Central National Gottesman

National Labor Relations Board - Board Decisions

May 28, 1991

303 N.L.R.B. 143 (N.L.R.B. 1991)

143
303 NLRB No. 24
CENTRAL NATIONAL GOTTESMAN
1 In the absence of exceptions, we adopt pro forma the judge’s rec-
ommendation that the Employer’s Objection 3 be overruled. The Employer of-
fered no evidence on Objections 2, 4, and 5.
The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
We find it unnecessary to rely on the judge’s alternative rationale that the
remark allegedly made by Supervisor Michael Capalupo to employee Thomas
Toegemann would not violate the Act as it would have been mere speculation.
1 Lindenmeyr/Munroe admits that it is an employer engaged in commerce
and that the Union is a labor organization.
Lindenmeyr/Munroe, a Division of Central National
Gottesman, Inc. and Thomas Toegemann and
General Warehousemen, Shippers, Packers,
Receivers, Stockmen, Chauffeurs & Helpers,
Local Union No. 504, a/w the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO.
Cases 1–CA–26432 and 1–RC–19245
May 28, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On January 22, 1991, Administrative Law Judge
Stephen J. Gross issued the attached decision. The
General Counsel and the Respondent filed exceptions
and supporting briefs. The Petitioner filed an answer-
ing brief to the Respondent’s exceptions, and the Re-
spondent filed an answering brief to the General Coun-
sel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
IT IS FURTHER ORDERED that Case 1–RC–19245 is
severed from Case 1–CA–26432 and is remanded to
the Regional Director for Region 1 for further proceed-
ings consistent with this Decision and Order.
Thomas Morrison, Esq., for the General Counsel.
Mark Stern, Esq., of Somerville, Massachusetts, for Thomas
Toegemann and for Teamsters Local 504.
Nathan Kaitz, Esq. (Morgan, Brown & Joy), of Boston, Mas-
sachusetts, for Lindenmeyr/Munroe.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. At issue
here are:
(1) Did the Employer/Respondent, Lindenmeyr/Munroe,
terminate the employment of its employee Thomas
Toegemann because Toegemann supported Teamsters Local
Union No. 504 (the Union);1 did Lindenmeyr/Munroe, for
the same reason, refuse to rehire Toegemann.
(2) Prior to Toegemann’s termination, did a Linden-
meyr/Munroe supervisor warn Toegemann against voicing
his support for the Union.
(3) Has Lindenmeyr/Munroe raised valid objections to the
election held on June 8, 1989, at one of the Company’s fa-
cilities.
(4) How should Lindenmeyr/Munroe’s challenges to two
ballots cast in that election be resolved.
I. PROCEDURAL HISTORY
This proceeding had been consolidated with Case 1–CA–
26036. The Union filed an unfair labor practice charge in
that case on December 23, 1988, and amended that charge
on February 1, 1989. (All events this decision refers to oc-
curred in 1989, unless otherwise specified.) A complaint
issued on February 13. Toegemann filed his unfair labor
practice charge, in Case 1–CA–26432 on June 7 and amend-
ed it on July 19.
In the meantime, on June 8, in Case 1–RC–19245, the
Board conducted an election at Respondent’s facility on
Forbes Boulevard in Mansfield, Massachusetts. The bargain-
ing unit:
All full-time and regular part-time warehouse employ-
ees, including drivers, warehousemen, driver-helpers,
cutters and wrappers, but excluding office clerical em-
ployees, sales employees, guards and supervisors as de-
fined in the Act.
Eight votes were cast for the Union, seven against. There
were three challenged ballots (with all challenges by
Lindenmeyr/Munroe). And Lindenmeyr/Munroe objected on
several grounds to the conduct of the election by the Board
and to the Union’s conduct during the course of the election
campaign.
On July 19, the Regional Director for Region 1 issued a
Supplemental Decision in which she concluded that the chal-
lenged ballots and Lindenmeyr/Munroe’s objections should
be consolidated with Case 1–CA–26432 for hearing.
Then, on August 18, the Regional Director issued an
‘‘Order Consolidating Cases, Consolidated Complaint and
Notice of Hearing’’ in Cases 1–CA–26036, 1–CA–26432,
and 1–RC–19245.
Lastly, a settlement agreement was reached in Case 1–
CA–26036. On November 19 that led to an order severing
that proceeding from Cases 1–CA–26432 and 1–RC–19245.
I held a hearing in this matter in Boston on August 1 through
3, 1990.
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGATIONS CONCERNING THOMAS
TOEGEMANN
A. The Merger Between Lindenmeyr Paper Co. and
D. F. Munroe
Lindenmeyr Paper Co. (Lindenmeyr) merged with D. F.
Munroe on October 1, 1988. D. F. Munroe’s executives
dominated the management of the merged company. Thus all
the management decisions at issue here—including the deci-
sion to terminate Toegemann’s employment, were made by
persons who had been D. F. Munroe supervisors prior to the
merger.
Both companies had a number of facilities. But the only
facilities we need concern ourselves with here are
Lindenmeyr’s Canton warehouse (where Toegemann worked)
and three D. F. Munroe facilities: a warehouse in Mansfield,
Massachusetts, that was in operation at the time of the merg-
er (the ‘‘old Mansfield’’ facility); a newly constructed facil-
ity in Mansfield (the ‘‘new Mansfield’’ facility); and a ware-
house in Peabody, Massachusetts.
Prior to the merger, Lindenmeyr’s Canton employees were
represented by the Union. No D. F. Munroe employees were
unionized.
One of the outcomes of the merger was that the Canton
facility was to close. Twelve warehousemen and truck driv-
ers worked in Canton. Ten were regular, full-time employees
with seniority rights under Lindenmeyr’s collective-bargain-
ing contract with the Union. Two were ‘‘casual’’ employees
who, under that contract, had no seniority rights. (Toege-
mann was one of the two casual employees.) After the merg-
er representatives of Lindenmeyr/Munroe and the Union en-
tered into a ‘‘closing agreement’’ covering the Canton bar-
gaining unit employees. The agreement was executed on Oc-
tober 20, 1988. Under the closing agreement, Lindenmeyr/-
Munroe agreed to place 9 of the 10 regular Canton employ-
ees in either its Mansfield or Peabody locations. The 10th
regular Canton employee was placed on a preferential hiring
list.
That was the extent of Lindenmeyr/Munroe’s contractual
obligations to the Canton employees. Lindenmeyr/Munroe
made no promises about employing Canton’s two casual em-
ployees—Toegemann and Chris Selway. In fact during the
negotiations company representatives said that Linden-
meyr/Munroe did not plan to use casual employees, that it
would instead use the services of a temporary-employment
agency.
The Union’s representatives nonetheless asked if
Lindenmeyr/Munroe had any openings for Toegemann and
Selway. Toegemann, the union representatives said, would
prefer working at Mansfield, Selway at Peabody.
Lindenmeyr/ Munroe’s representatives promised nothing. But
at a meeting with the Canton employees, one of
Lindenmeyr/Munroe’s representatives said that ‘‘if something
came up,’’ Toegemann and Selway would ‘‘be considered.’’
In addition the Company advised that the Canton warehouse
would continue in operation for a while with a skeleton
workforce of two employees and a supervisor, and that the
Company would use Selway as one of those employees at
Canton. (No one claims that Lindenmeyr/Munroe’s decision
to employ Selway at the Canton facility, instead of Toege-
mann, was unlawful in any respect.)
B. Toegemann’s Career with Lindenmeyr/Munroe
Lindenmeyr hired Toegemann in June 1988 as a casual
employee to fill in for regular employees going on vacation.
His work: truck driving, picking orders in the warehouse,
and—when there was no other work to do—sweeping and
other cleaning chores. Toegemann had worked for unionized
companies in the past and was a member of a Teamsters
local, but not the Union (Local 504). And as a casual em-
ployee, he was not eligible to become a member of the
Union.
In early November 1988 Lindenmeyr/Munroe shifted al-
most all of Canton’s operations to the old Mansfield facility.
All but one of the regular Canton employees began reporting
to Mansfield or to Peabody. The one exception was em-
ployee Bruce Ponder, whom Lindenmeyr/Munroe kept at
Canton. And, as touched on earlier, Selway and a supervisor,
Michael Capalupo, also continued to report to Canton.
Toegemann was laid off.
Happily for Toegemann, on about November 24, 1988, a
regular Peabody employee quit. Lindenmeyr/Munroe brought
Selway to Peabody (as a regular employee), then brought
Toegemann back to fill the empty slot (for a casual em-
ployee) at Canton.
The task of the three Canton workers—Capalupo, Toege-
mann and Ponder—was to prepare the facility for complete
shutdown. That involved moving most of the remaining sal-
able stock to Mansfield, making an occasional delivery to a
customer, and designating what stock should be sold off for
salvage. For the remainder of Toegemann’s career with
Lindenmeyr/Munroe, Toegemann was the Canton facility’s
truck driver, although he sometimes worked in the warehouse
doing ‘‘a little bit of everything,’’ as Capalupo put it.
(Beginning in March, Toegemann started his workday by
picking up a truck at Mansfield, which he then drove to Can-
ton, and he ended his day by returning the vehicle to Mans-
field. But the company continued to consider Toegemann to
be a Canton employee.)
The task of completing the shutdown of Canton took
longer than Lindenmeyr/Munroe had expected. But by mid-
April the job was done. On April 18 the Company closed the
Canton facility. And on that same day the Company termi-
nated its employment of Toegemann. A supervisor told
Toegemann that that was the last day the Company needed
him. When Toegemann asked why, the supervisor said that
the work at the Canton facility was completed.
In September 1989 Lindenmeyr/Munroe offered Toege-
mann temporary employment with the Company. Toegemann
turned the offer down.
C. Evidence that Lindenmeyr/Munroe’s Termination of
Toegemann was Discriminatory
The salesmanager’s remarks. Bill Meany was a sales man-
ager with Lindenmeyr and he continued in that position after
the merger. He had no responsibility for drivers or ware-
housemen. At some point after the merger, Toegemann asked
Meany what Meany thought about Toegemann’s chances of
a permanent job with the Company. Meany responded that
the Company liked Toegemann and the work that Toege-
mann did, that he (Meany) thought that it was ‘‘a good bet
that they’d need people’’ at Mansfield, and that he saw no
145CENTRAL NATIONAL GOTTESMAN
2 In March one of the Company’s warehousemen asked Supervisor Bill
Sypher to consider hiring the warehouseman’s son, a high school student, in
some temporary capacity. In April about the time the Company terminated
Toegemann’s employment—the Company hired the teenager and one of his
friends, at $5 an hour, to help in the final cleaning chores at the old Mansfield
warehouse. (Toegemann had been earning about $12.50 an hour.) I conclude
that Lindenmeyr/Munroe’s hiring of those students says nothing about whether
the company’s termination of Toegemann’s employment was, or was not, a
violation of the Act.
3 I reach that conclusion notwithstanding Lindenmeyr/Munroe’s offer of
temporary employment to Toegemann in September 1989 and, when Toege-
mann refused the position, to a newcomer.
reason why Toegemann ‘‘would not be working down there
in Mansfield when everything got settled.’’
The quotations are from Toegemann’s testimony. I credit
that testimony. But Meany’s remarks say nothing about
whether Lindenmeyr/Munroe in fact needed Toegemann’s
services on or after April 18. Indeed, given Meany’s position
on the sales rather than on the warehouse side of the Compa-
ny’s operations, those remarks do not indicate that, even
when Meany uttered them, it actually ‘‘was a good bet
they’d need people’’ at Mansfield.
Did Capalupo warn Toegemann not to ‘‘wave a union
flag.’’ By mid-March the Union’s organizing campaign at
Mansfield was well underway. According to Toegemann’s
testimony, he referred to the Union’s Mansfield campaign in
the course of a conversation with Capalupo (the supervisor
at Canton) and expressed his support for the Union’s efforts.
Toegemann testified that Capalupo responded by warning
Toegemann about the antiunion views of William Thirkell,
Lindenmeyr/Munroe’s vice president of operations.
According to Toegemann, Capalupo said
once you get down to Mansfield you shouldn’t be wav-
ing any union flag . . . supporting the Union in [its]
drive to organize the Mansfield employees because Bill
Thirkell is the boss and . . . it is . . . Thirkell that is
going to give you a job in Mansfield and he doesn’t
want the Union in . . . .
Capalupo denied having any conversation with Toegemann
even remotely like that.
Capalupo seemed to me to be a friendly kind of person.
Toegemann had been doing a good job for him. Capalupo’s
background was with Lindenmeyr and thus with a unionized
operation. And Capalupo knew that D. F. Munroe had been
nonunion. I can therefore easily imagine Capalupo uttering
the kind of remark that Toegemann’s testimony portrays.
But Capalupo’s denial was equally as credible as Toege-
mann’s testimony. And since it is the General Counsel who
must shoulder the burden of proof, I conclude that the record
fails to support the contention that Capalupo warned Toege-
mann against voicing his support for the Union.
I should note that even were I to conclude that Capalupo
did make the statement described by Toegemann, I would
not find that it was evidence of how Thirkell would respond
to an employee’s manifest support for the Union. Capalupo
was at the bottom of the supervisory hierarchy, and his back-
ground was with Lindenmeyr, not with D. F. Munroe. And
there is no evidence that Capalupo was privy to utterances
by Thirkell or by any other member of management about
how the ex-D. F. Munroe managers would treat union activ-
ists. Accordingly even had Capalupo uttered the alleged re-
mark, the probability is that it would have been mere specu-
lation on his part.
Toegemann’s vocal support for the Union, and
Lindenmeyr/Munroe’s response to it. Lindenmeyr/Munroe
opposed the Union’s organizing efforts at the Mansfield
warehouse. In early April the Company called a meeting of
the facility’s 15 or so day-shift warehouseman and drivers.
Lindenmeyr/Munroe’s purpose in holding the meeting was to
try to convince the employees that they would be better off
without a union. Several supervisors, including Thirkell, ad-
dressed the employees. Toegemann happened to be in the
warehouse at the time and attended the meeting.
Two employees spoke out at the meeting in favor of
unionization. Toegemann was one of them. No one from
management responded to the prounion comments.
If Lindenmeyr had not laid off Toegemann, would there
have been work for him to do. For about 6 weeks, beginning
in late April, Lindenmeyr/Munroe’s overtime costs at the
Mansfield facility skyrocketed because of the tremendous
amount of work associated with moving on May 1 from the
old Mansfield facility into the new Mansfield facility. More-
over throughout the summer of 1989 Lindenmeyr/Munroe
used employees from a temporary-employment agency to fill
in for employees on vacation as D. F. Munroe had in pre-
vious summers.
Clearly Lindenmeyr/Munroe could have found useful work
for Toegemann to do had the Company chosen to retain
Toegemann. In fact Lindenmeyr/Munroe does not argue oth-
erwise. But that does not necessarily suggest that there was
anything improper about the Company’s decision to end its
employment of Toegemann.
From the start, Lindenmeyr/Munroe planned to retain the
services of one of Lindenmeyr’s casual employees until, and
only until, the closing of the Lindenmeyr warehouse in Can-
ton. The Company’s actions exactly matched those plans.
Many business concerns in Lindenmeyr/Munroe’s position
might have planned and done things differently. For instance,
it must have been apparent early on that the switch to the
new Mansfield warehouse from the old would take a lot of
extra work and that employing an additional worker during
that period would reduce overtime work and, therefore, total
payroll expense.
But D. F. Munroe’s employment philosophy, and, there-
fore, Lindenmeyr/Munroe’s, was, generally, to hire only
workers that it intended to keep on its payroll permanently.2
There’s nothing suspicious about that way of doing things.
And it explains the high levels of overtime in April and May
and the use of a temporary-employment agency during the
summer. I accordingly conclude that the juxtaposition of, on
the one hand, Lindenmeyr/Munroe’s termination of Toege-
mann in April, and, on the other, the Company’s use at
Mansfield in April and May of employees on overtime and
its use of a temporary-employment agency during the sum-
mer of 1989, does not suggest that the Company terminated
Toegemann’s employment for unlawful reasons.3
Lindenmeyr/Munroe’s hiring of a papercutter. Sometime in
April the Company decided that it wanted to have a paper-
cutting machine in the new Mansfield warehouse, together
with an employee whose full-time job would be to operate
it. And on, or just prior to, May 1, Lindenmeyr/Munroe did
move such a machine into the facility. The Company did not
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Counsel for Toegemann and the Union sought to elicit rebuttal testimony
to the effect that Ponder and another employee (Hayward) were qualified to
operate the cutting machine at the time the machine was first brought to the
warehouse. I disallowed that testimony on the ground that it should have been
presented prior to Lindenmeyr/Munroe’s presentation of its case.
5 Lindenmeyr/Munroe argues that even had I concluded that Toegemann’s
termination was unlawful, I should still uphold the challenge on the ground
that, had he been employed, it would have been only as a part-time, intermit-
tent employee. Since I have concluded that Toegemann’s termination was law-
ful, I need not deal with that contention.
6 That was second shift’s starting time on and prior to June 8. Sometime
after the election the Company changed the second shift’s hours.
put anyone to work as the operator of the machine until July.
Its choice of an operator was one Tom Stanwood. Stanwood
had previously run a print shop. He had never before worked
for the Company or its predecessors.
Stanwood left that job in June 1990. Lindenmeyr/Munroe
employee Bruce Ponder (with whom Toegemann worked in
the Canton facility) replaced Stanwood.
The question is whether all of that has implications regard-
ing the company’s employment of Toegemann. The argument
goes this way: Back in October 1988 Lindenmeyr/Munroe
had indicated that if an opening arose at the Mansfield ware-
house, it would give Toegemann first crack at the job. Pon-
der obviously was qualified for the papercutting job since the
Company subsequently employed him in it.4 Had the Com-
pany initially employed Ponder as the papercutter, rather than
Stanwood, an opening would have been created for a ware-
houseman—Toegemann—in the Mansfield facility. The natu-
ral thing for Lindenmeyr/Munroe to have done (so the argu-
ment continues) would have been to offer the job to one of
its own employees (since the job was higher paying than
most others in the warehouse) rather than to an outsider.
Since the Company did not do that, it must have had a cov-
ert, ulterior motive for hiring an outsider. That, in turn, indi-
cates that Lindenmeyr/Munroe chose an outsider for its pa-
percutting job in order to avoid hiring Toegemann as a ware-
houseman.
I have a number of problems with the argument. The first
is that I do not agree that there is anything suspicious about
the Company hiring an ex-print shop head as the papercutter
rather than transferring one of its warehouse employees into
the job. Another is that inherent in it is the proposition that
amidst the turmoil of the post-merger integration of facilities
and work forces, and in circumstances in which D. F.
Munroe chose to merge with a unionized company, manage-
ment spent appreciable time and effort contriving to avoid
hiring (or retaining) one prounion ex-Lindenmeyr warehouse
employee. It could be that that was the case. But in my view,
the odds are very much against it.
I conclude that Lindenmeyr/Munroe’s hiring of Stanwood
as the operator of Mansfield’s papercutting machine does not
constitute evidence of any antiunion hostility toward Toege-
mann.
There is one last facet to the papercutter issue. Toegemann
spoke to a Lindenmeyr/Munroe supervisor in mid-May 1989
(about a month after his employment was terminated) about
the papercutter position. He asked to be considered for it.
The supervisor, Bill Sypher, responded by giving Toegemann
an employment application form to fill out, saying that the
Mansfield facility did not have any application from Toege-
mann on file. Toegemann filled out the application form and
mailed it to the Company, but not until August, which was
after the Company had hired Stanwood. Since Toegemann
had worked for 10 months for Lindenmeyr and
Lindenmeyr/Munroe, there is something a bit strange about
Sypher’s demand for an application form. But I credit
Sypher’s testimony on the matter and conclude that that de-
mand did not stem from any effort by the Company to avoid
employing Toegemann.
D. Toegemann—Conclusion
The record is insufficient for me to find that any agent of
Lindenmeyr/Munroe uttered any unlawful threat in Toege-
mann’s presence.
As for Lindenmeyr/Munroe’s termination of Toegemann’s
employment in April 1989, the Company wanted to avoid the
unionization of its work force. And one can assume that, par-
ticularly with an election coming up, the Company preferred
not hiring (or retaining) any pronion employees. Finally, the
Company’s management knew that Toegemann was
prounion. In that situation, if the Company’s termination of
Toegemann occurred in circumstances that indicated that the
Company had unstated reasons for its action, I would con-
clude that Lindenmeyr/Munroe’s termination of Toegemann
violated the Act.
But because I conclude that there has been no indication
that the termination was for reasons other than those stated
by Lindenmeyr/Munroe, I further conclude that the termi-
nation did not violate the Act.
Toegemann voted in the June 8 election that the Board
conducted among the employees in the Mansfield facility’s
bargaining unit. Lindenmeyr/Munroe challenged his ballot.
Since I have concluded that the Company had lawfully termi-
nated his employment prior to the election, I also conclude
that the Company’s challenge of his ballot should be sus-
tained.5
III. WAS DONALD DOOLEY A SUPERVISOR OR
AN EMPLOYEE
Donald Dooley has worked in Lindenmeyr/Munroe’s
Mansfield facility since 1986. Dooley voted in the Board-
conducted election. Lindenmeyr/Munroe challenged Dooley’s
ballot, contending that he was a supervisor within the mean-
ing of Section 2(11). The Company has also raised an objec-
tion to the conduct of the election on the ground that Dooley
campaigned on behalf of the Union. The Union, of course,
contends that Dooley is an employee, not a supervisor.
A. The Situation in the Warehouse, Generally
Dooley, along with three warehousemen and a truckdriver,
works on the second shift in the Mansfield warehouse.
Dooley is (and has been since he began working for D. F.
Munroe in 1986) the ‘‘shift foreman.’’
Notwithstanding Dooley’s title, his work day is almost en-
tirely indistinguishable from that of the three warehousemen:
He parks in the same lot they do; is due at work at the same
time (3:30 p.m.);6 punches in on the same timeclock; wears
the same uniform; spends his time almost entirely the same
way—picking orders in the warehouse; and then clocks out
at the same time (midnight, generally).
Dooley has no office of his own. In fact he has no desk
of his own. For that matter he does not handle any more pa-
147CENTRAL NATIONAL GOTTESMAN
perwork than do the other warehousemen. He does not attend
meetings of Lindenmeyr/Munroe’s management. He has no
authority to fire, reward, promote, or lay off an employee or
effectively to recommend such actions. He has never been
asked to evaluate an employee. He plays no role in the proc-
essing of grievances. He is paid on an hourly, not salaried,
basis.
Nonetheless, the question of whether Dooley is a super-
visor is a serious one.
B. Hierarchy at the Mansfield Facility
Bill Sypher is the operations and administrative manager
for Lindenmeyr/Munroe’s Mansfield facility. It is Sypher
who hires and fires the Mansfield employees, including the
18 or so bargaining unit employees. The Mansfield ware-
house manager, Jeff Nichols, reports to Sypher. Dooley is
subordinate to Nichols.
As shift foreman, Dooley’s rate of pay is higher than that
of anyone else on his shift (65 cents an hour more than the
next highest paid worker).
By about 5 p.m. both Sypher and Nichols have generally
left work. That means that for the 7 hours from 5 to mid-
night Dooley is ‘‘in charge’’ of the Mansfield facility, al-
though the record suggests that Dooley understands that he
is to call Sypher if something extraordinary arises.
C. Assigning and Directing Employees
When Dooley was hired as second-shift foreman, Sypher
spoke to Dooley about his (Sypher’s) dissatisfaction with the
way things had been going in the warehouse. Sypher told
Dooley that the Company expected Dooley ‘‘to exercise con-
trol over’’ the workers on his shift and that it was Dooley’s
job ‘‘to see that all orders [were] picked and the warehouse
straightened up’’ before the employees left for the day. The
record is silent, however, about whether management told
any of the other second shift workers what Dooley’s respon-
sibilities and authority were.
Dooley understood that his seniors expected him to make
sure that the employees on his shift kept at their jobs and
that they did their jobs properly. But Dooley is the kind of
person who is uncomfortable about giving commands. The
result is that most of the decisions on his shift are made by
consensus. And when that is not convenient, Dooley makes
‘‘requests.’’ He does not issue orders.
For example:
Dooley does not generally assign work to the employees.
The work is routine, the employees know their jobs, and they
can and do get started at the beginning of each shift without
any direction from Dooley at all.
Two of the warehousemen are qualified to fill in for the
shift’s truckdriver. On those occasions when the truckdriver
does not report to work, those two warehousemen decide
among themselves who will do the driving.
Times for meals and for work breaks are set by ‘‘demo-
cratic’’ decision; that is, by agreement among everyone on
the shift.
Dooley routinely shows temporary employees what to do
and how to do it. As for the permanent employees, Dooley
recognizes that he is empowered to correct employees who
do their work improperly. But on the witness stand, Dooley
was unable to recall ever having done so.
If there are still orders to pick at the end of the shift,
Dooley and the other employees discuss the situation. Those
employees who want to work overtime stay, the others leave.
Dooley sometimes asks an employee to stay late. But he
does not insist if the employee wants to leave.
Dooley can not altogether avoid making decisions, of
course. Here are some examples of decisionmaking by
Dooley:
Dooley and the other second-shift employees operated out
of the new Mansfield facility as soon as it became oper-
ational. But there was a relatively brief period in which the
Company stored goods at both Mansfield warehouses. During
that period, if there was work to do in the old warehouse,
Dooley would decide, in the first instance, whether or not
that work had to be done immediately. Then, when it did be-
come necessary for work to be done in the old warehouse,
Dooley would decide which warehouseman should handle it.
Whenever a warehouseman finds that the warehouse has
insufficient supplies of a given product to wholly fill a cus-
tomer’s order, the warehouseman asks Dooley what to do
about it. It is up to Dooley to decide whether to ship what
is available, or to ship a substitute product, or to ship nothing
at all.
Whenever more goods are supposed to be trucked out of
the warehouse than the facility’s truck can handle, the driver
asks Dooley what should be left behind.
D. Disciplining Employees
When a temporary employee came to work drunk, Dooley
sent him home. Dooley, on the witness stand, was asked
what he would do if two permanent employees got into a
fight. His answer: ‘‘before I did anything, I think I probably
would call Bill Sypher.’’
Lindenmeyr/Munroe contends that since management hired
Dooley to exercise control over the shift’s employees, he
necessarily must have had the authority to discipline those
employees. But according to Dooley: (1) he has never dis-
ciplined anyone; (2) he has never even reported any mis-
behavior to his superiors; and (3) while he could report mis-
behavior and recommend what management should do about
it, ‘‘anybody else could’’ too.
E. Hiring Employees
When Dooley first became shift foreman, the shift had one
less employee than it does now. Dooley told his superiors
that he thought that the Company should assign an additional
employee to the shift. Soon after he made that recommenda-
tion the Company did assign an additional employee to the
shift. Except for that chronological relationship, however, the
record does not tell us whether there was any causal connec-
tion between Dooley’s recommendation and management’s
action. And apart from that one instance, there is no indica-
tion that Dooley had the authority to effectively recommend
hiring employees, much less to do the hiring himself.
F. Dooley—Conclusion
When Lindenmeyr/Munroe hired Dooley, his superiors de-
scribed his authority to him in broad terms. As described,
Dooley surely had the authority to, say, effectively rec-
ommend discipline.
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Lindenmeyr/Munroe initially made the same claims about Harry Hayward
as it did about Dooley—that Hayward was a supervisor, that he accordingly
should not have voted in the election, and that the outcome of the election
was objectionable because Hayward campaigned on behalf of the Union. But
the Company subsequently withdrew its claim that Hayward was a supervisor,
and at the parties’ request, I opened and examined Hayward’s ballot and ad-
vised the Regional Director of Hayward’s vote. See tr. 487.
8 That’s because of the Pension Fund’s two-for-one rule that McGrath’s
letter refers to.
But as touched on earlier, nothing in the record tells us
that the Company’s management ever told the other workers
on Dooley’s shift that Dooley had significant supervisory au-
thority. More importantly, for the 3 years or so between the
time that Dooley had that conversation with his superiors and
the election in June 1989, Dooley did not exercise the au-
thority management delegated to him. At this juncture, there-
fore, and because it is Lindenmeyr/Munroe’s burden to prove
that Dooley is a supervisor, I consider it appropriate to look
at how Dooley has acted in his position of shift foreman, not
how management, once upon a time, indicated that it ex-
pected him to act.
And as Dooley has filled the shift foreman role, he plainly
is a warehouse employee who also serves as the shift’s
leadman. For virtually his entire workday Dooley does what
the other warehousemen do. The only difference between
Dooley and the others on his shift is that he is the person
the others turn to to resolve commonplace problems. Mostly
Dooley plays no role at all in the actions that are the indicia
of supervisory authority (hiring, transferring, suspending, lay-
ing off, recalling, promoting, rewarding, disciplining, assign-
ing, or directing employees, or adjusting their grievances).
And where he does exert such authority, it is ‘‘of a merely
routine or clerical nature.’’ See generally Hydro Conduit
Corp., 254 NLRB 433 (1981).
It is true that for 6 or 7 of the shift’s 8 hours, Dooley is
the senior person at the warehouse. And there are numerous
cases that point to that kind of situation as an important indi-
cator of supervisory authority. Clinton Food 4 Less, 288
NLRB 597 (1988); Minnesota Boxed Meat, 282 NLRB 1208,
1214 (1987); Zartic, Inc., 277 NLRB 1478 (1986); North-
woods Manor, 260 NLRB 854 (1982); Emory Convalescent
Home, 260 NLRB 540, 552 (1982); Best Distributing Co.,
255 NLRB 165 (1981); Greyhound Exposition Services, 244
NLRB 206 (1979).
But in all of those cases the individual at issue was shown
to have considerably more authority than Lindenmeyr/-
Munroe has shown of Dooley. And, of course, there is prece-
dent to the effect that being the senior worker on an evening
or night shift does not, ‘‘ipso facto,’’ categorize that person
as a ‘‘supervisor.’’ NLRB v. Res-Care, Inc., 705 F.2d 1461,
1467 (7th Cir. 1983). See also NLRB v. Orr Iron, Inc., 508
F.2d 1305 (7th Cir. 1975) (per curiam), enfg. 207 NLRB 863
(1973); Waverly-Cedar Falls Health Care, 297 NLRB 390
(1989); Phelps Community Medical Center, 295 NLRB 486
(1989); Central Freight Lines, 250 F.2d 435 (1980), enfd.
653 F.2d 1023 (5th Cir. 1981); cf. Injected Rubber Products,
258 NLRB 687 (1981).
I accordingly conclude that Lindenmeyr/Munroe has failed
to prove that Dooley is a ‘‘supervisor’’ as defined by Section
2(11), that Dooley’s ballot should be counted, and that the
Company’s Objection 2 to conduct affecting the results of
the election—Dooley’s campaigning on behalf of the
Union—should be overruled.7
IV. DID THE UNION WRONGFULLY PROMISE
PENSION BENEFITS
The Lindenmeyr bargaining unit employees had been cov-
ered by a collective-bargaining contract that provided for
pension benefits through the New England Teamster Truck-
ing Industry Pension Fund (the Pension Fund). Once the
merger between Lindenmeyr and D. F. Munroe took effect,
however, the employees received no such benefits.
Lindenmeyr/Munroe, that is, made no payments on any
employee’s behalf to the Pension Fund.
On about April 10, the Union’s business secretary-treas-
urer, James P. McGrath, sent a ‘‘Dear Mansfield Worker’’
letter to numerous bargaining unit members. The letter stat-
ed, in part:
The Union had a meeting with the employees of Mans-
field on Sunday March 5, 1989, at that meeting I point-
ed out . . . that those who had prior membership in the
Teamsters and who were covered under the New Eng-
land Teamster Trucking Industry Pension Fund and
who had a break in service could upon reactivating
their membership under another Teamster Union Con-
tract . . . regain their lost prior time of accrual in the
Pension. I further checked this out with the Pension
Fund and the answer is as I had said to the Mansfield
workers. The lost time could be regained by the amount
lost, if the returning member worked for a year of fu-
ture credited service he would regain two (2) lost years
of prior service, and each subsequent year of future
service he would regain two years of prior lost service
up to the amount of time the individual had lost.
That discussion about regaining ‘‘lost prior time of ac-
crual’’ was irrelevant to all but two of the bargaining unit
members. That’s because the discussion of ‘‘lost prior time
of accrual’’ clearly did not apply to any individual:
(1) whose right to a pension from the Pension Fund
had already vested (most of the ex-Lindenmeyr employ-
ees working at Mansfield fell into this category); or
(3) who had not previously had any connection with
the Pension Fund.
But one employee, Ronald White, had ‘‘eight years of
vesting service.’’ That is, he worked for 8 years for one or
more employers who made payments to the Pension Fund on
his behalf. As things stood in 1989, if White never again
worked for an employer who made payments to the Pension
Fund on his behalf, he would lose those years of ‘‘vesting
service.’’ On the other hand, if in the foreseeable future
Lindenmeyr/Munroe entered into a collective-bargaining
contract with the Union that provided for payments to the
Pension Fund, and if White continued to work for
Lindenmeyr/Munroe, the Pension Fund would fully credit
White for those prior years of vesting service.8 In a manner
of speaking, therefore, a prounion vote by the employees
might well result in White regaining his ‘‘lost prior time of
accrual in the Pension’’ notwithstanding White’s ‘‘break in
149CENTRAL NATIONAL GOTTESMAN
9 Amount of Simmonds’ pension credit
1983 3 months
1984 17 hours
1985 7 months
1986 209 hours
1987 none
1988 90 hours
10 Because the tally at this point is eight votes for the Union and eight votes
against, Dooley’s ballot is determinative.
service,’’ in the words of McGrath’s letter. (The Pension
Fund’s rules do not in fact use those terms.)
The other Mansfield employee who may have thought that
McGrath’s letter affected him was William Simmonds.
(Simmonds did not testify.) During the years 1983 through
1988 Simmonds had worked for a company (not
Lindenmeyr) that did make payments on its employees’ be-
half to the Pension Fund. In fact, however, Simmonds’ pen-
sion credits were gone forever long prior to the election cam-
paign at Mansfield.
Simmonds’ periods of employment with that prior em-
ployer had been sporadic.9 So sporadic that, under the Pen-
sion Fund’s rules, it was as though Simmonds had never
earned any credits at all. Contrary to the letter, therefore,
Simmonds’ ‘‘lost time’’ could not ‘‘be regained by the
amount lost’’ even assuming that Lindenmeyr/Munroe did
promptly enter into a collective-bargaining contract with the
Union providing for payments to the Pension Fund.
The question is whether that misstatement in the Union’s
letter constitutes objectionable conduct, as
Lindenmeyr/Munroe’s Objection 3 contends that it is.
I will assume that: (1) Simmonds saw the letter, or was
told of it, even though there is no proof that that is so; and
(2) the misstatement was nontrivial even though it applied
only to Simmonds and even though Simmonds’ could hardly
have been overwhelmed by the financial implications of the
Union’s letter (given Simmonds’ relatively few pension
credits and the fact that he could not in any event draw a
pension for many years). Nonetheless, my conclusion is that
the Company’s objection should be overruled.
McGrath’s letter was self-evidently (1) from the Union,
and (2) intended to convince employees to vote in favor of
union representation. Moreover it was sent to the employees
early in the election campaign, so that the Company had
ample time to respond to it. Misstatements in the letter ac-
cordingly do not constitute objectionable conduct. Shopping
Kart Food Market, 228 NLRB 1311 (1977). Accord: Mid-
land National Life Ins. Co., 263 NLRB 127 (1982).
Lindenmeyr/Munroe recognizes that a misrepresentation by
a participant in an election ordinarily is insufficient to cause
the Board to overturn the results of the election. But the
Company focuses on the letter’s statement that McGrath
‘‘checked this out with the Pension Fund’’ and argues that
the letter thereby ‘‘was telling employees that the Plan ad-
ministrators would, indeed, confer upon them the benefit set
forth in the letter.’’ (Br. at 44.) In view of the Company’s
argument I will make yet another assumption. That is, that
the Company’s objection would be sustainable if the letter
had been from the Pension Fund’s administrators, or if the
letter had appeared to be from them (i.e., had been a for-
gery), and if it had promised the bargaining unit employees
benefits to which they would not ordinarily be entitled.
But, again, the letter was self-evidently from an official of
the Union, not from the Pension Fund. That is to say, the
letter’s indication that the Pension Fund’s administrators
agree with the letter’s description of the Pension Fund’s rules
was, at worst, just another bit of campaign puffery.
As a last matter I note that: McGrath’s letter almost surely
was an honest attempt to explain to the bargaining unit mem-
bers the workings of the Pension Fund’s rules – the
misstatement was not deliberate; and there is no evidence
whatever that the Pension Fund’s administrators ever agreed
to confer special benefits on the Lindenmeyr/Munroe em-
ployees in the event the employees voted in favor of union
representation, or that the Union ever asked the administra-
tors to do so.
V. LINDENMEYR/MUNROE’S OBJECTION 1 TO THE
CONDUCT OF THE ELECTION
The Company’s Objection 1 reads:
The Employer objects to the conduct of the election by
virtue of the National Labor Relations Board’s failure and or
refusal to make a determination of the supervisory status of
Harry Hayward and Donald Dooley before conducting and/or
scheduling an election in this matter.
The Regional Director held a pre-election hearing in Case
1–RC–19245. Dooley’s and Hayward’s status—supervisors
or employees—was contested in that hearing. As indicated
earlier, the Regional Director did not resolve Dooley’s or
Hayward’s status, leaving that for resolution at the hearing
I held. Lindenmeyr/Munroe argues that that procedure was
unfair to the Company and unlawful; that if the Regional Di-
rector was not in a position to determine the status of Dooley
and Hayward after the preelection hearing, she should have
reopened that hearing. (Br. at 38.)
I know of nothing that prohibits the Regional Director
from adopting the procedure she did, Lindenmeyr/Munroe
cites me to none, and I accordingly dismiss Objection 1.
CONCLUSIONS OF LAW
Lindenmeyr/Munroe is an employer engaged in commerce
within the meaning the Act, and the Union is a labor organi-
zation within the meaning of the Act.
The evidence fails to show that Lindenmeyr/Munroe vio-
lated in Act in any respect.
The evidence fails to sustain any objection by
Lindenmeyr/Munroe to the conduct of the June 8 Board elec-
tion among the Company’s employees in the bargaining unit
earlier described or to conduct affecting the results of that
election.
Because Thomas Toegemann was not then an employee of
Lindenmeyr/Munroe and thus not eligible to vote in the elec-
tion, the challenge to Toegemann’s ballot should be sus-
tained.
As an employee in the appropriate bargaining unit, Donald
Dooley was eligible to vote in the election and the challenge
to his ballot should be overruled.10
By agreement among the parties, the challenge to the bal-
lot of Harry Hayward was resolved at the hearing herein (as
discussed in fn. 7, above); no issues concerning that ballot
remain outstanding.
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 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 objec-
tions to them shall be deemed waived for all purposes.
ORDER11
The complaint is dismissed.
It is hereby directed that the Regional Director for Region
1 shall, within 10 days from the date of this decision, open
and count the ballot of employee Donald Dooley and prepare
and serve on the parties a revised tally in Case 1–RC–19245.
If the revised tally reveals that the Union has received a ma-
jority of the valid ballots cast, the Regional Director shall
issue a certification of representative. However, if the revised
tally shows that the Union has not received a majority of the
valid ballots cast, the Regional Director shall certify that a
majority of the valid ballots has not been cast for the Union.