John N Hansen Co. Inc

JOHN N HANSEN CO John N Hansen Co , Inc and International Long shoremen's and Warehousemen's Union, Local 6 Cases 20-CA-21408 and 20-RC-16173 March 6, 1989 DECISION, ORDER, AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On June 1, 1988, Administrative Law Judge James M Kennedy issued the attached decision The Respondent filed exceptions and a supporting 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 only to the extent consistent with this Decision, Order, and Direction and to adopt his recommended Order, but not to adopt his recom- mendation with respect to certain determinative challenged ballots in the election in Case 20-RC- 16173 The Respondent engages in the manufacture and distribution of toys and novelty items It operates a warehouse facility in Millbrae, California, with a small work force of employees who receive, pack- age, and ship merchandise A representation elec tion was conducted on September 9, 1987 The vote was two for and zero against the Petitioner, with six challenged ballots The judge, inter alia, sustained determinative challenges to the ballots of David Gillespie, Paulette Downing, and James Blaising The judge found that Gillespie is a super- visor within the meaning of Section 2(11) of the Act, that Downing is an office clerical employee, and that Blaising performs certain "managerial" tasks and enjoys a special relationship with the Hansen family, which owns and manages the Re- spondent In its exceptions, the Respondent con tends that Gillespie is merely an experienced ware- house employee lacking any supervisory authority, that Downing is a warehouse clerical performing functions integrally related to the warehouse unit i In the absence of exceptions we adopt the judge s findings conclu sions and recommended Order in Case 20-CA-21408 and his recommen dations to sustain the challenges to the ballots cast by Scott Edler and Robert Zimmerli and to overrule the challenge to the ballot cast by Eli Siva Uluikaepa in Case 20-RC-16173 The Respondent has excepted to some of the judge s credibility find rags 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 63 workflow, and that Blaising performs unit work and has no special relationship to the Hansen family We find merit in the Respondent's excep- tions with respect to Gillespie and Downing Ac cordingly, we shall overrule the challenges to their ballots 2 Each warehouse employee is supervised by the Respondent's president, John Hansen, with the as- sistance of Office Manager Louise Herbeck Hansen, with the assistance of Herbeck, makes all decisions regarding hiring, firing, layoffs, raises, benefits, and promotions Each warehouse employ- ee works approximately 8 am to 5 p m, with an hour lunch period and the same break periods All employees are entitled to receive the same compa ny provided fringe benefit program dependent on seniority They share the same break and lunch- room and restroom facilities located in the Re- spondent's office area David Gillespie has worked in the Respondent's warehouse for 17 years About April 1986, the Re spondent's former warehouse foreman, Chuck Evans, retired 3 Hansen placed Gillespie in charge of the warehouse and authorized Gillespie to print business cards naming him warehouse supervisor Hansen testified, however, that Gillespie was not capable of assuming Evans' supervisory role and that Hansen made all production and personnel de- cisions Gillespie principally "picks" merchandise off shelves and delivers it by forklift to the packing and shipping area He also commonly performs other warehouse duties performed by rank and-file warehousemen His monthly salary is $600 more than junior warehousemen Chaika and Gouyd He is often responsible for opening and closing the warehouse He monitors employee attendance and confirms hours worked by signing employee time- cards Any problems concerning hours worked or wages paid are resolved by Herbeck or Hansen Gillespie consults with Hansen each morning to determine the work that needs to be performed by warehouse employees He possesses authority to adjust work assignments within the limits of the in- structions received from Hansen Because most of the tasks involve routine picking, packing, ship ping, receiving, and storing, close supervision is 3 We adopt the judge s finding sustaining the challenge to the ballot of James Blaising Applying our community -of interest standard we ,on elude that Blaising receives special job related benefits and favorable working conditions sufficient to warrant his exclusion from the bargain ing unit For the reasons set forth in the judge s decision Member Higgins would sustain the challenges to the ballots cast by Gillespie and Down mg and he would certify the Petitioner 3 Evans had power to hire and fire and was responsible for the direct supervision and management of the warehouse 293 NLRB No 8 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD often unnecessary The daily operation of the ware house varies little, and the warehouse employees rarely need to be assigned work or told what to do They simply continue where they left off the previous day Gillespie "interviewed" employees Chaska and Edler prior to the commencement of their employ- ment Both individuals, however, had already been tentatively hired by the Respondent Supervisor Evans had recommended to Hansen that Chaika be hired Thereafter, Chaika reported to the ware- house and asked Gillespie if the Respondent was hiring Gillespie said yes Chaika stated that he would report for work the next day Similarly, Herbeck phoned Edler and asked if he would like a job Edler replied affirmatively and was told to come in and fill out an application Edler inter- viewed with Gillespie Gillespie took his applica tion and asked whether he could drive a forklift Edler said no Gillespie informed Edler that he would be trained and asked him to report for work the next Monday The judge found that Gillespie possessed a cer- tain amount of independent authority to direct the work of employees, possessed the ability effectively to recommend hire and tenure decisions, and was held out as the supervisor in the warehouse Ac- cordingly, the judge concluded that Gillespie was a low-level statutory supervisor and sustained the challenge to his ballot Contrary to the judge, we conclude that the Pe- titioner has not met its burden of establishing Gil lespie's supervisory status Although the possession of any one of the indicia specified in Section 2(11) of the Act is sufficient to confer supervisory status on an employee, the statutory authority must be ex ercised with independent judgment on behalf of management and not in a routine manner Hydro Conduit Corp, 254 NLRB 433, 437 (1981) It ap- pears that any assignment of work to or direction of warehousemen by Gillespie is routine and does not entail the exercise of independent judgment Rather, Gillespie first consults with Hansen con cerning the work to be performed and then passes this information on to the other warehouse employ ees Thus, Gillespie merely acts as a conduit for re laying management instructions to other employees performing daily, routine tasks Such authority does not reflect supervisory status Dickinson-Iron Agency, 283 NLRB 1029 (1987), Bowne of Houston, 280 NLRB 1222 (1986) Likewise, Gillespie's re- sponsibilities concerning recording hours and sign- ing timecards are routine or clerical in nature and insufficient to establish supervisory authority Wa- terbed World, 286 NLRB 425 (1987), Artcraft Drs plays, 262 NLRB 1233, 1234-1235 (1982) Although may do so if the office clerical is unavailable Gillespie interviewed Chaska and Edler before they began work, the evidence fails to establish that he made the hiring decisions or made effective recom- mendations to hire these employees Cf Bowne of Houston, supra at 1224 In these circumstances, Gil- lespie's supervisory title on a business card and his higher salary as a senior employee are merely sec- ondary indicia of supervisory status Without more, such evidence is insufficient to prove that he exer cises independent judgment in performing any of the functions set forth in Section 2(11) of the Act In sum, we conclude that Gillespie is not a su- pervisor within the meaning of Section 2(11) of the Act Accordingly, we overrule the challenge to his ballot Paulette Downing has worked for the Respondent for 11 years She is paid a salary of $1400 per month She has no job title She spends most of her time in the office area at her desk and workbench, located approximately 5 feet from a warehouse door She uses a computer terminal, typewriter, and adding machine at her desk area to prepare COD forms, export forms, and UPS tracers She occasionally deposits checks at the bank Although she performs no physical work in the warehouse, she initiates the warehouse order-filling process by converting customer orders to `picking tickets " The "picking ticket" is either an invoice or export form that apprises other warehouse em ployees of the specific merchandise to be packaged and shipped Downing either tracks down ware- housemen to give them invoices and export forms or she places the picking ticket in a basket in the warehouse for pickup She is responsible for rout- ing all orders and international shipments and pro- viding warehousemen with routing instructions When an export or COD order is packed and ready for shipment, warehousemen contact Down- ing to provide the necessary information for com pleting bills of lading or totaling other shipping documents Downing also interacts with warehouse employees when dealing with returned and defec- tive merchandise Office Manager Herbeck and one undisputedly nonunit office clerical also work in the office area They are responsible for general office operations including billing, payroll, answering the phone,4 and taking telephonic or mail purchase orders from customers and placing them into the Respondent's computer The nonunit clerical has no need to con- tact warehouse employees and there is no evidence that she participates in the warehouse order-filling process 4 It is not part of Downing s job to answer the telephone although she JOHN N HANSEN CO The judge concluded that Downing is an office clerical He therefore sustained the challenge to her ballot We disagree Downing performs duties integral to the func- tioning of the Respondent's warehouse operations She initiates the workflow for these operations and is primarily responsible for preparing picking tick ets for merchandise to be shipped, obtaining and providing routing information to warehouse em ployees, shipping merchandise overseas, tracing lost merchandise, and preparing COD's She has frequent face-to-face contact with warehouse em- ployees when performing these duties Thus, her duties are characteristic of those performed by a plant clerical appropriately included in a ware house unit Jacob Ash Co, 224 NLRB 74 (1976) The fact that she works with forms in the office area and utilizes a computer, typewriter, and other traditional office equipment does not preclude her inclusion in the warehouse unit S & S Parts Dis tributors Warehouse, 277 NLRB 1293 (1985), Avon Products, 250 NLRB 1479, 1486 (1980) We conclude that Downing shares a close com- munity of interest with the warehouse employees based on her integral participation in the ware- house order-flow process, the close proximity of her work area to the warehouse, the daily contact she has with warehouse employees, and the common supervision and similar fringe benefits and other terms and conditions of employment that she shares with warehouse employees Therefore, we shall overrule the challenge to her ballot In accordance with the foregoing, we shall remand this matter to the Regional Director with the direction to open and count the still-determina- tive ballots as to which challenges have been over- ruled, including the ballots cast by employees David Gillespie and Paulette Downing ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, John N Hansen Co, Inc, Millbrae, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order DIRECTION IT IS DIRECTED that the Regional Director for Region 20, within 10 days of this Decision, Order, and Direction, shall open and count the ballots cast in the September 9, 1987 representation election by David Gillespie, Paulette Downing, and Elisiva Uluikaepa, shall prepare and serve on the parties a revised tally of ballots, and shall issue the appropri- ate certification 65 Donald R Rendall Esq, for the General Counsel Jennifer J Walt and Mark J Levy (Littler Mendelson Fastff & Tichy), of San Francisco , California for the Respondent William H Carder (Leonard Carder & Zuckerman), of San Francisco California for the Charging Party/ Petitioner DECISION STATEMENT OF THE CASE JAMES M KENNEDY, Administrative Law Judge This case was tried before me in San Francisco California on January 12, 13, and 14, 1988, on a complaint issued by the Regional Director for Region 20 of the National Labor Relations Board on October 9, 1987 1 On October 15 the Regional Director issued a Report on Objections and Challenged Ballots in a representation election Case 20-RC-16173, and ordered the resolution of certain chal lenged ballots to be consolidated for hearing with the complaint The complaint is based on a charge filed by Interna tional Longshoremen s and Warehousemen s Union Local 6 (the Union), originally filed on August 25 and later amended on October 9 It alleges that John N Hansen Co , Inc 2 (Respondent) has committed certain violations of Section 8(a)(1) and (3) of the Act Issues The complaint asserts that Respondent discriminated against its employee Scott Edler in two ways First it as serts that Edler and others concertedly complained about their wages and Respondent, in reprisal, reduced Edler s hours Second it asserts that on July 27 in response to union organizing Respondent discharged Edler discon tinued overtime for two other employees and in Septem ber denied a regularly scheduled pay increase to those same two employees In addition the complaint alleges that Respondent has violated Section 8(a)(1) of the Act by informing employees that unionization would be futile, by threatening them with layoff loss of benefits, and business closure if they selected a union, and by tell ing employees that pay raises had been denied because they were attempting to bring in the Union In the representation case, the principal issue is wheth er the six individuals whose votes were challenged at the representation election of September 9 were eligible to vote The parties were given full opportunity to participate to introduce relevant evidence, to examine and cross ex amine witnesses to argue orally and to file briefs All parties have filed briefs that have been carefully consid ered Based on the entire record of the case,3 as well as my observation of the witnesses and their demeanor, I make the following ' All dates are 1987 unless otherwise noted 2 Respondents name has been corrected to accurately reflect its true corporate name 3 The General Counsels unopposed motion to correct the transcript is granted 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I RESPONDENT'S BUSINESS Respondent admits it is a California corporation having a principal place of business in Millbrae, Califor nia, where it is engaged in the manufacture and distribu tion of toys and novelty items It further admits that it annually sells and ships from its Millbrae warehouse products, goods, and materials valued in excess of $50,000 directly to customers outside California Accord ingly, it admits, and I find it to be, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED At the hearing the parties stipulated that the Union is, and has been at all material times a labor organization within the meaning of Section 2(5) of the Act, and I so find III THE UNFAIR LABOR PRACTICES A Background and Participants As described above, Respondent operates a 22 000 square foot, one floor warehouse in Millbrae Located in between the receiving and shipping doors is a 1000 square foot office All corporate stock is owned by John N Hansen its president His office is located at the warehouse His wife is the corporate vice president There is some limited testimony with respect to her duties being principally performed at Respondent s showroom in San Francisco Apparently she has few, if any responsibilities in Millbrae The Millbrae office man ager is Louise Herbeck She is a long time employee of the firm and appears to be Hansen s principal assistant She is assisted by at least two other clericals Paulette Downing and another woman who is identified in the record only as Lucy Downing voted a challenged ballot in the election Also having a desk in the office area is Robert Zimmerli, the sales manager he too voted a challenged ballot The complement of employees in the warehouse itself includes Dave Gillespie who has been empioyed for 17 years and who currently appears to be in charge of the warehouse, and James Blaising, formerly Hansen s broth er in law Both Gillespie and Blaising voted challenged ballots The last two challenged ballots are those of Eli siva (Siva) Uluikaepa and dischargee Scott Edler At the time of the events to be described, there were two other warehousemen Al Gouyd and Rich Chaika In addition there appear to have been two pa't time employees, Mitch Cota and John Jaimerena They were both hired on September 15, a week after the election a third part timer, Tevita ( Dave ) Fanua, was hired on October 13 On August 11 the Regional Director approved a Stip ulation for Certification Upon Consent Election in the following bargaining unit All full time and regular part time warehouse per sons shipping and receiving clerks forklift opera tors equipment operators order fillers and packers employed by the Employer at its Millbrae Califor ma, facility, excluding salespersons, office clerical employees supervisors and guards as defined in the Act Pursuant to that agreement, an election was conducted on September 9 resulting in two votes being cast for rep resentation by Petitioner, no votes against and the six challenged ballots B Edler's Alleged Reduction in Hours Scott Edler was hired in September 1986 as a part time go fer" in the warehouse He was a high school junior, approximately 16 years old He testified that he was hired by Dave Gillespie, the so called warehouse su pervisor He worked approximately 1 1/2 to 2 hours each day after school during the school year During holidays, he worked longer days, but does not appear to have been obligated to work a full 8 hours, indeed his starting and ending times were not specifically fixed It appears that Respondent had a sales arrangement with the J C Penney Company department store chain which permitted Penney s to return products it had pur chased from Respondent, but had been unable to sell at retail The contract contained a deadline that Penney s was required to meet to obtain credit for returns Al though the deadline is not specifically set forth in the record it seems to have been some time in June or July, though it may not have been strictly enforced The Pen ney s returns, as well as returns from other customers, all required rework This meant the returned toys or games had to be removed from their shipping box(es), in spected, repackaged as necessary and returned to inven tory It appears from the evidence that Jim Blaising was primarily responsible for getting that job done To this end Blaising usually had Edler assist him with the rework Edler admits that he worked primarily on the Penney s returns and concedes that they had ceased near the end of his employment on July 31 When school let out in early June, Edler began to work longer days The three timecards in evidence show that his hours from June 15 through July 31 varied quite a bit During the period June 15 through June 25 he averaged approximately 7 hours per day, but had vari able starting times ranging from 8 a in through 9 20 a in During the 2 week period of June 26 through July 10 his daily average fell to approximately 5 hours per day with starting times ranging from 9 a in to f p in Indeed during this 2 week period his starting times were 10 45 am, 1040 am, 11 10 am, 1040 am 1015 am 1050 am, f pin 9am and 9 20 a m During his last 3 weeks of employment, his average hours increased to ap proximately 6 1/2 hours per day and, except for 1 day, they began between 9 15 and 9 30 a in The complaint alleges that sometime in early June, Edler Chaika and Gouyd concertedly complained to Respondent regarding their wages hours and working conditions and that on the same date Gillespie responded by reducing Edler s hours of work The testimony with respect to the allegation is some what inconsistent There are at least three versions Al though both Chaika and Gouyd had received a wage in JOHN N HANSEN CO crease in April when they completed what appears to be a probation period they began discussing their need for a wage increase Chaika testified that the employees de cided they needed to see J Hansen about the matter and Edler asked Hansen to come and speak with them When J Hansen did so Edler asked him if he could help us out by granting a wage increase J Hansen asked Gil lespie if he knew anything about the request, Gillespie replied he did not Then according to Chaika Hansen looked at Edler and him, got close to them raised his voice, and said, You guys are out of order If you have any problems in the warehouse you are to go to your su pervisor, Gillespie Chaika said they almost immediately decided to ask Gillespie if he would speak to Hansen for them Gillespie agreed to do so and went into the office When he came out a short time later, Chaika says, Gillespie reported, Hansen said we would get raises in September-that he gives raises in September According to Chaika a few minutes later Gillespie told Edler that he was to cut his hours down The latter testimony appears to have been a private conversation On cross examination, Chaika conceded that when Gillespie told Edler to reduce his hours he was between 20 and 30 feet away from them It is, therefore, unclear whether Chaika actually heard it or whether he simply reported what he thinks he learned of it later Chaika also testified on cross examination that at the time the incident occurred, Edler was still attend ing school and working only 1 to 1 1/2 hours per day Chaika agrees that he never asked Hansen directly for the raise but only enlisted Gillespie's assistance Gouyd testified that the entire matter arose because Chaika s wife was expecting to deliver a baby shortly He said the three discussed the fact that they each needed more money and, as a result he and Edler went to J Hansen s office J Hansen said he was busy, so those two returned to the warehouse where Chaika joined them Shortly thereafter Hansen appeared and Chaika not Edler, asked Hansen for a raise, but Hansen angrily' told them to go through Gillespie Later the three met with Gillespie and asked him to speak to Hansen for them According to Gouyd, after Gillespie went into the office he returned, saying that employees would get a raise in September like always He says it was a day or 2 later when he heard Gillespie tell Edler he would have cut down his hours, agreeing that Gilles pie made no reference to the earlier request for raises when he told Edler to cut his hours Edler testified that he remembered a conversation in volving himself Chaika Gouyd, and Gillespie in early or mid June He says Chaika asked Gillespie to ask Hansen for a slight wage increase and Gillespie agreed When Gillespie returned from the office he said there would be 'no wage increase and that Edler was to reduce his hours Edler says that after school had let out he had gone to `full time" and on hearing Gillespie s directive reduced his own hours He also admits Gillespie told him sometime in July that he needed to have a set sched ule When Gillespie did so he did not mention either the request for a wage increase or union activity Respondents witnesses deny that anyone ever directed Edler to "reduce his hours, but they do assert that they 67 asked that his hours be regulated The regulation however, did not occur until mid July as borne out by the timecards It is true that Hansen himself testified to a certain amount of annoyance over the request for the raise He remembers Gouyd and Edler had come inside the office area and Edler had asked to see him about a raise At the time according to Hansen he had visitors in the office and Edler interrupted him Although to himself he ques tioned a 17 year old coming into the office for a raise, he simply told Edler to go back to the warehouse He says he did not even speak with Gouyd at that point He re members Gillespie later came in to ask for a wage in crease for Gouyd and Chaika but says that conversation occurred in late July and Edler was already gone 4 Gillespie testified that sometime in June Gouyd and Chaska asked him to intercede with Hansen to get a raise for them and he agreed to do so He says Hansen told him he did not give raises at that time of year and so he reported back that they would not be getting raises now Gillespie further testified that he never spoke to Edler about his hours at all and that during Edler s last 3 weeks his hours were regulated by Louise Herbeck Her beck testified that she noticed that Edler s starting times had become quite erratic and that it was therefore neces sary to regulate them Based on the foregoing evidence, I am unable to con elude that Edler s hours were reduced because of any concerted effort to obtain a wage increase First of all it appears that even though the three of them discussed their desire to have a wage increase their activity was not concerted nor was it perceived as such by Hansen When Edler went into the office he simply asked Hansen if he could talk to him about a wage increase, but was silent with respect to whose increase he wished to dis cuss Hansen thought he was asking only on his own behalf It is true that Gouyd was standing nearby but Hansen, annoyed that he had been interrupted, simply di rected Edler to go back to the warehouse and to go through Gillespie He did not concern himself with Gouyd s silent presence Although the Chaika and Gouyd versions are similar and describe something akin to concerted activity by them Edler s testimony dis tances himself from them Because he was the principal victim under the General Counsels complaint one would think that he would include himself in their con versation with Hansen in the warehouse, but he did not Instead all he could testify to was their request for Gil lespie s assistance Thus under this version Hansen knew only that Edler had wanted to talk about a raise and that Gillespie had later asked for a raise for Gouyd and Chaika Hansen s reply was simply to advise Gillespie that he did not give raises at that time of year and it was essentially none of Gillespie s business That being the case, there is no reason for either Hansen or Gillespie to have decided to reduce Edler s hours Edler simply was not the focus of a request for a raise because he never pursued it further and there is no reason why any retaliation would be directed toward 4 Edler s last workday was July 31 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD him Even if there was a retaliation against him it would have been as a result of the annoyance Hansen perceived when Edler interrupted him, an apparently unconcerted act Moreover, the timecards are not conclusive regarding whether Edler actually reduced his hours It is true that during the period from June 26 through July 10 his hours fell somewhat, but the drop is hardly significant given the fact that his hours had been erratic since the end of the school year Indeed, at least one entire day was lost to Independence Day during that second 2 week period Besides, during the first 2 week period, his hours had dramatically jumped as he switched from an after school job to what he called full time work In actuality of course, Edler was not a full time employee He never worked a full 40 hour week during his entire employment Indeed in observing Edler testify, I noticed that he had difficulty in perceiving and describing his employ ment circumstances generally This may be due to his youth and inexperience, but he had a tendency to exag gerate and his observations cannot be accepted at face value In any event, I am unable to conclude that counsel for the General Counsel has met his burden of proof here He has asserted that the employees engaged in a concert ed request for a wage increase I have found however, that even if this request can be characterized as concert ed Hansen did not and could not have perceived it as such Moreover there is no persuasive evidence that the Employer responded by retaliating against any employee including Edler, for having done so Accordingly, I shall recommend dismissal of this allegation of the complaint C Edler s Discharge According to Rich Chaika, sometime in late June he began discussing with Gouyd and Edler the possibility of going to a union for representation He says he also asked Gillespie if he was interested, but Gillespie replied that he was going on jury duty and would have to wait until July Gillespie agrees that at some point Chaika and Gouyd asked him if he was interested in being represent ed by a union, but says he simply replied he was not and did not take them seriously Because of that perception he did not tell anyone in management of Chaika s inter est in union representation Chaika continued to pursue the matter and eventually arranged a meeting with Union Business Agent David Schermerhorn On July 17 Chaika Gouyd and Edler all signed authorization cards In the meantime, as Edler admits, sometime in July the J C Penney returns stopped Furthermore, he testi feed that he believed he was entitled to a vacation (ap patently from something Gillespie had said but which no one from the front office ever confirmed) According ly, he made a decision in July that he wanted to go to Florida for a week He told either Gillespie or Herbeck of his desire, and Hansen became aware of it Further more it appears from company records sales in July were on the decline Ultimately the July sales records were the lowest they had been since 1983 and were well under the 1985 and 1986 figures It should be observed here that in 1986 when Respondent also employed two high school students both were laid off as work became slow Herbeck testified that Hansen was scheduled to attend a gift show in Los Angeles that began on July 18 She testified that shortly before that she had discussed Edler s situation with Hansen She reviewed the daily sales figures with him, the fact that Edler wanted to go to Florida in August the virtual cessation of the J C Penney s returns and the fact that there was not very much work for Edler to perform Both she and Hansen say they made a decision at that time to let Edler contin ue to the end of the month and to lay him off at that time She directed Gillespie to so inform Edler Gillespie says he did so in mid July Edler denies Gillespie s testimony saying he was not informed of his layoff until after lunch on July 27 when he was told that his last day would be Friday, Jul} 31 On July 27, at approximately 9 30 am, Business Rep resentative Schermerhorn, together with another union representative Newman, went to Respondents Millbrae office Schermerhorn met with Hansen and advised him that a majority of his warehouse employees had signed union cards and demanded that Respondent recognize and bargain with the Union in a warehouse unit Hansen declined saying that he wished to consult with an attor ney The three parted amicably and as they left Scher merhorn asked Hansen if he would transmit a message to the employees that he wanted to meet them at a nearby restaurant for lunch Hansen agreed to do so Shortly after Schermerhorn left Edler says, Hansen came into the warehouse and spoke to all the warehouse employees He says Hansen specifically asked him if he was responsible for bringing in the Union Edler said he was not Hansen then asked Well who is responsible9 Edler says Chaska replied, We all are Chaika corrobo rates Edler on the point Edler says it was at that stage that Hansen advised the employees that Schermerhorn wanted to meet them all for lunch Chaika says Hansen then asked Gillespie to come to the office and that as Gillespie departed he turned and said I told you you assholes no union On Gillespie s return Chaika says he told them John [Hansen] says he wants you to know if you get a union there will be no overtime you will be laid off when bust ness is slow and the company won t pay any benefits You 11 have to do that yourself Gouyd's version is a little different He says that after Schermerhorn left the office that morning Hansen came to the warehouse and spoke with the three of them He says Hansen pointed his finger at Edler asking if he had started this union bullshit When Edler did not reply, Hansen then asked who else was involved Chaika and he both replied Both of us Gouyd says Hansen then said As soon as it slows down you guys are going to be laid off " After the three had lunch with Schermerhorn, they re turned to work Edler says he noticed Gillespie being called to the office When Gillespie returned he told Edler that his last day was to be Friday [July 31] Edler remembers Gillespie told him he was being laid off be JOHN N HANSEN CO 69 cause work was slow On cross examination Edler agrees that Gillespie did not mention the Union as being a reason for the layoff Chaika testified that he heard Gillespie tell Edler that he was being laid off and that Edler asked if he was fired According to Chaika, Gillespie replied that he did not think Edler would be back Gouyd similarly testified that after Gillespie advised Edler of the layoff, Edler asked if he would get to come back or be part time, but Gillespie simply shrugged and walked away About a week later , according to Chaika he and Gouyd asked Gillespie why Edler had been discharged Although Chaika started to give testimony with respect to this conversation he backed away claiming that he did not remember it very well He was pressed by the General Counsel to assert that Gillespie had admitted that the Union was a factor in Edler s discharge Howev er, Chaika would not do so, finally saying that Gillespie only told him (though he does not remember it very well) that Edler was fired because business was slowing down Contrariwise, however, Chaika says that at the time of Edler s discharge it looked to him as if business was in creasing Chaika even asserts that Gillespie had said on several occasions that 1987 was one of Respondent s best years in terms of sales Assuming that Gillespie said it which Gillespie denies it is unclear how Gillespie would have known He had no access to Respondent s financial records and, although a long time employee had only been the head of the warehouse for about a year Moreover, Hansen did not regard Gillespie as capa ble of performing higher management functions and did not take Gillespie into his confidence with respect to business matters Indeed it seems unlikely that Hansen took any Millbrae employee into his confidence with re spect to financial matters except for Office Manager Her beck Because Gillespie had no access to this informa tion, it is unlikely that he would have told Chaika any such thing I am, therefore dubious of Chaika s testimo ny in this regard and find that Gillespie did not ever tell Chaika that Respondent was having a good year at the time Respondent discharged Edler Regarding the Edler Chaika and Gouyd testimony to the effect that Gillespie told Edler for the first time on July 27 that he was being laid off again I am somewhat skeptical I do think Gillespie told Edler that he was being laid off on that date but I do not believe that it was the first time that he had done so Both Herbeck and Gillespie appear to be quite credible in their testimony that a decision had been made in mid July and that Gil lespie had informed Edler then that his job would cease at the end of the month Clearly Respondent had a past practice of letting the high school students go when work became slow, usually shortly after school let out Additionally , it is quite apparent , even from Edler s own testimony, that the work had become slow he was having difficulty maintaining regular hours (quite possi bly because of the lack of available work) Furthermore his announced desire to leave work in August for a week to go to Florida could only have weakened his already insecure situation Edler s lack of perception with respect to what his benefits and duties were leads me to conclude that his ability to perceive circumstances has yet to develop He believed for example, that he was a full time employee and entitled to the vacation rights of a full time employ ee However he was always only a part time employee, not entitled to any fringe benefits that would inure to a regular full time employee He was not entitled to a va cation and even if he was, it would not have been given to him until the Christmas New Year s week during the following winter, which all employees were required to take annually as the Company was closed during that week Furthermore, Edler appears to have a certain amount of willingness even if not engaging in outright deceit to allow unclear circumstances to persist For example he told Herbeck that his summer school hours were to be from 8 to 10 am Accordingly she let him report to work between 10 and 10 30 am On one occasion his timecard even shows he was off because of school How ever he testified that his summer school hours were ac tually 8 to 10 p in and never interfered with work Indeed, he was not straightforward with me about that circumstance either Therefore, I am compelled to conclude that Respond ent was not motivated to discharge Edler because the Union had appeared on the scene in July There is, of course no doubt that Schermerhorn made his demand on July 27 and later that same afternoon Edler was remind ed that his last day would be July 31 Nonetheless I am convinced that the decision to let him go had been made approximately 10 days before and that he had been so in formed It may be true that Gillespie was aware of Chai ka s union activity in late June and early July but it does not follow that either Herbeck or Hansen would have pointed their finger at Edler, even assuming Gillespie had informed them of Chaika s interest In fact on July 27 when under Chaika s version, Hansen confronted them in the warehouse, Hansen asked who had been re sponsible, suggesting that he did not yet know When he asked Edler if it was he, Edler denied it Even if Hansen concluded as a result of the Chaika Gouyd answer that they were all responsible it would not change the fact that the decision to lay Edler off had been made 10 days before Thus even assuming that the evidence makes out a prima facie case with respect to Edler s having been dis charged for having been involved in union organizing it appears the actual timing of the decision to discharge him was earlier than Hansen s actual knowledge Beyond that Respondent has rebutted the General Counsels evi dence with respect to motivation Respondent has hired high school students in the past and has let them go at approximately the same time of year as Edler It did so here on the basis that there was insufficient work for Edler to perform Indeed the decision was no doubt quickened by Edler s request to take a vacation in early August Accordingly , I conclude that the evidence is in sufficient to show that Respondent discharged Edler in violation of Section 8(a)(3) of the Act 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D Alleged Restraint and Coercion The complaint alleges that Hansen s and Gillespie s July 27 discussions constitute violations of Section 8(a)(1) Specifically, the complaint asserts that J Hansen improperly interrogated employees about their union sympathies and that Gillespie told them union represen tation would be a futile act that would result in their layoff and a loss of benefits Chaika, Gouyd and Edler all testified that on that day shortly after Schermerhorn left the premises, J Hansen came to the warehouse and asked who had start ed the Union Edler denied it was he Gouyd and Chaika said either that it was all of us' or both of us Hansen does not deny their testimony , saying only that he told them of Schermerhorn s request to meet them for lunch In that circumstance I am compelled to find that Hansen did interrogate employees regarding their union organizing activities I further find that it was unneces nary for him to have done so and therefore was coercive in nature The question violated Section 8(a)(1) as an im proper interrogation Regarding Gillespie s supposed statements Chaska says that as Hansen returned to his office, Gillespie turned and said, I told you assholes, no union, then following J Hansen into the office Chaska says that upon Gilles pie s return to the warehouse Gillespie told all three, John [Hansen] wants you to know that if you get a union in, there 11 be no overtime, you will get laid off when it [is] slow, and the company would not pay you benefits, you ll have to pay it yourself ' Gillespie denies saying any such thing and neither Gouyd nor Edler cor roborate Chaska here Gouyd does claim that J Hansen rather than Gillespie said As soon as it gets slow, you guys are going to be laid off Assuming that this dis crepancy is simply a matter of confusion , it does not ex plain Edler s failure to corroborate Here, however, Hansen specifically denies saying such things either to Gillespie or to the employees Gillespie on the other hand is silent Although I am somewhat troubled by the strength of Chaska s version (not really corroborated by his cowork ers), Gillespie s failure to deny is significant According ly I find Gillespie did make the remarks I have con eluded elsewhere in this decision that Gillespie is a low level supervisor That being the case, Respondent is re sponsible for his statements Nonetheless I also find that they did not actually represent a company policy Han sen s denial that he said such things appears credible and he had not yet had time to seek advice about how to behave during an organizing drive It would appear therefore , that Gillespie's statements were made without benefit of any knowledge of what Respondents policies actually would be in the event of unionization Indeed, his claim that employees would have to pay for existing fringe benefits (life insurance health insurance , or retire ment) themselves appear so wild (and probably contrary to information provided by Schermerhorn) that it would not readily be believed It is obvious to me that Gillespie was over reaching Nonetheless , the statements are coer cive within the meaning of Section 8(a)(1) even if they do not accurately reflect company policy Employers are responsible for the coercive remarks of their supervisors even low level incumbents like Gillespie E The September 28 Confrontation On September 28, approximately 2 1/2 weeks after the inconclusive Board election Chaika and Gillespie had some sort of altercation Without attempting to ascertain who or what caused it , it appears that Gillespie in anger, had struck a cardboard box which fell on Chaika but did not injure him Upset over the incident , and believing that Gillespie had deliberately caused the box to strike him Chaika left the premises and telephoned both the police and the Union The police met him at a nearby phone booth but refused to take any further action In the meantime, Business Agent Schermerhorn and his as sistant Newman went to the scene On their arrival at the facility , according to Schermer horn, he observed Gillespie in front of the building driv ing a forklift He also saw Chaika The three had a con versation in which Gillespie admitted hitting the box that had fallen on Chaska, but asserted he had not hurt Chaska and it was an unintended result of his anger At that point according to Schermerhorn Hansen came outside as did Gouyd, but from another direction Schermerhorn explained to Hansen that he had come in response to Chaika s telephone call He and Hansen then had a fairly extensive conversation Hansen asserted that the Company had never had trouble before the Union had come on the scene and contended that the ware house employees were working at half speed Scher merhorn explained that one of the problems was Sanford Rudnick, the individual whom Respondent had hired to represent it during the election He said Rudnick was not interested in solving the representational question but wanted to stretch it out As a result he said the employ ees were becoming frustrated According to Schermer horn Hansen responded I ve been in business for 38 years We have never had a union and I 11 shut this place down and close the doors before I allow a union to come in here Schermerhorn says Chaska and Gouyd were both present when Hansen made the statement Both Chaika and Gouyd corroborate Schermerhorn s version In addition they say Hansen told Schermerhorn that the employees were just trying to make trouble J Hansen agrees that a conversation very similar to the one described by those three did occur He says on that day he had a conversation with Schermerhorn in front of the company office door dealing with the Gilles pie Chaska altercation He says, however, that no one else was present and no employee heard the conversa tion He says he told Schermerhorn he would shut his business down if I have to have those two guys [Chaska and Gouyd] telling me what to do Recognizing his am biguity he explained he did not mean the two union offs cials who were standing by He said the entire conversa tion had occurred because there had been a fight involv ing an employee and Gillespie and he had had to sepa rate them The conversation between Schermerhorn and Hansen occurred right outside the plate glass window next to Louise Herbeck s desk She testified that she observed JOHN N HANSEN CO the conversation though she could not hear anything being said She says she saw no employee nearby and does not believe there were any However from her angle she could not have seen anyone standing near the building Gillespie testified that he too , observed Hansen and Schermerhorn talking outside that day saying he was there working He does not believe Hansen saw him He claims neither Chaika nor Gouyd was still there although each had been shortly before Based on demeanor and the probabilities here, I con elude that Chaika and Gouyd would not have returned to work once they had spoken to Schermerhorn and Schermerhorn began talking to Hansen Schermerhorn was their representative and it is most improbable that they would have been so incurious regarding what he was going to do for them that they would have left the scene and returned to work Undoubtedly they stayed outside together with Gillespie to watch what was about to happen Furthermore, based on the cumulative testi mony of Schermerhorn, Chaika, and Gouyd and the fact that J Hansen did not testify in detail about what was said, I conclude that their version accurately describes what occurred I therefore find that in the presence of at least two employees, J Hansen told Schermerhorn that he would close his business before he allowed a union to become the representative of its employees F Alleged Loss of Scheduled Overtime and Scheduled Pay Increases According to the complaint, on or about July 27, Re spondent discontinued scheduled overtime for warehouse employees and on September 1 denied regularly sched uled pay raises to Chaska and Gouyd Regarding the al leged loss of scheduled overtime as of July 27, probative evidence is nonexistent The only time that overtime might have been considered to be scheduled was 6 weeks later when Respondent hired Cota and Jaimerena on September 15 to perform essentially a skeleton second shift as the Christmas season shipping began and as the warehouse began to fall behind Although both Chaika and Gouyd testified that they had worked overtime in 1986, the extent of that overtime is not shown on this record It is true that the entire payroll for 1987 is in the record, but it does not show any 1986 payments There is also evidence in this record , above subpara graph D that Gillespie on July 27 told Chaika and Gouyd that they would not be getting any overtime be cause they had joined the Union I have previously found Gillespie s threat does not accurately describe Re spondent s actual policy because no policy had then been formulated Thus his threat is not probative of what Re spondent s actual intentions were in September More over, it appears that the employees on the second shift were part time and paid at a lesser rate than either Chaika or Gouyd It is obviously more economical to hire part timers to cover excess work than to pay time and a half after 8 hours5 to other employees This evi 5 As required by state law 71 dence does not lead to the conclusion that the additional work was discriminatorily denied Chaika and Gouyd Proof of that conclusion requires more evidence than has been presented here Instead , it leads to the conclusion that the decision was based on economics A more difficult question is the allegation that Re spondent denied Chaika and Gouyd regularly scheduled wage increases in September It appears to have been Respondents standard practice to grant wage increases to the entire staff every September Indeed everyone on the payroll except for Chaika and Gouyd received a wage increase in early September Moreover, in June, when they had asked Gillespie to intercede on their behalf for additional wages, he came back to tell them that Respondent gave its wage increases in September Even so, in February both had passed what appears to have been a probationary period when they were con verted from straight hourly wage to a semi monthly pay basis Their initial $5 hourly rate converts to $800 per month , their change to semimonthly salary resulted in a $900 per month rate an increase of $100 Also at that time they became eligible for health insurance, sick leave, paid vacation, life insurance, pension plan , dental coverage and the health club privilege Those were all significant benefits they had not enjoyed previously J Hansen explained that Respondent did not give Chaika and Gouyd September wage increases because they had already been given a wage increase in February and the Company only gives one wage increase each year It does not appear that any other employees got more than one wage increase during 1987 , although in 1986 Gillespie got two However the first appears to have been in April 1986 because of a promotion when he replaced the long time warehouse supervisor when that individual retired That would not appear to have been a routine circumstance The second was in September There is no evidence concerning how Respondent treat ed new hires in past years with respect to whether they received both a wage increase on completion of the probation period and the routine wage increase in Sep tember and J Hansen's testimony regarding that policy stands unchallenged Chaika did testify that in late June when Gillespie spoke to Hansen on their behalf that Gillespie came back saying Hansen had said We would get raises in Septem ber-that Hansen gives raises in September Similarly, Gouyd quoted Gillespie as saying that they would get their raise in September like always Gillespie testified that in June he had spoken to Hansen who had told him that he did not give raises at that time of year He re ported that to Chaika and Gouyd saying that J Hansen warn t giving raises now Only Gouyd s recollection would clearly evince a promise to grant a wage increase in September Chaika started to do so, but then tempered it The other two versions simply set forth the fact that raises usually came in September They did not take the next step to say that September raises were a certainty It is true, I think, that J Hansen exhibits certain tradi tional antiunion attitudes One of these was exhibited when he said he would close his business before he had to deal with the Union That occurred in late September 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shortly after the pay rates were changed Similarly, Gouyd quotes Hansen (though it was more likely Gilles pie) as saying on July 27, shortly after Schermerhorn s demand for recognition As soon as it slows down you guys are going to be laid off However, neither of these two threats ever material ized Respondent has neither closed its business nor re peated that threat, nor has anyone been discriminatorily laid off (Edler s layoff notwithstanding) It seems there fore that whatever animus J Hansen holds it has not been carried beyond mere words Even so Respondents announced reason for not granting wage increases to Chaika and Gouyd leaves at least one question unanswered that no party chose to in quire about Does Respondents policy not to grant them a wage increase in September because they had received one in February mean that they would not receive an other until September 1988' That appears to be the case If so, it seems to be a harsh result of the one pay raise per year policy Yet the General Counsel never inquired concerning whether that had happened in the past to other new hires Absent a showing that these two indi viduals were treated differently than other new hires, I am compelled to conclude that the General Counsel has failed to show that Respondents failure to give Gouyd and Chaika a wage increase in September 1987 was dis cnminatonly inspired Accordingly, I shall recommend that this allegation in the complaint be dismissed G The Rudnick Threat Finally, the complaint was amended at the hearing to allege that Respondents consultant Sanford Rudnick, had told employees in a December meeting that they had been denied wage increases because of the Union Re spondent denies Rudnick ever made such a statement it also denies that Rudnick conducted any meeting whatso ever with employees in December Chaika testified that at a meeting in December (only a month before this hearing) attended by the entire staff, Rudnick began by wondering why production was so low Chaika says Rudnick accused both Gouyd and him of not getting the work done That resulted in a discus sion of production problems in general Chaika says that at the end of the meeting Rudnick told them, One reason you didn t get your raise was because of the Union On cross examination Chaika conceded that his memory regarding to the date may be wrong Gouyd also testified the meeting occurred in Decem ber and recalls Rudnick saying Hansen had spent over $5000 on legal advice and the employees were not going to get their raises because they were trying to get a union in " Rudnick was not called to testify However Respond ent did ask several individuals who attended the meeting about their recollection Jim Blaising testified that he re members a meeting occurring sometime in November and says Rudnick characterized it as a clear the air meeting When he was asked whether raises were dis cussed during that meeting he testified Not to my knowledge Similarly, Paulette Downing testified that she could not recall any meetings with Rudnick after the September 9 election Gillespie appeared somewhat con fused by the question because he testified that Rudnick conducted approximately three meetings during which he read letters to the employees then said that they occurred after the election Plainly it is unlikely that Rudnick whose duty was to persuade employees to vote against representation would have been reading letters to the employees after the election Undoubtedly, Gillespie meant before the election Nonetheless, Gillespie testified that he did not recall Rudnick saying anything about raises More specif ically he was unable to recall Rudnick saying that raises had been denied because of the Union The General Counsel added this allegation at the hear ing and it appears to be something of an afterthought Frankly, given Chaika s lack of specific memory, the im probability that Rudnick would have conducted such a meeting more than 3 months after the election and the failure of others to recall it it seems unlikely to have oc curred Moreover, the two versions testified to by Gouyd and Chaika are not fully consistent Gouyd testi fled colorfully that Rudnick had said Respondent had spent over $5000 on legal advice Yet Chaika did not testify to that rather dramatic introduction to the topic It appears to me that a colorful remark such as that re ported by Chaika would have stayed in Gouyd s mind for at least a month if it had actually occurred More over, the testimony on the other side is consistent with the kind of testimony seen when one is attempting to prove a negative i e that something did not occur It is not uncommon for individuals in denying something oc curred to characterize it in I don t recall or not to my knowledge terms when in fact they are doing their best to recall cannot, and conclude that it did not occur yet still harboring an element of uncertainty If Rudnick did conduct a postelection meeting of em ployees it undoubtedly would have been closer to the election than December And if as Blaising says it was a clear the air meeting it may well have had to do with the hard feelings seen to have arisen between Chaika and Gouyd on one side and Blaising and Gillespie on the other Furthermore, if production was being affected by those hard feelings such a discussion could have helped assuage them It does not follow that having accom plished that Rudnick would have then antagonized the warehouse crew by telling them their September wage increases had been denied because of the Union Candidly, I am of the opinion that the Chaika Gouyd testimony here is an after the fact fabrication designed to bolster the claim for a lost wage increase Gouyd at the very least exhibited a strong bias against Hansen, accus ing him of a bald faced lie in another context and Chaika was in many respects unimpressive I conclude therefore that this allegation is unproven and should be dismissed IV THE CHALLENGED BALLOTS As noted in the introductory section of this decision, the Regional Director has issued an order consolidating the unfair labor practice hearing with a hearing on the validity of the challenged ballots cast by six employees in the representation election Those voters were Scott JOHN N HANSEN CO Edler, David Gillespie, James Blaising Robert Zimmerli, Paulette Downing, and Elisiva Uluikaepa Each of these individuals will be discussed seriatim Scott Edler Respondent challenged the ballot of Scott Edler on the ground that he was no longer an employee The Union contends that he was unlawfully discharged before the election and is therefore an eligible voter I have concluded, above, however, that the General Coun sel has failed to prove that Edler was discriminatorily discharged on July 31 as alleged Furthermore, there does not appear to be any reasonable expectancy of his rehire Accordingly, I recommend that the challenge to Edler s ballot be sustained David Gillespie Gillespie is a long time warehouse em ployee having worked for Respondent for some 17 years Until early 1986 the warehouse foreman had been an in dividual named Chuck Evans It is undisputed that Evans was a statutory supervisor who had the power to hire and fire and who was responsible for the direct su pervision and management of the warehouse At the time of Evans retirement, Hansen put Gillespie in charge of the warehouse However, Hansen denies that Gillespie was given the same authority as Evans and asserts that Gillespie did not have the capabilities that Evans pos sessed Although I tend to agree that Gillespie was not as ca pable as one might expect it is clear that he is a supervi sor within the meaning of the Act and has been since April 1986 His monthly salary is approximately $600 more than Chaika's and Gouyd s, he is responsible for opening the warehouse in the morning and closing it in the evening, he keeps track of the employees hours by approving their timecards, and he checks their attend ance It is true that he consults with J Hansen in the morning regarding certain jobs that need to be per formed Even so he appears to have the authority to adjust work assignments as necessary to accomplish the tasks to be performed that day I think it is true howev er that many of the tasks are routine and hands on su pervision is often unnecessary Nonetheless Gillespie was the individual who assigned Edler his duties for the day, often assigning him to work for Blaising He also told Chaika and Gouyd what their daily duties were to be-i e whether they were to pack the product for shipping or to unload trailers in the yard Furthermore, he had a significant role in the hiring interviews of Chaska and Edler, although it appears that both Chaika and Edler had already been tentatively hired by the Company through unclear means Chaska had previously worked for Respondent and had learned of the job opening by word of mouth He came to Gil lespie saying he had heard Respondent needed some help and was ready to report the following day Gillespie was already aware of Chaika's situation but nonetheless inter viewed him briefly He no doubt could have vetoed or effectively recommended that he not be hired had he viewed Chaika to be unsatisfactory Similarly Office Manager Herbeck had let it be known that Edler should apply for an after school job When Edler did so it was Gillespie who interviewed him not Herbeck, and be cause Gillespie had no objections to Edler, he was hired 73 It is true that Gillespie principally performs duties in the warehouse as the picker who collects the various merchandise on a particular order places them on a pallet, and delivers them to the packing tables via fork lift Thus, he commonly performs work often done by rank and file warehousemen This, however, is insuffi cient to offset the fact that he has a certain amount of independent authority, has the ability effectively to rec ommend hire and tenure decisions, and is seen as the su pervisor in the warehouse Indeed, Respondent has au thorized him to print business cards, naming him as the warehouse supervisor Accordingly, I find him to be a Section 2(11) supervisor and recommend that the chal lenge to Gillespie s ballot be sustained James Blaising The Union has challenged Blaising's ballot on the grounds that he is either a supervisor or a managerial employee who has a special relationship to the Hansen family Respondent asserts that he is an ordi nary warehouseman performing tasks similar to those of the other warehousemen and that he shares a substantial community of interest with them Blaising first came to Respondent as a consultant in 1983 He had recently retired from the Federal Defense Supply Agency and was at that time married (although separated) to J Hansen s sister J Hansen, it will be re membered, is a corporate officer 6 Blaising remained as a consultant for approximately a year after his original hire Thereafter he was placed on the regular payroll He is salaried and is paid the same amount as Gillespie, i e, approximately $600 per month more than Chaika and Gouyd He has workplaces both in the warehouse and in the office indeed, he uses a desk in J Hansen s personal office He contends, however, that the bulk of his time is spent in the warehouse and that he does not use the desk when J Hansen is in the office Prior to a recent marriage Blaising lived within walking distance of the warehouse and had access to a company Thunder bird automobile, which was often kept at the warehouse Approximately five or six times per year he travels to distant cities to assist Hansen and/or Zimmerli in the Company s participation in trade shows His principal duty for Respondent is to oversee so called returns This involves dealing with customers who desire to return merchandise When operating within the Company s announced guidelines this requires him to issue a return authorization and mail it together with a special mailing label, to the customer The cus tomer then uses the special label to return the merchan dice On its arrival, Blaising inspects it and causes it to be reworked when necessary He is often assisted in the rework process by a junior person such as Edler before his discharge and later Uluikaepa He said it was he who originally gave Herbeck the information regard ing the cessation of the J C Penney s returns and told her that there was little if any work for Edler to per form He testified that he performs the Company s receiv ing In this regard, he says he unloads trucks including those sent by United Parcel Service Both Chaika and 6 Blaising subsequently died on a date not shown in this record 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gouyd hotly dispute that fact and assert they have never seen him do any actual unloading although they concede he has handled "receiving" paperwork. According to them, trucks are usually unloaded by the driver or, if a warehouseman is required, they are the ones who do it. Invariably, they say, UPS drivers unload their own trucks. Although the evidence is in dispute, I am not willing to credit Blaising's testimony that he unloads trucks or that he does anything other than to observe a UPS driver unload. I believe he is exaggerating his duties here. Blaising occasionally assists with the packing, but usu- ally "packs" only preboxed shipments, requiring only an address stencil. This task is performed irregularly, usual- ly when the other packers (Chaika and Gouyd) are fall- ing behind during the "Christmas" shipping season (August-November). His testimony to the contrary is largely offset by that of Gillespie and the other warehou- semen. Again, I find him to be exaggerating. Regarding fringe benefits, I note that he receives the same fringe benefits as all regular full-time employees of the Company, including Chaika and Gouyd, but with two caveats. First, he has declined health coverage as he obtains it through his Federal annuity. Second, he is not yet "vested" in the Company's retirement plan, although he testified he hopes to become vested shortly. Based on the foregoing facts I conclude that Blaising does enjoy a special relationship with the Hansen family and that he performs certain managerial tasks rendering his inclusion in the bargaining unit inappropriate. He handles returned merchandise, albeit within certain speci- fied guidelines (a very easy job); he shares an office with J. Hansen; he has access to a luxury automobile; he trav- els with sales manager Zimmerli to trade shows in dis- tant cities; and he has certain directive authority over junior warehouse persons such as Edler and Uluikaepa. His salary is commensurate with that of the warehouse supervisor, Gillespie, and it appears that he is being kept on for the specific purpose of allowing him to obtain a second retirement income. I find him to be a sinecured employee whose basic interests are quite different from those of ordinary employees. Accordingly, the challenge to Blaising's ballot should be sustained. Robert Zimmerli: Zimmerli is the sales manager for the Company. He has his own cubical in the office and spends most of his time on the telephone communicating with his salesmen in the field. On occasion he comes into the warehouse to pack merchandise or to oversee the packing of merchandise scheduled to be shipped to trade shows. He attends approximately six trade shows per year. He reports directly to J. Hansen and has little deal- ings with warehouse employees except for Gillespie, with whom he discusses trade show requirements. It does not appear that he has any real community of inter- est with the warehouse employees. Indeed he is responsi- ble for the Company's sales. The voting unit described in the election stipulation specifically excludes salespersons. I find that Zimmerli is such an individual and should be excluded. Accordingly, I recommend the challenge to Zimmerli's ballot be sus- tained. Paulette Downing: Downing has worked for Respondent for 11 years. She has no job title, but works in the office and is paid a salary of $1400 per month, $500 more than Chaika and Gouyd. She does not fill out a timecard and spends nearly all her time at her desk in the office. At the desk are various pieces of equipment, such as a com- puter terminal, a typewriter, and an adding machine, all of which she utilizes in the course of her duties. She pre- pares c.o.d. forms, export forms, and performs all the UPS tracers. She routes orders, stays aware of any cus- tomer special route directions, and alerts the warehouse about them. She is the individual who converts a cus- tomer order into what is known as a "picking ticket." That ticket is either an invoice or an export form. It contains the specific items that each customer has or- dered. Her desk is located near the warehouse door and she places that slip in a box on the warehouse side of that door. It is eventually picked up by Gillespie, who proceeds to obtain the items from inventory and deliver them to the packing tables. The person in the warehouse with whom she usually communicates is Gillespie; on occasion she deals with Blaising. Once in a great while a warehouseman will come into the office with a c.o.d. so that she can total it on her adding machine. She certainly does not perform any physical work in the warehouse. Finally, she com- monly takes sales receipts to the bank for deposit. Accordingly, I conclude that Downing is an office clerical employee, not a plant clerical, and should be ex- cluded from the unit. I recommend that the challenge to her ballot be sustained. Elisiva Uluikaepa: Uluikaepa was challenged by the Union on the ground that her name did not appear on the election eligibility list. It contends that her ballot should be excluded on the grounds that she is not an em- ployee of the Company; Respondent asserts that she is a warehouseperson who performs regular warehouse duties and that her vote should be counted. Uluikaepa was originally hired by J. Hansen to assist the family during a recuperation period required by J. Hansen after some open-heart surgery in mid-1986. During that period she lived in the Hansen home and provided assistance to both Hansens. Those duties in- cluded housekeeping as well as quasi-nursing. She was paid $5 per hour to perform these duties, with her pay- checks being drawn on Hansen's personal checking ac- count, not a company account. Eventually, as J. Hansen's health returned, she began accompanying him to the Millbrae facility, where she was available to assist him as necessary. As he grew stronger, there was less personal assistance for her to provide and he began suggesting that she help out in the warehouse. Occasionally, she helped Blaising with his re- turns and operated the shrink-wrap machine on products that needed to be repackaged. Sometime during the summer of 1987 she began to perform a certain amount of packing work. She was trained by Chaika, Gouyd, and Blaising and by November 1987 was even perform- ing the paperwork connected to shipping. Her native lan- guage is Tonganese and she speaks English only with JOHN N HANSEN CO 75 difficulty It was therefore, a slow process for her to learn how to handle written documentation She apparently moved out of the Hansen household in late 1986 and sags she now drives herself to and from work, although Chaika and Gouyd claim that she contin ues to arrive and leave with J Hansen During much of 1987, on 1 or 2 days a week, Ului kaepa came to the warehouse, where she was picked up by Hansen and then driven to the San Francisco show room, where she assisted Hansen Even as of the hearing date, early January 1988, Hansen continues to pay her the $5 wage from the household account Based on this testimony, I conclude that sometime in mid 1987, Uluikaepa began to work in the warehouse on a regular, if part time basis I recognize that she was not carried on the company payroll and further recognize that at the inception of her warehouse employment she was principally a companion for J Hansen during his re cuperation Nonetheless, her duties slowly transformed from that of companion to those of warehouse trainee and eventually packer, a duty which she assumed during the summer of 1987 I recognize that as a person not on the payroll, she was not entitled to the various fringe benefits such as health insurance, life insurance, pension plan, vacation, sick leave, and such Nonetheless, her hourly wage was quite similar to that of Chaika and Gouyd Moreover she was under the general supervision of either Gillespie or Blaising (subject to override by J Hansen) and she worked side by side with other ware house personnel performing exactly the same tasks they were required to perform In this circumstance, I find that she was, beginning in the summer of 1987, an em ployee not of the Hansen s, but of the Respondent The employment relationship is to be found as a result of sub stance, not form, and it appears to me that the Union's argument that she is not a company employee relies ex cessively on form Accordingly, I conclude that Ului kaepa was an eligible voter and that the challenge to her ballot, if it were to affect the outcome of the election, should be overruled THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirms tive action designed to effectuate the policies of the Act On these findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1 Respondent, John N Hansen Co Inc , is an em ployer engaged in commerce within the meaning of Sec tion 2(6) and (7) of the Act 2 International Longshoremen's and Warehousemen's Union, Local 6 is a labor organization within the mean ing of Section 2(5) of the Act 3 On July 27, 1987, acting through David Gillespie, Respondent violated Section 8(a)(1) of the Act by sug gesting to employees that union representation was a futile act, by threatening them with layoff because of their union activities, and by threatening them with loss of fringe benefits if they selected a union to represent them 4 On July 27, 1987 acting through John N Hansen, Respondent violated Section 8(a)(1) of the Act by inter rogating employees about their union activities and mem bership 5 On September 28, 1987, acting through John N Hansen, Respondent violated Section 8(a)(1) of the Act by saying in the presence of employees that he would close the business before allowing a union to represent its employees 6 The General Counsel has failed to prove any other violations of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed7 ORDER The Respondent, John N Hansen Co, Inc, Millbrae, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Telling employees that representation by Interna tional Longshoremen's and Warehousemen s Union Local 6 or any other labor organization would be an act of futility (b) Threatening employees with layoff or other loss of fringe benefits because they choose to be represented by a labor union (c) Interrogating employees regarding their union ac tivities and membership (d) Threatening to close the business before having to deal with International Longshoremen s and Warehouse men s Union, Local 6, as the exclusive representative of its employees (e) 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) Post at its Millbrae California facility copies of the attached notice marked Appendix '8 Copies of the notice on forms provided by the Regional Director for Region 20 after being signed by the Respondents au thorized representative, shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material 7 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 8 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 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply Recommendation with Respect to the Election in Case 20-RC-16173 In the foregoing decision I have concluded that the challenges to the ballots of Edler , Gillespie Blaising Zimmerli, and Downing should be sustained and that the challenge to the ballot of Uluikaepa should be overruled However, in view of the fact that the tally of ballots re flects that two valid votes have already been cast in favor of the union representation , it would appear that Uluikaepa's ballot would not affect the outcome of the election Accordingly, I recommend that Uluikaepa s ballot not be opened in order to preserve the secrecy of her ballot I further recommend that the Board immedi ately issue a Certification of Representative in favor of International Longshoremen s and Warehousemen s Union Local 6, in the bargaining unit as described in the Stipulation For Certification Upon Consent Election APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 tell our employees that representation by International Longshoremen s and Warehousemen s Union Local 6, would be a fuility WE WILL NOT threaten employees with layoff or loss of fringe benefits if they choose to be represented by a labor union WE WILL NOT interrogate our employees regarding their union activities or membership WE WILL NOT threaten to close our business on be coming obligated to deal with International Longshore men s and Warehousemen s Union Local 6, as the repre sentative of our employees 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 JOHN N HANSEN CO, 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 Section 7 of the Act gives employees these rights