Peirce-Phelps, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 2004

341 N.L.R.B. 585 (N.L.R.B. 2004)

PEIRCE-PHELPS, INC. 585
Peirce-Phelps, Inc.1 and Warehouse Employees Un-
ion, Local 169 a/w International Brotherhood of
Teamsters, AFL–CIO. Case 4–RC–20675
April 12, 2004
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held August 15, 2003, and the hearing offi-
cer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 2 for and 1
against the Petitioner, with 2 determinative challenged
ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the hearing officer’s
findings2 and recommendations as modified below.

The Employer challenged the ballot of Michael Cam-
moroto on the ground that Cammoroto was not employed
within the stipulated unit on the date of the election. The
Petitioner challenged the ballot of Michael Panara Jr. on
the ground that Panara Junior is related to a member of
management. The hearing officer recommended sustain-
ing the challenge to Cammoroto’s ballot and overruling
the challenge to Panara Junior’s ballot. The Petitioner
has excepted to both recommendations. For the reasons
discussed below, we adopt the hearing officer’s recom-
mendations.
I. THE CHALLENGE TO THE BALLOT OF MICHAEL
CAMMOROTO
The Employer is a distributor of appliance electronics
and heating and air conditioning equipment. It operates
approximately 15 facilities, including 1 located on Deca-
tur Road in Philadelphia, Pennsylvania. The employees
at the Decatur Road facility fall into three primary classi-
fications: warehousemen, store employees, and sales
management representatives. Under the terms
of the parties’ Stipulated Election Agreement, the elec-
tion at issue here was conducted in a unit consisting of
“[a]ll full-time and seasonal warehousemen employed by

1 We have amended the caption to reflect the correct spelling of the
Employer’s name.
2 The Petitioner has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
the Employer” at its Decatur Road facility, excluding
“[a]ll other employees.”
One of the positions within the store employee classi-
fication is that of store driver. Michael Cammoroto be-
came the store driver at the Decatur Road facility in
March 2003.3 When his delivery duties permitted,
Cammoroto worked at the store counter or in the ware-
house. On June 17 or 18, Cammoroto was transferred to
a full-time warehouse position. Crediting the Em-
ployer’s witnesses, the hearing officer found that this
transfer was a temporary arrangement. Cammoroto was
a full-time warehouseman on July 15, the payroll eligi-
bility date for the election. On July 23, however, Cam-
moroto was transferred back to his store driver position.
Despite his return to this position, he continued to per-
form a limited amount of warehouse work on irregular
and infrequent occasions. As noted above, the election
was held on August 15.
To be eligible to vote in a representation election, an
employee must be within the proposed bargaining unit on
both the established eligibility date and the date of the
election. Plymouth Towing Co., 178 NLRB 651 (1969).
An employee who is transferred out of the bargaining
unit before the election will not be eligible to vote unless
he or she has a reasonable expectancy of returning to the
unit. Mrs. Baird’s Bakeries, 323 NLRB 607 (1997).
There is no dispute that Cammoroto was not in a unit
position on the date of the election. Further, based on
credibility determinations, which we have upheld, the
hearing officer found that Cammoroto did not have a
reasonable expectancy of returning to the unit. However,
because Cammoroto continued to perform some ware-
house work after resuming his store driver position, the
Petitioner argued that Cammoroto should be included in
the unit as a dual function employee. The hearing officer
rejected the Petitioner’s dual function argument on its
merits. The Employer contends that the hearing officer
should not have addressed the merits of the dual function
issue because the parties’ Stipulated Election Agreement
reflected their clear intent to exclude Cammoroto from
the unit. We agree with the Employer’s contention.
Where the parties to a Board election have stipulated
to a bargaining unit, “the Board’s function is to ascertain
the intent of the parties with regard to inclusion or exclu-
sion of a disputed voter and then to determine whether
such intent is inconsistent with any statutory provision or
established Board policy.” Bell Convalescent Hospital,
337 NLRB 191 (2001). Only if the parties’ intent is un-
clear will the Board utilize the community-of-interest
analysis to resolve the dispute. McFarling Foods, Inc.,
3 All dates are in 2003, unless otherwise indicated.
341 NLRB No. 78
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 586
336 NLRB 1140 (2001). Where a stipulation includes
certain job classifications and expressly excludes “all
other employees,” “[t]he Board . . . will find a clear in-
tent to exclude those classifications not matching the
stipulated bargaining unit description.” Bell Convales-
cent Hospital, supra. Here, the stipulation includes “[a]ll
full-time and seasonal warehousemen” and explicitly
excludes “all other employees.” On the date of the elec-
tion, Cammoroto was a store driver, not a warehouse-
man. Thus, the parties’ clear intent was to exclude
Cammoroto from the unit. See Bell Convalescent Hospi-
tal, supra at 191 (“dual function” analysis not applied
where parties’ intent to exclude classification was clear).
Further, Cammoroto’s exclusion does not contravene any
provision of the Act or established Board policy. Ac-
cordingly, we sustain the challenge to Cammoroto’s bal-
lot.
II. THE CHALLENGE TO THE BALLOT OF
MICHAEL PANARA JR.
At the time of the election, Michael Panara Jr. was a
16-year-old high school student who had worked for the
Employer as a warehouse employee every summer since
2001. Panara Junior is supervised by his father, Decatur
Road Warehouse Manager Michael Panara Sr. Panara
Senior has no ownership interest in the Employer.
The record shows that Panara Junior performed many
of the same work duties as the other Decatur Road ware-
house employees. However, Pennsylvania law precludes
persons younger than 18, such as Panara Junior, from
operating heavy machinery, including forklifts. From
late June to mid-August 2003, Panara Junior generally
worked from 9 a.m. to 5 p.m., averaging 32 hours per
week, slightly more than seasonal warehouseman
Frederic Smith. At times, however, Panara Junior’s
work schedule fluctuated because of the availability of
warehouse work not requiring the use of forklifts. More-
over, Panara Junior was not free to set or alter his work
schedule. In fact, on at least two occasions in 2003,
Panara Senior denied Panara Junior’s requests to alter his
schedule. Panara Junior worked under the same condi-
tions as other warehouse employees. Like seasonal em-
ployee Smith, he earned $8 an hour. Although the dura-
tion of Panara Junior’s summer employment was shorter
than that of some other seasonal warehousemen, the Em-
ployer has no fixed beginning and ending dates to which
seasonal employees are expected to adhere. Panara Jun-
ior was subject to the same policies as other seasonal
warehousemen. Like them, he received no paid vacation,
sick time, or other fringe benefits. Panara Junior never
attended any management meetings or substituted for
Panara Senior in the latter’s absence. Based on these
facts, the hearing officer rejected the Petitioner’s argu-
ment that Panara Junior enjoys special benefits, as
Panara Senior’s son, that warrant his exclusion from the
bargaining unit. The Petitioner excepts.
As explained above, in stipulated unit cases the Board
resolves voter eligibility disputes by giving effect to the
parties’ intent as expressed in the Stipulated Election
Agreement, unless that intent cannot be determined or
the Board is precluded from honoring it by a provision of
the Act or some established Board policy. Bell Conva-
lescent Hospital, supra; McFarling Foods, supra. Here,
the parties’ stipulation unambiguously expressed their
intent to include “seasonal warehousemen” such as
Panara Junior within the unit. Thus, Panara Junior must
be included, unless a statutory provision or established
Board policy requires otherwise.
Contrary to our dissenting colleague, we find that
Board policy does not mandate Panara Junior’s exclusion
from the unit. An employee-relative of a nonowner
manager is excluded from a bargaining unit as a matter
of Board policy only if that employee enjoys “specific
special privileges or benefits” by virtue of the relation-
ship. Cumberland Farms, 272 NLRB 336 (1984). Here,
Panara Junior did not enjoy special privileges or benefits
by virtue of his relationship with nonowner manager
Panara Senior. As detailed above, Panara Junior never
attended management meetings or assumed his father’s
authority. Rather, he worked under the same conditions
and subject to the same policies as other seasonal ware-
housemen, performing similar tasks and earning a com-
parable wage. His duties differed from those of other
warehouse employees only in that he did not perform
tasks requiring the operation of heavy lifting machinery.
This difference, however, was mandated by State law
and did not flow from Panara Junior’s relationship with
Panara Senior. His exemption from the operation of
heavy lifting machinery was a legal requirement, not a
special benefit.
In finding that Panara Junior should be excluded from
the unit, our dissenting colleague relies on Novi Ameri-
can Inc.–Atlanta, 234 NLRB 421 (1978). In that case,
the Board found the comparative youth of employee-
relative Mark Johnston, and the fact that Johnston was
permitted to work during school vacations, to be proba-
tive of special status. However, in finding that Johnston
must be excluded from the unit, the Board relied princi-
pally on the fact that, unlike other employees, Johnston
was paid from the employer’s “contract labor” ledger
instead of its regular payroll, with the result that neither
social security nor income taxes were deducted from his
paycheck. Novi American, supra at 422. There is no such
special pay arrangement here. In addition, Johnston in-
tended to continue working full time during the school

PEIRCE-PHELPS, INC. 587
year. That was impossible to accommodate within the
employer’s regular shift schedule and thus would entail
creating a special shift for Johnston’s “personal conven-
ience.” The evidence showed that the Employer would
“almost certainly” make that adjustment. Id. Here, by
contrast, Panara Junior worked within the Employer’s
regular shift schedule. Moreover, to the extent Panara
Junior’s schedule fluctuated, it was to comply with the
law, not to suit Panara Junior’s convenience. Indeed,
more than once, Panara Senior turned down Panara Jun-
ior’s requests to alter his work schedule. Not surpris-
ingly, Panara Junior did not work when the tasks to be
performed required the use of machinery he could not
lawfully operate. Again, however, this flowed from con-
straints imposed by State law, not from his family rela-
tionship. Thus, we find Novi American distinguishable.
Our colleague relies heavily on the fact that Panara
Junior was hired at an age when he was legally unable to
operate heavy lifting machinery. However, it is clear that
there are several other warehousing functions that do not
require the use of such lifting equipment. As the hearing
officer noted, these are the warehousing functions that
Panara Junior performed while at work. These functions
fully occupied him when he was at work. Consistent
with that, Panara Junior was not scheduled to work on
days when there were no such warehousing functions to
perform. However, this was a consequence of his legal
impediment rather than a function of his relationship to
Panara Senior. Further, even assuming arguendo that
Panara Junior would not have been hired but for his rela-
tionship to Panara Senior this does not gainsay the fact
that, on the job, he performs a full day’s work and re-
ceives no special treatment.
Our dissenting colleague also relies on the fact that
Panara Junior lives with and is financially dependent on
Panara Senior. The Board has stressed, however, that
“the proper test in cases where ownership is not at issue
is ‘special status’ on the job.” Cumberland Farms, supra
at 336 fn. 2 (emphasis added). Because Panara Junior
enjoys no such special status, his residential and financial
arrangements away from the job are insufficient in them-
selves to require his exclusion from the unit.
Given that no Board policy prevents Panara Junior’s
inclusion in the unit, the expressed intent of the parties
must be given effect. Thus, we adopt the hearing offi-
cer’s recommendation and overrule the challenge to
Panara Junior’s ballot.
DIRECTION
IT IS DIRECTED that the Regional Director for Region 4
shall, within 14 days from the date of this Decision and
Direction, open and count the ballot of Michael Panara
Jr. The Regional Director shall then serve on the parties
a revised tally of ballots and issue the appropriate certifi-
cation.

MEMBER WALSH, dissenting in part.
I agree with my colleagues in all respects except their
finding that Michael Panara Jr. does not enjoy special
privileges or benefits warranting his exclusion from the
bargaining unit. Panara Junior received special treatment
from the very inception of his employment with the Em-
ployer. He was hired at the age of 14, and was season-
ally reemployed thereafter, despite his legal incapacity to
operate heavy lifting machinery—which, by Panara Sen-
ior’s own admission, constitutes an important part of the
warehouseman’s job. While other seasonal employees
have been hired to work in the Employer’s warehouse
notwithstanding their inexperience in operating heavy
lifting machinery, the record discloses none except
Panara Junior who have been hired in total disregard of a
legal incapacity to operate such machinery.
To accommodate Panara Junior’s peculiar limitation,
Panara Senior created a fluctuating schedule specifically
for Panara Junior, which ensured that Panara Junior
would be in the warehouse only when there was work
available that he could perform—i.e., work not involving
the operation of heavy lifting machinery. Panara Senior
also tailored Panara Junior’s work schedule to fit his
son’s school year, allowing Panara Junior to work for
only a portion of the Employer’s peak summer season.
He also permitted his son to work during other breaks in
the school year.
These scheduling accommodations, as well as the mere
fact of Panara Junior’s employment despite his inability
to perform important job functions, are highly probative
of special status. See Novi American Inc.–Atlanta, 234
NLRB 421, 422 (1978). In Novi American, the Board
excluded a nonowner manager’s 17-year-old son from a
bargaining unit based, in part, on its finding that he had
received special treatment in respect to his hiring and
work schedule. Id. The Board viewed the employer’s
hiring of the employee-relative at an unusually early age,
when applicants of that age were not normally hired, as
one indication of special status. Id. The Board cited the
employer’s adjustment of the employee-relative’s work
schedule to suit his school commitments as another such
indication. Id.
In one respect, the special treatment Panara Junior re-
ceived in this case goes beyond that found indicative of
special status in Novi American. Like the employee-
relative in Novi American, Panara Junior was hired at an
unusually early age. However, in Novi American, there
is no suggestion that the employee-relative’s youth pre-
vented him from performing any job-related tasks. Here,
by contrast, Panara Junior’s youth barred him from per-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 588
forming a concededly important part of the warehouse-
man’s job. Furthermore, as in Novi American, Panara
Junior’s work schedule was adjusted to suit his personal
convenience—i.e., his school schedule and age-related
limitations.
In addition, Panara Junior lives with Panara Senior and
therefore enjoys access to Panara Senior beyond that
available to other employees. Moreover, Panara Junior is
financially dependent upon Panara Senior. These facts,
together with the special treatment in hiring and schedul-
ing detailed above, warrant Panara Junior’s exclusion
from the bargaining unit as a matter of Board policy. See
R & D Trucking, Inc., 327 NLRB 531, 533 (1999) (not-
ing employee-relative’s living with and financial de-
pendence on nonowner manager as relevant considera-
tions in determining special status).
Despite the foregoing, my colleagues find that Panara
Junior should not be excluded from the unit. They view
his special scheduling treatment merely as ensuring that
he would be fully occupied while at work. The concern
with keeping Panara Junior fully occupied itself, how-
ever, reflects his special status. There would be no need
to adjust his schedule if he were capable of performing
all warehouse tasks, like the other employees. The ma-
jority also ascribes the Employer’s tailoring of Panara
Junior’s schedule to his “legal impediment” rather than
his relationship with Panara Senior. But, again, no ad-
justments would have been necessary had Panara Junior
not been hired despite the impediment because he is
Panara Senior’s son.
Finally, my colleagues appear to believe that even if
Panara Junior was hired because he is related to Panara
Senior that is not probative of special status because “on
the job, he performs a full day’s work and receives no
special treatment.” In so stating, my colleagues seize on
language from Cumberland Farms to extend that deci-
sion beyond its holding. In Cumberland Farms, the
Board held that being related to and living with a
nonowner supervisor, without more, is insufficient to
exclude the employee-relative from the unit. Cumber-
land Farms, 272 NLRB 336 (1984). From this holding,
it does not follow that where there is something more,
the Board is precluded from considering all relevant cir-
cumstances in determining special status. Indeed, other
Board decisions show that it is not so precluded. Novi
American, supra; R & D Trucking, supra. Here, as I ex-
plain above, there is much more: special treatment in
hiring despite an inability to perform major job tasks and
special treatment in scheduling to accommodate age-
related limitations and a school schedule. All of the spe-
cial treatment stems from Panara Junior’s relationship to
Panara Senior, with whom Panara Junior lives and on
whom he depends financially. All of these circum-
stances are relevant to the special status inquiry, and
Cumberland Farms does not hold to the contrary.