C & L Warehouse & Distributing Corp.

National Labor Relations Board - Board Decisions

Jul 12, 1985

275 N.L.R.B. 1056 (N.L.R.B. 1985)

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