained, we rely solely on our decision in Cumberland Farms, 272 NLRB 336 (1984), holding that the "special status" test alone governs eligibility of nonowner manager relatives. As Jay Fligstem enjoys such special status, we agree he should be excluded from the unit Member Johansen agrees that the challenges to the ballot of Jay Flig- stein should be sustained However, he would look to the community of interest in determining the eligibility of relatives of owners or of non- owner managers See NLRB v Action Automotive, Inc, 105 S Ct 984 (1985) In the absence of exceptions, we pro forma adopt the judge's dismissal of the unfair labor practice allegations relating to employee Florence Lo Presti The Respondent contends the decision to pro- vide the free lunches, and to discontinue them for office clericals for only a brief period of approxi- mately 2 months, was not related to any employ- ment-related development; that the warehouse em- ployees who actually unpacked the container trucks continued to receive the free lunches; and that the representation case that encompassed the warehouse employees also was still pending when the free lunch program for the office clericals was resumed. We find merit in the Respondent's excep- tions. Philip Fligstein, a vice president of the Respond- ent, testified that the container trucks usually came in late in the morning, and the warehouse employ- ees worked over the lunch period so that the con- tainer could be unloaded quickly and taken back to the pier. He started a policy of buying lunch for the warehouse employees simply because they would not take a lunchbreak or their lunchbreak was delayed. Also, whenever lunch was being or- dered for the warehousemen from a delicatessen, Mike Biondo, the warehouse manager, asked the office clericals if they wanted lunch or anything. According to Fligstein, no lunches were bought for any of the employees when containers came very early in the morning and were unloaded quickly, or when a container came and part of it was un- loaded at the Company and part of it was unloaded at a facility that does assembly work for the Com- pany. He testified that this practice has been going on for about 2-1/2 years. Fligstein further testified that in March 1983 he told Biondo to order lunch only for the warehouse employees because he had some cash flow prob- lems and he wanted to save some money. He also testified that there were times when he went to the delicatessen, going back to 1979, and some of the office clericals asked him to bring them back some- thing, but that he did not take any money for it. Fligstein testified that he cut out buying the office clericals lunch in March, but that several contain- ers later or several months later he asked Mike Biondo to ask the clericals if they wanted any lunch as well. Over the 2-month period, perhaps two or three containers were unloaded. Fligstein testified he had some more money when he started buying again for the clericals. Biondo testified that if Fligstein happened to be in the warehouse when the coffee truck came by, he would offer to buy coffee or a roll for the em- ployees. The purpose of the free lunch, according to the uncontroverted testimony of Fligstein, was to make it possible for the warehouse employees to contin- ue, uninterrupted, with the unloading of the con- 280 NLRB No. 37 TERRAILLON CORP. tainer trucks so that they could be returned to the pier. However, the record contains no evidence that a similar purpose or objective was served by Fligstein's ordering free lunches for the office cleri- cals, who clearly did not help with the unloading of the container trucks. Nor is there substantial evidence that Fligstein sought to punish the office clericals or to make an example of them because of their union leanings. The record does show that the union organizing campaign commenced in January 1983, but that the occasional free lunches for the clericals were not suspended until March or April 1983. Therefore, there is a considerable timelag from the time the Respondent learned of the union activity until the time it suspended the free lunches for the clericals. Moreover, had the Respondent sought to coerce or restrain its employees in this manner to discourage union organizational activity, it more likely would have terminated the five lunches for the warehouse employees for maximum impact on all of the em- ployees involved in union organizational activity. It is our view that the Respondent's termination of the free lunches for the clerical employees, but not for the warehouse employees, for a period of approximately 2 months, and on no more than three or four occasions, was not designed to inter- fere with, restrain, or coerce employees in the exer- cise of their Section 7 rights. Accordingly, we find that the Respondent did not violate Section 8(a)(1) of the Act by terminat- ing its practice of providing free lunches to the office clerical employees. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Terraillon Corp., Central Islip, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(b). "(b) Discharging or threatening to discharge em- ployees, reducing their hours of work, or discrimi- nating against them in any other manner if they join or support Local 1922 or any other labor orga- nization." 2. Substitute the attached notice for that of the administrative law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 367 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten to close our United States business operations because our employees join or select Local 1922, International Brother- hood of Electrical Workers, AFL-CIO or any other labor organization. WE WILL NOT discharge or threaten to discharge our employees, reduce their hours of work, or dis- criminate against them in any other manner be- cause they join or select Local 1922 or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Roberta Mittler full and immedi- ate reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Roberta Mittler and James John- son whole for any loss of earnings they may have suffered because of our discrimination against them, with interest. WE WILL remove from our files any reference to the discharge of Roberta Mittler, and WE WILL notify her in writing that this has been done and that evidence of the discharge will not be used as a basis for future personnel actions against her. TERRAILLON CORP. Elias Feuer, Esq., for the General Counsel. Barbara Barbash, Esq., of Carle Place, New York, for the Respondent. Bryan McCarthy, Esq. (O'Conner & Mangan), of Long Island City, New York, for the Charging Party. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. These consolidated cases were heard by me on various days in March and April 1984. All these cases were initi- ated by an organizational campaign commenced by the Union in January 1983 and which led to a demand for recognition on January 10, 1983. Thereafter, on January 17, the Employer filed a petition in Case 29-RM-686, seeking an election in a unit of its warehouse employees. Subsequently, on February 8 the Union filed a petition in Case 29-RC-5873 seeking an election among the Re- spondent's office clerical employees. On February 18, 1983, the parties executed Stipulations for Certifications upon Consent Elections for each of the petitions and these agreements were approved by the Regional Direc- tor for Region 29 of the Board on February 22. Subse- quently, elections were conducted in each unit on March 11, 1983, but the outcomes were indeterminative because of the challenged ballots. The voting unit in Case 29-RM-686 was defined as in- cluding all full-time and part-time warehouse employees, exclusive of all other employees, office clerical employ- ees, confidential employees, guards, and supervisors as defined in the Act . The tally of ballots for this election shows that two votes were cast for the Union, one against, and one vote was challenged. The Union chal- lenged the vote of Jay Fligstein who is the son of the Employer's vice president Philip Fligstein. The voting unit in Case 29-RC-5873 was defined as including all full-time and part -time office clerical em- ployees, excluding all other employees, confidential em- ployees, guards, and supervisors as defined in the Act. At this election the ballots were impounded because out of five voters, the ballots of four were challenged . In this regard, the Union challenged the vote of Peggy Flig- stein, the wife of Philip Fligstein , and the Respondent challenged the ballots of Florence Lo Presti, Donna Fish, and Roberta Mittler. On May 13 the Regional Director, after an investiga- tion, issued a Report on Challenged Ballots, Order Con- solidating Cases and Notice of Hearing. In this report, the Regional Director recommended to the Board that: (1) The challenge to the ballot of Jay Fligstein be sus- tained because of his familial relationship to a member of management and because of his special employment status. (2) The challenge to the ballot of Peggy Fligstein be sustained because of her familial relationship to a member of management and because she did not perform office clerical functions. (3) The challenge to the ballot of Donna Fish be de- termined in a hearing . The Employer contends that Fish is a supervisor whereas the Union contends that she is an office employee. (4) The challenge to the ballot of Florence Lo Presti be determined by a hearing. In this regard, the Respond- ent contends that she is a confidential employee, a claim which the Union denies. (5) The challenge to the ballot of Roberta Mittler be determined in conjunction with a hearing in an unfair labor practice case wherein it is alleged that Mittler was discharged because of her union activities. Subsequent to the Regional Director 's issuance of the Report on Challenges, the Respondent appealed to the Board. Thereafter, the Board reversed the Regional Di- rector's recommendations relative to the eligibility of Jay Fligstein and remanded that issue for a hearing. The Board did not, however, overrule any of the other rec- ommendations made by the Regional Director and, as such, the challenge to the vote of Peggy Fligstein was sustained. The history of the unfair labor practice charges is as follows. The charge and amended charge in Case 29- CA-10339 were filed respectively on March 17 and April 26, 1983 . A complaint based on those charges was issued by the Regional Director on April 28, 1983. The charges in Cases 29-CA-10416 and 29-CA- 10444 were respectively filed on April 13 and 26, 1983 , and a com- plaint in those cases was issued on June 3, 1983. On June 23, 1983, the Union filed yet another charge in Case 29- CA-10558 and a complaint on that charge was issued on July 28, 1983. Thereafter, on July 29 all of the foregoing cases, including the representation cases, were consoli- dated for hearing. In substance, the allegations of the unfair labor prac- tice complaints as amended , are as follows:' (1) That about January 10, 11, and 12, 1983, the Em- ployer, by Philip Fligstein, interrogated its employees concerning their activities, membership, and/or support for the Union. (Alleged in Case 29-CA-10339.) (2) That about January 10, 11, and 12, 1983, the Re- spondent warned and directed its employees to refrain from becoming or remaining members of the Union. (Al- leged in Case 29-CA-10339.) (3) That on January 10, 11, and 12, 1983, the Respond- ent threatened its employees with discharge or other re- prisals. (Alleged in Case 29-CA-10339.) (4) That for discriminatory reasons, the Respondent, about February 4, 1983, revoked its previously granted vacation leave to Roberta Mittler . (Alleged in Case 29- CA-10339.) (5) That for discriminatory reasons, the Respondent, on February 22, 1983, discharged Roberta Mittler. (Al- leged in Case 29-CA-10339.) (6) That for discriminatory reasons, the Respondent on April 4, 1983, reduced the hours of work of James John- son. (Alleged in Cases 29-CA-10414 and 29-CA-10444.) (7) That for discriminatory reasons the Respondent (a) in February and March 1983 orally warned and repri- manded Florence Lo Presti, (b) on April 4 changed her hours to a more arduous and disagreeable schedule, (c) harassed her, and (d) on April 23, issued to her a written reprimand and threat of discharge . (Alleged in Cases 29- CA-10414 and 29-CA-10444.) (8) That for discriminatory reasons, the Respondent on April 6, 1983, withdrew its practice of purchasing lunches for the office clerical employees on certain occa- ' At the hearing, the General Counsel withdrew par 9 of the com- plaint in Case 29-CA-10339 This allegation alleges that the Respondent unlawfully polled its employees about January 10, 11, and 12, 1983 TERRAILLON CORP. 369 sions. (Alleged in Cases 29-CA-10414 and 29-CA- 10444.) (9) That about February 10, 1983, Respondent began assigning certain personnel work to Florence Lo Presti to make her ineligible to vote in the election under the pretense that she was a confidential employee. (Alleged in Case 29-CA-10558.) (10) That about February 11, 1983, Respondent gave employee Donna Fish the title of office manager to make her ineligible to vote in the election, under the pretense that she was a supervisor. (Alleged in Case 29-CA- 10558.) Based on the entire record in this proceeding, includ- ing my observation of the demeanor of the witnesses, and after considering the briefs filed, I make the follow- ing FINDINGS OF FACT 1. JURISDICTION The parties agree , and I find, that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. It also is agreed that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE NATURE OF THE RESPONDENT'S BUSINESS The Respondent is a Delaware corporation which is wholly owned by a French company called Group Ber- nard Tapi, which in 1980 brought out Terraillon S.A., owned by Marc Terriallon. Basically, the United States company is in the business of selling scales and other household items in the American market. The products are themselves primarily manufactured in France by the parent company, although to a certain extent, parts are assembled at the Respondent's Long Island warehouse. Philip Fligstein, a vice president of the Respondent, is the only corporate officer in the United States, and he is responsible for the day-to-day operations of the Ameri- can Respondent. Fligstein, however, does not own any stock in the corporation and he is responsible to Marc Terraillon and a Pons, both of whom are located in France. In this regard, Fligstein is constantly in touch with either Terraillon or Pons by telephone or telex, and he occasionally will visit France to discuss Respondent operations and policies. For example, about January 4 or 5, Fligstein visited France to discuss the Respondent's U.S. operations with Marc Terraillon, Among the items discussed, according to Fligstein on that occasion, was the Respondent's expenses. Although Fligstein, is the highest-ranking official of the Respondent in the United States and is in charge of its day-to-day operations, it is noted that his responsibil- ities and authority in relation to personnel and labor rela- tions is sharply curtailed. Thus, he testified that although he has the authority to hire employees, the French parent Respondent establishes the number of employees that are to work in the United States. Similarly, although he can negotiate rates of pay for newly hired employees, he must do so within certain parameters established in France. Fligstein testified that employee fringe benefits and annual wage increases are determined in France, and that although he may make suggestions as to such deci- sions, he cannot make them on his own authority. Simply put, this record establishes that although Fligstein imple- ments labor and personnel policies for the Respondent's U.S. employees those policies are not decided by him, but are decided by his superiors in France. In connection with the American Respondent, the record discloses that it maintains, in Long Island, an office and warehouse.2 As of January 1, 1983, the Re- spondent employed four people in the warehouse, these being Mike Biondo,3 James Johnson, Ted Dunlop, and Jay Fligstein. (At this time Jay Fligstein was paid off the books and no deductions were made from his earnings for withholding or social security taxes.) As of January 1, 1983, the Respondent also employed four office em- ployees, these being Roberta Mittler (a full charge book- keeper), Eileen Tucker (the assistant bookkeeper), Flor- ence Lo Presti, and Donna Fish. However, at this point in time, Eileen Tucker had given notice of her intention of retiring and she was involved in training Donna Fish who had recently been hired as Tucker's replacement. Thus, it appears that the normal complement of office employees was three. The record also shows that as of this date, and for a long time in the past, there was no office manager position. That is, the record reveals that Fligstein basically had been in charge of the office em- ployees, who nevertheless need little or no supervision as they followed an established routine. III. THE UNION'S ORGANIZATIONAL CAMPAIGN, ITS DEMAND FOR RECOGNITION ON JANUARY 10, AND THE EVENTS IMMEDIATELY THEREAFTER In late December 1982 or early January 1983 there was some talk amongst the office employees about get- ting a union to represent them. About January 3, Mrs. Lo Presti's husband called Joseph Faicco of Local 1922 and a meeting was arranged for union representatives to visit the Respondent's premises to meet with the employ- ees on January 6. (Fligstein was in France on January 6.) This meeting took place and employees, including Lo Presti, Mittler, and James Johnson signed union authori- zation cards. It also was decided that the Union's repre- sentatives would come to the office on January 10 to demand recognition. On Monday, January 10, several union representatives arrived at the Respondent's premises, requesting to see Fligstein and in this regard, the employees gathered to- gether with these representatives when they spoke to Fligstein. The union representatives asserted that they represented a majority of the employees and asked the Respondent to negotiate a contract. Faicco tendered the authorization cards to Fligstein and told him that if he doubted the Union's majority status, Fligstein should ask the employees if they wanted the Union. Fligstein did so, and the employees present answered affirmatively. (Jay Fligstein was not present.) When Fligstein asked the em- 2 It also utilizes a public warehouse in California 8 Although it appears that Biondo voted without challenge in the elec- tion held among the warehouse employees, the parties at this hearing stipulated that he was a supervisor within the meaning of Sec 2(11) of the Act 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees why they wanted a union, Mittler said, "for ben- efits." Fligstein told Faicco that he was in no position to make any decisions and that the Union would have to contact his superiors in France. About this point, the em- ployees and union agents went outside for a few minutes, after which the employees returned to work, Fligstein again asked several of the office employees why they wanted a union but the employees refused to respond. Although it is alleged by the General Counsel that the Employer engaged in unlawful interrogation in connec- tion with the above-described transaction, I do not agree. Clearly, the Union's agent, Faicco, invited Fligstein to question the employees about their union support and Fligstein did so as per the invitation. In these circum- stances, I cannot conclude that such questioning was co- ercive. Alco Venetian Blind Co., 253 NLRB 1216 (1981). According to Fligstein, on the afternoon of January 10, he telephoned Marc Terraillon in France and de- scribed his confrontation with the Union. He states that Terraillon told him, inter alia, that if a union got in, he would, if necessary, close down the American Respond- ent. On Tuesday, January 11, Fligstein met with the Re- spondent's regular attorneys4 and again spoke, by phone, with Terraillon who repeated his fear of unionization. On the afternoon of January 12, Fligstein concededly told the warehouse employees that if the Union got in, Marc Terraillon would close the American Respondent and that he too would lose his job. Even assuming that Fligstein simply repeated this statement out of concern for his own job, there is no doubt that such a statement, which threatened employees with plant closure, is viola- tive of Section 8(a)(1) of the Act. See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). A number of other events also occurred within a short time after the Union's demand for recognition on Janu- ary 10. Thus, on January 12 Fligstein handed Roberta Mittler a note (discussed below), canceling his prior au- thorization for her vacation in February. According to the credible testimony of Mittler, on January 14, Flig- stein told her to put his son Jay Fligstein on the payroll, notwithstanding his earlier instructions, at the time of his hire, to pay him out of "warehouse expenses." Also, on Friday, January 14, Jay's high school friend, Scott Dean, began to work in the warehouse on a part-time basis.6 A. The Discharge of Roberta Mittler Mittler began her unemployment at the Respondent as a full charge bookkeeper in October 1980. Because she had children in school, she worked on a part-time sched- ule. She was one of the employees who signed a union card. When questioned by Fligstein on January 10 * Soon thereafter, the Respondent retained labor counsel 6 I find incredible, Fligstem 's assertion that he first discovered that Jay Fligstein was paid off the books when this was discovered by the ac- countant in early January. Fligstem testified that he spoke to Scott Dean and offered him the job before January 10, 1983. He was not, however, particularly certain when this occurred. I note that the hiring of Dean seems a bit unusual in view of Fhgstem's testimony that on January 5 and 6 he and Terraillon were concerned about Respondent expenses . I also note that Mike Biondo, the warehouse supervisor, was not consulted with respect to the hiring of Scott Dean and was not, as far as he could recall, asked if an- other employee was needed in the warehouse whether she wanted the Union, she responded affirma- tively. On February 22, on her return from Florida, Mittler was discharged. In a letter given to her by Fligstein (dated February 18), he stated: I regret to advise you that we had to fill your po- sition with a new employee and therefore we are unable to offer you a return to employment with us. As you know, we had a certified audit underway when you left and I warned you before you left that you could not take time off at such a critical point for the Respondent . I had been telling you that since November when I learned about our audit and you conflicting vacation plans . Masking your real purpose for leaving by presenting me with a doctors note claiming that you were taking time off for "stress" does not change the fact that you actually left for a vacation without authorization or my permission. I will not discharge Marie Scott or return Donna Fish to her previous position simply because you choose to return to work at your convenience. I consider your walking out on Friday, February 4 and leaving us in a lurch unforgiveable. The record shows that Mittler notified Fligstein in July 1982 about her intention of taking a 2-week vaca- tion in February 1983.7 In November 1982 Lo Presti took a vacation at which time Fligstein told Mittler that Mittler had to help out in Lo Presti's absence or else Mittler would not be able to take her February vacation. Mittler did help out and, according to Eileen Tucker, Fligstein told her that Mittler could take her vacation as planned. Also in November 1982 Fligstein was notified that the parent Respondent in France intended to do a certified audit for the year ending 1982, as had been done the year before. He asserts that when he received this notice from Bill Carney, a partner in the accounting firm, he told Mittler in November that there might be an audit and that if so she would not be able to take her vacation in February because she would be needed at the Re- spondent. He also testified that he told Mittler that as he had not yet received confirmation of the audit, the situa- tion was uncertain in relation to her vacation plans. This alleged conversation is, however, essentially denied by Mittler and contradicted by Tucker as noted above. Fur- ther, Fligstein's testimonial version of this conversation is, to a degree, inconsistent with his February 18 letter wherein he stated, "As you know, we had a certified audit underway when you left and I warned you before you left that you could not take time off at such a criti- cal point for the Respondent. I had been telling you that since November when I learned about our audit and your conflicting vacation plans" (emphasis added). In December 1982 Tucker notified the Respondent that she intended to leave in January. This led to the hiring of Marie Scott on December 17 as Tucker's re- 7 According to Fligstem, in October 1982, he approved Mittler's re- quest for a vacation in February 1983 TERRAILLON CORP. 371 placement. Scott credibly testified that before her hire she told Fligstein that she had planned a family vacation in February and that he said that this was a problem be- cause another woman had planned to take a vacation about the same time. She states that Fligstein told her he would call back and try to see if the other woman could change her plans. According to Scott, Flingstein did call back and said that the other woman could not change her vacation plans. Scott states that she nevertheless de- cided to take the job, after Scott made arrangements with her travel agent to reschedule her vacation to Easter. On the morning of December 17, coincidently with the hiring of Scott, a telex came into the office from France confirming that the audit would be conducted. Later in the day Fligstein told the office employees about the hiring of Marie Scott. In doing so, he also told them that he had refused Scott's request for a February vacation because Mittler had her vacation scheduled for that time. Thus, the credible evidence shows that not- withstanding the fact that the audit had been planned since November 1982, and specifically confirmed on the morning of December 17, 1982, Fligstein reaffirmed his approval of Mittler's vacation plans for February. As such I do not credit Fligstein's testimony to the effect that on December 17 or 20, after receiving the telex con- firmation, he told Mittler that she would have to cancel her vacation plans. On the contrary, I find that it was not until January 12, 1983 (2 days after the Union de- manded recognition), that Fligstein, for the first time, no- tified Mittler that she could not take her planned vaca- tion. The Respondent makes much of its asserted need to have Mittler available during February to assist in the audit conducted by the accountants. Although there is no doubt that Mittler performed a role in the audit, I am not persuaded that the Respondent has shown that a can- cellation of her vacation was necessary. As I understand the evidence, the principal function performed by Mittler in relation to the audit was to bring the accounts receivable and payable records up to date as of December 31, 1982, and to prepare (under the supervision of the accountants) addressed envelopes with enclosed forms to be sent to the Respondent's suppliers and customers so that they could verify either what they owed the Company or what was owed to them. (Mittler did not have any role in the inventory check which was conducted in late December or early January.) Pacheco, an accountant, was placed in charge of the audit by Bill Carney in November 1982. He testified that he spoke to Mittler in December 1982 at which time he gave her instructions regarding what was required of her. He states that she, in turn, told him of her plans to take a vacation in February and that she wanted to make sure that she was ready for the audit. According to Pa- checo, he told her what she had to do, that she under- stood her instructions, and that she did her job well. He testified that in connection with Mittler's function: "she was very good. She prepared everything. As to her va- cation, she wanted everything ready for me for the audit. I got out the confirmations on time." Pacheco testified that after the preparatory work done by Mittler, the next step was to pick up the confirmation letters from Mittler and mail them out from his office. This was done on January 24, 1983, at which time ac- cording to Mittler, Pacheco told her that her work in re- lation to the audit was completed. In this regard, Pache- co's testimony indicates that the actual audit must then await the return of a substantial portion of the confirma- tion letters which normally takes at least 2 to 3 weeks. Thus, the implication of his testimony is that although he had originally been scheduled to conduct the audit over a 3 consecutive day period at the Respondent' s premises during the first week of February, that schedule would have had to have been changed irrespective of Mittler's vacation because he would not have normally done the audit until the confirmations were returned.8 According to Pacheco it was no problem to change his scheduled audit of the Respondent and that if it took an extra week, it made no difference. He testified that neither his superior in the accounting firm nor Fligstein ever told him that the audit had to be conducted with any particular degree of expedition or that Roberta Mittler's vacation plans would cause any problems. In fact the field work on this audit was completed on March 11, 1983, as compared to the previous year 's audit where the field work had been completed on March 4, 1982. (Hardly a significant difference.) As noted above, the Union made its demand for recog- nition on January 10 at which time Fligstein became aware of which employees, including Roberta Mittler, supported the Union. It is my opinion that it was not until January 12, 2 days after the Union's demand (and about 4 weeks after the audit confirmation), that Flig- stein notified Mittler that she had to cancel her vacation. (She had made arrangements for her family to go to Florida.) She protested to no avail. During the week ending February 4, Mittler told Fligstein that she intend- ed to go to Florida anyway, and asserted that she was going to take the time off as sick leave. He told her that if she left, she was taking unauthorized leave. Mittler's last day at the Respondent was on February 4 and she went to Florida. On her return, she was handed the ter- mination letter quoted above. It is my conclusion, based on the entire record, and on my consideration of demeanor factors, that Fligstein re- voked his approval of Mittler's previously authorized va- cation because of her union activities and not because of the Respondent's alleged need to have her present in February for the certified audit. Inasmuch as this denial of her vacation was, in my opinion, discriminatorily mo- tivated, it follows that the decision to discharge her be- cause she went ahead with her vacation was equally vio- lative of the Act. Therefore, it is my opinion that the Re- spondent, by canceling Mittler's vacation for discrimina- 9 It is my opinion that the letter sent by Fligstem to the accounting firm on February 10, asserting that the audit was delayed because of Mittler's absence was disengenous and was designed to lay a foundation for the Respondent's latter actions 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tory reasons, and by subsequently discharging her, vio- lated Section 8(a)(1) and (3) of the Act.9 B. The Allegation Relating to James Johnson Johnson began working as a warehouse employee in November 1980 as a part-time employee (20 hours per week at $3.10 per hour). After having told Fligstein of his need for a full-time job and his intention of looking for one, Fligstein in May 1982 changed his hours to 37- 1/2 hours per week. Johnson credibly testified that he was never told that the change to full-time status was on a temporary basis. (At the time of the election Johnson was paid $4.50 per hour.) Johnson was one of the employees who signed a union card and was present on January 10 when the Union made its demand for recognition. As noted above, on January 11, Fligstein told Johnson and the other ware- house employees that Marc Terraillon would close the Respondent if the Union got in. On March 11 the election was held and the vote in the warehouse unit was two in favor of the Union, one against, and one challenged ballot. On March 30, 1983, Johnson was given a letter which stated: Regrettably, because of a variety of economic considerations, I am going to have to reduce your weekly work hours and return you once again to a part time basis. This is a decision which I have put off for a couple of weeks now because I knew that it will probably have an impact upon your needed income. I have no choice, however, inasmuch as I am held accountable by the parent Respondent in France for the operations of this Respondent which includes having to justify the expenditure for full time help in the warehouse. At least at this point I cannot jus- tify maintaining more than one full time employee besides the Warehouse Supervisor and I am forced to carry the three remaining persons , of which you are one, on a part time basis. In special consideration of your reduced income and to try to help however I can we will continue, for now, to pay for your major medical coverage. 6 The Respondent argues that the Board should defer to a decision by an administrative law judge of the New York State Department of Labor where it was found that Mittler was discharged for cause and therefore not entitled to unemployment benefits . In that hearing, Mittler asserted that she was discharged because of her union activities and many of the same witnesses (but not James Johnson) testified in that proceeding as testified herein. It is well established that the Board , in the exercise of its exclusive ju- risdiction to decide unfair labor practice cases pursuant to Sec. 10(a) of the Act, will not be bound to defer to decisions of other administrative agencies. Western Publishing Co., 263 NLRB 110 fn. 1 (1982); Magic Pan. Inc., 242 NLRB 840, 841 (1979), Duquesne Electric & Mfg Co., 212 NLRB 142 fn. 1 (1974), affd. 518 F.2d 701 (3d Cit. 1975); Supreme Dyeing Corp., 147 NLRB 1094, 1095 fn. 1 (1964), affd. 340 F.2d 493 (1st Cir. 1965) The Respondent's attempt to analogize its position to arbitration defer- ral cases is, in my view, unpersuasive For one thing deferral to arbitra- tion is appropriate because the parties, pursuant to contract, have agreed to be bound by the decisions of an arbitrator . Second, the National Labor Relations Act, at Sec. 201, specifically sets forth a policy of encouraging the arbitration of disputes. I hope that despite the reduction in hours, you will be able to continue to stay with us and give us your valuable services. As a consequence of the reduction in his hours, John- son began looking elsewhere for a full-time job, and left the Respondent about a week later. (The General Coun- sel does not allege, however, that he was constructively discharged.) Although the Respondent asserts an economic justifi- cation for reducing Johnson's hours, I have substantial problems with this defense as Respondent's evidence is, to my mind, contradictory. According to Fligstein, he visited France about Janu- ary 6 where, inter alia, he discussed the Respondent's costs with Terraillon. Thus, although the clear implica- tion of his testimony was that Terraillon was seeking ways to reduce costs, the evidence suggests that on his return Fligstein nevertheless decided to hire an addition- al employee, his son's friend Scott Dean, to work in the warehouse on a part-time basis. Indeed, Dean began to work, according to the sign-in records, on February 14, 2 days after the Union's demand for recognition and the evidence indicates that there was sufficient work to keep all the warehouse employees occupied. According to Fligstein, he again spoke with Terraillon sometime in March about the Respondent's costs. He as- serts that Terraillon asked how they could reduce some of the overhead without interfering with day-to-day op- erations. He states that he and Terraillon went over the people who worked in the office and warehouse and that they decided to revert Johnson's status to that of a part- time employee. The fact is, however, that in deciding to cut back Johnson's hours, it also was decided to retain Scott Dean as a part-time employee, notwithstanding that Dean was a high school student who had been employed for only a short period of time. Frankly if I were running a business and was concerned solely about costs, it would make a good deal more sense to lay off Scott Dean. Alternative- ly, if I was concerned that a union might become the bargaining agent, it would make a good deal of sense to reduce the hours of James Johnson with the expectation that he would probably quit and retain the services of my son's high school friend, who in all probability would not be interested in unionization. In connection with this matter I also note that Mike Biondo, the warehouse supervisor, testified that he was surprised at the decision to reduce Johnson's hours and that he was not consulted beforehand. (He testified that he first learned of the decision when he saw Lo Presti typing the letter quoted above.) In view of the foregoing and the entire record, I find that the decision to reduce Johnson's hours was discri- minatorily motivated and in violation of Section 8(a)(1) and (3) of the Act. C. Allegations Concerning Florence Lo Presti The consolidated complaint issued on June 3, 1983, al- leges that for discriminatory reasons ( 1) Respondent, during February and March 1983, orally warned and TERRAILLON CORP. reprimanded Lo Presti, (2) that Respondent on April 4 changed her hours to a more arduous and less agreeable schedule of hours, (3) that on April 5 and other dates in March and April 1983, the Respondent harassed her and threatened her with discharge, and (4) that on April 22, 1983, Respondent issued to her a letter of reprimand which threatened her with discharge. Lo Presti began her employment with the Respondent in 1975 and worked until February 13, 1984, when she quit. With respect to her separation from the Respondent the General Counsel does not allege that she was con- structively discharged. Lo Presti was one of the employ- ees who signed a union card and she was present on Jan- uary 10 when the Union made its demand for recogni- tion. She also was the Union's observer at the elections held on March 11. Basically, the evidence concerning these allegations centers on two issues. First, it is undisputed that in April her hours were changed from 8:30 a.m. to 4 p.m. to 9 a.m. to 4:30 p.m. Although Lo Presti testified without contradiction that she was told by Supervisor Biondo that Fligstein changed her hours in order to harass her, she does concede that she did not protest this change and that the change made no difference to her. i ° The second issue essentially involves a series of transactions leading up to a letter of reprimand issued to her on April 23, 1983. This letter, signed by Fligstein stated: I regret having to write this note at all but I have no choice. Mistakes which are made by an employee which can significantly hurt the company represent a seri- ous concern to me and to our management in France. Earlier this month you submitted a report with sales figures for the month of March which contained a series of errors aggregating approxi- mately $5,000. Had this mistake not been caught, it would have seriously distorted the entire report. In recent weeks you have committed a number of errors which have embarrassed me including the se- rious mishandling of incoming messages from a salesman and an officer of the French Embassy. I cannot emphasize too strongly how serious I consider these matters to be especially if they are a product of inattentiveness to responsibilities or pos- sibly a lack of care on your part. In any event, I cannot overlook them and I must tell you that since I have ultimate responsibility for the operation here in Central Islip, I am going to be continuously seeking to employ people who help me perform my job, not people who make it more difficult. Please, therefore, be guided by this note that I expect no repeat of errors and that if you are unable to raise your standards to meet the company needs that I will have to replace you. 10 Originally her hours were from 8 30 a in to 4 p .m so that she could be home when her children returned from school At the time of the change, however, her children were old enough to be at home before she returned to work 373 The evidence concerning the events described in the above-quoted letter is hotly disputed, involves substantial issues of credibility, and is not easy of resolution. Al- though it is my opinion that the General Counsel has made out a prima facie case as to her allegations, I do not perceive that any useful purpose would be served to resolve these issues or that such a resolution would have any practical consequence to any party in this proceed- ing. Thus, as Lo Presti has voluntarily left the Company (and there is no indication of her prospective return), a retraction of her warning would be of no assistance to her in any practical sense. Nor would a finding that the Respondent has discriminatorily changed her schedule of hours or that it reprimanded her for discriminatory rea- sons add anything to the remedy in this case, given my earlier findings that the Respondent violated Section 8(a)(1) and (3) vis-a-vis Roberta Mittler and James John- son. Accordingly, as it is my opinion that the unfair labor practice allegations relating to Lo Presti are of no practical consequence in the context of this entire case, I shall recommend that they be dismissed. D. Miscellaneous 8(a)(1) allegations In addition to what has already been discussed, the complaints allege a number of other violations of the Act. 11 The evidence shows that the Respondent had a long- standing practice of providing free lunches to its employ- ees on the arrival of merchandise by container trucks. Sometime in April, this practice was terminated regard- ing the office employees. (The warehouse employees continued to get the free lunches.) The reason given by Fligstein for terminating this practice was to save money. He also testified that he resumed the practice after about 2 months. As the evidence shows that the practice of providing free lunches on these occasions was a longstanding one, I view it as having become a term and condition of em- ployment and not merely a gift. i 2 I also conclude that Fligstein's assertion to the effect that this practice, vis-a- vis the office employees, was temporarily terminated in order to save money, is unpersuasive. Thus, although there was no evidence presented by either side about the value of these lunches, I can only imagine that given the small number of employees involved and the relative in- frequency of the occasions when the lunches were given, that the cost to the Respondent could not have been very significant. As the termination of this practice oc- curred during the pendency of the representation cases, and in view of the unpersuasiveness of the Respondent's asserted reason for discontinuing the practice, it is my conclusion that the Respondent violated Section 8(a)(1) of the Act in this respect.' 3 11 In her brief, the General Counsel contends that a wage increase given to Donna Fish at the time of her "promotion" to office manager constituted a granting of a benefit in violation of the Act However, as this was not alleged in the complaints and was not encompassed by any specific motion to amend, I shall not consider this assertion. 12 Cf Benchmark Industries, 270 NLRB 22 (1984) 13 There also was some testimony by the General Counsel's witnesses to the effect that Fligstein refused to allow them to use a rotisserie that Continued 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel also contends that Fligstein denied certain medical benefits to Donna Fish. In this re- spect, the evidence shows that Donna Fish was hired on December 28, 1982 (to replace Tucker). She testified that on January 11, 1983, Fligstein told her that he would have to hold up on her medical benefits and get back to her. (There apparently was some question whether she wanted medical coverage only for herself or whether she also wanted to include her family.) In any event, and notwithstanding the alleged conversation with Fligstein on January It, she testified that she received the medical benefit package that she wanted within a week on Janu- ary 11. I therefore cannot conclude that the Respondent has violated the Act in this respect. The General Counsel further alleges that the Respond- ent, to influence the results of the election in the office clerical unit, gerrymanded that unit by promoting Donna Fish to the position of office manager and claiming that Florence Lo Presti was a confidential employee. These matters shall be dealt with below in the "challenge" sec- tion of this decision. IV. THE CHALLENGED BALLOTS A. Roberta Mittler Having concluded above that Roberta Mittler had been discriminatorily discharged, it follows that she was, at the time of the election, an eligible voter. Therefore, it is recommended that her ballot be opened and counted in Case 29-RM-686. Machinists, 159 NLRB 137, 143 (1966). B. Jay Fligstein Jay Fligstein was hired in July 1982 to work as a part- time employee in the warehouse. At the time of his hire and throughout 1982 until the spring of 1983, he was a senior in high school and was the dependent child of Philip Fligstein, the Respondent's highest managerial of- ficial for its United States operations. (Albeit, Fligstein was not a shareholder of the Respondent.) Jay Fligstein at all relevant times, lived at home and was supported by his family. From the time of his hire until January 14, 1983, Jay Fligstein was paid off the books, which meant that unlike the other employees, no withholdings were made from his earnings for income or social security taxes. (He did not file an income tax return for the year ending 1982.) Thus, although his rate of pay ($4 per hour) was similar to that of James Johnson, one of the other warehouse employees, Jay Fligstein's net take home pay did not suffer the ravages of taxation felt by the other employ- ees. In fact, I am convinced that he was only put on the payroll, after the Union's demand for recognition, to ensure that he could vote in the election. The evidence also shows that during the period 1982- 1983, when Jay Fligstein was going to high school, he had the privilege of working out his own schedule which was acceded to by his supervisor, Mike Biondo. Thus, it one of the office employees had brought to the office and which had been in disrepair for a long time. I consider that matter as being too tnvi- al for consideration appears to me that he essentially would come and go as he pleased and that Biondo arranged the work to suit Jay Fligstein's schedule rather than the other way around. Indeed, the records show that during the school year from September 1982 to January 14, 1983, Jay Flig- stein's hours of work per week fluctuated from 0 hours per week (for 4 weeks), to 16-1/2 hours per week on one occasion. In fact, it is clear from the testimony of both Jay and Philip Fligstein that Jay's school work came before his job and that if he had to study for tests, etc., he was expected to stay away from work (in itself a to- tally laudable ordering of priorities). In addition to the above, credible evidence was pre- sented to show that Jay Fligstein frequently utilized his father's office to make personal phone calls, to an extent not done or permitted by the other employees. Although Jay Fligstein cannot be excluded from the definition of an employee by virtue of Section 2(3) of the Act (which excludes, inter alia, any person employed by his parent or spouse), the Board and the courts have held relatives of management to be ineligible voters if they enjoy a special status vis-a-vis other employees. For ex- ample in NLRB v. Caravelle Wood Products, 466 F.2d 675, 678 (7th Cir. 1972), the court stated: While we will not allow the Board to apply an automatic or per se rule to exclude spouses and chil- dren under section 9(b), there are many precedents for the Board's exclusion on a case-by-case basis of relatives who enjoy a "special status," such as privi- leges or favorable working conditions not granted other employees. E.g., Cherrin Corp. v. NLRB, 349 F.2d 1001 (6th Cir. 1965), cert. denied 382 U.S. 981 . ... These relatives include persons whom the Board admits are employees under section 2(3). NLRB v. Jackson Farmers, Inc., 432 F.2d 1042 (10th Cir. 1970), cert. denied, 401 U.S. 955 . . . (wife of general manager who owned no stock); NLRB v. Dan Howard Mfg. Co., 390 F.2d 304 (7th Cir. 1968) (mother of one owner); Uyeda v. Brooks, 365 F.2d 326 (6th Cir. 1966) (brother of employer); Pargas of Crescent City, Inc., 194 NLRB 616 (1971) (wife of nonstockholding manager); P.A. Mueller and Sons, Inc., 105 NLRB 552 (1953) (nephew of corporation owner). Also, in a case with very similar facts to those herein, the court in NLRB v. Connecticut Foundry Co., 688 F.2d 871, 878-879 (2d Cir. 1982), stated: The Company challenges the determination of the ALJ, which the NLRB sustained, that Elizabeth Cornwall and Jeffrey Cox, children of the Company officials, were ineligible to vote in the certification election. Cornwall is the daughter of the plant man- ager, and Cox is the son of the plant engineer. We find that the Board's ruling is supported by substan- tial evidence in the record. The Board has often excluded relatives of Com- pany officials on a case-by-case basis because they "enjoy a 'special status,' such as privileges or favor- able working conditions not granted other employ- TERRAILLON CORP. 375 ees." NLRB v. Caravelle Wood Products, Inc., 466 F.2d 675, 678 (7th Cir. 1972); see Mercy Hospital v. NLRB, 668 F.2d 661, 666 (2d Cir. 1982); Linn Gear Co. v. NLRB, 608 F.2d 791, 795 (9th Cir. 1979); NLRB v. Caravelle Wood Products, Inc., 504 F.2d 1181, 1183-86 (7th Cir. 1974). The record contains ample evidence to support the Board's conclusion that Cornwall and Cox each occupied such a "spe- cial status." While the Company presented evidence that Cornwall and Cox were paid from regular pay- roll accounts and were not treated differently from other employees while on the job, both enjoyed considerable flexibility in scheduling their work hours around school and vacations . . . and both in- tended to attend college shortly after the election . .. . We cannot conclude that the Board erred in excluding these children of Company employees from voting in the certification election because they occupied a "special status." Based on the facts of this case, it is my opinion that Jay Fligstein is not an eligible voter and I recommend that his ballot remain unopened.' 4 C. Donna Fish Donna Fish was hired by Fligstein on December 28, 1982, as a replacement for Eileen Tucker, the assistant bookkeeper who was planning to leave the Respondent in January. At this time and in the past, the Respondent did not have an office manager, and the evidence indi- cates that although subject to the overall supervision of Fligstein, each office employee had her own separate area of responsibility which she carried out with little or no supervision. In fact, the evidence shows that several years before, there had been some discussion between Fligstein and the office employees about having an office manager but that this idea was rejected by Fligstein. Fish was offered the position of office manager about February 13, 1983, approximately 5 days after the Union filed a petition seeking an election among the office cleri- cal employees. After some hesitation, Fish accepted the promotion. Fligstein asserted that the reasons he created the posi- tion of office manager was that (1) there had been a large degree of turnover; (2) that his responsibilities kept him out of the office a good deal of the time; and (3) that the Respondent began to handle products of another European Respondent. In this regard, the Respondent has not shown that Fligstein's time away from the office was any different from what it previously had been and it has not demonstrated to me that the additional product line necessitated any change in the office structure. It is true, however, that there had been a significant degree of turnover inasmuch as Eileen Tucker and Roberta Mittler had left the Respondent and Donna Fish and Marie 14 See also Pandick Press Midwest, 251 NLRB 473 (1980); Ellis Funeral Home, 255 NLRB 891 (1981) In my opinion, the present case is distin- guishable from Toyota Midtown, 233 NLRB 797 (1977), in which the chal- lenged employee was marned , financially independent , lived apart from his father who was the employer's manager, and was subject to the same terms and conditions of employment as other similarly classified employ- ees Scott had recently been hired.' 5 (Florence Lo Presti was the only holdover employee.) Also, in February, Erica Barr, an employee from an office temporary firm was working at Respondent's office. On February 24, 1983, Fligstein gave Fish a memo outlining her duties. The memo stated: This will confirm your appointment as office manager of Terraillon. Some of the responsibilities that you should assume are the coordination of vacation schedules, receiving calls if someone is out sick , proper sign in and out procedures, re-assign work as needed and so on. Within the next week or two we will assign additional duties. To confirm the major medical you will enroll your children and increase your life insurance to $20,000 as a supervisor , manager. It is not necessary for you to sign in. As we discussed your salary has been changed to $6.50 per hour.' 6 In relation to the position of office manager, Fish, a witness who I found to be credible, testified, in effect, that notwithstanding her promotion, her actual job duties did not change. She testified that she continued to do the same clerical functions as she had done previous to the promotion, such as handling accounts receivable, paying bills, handling money, taking phone orders, posting re- ceivables and making collection calls. She states that 99 percent of her time was taken up with these types of office and bookkeeping functions. According to Fish she did not assign work on a day- to-day basis because the other office employees had their basic routines which they followed. She testified that at most, she notified the clericals once a week of the fol- lowing week's schedule. She states that she was given the responsibility of taking calls from the clericals when they called in to let the Respondent know when they would not be in, but asserts that she had no power to deny such requests for time off. (In this respect, she states she simply noted for the records whether an em- ployer should be given sick leave, vacation leave, etc.) Fish testified, contrary to Fligstein that she played no part in changing the schedule of hours of Florence Lo Presti, although conceding that she told Lo Presti of this decision. According to Fligstein, Fish, arranged the schedule of Erica Barr (after Barr had been employed di- rectly by the Respondent) in connection with certain work that Barr did outside the office with one of the salesman. However, Fish testified that it was Fligstein's decision to have Barr do this outside work and that she 15 Although initially hired on December 17, 1982, Mane Scott quit after 3 days Subsequently, when Mittler went on her vacation, Fhgstem called Scott and he offered her the job, with the understanding that she could take her vacation in February Scott testified that she was called on February 8 by Fligstein who told her that he had some problems, that a union was called in and that he was "up against it " She testified that he also told her that he had things under control and that Roberta Mittler would not come back to work 16 Fish's wage rate had previously been $6 per hour It also appears that the regular employees had life insurance coverage of $10,000 where- as Mike Biondo, the other supervisor, had coverage of $20,000 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merely tried to make sure that Barr's outside work did not conflict with her office work. There was conflicting testimony between Fligstein and Donna Fish concerning the latter's power to hire and fire or to recommend such actions. In this regard I credit, Fish. Although, Fligstein testified that at the time he offered the office manager's job to Fish, he told her that she would have the power to hire and fire, she testi- fied that he told her this during a telephone conversation he made to her home on the Saturday following the elec- tion. She also testified that notwithstanding this tele- phone conversation, she did not, in practice, either have the power to take such actions or to effectively recom- mend them. Thus, contrary to the assertion by Fligstein that she recommended the hire of Erica Barr, Fish testi- fied that she had nothing to do with this decision and that Barr was hired on the same day as Fish was ap- pointed to be office manager. Indeed, according to Fish, she would not have recommended the hire of Erica Barr had she been asked. She also testified that in January 1984, Fligstein asked her opinion about hiring a woman who had been interviewed for an office job. Fish testi- fied that notwithstanding her negative opinion about the woman, Fligstein hired her. In addition to Fish's testimony denying Fligstein's as- sertion that she had any part in changing the schedule of hours of Penny Lo Presti, she also testified that the letter of reprimand given to Lo Presti on April 23, 1983 (de- scribed above), was issued over her objection. In short, I find that Donna Fish did not, in reality, have the power to hire, fire, or discipline employees or that she had the power to effectively recommend such actions. It is my opinion that at all relevant times, she spent the vast majority of her time performing bookkeep- ing and office clerical functions just like the other office employees. To the extent that she may have received phone calls when employees notified the Respondent that they would not be coming in, or noting their vaca- tion plans, it is my opinion that these functions were purely ministerial in nature. At most, I would describe Fish as being a leadperson, whose responsibility to assign and/or direct work was minimal, routine, and not in- volving the exercise of any significant degree of inde- pendent judgment. See for example Colonial Toyota, 267 NLRB No. 184 (1983) (not reported in Board volumes), affd. 732 F.2d 142 (2d Cir. 1984); Highland Telephone Co., 192 NLRB 1057 (1971); Hygeia Coca-Cola Bottling Co., 192 NLRB 1127 (1971); Hawaiian Telephone Co., 186 NLRB 1 (1970). Based on the above, it is concluded that Donna Fish was not a supervisor within the meaning of Section 2(11) of the Act and it is recommended that her ballot be opened and counted.17 17 Having concluded that Fish was not, in fact, a supervisor and that her ballot should be opened and counted , it is unneccessary for me to decide whether her "promotion" to the office manager position was moti- vated by a desire to defeat the Union in the election and therefore consti- tuted an unfair labor practice. D. Florence Lo Presti The Respondent contends that Lo Presti was a confi- dential employee who therefore was ineligible to vote in the election. The Union contends that she was simply an office clerical employee, whose vote should be counted. Lo Presti was hired in June 1975 and performed a va- riety of office functions. Among her duties was to act as Fligstein's secretary. In this regard she typed his letters and maintained the Respondent's files. Prior to March 1983, these files were kept either in her office or in Flig- stein's office. However, in March, Fligstein decided to keep a confidential and locked file containing, inter alia, the Respondent's correspondence with the NLRB and its labor attorneys. Lo Presti was given a key to this locked file after the election was held. In addition to the above, the evidence shows that she was responsible for sending telexes to the parent compa- ny in France and that she generally was the employee who received telexes from France. Some of these telexes dealt with wage increases to be given to employees. Also, during the election campaign she typed various let- ters drafted by Fligstein, to be sent to the other employ- ees, regarding the election. (She also typed up the Excel- sior list, which is a list of the names and addresses of the potential voters, to be sent to the Union before the elec- tion.) In determining whether an employee is a confidential employee under the National Labor Relations Act, it is not sufficient that the employee handle or deal with con- fidential business or financial information. Rather, as pointed out in Associated Day Care Services, 269 NLRB 178, 179 (1984): It is well settled that the Board will exclude con- fidential secretaries from bargaining units only if those employees "assist and act in a confidential ca- pacity to persons who formulate, determine and ef- fectuate management policies in the field of labor relations." This "labor nexus" test for excluding confidential employees was upheld by the Supreme Court in NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170 (1981). In the present cases it is clear that Fligstein, the high- est officer of the Respondent's U.S. operations was re- sponsible for effectuating management policies in the field of labor relations. However, it also is evident from his own testimony that he was not responsible for formu- lating or determining labor relations or personnel deci- sions. In this respect, it appears that his functions were sharply circumscribed by his supervisors in France, who established the number of employees to be employed, the range of wage rates at which he could hire new employ- ees, the raises to be given to employees, and the level of fringe benefits they would be accorded. Although Flig- stein testified that from time to time he made suggestions or recommendations regarding these subjects, it is evi- dent to me that he neither formulated nor determined such policies which were established in France. The Respondent's United States representative, Flig- stein dealt with the labor attorneys in relation to the TERRAILLON CORP. elections conducted by the National Labor Relations Board. However, the evidence does not suggest that Lo Presti sat in during any conferences between Fligstein and counsel, or apart from typing a few campaign letters sent to employees and the Excelsior list, that she assisted Fligstein in any other way regarding the election. Also, I place little significance on the fact that Fligstein created a locked file for "labor relations matters," and gave Lo Presti a key to this file after the election was held. I also do not think it is particularly significant that Lo Presti, on a few occasions, typed letters drafted by Fligstein to the Respondent's labor counsel, or that she filed letters received from labor counsel. There is no evidence in this record to show that she was present on any occasions when labor relations was discussed or that she participat- ed in any confidential meetings concerning labor rela- tions matters. As it is my opinion that Lo Presti did not act in a con- fidential capacity to Fligstein, who could formulate, de- termine, and effectuate management policies with regard to labor relations, it is concluded that she was an eligible voter. It therefore is recommended that her ballot be opened and counted. With respect to Lo Presti, the complaint in Case 29- CA-10558 alleges that the Respondent violated the Act by contending that Lo Presti was a confidential employ- ee and therefore ineligible to vote. I see no basis for con- cluding that an employer's unsuccessful contention re- garding an employee's eligibility should also constitute an unfair labor practice. Such a conclusion seems to me to be absurd on its face and would mean that employers would violate the Act every time they made eligibility contentions in representation cases which proved to be unsuccessful. In this respect, I make a distinction be- tween an employer which merely takes a legal position regarding the eligibility of certain prospective voters versus a situation where an employer actively engages in gerrymanding in order to affect the outcome of an elec- tion. REMEDY Having found that Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the Act. With respect to Roberta Mittler it is recommended that the Respondent offer her immediate reinstatement to her former job or, if that job no longer exists, to a sub- stantially equivalent position without prejudice to her se- niority or other rights and privileges previously enjoyed. It also is recommended that she be recompensed for her vacation pay for the period from February 7 to 17, 1983. I also shall recommend, in accordance with Sterling Sugars, 261 NLRB 472 (1982), that the Respondent remove from its files any reference to her discharge and to notify her in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against her. With respect to James Johnson, it is recommended that the Respondent make him whole for any earnings lost because of its reduction in his hours. Such backpay is to run from the date that his hours were reduced 377 (March 30, 1983) to the date that he voluntarily termi- nated his employment. In each case where backpay is required, it shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 298 (1950), and Isis Plumbing Co., 138 NLRB 716 (1962), with interest prescribed in Florida Steel Corp., 231 NLRB 651 (1977). In relation to the petition in Case 29-RM-686 it is rec- ommended that the ballot of Jay Fligstein remain un- opened and uncounted. Therefore, the Regional Director should issue a revised tally of ballots and a Certification of Representative. In connection with the petition in Case 29-RC-5873, it is recommended that the ballot box be opened, that the challenged ballots of Robert Mittler, Florence Lo Presti, and Donna Fish be opened and counted, and that the ballot of Peggy Ann Fligstein remain unopened and un- counted. If the Union should win the election, after a tally of ballots is issued, then a Certification of Repre- sentative should issue. If, however, the Union should lose the election, then a Certification of Results should issue. Based on the above fmdings of fact and on the entire record, I make the following CONCLUSIONS OF LAW 1. The Respondent, Terraillon Corp., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union 1922, International Brotherhood of Electrical Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by threatening its employees with the closure of its United States business, if the Union were to become the employees' bargaining representative. 4. The Respondent violated Section 8(a)(1) and (3) of the Act when, for discriminatory reasons, it ceased its practice of granting free lunches to its employees on cer- tain occasions. 5. The Respondent violated Section 8(a)(1) and (3) of the Act when it discriminatorily revoked the vacation schedule of Roberta Mittler and when it thereafter dis- charged Roberta Mittler. 6. The Respondent violated Section 8(aXl) and (3) of the Act when, for discriminatory reasons, it reduced the hours of work of James Johnson. 7. In Case 29-RM-686 the challenged ballot of Jay Fligstein shall remain closed and unopened. Therefore, a revised tally of ballots shall issue along with a Certifica- tion of Repreesentative. 8. In Case 29-RC-5873 the ballot box shall be opened, the challenged ballots of Roberta Mittler, Donna Fish, and Florence Lo Presti shall be opened and counted, and the challenged ballot of Peggy Ann Fligstein shall remain unopened and uncounted. Accordingly, a tally of ballots shall be issued and if the Union obtains a majority of the valid votes counted, a Certification of Representa- tive shall issue. If the Union fails to obtain a majority of the valid votes counted, then a Certification of Results shall issue. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. Except to the extent heretofore found, the other al- legations are dismissed. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed's ORDER The Respondent, Terraillon Corp., Central Islip, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to close its United States operations if the employees select or support Local Union 1922, Inter- national Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. (b) Discharging or threatening to discharge employees, reducing their hours of work, revoking lunch privileges, or otherwise discriminating against them in any other manner if they join or support Local 1922 or any other labor organization. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Roberta Mittler immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make whole Roberta Mittler and James Johnson for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the remedy section of this decision. (c) Remove from our files any reference to the dis- charge of Roberta Mittler, and notify her in writing that this has been done and that evidence of the discharge will not be used as the basis for future personnel actions against her. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- is If no exceptions are filed as provided by Sec 102.46 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. roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business copies of the attached notice marked "Appendix."ts Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations not specifically found herein. IT IS FURTHER ORDERED that with respect to the peti- tion in Case 29-RM-686, the petition is remanded to the Regional Director for Region 29; that the challenge to the ballot of Jay Fligstein is sustained; that a revised tally of ballots be issued; and that a Certification of Represent- ative be issued. IT FURTHER IS ORDERED that the petition in Case 29- RC-5873 is remanded to the Regional Director for Region 29; that the ballot box be opened; that the chal- lenged ballot of Peggy Ann Fligstein remain unopened and uncounted; that the ballots of Roberta Mittler, Flor- ence Lo Presti, and Donna Fish be opened and counted; and that a tally of ballots be issued. In the event that a majority of the valid votes counted is cast for Local 1922, a Certification of Representative shall be issued. However, if a majority of the valid votes counted is not cast for Local 1922, a Certification of Results shall be issued. i' If 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 Nation- al 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."