John N Hansen Co. Inc

National Labor Relations Board - Board Decisions

Mar 6, 1989

293 N.L.R.B. 63 (N.L.R.B. 1989)

JOHN N HANSEN CO
John N Hansen Co , Inc and International Long
shoremen 's and Warehousemen 's Union, Local
6 Cases 20-CA-21408 and 20-RC-16173
March 6, 1989
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On June 1, 1988, Administrative Law Judge
James M Kennedy issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, i and
conclusions only to the extent consistent with this
Decision, Order, and Direction and to adopt his
recommended Order, but not to adopt his recom-
mendation with respect to certain determinative
challenged ballots in the election in Case 20-RC-
16173
The Respondent engages in the manufacture and
distribution of toys and novelty items It operates a
warehouse facility in Millbrae, California, with a
small work force of employees who receive, pack-
age, and ship merchandise A representation elec
tion was conducted on September 9, 1987 The
vote was two for and zero against the Petitioner,
with six challenged ballots The judge, inter alia,
sustained determinative challenges to the ballots of
David Gillespie, Paulette Downing, and James
Blaising The judge found that Gillespie is a super-
visor within the meaning of Section 2(11) of the
Act, that Downing is an office clerical employee,
and that Blaising performs certain "managerial"
tasks and enjoys a special relationship with the
Hansen family, which owns and manages the Re-
spondent In its exceptions, the Respondent con
tends that Gillespie is merely an experienced ware-
house employee lacking any supervisory authority,
that Downing is a warehouse clerical performing
functions integrally related to the warehouse unit
i In the absence of exceptions we adopt the judge s findings conclu
sions and recommended Order in Case 20-CA-21408 and his recommen
dations to sustain the challenges to the ballots cast by Scott Edler and
Robert Zimmerli and to overrule the challenge to the ballot cast by Eli
Siva Uluikaepa in Case 20-RC-16173
The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
63
workflow, and that Blaising performs unit work
and has no special relationship to the Hansen
family We find merit in the Respondent's excep-
tions with respect to Gillespie and Downing Ac
cordingly, we shall overrule the challenges to their
ballots 2
Each warehouse employee is supervised by the
Respondent's president, John Hansen, with the as-
sistance of Office Manager Louise Herbeck
Hansen, with the assistance of Herbeck, makes all
decisions regarding hiring, firing, layoffs, raises,
benefits, and promotions Each warehouse employ-
ee works approximately 8 am to 5 p m, with an
hour lunch period and the same break periods All
employees are entitled to receive the same compa
ny provided fringe benefit program dependent on
seniority They share the same break and lunch-
room and restroom facilities located in the Re-
spondent's office area
David Gillespie has worked in the Respondent's
warehouse for 17 years About April 1986, the Re
spondent's former warehouse foreman, Chuck
Evans, retired 3 Hansen placed Gillespie in charge
of the warehouse and authorized Gillespie to print
business cards naming him warehouse supervisor
Hansen testified, however, that Gillespie was not
capable of assuming Evans' supervisory role and
that Hansen made all production and personnel de-
cisions
Gillespie principally "picks" merchandise off
shelves and delivers it by forklift to the packing
and shipping area He also commonly performs
other warehouse duties performed by rank and-file
warehousemen His monthly salary is $600 more
than junior warehousemen Chaika and Gouyd He
is often responsible for opening and closing the
warehouse He monitors employee attendance and
confirms hours worked by signing employee time-
cards Any problems concerning hours worked or
wages paid are resolved by Herbeck or Hansen
Gillespie consults with Hansen each morning to
determine the work that needs to be performed by
warehouse employees He possesses authority to
adjust work assignments within the limits of the in-
structions received from Hansen Because most of
the tasks involve routine picking, packing, ship
ping, receiving, and storing, close supervision is
3 We adopt the judge s finding sustaining the challenge to the ballot of
James Blaising Applying our community -of interest standard we ,on
elude that Blaising receives special job related benefits and favorable
working conditions sufficient to warrant his exclusion from the bargain
ing unit
For the reasons set forth in the judge s decision Member Higgins
would sustain the challenges to the ballots cast by Gillespie and Down
mg and he would certify the Petitioner
3 Evans had power to hire and fire and was responsible for the direct
supervision and management of the warehouse
293 NLRB No 8
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
often unnecessary The daily operation of the ware
house varies little, and the warehouse employees
rarely need to be assigned work or told what to
do They simply continue where they left off the
previous day
Gillespie "interviewed" employees Chaska and
Edler prior to the commencement of their employ-
ment Both individuals, however, had already been
tentatively hired by the Respondent Supervisor
Evans had recommended to Hansen that Chaika be
hired Thereafter, Chaika reported to the ware-
house and asked Gillespie if the Respondent was
hiring Gillespie said yes Chaika stated that he
would report for work the next day Similarly,
Herbeck phoned Edler and asked if he would like a
job Edler replied affirmatively and was told to
come in and fill out an application Edler inter-
viewed with Gillespie Gillespie took his applica
tion and asked whether he could drive a forklift
Edler said no Gillespie informed Edler that he
would be trained and asked him to report for work
the next Monday
The judge found that Gillespie possessed a cer-
tain amount of independent authority to direct the
work of employees, possessed the ability effectively
to recommend hire and tenure decisions, and was
held out as the supervisor in the warehouse Ac-
cordingly, the judge concluded that Gillespie was a
low-level statutory supervisor and sustained the
challenge to his ballot
Contrary to the judge, we conclude that the Pe-
titioner has not met its burden of establishing Gil
lespie's supervisory status Although the possession
of any one of the indicia specified in Section 2(11)
of the Act is sufficient to confer supervisory status
on an employee, the statutory authority must be ex
ercised with independent judgment on behalf of
management and not in a routine manner Hydro
Conduit Corp, 254 NLRB 433, 437 (1981) It ap-
pears that any assignment of work to or direction
of warehousemen by Gillespie is routine and does
not entail the exercise of independent judgment
Rather, Gillespie first consults with Hansen con
cerning the work to be performed and then passes
this information on to the other warehouse employ
ees Thus, Gillespie merely acts as a conduit for re
laying management instructions to other employees
performing daily, routine tasks Such authority
does not reflect supervisory status Dickinson-Iron
Agency, 283 NLRB 1029 (1987), Bowne of Houston,
280 NLRB 1222 (1986) Likewise, Gillespie's re-
sponsibilities concerning recording hours and sign-
ing timecards are routine or clerical in nature and
insufficient to establish supervisory authority Wa-
terbed World, 286 NLRB 425 (1987), Artcraft Drs
plays, 262 NLRB 1233, 1234-1235 (1982) Although may do so if the office clerical is unavailable
Gillespie interviewed Chaska and Edler before they
began work, the evidence fails to establish that he
made the hiring decisions or made effective recom-
mendations to hire these employees Cf Bowne of
Houston, supra at 1224 In these circumstances, Gil-
lespie's supervisory title on a business card and his
higher salary as a senior employee are merely sec-
ondary indicia of supervisory status Without more,
such evidence is insufficient to prove that he exer
cises independent judgment in performing any of
the functions set forth in Section 2(11) of the Act
In sum, we conclude that Gillespie is not a su-
pervisor within the meaning of Section 2(11) of the
Act Accordingly, we overrule the challenge to his
ballot
Paulette Downing has worked for the Respondent
for 11 years She is paid a salary of $1400 per
month She has no job title She spends most of her
time in the office area at her desk and workbench,
located approximately 5 feet from a warehouse
door She uses a computer terminal, typewriter,
and adding machine at her desk area to prepare
COD forms, export forms, and UPS tracers She
occasionally deposits checks at the bank
Although she performs no physical work in the
warehouse, she initiates the warehouse order-filling
process by converting customer orders to `picking
tickets " The "picking ticket" is either an invoice
or export form that apprises other warehouse em
ployees of the specific merchandise to be packaged
and shipped Downing either tracks down ware-
housemen to give them invoices and export forms
or she places the picking ticket in a basket in the
warehouse for pickup She is responsible for rout-
ing all orders and international shipments and pro-
viding warehousemen with routing instructions
When an export or COD order is packed and
ready for shipment, warehousemen contact Down-
ing to provide the necessary information for com
pleting bills of lading or totaling other shipping
documents Downing also interacts with warehouse
employees when dealing with returned and defec-
tive merchandise
Office Manager Herbeck and one undisputedly
nonunit office clerical also work in the office area
They are responsible for general office operations
including billing, payroll, answering the phone,4
and taking telephonic or mail purchase orders from
customers and placing them into the Respondent's
computer The nonunit clerical has no need to con-
tact warehouse employees and there is no evidence
that she participates in the warehouse order-filling
process
4 It is not part of Downing s job to answer the telephone although she
JOHN N HANSEN CO
The judge concluded that Downing is an office
clerical He therefore sustained the challenge to her
ballot We disagree
Downing performs duties integral to the func-
tioning of the Respondent's warehouse operations
She initiates the workflow for these operations and
is primarily responsible for preparing picking tick
ets for merchandise to be shipped, obtaining and
providing routing information to warehouse em
ployees, shipping merchandise overseas, tracing
lost merchandise, and preparing COD's She has
frequent face-to-face contact with warehouse em-
ployees when performing these duties Thus, her
duties are characteristic of those performed by a
plant clerical appropriately included in a ware
house unit Jacob Ash Co, 224 NLRB 74 (1976)
The fact that she works with forms in the office
area and utilizes a computer, typewriter, and other
traditional office equipment does not preclude her
inclusion in the warehouse unit S & S Parts Dis
tributors Warehouse, 277 NLRB 1293 (1985), Avon
Products, 250 NLRB 1479, 1486 (1980)
We conclude that Downing shares a close com-
munity of interest with the warehouse employees
based on her integral participation in the ware-
house order-flow process, the close proximity of
her work area to the warehouse, the daily contact
she has with warehouse employees, and the
common supervision and similar fringe benefits and
other terms and conditions of employment that she
shares with warehouse employees Therefore, we
shall overrule the challenge to her ballot
In accordance with the foregoing, we shall
remand this matter to the Regional Director with
the direction to open and count the still-determina-
tive ballots as to which challenges have been over-
ruled, including the ballots cast by employees
David Gillespie and Paulette Downing
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, John N
Hansen Co, Inc, Millbrae, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
DIRECTION
IT IS DIRECTED that the Regional Director for
Region 20, within 10 days of this Decision, Order,
and Direction, shall open and count the ballots cast
in the September 9, 1987 representation election by
David Gillespie, Paulette Downing, and Elisiva
Uluikaepa, shall prepare and serve on the parties a
revised tally of ballots, and shall issue the appropri-
ate certification
65
Donald R Rendall Esq, for the General Counsel
Jennifer J Walt and Mark J Levy (Littler Mendelson
Fastff & Tichy), of San Francisco , California for the
Respondent
William H Carder (Leonard Carder & Zuckerman), of
San Francisco California for the Charging Party/
Petitioner
DECISION
STATEMENT OF THE CASE
JAMES M KENNEDY, Administrative Law Judge This
case was tried before me in San Francisco California on
January 12, 13, and 14, 1988, on a complaint issued by
the Regional Director for Region 20 of the National
Labor Relations Board on October 9, 1987 1 On October
15 the Regional Director issued a Report on Objections
and Challenged Ballots in a representation election Case
20-RC-16173, and ordered the resolution of certain chal
lenged ballots to be consolidated for hearing with the
complaint
The complaint is based on a charge filed by Interna
tional Longshoremen s and Warehousemen s Union
Local 6 (the Union), originally filed on August 25 and
later amended on October 9 It alleges that John N
Hansen Co , Inc 2 (Respondent) has committed certain
violations of Section 8(a)(1) and (3) of the Act
Issues
The complaint asserts that Respondent discriminated
against its employee Scott Edler in two ways First it as
serts that Edler and others concertedly complained about
their wages and Respondent, in reprisal, reduced Edler s
hours Second it asserts that on July 27 in response to
union organizing Respondent discharged Edler discon
tinued overtime for two other employees and in Septem
ber denied a regularly scheduled pay increase to those
same two employees In addition the complaint alleges
that Respondent has violated Section 8(a)(1) of the Act
by informing employees that unionization would be
futile, by threatening them with layoff loss of benefits,
and business closure if they selected a union, and by tell
ing employees that pay raises had been denied because
they were attempting to bring in the Union
In the representation case, the principal issue is wheth
er the six individuals whose votes were challenged at the
representation election of September 9 were eligible to
vote
The parties were given full opportunity to participate
to introduce relevant evidence, to examine and cross ex
amine witnesses to argue orally and to file briefs All
parties have filed briefs that have been carefully consid
ered Based on the entire record of the case,3 as well as
my observation of the witnesses and their demeanor, I
make the following
' All dates are 1987 unless otherwise noted
2 Respondents name has been corrected to accurately reflect its true
corporate name
3 The General Counsels unopposed motion to correct the transcript is
granted
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
Respondent admits it is a California corporation
having a principal place of business in Millbrae, Califor
nia, where it is engaged in the manufacture and distribu
tion of toys and novelty items It further admits that it
annually sells and ships from its Millbrae warehouse
products, goods, and materials valued in excess of
$50,000 directly to customers outside California Accord
ingly, it admits, and I find it to be, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act
II THE LABOR ORGANIZATION INVOLVED
At the hearing the parties stipulated that the Union is,
and has been at all material times a labor organization
within the meaning of Section 2(5) of the Act, and I so
find
III THE UNFAIR LABOR PRACTICES
A Background and Participants
As described above, Respondent operates a 22 000
square foot, one floor warehouse in Millbrae Located in
between the receiving and shipping doors is a 1000
square foot office All corporate stock is owned by John
N Hansen its president His office is located at the
warehouse His wife is the corporate vice president
There is some limited testimony with respect to her
duties being principally performed at Respondent s
showroom in San Francisco Apparently she has few, if
any responsibilities in Millbrae The Millbrae office man
ager is Louise Herbeck She is a long time employee of
the firm and appears to be Hansen s principal assistant
She is assisted by at least two other clericals Paulette
Downing and another woman who is identified in the
record only as Lucy Downing voted a challenged ballot
in the election Also having a desk in the office area is
Robert Zimmerli, the sales manager he too voted a
challenged ballot
The complement of employees in the warehouse itself
includes Dave Gillespie who has been empioyed for 17
years and who currently appears to be in charge of the
warehouse, and James Blaising, formerly Hansen s broth
er in law Both Gillespie and Blaising voted challenged
ballots The last two challenged ballots are those of Eli
siva (Siva) Uluikaepa and dischargee Scott Edler At the
time of the events to be described, there were two other
warehousemen Al Gouyd and Rich Chaika In addition
there appear to have been two pa't time employees,
Mitch Cota and John Jaimerena They were both hired
on September 15, a week after the election a third part
timer, Tevita ( Dave ) Fanua, was hired on October 13
On August 11 the Regional Director approved a Stip
ulation for Certification Upon Consent Election in the
following bargaining unit
All full time and regular part time warehouse per
sons shipping and receiving clerks forklift opera
tors equipment operators order fillers and packers
employed by the Employer at its Millbrae Califor
ma, facility , excluding salespersons , office clerical
employees supervisors and guards as defined in the
Act
Pursuant to that agreement, an election was conducted
on September 9 resulting in two votes being cast for rep
resentation by Petitioner, no votes against and the six
challenged ballots
B Edler's Alleged Reduction in Hours
Scott Edler was hired in September 1986 as a part
time go fer" in the warehouse He was a high school
junior, approximately 16 years old He testified that he
was hired by Dave Gillespie, the so called warehouse su
pervisor He worked approximately 1 1/2 to 2 hours
each day after school during the school year During
holidays, he worked longer days, but does not appear to
have been obligated to work a full 8 hours, indeed his
starting and ending times were not specifically fixed
It appears that Respondent had a sales arrangement
with the J C Penney Company department store chain
which permitted Penney s to return products it had pur
chased from Respondent, but had been unable to sell at
retail The contract contained a deadline that Penney s
was required to meet to obtain credit for returns Al
though the deadline is not specifically set forth in the
record it seems to have been some time in June or July,
though it may not have been strictly enforced The Pen
ney s returns, as well as returns from other customers, all
required rework This meant the returned toys or
games had to be removed from their shipping box(es), in
spected, repackaged as necessary and returned to inven
tory It appears from the evidence that Jim Blaising was
primarily responsible for getting that job done To this
end Blaising usually had Edler assist him with the
rework Edler admits that he worked primarily on the
Penney s returns and concedes that they had ceased near
the end of his employment on July 31
When school let out in early June, Edler began to
work longer days The three timecards in evidence show
that his hours from June 15 through July 31 varied quite
a bit During the period June 15 through June 25 he
averaged approximately 7 hours per day, but had vari
able starting times ranging from 8 a in through 9 20 a in
During the 2 week period of June 26 through July 10
his daily average fell to approximately 5 hours per day
with starting times ranging from 9 a in to f p in Indeed
during this 2 week period his starting times were 10 45
am, 1040 am, 11 10 am, 1040 am 1015 am 1050
am, f pin 9am and 9 20 a m During his last 3
weeks of employment, his average hours increased to ap
proximately 6 1/2 hours per day and, except for 1 day,
they began between 9 15 and 9 30 a in
The complaint alleges that sometime in early June,
Edler Chaika and Gouyd concertedly complained to
Respondent regarding their wages hours and working
conditions and that on the same date Gillespie responded
by reducing Edler s hours of work
The testimony with respect to the allegation is some
what inconsistent There are at least three versions Al
though both Chaika and Gouyd had received a wage in
JOHN N HANSEN CO
crease in April when they completed what appears to be
a probation period they began discussing their need for
a wage increase Chaika testified that the employees de
cided they needed to see J Hansen about the matter and
Edler asked Hansen to come and speak with them When
J Hansen did so Edler asked him if he could help us
out by granting a wage increase J Hansen asked Gil
lespie if he knew anything about the request, Gillespie
replied he did not Then according to Chaika Hansen
looked at Edler and him, got close to them raised his
voice, and said, You guys are out of order If you have
any problems in the warehouse you are to go to your su
pervisor, Gillespie
Chaika said they almost immediately decided to ask
Gillespie if he would speak to Hansen for them Gillespie
agreed to do so and went into the office When he came
out a short time later, Chaika says, Gillespie reported,
Hansen said we would get raises in September-that he
gives raises in September According to Chaika a few
minutes later Gillespie told Edler that he was to cut his
hours down The latter testimony appears to have been
a private conversation On cross examination , Chaika
conceded that when Gillespie told Edler to reduce his
hours he was between 20 and 30 feet away from them
It is, therefore, unclear whether Chaika actually heard it
or whether he simply reported what he thinks he learned
of it later Chaika also testified on cross examination that
at the time the incident occurred, Edler was still attend
ing school and working only 1 to 1 1/2 hours per day
Chaika agrees that he never asked Hansen directly for
the raise but only enlisted Gillespie' s assistance
Gouyd testified that the entire matter arose because
Chaika s wife was expecting to deliver a baby shortly
He said the three discussed the fact that they each
needed more money and, as a result he and Edler went
to J Hansen s office J Hansen said he was busy, so
those two returned to the warehouse where Chaika
joined them Shortly thereafter Hansen appeared and
Chaika not Edler, asked Hansen for a raise, but Hansen
angrily' told them to go through Gillespie Later the
three met with Gillespie and asked him to speak to
Hansen for them According to Gouyd, after Gillespie
went into the office he returned, saying that employees
would get a raise in September like always He says it
was a day or 2 later when he heard Gillespie tell Edler
he would have cut down his hours, agreeing that Gilles
pie made no reference to the earlier request for raises
when he told Edler to cut his hours
Edler testified that he remembered a conversation in
volving himself Chaika Gouyd, and Gillespie in early or
mid June He says Chaika asked Gillespie to ask Hansen
for a slight wage increase and Gillespie agreed When
Gillespie returned from the office he said there would
be 'no wage increase and that Edler was to reduce his
hours Edler says that after school had let out he had
gone to `full time" and on hearing Gillespie s directive
reduced his own hours He also admits Gillespie told him
sometime in July that he needed to have a set sched
ule When Gillespie did so he did not mention either
the request for a wage increase or union activity
Respondents witnesses deny that anyone ever directed
Edler to "reduce his hours, but they do assert that they
67
asked that his hours be regulated The regulation
however, did not occur until mid July as borne out by
the timecards
It is true that Hansen himself testified to a certain
amount of annoyance over the request for the raise He
remembers Gouyd and Edler had come inside the office
area and Edler had asked to see him about a raise At the
time according to Hansen he had visitors in the office
and Edler interrupted him Although to himself he ques
tioned a 17 year old coming into the office for a raise, he
simply told Edler to go back to the warehouse He says
he did not even speak with Gouyd at that point He re
members Gillespie later came in to ask for a wage in
crease for Gouyd and Chaika but says that conversation
occurred in late July and Edler was already gone 4
Gillespie testified that sometime in June Gouyd and
Chaska asked him to intercede with Hansen to get a raise
for them and he agreed to do so He says Hansen told
him he did not give raises at that time of year and so he
reported back that they would not be getting raises now
Gillespie further testified that he never spoke to Edler
about his hours at all and that during Edler s last 3
weeks his hours were regulated by Louise Herbeck Her
beck testified that she noticed that Edler s starting times
had become quite erratic and that it was therefore neces
sary to regulate them
Based on the foregoing evidence, I am unable to con
elude that Edler s hours were reduced because of any
concerted effort to obtain a wage increase First of all it
appears that even though the three of them discussed
their desire to have a wage increase their activity was
not concerted nor was it perceived as such by Hansen
When Edler went into the office he simply asked Hansen
if he could talk to him about a wage increase , but was
silent with respect to whose increase he wished to dis
cuss Hansen thought he was asking only on his own
behalf It is true that Gouyd was standing nearby but
Hansen, annoyed that he had been interrupted, simply di
rected Edler to go back to the warehouse and to go
through Gillespie He did not concern himself with
Gouyd s silent presence Although the Chaika and
Gouyd versions are similar and describe something akin
to concerted activity by them Edler s testimony dis
tances himself from them Because he was the principal
victim under the General Counsels complaint one
would think that he would include himself in their con
versation with Hansen in the warehouse, but he did not
Instead all he could testify to was their request for Gil
lespie s assistance Thus under this version Hansen knew
only that Edler had wanted to talk about a raise and that
Gillespie had later asked for a raise for Gouyd and
Chaika Hansen s reply was simply to advise Gillespie
that he did not give raises at that time of year and it was
essentially none of Gillespie s business
That being the case, there is no reason for either
Hansen or Gillespie to have decided to reduce Edler s
hours Edler simply was not the focus of a request for a
raise because he never pursued it further and there is no
reason why any retaliation would be directed toward
4 Edler s last workday was July 31
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him Even if there was a retaliation against him it would
have been as a result of the annoyance Hansen perceived
when Edler interrupted him, an apparently unconcerted
act
Moreover, the timecards are not conclusive regarding
whether Edler actually reduced his hours It is true that
during the period from June 26 through July 10 his
hours fell somewhat, but the drop is hardly significant
given the fact that his hours had been erratic since the
end of the school year Indeed, at least one entire day
was lost to Independence Day during that second 2
week period Besides, during the first 2 week period, his
hours had dramatically jumped as he switched from an
after school job to what he called full time work In
actuality of course, Edler was not a full time employee
He never worked a full 40 hour week during his entire
employment
Indeed in observing Edler testify, I noticed that he
had difficulty in perceiving and describing his employ
ment circumstances generally This may be due to his
youth and inexperience, but he had a tendency to exag
gerate and his observations cannot be accepted at face
value
In any event, I am unable to conclude that counsel for
the General Counsel has met his burden of proof here
He has asserted that the employees engaged in a concert
ed request for a wage increase I have found however,
that even if this request can be characterized as concert
ed Hansen did not and could not have perceived it as
such Moreover there is no persuasive evidence that the
Employer responded by retaliating against any employee
including Edler, for having done so Accordingly, I shall
recommend dismissal of this allegation of the complaint
C Edler s Discharge
According to Rich Chaika, sometime in late June he
began discussing with Gouyd and Edler the possibility of
going to a union for representation He says he also
asked Gillespie if he was interested, but Gillespie replied
that he was going on jury duty and would have to wait
until July Gillespie agrees that at some point Chaika and
Gouyd asked him if he was interested in being represent
ed by a union, but says he simply replied he was not and
did not take them seriously Because of that perception
he did not tell anyone in management of Chaika s inter
est in union representation
Chaika continued to pursue the matter and eventually
arranged a meeting with Union Business Agent David
Schermerhorn On July 17 Chaika Gouyd and Edler all
signed authorization cards
In the meantime, as Edler admits, sometime in July
the J C Penney returns stopped Furthermore, he testi
feed that he believed he was entitled to a vacation (ap
patently from something Gillespie had said but which
no one from the front office ever confirmed) According
ly, he made a decision in July that he wanted to go to
Florida for a week He told either Gillespie or Herbeck
of his desire, and Hansen became aware of it Further
more it appears from company records sales in July
were on the decline Ultimately the July sales records
were the lowest they had been since 1983 and were well
under the 1985 and 1986 figures It should be observed
here that in 1986 when Respondent also employed two
high school students both were laid off as work became
slow
Herbeck testified that Hansen was scheduled to attend
a gift show in Los Angeles that began on July 18 She
testified that shortly before that she had discussed
Edler s situation with Hansen She reviewed the daily
sales figures with him, the fact that Edler wanted to go
to Florida in August the virtual cessation of the J C
Penney s returns and the fact that there was not very
much work for Edler to perform Both she and Hansen
say they made a decision at that time to let Edler contin
ue to the end of the month and to lay him off at that
time She directed Gillespie to so inform Edler Gillespie
says he did so in mid July
Edler denies Gillespie s testimony saying he was not
informed of his layoff until after lunch on July 27 when
he was told that his last day would be Friday, Jul} 31
On July 27, at approximately 9 30 am, Business Rep
resentative Schermerhorn, together with another union
representative Newman, went to Respondents Millbrae
office Schermerhorn met with Hansen and advised him
that a majority of his warehouse employees had signed
union cards and demanded that Respondent recognize
and bargain with the Union in a warehouse unit Hansen
declined saying that he wished to consult with an attor
ney The three parted amicably and as they left Scher
merhorn asked Hansen if he would transmit a message to
the employees that he wanted to meet them at a nearby
restaurant for lunch Hansen agreed to do so
Shortly after Schermerhorn left Edler says, Hansen
came into the warehouse and spoke to all the warehouse
employees He says Hansen specifically asked him if he
was responsible for bringing in the Union Edler said he
was not Hansen then asked Well who is responsible9
Edler says Chaska replied, We all are Chaika corrobo
rates Edler on the point Edler says it was at that stage
that Hansen advised the employees that Schermerhorn
wanted to meet them all for lunch Chaika says Hansen
then asked Gillespie to come to the office and that as
Gillespie departed he turned and said I told you you
assholes no union
On Gillespie s return Chaika says he told them John
[Hansen] says he wants you to know if you get a union
there will be no overtime you will be laid off when bust
ness is slow and the company won t pay any benefits
You 11 have to do that yourself
Gouyd's version is a little different He says that after
Schermerhorn left the office that morning Hansen came
to the warehouse and spoke with the three of them He
says Hansen pointed his finger at Edler asking if he had
started this union bullshit When Edler did not reply,
Hansen then asked who else was involved Chaika and
he both replied Both of us Gouyd says Hansen then
said As soon as it slows down you guys are going to be
laid off "
After the three had lunch with Schermerhorn, they re
turned to work Edler says he noticed Gillespie being
called to the office When Gillespie returned he told
Edler that his last day was to be Friday [July 31] Edler
remembers Gillespie told him he was being laid off be
JOHN N HANSEN CO 69
cause work was slow On cross examination Edler
agrees that Gillespie did not mention the Union as being
a reason for the layoff
Chaika testified that he heard Gillespie tell Edler that
he was being laid off and that Edler asked if he was
fired According to Chaika , Gillespie replied that he did
not think Edler would be back Gouyd similarly testified
that after Gillespie advised Edler of the layoff, Edler
asked if he would get to come back or be part time, but
Gillespie simply shrugged and walked away
About a week later , according to Chaika he and
Gouyd asked Gillespie why Edler had been discharged
Although Chaika started to give testimony with respect
to this conversation he backed away claiming that he
did not remember it very well He was pressed by the
General Counsel to assert that Gillespie had admitted
that the Union was a factor in Edler s discharge Howev
er, Chaika would not do so, finally saying that Gillespie
only told him (though he does not remember it very
well) that Edler was fired because business was slowing
down
Contrariwise , however , Chaika says that at the time of
Edler s discharge it looked to him as if business was in
creasing Chaika even asserts that Gillespie had said on
several occasions that 1987 was one of Respondent s
best years in terms of sales Assuming that Gillespie
said it which Gillespie denies it is unclear how Gillespie
would have known He had no access to Respondent s
financial records and, although a long time employee
had only been the head of the warehouse for about a
year Moreover , Hansen did not regard Gillespie as capa
ble of performing higher management functions and did
not take Gillespie into his confidence with respect to
business matters Indeed it seems unlikely that Hansen
took any Millbrae employee into his confidence with re
spect to financial matters except for Office Manager Her
beck Because Gillespie had no access to this informa
tion , it is unlikely that he would have told Chaika any
such thing I am, therefore dubious of Chaika s testimo
ny in this regard and find that Gillespie did not ever tell
Chaika that Respondent was having a good year at the
time Respondent discharged Edler
Regarding the Edler Chaika and Gouyd testimony to
the effect that Gillespie told Edler for the first time on
July 27 that he was being laid off again I am somewhat
skeptical I do think Gillespie told Edler that he was
being laid off on that date but I do not believe that it
was the first time that he had done so Both Herbeck and
Gillespie appear to be quite credible in their testimony
that a decision had been made in mid July and that Gil
lespie had informed Edler then that his job would cease
at the end of the month Clearly Respondent had a past
practice of letting the high school students go when
work became slow, usually shortly after school let out
Additionally , it is quite apparent , even from Edler s own
testimony , that the work had become slow he was
having difficulty maintaining regular hours (quite possi
bly because of the lack of available work) Furthermore
his announced desire to leave work in August for a week
to go to Florida could only have weakened his already
insecure situation
Edler s lack of perception with respect to what his
benefits and duties were leads me to conclude that his
ability to perceive circumstances has yet to develop He
believed for example, that he was a full time employee
and entitled to the vacation rights of a full time employ
ee However he was always only a part time employee,
not entitled to any fringe benefits that would inure to a
regular full time employee He was not entitled to a va
cation and even if he was, it would not have been given
to him until the Christmas New Year s week during the
following winter , which all employees were required to
take annually as the Company was closed during that
week
Furthermore , Edler appears to have a certain amount
of willingness even if not engaging in outright deceit to
allow unclear circumstances to persist For example he
told Herbeck that his summer school hours were to be
from 8 to 10 am Accordingly she let him report to
work between 10 and 10 30 am On one occasion his
timecard even shows he was off because of school How
ever he testified that his summer school hours were ac
tually 8 to 10 p in and never interfered with work
Indeed , he was not straightforward with me about that
circumstance either
Therefore , I am compelled to conclude that Respond
ent was not motivated to discharge Edler because the
Union had appeared on the scene in July There is, of
course no doubt that Schermerhorn made his demand on
July 27 and later that same afternoon Edler was remind
ed that his last day would be July 31 Nonetheless I am
convinced that the decision to let him go had been made
approximately 10 days before and that he had been so in
formed It may be true that Gillespie was aware of Chai
ka s union activity in late June and early July but it does
not follow that either Herbeck or Hansen would have
pointed their finger at Edler, even assuming Gillespie
had informed them of Chaika s interest In fact on July
27 when under Chaika s version , Hansen confronted
them in the warehouse, Hansen asked who had been re
sponsible , suggesting that he did not yet know When he
asked Edler if it was he, Edler denied it Even if Hansen
concluded as a result of the Chaika Gouyd answer that
they were all responsible it would not change the fact
that the decision to lay Edler off had been made 10 days
before
Thus even assuming that the evidence makes out a
prima facie case with respect to Edler s having been dis
charged for having been involved in union organizing it
appears the actual timing of the decision to discharge
him was earlier than Hansen s actual knowledge Beyond
that Respondent has rebutted the General Counsels evi
dence with respect to motivation Respondent has hired
high school students in the past and has let them go at
approximately the same time of year as Edler It did so
here on the basis that there was insufficient work for
Edler to perform Indeed the decision was no doubt
quickened by Edler s request to take a vacation in early
August Accordingly , I conclude that the evidence is in
sufficient to show that Respondent discharged Edler in
violation of Section 8(a)(3) of the Act
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D Alleged Restraint and Coercion
The complaint alleges that Hansen s and Gillespie s
July 27 discussions constitute violations of Section
8(a)(1) Specifically , the complaint asserts that J Hansen
improperly interrogated employees about their union
sympathies and that Gillespie told them union represen
tation would be a futile act that would result in their
layoff and a loss of benefits
Chaika, Gouyd and Edler all testified that on that
day shortly after Schermerhorn left the premises, J
Hansen came to the warehouse and asked who had start
ed the Union Edler denied it was he Gouyd and Chaika
said either that it was all of us' or both of us Hansen
does not deny their testimony , saying only that he told
them of Schermerhorn s request to meet them for lunch
In that circumstance I am compelled to find that
Hansen did interrogate employees regarding their union
organizing activities I further find that it was unneces
nary for him to have done so and therefore was coercive
in nature The question violated Section 8(a)(1) as an im
proper interrogation
Regarding Gillespie s supposed statements Chaska says
that as Hansen returned to his office , Gillespie turned
and said , I told you assholes , no union , then following
J Hansen into the office Chaska says that upon Gilles
pie s return to the warehouse Gillespie told all three,
John [Hansen] wants you to know that if you get a
union in , there 11 be no overtime, you will get laid off
when it [is ] slow, and the company would not pay you
benefits, you ll have to pay it yourself ' Gillespie denies
saying any such thing and neither Gouyd nor Edler cor
roborate Chaska here Gouyd does claim that J Hansen
rather than Gillespie said As soon as it gets slow, you
guys are going to be laid off Assuming that this dis
crepancy is simply a matter of confusion , it does not ex
plain Edler s failure to corroborate Here , however,
Hansen specifically denies saying such things either to
Gillespie or to the employees Gillespie on the other
hand is silent
Although I am somewhat troubled by the strength of
Chaska s version (not really corroborated by his cowork
ers), Gillespie s failure to deny is significant According
ly I find Gillespie did make the remarks I have con
eluded elsewhere in this decision that Gillespie is a low
level supervisor That being the case, Respondent is re
sponsible for his statements Nonetheless I also find that
they did not actually represent a company policy Han
sen s denial that he said such things appears credible and
he had not yet had time to seek advice about how to
behave during an organizing drive It would appear
therefore , that Gillespie 's statements were made without
benefit of any knowledge of what Respondents policies
actually would be in the event of unionization Indeed,
his claim that employees would have to pay for existing
fringe benefits (life insurance health insurance , or retire
ment) themselves appear so wild (and probably contrary
to information provided by Schermerhorn) that it would
not readily be believed It is obvious to me that Gillespie
was over reaching Nonetheless , the statements are coer
cive within the meaning of Section 8(a)(1) even if they
do not accurately reflect company policy Employers are
responsible for the coercive remarks of their supervisors
even low level incumbents like Gillespie
E The September 28 Confrontation
On September 28, approximately 2 1/2 weeks after the
inconclusive Board election Chaika and Gillespie had
some sort of altercation Without attempting to ascertain
who or what caused it , it appears that Gillespie in anger,
had struck a cardboard box which fell on Chaika but did
not injure him Upset over the incident , and believing
that Gillespie had deliberately caused the box to strike
him Chaika left the premises and telephoned both the
police and the Union The police met him at a nearby
phone booth but refused to take any further action In
the meantime , Business Agent Schermerhorn and his as
sistant Newman went to the scene
On their arrival at the facility , according to Schermer
horn, he observed Gillespie in front of the building driv
ing a forklift He also saw Chaika The three had a con
versation in which Gillespie admitted hitting the box that
had fallen on Chaska , but asserted he had not hurt
Chaska and it was an unintended result of his anger At
that point according to Schermerhorn Hansen came
outside as did Gouyd , but from another direction
Schermerhorn explained to Hansen that he had come in
response to Chaika s telephone call He and Hansen then
had a fairly extensive conversation Hansen asserted that
the Company had never had trouble before the Union
had come on the scene and contended that the ware
house employees were working at half speed Scher
merhorn explained that one of the problems was Sanford
Rudnick , the individual whom Respondent had hired to
represent it during the election He said Rudnick was not
interested in solving the representational question but
wanted to stretch it out As a result he said the employ
ees were becoming frustrated According to Schermer
horn Hansen responded I ve been in business for 38
years We have never had a union and I 11 shut this place
down and close the doors before I allow a union to
come in here Schermerhorn says Chaska and Gouyd
were both present when Hansen made the statement
Both Chaika and Gouyd corroborate Schermerhorn s
version In addition they say Hansen told Schermerhorn
that the employees were just trying to make trouble
J Hansen agrees that a conversation very similar to
the one described by those three did occur He says on
that day he had a conversation with Schermerhorn in
front of the company office door dealing with the Gilles
pie Chaska altercation He says, however, that no one
else was present and no employee heard the conversa
tion He says he told Schermerhorn he would shut his
business down if I have to have those two guys [Chaska
and Gouyd] telling me what to do Recognizing his am
biguity he explained he did not mean the two union offs
cials who were standing by He said the entire conversa
tion had occurred because there had been a fight involv
ing an employee and Gillespie and he had had to sepa
rate them
The conversation between Schermerhorn and Hansen
occurred right outside the plate glass window next to
Louise Herbeck s desk She testified that she observed
JOHN N HANSEN CO
the conversation though she could not hear anything
being said She says she saw no employee nearby and
does not believe there were any However from her
angle she could not have seen anyone standing near the
building Gillespie testified that he too , observed Hansen
and Schermerhorn talking outside that day saying he was
there working He does not believe Hansen saw him He
claims neither Chaika nor Gouyd was still there although
each had been shortly before
Based on demeanor and the probabilities here, I con
elude that Chaika and Gouyd would not have returned
to work once they had spoken to Schermerhorn and
Schermerhorn began talking to Hansen Schermerhorn
was their representative and it is most improbable that
they would have been so incurious regarding what he
was going to do for them that they would have left the
scene and returned to work Undoubtedly they stayed
outside together with Gillespie to watch what was about
to happen Furthermore, based on the cumulative testi
mony of Schermerhorn , Chaika , and Gouyd and the fact
that J Hansen did not testify in detail about what was
said , I conclude that their version accurately describes
what occurred I therefore find that in the presence of at
least two employees , J Hansen told Schermerhorn that
he would close his business before he allowed a union to
become the representative of its employees
F Alleged Loss of Scheduled Overtime and Scheduled
Pay Increases
According to the complaint , on or about July 27, Re
spondent discontinued scheduled overtime for warehouse
employees and on September 1 denied regularly sched
uled pay raises to Chaska and Gouyd Regarding the al
leged loss of scheduled overtime as of July 27, probative
evidence is nonexistent The only time that overtime
might have been considered to be scheduled was 6 weeks
later when Respondent hired Cota and Jaimerena on
September 15 to perform essentially a skeleton second
shift as the Christmas season shipping began and as the
warehouse began to fall behind Although both Chaika
and Gouyd testified that they had worked overtime in
1986, the extent of that overtime is not shown on this
record It is true that the entire payroll for 1987 is in the
record , but it does not show any 1986 payments
There is also evidence in this record , above subpara
graph D that Gillespie on July 27 told Chaika and
Gouyd that they would not be getting any overtime be
cause they had joined the Union I have previously
found Gillespie s threat does not accurately describe Re
spondent s actual policy because no policy had then been
formulated Thus his threat is not probative of what Re
spondent s actual intentions were in September More
over , it appears that the employees on the second shift
were part time and paid at a lesser rate than either
Chaika or Gouyd It is obviously more economical to
hire part timers to cover excess work than to pay time
and a half after 8 hours5 to other employees This evi
5 As required by state law
71
dence does not lead to the conclusion that the additional
work was discriminatorily denied Chaika and Gouyd
Proof of that conclusion requires more evidence than has
been presented here Instead , it leads to the conclusion
that the decision was based on economics
A more difficult question is the allegation that Re
spondent denied Chaika and Gouyd regularly scheduled
wage increases in September It appears to have been
Respondents standard practice to grant wage increases
to the entire staff every September Indeed everyone on
the payroll except for Chaika and Gouyd received a
wage increase in early September Moreover , in June,
when they had asked Gillespie to intercede on their
behalf for additional wages, he came back to tell them
that Respondent gave its wage increases in September
Even so, in February both had passed what appears to
have been a probationary period when they were con
verted from straight hourly wage to a semi monthly
pay basis Their initial $5 hourly rate converts to $800
per month , their change to semimonthly salary resulted
in a $900 per month rate an increase of $100 Also at
that time they became eligible for health insurance, sick
leave, paid vacation , life insurance , pension plan , dental
coverage and the health club privilege Those were all
significant benefits they had not enjoyed previously
J Hansen explained that Respondent did not give
Chaika and Gouyd September wage increases because
they had already been given a wage increase in February
and the Company only gives one wage increase each
year It does not appear that any other employees got
more than one wage increase during 1987 , although in
1986 Gillespie got two However the first appears to
have been in April 1986 because of a promotion when he
replaced the long time warehouse supervisor when that
individual retired That would not appear to have been a
routine circumstance The second was in September
There is no evidence concerning how Respondent treat
ed new hires in past years with respect to whether they
received both a wage increase on completion of the
probation period and the routine wage increase in Sep
tember and J Hansen's testimony regarding that policy
stands unchallenged
Chaika did testify that in late June when Gillespie
spoke to Hansen on their behalf that Gillespie came back
saying Hansen had said We would get raises in Septem
ber-that Hansen gives raises in September Similarly,
Gouyd quoted Gillespie as saying that they would get
their raise in September like always Gillespie testified
that in June he had spoken to Hansen who had told him
that he did not give raises at that time of year He re
ported that to Chaika and Gouyd saying that J Hansen
warn t giving raises now Only Gouyd s recollection
would clearly evince a promise to grant a wage increase
in September Chaika started to do so, but then tempered
it The other two versions simply set forth the fact that
raises usually came in September They did not take the
next step to say that September raises were a certainty
It is true , I think , that J Hansen exhibits certain tradi
tional antiunion attitudes One of these was exhibited
when he said he would close his business before he had
to deal with the Union That occurred in late September
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shortly after the pay rates were changed Similarly,
Gouyd quotes Hansen (though it was more likely Gilles
pie) as saying on July 27, shortly after Schermerhorn s
demand for recognition As soon as it slows down you
guys are going to be laid off
However, neither of these two threats ever material
ized Respondent has neither closed its business nor re
peated that threat, nor has anyone been discriminatorily
laid off (Edler s layoff notwithstanding) It seems there
fore that whatever animus J Hansen holds it has not
been carried beyond mere words
Even so Respondents announced reason for not
granting wage increases to Chaika and Gouyd leaves at
least one question unanswered that no party chose to in
quire about Does Respondents policy not to grant them
a wage increase in September because they had received
one in February mean that they would not receive an
other until September 1988' That appears to be the case
If so, it seems to be a harsh result of the one pay raise
per year policy Yet the General Counsel never inquired
concerning whether that had happened in the past to
other new hires Absent a showing that these two indi
viduals were treated differently than other new hires, I
am compelled to conclude that the General Counsel has
failed to show that Respondents failure to give Gouyd
and Chaika a wage increase in September 1987 was dis
cnminatonly inspired Accordingly, I shall recommend
that this allegation in the complaint be dismissed
G The Rudnick Threat
Finally , the complaint was amended at the hearing to
allege that Respondents consultant Sanford Rudnick,
had told employees in a December meeting that they had
been denied wage increases because of the Union Re
spondent denies Rudnick ever made such a statement it
also denies that Rudnick conducted any meeting whatso
ever with employees in December
Chaika testified that at a meeting in December (only a
month before this hearing ) attended by the entire staff,
Rudnick began by wondering why production was so
low Chaika says Rudnick accused both Gouyd and him
of not getting the work done That resulted in a discus
sion of production problems in general Chaika says that
at the end of the meeting Rudnick told them, One
reason you didn t get your raise was because of the
Union On cross examination Chaika conceded that his
memory regarding to the date may be wrong
Gouyd also testified the meeting occurred in Decem
ber and recalls Rudnick saying Hansen had spent over
$5000 on legal advice and the employees were not going
to get their raises because they were trying to get a
union in "
Rudnick was not called to testify However Respond
ent did ask several individuals who attended the meeting
about their recollection Jim Blaising testified that he re
members a meeting occurring sometime in November
and says Rudnick characterized it as a clear the air
meeting When he was asked whether raises were dis
cussed during that meeting he testified Not to my
knowledge Similarly , Paulette Downing testified that
she could not recall any meetings with Rudnick after the
September 9 election Gillespie appeared somewhat con
fused by the question because he testified that Rudnick
conducted approximately three meetings during which
he read letters to the employees then said that they
occurred after the election
Plainly it is unlikely that Rudnick whose duty was to
persuade employees to vote against representation
would have been reading letters to the employees after
the election Undoubtedly, Gillespie meant before the
election Nonetheless, Gillespie testified that he did not
recall Rudnick saying anything about raises More specif
ically he was unable to recall Rudnick saying that raises
had been denied because of the Union
The General Counsel added this allegation at the hear
ing and it appears to be something of an afterthought
Frankly, given Chaika s lack of specific memory, the im
probability that Rudnick would have conducted such a
meeting more than 3 months after the election and the
failure of others to recall it it seems unlikely to have oc
curred Moreover, the two versions testified to by
Gouyd and Chaika are not fully consistent Gouyd testi
fled colorfully that Rudnick had said Respondent had
spent over $5000 on legal advice Yet Chaika did not
testify to that rather dramatic introduction to the topic
It appears to me that a colorful remark such as that re
ported by Chaika would have stayed in Gouyd s mind
for at least a month if it had actually occurred More
over, the testimony on the other side is consistent with
the kind of testimony seen when one is attempting to
prove a negative i e that something did not occur It is
not uncommon for individuals in denying something oc
curred to characterize it in I don t recall or not to
my knowledge terms when in fact they are doing their
best to recall cannot, and conclude that it did not occur
yet still harboring an element of uncertainty
If Rudnick did conduct a postelection meeting of em
ployees it undoubtedly would have been closer to the
election than December And if as Blaising says it was a
clear the air meeting it may well have had to do with
the hard feelings seen to have arisen between Chaika and
Gouyd on one side and Blaising and Gillespie on the
other Furthermore, if production was being affected by
those hard feelings such a discussion could have helped
assuage them It does not follow that having accom
plished that Rudnick would have then antagonized the
warehouse crew by telling them their September wage
increases had been denied because of the Union
Candidly, I am of the opinion that the Chaika Gouyd
testimony here is an after the fact fabrication designed to
bolster the claim for a lost wage increase Gouyd at the
very least exhibited a strong bias against Hansen, accus
ing him of a bald faced lie in another context and
Chaika was in many respects unimpressive I conclude
therefore that this allegation is unproven and should be
dismissed
IV THE CHALLENGED BALLOTS
As noted in the introductory section of this decision,
the Regional Director has issued an order consolidating
the unfair labor practice hearing with a hearing on the
validity of the challenged ballots cast by six employees
in the representation election Those voters were Scott
JOHN N HANSEN CO
Edler, David Gillespie, James Blaising Robert Zimmerli,
Paulette Downing, and Elisiva Uluikaepa Each of these
individuals will be discussed seriatim
Scott Edler Respondent challenged the ballot of Scott
Edler on the ground that he was no longer an employee
The Union contends that he was unlawfully discharged
before the election and is therefore an eligible voter I
have concluded, above, however, that the General Coun
sel has failed to prove that Edler was discriminatorily
discharged on July 31 as alleged Furthermore, there
does not appear to be any reasonable expectancy of his
rehire Accordingly, I recommend that the challenge to
Edler s ballot be sustained
David Gillespie Gillespie is a long time warehouse em
ployee having worked for Respondent for some 17 years
Until early 1986 the warehouse foreman had been an in
dividual named Chuck Evans It is undisputed that
Evans was a statutory supervisor who had the power to
hire and fire and who was responsible for the direct su
pervision and management of the warehouse At the time
of Evans retirement, Hansen put Gillespie in charge of
the warehouse However, Hansen denies that Gillespie
was given the same authority as Evans and asserts that
Gillespie did not have the capabilities that Evans pos
sessed
Although I tend to agree that Gillespie was not as ca
pable as one might expect it is clear that he is a supervi
sor within the meaning of the Act and has been since
April 1986 His monthly salary is approximately $600
more than Chaika's and Gouyd s, he is responsible for
opening the warehouse in the morning and closing it in
the evening, he keeps track of the employees hours by
approving their timecards, and he checks their attend
ance It is true that he consults with J Hansen in the
morning regarding certain jobs that need to be per
formed Even so he appears to have the authority to
adjust work assignments as necessary to accomplish the
tasks to be performed that day I think it is true howev
er that many of the tasks are routine and hands on su
pervision is often unnecessary
Nonetheless Gillespie was the individual who assigned
Edler his duties for the day, often assigning him to work
for Blaising He also told Chaika and Gouyd what their
daily duties were to be-i e whether they were to pack
the product for shipping or to unload trailers in the yard
Furthermore, he had a significant role in the hiring
interviews of Chaska and Edler, although it appears that
both Chaika and Edler had already been tentatively
hired by the Company through unclear means Chaska
had previously worked for Respondent and had learned
of the job opening by word of mouth He came to Gil
lespie saying he had heard Respondent needed some help
and was ready to report the following day Gillespie was
already aware of Chaika's situation but nonetheless inter
viewed him briefly He no doubt could have vetoed or
effectively recommended that he not be hired had he
viewed Chaika to be unsatisfactory Similarly Office
Manager Herbeck had let it be known that Edler should
apply for an after school job When Edler did so it was
Gillespie who interviewed him not Herbeck, and be
cause Gillespie had no objections to Edler, he was hired
73
It is true that Gillespie principally performs duties in
the warehouse as the picker who collects the various
merchandise on a particular order places them on a
pallet, and delivers them to the packing tables via fork
lift Thus, he commonly performs work often done by
rank and file warehousemen This, however, is insuffi
cient to offset the fact that he has a certain amount of
independent authority, has the ability effectively to rec
ommend hire and tenure decisions, and is seen as the su
pervisor in the warehouse Indeed, Respondent has au
thorized him to print business cards, naming him as the
warehouse supervisor Accordingly, I find him to be a
Section 2(11) supervisor and recommend that the chal
lenge to Gillespie s ballot be sustained
James Blaising The Union has challenged Blaising's
ballot on the grounds that he is either a supervisor or a
managerial employee who has a special relationship to
the Hansen family Respondent asserts that he is an ordi
nary warehouseman performing tasks similar to those of
the other warehousemen and that he shares a substantial
community of interest with them
Blaising first came to Respondent as a consultant in
1983 He had recently retired from the Federal Defense
Supply Agency and was at that time married (although
separated) to J Hansen s sister J Hansen, it will be re
membered, is a corporate officer 6 Blaising remained as a
consultant for approximately a year after his original
hire Thereafter he was placed on the regular payroll
He is salaried and is paid the same amount as Gillespie,
i e, approximately $600 per month more than Chaika
and Gouyd He has workplaces both in the warehouse
and in the office indeed, he uses a desk in J Hansen s
personal office He contends, however, that the bulk of
his time is spent in the warehouse and that he does not
use the desk when J Hansen is in the office Prior to a
recent marriage Blaising lived within walking distance
of the warehouse and had access to a company Thunder
bird automobile, which was often kept at the warehouse
Approximately five or six times per year he travels to
distant cities to assist Hansen and/or Zimmerli in the
Company s participation in trade shows
His principal duty for Respondent is to oversee so
called returns This involves dealing with customers
who desire to return merchandise When operating
within the Company s announced guidelines this requires
him to issue a return authorization and mail it together
with a special mailing label, to the customer The cus
tomer then uses the special label to return the merchan
dice On its arrival, Blaising inspects it and causes it to
be reworked when necessary He is often assisted in
the rework process by a junior person such as Edler
before his discharge and later Uluikaepa He said it was
he who originally gave Herbeck the information regard
ing the cessation of the J C Penney s returns and told
her that there was little if any work for Edler to per
form
He testified that he performs the Company s receiv
ing In this regard, he says he unloads trucks including
those sent by United Parcel Service Both Chaika and
6 Blaising subsequently died on a date not shown in this record
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gouyd hotly dispute that fact and assert they have never
seen him do any actual unloading although they concede
he has handled "receiving" paperwork. According to
them, trucks are usually unloaded by the driver or, if a
warehouseman is required, they are the ones who do it.
Invariably, they say, UPS drivers unload their own
trucks. Although the evidence is in dispute, I am not
willing to credit Blaising 's testimony that he unloads
trucks or that he does anything other than to observe a
UPS driver unload. I believe he is exaggerating his
duties here.
Blaising occasionally assists with the packing , but usu-
ally "packs" only preboxed shipments, requiring only an
address stencil. This task is performed irregularly, usual-
ly when the other packers (Chaika and Gouyd ) are fall-
ing behind during the "Christmas" shipping season
(August-November). His testimony to the contrary is
largely offset by that of Gillespie and the other warehou-
semen. Again, I find him to be exaggerating.
Regarding fringe benefits, I note that he receives the
same fringe benefits as all regular full-time employees of
the Company, including Chaika and Gouyd, but with
two caveats. First, he has declined health coverage as he
obtains it through his Federal annuity. Second, he is not
yet "vested" in the Company's retirement plan, although
he testified he hopes to become vested shortly.
Based on the foregoing facts I conclude that Blaising
does enjoy a special relationship with the Hansen family
and that he performs certain managerial tasks rendering
his inclusion in the bargaining unit inappropriate. He
handles returned merchandise, albeit within certain speci-
fied guidelines (a very easy job); he shares an office with
J. Hansen; he has access to a luxury automobile; he trav-
els with sales manager Zimmerli to trade shows in dis-
tant cities; and he has certain directive authority over
junior warehouse persons such as Edler and Uluikaepa.
His salary is commensurate with that of the warehouse
supervisor, Gillespie, and it appears that he is being kept
on for the specific purpose of allowing him to obtain a
second retirement income . I find him to be a sinecured
employee whose basic interests are quite different from
those of ordinary employees. Accordingly, the challenge
to Blaising 's ballot should be sustained.
Robert Zimmerli: Zimmerli is the sales manager for the
Company. He has his own cubical in the office and
spends most of his time on the telephone communicating
with his salesmen in the field. On occasion he comes into
the warehouse to pack merchandise or to oversee the
packing of merchandise scheduled to be shipped to trade
shows. He attends approximately six trade shows per
year. He reports directly to J. Hansen and has little deal-
ings with warehouse employees except for Gillespie,
with whom he discusses trade show requirements. It
does not appear that he has any real community of inter-
est with the warehouse employees. Indeed he is responsi-
ble for the Company' s sales.
The voting unit described in the election stipulation
specifically excludes salespersons. I find that Zimmerli is
such an individual and should be excluded. Accordingly,
I recommend the challenge to Zimmerli's ballot be sus-
tained.
Paulette Downing: Downing has worked for Respondent
for 11 years. She has no job title, but works in the office
and is paid a salary of $1400 per month, $500 more than
Chaika and Gouyd. She does not fill out a timecard and
spends nearly all her time at her desk in the office. At
the desk are various pieces of equipment, such as a com-
puter terminal, a typewriter, and an adding machine, all
of which she utilizes in the course of her duties. She pre-
pares c.o.d. forms, export forms, and performs all the
UPS tracers. She routes orders, stays aware of any cus-
tomer special route directions, and alerts the warehouse
about them. She is the individual who converts a cus-
tomer order into what is known as a "picking ticket."
That ticket is either an invoice or an export form. It
contains the specific items that each customer has or-
dered. Her desk is located near the warehouse door and
she places that slip in a box on the warehouse side of
that door. It is eventually picked up by Gillespie, who
proceeds to obtain the items from inventory and deliver
them to the packing tables.
The person in the warehouse with whom she usually
communicates is Gillespie; on occasion she deals with
Blaising . Once in a great while a warehouseman will
come into the office with a c.o.d. so that she can total it
on her adding machine. She certainly does not perform
any physical work in the warehouse. Finally, she com-
monly takes sales receipts to the bank for deposit.
Accordingly, I conclude that Downing is an office
clerical employee, not a plant clerical, and should be ex-
cluded from the unit. I recommend that the challenge to
her ballot be sustained.
Elisiva Uluikaepa: Uluikaepa was challenged by the
Union on the ground that her name did not appear on
the election eligibility list. It contends that her ballot
should be excluded on the grounds that she is not an em-
ployee of the Company; Respondent asserts that she is a
warehouseperson who performs regular warehouse
duties and that her vote should be counted.
Uluikaepa was originally hired by J. Hansen to assist
the family during a recuperation period required by J.
Hansen after some open-heart surgery in mid-1986.
During that period she lived in the Hansen home and
provided assistance to both Hansens. Those duties in-
cluded housekeeping as well as quasi-nursing. She was
paid $5 per hour to perform these duties, with her pay-
checks being drawn on Hansen's personal checking ac-
count, not a company account.
Eventually, as J. Hansen's health returned, she began
accompanying him to the Millbrae facility, where she
was available to assist him as necessary. As he grew
stronger, there was less personal assistance for her to
provide and he began suggesting that she help out in the
warehouse. Occasionally, she helped Blaising with his re-
turns and operated the shrink-wrap machine on products
that needed to be repackaged. Sometime during the
summer of 1987 she began to perform a certain amount
of packing work. She was trained by Chaika, Gouyd,
and Blaising and by November 1987 was even perform-
ing the paperwork connected to shipping. Her native lan-
guage is Tonganese and she speaks English only with
JOHN N HANSEN CO 75
difficulty It was therefore, a slow process for her to
learn how to handle written documentation
She apparently moved out of the Hansen household in
late 1986 and sags she now drives herself to and from
work, although Chaika and Gouyd claim that she contin
ues to arrive and leave with J Hansen
During much of 1987, on 1 or 2 days a week, Ului
kaepa came to the warehouse, where she was picked up
by Hansen and then driven to the San Francisco show
room, where she assisted Hansen Even as of the hearing
date, early January 1988, Hansen continues to pay her
the $5 wage from the household account
Based on this testimony, I conclude that sometime in
mid 1987, Uluikaepa began to work in the warehouse on
a regular, if part time basis I recognize that she was not
carried on the company payroll and further recognize
that at the inception of her warehouse employment she
was principally a companion for J Hansen during his re
cuperation Nonetheless, her duties slowly transformed
from that of companion to those of warehouse trainee
and eventually packer, a duty which she assumed during
the summer of 1987 I recognize that as a person not on
the payroll, she was not entitled to the various fringe
benefits such as health insurance, life insurance, pension
plan, vacation, sick leave, and such Nonetheless, her
hourly wage was quite similar to that of Chaika and
Gouyd Moreover she was under the general supervision
of either Gillespie or Blaising (subject to override by J
Hansen) and she worked side by side with other ware
house personnel performing exactly the same tasks they
were required to perform In this circumstance, I find
that she was, beginning in the summer of 1987, an em
ployee not of the Hansen s, but of the Respondent The
employment relationship is to be found as a result of sub
stance, not form, and it appears to me that the Union's
argument that she is not a company employee relies ex
cessively on form Accordingly, I conclude that Ului
kaepa was an eligible voter and that the challenge to her
ballot, if it were to affect the outcome of the election,
should be overruled
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirms
tive action designed to effectuate the policies of the Act
On these findings of fact and the entire record in this
case, I make the following
CONCLUSIONS OF LAW
1 Respondent, John N Hansen Co Inc , is an em
ployer engaged in commerce within the meaning of Sec
tion 2(6) and (7) of the Act
2 International Longshoremen's and Warehousemen's
Union, Local 6 is a labor organization within the mean
ing of Section 2(5) of the Act
3 On July 27, 1987, acting through David Gillespie,
Respondent violated Section 8(a)(1) of the Act by sug
gesting to employees that union representation was a
futile act, by threatening them with layoff because of
their union activities, and by threatening them with loss
of fringe benefits if they selected a union to represent
them
4 On July 27, 1987 acting through John N Hansen,
Respondent violated Section 8(a)(1) of the Act by inter
rogating employees about their union activities and mem
bership
5 On September 28, 1987, acting through John N
Hansen , Respondent violated Section 8(a)(1) of the Act
by saying in the presence of employees that he would
close the business before allowing a union to represent its
employees
6 The General Counsel has failed to prove any other
violations of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed7
ORDER
The Respondent, John N Hansen Co, Inc, Millbrae,
California, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Telling employees that representation by Interna
tional Longshoremen' s and Warehousemen s Union
Local 6 or any other labor organization would be an act
of futility
(b) Threatening employees with layoff or other loss of
fringe benefits because they choose to be represented by
a labor union
(c) Interrogating employees regarding their union ac
tivities and membership
(d) Threatening to close the business before having to
deal with International Longshoremen s and Warehouse
men s Union, Local 6, as the exclusive representative of
its employees
(e) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its Millbrae California facility copies of the
attached notice marked Appendix '8 Copies of the
notice on forms provided by the Regional Director for
Region 20 after being signed by the Respondents au
thorized representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
7 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
8 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
Recommendation with Respect to the Election in Case
20-RC-16173
In the foregoing decision I have concluded that the
challenges to the ballots of Edler , Gillespie Blaising
Zimmerli , and Downing should be sustained and that the
challenge to the ballot of Uluikaepa should be overruled
However , in view of the fact that the tally of ballots re
flects that two valid votes have already been cast in
favor of the union representation , it would appear that
Uluikaepa 's ballot would not affect the outcome of the
election Accordingly , I recommend that Uluikaepa s
ballot not be opened in order to preserve the secrecy of
her ballot I further recommend that the Board immedi
ately issue a Certification of Representative in favor of
International Longshoremen s and Warehousemen s
Union Local 6, in the bargaining unit as described in the
Stipulation For Certification Upon Consent Election
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE NATIONAL LABOR
RELATIONS BOARD
An Agency of the United States Government
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT tell our employees that representation
by International Longshoremen s and Warehousemen s
Union Local 6, would be a fuility
WE WILL NOT threaten employees with layoff or loss
of fringe benefits if they choose to be represented by a
labor union
WE WILL NOT interrogate our employees regarding
their union activities or membership
WE WILL NOT threaten to close our business on be
coming obligated to deal with International Longshore
men s and Warehousemen s Union Local 6, as the repre
sentative of our employees
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
JOHN N HANSEN CO, INC
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights