Helfrich Vending, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1974

209 N.L.R.B. 596 (N.L.R.B. 1974)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helfrich Vending , Inc. and Local 215, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men, and Helpers of America . Cases 25-CA-5527
and 25-RC-5289
March 12, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 26, 1973, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed limited exceptions and a supporting
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 has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Helfrich Vending,
Inc., Evansville, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order.
IT IS ALSO ORDERED that the challenges to the
ballots of Walter Burdick and Jack Miller be
sustained and that the ballot of Ronald Smith be
opened and counted.
IT IS FURTHER ORDERED that, in the event the
revised tally of ballots in Case 25-RC-5289 shows
that the Union has received a majority of valid
ballots cast, a Certification of Representative shall
issue . However, in the event that the revised tally of
ballots shows that the Union has not received a
majority of the valid ballots cast, the election
conducted on April 11, 1973, shall be set aside, and a
second election shall be directed in accordance with
the rules, regulations, and practices of the Board.
In the circumstances of this case , we find it unnecessary to rely on
the presence of Steven Helfrich , Adam Helfrich , and their attorney in the
warehouse area dung the election as grounds for setting aside the
election.
DECISION AND REPORT AND
RECOMMENDATIONS AS TO THE DISPOSITION
OF CHALLENGED BALLOTS AND OBJECTIONS TO
AN ELECTION
HERBERT SILBERMAN , Administrative Law Judge: These
consolidated proceedings were heard in Evansville, Indian-
a, on August 7 and 8, 1973. All parties were represented at
the hearing by counsel. Following the close of the hearing
briefs were received from the General Counsel, the
Employer, and the Union.
The Pleadings
The complaint in Case 25-CA-5527, dated June 8, 1973,
and amended on July 23, 1973, alleging that Helfnch
Vending, Inc., herein called the Employer or the Company,
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the National Labor Relations Act, as amended, is
based upon a charge filed on April 17, 1973, by Local 215,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union. In substance, the complaint, as amended, alleges
that the Company has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
by Section 7 of the Act by (1) interrogating its employees
concerning union activities; (2) warning employees that if
the Union should win the pending representation election,
part-time employees would be dismissed; and (3) engaging
in surveillance of its employees by stationing its officers in
such a position within its warehouse that employees who
were seeking to vote in the election conducted by the
National Labor Relations Board on April 11, 1973, were
required to pass the officers in order to reach the area
where the balloting was taking place. In its answer the
Employer denies that it has engaged in the alleged unfair
labor practices.
With respect to the representation proceeding, Case
25-RC-5289: A petition requesting certification of repre-
sentatives was filed by the Union on January 22, 1973.
Thereafter, the parties entered into a stipulation for
certification upon consent election which was approved by
the Regional Director. Pursuant thereto, an election was
conducted on April 11, 1973, in the premises of the
Company among the employees in the following unit:
All employees of the Employer at its Evansville,
Indiana, establishment, but excluding all office clerical
employees, professional employees, guards and super-
visors as defined in the Act.
The tally of ballots shows that of approximately 36
eligible voters, 17 votes were cast for the Union, 16 votes
were cast against the Union, and 3 ballots were challenged.
The challenged ballots are sufficient in number to affect
the results of the election.
On April 17, 1973, the Union filed timely objections to
the election.
The Regional Director caused an investigation of the
challenges and the objections to be made and on June 8,
1973, issued his report thereon. The report shows that the
Union challenged the ballots cast by Ronald Smith, Walter
209 NLRB No. 99
HELFRICH VENDING, INC.
Burdick , and Jack Miller . The report recommends that the
challenge to the ballot of Ronald Smith be overruled. The
report further shows that the ballots cast by Walter
Burdick and Jack Miller were challenged by the Union on
the ground that they are supervisors within the meaning of
the Act . As the challenges raise questions of fact that can
best be resolved by direct testimony , the report recom-
mends that a hearing be held to resolve the issues. The
report also shows that the Union's objections to the
election relate to conduct that is alleged to constitute
unfair labor practices in Case 25 -CA-5527. The Regional
Director , therefore, issued an order directing a hearing
with respect to the objections to the election and the
challenges and consolidating said hearing with the hearing
in Case 25-CA-5527. Thereafter , the Employer filed
exceptions to the Regional Director 's report . On July 6,
1973, the Board issued a Decision and Order overruling the
objections and adopting the Regional Director 's findings,
conclusions , and recommendations.'
Upon the entire record in the cases and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer, an Indiana corporation, is engaged in
preparing food, distributing food items by means of
mechanical vending machines, and related activities. Its
offices, warehouse, and principal place of business are
located in Evansville, Indiana. During the 12 months
preceding the issuance of the complaint, which period is
representative of the Company's operations, the Employer,
in the course and conduct of its business, purchased
directly from States outside the State of Indiana, and
caused to be shipped to its Evansville facility through
channels of interstate commerce, goods and materials
valued in excess of $50,000. During the same period of time
the Company sold and distributed products valued in
excess of $500,000 of which in excess of $50,000 were sold
at enterprises each of which annually produces and ships
goods valued in excess of $50,000 from their locations in
the State of Indiana directly to points outside the State.
The Employer admits, and I find, that it is engaged in
commerce within the :Weaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Company maintains vending machines which
m The Regional Director '; report , adopted by the Board, directs that
Case 25-RC-5289, following the hearing before and Decision by the
Administrative Law Judge , shall be transferred to and continued before the
Board in Washington, D.C.
2 The eligibility list which was used in the April 11. 1973, election lists 37
597
provide food and related items for employees in factory
and commercial establishments. The vending equipment is
installed in the customers' premises under contractual
arrangements between the Employer and the respective
business organizations . The Company's offices , warehouse,
garage, machine repair area, and kitchen are housed in a
single facility in Evansville, Indiana, herein referred to as
the plant. Its customers are located within a radius of 15
miles from its plant. As the vending machines require
frequent restocking, some on a daily basis, and regular
mechanical maintenance, the Company has established
three service routes: one that includes the Alcoa plant at
Newburgh, Indiana, which is the Company's largest
customer, and the surrounding area; the second that
embraces the city of Evansville; and the third that includes
plants located in Mount Vernon, Indiana, and the
surrounding area.
The Company was organized in 1950 by Adam Helfrich,
who now is its president. At that time Adam Helfrich
owned and operated a service station. He began the
Company with seven vending machines which he personal-
ly attended in his spare time. As the Company's business
prospered additional vending machines were acquired. By
1958 Adam Helfrich had begun to devote full time to the
Company's business and had hired another man to help
him. In August of that year the employee quit and Adam
Helfrich's son, Stephen, who is now secretary-treasurer,
joined his father in the business. The Company continued
to grow and in January 1962 Walter Burdick was hired.
Until then the Company's business was conducted exclu-
sively by the members of the Helfrich family. Later
additional employees were hired. Of those, the person still
employed with the longest continuous service is Jack Miller
who was hired about 8 years ago. In 1971, the Company
started its own commissary where it prepares food. Louise
Hawes, who is a supervisor within the meaning of the Act,
was hired to operate the kitchen.
As of the date of the election, April 11, 1973, the
Company employed more than 40 persons 2 and owned
about 586 vending machines. The Company's office,
clerical, and financial functions are done principally by
Adam Helfrich, his wife, his daughter, the office manager,
Glen Rowley, and a bookkeeper. There are four warehouse
employees who perform the customary warehouse func-
tions of receiving goods and preparing goods for the
routemen to load onto their trucks. William Sartain, who
has the longest service in the warehouse, acts as leadman
and, as described by Stephen Helfrich, "is in kind of
charge over the overall general maintenance of the
warehouse and the facilities." However, Adam Helfrich,
who spends his working time at the Evansville plant,
exercises general supervision over the warehouse activities.
There is no contention that Sartain is a supervisor and he
voted in the election without challenge. Eight women are
employed in the kitchen to cook and to perform related
activities under the supervision of Louise Hawes. The work
of the remaining employees principally involves service of
employees , including Walter Burdick and Jack Miller . Their Job classifica-
tions were described by testimony at the hearing . Unless otherwise stated all
references in this Decision to the number of employees in the various job
classifications will be based on the eligibility list
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the vending equipment. Two are collectors. As their title
implies they collect the money from the vending machines.
Seven women are employed as hostesses. They work at the
customers' premises3 performing such functions a_s clean-
ing and replenishing vending machines and assisting
persons who use the vending machines. The remaining
employees are the routemen who service the vending
machines. They receive the food items and other merchan-
dise at the warehouse which they load onto their trucks in
the evening and the next morning drive to the various stops
on their route where they replenish and clean the vending
machmes4 and make minor repairs as necessary. There are
16 routemen including Walter Burdick and Jack Miller.
The latter two normally do not clean or stock vending
machines. However, they regularly inspect the machines
and the areas where the machines are installed for
cleanliness , for adequacy of merchandise, and generally to
insure that the Company's operations are being satisfacto-
rily performed. Burdick and Miller also repair the vending
machines and do preventive maintenance work on the
equipment.
An issue in these cases is whether Burdick and Miller are
supervisors as defined by the Act. They are salaried
employees. But the following six employees who voted in
the election without objection also are salaried: James
Barber, Carl Bennett, Donald Edwards, James Garner,
Roger Seitz, and Darrell Williams. Bennett and Garner are
collectors and the other four are routemen. All salaried
employees are listed on the Company's records as
supervisors. Salaried employees are paid for overtime work
on a straight-time basis instead of at a rate of time and a
half, they have better insurance coverage than the hourly
paid employees, and they have personal use of company
vehicles. However, all salaried employees, including
Burdick and Miller, wear the same uniforms as the hourly
paid employees. According to Stephen Helfrich, being
placed on salary is in the nature of a promotion and the
employees who have received such recognition are those
who have performed their jobs well, who have demonstrat-
ed an interest in the welfare of the Company, and who are
prepared to accept additional responsibility.5 The fact that
Burdick and Miller are listed on company records as
supervisors and are paid salaries does not necessarily
determine their status as supervisors under the Act because
the other six salaried employees admittedly are not
supervisors.
Probably because the Employer is a family owned
enterprise which over a period of less than 25 years has
grown from a one-man operation to its present size , there is
no formal delineation of employee duties and responsibili-
ties . Adam Helfrich spends almost all his working time in
the Evansville Plant . He assumes principal responsibility
for the financial and clerical functions of the business.
Also, he oversees the warehouse employees and in a
general way the other activities in the Plant. Stephen
Helfrich is primarily concerned with customers' service
and equipment repair. He testified that he is in charge of
3 The hostesses are not required to report to the Evansville plant.
4 In the few establishments where hostesses are assigned the latter clean
the vending machines and replenish the stock However , the routemen
deliver the merchandise to those locations
all personnel, does the hiring and firing, establishes all
wage rates, and decides upon all other employee benefits.
He spends about 30 to 45 percent of his working time at
the Evansville Plant and 90 percent of his remaining time
servicing the Alcoa route. Because of the limitations on his
time Helfrich visits the stops on the Mount Vernon and
Evansville routes approximately once each quarter. Thus,
unless Burdick and Miller are supervisors-Burdick is
assigned to the Mount Vernon route and Miller to the
Evansville route-the ioutemen and hostesses on these two
routes work without supervision. Stephen Helfrich testi-
fied, "The people do not need supervision, they know their
jobs. They are inspected, but they are not supervised."
According to Stephen Helfrich, if there are problems, the
employees on the Mount Vernon route report them to
Walter Burdick or Donald Edwards and the employees on
the Evansville route report them to Jack Miller or Roger
Seitz.
B. Status of Walter Burdick and Jack Miller
It is the Employer's position that the only supervisors are
Stephen Helfrich, Adam Helfrich, the latter's wife and
daughter, Glen Rowley, and Louise Hawes. Louise Hawes
supervises the kitchen employees. Adam Helfrich, his wife,
his daughter, and Glen Rowley supervise the office and the
clerical work. Adam Helfrich also supervises the ware-
house operations. Stephen Helfrich supervises the route-
men and hostesses .6
Stephen Helfrich testified that the work of the routemen
"is the heart of our company because without them, we
could not sell our product. Somebody has to put the
product on the shelves and this is where sales are generated
so this is where the entire finances come from which
operate our Company." Routemen, according to Stephen
Helfrich, are expected to maintain a neat and presentable
appearance which will give a good image to the customers.
They are expected to keep their trucks properly stocked so
that they can replenish the vending machines as needed
and are expected to keep the vending machines clean at all
times . In addition, the routemen are supposed to keep the
areas where the vending machines are located free of trash,
to see that machines have an adequate supply of coins, and
to make minor repairs to machines. More difficult repairs
are made by Miller, Burdick, and Stephen Helfrich.
Stephen Helfrich testified that he is "the one who tells
the routemen what to do." However, because he inspects
the Evansville and Mount Vernon routes no more than
once each quarter, Stephen Helfrich necessarily depends
upon others for information regarding the condition of the
machines and the performance of the employees on these
routes. The others upon whom he depends for such
information are Burdick and Jack Miller. Stephen Helfrich
testified that it is his custom to discuss the day-to-day
operations of these routes each morning and each
afternoon with both Burdick and Miller. They report to
Stephen Helfrich about the condition and the cleanliness
of the equipment and the adequacy of the service. He also
S Stephen Helfrich testified that salaried employees are expected "to
report anything that would be derogatory about the Company to me."
6 Stephen Helfnch 's testimony indicates that at the present time he,
rather than his father , is the principal operating official of the Company
HELFRICH VENDING, INC.
testified that he depends upon Burdick and Miller for
information regarding the performance of the employees.?
Also, Stephen Helfrich testified that any personnel action
he takes regarding the routemen and the hostesses is based
almost entirely upon the reports he receives because he has
only limited opportunity for personal observation.
The authority of Walter Burdick and Jack Miller is the
same . Neither Burdick nor Miller was called as a witness.
Therefore, the evidence developed concerning their duties
and authority is derived from the testimony of Stephen
Helfrich and the various employees who were called as
witnesses.
Stephen Helfrich sought to establish that Miller and
Burdick are responsible for inspecting, maintaining, and
repairing equipment. According to Stephen Helfrich, they
have "the authority to do anything that would be necessary
to insure the functioning of the equipment ...." The
position of the Company is that any authority Burdick and
Miller exercise over other employees is routine and
incidental to their primary function of inspecting and
repairing the vending machines. Thus, according to
Stephen Helfrich, if Burdick or Miller notices that a
routeman has not properly serviced a machine because
either it was not cleaned or not adequately stocked, Miller
or Burdick, as the case may be, gets in touch with the
routeman and the latter is expected to remedy the
situation.
More evidence was adduced at the hearing regarding
Burdick's activities than Miller's. As of April 11, 1973, nine
employees were assigned to the Mount Vernon route to
service about six or seven customer stops. Three were
hostesses, two of whom were assigned to the Babcock &
Wilcox plant and one to the GE plant. One employee, Carl
Bennett, made the collections and the remaining five
employees were routemen. Three of the routemen were
hourly paid and two were salaried employees. The hourly
paid employees were Daniel Hale, William Bayne, and
Stanley Niemeier. The latter was a part-time employee.
The salaried employees were Donald Edwards and Walter
Burdick.
Burdick, who has the longest continuous service with the
Company aside from members of the Helfrich family, is
paid $190 per week. Except for Miller who receives the
same salary, the next highest paid employee is Donald
Edwards who receives $150 per week and then Roger Seitz
who receives $140 per week. Unlike other routemen,
Burdick normally drives a station wagon instead of a truck.
Except for emergencies Burdick does not clean or restock
vending machines .8 Although Stephen Helfrich testified
that the routemen and hostesses require no direction in the
performance of their duties, he also testified that if they
encounter any problems they report their difficulties to the
office or to the salaried employees.
Stephen Helfnch testified that because he visits the
customer stops on the Mount Vernon route only slightly
more than once per quarter he relies primarily on Burdick
and Edwards for information as to how well the accounts
4 Stephen Helfrich testified that he also receives reports from Donald
Edwards and the other salaned employees
8 Edwards, the other salaned employee on the Mount Vernon route, like
the hourly paid routemen , drives a truck and delivers stock
9 According to Stephen Helfrich it is the duty of all employees to report
599
are being serviced and as to the performance of the
employees. Normally, Helfrich meets with Burdick every
morning and afternoon to discuss the operations of the
route and with Edwards once each day for the same
reason.
Burdick has reported incidents of employee misconduct
to Stephen Helfrich .9 Thus, with respect to Wyman Crow,
Burdick made derogatory reports about his neatness, the
cleanliness of his machines, and the service of his accounts.
According to Stephen Helfrich, he also received derogatory
reports about Crow from Edwards, Jack Miller, and James
Stevens, another routeman. After making a personal
investigation of the matter and because there were
shortages of cash from the machines serviced by Crow,
Helfrich discharged Crow.
On one occasion Burdick recommended that Roger
Seitz, then an employee on his route, be advanced. About a
month later Stephen Helfrich promoted Seitz to a salaried
position. Helfrich testified that in deciding upon the
promotion he gave consideration to Burdick's recommen-
dation, but he also had obtained a favorable impression of
Seitz and had received information about Seitz' perform-
ance from Edwards. Seitz testified that when Stephen
Helfrich informed him of his promotion Helfrich men-
tioned that Burdick was pleased with the job he had been
doing.
According to Stephen Helfrich, only he has authority to
give employees time off, to transfer employees, and to
otherwise affect their employment. As Helfrich is not
always available, a routeman or a hostess who wishes time
off or other- personal consideration may in the first
instance make the request to Burdick or Edwards who then
presents the matter to Helfrich. But when Helfrich is
unavailable Burdick has authority to grant such requests.
Several employees were called as witnesses who gave
testimony reflecting upon their relationship with Burdick
and Miller. Thus, Daniel Hale testified that in February
1973, when Crow was terminated, he told Donald Edwards
that he would like to be assigned to Crow's route, which
was in the Mount Vernon area, instead of continuing as a
substitute driver. Edwards said he would relay the request
to Burdick. Several days later, on a Friday afternoon,
Burdick informed Hale that starting on Monday Hale
would take over the vacant Mount Vernon route.10 Also,
about 3 days after Hale began what he understood was a
permanent assignment on the Mount Vernon route he was
directed by Stephen Helfnch to substitute for an absent
driver on the Alcoa route. The next day when Hale
returned to the Mount Vernon route Burdick said that he
had had nothing to do with the previous day's transfer, that
he was upset about the shifting of routemen, and that Hale
"was to confer with him no matter what Steve [Helfrich]
said."
Hale further testified that he was employed twice by the
Company. When he returned the second time Stephen
Helfrich informed him that Burdick was still supervisor of
the Mount Vernon route and any problems Hale might
to him any incident involving another employee's misconduct.
iu Hale testified that on all prior occasions when his route was changed
(presumably as he was a substitute driver this happened with some
frequency) Burdick informed him that the decision would be made by
Stephen Helfnch
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have he should take up with Burdick . Hale explained that
he understood the problems to which Helfrich was
referring were problems with equipment . Hale testified that
he performs his day-to-day work without any supervision.
Hale also testified that once Burdick asked him to assist
another employee install a dollar bill changer, which he
did, and which required him to work overtime . Another
time Burdick instructed him to return to a stop and fill
some vending machines which were low in merchandise.
Hale lastly testified that when he wanted to be off during
the July 4 weekend he arranged with another employee,
James Stevens, to cover his route and then sought and
obtained Burdick 's approval . According to Helfrich,
anyone who is scheduled to work on a Saturday or a
Sunday and wishes to take the day off is required to find
another qualified employee to cover his route, and
approval of the substitution then is customary.
Roger Seitz testified that he became ill while at work two
or three times and on each of these occasions he obtained
permission from Burdick to leave early . Seitz also testified
that twice , when the merchandise was not ready to load
onto his truck in the evenings , he obtained Burdick's
permission to leave work a half hour early and to report a
half hour early the next morning to load his truck. On both
occasions Burdick initialed Seitz' timecards . Seitz also
testified that while he was on the Mount Vernon route he
routinely received instructions from Burdick regarding the
performance of his work such as to do extra cleaning and
"things like that."
Michael Allgood testified that one day , after April 1973,
Burdick asked him to help uncrate a vending machine, and
another time Sartain , stating that he was relaying a request
from Burdick , asked Allgood to help exchange a machine
at a customer's location. In a similar vein Wyman Crow
testified that when Darlene McDurmon , a hostess at the
GE plant , had an accident Burdick instructed him to fill
her Coke machines ; another time Burdick instructed him
to deliver merchandise to the hostesses at the GE and
Babcock & Wilcox plants; and at other times Burdick told
him to keep his machines in better condition . Crow also
testified that Burdick once gave him permission to leave
work early in order to visit his dentist . Crow further
explained that he made the request to Burdick because
Stephen Helfrich from whom he normally would have
sought such permission was not available. However, Crow
also testified that "Don Edwards told me that Walt
Burdick was my supervisor in Mount Vernon." ii
James Stevens testified that once, after he had punched
out and was leaving the Plant , Burdick directed him to
return and to load his truck , which he did. Stevens
explained that he had not loaded his truck because he had
not used much stock during the day.
Stanley Niemeier testified that he receives his instruc-
tions from Burdick. In addition to instructions about
normal matters of service , which from time to time
required him to alter his route schedule, once Burdick
informed him that the power at the GE Plant was going to
be shut down and that he should remove the food from the
vending machines to avoid spoilage . On another occasion
Burdick instructed Niemeier to try to fix a coffee machine
at a customer location . Also, during Easter, Burdick gave
Niemeier the day off on Saturday because so few people
were working in the customers ' plants.
Miller's functions and authority are essentially the same
as Burdick 's. He is the senior employee on the Evansville
route . There are between 20 and 30 customers plants on
that route . There are three route drivers including a part-
time driver, a collection man, and three hostesses . Stephen
Helfrich inspects the vending machine installations on this
route no more than once a quarter.
As with Burdick , Stephen Helfrich usually speaks with
Jack Miller each morning and afternoon about subjects
relating to the route . Where Miller observes any deficiency
he normally instructs the routemen to correct the matter.
In Helfrich's absence , Miller has authority to take
appropriate action such as permitting an employee to take
time off or assigning an employee to cover the route of an
absent employee . With evident reluctance Stephen Helf-
rich testified that in connection with personnel actions that
are taken two or three times each year he gives considera-
tion to Miller's favorable comments about the performance
of the employees , and further, that several employee
transfers were effected upon Miller 's recommendation.
Stephen Helfrich , who was the only witness called by
Respondent , sought to deprecate the supervisory duties
and authority of Burdick and Miller by averring that they
are responsible for the functioning of equipment, not
people , by emphasizing his own managerial control and
belittling the weight given to their views and recommenda-
tions in regard to personnel matters, and by suggesting that
Donald Edwards and Roger Seitz perform similar func-
tions, thereby attenuating their authority . I am uncon-
vinced by Helfrich 's testimony . In explaining the duties
and authority of Burdick and Miller he was unsuitably
selective in the presentation of the facts; he sought to
characterize their positions rather than describe their
responsibilities ; and, in general , he seemed to shape his
testimony to harmonize with his picture of the Employer's
case rather than to give a simple and straightforward
recitation of the facts . As an example , when asked to
describe what Burdick does , Helfrich first testified, "He
services the machines ." When pressed to give more detail
Helfrich testified, "He also resupplies machines with
change. He checks with the hostesses as well as the
routemen to see if there are any mechanical problems with
the machines they may be aware of that he is not aware
of." Only after Helfnch 's attention was directed to the fact
that he normally visits the customer stops on the Mount
Vernon route not more than once a quarter did Helfrich
admit that Burdick had any duties other than attending to
mechanical equipment . Helfrich then acknowledged that
he obtains and relies on reports he receives from Burdick
concerning the Company's operations on the Mount
Vernon route. To dilute the importance of that function
Helfrich attributed the same responsibility to Edwards. But
on further questioning , it developed that Helfrich meets
with Burdick twice each day to discuss the operations of
his route while he sees Edwards no more than once a day.
11 To illustrate how differently the employees viewed the positions of
Burdick and Edwards, Crow testified that Don Edwards "wasjust another
routeman to my knowledge "
HELFRICH VENDING, INC.
Further, Edwards' reports are necessarily more limited
than Burdick's because Edwards is only able to report
about the operations at his own customer stops, while
Burdick visits all the customers, including Edwards'
customers, on the Mount Vernon route.
I do not accept Helfnch's testimony that the employees
on the Mount Vernon and Evansville routes work without
any supervision. The work of the hostesses and routemen is
largely repetitive and therefore it is not necessary for a
supervisor to direct their activities on a minute-by-minute
basis. However, he service of the routes is the heart of the
Company's, business. Inspections are made to insure that
the employees on the routes are performing their duties
satisfactorily. Arid the persons who regularly make such
inspections on the Mount Vernon and Evansville routes
are Burdick and Miller. When something goes awry-such
as when an employee fails to clean a vending machine or
does not have the machine properly stocked-the direction
of Burdick and Miller to correct the deficiency is
understood by the employees to be an order with which
they must comply-not merely a suggestion from a
coworker that can be ignored. Both Miller and Burdick
direct employees to perform duties which are not part of
their normal assigned work. The record is replete with
examples of nonroutine work done by employees upon the
instructions of Burdick or Miller which at times involved
compensable overtime. The evidence is clear that the
employees understand that Burdick and Miller are their
supervisors.12 When employees want special consideration
such as time off or a transfer they apply in the first instance
to Burdick and Miller. Furthermore, Burdick and Miller
stand apart from all other employees on their routes,
including Edwards and Seitz. They are paid 25 to 80
percent more than the other employees including Edwards
and Seitz. They drive station wagons, not trucks. They do
not normally perform the delivery and stocking functions
of the routemen. Furthermore, Helfnch has no practical
opportunity to observe and to evaluate the employees on
the Mount Vernon and Evansville routes. He acknowledg-
es that his personnel actions are determined by the
information he receives from others. The only others whom
he consults regularly who have extended experience with
the Company and who have the acknowledged confidence
of the Helfrich management are Burdick and Miller. Thus,
when Seitz was informed of his promotion by Stephen
Helfrich, the latter told Seitz that it was upon the
recommendation of Burdick. I find that the recommenda-
tions of Miller and Burdick regarding personnel matters,
including discipline, promotion, and transfer of employees,
are effective and prompt appropriate management action. I
also find that Burdick and Miller have the authority
responsibly to direct the work activities of the employees
on their respective routes. The employees understand that
they have such authority and accept their orders. Accord-
ingly, I further find that Burdick and Miller are supervisors
within the meaning of Section 2(11) of the Act.
C. Interference, Restraint, and Coercion
601
The complaint alleges that during the preelection period
and on the day of the election the Company engaged in
conduct which unlawfully infringed upon employees'
rights. Anthony Velotta, who worked part time as a janitor
for the Company, testified that about a week before the
election Stephen Helfrich came to the kitchen area and
engaged him in a conversation about the organizational
campaign. According to Velotta, Helfrich "asked me how I
felt about the whole thing and I told him I was undecided.
I hadn't made up my mind yet. And then he told me if the
election came out to favor a Union that part-time help
would probably be let go and they would hire one full-time
worker to work my job and Mike's [Michael Allgood's]
job."
Stanley Niemeier, who worked part time as a routeman,
testified that about a week before the election, at the
request of Stephen Helfrich, he met Helfrich in the parking
lot at Indiana State University in Evansville. According to
Niemeier, the conversation turned to the union activities of
the employees and Helfrich asked him what he thought
about the Union. Niemeier answered that he had not made
up his mind. Helfrich said that he was treating the
employees fairly and if they had any complaints about
their pay or their conditions of work they should have seen
him about the complaints rather than go to the Union and
try to get the Union in. Helfrich also stated that "if the
Union got in, it may not be necessary to have part-time
workers. He said I may be out of a job if the Union won
the election." Helfrich also sought to disparage the Union
by showing Niemeier pictures of the new and presumably
elaborate union building and by referring to the wealth of
the Union's president and to the fact that the latter owned
a boat, an airplane, and a camp on a Kentucky lake.
Lastly, according to Niemeier, Helfrich said to him that the
latter had nothing against the Union except that the Union
had a bad strike record and that he did not want the threat
of a strike hanging over his head.
Daniel Hale, who was employed as a routeman, testified
that on the morning of the election he was summoned to
Stephen Helfrich's office. Helfrich told Hale that Helfrich
wanted to beat the Union by a wide margin and that he did
not believe the Union could do anything for the employees.
Helfrich asked Hale how he felt about being represented
by the Union. Hale did not respond. Helfrich then said
that he hoped he could have Hale's support in the election
and "those people that would support the company in this
election, he felt they would have a future with the
company."
Helfnch testified that during the preelection period he
spoke with most of the employees. Concerning his
conversation with Velotta, Helfrich did not deny asking the
latter how he felt about the Union. However, according to
Helfrich, Velotta said that he was torn between the view of
his father who opposed unions and the opinion of his uncle
who favored unions. Helfrich also admitted that there was
discussion about what would happen to part-time help. In
that regard Helfrich testified, "I had mentioned about part-
12 For instance, James Stevens and Michael Allgood testified without
any qualification that Jack Miller was their supervisor
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time help and that I was not sure at this time what would
happen to our part-time help. I do know that in negotiating
Union contracts and so forth that there are minimum
hours . . . . And due to the contract and how it would be
negotiated, I would not be able to comment exactly how
part-time help would be affected but that it could be
affected." Helfrich did not deny that he said that if the
Union won the election part-time help would probably be
dismissed and one full-time employee would be hired to do
Velotta's and Michael Allgood's work.
Helfrich's version does not differ substantially from
Niemeier's version of their conversation. Regarding part-
time employees, Helfrich testified, "I told them I didn't
know how it would affect their job but it definitely could
affect their job due to whatever type of contract we would
have with the Union if they were successful in winning the
election."
Helfrich's testimony regarding his conversation with
Dale is substantially in accord with Hate's testimony.
According to Helfrich, "I had told him that I would very
much like to see that the Company would win the majority
or landslide victory-that all the employees would vote for
the Company, but I knew this was a hypothetical situation
and it wouldn't take place. But I felt that the Company had
been growing. It had been prospering through the years but
we had a better chance to prosper without a Union rather
than have a Union. But I told him I was not against the
Union but I was against strikes. And I felt like if we had a
strike, it would be the biggest blow that we could have to
our Company. . . . I mentioned that if we would win the
election, employees with the Company could have a good
future with the Company because I thought we could go
ahead and work toward better things."
The differences are insubstantial between the testimony
of Velotta, Niemeier, and Hale regarding their individual
conversations with Stephen Helfrich and Helfrich's testi-
mony concerning the same events. However, to the extent
that there are conflicts I credit the three employees rather
than Helfrich.13 Helfrich warned Velotta and Niemeier
that part-time employees might lose their jobs should the
Union prevail in the forthcoming representation election.
In substance, Helfnch's explanation for his statements to
Velotta and Niemeier is that if the Union won the election
its contract demands would probably compel the discharge
of part-time employees. However, the record does not
establish that Stephen Helfrich had any way of knowing
what demands the Union might make upon the Company
in connection with the negotiation of a collective-bargain-
ing agreement or that the Union's demands might compel
the Company to eliminate part-time employees. Such
prediction on Helfrich's part, therefore, was purely
speculative and unlawful. As the Supreme Court stated in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
618(1969):
[An etiiiployer's prediction about the consequences of
13 Helfnch's testimony, particularly when being questioned by opposing
counsel , was evasive Instead of giving direct , straightforward replies to the
questions asked him , his answers tended to be conclusionary and tended to
avoid or omit factual content which he believed adverse to the Company's
position I consider that Stephen Helfrich was an unreliable witness.
14 Although there is no specific allegation in the complaint that the
unionization ] must be carefully phrased on the basis of
objective fact to convey an employer's belief as to
demonstrable probable consequences beyond his con-
trol . . . in case of unionization.... If there is any
implication that an employer may . . . take action
solely on his own initiative for reasons unrelated to
economic necessities and known only to him, the
statement is no longer a reasonable prediction based on
available facts but a threat of retaliation based on
misrepresentation and coercion ... .
Similarly, Helfnch 's statement to Hale that people who
supported the Company in the election would have a
future with the Company constituted an unlawful promise
of benefits in order to wean employees ' support away from
the Union . 14 Although nothing concrete was promised to
Hale, Helfnch 's remark to him did not detract from the
necessary tendency of the statement to cause employees to
expect better terms of employment which might make
union representation unnecessary . As the Board stated in
Reliance Electric Company, 191 NLRB 44, "such cautious
language , even refusal to commit Respondent to specific
corrective action, does not cancel the employees ' anticipa-
tion of improved conditions if the employees oppose or
vote against the unions."
I also find that Helfrich's questioning employees regard-
mg their union sentiments in the context of the other
remarks he made to them constituted unlawful interroga-
tion. "When a supervisor with expressed anti-union
sentiments asks an employee about his union affiliation
and the union sympathies of his fellow workers , there is
going to be a most natural coercive effect on the
questioned employee ." N.LRB. v. Louisiana Manufactur-
ing Company, 374 F .2d 696 , 700 (C.A. 8, 1967). Further
exacerbating the unlawful impact of the interrogation is
that it occurred so close in time to the election . Regarding
interrogation in such circumstances, the Board has stated:
We are reluctant to dismiss as trivia any interrogation
of employees as to how they intend to vote in a pending
representation election. Such conduct tends to under-
mine the very purpose of a Board-conducted election,
i.e., the opportunity for an employee to cast a secret
ballot without the necessity of publicly declaring his
position toward a proposed bargaining representa-
tive.15
Burdick also is alleged to have engaged in unlawful
interrogation. The evidence adduced by General Counsel
in this regard is undenied. Anthony Velotta testified that
on Saturday, April 7, 4 days before the election, Burdick
asked him how he was going to vote. Velotta answered that
he had not made up his mind. During the conversation
Burdick also said to Velotta that a union is not good for a
small company because should there be a strike the
Company made unlawful promises of benefits , Hale's testimony with
respect to the subject was substantially corroborated by Stephen Helfrich
In the circumstances, it is appropriate in this Decision to make findings
concerning the promise of benefits made by Helfrich as the matter was fully
litigated at the hearing.
15 Clark Punting Company, Inc., 146 NLRB 121, 122.
HELFRICH VENDING, INC.
Company would lose its accounts as the vending machines
would not then be serviced.
Daniel Hale testified that approximately 2 weeks before
the election Burdick asked him how many drivers would
vote for the Union. Hale replied that possibly more were in
favor of the Union than were against it . Two or three days
later Burdick joined Hale while the latter was finishing his
lunch . During their conversation , Burdick asked Hale how
he felt about the Union . Hale responded that there were
good points and bad points to both sides. These inquiries
by Burdick regarding the voting intentions of employees
with whom he was speaking and their knowledge of the
voting intentions of other employees in the context of "an
atmosphere of restrained but clearly evident disapproval of
a union" constitute unlawful interrogation within the
meaning of Section 8(a)(1) of the Act.16
The final allegation of the complaint relates to alleged
surveillance . During the period that the polls were open on
April 11, 1973, Stephen Helfrich , Adam Helfrich, and their
attorney stationed themselves in the warehouse area. The
layout of the premises is such that in order to vote the
employees had to pass through this area . During this time
James Stevens was offered a cup of coffee by Stephen
Helfrich, which Stevens declined, and Stanley Niemeier
was greeted by Stephen Helfrich who asked Niemeier if he
had voted . I do not agree with General Counsel that this
conduct constituted a violation of Section 8(a)(1). Howev-
er, such conduct does furnish grounds for setting aside the
election . In Performance Measurements Co. Inc., 148 NLRB
1657, 1659, the Board held that "the continued presence of
the Employer 's president at a location where employees
were required to pass in order to enter the polling place
was improper conduct not justified by the fact that for part
of the time he was instructing supervisors on the release of
employees for voting purposes . We find that by this
conduct the Employer interfered with the employees'
freedom of choice in the election ." 17 Further, in Michem,
Inc., 170 NLRB 362, the Board decided that any
conversation, regardless of the innocence of its content,
with prospective voters waiting to cast their ballots vitiates
the election . The Board explained "[t]he final minutes
before an employee casts his vote should be his own, as
free from interference as possible . Furthermore, the
standard here applied assures that no party gains a last
minute advantage over the other , and at the same time
deprives neither party of any important access to the ear of
the voter. . . . This rule is nothing more than a preventive
device to enforce the ban against electioneering in polling
places normally applied in political elections and in our
representation elections."
IV. THE REPRESENTATION PROCEEDINGS
A. The Objections
I have found that during the period of approximately 2
weeks before the election, which was held on April 11,
1973, the Employer engaged in various conduct constitut-
ing unfair labor practices. The nature of the conduct,
which is described above, is such to have had a coercive
16 L C Cassidy & Son, Inc v. N.LP-B., 415 F 2d 1358, 1361 (C A. 7,
1969).
603
impact on the employees and tended to prevent them from
making a rational election decision. Also, I have found that
the conduct of company officials in stationing themselves
in the warehouse during the time the balloting was taking
place so that employees going to and from the polling
booth were required to pass them, and in engaging
employees in conversation during this period, constitute
further interference with the conduct of the election.
Accordingly, I recommend that the election conducted
among the employees of the Company on April 11, 1973, in
the unit described above be set aside.
B. The Challenged Ballots
As I have found that Walter Burdick and Jack Miller are
supervisors within the meaning of Section 2(11) of the Act
I shall recommend that the challenges to their ballots be
sustained. In accordance with the Decision and Order of
the Board dated July 6, 1973, I shall recommend that the
ballot of Ronald Smith be opened and counted.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with the Company's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that the Company has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in these cases, I make the following:
CONCLUSIONS OF LAW
1. By threatening employees with reprisals should the
Union win a representation election, by promising the
employees benefits should the Union lose a representation
election, and by coercively questioning employees about
their union sympathies, their voting intentions, and the
voting intentions of other employees, the Company has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act
and thereby has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in these
proceedings, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
11 But see Colonial Lincoln Mercury Sales, Inc, 197 NLRB 54
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 18
Helfrich Vending, Inc., Evansville, Indiana, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that part-tune workers might
be discharged, or threatening employees with other
reprisals, should Local 215, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, win a represent-
ation election.
(b) Promising employees benefits if Local 215, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor
organization, should lose a representation election.
(c) Coercively questioning employees regarding their
union sympathies or voting intentions or the sympathies or
voting intentions of other employees.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its place of business in Evansville, Indiana,
copies of the attached notice marked "Appendix." 19
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by the
Company's representative, shall be posted by it immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS ALSO RECOMMENDED that the challenges to the
ballots of Walter Burdick and Jack Miller be sustained and
that the ballot of Ronald Smith be opened and counted.
IT IS FURTHER RECOMMENDED that, in the event that the
revised tally of ballots in Case 25-RC-5289 shows that the
Union has received a majority of valid ballots cast, a
Certification of Representative shall issue. However, in the
event that the revised tally of ballots shows that the Union
has not received a majority of the valid ballots cast, the
election conducted on April 11, 1973, shall be set aside and
a second election shall be directed in accordance with the
rules, regulations, and practices of the Board.
18 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 recommended 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.
19 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.""
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to discharge part-time
employees or threaten employees with other reprisals
should Local 215, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, win a
representation election conducted among our employ-
ees.
WE WILL NOT promise employees benefits should
Local 215, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization, lose a representation
election conducted among our employees.
WE WILL NOT coercively question our employees
regarding their union sympathies or their voting
intentions in any representation election , or regarding
their knowledge of the union sympathies or voting
intentions of other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act.
HELFRICH VENDING, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 614
ISTA Center, 150 West Market Street, Indianapolis,
Indiana 46204, Telephone 317-633-8921.