Halpak Plastics, Inc.

700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Halpak Plastics, Inc. and Amalgamated Union, Local 1, National Organization of Industrial Trade Unions. Cases 29-CA-12447 and 29- RC-6625 16 December 1987 DECISION, ORDER, AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 15 June 1987- Administrative Law Judge Harold B Lawrence issued the attached decision. The General Counsel' and the Respondent filed exceptions and supporting briefs, the Union filed a brief in response to the Respondent's exceptions, and the Respondent filed a brief in response to the exceptions and brief filed by the General • Counsel. 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 briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions3 and to adopt the recommended Order as modified.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified 'below and orders that the Re- spondent, Halpak Plastics, Inc., Oceanside, New York, its officers, agents, successors, and assigns, ' The General Counsel excepts to the judge's failure to include in his recommended Order a visitatorial clause authorizing the Board, for com- pliance purposes, to obtain discovery from the Respondent under the Federal' Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order We find no merit in the Gen- eral Counsel's exception; having concluded that, under the circumstances of this case such a clause is not warranted 2 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 reviewed the record and find no basis for reversing the findings In agreeing with the judge that the Respondent violated the Act by discharging David Pietn, we find it unnecessary to pass on the Respond- ent's exception to the judge's finding that the Respondent's failure to call ,two of its employees as its witnesses raised an adverse inference that these employees would have given testimony favorable to the General Counsel s In adopting the judge's decision, we find it unnecessary to rely on the small-plant doctrine No exceptions were filed to the judge's findings that Joseph Castro was not a supervisor and that his ballot should be counted 4 The judge incorrectly failed to require that the ballot of Joseph Castro be opened and counted We shall direct the Regional Director to open and count the ballot cast by Castro, to issue a revised tally of bal- lots after this ballot has been counted, and if the Union receives a majori- ty of the votes cast, to certify the Union as the bargaining representative In the event that the Union does not receive a majority of the votes in the revised tally, the Regional Director shall set aside the 10 June 1986 election and hold a new election shall take the action set forth in the Order as modi- fied. Delete the last paragraph of the recommended Order. DIRECTION IT IS DIRECTED that the Regional Director for Region 29 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Order, open and count the ballot of Joseph Castro, and cause to be served on the parties a revised tally of ballots, including, the count of the ballots. In the event the revised tally of ballots shows that the Union has received a majority of the valid bal- lots cast, the Regional Director shall issue the ap- propriate certification of representative. However, in the event that the revised tally of ballots shows that the Union has not received a majority of the valid ballots cast, the election conducted on 10 June 1986 shall be set aside, and the Regional Di- rector shall hold a new election in conformity with the provisions of this Decision, Order, and Direc- tion whenever the Regional Director deems appro- priate. i Kevin Kitchen, Esq, for the General Counsel. Martin H. Scher, Esq. (Barbara Barash and Roger S. Nay- berg, of counsel), of Carle Place, New York, for the Respondent Roy Barnes, Esq. (Wendell V. Shepherd, of counsel), of Hempstead, New York, for the Petitioner. DECISION STATEMENT OF THE CASE HAROLD B LAWRENCE, Administrative Law Judge These consolidated cases were heard by me at Mineola,` New York, on 9 and 10 February 1987. The complaint in Case 29-CA-12447, issued on 30 July 1986, alleged that Halpak Plastics, Inc. (the Respondent) fired David Pietri on 19 May 1986 because of his involvement in concerted protected activity, including assistance to Amalgamated Union, Local 1, National Organization of Industrial Trade Unions (the Union), in violation of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) The Respondent's answer denied any wrongdoing or statutory violation. Case 29-RC-6625 involved chal- lenges by the Union to the ballot cast by Joseph Ga- linger on the ground that he is part of management, and to the ballot cast by Joseph Castro, on the ground that he is a supervisor, and an objection to the election by reason of Respondent's conduct in discharging Pietri. The parties were afforded full opportunity to be heard; to call, examine, and cross-examine witnesses, and to in- troduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel, Halpak, and the Union. 287 NLRB No. 72 HALPAK PLASTICS, INC 701 On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed, I make the following FINDINGS OF FACT I. JURISDICTION IN CASE 29-CA-12447 In its answer, Respondent admitted , and I accordingly find, that it is, and has been at all times pertinent, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act, and that the Union is, and has been at all times material , a labor organization within the meaning of Section 2(5) of the Act. Respond- ent received , at its place of business in Oceanside, Long Island , New York, from points outside New York State, on an annual basis, goods and materials valued in excess of $50,000. II. CASE 29-CA-12447' THE ALLEGED UNFAIR LABOR PRACTICES A. The Circumstances of the Discharge as Related by Pietri and Thomas' Respondent , a New York corporation, operates a plas- tics packaging materials business in Oceanside, Long Island, New York, manufacturing heat-sensitive products for wrapper seals and labels , such as plastic safety seals for medicine bottles, and other types of packaging, it also distributes containers, jars, caps, vials and discs. Its oper- ations are departmentalized into sections which Hal Kaplan, its principal and company president , denominat- ed as sales and marketing , consumer service, production and inspection, administrative and management (his wife, Sandy Kaplan, and himself). Union organizational activity began in April 1986.2 On 13 May the Union sent Respondent a mailgram which it received on 14 May demanding recognition on the basis that "[y]our employees have been signed by this organi- zation " On 15 May the Union filed a petition for an election. On 19 May David Pietri 's employment termi- nated. The General Counsel alleged that he was dis- charged because of his union activity . Respondent has as- serted affirmatively in its answer that it admits that David Pietri arrived to work late on May 19, 1986, voluntarily quit his job at approxi- mately 9:15 a.m, and failed to reapply for his posi- tion since that date. Pietri began working for Respondent in January 1981. While he was there, he was lead printer. There were three other printers Pietri mixed and matched the inks and colors, mounted the plates and ran one of the print- ing machines In March, he telephoned the Union and I The matters narrated in this decision without evidentiary comment are those facts found by me on the basis of admissions in the answer, data contained in the exhibits, stipulations between or concessions by counsel, undisputed or uncontradicted testimony , in instances when conflicts in the testimony did not warrant discussion, the testimony which I have credited 2 All dates hereinafter mentioned are in 1986 except as otherwise stated spoke to its president , Lasky, expressing his interest in unionizing the shop Lasky instructed him to talk to the other employees about it but to take care to keep a low profile, cause no trouble, and avoid disclosing his activi- ties to anyone in management . Accordingly, Pietri made his telephone calls to the Union from locations away from the plant When he and two other printers , Flonrtin Toc and Kenny Costa, solicited signatures on union cards, they spoke only to persons whom they felt they could trust not to report them . Pietri , who signed his own union card on 7 April, spoke to approximately seven persons, mostly during breaks and on the lunch hour, when a lunch wagon is usually parked in front of the plant and the employees gather there for their lunch and coffee breaks. Pietri's termination occurred on Monday, 19 May. It was his first day back from a vacation His workday was from 8 a.m. to 4 30 p m ., but he came in some time after 9 a.m. because of car trouble. He did not call in to advise that he would be late. When he arrived, he found that Carroll Thomas, who has been the plant manager since December 1982 and was Pietri 's supervisor, was operat- ing his printing machine According to Pietri, Thomas asked him what had hap- pened and he explained that the battery in his car was dead and he had to have it charged . Thomas then said, "Are you sure you wasn't talking to the wrong people?" Pietri asked him what he meant , and he said, "The Union." Pietri testified that he answered, "Yes " Thomas replied, "You better go home. I think you better go home." Pietri asked him twice if that was what he wanted, Thomas nodded his head affirmatively, and Pietri left Thomas testified that Pietri did not arrive until 9:20 or 9.30 a.m., and so he started working Pietri's printing ma- chine in order to keep production rolling, since another printer was also absent . He testified that at this point in time, he had no idea that union activity was going on, claiming that he did not learn of it until the following week when Hal Kaplan called him into the office and told him about it. He related the incident with Pietri as follows: Q. Who was the missing printer? A Kenny Costa. Mr. Pietri came in approximately 9:20, 9:30, and he walked over to where I was I said to him, "What happened to you?" and he said immediately, if I don't want him to work here, then he'd leave right away And he started walking towards the production department where he stopped and spoke to a couple of people. I secured my press because I couldn't shut it down where it was, and I went after him to find out what was the problem. And I stopped by the shipping department to ask Mike if he had seen him and he told me he went outside . I opened the door to the parking lot and Mr Pietri was driving out. I never spoke to him or seen him after that. Q. Did you ask him at that time if he was speak- ing to the wrong people? A. No. 702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. What were the exact words that David Pietri said to you after you asked him what happened? A He said if I don't want him to work here he'd leave right now, and he walked off. Q. Did you say anything in response to that state- ment? A. No, I didn't get a chance to On cross-examination, Thomas testified that he found Pietri's behavior erratic, which was why he tried to find out what was going on and chased after him to talk to him He saw Pietri's car leaving the parking lot and went back inside and filed a report with the personnel depart- ment. B. Other Evidence Respondent's plant contains areas set aside for a ship- ping room, offices, a cutting room, a mechanics' room, a printing room, and warehouse space, in a building which is 190 feet wide and 199 feet long. On one side of the building are offices, a conference room, a secretary's office, a sample room, a lunch room, a mail room, a ship- ping office, and a locker area. The balance of the space is divided between a warehouse area and a somewhat smaller production room, in one corner of which is the printing area. There are four printing . machines, posi- tioned about 20 feet apart in a straight line Pietri's ma- -chine was closest to the rest of the production room. The other machines were operated by Jimmy Dean, Flonrtin Toc, and Kenny Costa, in that order. Pietri's termination, therefore, occurred in the pres- ence of two other employees. On the way out of the building, by a route that took him through the produc- tion and warehouse areas, Pietri saw and was seen by other-persons- Michael Bulik, the lead in shipping and re- ceiving, who has been with Respondent about 5 years, and two • women in the warehouse area, with one of whom he had a conversation. Toc and Bulik testified, Dean and the two women did not appear at the hearing. Toc, who has worked for Respondent for about 2 years, testified pursuant to a subpoena served by the General Counsel. He testified that he did not hear any of the conversation' between Thomas and Pietri, but re- called that it lasted a few minutes. He observed that they left one at a time. At first, he could not recall who left first. Then he recalled that Pietri left first, going into the production area, and that Thomas left several minutes later. He was uncertain how much time elapsed between the two departures and obviously testified reluctantly: Q. Do you know how long he Thomas stayed at the machine after Pietri left A. I don't remember. Q Do you recall whether or not he stopped the machine, Mr. Thomas, after Mr Pietri left? A. I dont' remember very well Q. Did Mr. Thomas leave the machine at any time after Mr Pietri left? (pause) A. No. Bulik, who works primarily in the warehouse area through which Pietri passed on 19 May on his way out of the building, testified that Pietri stopped and chatted with him- Q. What did Mr Pietas say to you and what did you say to him? A. I ask him if there was a problem and he said, "None " He says, "I am leaving. I have had it with this place." I said, "Why?" He told me to ask Car- roll Thomas Q. Did he tell you that he was fired? A. No, he did not. Bulik further testified that 3 or 4 minutes later Thomas came through and asked him if he had seen Pietri. Bulik told him he 'had, he had left, and pointed towards the door. Thomas went out the door. Pietri testified that Neil Kaplan, son of Hal Kaplan, who was identified by Respondent's counsel as an out- side salesperson , saw him 2 weeks later at another place where he was working and asked him what had hap- pened, expressing disbelief when Pietri said he had been fired: Pietri testified that Neil said he was lying, and quotes further conversation as follows: Q. What, if anything, did you say? A. I said, no, I wasn't lying, I was fired. He says, "No. I think you were mixed up with the wrong people." Q What, if anything, did you say? A. I said, "What kind of people?" He says, "The Union." C. Analysis The termination of Pietri occurred during a conversa- tion between Pietri and Thomas. They have presented different versions of the incident and the parties have sought to corroborate their respective versions by citing conversations they had subsequently with other persons Pietri cites a conversation with Neil Kaplan and Thomas refers to a conversation with Buhk. This case does not involve circumstances which are themselves of ambigu- ous significance, but rather a plain conflict of testimony that has to be resolved on the basis of the witnesses' credibility. Either Thomas sent Pietri home because, he had sup- ported the Union and said so at the time, or ,Pietri, in the words of Respondent's counsel, "shouted his resignation" and walked out. Pietri testified in a fairly straightforward manner re- garding his conversation with Thomas. On cross-exami- nation, he testified that on his way out he spoke to an employee named Vivian, waived to another, named Patty, and spoke to Bulik. He gave no details of his con- versation with Vivian, but testified that Bulik asked him what had happened and he told Bulik that he had been fired. Two weeks after his termination he had the con- versation with Neil Kaplan. The record is barren of any evidence respecting Neil Kaplan's position with respect to the business or his par- HALPAK PLASTICS, INC 703 ents, who are the owners of the business. Pietri testified that he did not know what Neil did in the business, though he had seen him at Halpak Plastics 'frequently. We do not know, therefore, whether Neil lived at home with his parents; whether he was privy to information regarding details of the business; and whether he dis- cussed the affairs of the business with his parents. There is no basis on which to conclude that an utterance by him would truly represent policies or attitudes of Hal and Sandy Kaplan. Neil Kaplan's statement cannot there- fore, be treated as an admission. It is admissible only as evidence that Pietri has consistently maintained that he had been fired See Knogo Corp., 262 NLRB 1346, 1358 (1982), modified 727 F.2d 55 (2d Cir. 1984); I. W. Corp., 239 NLRB 478, 485 (1978); Whiting Corp., 188 NLRB 500, 502 (1971). Accordingly, I have considered the con- versation only with respect to what Pietri told Neil Kaplan Toe's seemingly uninformative testimony is actually revealing. It takes on significance in the light of other testimony that indicated that the machines make noise and that some elevation in voice is necessary to carry on a conversation in the printing area. Toc, working some 40 feet away from Pietri's machine, might well fail to hear a normal conversation or a conversation in which a supervisor told an employee to go home after question- ing his union activities Such remarks would not be ex- pected to be made by a supervisor in a loud voice. Pietri, however, is claimed to have irately shouted his resigna- tion. If that had happened, it is reasonable to expect that Toc would have heard it. Toe's testimony is that of a man resolutely minding his own business in order to stay out of trouble. He could only get into trouble if he had to testify to statements by Thomas that corroborated Pie- tri's testimony, while he would have had no problem tes- tifying that he had heard Pietri shouting his resignation over the noise of the machines. By virtue of what he did not say, Toe's testimony thus fails to corroborate the tes- timony of Thomas and substantiates Pietri's testimony. Pietri's testimony relating the circumstances of his ter- mination was consistent and coherent. The testimony which was supposed to controvert it either failed, in ac- tuality, to do so or suffered from infirmities which im- paired its credibility. The testimony controverting it came from Carroll Thomas and Michael Bulik. The remarks which Bulik ascribed to Pietri are not necessarily inconsistent with his having been fired He does not quote Pietri as having said that he had quit, but only that he had had enough and was getting out of the place. Such remarks are consistent with Pietri's having been fired. The response which he quotes Pietri as having made to his question-that he should "ask Thomas"-is a clear indication that Thomas was the ini- tiator of whatever the problem was, and thus tends to corroborate Pietri's version of the conversation between him and Thomas. Bulik's testimony struck a jarring note when he indi- cated that he knew there was trouble before Pietri had said anything. Bulik testified that he initiated the conver- sation with Pietri, saying "hello" or "good morning" and then asking him "what the problem was " Bulik ex- plained that he had assumed there was a problem be- cause Pietri was in -an area of the plant where he would not normally be, and that, though Pietri did not say any- thing to indicate there was problem, he looked angry. But that is also consistent with Pietri's having been fired. Bulik's fast-talking description of the kind of problem he had in mind was unconvincing It's a general reference whether if he has a problem with his machine or his daily life or needs materi- al-there had to be some sort of a situation for him to be in that location at that time . . . He should have been working at his machine. I do not believe Bulik ever expected Pietri to seek out the shipping and receiving leadman for help with either the printing presses or with his private life. I am not unmindful of statements, made by Pietri on two occasions during the portion of the hearing devoted to the representation case, that when he needed help with a machine he looked for Castro in the mechanics room and in the warehouse area, calling the office only if he-failed to find him in either place Since Pietri testi- fied to frequent need for mechanics' services, Bulik pre- sumably saw him looking for Castro from time to time. That, however, does not lend plausibility to Bulik's ex- planation of the manner in which he opened the conver- sation and Bulik did not assign that fact as the reason for assuming that Pietri had a problem Instead he indulged in implausible speculation. I also note that there was no testimony that on any of Pietri's prior searches through the shipping area Bulik ever interrogated Pietri The quality of Bulik's testimony and his demeanor in the course of its delivery bespoke a recognition on his part of a need to rise to some level of inventiveness, and leads me to credit Pietri's version of their conversation. I am similarly inclined to credit Pietri's version of the conversations between him and Thomas The status of Thomas as plant manager and Bulik as lead does not nec- essarily mean that their testimony must be discounted, but the predisposition of these individuals to favor Re- spondent was apparent Their testimony had an orches- trated "feel" to it. Thomas described erratic behavior on the part of Pietri, but there is no evidence that such behavior had any antecedents. Actually Thomas' behavior was more erratic than Pietri's, by his own account. According to Thomas, it took minutes to "secure" the machine he was working at. Pietri testified that the machine could be shut down by pressing a button. Thomas explained that he had work in the machine, but did not explain why, if at all, that prevented him from stopping it or what the difference was between "securing" it and stopping it. Pietri walked through the production department, con- versed with two people, walked to his car, and drove out of the parking lot in the time Thomas shut down his machine and followed him out. His and Bulik's testimony that he went after Pietri after a delay of several minutes, and therefore missed Pietri, is not only brought into question by the asserted delay of several minutes, but by the fact that Pietri did not see him as he left the parking lot and by the confused testimony of Toc, quoted above Toc was uncertain as to how long Thomas delayed, and 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD finally said he did not leave the machine at all. So either Thomas did not go after Pietri at all, or waited for too long a period of time, for no satisfactorily explained reason. I note, also, that Thomas' testimony is inconsistent with the report he filed with the personnel department, in which he stated that Pietri arrived at 9.15 a.m. The difference may seem small, but small discrepancies must be weighed in the balance, when,a need has been demon- strated to scrutinize testimony minutely. Several persons who might have given enlightening testimony were not called as witnesses In the case of Neil Kaplan, it is uncontroverted that Pietri consistently maintained that he had been fired and expressed that to Neil Kaplan Dean, who was working the machine next to the one being operated by Thomas when Pietri ar- rived at work, was not called as a witness by either side, and neither side has asserted that it attempted to procure his testimony As he was under Respondent's control and could have been produced, I infer that had he testified, his testimony' would not have supported Respondent's version of what occurred in the printing area, an infer- ence which is reinforced by the manifest reluctance with which Toc testified. Similarly, I infer that had the em- ployee named Vivian been called, her testimony would have been supportive of Pietri's version of events Re- spondent could have produced her, but failed to do so While the General Counsel might have subpoenaed her, the' experience with Toc demonstrates that an attempt to secure her testimony under subpoena would probably not have resulted in free and unintimidated testimony. See Colorflo Decorator Products, 228 NLRB 408, 410 (1977), enfd. 582 F.2d 1289 (9th Cir. 1978) (mem. op ). See also Bechtel Corp., 141 NLRB 844, 845, 852 (1963); Davis Walker Steel & Wire Corp., 252 NLRB 311 (1980), General Teamsters Local 959, State of Alaska, 248 NLRB 693, 698 (1980); Martin Luther King, Sr. Nursing Center, 231 NLRB 15 (1977). The General Counsel has thus established a credible prima facie case in which the employment of an active union supporter has been shown to have been terminated within days after the Union filed a petition for an elec- tion. The basic defense is that the employee quit. During the hearing, Respondent's counsel took a stab at trying to establish that there existed a lawful reason to fire Pietri. On cross-examination, Pietri was asked about sev- eral reprimands in connection with instances of failures to telephone in and to get permission for time off, and of unexcused latenesses and absences It was intimated that Thomas spoke to him about these matters. Pietri denied having been reprimanded and when Thomas took the stand no testimony was elicited from him regarding any latenesses or absences An attempt was also made to show that at the time Pietri's employment ended, Respondent had no knowl- edge that he had been engaged in union activity. It was stipulated that notice of the Union's petition for an elec- tion was received on 14 May Knowledge that the Union was seeking recognition is clearly established. It is argued, however, that there is no evidence that anyone in management knew that Pietri was working for the Union. However, that may be inferred under the "small shop" rule. The Respondent's business employs 25 per- sons and is housed in a building which is 190 by 199 feet, comprising approximately 37,000 square feet. The dis- tance from the printing area to the section of the build- ing where the offices are located is between 250 and 300 feet. The layout was described in detail by Bulik and a diagram was placed in evidence. It is apparent that, not- withstanding the Respondent's contention that the plant is very large, with production separate from warehouse facilities and offices separate from both, the fact is that the plant is not inordinately large and is organized in a highly conventional manner. Thomas referred to the plant as "medium-sized " , The issue of knowledge of Pietri's involvement in union activity, however, is resolved by my finding that Thomas fired him. I credited Pietri's testimony regarding the remarks made by Thomas when he sent him home and the remarks indicated that Thomas had knowledge of Pietri's union connections. On the entire record, I find that Respondent dis- charged David Pietri in violation of Section 8(a)(3) and (1) of the Act. This conclusion is facilitated by the lack of credible supporting evidence of Pietri's voluntary res- ignation as claimed by Respondent, the timing of the ter- mination of Pietri's employment, the background of union organizational activity, my finding that Respond- ent had actual knowledge of the union campaign, and the otherwise inexplicable action taken against Pietri. III. THE REPRESENTATION CASE A Challenges On 10 June an election was held on petition of the Union pursuant to a Stipulation for Certification Upon Consent Election, dated 28 May. The appropriate collec- tive-bargaining unit was defined as follows- INCLUDED All production and maintenance em- ployees including printers, shipping and receiving employees, drivers, warehousemen and plant cleri- cals employed by the Employer EXCLUDED: All office clericals, guards and super- visors as defined in the Act. The Union, the Petitioner here, challenged the ballot cast by Joseph Castro on the ground that he is a supervi- sor. The ballot cast by Joseph Galinger is challenged on the basis that he is a member of management., 1. The challenge to the ballot of Joseph Castro The Act, Section 2(11), defines the term "supervisor" as follows: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employ- ees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exer- cise of such authority is not of a merely routine or HALPAK PLASTICS, INC clerical nature, but requires the use of independent judgment Carroll Thomas testified that the duties of Castro were those of a "lead mechanic." He used the terms, "lead person" or "lead mechanic" or "senior mechanic" inter- changeably, as meaning someone who has been on the job for a considerable period of time and is knowledgea- ble and experienced regarding the equipment and proce- dures. Thomas testified that the mechanics take care of the machines in all departments. These consist of three print- ing machines, six cutting machines, three seaming ma- chines, two inspection machines and one strapping ma- chine. Without specifying the exact circumstances of usage, Thomas testified that the general terminology em- ployed during the period January to June 1986 was "lead person" or "senior mechanic " In shipping, Bulik was the leadperson; Thomas spoke to him instead of dealing sepa- rately with each individual in the shipping department. Bulik had no responsibility for firing or disciplining em- ployees; though he was asked whether Bulik directed those employees, Thomas did not respond, but it is ap- parent from his testimony that, since Thomas did not deal directly with them, Bulik must have been responsi- ble for directing them In the case of Pietri in the print- ing department, Castro in mechanics and N. Vince in production, however, Thomas was explicit that they were leads and that they did not hire, fire, discipline, or direct employees. He testified that he made personal in- spections of the work going on in the printing depart- ment and among the mechanics, talking directly to them With respect to Castro, he testified- Q And how did you interact with him as a lead or a senior person? A. Okay, we would determine machine mainte- nance schedules, based on company records and I would direct him as to which machine would have a priority in terms of to be maintained, repaired and he would carry out that function. And also, he had several other people that worked in that depart- ment, so I would administer the work-the work to Mr Castro and tell him who would be involved in doing different mechanic work on different presses, based on the different people's capability He thus described a situation in which all true direc- tion of the operation was personally administered by himself, with Castro exercising technical supervision He further testified that Castro received only the same benefits other employees received He testified, as did Hal Kaplan, that everybody working for Respondent gets the same benefits. It is apparent from Thomas' testimony that Castro re- sponsibly directed the work of the other mechanics and was asked for his opinion regarding the capabilities of mechanics whom Respondent contemplated hiring. This is corroborated by the testimony of Pietri and Castro himself Other circumstances to some extent set Castro apart from the other mechanics. He is salaried and earns $757 69 per week, according to the payroll register. He opens and closes the plant on Saturdays and sometimes 705 opens it during the week (a task usually performed by Bulik); he therefore has a set of keys and access to the security code which Respondent installed May 15, 1986. On Saturdays, he is "in charge" of the plant Pietri testified that when a machine had to be worked on, Castro would ascertain the nature of the problem with it and then send the mechanics in to work on it. He would instruct them where to go, what to do, and which machines to fix. He usually got to the plant in the morn- ing before other employees arrived. (The mechanics and all other employees had the same working hours.) He did not have a fixed lunch hour but ate when he was free. Like Thomas and Bulik, he did not punch a time- card. He was not paid for overtime. He was one of the persons through whom Kaplan communicated with em- ployees (the others being Thomas, Bulik, and Pietri). He would tell the mechanics when they had to work over- time His responsibility for Saturday operation was noted by Pietri, who testified that Castro could move the oper- ators to different machines in event of breakdowns. When mechanics wanted time off, they spoke to Castro. Conceding that Castro's role in hiring appeared to be "a little bit difficult to define," Pietri nevertheless testi- fied that Castro made recommendations. Hiring was done by Hal Kaplan and his wife, Sandy Kaplan, but they made a practice of consulting department leads before making a final decision. For example, Pietri testi- fied that he was asked his opinion of new hires: Q. And they management didn't consult with you, did they, on who they were going to hire and who they were going to fire? A. Yes. sometimes. Q They consulted with you on hiring on firing between 1985 and time of the election? A. Well, I don't know what you mean by "con- sulted." They would ask me what my opinion was. Q. And they asked you your opinion with respect to printers? A. Printers. Q. And they would ask you-do you recall the last time they asked you with respect to printers what your opinion was? A. Yes. Last time was when Kenny Costa was hired Q. They asked you whether he had the qualifica- tions to be a printer? A What did I think of him. Q. You, yourself, didn't hire him, did you? A. No Pietri never heard what Castro said about an applicant, but the question put to him, which he did hear, makes it apparent that Castro's opinion was sought though discre- tion whether or not to hire did not rest with him. Pietri testified- Well, they called Joe, Joe is told, "This is a new mechanic we are going to hire Talk to him, see what you think." 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Castro sought, in his testimony, to give a considerably different impression, asserting that he interviewed pro- spective mechanics at the request of Sandy Kaplan or of Thomas, but solely for the purpose of ascertaining what they knew about the machinery. He testified that he cus- tomarily gave them some work to do which was on schedule for that day and then reported back what they did or did not know about the machinery, without making any recommendation about whether they should be hired, because he was not asked to make such a rec- ommendation. Castro's testimony on this point is patently slanted. Castro had made statements in an affidavit which he fur- nished to the Board investigator in which he asserted that he made recommendations regarding mechanics who applied for employment, that he had recommended that employees be hired and that on occasions his recommen- dations had been followed. Trying hard to diminish his own importance, Castro testified that when he had been hired, as a mechanic, there had been no discussion of supervisory duties; as the Company grew, he became a "lead mechanic." He pres- ently works with a mechanic, Bob Lloyd, and a helper, Rodrigo Guzman, whom he tells what to do; but when he does so, he works from a list given to him by Thomas. Thomas tells him what to work on on any given day, and he talks to Thomas several times a day. Moreover, besides giving Castro a list, Thomas occasion- ally gives orders directly to the other mechanics. This is consistent with Thomas' testimony. Castro's duties and the conditions under which he worked do not, however, spell out a status significantly different from that of a leadman. At the time of the hear- ing, he had worked for the Employer for more than 4 years, and he had come to Halpak with more than 20 years of experience as a mechanic. His testimony pre- sents a picture of limited authority exercised primarily'in implementation of decisions made by Thomas; a deep ex- periential background; exercise of routine functions such as initialing of timecards and ascertaining the qualifica- tions of job applicants in his field; and responsibilities such as opening, closing, and overseeing operations in the plant on Saturday mornings. He answered questions that the mechanics and helper had and checked to see that they made repairs properly, and he directed them to perform additional work when it was needed. Castro's authority was circumscribed and judgmental decisions were made by Thomas, the plant manager. Castro did not control events in areas normally governed by supervisors. There'is no evidence, for example, that during the short periods on Saturday mornings, when he was "in charge" of the plant, he performed anything other than routine tasks. He certainly has not been shown to have participated in the formulation of Hal- pak's labor relations policies. He cannot be held to have become a supervisor merely because he instructed the other mechanics or because they respected him, he made no significant judgments and gave no directions that can be considered significant to the issues here. See NLRB v. Wilson-Crissman Cadillac, 659 F.2d 728, 729 (6th Cir. 1981). Thus, Thomas, to whom Castro submitted requisi- tions for needed machine parts, declined to order such parts when he considered the expense unjustified and ap- proved only routine requisitions for parts needed for re- pairs. The mere fact that a Spanish-speaking employee found it more convenient to telephone Castro, who spoke Spanish, rather than Thomas , when he was not coming to work , did not elevate -Castro's status. To the extent that he exercised any supervisory authority, it was of a routine and sporadic nature. See Chicago Metallic Corp., 273 NLRB 1677, 1689 (1985). It is uncontroverted that, as Castro and Thomas testi- fied, the work for Saturday was scheduled the day before, in line with the general control that Thomas ex- ercised over the priorities in the plant as a whole . Castro needed his permission to assign overtime or Saturday work and Thomas would often tell him when it was needed. In no true sense can he be said to have shared the power of-management or done more than exercise the control normally exercised by a skilled worker over less capable employees . Addy Mechanical Fabricators, 257 NLRB 738 (1981), quoting NLRB v. Southern Bleachery & Print Works, 257 F.2d 235, 239 (4th Cir . 1958). Pietri himself testified that Thomas , Castro, and he were all called supervisors up to 1985, but that in that year Castro became a "lead ." Of course, the title is not determinative ; it is essential that the person in question perform one of the functions described in Section 2(11) of the Act with the exercise of some degree of judgment and discretion . Trailback, Inc, 221 NLRB 527 (1975); Wolff & Munier, Inc., 282 NLRB 150 (1986), Berger Transfer & Storage, 253 NLRB 5 , 10 (1980), enfd. 678 F.2d 679, 688 (7th Cir . 1982) (noting that incidental or extraordinary exceptions to general practice should not control). Assigning work essentially as a conduit for transmission of orders is the work of a lead, not a ' super- visor. Vanport Sand &- Gravel, 267 NLRB 150 ( 1983); Humes Electric, 263 NLRB 1238 , 1241-1242 fn. 2 (1982), enfd . 715 F.2d 468, 472 (9th Cir. 1983). In Vanport Sand & Gravel, ' supra, an employee who assigned work and overtime on the basis of other employees ' skills, granted time off on a daily basis or for vacations , made purchases on the credit of the employer, was responsible for the production process and compliance with customer speci- fications, and was responsible for plant operation in the absence of the plant manager, was nevertheless found to _ be a leadman, rather than a supervisor . The finding was based on the absence of essential elements of supervisory status and authority : there was no exercise of independ- ent discretion, the work was automated and routine, the employees had established job classifications , little was done without consultation with the plant manager in whom final authority in all important matters resided, and, while the work of other employees was responsibly directed, there were none of the other indicia set forth in Section 2(11) of the Act. The present case is not materially different . Compari- sons have been made of the difference between supervi- sors and leads, and by all the criteria referred to it is ap- parent that Castro was a lead rather than a supervisor. See NLRB v. Monroe Tube Co., 545 F 2d 1320 (2d Cir. HALPAK PLASTICS, INC. 1976); Advanced Mining Group, 260 NLRB 486 (1982), enfd. 701 F.2d 221 (D.C. Cir. 1983). There are some other considerations One is that Bulik had many of the purportedly supervisory attributes which have been ascribed to Castro, but his vote was counted. Another is that the mere fact that Castro was salaried is, by itself, of no significance. There is no evi- dence to explain why he was salaried or why he made a salary in the amount he did, and speculation cannot recti- fy the absence of evidence. Accordingly, I find that Castro was not a supervisor and that his ballot should be counted. The objection to his ballot is overruled. 2. The challenge to the ballot of Joseph Galinger In order to determine whether an employee is an "office clerical" or a "plant clerical" it is necessary to determine, on the basis of the record as a whole, wheth- er the tasks performed are more closely akin to those performed by one or the other category and whether the work is more closely associated with production than with other facets of the business. The difficulties in- volved in making such a determination have been recog- nized by the Board See Hamilton Halter Co., 270 NLRB 331 (1984) (one Board member dissenting). Joseph Galinger, an employee of 10 years' standing, identified himself as one of two "plant clericals" em- ployed by Respondent. He has exclusive responsibility for handling customer service calls relating to jars, caps, discs, and vials, while other "service representatives" handle PVC: polyvinyl chloride, or shrink wrapping. He is salaried, at $400 per week, works from 8 a m. to 5 p in, receives an hour for lunch, and has an office Pressed for an estimate, he calculated that, during the period from January to June 1986, he had a minimum of 15 telephone conversations per day with customers and a half dozen with suppliers; the total amount of time spent on these calls varied with the volume of business. Galinger purchases all of the jars, caps, discs, and vials; maintains a card inventory; telephones and places orders with vendors; coordinates shipments to customers and makes sure the deliveries go out; takes orders from customers; ensures maintenance of a steady, adequate in- ventory. When he places a large order ($10,000) he ob- tains Kaplan's permission. He formerly worked in the same office as the customer service people for PVC, but now has his own office He attends trade shows. He is responsible directly to Kaplan At the present time, there is another plant clerical, but Galinger alone handles jars, caps, vials, and discs, taking the orders and regulating the inventory of these items. The function of PVC repre- sentatives is limited to customer service on the tele- phone, taking orders and giving general information; they do no buying or inventory control. Lucy Moss, the PVC clerical, and Thomas control the inventory of that material. Galinger has nothing to do with PVC and had nothing to do with it before Moss' arrival. He has the complete responsibility for maintaining the inventory cards on the items he handles. He has no au- thority to hire, fire, discipline, or supervise During the period from January through June 1986, he interacted 707 with Bulik and Thomas an average of 1 or 1-1/2 hours daily. Galinger testified that customer service was primarily responsible for taking orders, handling inquiries, sizing the package, and making phone followups to customers. As the plant clerical, he would be involved in placing orders with vendors, adding and subtracting from the in- ventory cards, and advising Kaplan of shortages and areas where material had to be placed. Galinger gives Kaplan a written report advising what has been ordered, what is needed, and current status on a weekly basis. He is the only one who reports directly to Kaplan. He inter- faces with Bulik regarding material coming in and going out and problems that may occur. He checks inventory twice a year, a duty entrusted to him directly by Kaplan. The Petitioner has shown that Galinger operated in several areas of activity. He appears to have spent by far the greater portion of his time acting as a combined cus- tomer service representative and salesman for the jars, discs, and vials and lids. He spoke to customers on the telephone and manned Halpak's booth at local trade shows. His pay, conditions of employment, work respon- sibilities and direct interaction with Kaplan, and the large discretion vested in him with regard to purchasing, set him apart from the members of the production, main- tenance, and shipping departments Galinger testified that he spoke to Bulik, who seems to have been his sole contact with the shipping department, and with Thomas, on an average of 1-1/2 hours per day. The total amount of time he spent with Bulik was not estimated separately, but appears to have been less than 5 hours per week. That hardly compares with the 20 hours per week spent by the employee in Wright Bros. Paper Box Co., 261 NLRB 1162 (1982), cited by Employer's counsel. The Employer's counsel also notes, in the post- hearing brief, that Galinger receives the same benefits as the production and warehouse employees, but Kaplan testified that all employees had the same benefits, so Ga- linger also received the same benefits as office clerical employees and persons associated with management. In S & S Parts Distributors Warehouse, 277 NLRB 1293 (1985), also relied on by the Employer, community of interest was judged by the extent to which an employee 's duties were "integrated into and necessary to the smooth func- tioning of' the particular branch of the Employer' s busi- ness. This in turn was to be ascertained by the extent of work contact, the degree of necessity for face-to-face work-related contact, similarities in skills and requisite educational preparation, integration of functions, facility of transfer between the two groups, and the degree to which interests are aligned with parties outside the unit All-American Distributing Co., 221 NLRB 980 (1975), also cited, looks at involvement with production and ware- house areas and also at identity of working conditions. Hamilton Halter Co., 270 NLRB 331 (1984), compared extent of involvement in the production process with extent of involvement with office clerical work. By these criteria, the functions and interests of Joseph Galinger are seen to be more closely aligned to those of management and the office clerical staff than to those of 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the employees working at the printing presses, the me- chanics, or the employees in the shipping department. Galinger's salary; his working conditions (his office and lunch hour); the nature of his work-the manner in which his time was spent, the fact that most of his time was spent in his office, and his direct access to Kaplan; and the discretion vested in him, with authority to commit fairly large sums for purchase of inventory with- out advance clearance, definitely place him with manage- ment. Accordingly, the challenge to the ballot of Joseph Ga- linger is sustained. B. The Objection to the Election The discharge of David Pietri by reason of his activi- ties in support of the Union is precisely the type of egre- gious conduct which the Act seeks to eliminate because of its destructive effect on the chances for a fair and un- coerced election. Accordingly, I find that the election held on 10 June has been invalidated by reason thereof and must be set aside. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Amalgamated Union, Local 1, National Organiza- tion of Industrial Trade Unions is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by discharging David Pietri, and by thereafter fail- ing to offer him reinstatement, because of his support of the Union in its organizational drive. 4. During the period between 15 May 1986, when the Union filed a petition for an election, and 10 June 1986, when an election was held, Respondent committed unfair labor practices in violation of Section 8(a)(3) and (1) of the Act by discharging David Pietri on 19 May 1986 and by thereafter failing to offer him reinstatement. 5. The unfair labor practices committed by the Re- spondent during the period from 15 May to 10 June 1986 invalidated the election held on 10 June 1986 and the ob- jection to the election on that account must be sustained. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY rizons for the Retarded, 283 NLRB 1173 (1987). See Isis Plumbing Co., 138 NLRB 716 (1962).3 Having found that the election held in Case 29-RC- 6625 was invalidated by Respondent's conduct, a new election will be ordered. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Halpak Plastics, Inc., Oceanside, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting Amalgamated Union, Local 1, National Organization of Industrial Trade Unions, or any other union. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of 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 to David Pietri immediate and full reinstate- ment to his former position or, if that position is no longer available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings and other benefits in the manner set forth in the remedy section of this decision. (b) Expunge from its files any references to his dis- charge and notify him in writing that this has been done and that evidence thereof will not be used as a basis for future actions against him. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due to David Pietri under the terms of this Order. (d) Post at its facility at Oceanside, New York, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent 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 Respond- Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged an employee, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, com- puted on a quarterly basis from the date of discharge to the date of proper offer of reinstatement, less any net in- terim earnings, as prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Ho- 3 The General Counsel's application for an order of discovery is hereby denied for lack of adequate showing of necessity therefor in the circumstances of this case. 4 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. 5 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." HALPAK PLASTICS, INC ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) 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 RECOMMENDED that the challenge in Case 29- RC-6625 to the ballot cast by Joseph Castro be over- ruled. IT IS FURTHER RECOMMENDED that the challenge in Case 29-RC-6625 to the ballot cast by Joseph Galinger be sustained. IT IS FURTHER RECOMMENDED that the Objection to the election in Case 29-RC-6625 be sustained and that the election conducted therein on 10 June 1986 be set aside, and that the Representation Case 29-RC-6625 be severed and remanded to the Regional Director of Region 29 for the holding of a new election under the supervision of the Regional Director, in conformity with the provisions of this Order, as soon as he considers the same feasible. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 709 Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge or otherwise discriminate against employees who support Amalgamated Union, Local 1, National Organization of Industrial Trade Unions, or any other union WE WILL NOT in any like or related manner interfere with, restrain , or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer reinstatement to David Pietri and make him whole for any losses which he sustained by reason of our unlawful action in discharging him, and WE WILL remove any reference to same from our records. HALPAK PLASTICS, INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice.