Flexi-Van Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1977

228 N.L.R.B. 956 (N.L.R.B. 1977)

956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flexi-Van Service Center, a Division of Flexi-Van
Corporation and Local Union No. 560 , a/w Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Cases 22-
CA-6415 and 22-RC-.6447
March 22, 1977
PROPOSED DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE1
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
Pursuant to charges filed by Local Union No. 560,
a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Union or Local 560, on June 3, 1975, and
amended on July 17, 1975, a complaint was issued on
July 25,1975, alleging that Flexi-Van Service Center,
a Division of Flexi-Van Corporation, herein called
Respondent, violated Section 8(aXl) and (3) of the
Act by discharging Joseph Badame and Daniel A.
Spino on or about June 2, 1975, and Mary Farrell on
or about June 13, 1975.
Pursuant to the Union's petition and an agreement
for consent election, an election was held on July 9,
1975. Four ballots were cast for, and two against, the
Union with three challenged ballots. On July 25,
1975, the Regional Director for Region 22 issued his
Report on Challenged Ballots and directed that the
challenges be consolidated with the complaint for
purposes of hearing, ruling, and decision by an
Administrative Law Judge. Thereafter, on July 31,
1975, Respondent filed an answer denying the
commission of an unfair labor practice.
Pursuant to due notice, a hearing was held before
Administrative Law Judge Milton Janus in Newark,
New Jersey, on September 4 and 10, 1975. All parties
were afforded full opportunity to be heard, to present
evidence , and to examine and cross-examine witness-
es. Following the close of the hearing, briefs were
filed by counsel for the General Counsel and the
Respondent.
On February 13, 1976, the Chief Administrative
Law Judge informed the parties that Administrative
Law Judge Janus had died on January 31, 1976, prior
to the issuance of a decision, and he proposed several
courses of action available for the disposition of the
matter. Subsequently, the parties consented to trans-
Any party ma , within 20 days from the date hereof, file with the Board
in Washington , D.C., eight copies of a statement setting forth exceptions to
this Proposed Decision , Order , and Certification of Representative , together
with seven copies of a beef in support of said exceptions and, immediately
upon such filing, serve copies thereof on each of the other parties.
2 The following recitation of facts is based on a composite of the evidence,
with specific note taken of conflicts of evidence only to the extent necessary
to resolve the basic issues.
fer the case to the Board for issuance of a Proposed
Decision and Order on the record as made.
On March 8, 1976, the Board informed the parties
that the proceeding had been transferred to the
Board. Thereafter, on July 28, 1976, the Respondent
filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board, having authorized the transfer of the
case , and having received and considered the briefs
filed by the Respondent and the General Counsel,
and the entire record in this case, makes the follow-
ing:
FINDINGS OF FACT 2
1. THE BUSINESS OF RESPONDENT
Flexi-Van Service Center, a Division of Flexi-Van
Corporation, a Delaware corporation, is engaged in
the operation of a facility in Secaucus, New Jersey,
for the repair and dispatch of truck containers,
trailers, and chassis. During the past 12 months, a
representative period, Flexi-Van received in excess of
$50,000 in gross revenues for truck container, chassis,
and trailer repair services provided and performed
within States of the United States other than the State
of New Jersey. Accordingly, we find, as alleged in the
complaint and as Flexi-Van admits, that the Respon-
dent is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and we
find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNLAWFUL DISCHARGES
A. Background
In mid-March 1975,3 Joseph Badame contacted a
representative of Local Union No. 868, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (hereinafter
referred to as Local 868), regarding the possibility of
organizing Respondent's office clerical employees .4
In mid-March and early April, there were two
3 All dates herein are in 1975 unless otherwise specified.
There is no collective-bargaining history among these employees.
Respondent 's production employees have been represented by International
Longshoremen's Association , AFL-CIO, Local Nos. 1277-1 and 1804-1
(hereafter referred to as ILA).
228 NLRB No. 78
FLEXI-VAN SERVICE CENTER 957
meetings between Respondent's office personnel and
John Burke, a representative of Local 868. At one of
these meetings , a majority of these persons signed
union authorization cards. Among those present at
this meeting was Rocco Fiore, who Respondent
admits is a supervisor. On April 14, Joseph Badame
accompanied Burke to Respondent's corporate offic-
es in New York, where they met with one of the vice
presidents, Douglas Rogers . Burke requested recogni-
tion of Local 868 as the collective-bargaining repre-
sentative of Respondent's clerical employees and
presented the union authorization cards signed by all
persons in the requested unit as proof of Local 868's
majority status. Rogers carefully perused the cards
and pulled those signed by Rocco Fiore, Daniel
Spino, and Badame and advised that they were
ineligible because they were supervisors. Mary Far-
rell's card was among those shown to Rogers. Rogers
then advised Burke and Badame that it was the
Respondent's policy to use the processes of the
National Labor Relations Board in such matters.
Subsequently, Local 868 filed a representation peti-
tion at the Board's Regional Office in Brooklyn, but it
was withdrawn when Local 868 turned the campaign
over to Local 560. Shortly thereafter, Badame was
contacted by a representative of Local 560, Robert
Luizzi.
On or about May 25, Badame met with Luizzi who
gave him union authorization cards for Local 560. On
that same date, a majority of Respondent's office
personnel signed authorization cards for Local 560 at
a meeting called by Badame . Mary Farrell was not
present at this meeting but signed an authorization
card on or about May 27, the following Tuesday. On
that date, Luizzi met with Badame at the plant where
Badame turned the union cards over to him and
introduced him to Thomas Kilkenny, manager of the
Service Center. Later that afternoon, after Kilkenny
refused to recognize Local 560, Luizzi telephoned
Badame to inform him that the employees in the
requested unit were to strike the next day. On May
28, the office personnel went on strike. The strike
continued until May 30. All of the clericals participat-
ed, as well as Bodame, Spino, and Farrell.
The strikers returned to work on June 2. About 8
a.m. Kilkenny called Badame into his office and told
him his services were no longer required. Spino did
not report to work that day, but he was told the same
thing when he called in to explain his absence.
Respondent admitted that Badame and Spino were
5 The evidence adduced by the General Counsel as to this point is
confused and inconclusive . Thus, Badame testified that at a meeting in
December or January he and Spino were told that "anything in the past does
not exist" and that everything had to be cleared by Kilkenny or Flynn. At a
later meeting in February, he and Spmo were told that all parts orders and
disciplinary actions had to be cleared through Kilkenny or Flynn. Spin's
testimony relative to these meetings was that in January Flynn and Kilkenny
discharged because of their activities on behalf of the
Union which were said to be in violation of their
management responsibilities. Farrell was discharged
approximately 2 weeks later (June 13), assertedly
because she refused to transfer to the New York
office when her department, the credit office, was
relocated there.
B. Badame's Status
Joseph Badame was hired on October 31, 1974, as a
supervisor by the then general manager, Jim Demoni-
co, and the then terminal manager, Bob Lotz, at a
salary of $240 per week. His responsibility at that
time was the overall supervision of the shop opera-
tion, including preparing and approving work orders
for repairs and parts and assigning the men to various
jobs in the shop and occasionally outside the facility.
He also had the authority to hire, fire, and discipline
employees although he never fired or hired anyone.
The General Counsel does not contest Badame's
supervisory status prior to January 1975. At or about
that time, there was a change of management at the
Service Center, with Thomas Kilkenny and John
Flynn replacing Demonico and Lotz; this change was
apparently occasioned by headquarters' dissatisfac-
tion with the Service Center's operation. There was a
series of meetings between Kilkenny and Flynn and
various supervisors, attended by Badame and Spino,
where the supervisors were admonished for poor
production, excessive overtime, etc. Neither Badame
nor Joseph Spino was expressly notified of a change
in his status, job title, identification card, wage rate,
or job duties .5 They continued to be salaried, were
not paid overtime, and were not required to punch a
timecloek. Certain privileges, however, such as the
use of the company car and a promised wage
increase, were withdrawn. Also, Kilkenny and Flynn
did gradually assume a more active role in the
operation of the plant than had Demonico and Lotz,
including the hiring and firing of employees, the
granting and approval of overtime hours, the approv-
al of repair estimates, and the right of final approval
of completed work orders.
Uncontroverted evidence, in large part the testimo-
ny of Badame, establishes that after the change in
management Badame 's duties consisted of the daily
assignment of duties to the mechanics either directly
or through the working foremen. Badame testified
that he gave work orders to the working foremen,
told him and Badame that "all deals were oft, whatever anybody was
promised, forget it ." Kilkenny and Flynn refused to answer Spino's questions
as to what his exact status and responsibilities would be. Later, at a meeting
in February, Kilkenny and Flynn told him and Badame that as of the date of
the meeting Kilkenny would be in charge of the Service Center's administra-
tion and Flynn would handle the shop operation.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the ILA unit, who had primary responsi-
bility for assigning duties to the shop employees, and
that he made direct assignments only when the
working foremen were absent or busy. However,
Badame testified that the working foremen reported
to him the deployment of the shop employees.6
Kilkenny and Lionel Cruz, one of the working
foremen, testified that, up until the time of his
discharge, Badame determined and told the working
foremen which repairs were to be given priority and
transferred shop employees from one assignment to
another in accordance with those priorities. Further,
Cruz testified that at the end of the day, Badame
reviewed timesheets prepared by the working fore-
men indicating the time shop mechanics spent on
particular repairs. Badame also was responsible for
making and reviewing repair estimates; the inspec-
tion and approval of completed work with the quality
control man, also a member of the unit represented
by the ILA; making sure that the shop mechanics had
the necessary equipment and parts; and ensuring that
the mechanics efficiently performed their duties. He
was responsible for warning the mechanics of infrac-
tions of work rules and informed Kilkenny and Flynn
of such violations. He also had the authority to direct
shop employees to repeat or complete repairs he
found unsatisfactory. There is documentary evidence
that Badame signed and placed formal notices of
disciplinary warnings or action in employees' person-
nel files. Badame also signed other personnel forms as
manager or supervisor , including wage increase
forms, and he continued to attend supervisory
meetings.
Pursuant to an informal agreement between Re-
spondent and the ILA, managers were not allowed on
the shop floor to give orders directly to the shop
employees. Kilkenny and Cruz uncontrovertedly
testified that the working foremen did not have the
authority to reprimand shop employees for being
slow or for poor production. Thus, Badame was the
only person to whom the 40 shop employees looked
for orders and directions from management. Finally,
the shop employees were never apprised of any
change in Badame's status.
6 Badame's testimony as to certain issues is somewhat self-contradictory.
For example , at one point he testified that one of his duties was cleaning and
sweeping the shop area. He later testified that his directive from Flynn was to
see to it that the shop area was cleaned . Also, he testified that after the
change in management he was required to wear a company-supplied uniform
of a white shirt and blue pants (the shop employees' uniform consisted of
blue shirt and pants). He later testified that he was told "you are ruining your
own clothes , why don 't you get uniforms," and that he was free to wear dress
clothes whenever he wished . Further, Badame admitted that there was an
agreement with the ILA that nonunit personnel would not perform repair
functions; that no one ever objected to his performing unit work ; and that he
C. Spino's Status
Daniel A. Spino began employment at the Service
Center in April 1973 as a "service coordinator" at a
salary of $275 per week. His salary was increased to
$300 per week approximately 1 year later. In mid-
1974 he was promoted to service manager and put in
charge of the plant. There is no question but that
prior to January 1975 Spino was a supervisor within
the meaning of the Act. At or about that time,
Kilkenny and Flynn replaced the previous general
and terminal managers of the Service Center. As
noted above, Kilkenny and Flynn assumed a more
active role in the day-to-day operation of the Service
Center than had the previous managers . However,
they did not change Spino's rate of compensation 7 or
title. The use of a company car was withdrawn
sometime in March.8 Spino was still entitled to use,
free of charge, the company gasoline pump as late as
May 27, whereas the estimator who regularly inspect-
ed equipment off the premises was not, being paid 15
cents per mile instead. Spino continued to have
customer account responsibilities and made use of an
expense account until March, when he was repri-
manded for taking U.S. Customs Service employees
to lunch. There is no indication that Spino was ever
told he no longer had an expense account.
After the change in management, Spino's duties
consisted of inspecting equipment and estimating
repairs; writing repair work orders; reviewing speed
letters which were requests from headquarters for
containers and chassis; telling the yard supervisor
which equipment to pull from storage for repairs and
pulling work orders for the shop employees in
accordance with the speed letters. Spino reviewed the
speed letters with the working foremen at the end of
the day to determine which repairs were to be done
by the night crew. Work orders for completed repairs
were turned in to Spino and he reviewed and initialed
them. Prior to February, Spino checked the work
orders to verify what mechanics had worked on the
equipment and the reasonableness of the man-hours
and parts used before the account was sent to
customer billing. Sometime in February, Flynn
assumed the authority of final approval of the work
orders because of concern about excessive overtime,
for which Spino (and Badame) were admonished and
never made written reports ofhaving done such work. Kilkenny testified that
he never received direct complaints about or observed Badame performing
unit work although Flynn reported to him that there was a complaint that
Badame had picked up a broom. In light of the above, as well as its logical
implausibility , Badame 's testimony that he performed repair duties for an
average of 3 hours per day is not credited . But even if he did, it would not
affect our conclusion herein.
r Spmo and Badame both received higher salaries than the working
foremen.
8 Kilkenny testified that Spino's company car was taken away in April or
early May.
FLEXI-VAN SERVICE CENTER 959
told to keep a tighter rein on the mechanics. How-
ever, Spino continued to review and initial the work
orders and he was held accountable if Flynn's review
pointed out excessive man-hours .9
Spino continued to attend supervisory meetings. He
signed as a "service manager" a posted notice of
employees being laid off, although he did not
participate in the decision to lay off employees. He
signed, as supervisor or manager, wage increase
personnel file forms and outside correspondence.
Only the yard supervisor, Pat Young, and Spino were
authorized to sign overtime write-ins on employee
timecards. (Badame was authorized to sign the
timecards in Spino's absence.)
Kilkenny testified that Spino was consulted about
wage increases and other personnel actions and that
Spino and Badame had the authority to grant time off
to shop employees.
D. Farrell's Termination 'O
Mary Farrell was hired by Respondent on January
26, 1975, as an accounts receivable clerk in the credit
office, under Rocco Fiore, an admitted supervisor. In
mid-March and April, she attended a couple of union
organizational meetings and signed an authorization
card for Local 868. Rocco Fiore also attended these
meetings and even signed a union card, which he later
asked Farrell to retrieve. On or about May 27, Farrell
signed a union authorization card for Local 560. She
also participated in the strike and picketing on May
28 to May 30 and was seen engaging in such activity
by her supervisors.
On or about May 22, Farrell was notified that
Respondent's credit office would be relocated in New
York City as of June 1 and that she could retain her
position if she transferred. The next day, Farrell
asked her supervisor, Fiore, if she would receive
compensation for the increased expenses she would
incur by commuting to New York. Fiore told her he
assumed she would because he had received compen-
sation when he transferred from the New York office
to New Jersey. When Farrell returned to work after
the strike, Fiore asked her if she had reached a
decision about transferring to New York. Farrell
responded that it was her understanding that no
transfers were to be implemented until the union
representation matter was resolved. The following
day, May 25, Fiore told her that she would not
receive any additional compensation. When she
complained, Fiore said: "What can I tell you,
sweetheart, the handwriting is on the wall." Fiore did
9 Spino's testimony in this regard is at times evasive and contrary to other
evidence, some of it documentary. For example, at one point he testified that
subsequent to February he did nothing with the work orders when they were
placed on his desk other than turn them over to Flynn. He later testified that
he did not have the authority to either approve or initial the completed work
not receive compensation for the move either. How-
ever, he had received a wage increase immediately
prior to the decision to relocate the credit office.
There were no other employees in the department.
On June 6, after a conversation with Jack Womack,
Respondent's controller, Fiore informed Farrell that
he was to report to the New York office the following
Monday morning, June 9. Fiore also told Farrell that
Womack had told him to get rid of her, that clerks are
a dime a dozen, and that the Company could get one
in New York for $125 per week. On June 10,
Kilkenny told Farrell he needed her answer as to
whether she was willing to transfer to New York.
Farrell responded that she would transfer if she got
some kind of compensation for her increased expens-
es. Later that day, she was called into the office and
given a letter (dated June 9) which stated:
As you are aware, we are planning on moving the
Credit and Collection function of the Service
Center to our office in New York In the event
that this becomes a reality and you are offered the
opportunity of moving to New York with the
operations, please indicate whether you would or
would not be willing to move to New York by
signing this letter on the appropriate line below
and returning the original to me. In the event you
are reassigned to our New York office, your pay
will remain unchanged.
Farrell refused to sign the letter. Kilkenny then told
her that she was a good worker and that she could use
him as a reference. On June 11, Kilkenny told her
that her last day would be Friday, June 13. The credit
office files, records, and furniture, with the exception
of the work orders and invoices, were transferred to
New York on June 12. On June 13, Farrell received
her final paycheck. Attached thereto was a letter
which stated:
The credit and collection department for Flexi-
Van Service Center has been moved to the New
York Madison Avenue office. Mr. Womack, the
manager of the corporate credit and collection
dept. has extended an offer to you as far as
moving with this department. With this offer he
stipulated that your pay status would remain the
same. Since this is not in agreement with your
wishes, the position will be eliminated, and your
termination will take effect today.
orders. However , several work orders dated April and May 1975 were
introduced into evidence bearing Spino's signature.
10 The facts pertaining to Farrell 's employment and discharge are not in
dispute and the following is a composite of the relevant record evidence
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, Farrell spoke to Fiore on the tele-
phone about a job reference. He confirmed a rumor
that Farrell had heard that the credit office was being
moved back to the Secaucus, New Jersey, facility.
Farrell testified that when she asked if the move had
been an attempt to get rid of her, Fiore repeated,
"What can I tell you, sweetheart, the handwriting is
on the wall, read it. I told you that before." Fiore was
not called as a witness. No further evidence was
adduced as to Respondent' s intention to move the
credit office back to New Jersey.
IV. FINDINGS
As defined by Section 2(11) of the Act, a supervisor
is "any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the
exercise of such authority is not merely of a routine or
clerical nature, but requires the use of independent
judgment." Possession of any one of these enumer-
ated powers establishes supervisory status, as the
section is read in the disjunctive. Where the posses-
sion of any one of these powers is not conclusively
established, the Board looks to certain other factors
as evidence of supervisory status, e.g., the individual's
designation as a supervisor, attendance of superviso-
ry meetings, responsibility for a shift or phase of the
employer's operation, authority to grant time off to
other employees, responsibility for inspecting the
work of others, responsibility for reporting rule
infractions and the ratio of supervisors to employ-
ees.1'
The General Counsel does not contest the fact that
Badame and Spino were supervisors within the
meaning of the Act prior to January or February
1975. However, the General Counsel contends that
when Thomas Kilkenny and John Flynn replaced the
previous managers of the Service Center they as-
sumed complete charge of the shop and plant
operations and Spino and Badame thus became rank-
and-file employees. We find the evidence as to
Spino's and Badame's status subsequent to February
1975 does not support the General Counsel' s asser-
tion.
Thus, the record establishes that Badame was
responsible for the assignment of work to the shop
11 See L and A Investment Corporation of Anzona, 221 NLRB 1206, 1208
(1975); Jake Schiagel, Jr., d/b/a Aurora and East Denver Trash Disposal, 218
NLRB I (1975); Sagamore Shirt Company d/b/a Spruce Pine Manufacturing
Company, 166 NLRB 437 (1%7), enfd. 401 F.2d 925 (C.A.D.C., 1%8).
12 See Asheville Steel Company, 202 NLRB 146,147 ( 1973), enfd . 487 F.2d
1398 (C.A. 4, 1973), Howard Johnson Company, 201 NLRB 376 (1973).
13 See Stephens Produce Co, Inc. and Temple Stephens Company, 214
employees; for enforcing Respondent's work rules,
which entailed taking part in the formal reprimand of
employees; and for the satisfactory and efficient
completion of repairs, with the authority to order
shop employees to correct defective repairs. Further,
Badame engaged in little, if any, production work;
attended supervisory meetings ; and signed employ-
ees' timecards for overtime. Badame was held out to
be a supervisor and was the only management
representative to whom the shop employees reported
for work assignments and directions.12 In this regard,
it is highly significant that there is no evidence that
the Respondent ever announced to the shop employ-
ees that Badame was no longer their supervisor.13
On the basis of the above, we conclude that
Badame had the authority responsibly to direct the
shop employees in the performance of their duties
and was a supervisor within the meaning of Section
2(11) of the Act at all times material herein.
For essentially the same reasons, we find that
Daniel Spino was a supervisor within the meaning of
the Act. Thus, Spino was clearly a supervisor prior to
January 1975, and at no time subsequently were
employees informed that his supervisory authority
had been withdrawn. He continued to sign significant
personnel records, e.g., wage increases and important
employee notices, including a notice of layoffs,
completed work orders, and parts orders, as the
manager of the Service Center. He continued to be
responsible for the smooth and efficient operation of
the Service Center by verifying the number of man-
hours spent on repair jobs and the need for parts. He
also attended supervisory meetings, signed overtime
write-ins on timecards, and transmitted speed letters,
which indicated the repairs to be made, to the shop
foremen. He was also consulted regarding personnel
actions, e.g., wage increases. On the basis of the
above, we conclude that Daniel Spino was a supervi-
sor at the time of his discharge.
It is well established that a supervisor is not entitled
to the protection of the Act and may be discharged
for any reason, including union activity, absent
circumstances not present here.14
Accordingly, as we have found that Spino and
Badame were supervisors within the meaning of
Section 2(11) of the Act at the time of their discharg-
es, complaint allegations pertaining to Spino and
Badame shall be dismissed.
As to Farrell, the evidence indicates that she was a
satisfactory employee and that Respondent was
NLRB 131, 133 (1974), enfd . 515 F.2d 1373 (C.A 8,1975); see also Aurora
and East Denver Trash Disposal, supra at 11.
14 Manual San Juan Company, Inc., Commonwealth Insurance Company
and United Adjustment Bureau, Inc., 211 NLRB 812 (1974); Farm Stores, Inc.,
F.S. #2, Inc, and F.S. #4, Inc., Division of Farm Stores, Inc., l31 NLRB
1068(1961)
FLEXI-VAN SERVICE CENTER 961
predisposed to retain her services at its New York
office. Although the General Counsel contends that
the Respondent may have been unlawfully motiva-
ted, there is insufficient evidence that the removal of
the credit office to New York City was not a bona
fide economic decision or that it was related to
Farrell's union activities. Moreover, her union activi-
ties were limited when compared to those of other
unit employees who engaged therein more consistent-
ly and energetically without suffering any reprisals.15
Accordingly, although Fiore's statements to her
concerning the "handwriting on the wall" could be
interpreted as referring to her union activities and
thus could be independent violations of Section
8(a)(1),16 they were not so alleged and they are
insufficient to support the General Counsel's conten-
tion that she was discharged for unlawful reasons.
And, although the rumored return of the credit office
to Secaucus is a suspicious circumstance, this evi-
dence does not warrant a conclusion that the move
was not economically motivated. We therefore find
that the General Counsel has not sustained his
burden of proof that the relocation of the credit office
was a pretext for discharging Farrell because of her
union activities.
In view of the foregoing, we shall dismiss the
complaint in its entirety and make the following:
CONCLUSIONS OF LAW
1. Respondent, Flexi-Van Service Center, a Divi-
sion of Flexi-Van Corporation, is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local Union No. 560, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent did not, by its conduct, violate
Section 8(a)(1) and (3) of the Act as alleged in the
15 See Abitibi Corporation, 198 NLRB 1249, 1257 (1972).
i6 See W,x Corporation, 227 NLRB No. 31 (1976); White Pine, Inc., 213
NLRB 566 (1974); General Fireproofing Company, 178 NLRB 130 (1969).
17 We find that the fact that Joseph Badame and Daniel Spmo, found
herein to be supervisors , solicited union authorization cards and otherwise
participated in the union organizing campaign did not consitute interference
which would warrant setting aside the election.
The Board requires that there be a reasonable basis for believing that fear
of supervisory retaliation destroyed the employees' freedom of choice in the
election before the Board will set aside an election on that basis . Here, both
Spino and Badame 's authority over the employees in the unit involved was at
best limited and their opportunities for affecting the employment status of
those employees were minimal And, as Spino and Badame were discharged
complaint , and Respondent did not , in any manner,
interfere with , restrain, or coerce its employees in the
exercise of rights guaranteed in Section 7 of the Act.
The Challenged Ballots
As we have found that they were not unlawfully
discharged, we hereby sustain the challenges to the
ballots of Joseph Badame, Daniel Spino, and Mary
Farrell. We, therefore, find that Petitioner has re-
ceived a majority of the valid votes cast and we shall
certify the Petitioner as the representative of the
employees in the appropriate unit.17
ORDER 18
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Local Union No. 560, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and that,
pursuant to Section 9(a) of the National Labor
Relations Act, as amended, the said labor organiza-
tion is the exclusive representative of all the employ-
ees in the following appropriate unit for the purposes
of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of
employment:
All office clerical employees, including TIR
clerks, employed by Flexi-Van Service Center, a
Division of Flexi-Van Corporation, at its location
in Secaucus, New Jersey, but excluding all profes-
sional employees, guards, and supervisors as
defined in the Act, and all other employees.
prior to the election, no indication or inference can be drawn that employees
supported the union out of fear of retaliation by union-oriented supervisors.
Rather, the Employer, by discharging Badame and Spino for their participa-
tion in the organization campaign, made clear its opposition to unionization.
Therefore, the employees were in no way misled into believing that Badame
and Spino were acting on behalf of the Employer Turner's Express,
Incorporated 189 NLRB 106 (1971).
Is In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and proposed Order herein shall, as provided in Sec. 102.48 of
the Rules and Regulations , be adopted by the Board and become its findings,
conclusions , and Order , and all objections thereto shall be deemed waived
for all purposes.