T.K. Harvin & Sons

National Labor Relations Board - Board Decisions

Feb 28, 1995

316 N.L.R.B. 510 (N.L.R.B. 1995)

510
316 NLRB No. 90
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s request for oral argument is denied as the
record and briefs adequately present the issues and positions of the
parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
3 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by discharging employee Joshua Tunnell, we rely
also on the admission, in late March or early April 1993, by the Re-
spondent’s vice president, Keith Harvin, to employee Francis Kuhn
that the Respondent had discharged Tunnell ‘‘because he had
brought the Union here.’’ However, we do not rely on any reference
the judge made to the fact that the Respondent discharged two other
employees, Garry Warner and Jeff Walker, who were active in the
union campaign. As the judge noted, the legality of their discharges
was not at issue in this proceeding.
In adopting the judge’s finding that the Respondent unlawfully en-
gaged in the interrogation of employees, Chairman Gould and Mem-
ber Browning find it unnecessary to rely on Sunnyvale Medical Clin-
ic, 277 NLRB 1217 (1985).
4 In the absence of exceptions, we adopt, pro forma, the judge’s
findings that the challenge to the ballot of Glen Brightwell should
be overruled and that the challenges to the ballots of Thomas Max-
well and Garry Warner should be sustained.
5 The judge inadvertently omitted an expunction remedy for em-
ployee Joshua Tunnell who was unlawfully discharged. We shall
correct the recommended Order and notice to include this remedy.
T. K. Harvin & Sons, Incorporated and Teamsters
Local 312, a/w International Brotherhood of
Teamsters, AFL–CIO and Teamsters Local
929, a/w International Brotherhood of Team-
sters, AFL–CIO and Garry Warner and
Francis Kuhn
T. K. Harvin & Sons, Incorporated and Teamsters
Local 929, a/w International Brotherhood of
Teamsters, AFL–CIO, Petitioner. Cases 4–CA–
21582, 4–CA–21599, 4–CA–21642, 4–CA–21617,
4–CA–21842, and 4–RC–18087
February 28, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 10, 1994, Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed a cross-exception and an an-
swering brief to the Respondent’s exceptions and brief,
and the Charging Party filed a response to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record1 in light of the exceptions and briefs and has
decided to affirm the judge’s rulings,2 findings,3and
conclusions4 as modified and to adopt the judge’s rec-
ommended Order as modified.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, T. K.
Harvin & Sons, Incorporated, Wilmington, Delaware,
and Chester, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Add the following as paragraph 2(b) and reletter
all subsequent paragraphs.
‘‘(b) Remove from its files any reference to the un-
lawful discharge of Joshua Tunnell, and notify him in
writing that this has been done and that the discharge
will not be held against him in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that Case 4–RC–18087 is
severed from Cases 4–CA–21582, 4–CA–21599, 4–
CA–21642, 4–CA–21617, and 4–CA–21842; that all
the objections to the conduct of the election filed in
Case 4–RC–18087 are overruled; that Case 4–RC–
18087 is remanded to the Regional Director for Region
4; that the ballots of Glen Brightwell and Joshua
Tunnell be opened and counted by the Regional Direc-
tor in accordance with the Board’s Rules and Regula-
tions; and that he prepare and serve on the parties a
revised tally of ballots, and issue the appropriate cer-
tification.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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.
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
511T. K. HARVIN & SONS
1 Garry Warner and Francis Kuhn.
2 To the extent that one of the complaints alleged the unlawful ter-
mination of Warner, it was dismissed at the hearing on counsel for
the General Counsel’s motion because Warner failed to cooperate or
appear at the hearing. Also, that portion of one of the complaints
alleging that Respondent’s employee, Jeff Walker, was unlawfully
terminated was amended out at hearing based on a non-Board settle-
ment.
3 These three were challenged because their names did not appear
on the voter eligibility list. As noted above, at the request of counsel
for the General Counsel the allegation that Warner was unlawfully
terminated was dismissed at the hearing since Warner failed to co-
operate or appear at the hearing. Maxwell also did not appear at the
hearing. The Union, at the hearing herein, withdrew its contention
that Maxwell is still an employee.
4 During the hearing herein the Union withdrew its challenge to
Brightwell. His ballot, therefore, should be counted.
5 At the time of the events involved herein, Respondent also had
a facility and office at Chester Pennsylvania. It was in the process
of moving its operations from Chester to Wilmington.
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT (a) solicit your complaints and griev-
ances, promising you increased benefits and improved
terms and conditions of employment if you abandon
your support for the Teamsters Local 929, a/w Inter-
national Brotherhood of Teamsters, AFL–CIO; (b) in-
terrogate you concerning your union sympathies; (c)
promise you a wage increase and an award of a dis-
patcher’s job in order to discourage you from support-
ing Teamsters Local 929; (d) create an impression that
your union activities are under surveillance by asking
you how a Teamsters Local 929 meeting had been; (e)
interrogate you concerning your activities on behalf of
Teamsters Local 929; and (f) tell you that another em-
ployee had been discharged because of his union activ-
ity.
WE WILL NOT discharge you because you have
joined, supported, or assisted any union.
WE WILL NOT in any like or related manner restrain,
interfere, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to
Joshua Tunnell who was unlawfully terminated on
March 29, 1993, to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed by him and make him
whole for any loss of pay he may have suffered as a
result of his discharge.
WE WILL remove from our files any reference to the
discharge of Joshua Tunnell, and notify him in writing
that this has been done and that the discharge will not
be held against him in any way.
T. K. HARVIN & SONS, INCORPORATED
Richard Wainstein, Esq., for the General Counsel.
Stephen J. Cabot, Esq., Maria L. Petrillo, Esq., Reed J.
Slogoff, Esq., and Frederick M. Walton Jr., Esq. (Harvey,
Pennington, Herting & Renneisen, Ltd.), of Philadelphia,
Pennsylvania, for the Respondent and the Employer.
Neal Goldstein, Esq. and Robert F. Henninger, Esq. (Freed-
man and Lorry, P.C.), of Philadelphia, Pennsylvania, for
the Charging Party and Petitioner Teamsters Local 929.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Charges were
filed by Teamsters Locals 312 and 929, a/w International
Brotherhood of Teamsters, AFL–CIO (the Union) and by
named individuals1 against T. K. Harvin & Sons, Incor-
porated (Respondent). Complaints were issued collectively
alleging that Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act), collectively, in that allegedly
Respondent’s vice president, Keith Harvin, (1) solicited em-
ployees’ complaints and grievances, promised its employees
increased benefits, and improved terms and conditions of em-
ployment if they abandoned their support for the Union; (2)
unlawfully discharged its employee Joshua Tunnell2; (3) in-
terrogated an employee concerning the employee’s union
sympathies; (4) promised an employee a wage increase and
an award of a dispatcher’s job in order to discourage the em-
ployee from supporting the Union; (5) created the impression
among its employees that their union activities were under
surveillance by Respondent by asking an employee how a
union meeting had been; (6) interrogated an employee con-
cerning the activities of its employees on behalf of the
Union; and (7) told an employee that other employees have
been discharged because of their union activity. Respondent
denies violating the Act.
By Order entered November 4, 1993, the above-entitled
unfair labor practice cases were consolidated and they were
further consolidated with Case 4–RC–18087 which now in-
volves resolving the issues raised by (a) the National Labor
Relations Board (the Board) challenges to the ballots of
Tunnell, Thomas Maxwell, and Warner,3 and the Union’s
challenge to the ballots of Glen S. Brightwell4 and Kathy
Borrelli on the ground that they are relatives of the Em-
ployer; and (b) the objections of T. K. Harvin & Sons, In-
corporated to conduct allegedly affecting the results of the
election.
A hearing on these consolidated cases was held before me
in Philadelphia, Pennsylvania, on March 1–4, 7, and 8, 1994.
Upon the record, including the demeanor of the witnesses,
and after due consideration of the briefs filed by the General
Counsel, the Union, and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of
business in Wilmington, Delaware,5 is engaged in the whole-
sale distribution of produce to customers in Delaware, New
Jersey, and Pennsylvania. The complaint alleges, the Re-
spondent admits, and I find that at all times material, Re-
spondent has been an employer engaged in commerce within
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 All dates are in 1993 unless otherwise stated.
7 He was hired by Respondent in September 1992. Tunnell re-
ceived a $10-a-day raise from Respondent in October 1992. For 18
years before working for Respondent he worked for Kroll’s Seafood
and Produce in Wilmington, Delaware. Tunnell purchased produce
for his prior employer.
8 The Distribution Center, which is comprised of about 40 different
businesses or vendors, is the main distribution point of produce in
the tristate area of Pennsylvania, Delaware, and New Jersey.
9 Thomas Harvin, who is the father of Respondent’s co-owners
Kent and Keith Harvin, trained Tunnell regarding how to check the
produce to be sure it is fresh.
10 Another of Respondent’s drivers, John McConnell, performed
the night run on the other two nights. The night run is made Sunday
through Thursday.
11 His brother Keith, who is vice president of the Company, also
owns 50 percent of Respondent.
12 Prior to its amendment, the July 26 consolidated complaint al-
leged that Walker and Werner were terminated by Respondent on
March 29 and 24, 1994, respectively.
the meaning of Section 2(2), (6), and (7) of the Act, and the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. FACTS
Hugh Donovan, an organizer for the Union, testified that
he started an organizing campaign at Respondent’s Chester
facility in early March 1993.6 While he was posting union
literature on cars Keith Harvin came out of the Chester facil-
ity and said, ‘‘You must be union.’’ They shook hands.
Later, Thomas Harvin, Keith’s father, came over and shook
Donovan’s hand.
At the time of the organizing drive, Tunnell drove a truck
for Respondent.7 During the day he made deliveries to Re-
spondent’s customers. At night he picked up special order
items at the Philadelphia Ford Distribution Center (the Dis-
tribution Center).8 More specifically, he was given an order
sheet by James Satchell, who is Respondent’s second-shift
supervisor, which listed what produce he was to pickup at
the Distribution Center and which vendors most likely would
have the items.9 Also, he took any returns Respondent might
have back to the Distribution Center. The returns were han-
dled first. When he obtained an item listed Tunnell circled
the number of the items and the involved vendors’ name. If
he was unable to obtain the items at the vendors listed,
Tunnell would telephone back to Respondent’s facility and
ask Satchell for instructions. Also, Tunnell telephoned Re-
spondent’s facility from the Distribution Center around 10
p.m. to find out what additional items Respondent needed.
He would write these on the back of the order sheet he was
given earlier. When he completed his task at the Distribution
Center he would return with the produce to Respondent’s fa-
cility. According to Tunnell’s testimony, David Tinnin, who
worked on the night crew at Respondent’s facility and who
was responsible for having the daytime delivery trucks load-
ed during the night, would check the produce Tunnell
brought back from the Distribution Center and Tinnin would
place an ‘‘X’’ next to Tunnell’s circle. Tunnell would then
give the order slip to Satchell, and then he, Tunnell would
go home. At the time of his discharge, Tunnell performed the
night run to the Distribution Center three nights a week.10
Mike Anderson, who has worked for Respondent for 10
years as a truckdriver, testified that 3 years ago he served as
a night driver for about 6 months; that it is the night truck-
driver’s responsibility to check the quality of the items
picked up at the Distribution Center since no one else checks
the quality until it is delivered to the customer; that ‘‘[a]lot
of times’’ broccoli rabe is iced; that broccoli rabe ‘‘just has
to be iced’’; and that under company policy, as he under-
stood it, the first time a night driver brought back bad
produce he could get a ‘‘pretty good chewing out, and the
second time, I don’t think they’d be doing the night truck
no more.’’ On redirect, Anderson testified that the night
checker ‘‘[w]hoever it was back then would probably—I
think probably checked both [quantity and quality] real
quick.’’
Timothy Kent Harvin, who is president of Respondent and
who owns 50 percent of the Company,11 testified that his
chief responsibility is buying fresh produce, vegetables, and
fruits. Respondent delivers to approximately 200 or 300
‘‘white tablecloth restaurants,’’ hotels, and institutions
throughout the involved tristate area. Kent Harvin would buy
at the Distribution Center in the early hours of the morning.
Items which were not available at the Distribution Center in
the morning would be priced up in the evening by Respond-
ent’s night driver. Also, the night driver would pick up, at
the Distribution Center, items Respondent did not have in
stock which were specialty items for which Respondent did
not regularly receive orders. Satchell telephones Kent Harvin
around 7 p.m. and tells him what Respondent needs to be
picked up at the Distribution Center by the night driver. Kent
Harvin would tell Satchell were the merchandise could be
bought at the Distribution Center, based on his observations,
which were made that morning. Kent Harvin testified that he
would give Satchell a list of three or four places that handled
the items and Satchell would write them down and give a
copy of the sheet to whoever the night truckdriver was. Ac-
cording to Kent Harvin’s testimony, the night driver called
Satchell from the Distribution Center for ‘‘add-ons’’ which
the night driver would write on the sheet. Kent Harvin testi-
fied that when the night driver returned to the warehouse he
would go to Satchell and ‘‘they [Satchell and the night truck
driver] would reconstruct a cleaner list so it would be legible
down the road when it came time to pay the bills of where
he had bought merchandise that night.’’ While the sheet has
the words ‘‘order sheet’’ on the top, Kent Harvin refers to
it as the night truck or the market sheet. According to Kent
Harvin’s testimony, the night truckdriver was responsible for
checking the quality of items on the list because the day
crew never had a chance to see this merchandise. Kent
Harvin testified that the night truckdriver did not pick up at
the Distribution Center items which were going to be kept
in Respondent’s warehouse for several days; and that it was
his job to buy items for stock during the day.
Regarding his role in the union campaign, Tunnell testified
that he, Walker, who worked in Respondent’s warehouse,
and Warner, who drove a truck for Respondent, discussed
having a union represent Respondent’s employees.12 On the
Monday, Warner was terminated which was March 22, ac-
cording to Tunnell’s testimony, at about 6 a.m. he and War-
ner were standing about 5 to 10 feet from one of the doors
at Respondent’s Chester warehouse. The door was open.
Tunnell testified that he and Warner had their trucks running
513T. K. HARVIN & SONS
13 According to Tunnell’s testimony, McConnel was subsequently
terminated. According to Respondent’s list of employees terminated,
G.C. Exh. 12, a John McConnell ‘‘resign quit’’ on ‘‘11–7–93.’’
14 Tunnel estimated that Respondent had about 10 day run drivers
when he was terminated on March 29.
15 Tunnel testified that the order sheets or night driver’s market
lists, introduced herein as, R. Exhs. 1 and 2, were not the original
lists which were given to him when he went to the Distribution Cen-
ter; that he had never seen these ‘‘MARKET LIST’s’’ before they
were shown to him at the hearing herein; that the order sheet for
his night run was prepared by Satchel before he left for the night
run; and that he did not help Satchel redraft an order sheet after he
completed his night run. When faced with this, Respondent’s attor-
ney stated that he would ‘‘withdraw the exhibit [R. Exh. 1 which
refers to March 23 and which assertedly would have been generated
Continued
and they were discussing union authorization cards when
Keith Harvin came out the door and said, ‘‘Get them
goddamn trucks moving now’’; and that when he returned
from making deliveries that day he was told that Warner was
fired. On cross-examination Tunnell testified that two diesel
trucks running make a lot of noise that he and Warner did
not raise their voices; and that he was careful when he spoke
about the Union and to the best of his knowledge no one in
management ever found out that he was working for the
Union.
On either Sunday or Monday night, March 21 and 22, re-
spectively, according to the testimony of Tunnell, he picked
up two cases of broccoli rabe at the Distribution Center.
Tunnell testified that both of the cases were purchased on the
same night; that it was not bad; that he inspected the broccoli
rabe before he took it and it was fresh; and that he brought
the two cases of broccoli rabe, along with other items, back
to Respondent’s warehouse and Tinnin checked out the order
‘‘item by item.’’ On cross-examination Tunnell testified that
Tinnin does not just count the boxes but rather ‘‘[h]e checks
the quality of the produce.’’ Subsequently Tunnell testified
that the order sheet he received from Satchell indicated that
he should go to a vendor named Pinto in the Distribution
Center to pickup the broccoli rabe; that when he went to get
the truck at Respondent’s facility Satchell said, ‘‘[T]hey got
broccoli rabes at Pinto and Kent said for you to check
them’’; that he told Satchell that he would telephone him
when he arrived at Pinto; that later he telephoned Satchell,
told Satchell he had two good cases of broccoli rabe and
Satchell told him to bring them back; that when he checked
the two cases of broccoli rabe at Pinto he removed the ice
in the cases and he checked through to the bottom of the
cases; that he did not put the ice back in the two cases; that
Tinnin opened the cases and checked the contents; and that
he drove the night run three nights that week, namely, Sun-
day, Monday, and Tuesday. On further cross-examination
Tunnell testified that rotten broccoli rabes smells bad and the
odor could be detected from at least 15 feet away; and that
ice and cold weather can sometimes mask the smell.
Tinnin testified that as the third-shift checker he just
counted the cases of broccoli rabe to make sure that he had
the right number of cases; that ‘‘it would say broccoli on the
box’’ and it was not his job to open the box; and that it was
not his job to check the quality of the merchandise and he
did not have the time since he is responsible for seeing that
a total of approximately 1200 cases of produce are loaded on
the delivery trucks during the night. On cross-examination
Tinnin testified that he tries not to leave produce exposed to
the weather for too long if it is cold because broccoli rabe
‘‘can wilt, it can get bad’’ if it is left out in the cold weather
for a long period of time. Subsequently, Tinnin testified that
the broccoli rabe would not normally have to be iced in
March.
Kent Harvin testified that broccoli rabe is an Italian vege-
table that is bought primarily by Italian restaurants or spe-
cialty oriented retailers who have an Italian trade; that it
should not be very difficult for Respondent’s night truck-
driver to discern the difference between good and bad broc-
coli rabe; that when the buds of the broccoli rabe start to
flower and turn yellow it is a sign that it is starting to dete-
riorate; that as the broccoli rabe goes bad it begins to smell
and as its condition deteriorates further, the smell gets worse;
that he buys broccoli rabe at the Distribution Center 25 to
40 times a year; that while he has seen broccoli rabe without
ice, he would never buy it without ice because he would be
skeptical as to how it had been handled; and that ice should
not be taken out of the container and if it is for inspection
purposes, the ice should be put back in again.
On or about March 22, a little after 12 noon, according
to his testimony, Donovan met Tunnell at Delaware and
Washington Avenues in Philadelphia and gave him some
union authorization cards. Donovan testified that during this
meeting Tunnell said, ‘‘Harvin was giving . . . [him,
Tunnell] a bad time.’’ Donovan could not remember if
Tunnell mentioned anything about bad broccoli rabe during
this meeting. Tunnell testified that McConnell13 telephoned
the Union to arrange for him to pick up union authorization
cards; that he was not sure of the day or the date but he had
a run in south Philadelphia on March 22 or 23, which assert-
edly would have been a Tuesday or Wednesday and he ob-
tained the union authorization cards from Donovan; that he
gave some of the cards to Walker; that he ‘‘got about four
signed and handed several of them out to the rest of the
other drivers, and they had in turn . . . handed them back
to Jeff or mailed them to the Union.’’14 On cross-examina-
tion Tunnell testified that he discussed his hours with Dono-
van when he picked up the authorization cards; and that he
told Donovan that he believed that Respondent wanted him
to work 5 days and 5 nights. This meeting occurred on
March 23 since Warner was fired on March 22 and Tunnell
did not know about it until the afternoon of March 22. War-
ner was supposed to bring the union authorization cards to
work on March 23.
Walker testified, regarding the union authorization cards,
that Tunnell was to take care of all the drivers and he, Walk-
er, was to take care of the warehouse workers.
According to Kent Harvin’s testimony, on March 22 Re-
spondent had orders for a couple of cases of broccoli rabe.
Kent Harvin testified that the customer had specified Andy
Boy broccoli rabe, which is handled by only one vendor,
Pinto Brothers, at the Distribution Center; and that he sent
Tunnell to Pinto. Kent Harvin sponsored Respondent’s Ex-
hibit 2 which assertedly is the draft of the night truck market
list for ‘‘3–22–93.’’ He testified that the list refers to those
items picked up on March 22 and that the document intro-
duced herein as Respondent’s Exhibit 2 is the final night
truck market list worked up by Satchell and Tunnell after he
returned to Respondent’s warehouse with the commodities
listed;15 that after the entry ‘‘X2 B Rabe Andy boy Pinto’’
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the same procedure used to generate R. Exh. 2 which assertedly
is the market list for March 22] at this time, and bring in James
[Satchel] to testify.’’ Satchel was not called to testify. R. Exhs. 1
and 2 were sponsored by Kent Harvin.
16 It is noted that the invoice’s taken by the delivering driver for
the delivery to Giunta’s (R. Exh. 14) and the one for Hercules (R.
Exh. 11) both have the prices for the broccoli rabe. The night truck
market list (R. Exh. 2) does not have a price for broccoli rabe albeit
it contains prices for other items on the list.
17 Frank Giunta, the owner of Giunta’s which is located in West-
chester, Pennsylvania, testified that as of March 1993 he had a busi-
ness relationship with T. K. Harvin for about 1 year and that
Giunta’s ordered about $1500 worth of produce weekly from T. K.
Harvin. Giunta testified that before March 1993 nothing out of the
ordinary occurred with T. K. Harvin.
18 Regarding the Hercules shipment, Kent Harvin sponsored the in-
volved trip sheet (R. Exh. 9), the involved ‘‘Hot Sheet’’ (R. Exh.
10), and the involved delivery invoice (R. Exh. 11). Hercules would
not accept delivery of the ‘‘bad’’ broccoli rabe and the delivery driv-
er on March 23 immediately took the case back.
19 Tunnel was shown an order sheet dated March 23, 1993, and
another one dated March 22, 1993 (R. Exhs. 1 and 2), respectively.
As noted above, Tunnell testified that they were not the original
order sheets he used those nights because the ones he used had the
names of the vendor on them where he picked up the produce and
they did not have the prices. Both of the exhibits do have ‘‘X’’’s
and circles around the number of cases. Also, Tunnell pointed out
that there was no writing on the back sides of the R. Exhs. 1 and
2 covering the notes which would be taken when he telephoned
Satchell at 10 or 11 p.m.
on Respondent’s Exhibit 2 there is written ‘‘Return’’ which
shows ‘‘that they were going to be, or were returned. The
word return is written where the price would be, and if we
were going to return it, price becomes irrelevant;’’ that re-
garding the handwritten ‘‘return’’ on the list ‘‘that’s, a note
is made that, a note is noted that we are going to return
them. Therefore, when it came time to do the bills a week
or two later, we’d see that they were returned’’; that with re-
spect to the prices listed on Respondent’s Exhibit 2, Tinnin
would get on the phone and call the vendors listed on the
sheet and he would speak with Kent Harvin about 4:30 a.m.
and they would discuss how much the vendor charged and
what to charge the customer; that subsequent to his discus-
sion with Tinnin, Tinnin would put the price on the night
truck market list; and that Tinnin needed the prices so he
could complete the invoices which the delivery drivers would
take with their deliveries later that morning.16
Paul Donati, Giunta’s Thriftway’s produce manager, testi-
fied that while Giunta’s has a major produce supplier,
Giunta’s deals with Harvin and a few other smaller suppliers,
because some of the time Giunta’s cannot get what it wants
as far as quantity and/or quality from the major suppliers and
the smaller suppliers can deal on a shorter notice; that before
March 1993 he did not have any problems with the quality
of the produce delivered by T. K. Harvin; that in March
1993 Giunta’s had problems with two cases of broccoli rabe
delivered by T. K. Harvin; that he had asked T. K. Harvin
salesman, Mike Doyle, if he could get a case of Andy Boy
broccoli rabe and Doyle told him that he had seen the Andy
Boy brand downtown; that Doyle telephoned him later that
day indicating it was available; that this occurred early on in
our relationship’’;17 that his assistant produce manager, Jim
Thomas, signed for receipt of the case of broccoli rabe on
March 23 (R. Exh. 14–1); that he did not see the case of
broccoli rabe when it came off the truck and when he opened
it he told Thomas that Giunta’s could not sell it; that there
was no ice on the broccoli rabe and it was not as fresh as
Doyle said it would be; that the florets were dead yellow and
the greens were dried up at the end and withered up; that
if someone purchased good broccoli rabe on March 22 it
would not have been in the condition of the broccoli rabe he
received on March 23 ‘‘unless it was stored in an oven.
There was basically no, and even then, the florets wouldn’t
have turned yellow’’; and that ‘‘I talked to Mike later that
day and told him, you know, what the product looked like
and asked him if he could have it picked up the following
day, issue me a credit, and if he thought that the product
downtown was better, then reorder for me, and I would have
the customers, you know.’’ On cross-examination Donati tes-
tified that before Giunta’s received the first case of broccoli
rabe from T. K. Harvin, Doyle said he had seen the product
at the Distribution Center and it ‘‘looked real nice’’; that
when he spoke to Doyle after he looked at the first case, he
told Doyle that it was nowhere near what he expected and
he wanted to send it back and get a credit on it; that Doyle
said he did not know what happened and he told Doyle ‘‘[I]f
it’s that nice, can you get me another one’’; and that Doyle
said he would have another case sent the following day.
According to Kent Harvin’s testimony, between 10 and 11
a.m. on Tuesday, March 23, he received a telephone call
from one of Respondent’s salesmen regarding the broccoli
rabe shipped to Giunta’s, and Kent Harvin told the salesman
to tell Giunta’s to send the case back to Harvin the next day
and he would try to get them another case; that he called Re-
spondent’s Chester warehouse, which was across the street
from Respondent’s offices and indicated that he wanted to
speak to Tunnell when he returned from his day run; that
subsequently he saw the ‘‘hot sheet’’ which indicated that
the other box of broccoli rabe had been rejected by Hercu-
les;18 and that when Tunnell returned to the warehouse that
day Kent Harvin told him as follows:
What the fuck is your problem? You’re buying shit
on the night truck. I got customers calling me, I got
salesmen calling me, telling me that the stuff is shit.
Your job is to check the stuff. If this is the way you
are going to do your job, who the hell needs you.
On March 23 Kent Harvin, according to Tunnell’s testi-
mony, told him upon his return from his deliveries that
‘‘[y]ou bought bad goddamned broccoli rabe—the next time
you buy bad broccoli rabe, I’m going to take it out of your
pay.’’ Tunnell testified that he said, ‘‘[O]kay.’’ This occurred
between noon and 2 p.m. That evening Tunnell returned a
case of broccoli rabe to the Distribution Center. Tunnell tes-
tified that he did not know if this case contained bad broccoli
since he did not look at the broccoli. He did notice that the
case had been re-iced. It had already been placed in his
truck. On cross-examination Tunnell denied picking up a
case of broccoli rabe the same night he returned the case of
broccoli rabe. Subsequently, he testified that he did not think
that he picked up a case of broccoli rabe that night.19 And
then Tunnell testified that he had no recollection at all
515T. K. HARVIN & SONS
20 Kent Harvin testified that Hercules Country Club needed the
case of broccoli rabe for a function on March 23 and he could not
get Hercules another box and get it to the Country Club in time for
the function. Keith Harvin sponsored R. Exh. 12, which is a return
slip for the case of broccoli rabe returned to Pinto Brothers on
March 23. The slip is signed by Dave, who Kent Harvin testified,
works for Pinto Brothers.
21 Kent Harvin sponsored the ‘‘3–23–93 NITE TRUCK MARKET
LIST’’ which lists ‘‘I B. Rabe ANDY BOY PINTO’’ (R. Exh. 1).
Kent Harvin also sponsored R. Exhs. 17, 18, and 19 which are for
petty cash. Kent Harvin testified that Tunnell was paid $40 a night
as casual labor for his night run to the Distribution Center, and that
Tunnell was paid a flat rate for this run no matter how much time
he spent at the Distribution Center.
22 It is noted that while there is an invoice to Guinta’s dated ‘‘3–
23–93’’ signed by Guinta’s assistant produce manager, Thomas, for
the first case of broccoli rabe (R. Exh. 14-1), and an invoice to
Guinta’s dated ‘‘3/24/93’’ signed by Donati for the pickup (along
with the delivery of 15 cases of another product) of the first case
of broccoli rabe, R. Exh. 14-2 there is no document which covers
or invoices the delivery of the second case of broccoli rabe to
Giunta’s. And as noted above, Donati testified that he did not subse-
quently receive a credit slip for the second case. It would seem if
the second case were delivered as an even exchange of the first there
would have been no need to give Giunta’s a credit on the first. If
this approach was not taken, it would seem that, as there assertedly
is documentation invoicing and crediting the first, there should have
been some documentation invoicing and crediting the second case to
Giunta’s, notwithstanding the fact that the second case was not taken
back by Respondent.
23 Giunta testified, when asked what he contemplated doing about
T. K. Harvin as a result of this incident, that ‘‘we would have defi-
nitely taken the order somewhere else for sure.’’ Donati testified that
another supplier delivered a case of ‘‘beautiful’’ Andy Boy broccoli
rabe on March 25.
whether or not he picked up broccoli rabe on the night of
March 23.
Late in the afternoon of either March 23 or 24, according
to the testimony of Walker, he and Keith Harvin were alone
in the warehouse office and Keith said, ‘‘[T]hat bozo was
out in the parking lot trying to stir trouble.’’ According to
Walker’s testimony, he asked Keith Harvin who he was re-
ferring to and Keith Harvin said his name was Hugh Dono-
van and that he had been there before causing trouble. On
cross-examination Walker testified that he did not see Dono-
van on this occasion and at this point in time he did not
know who Donovan was by name. Keith Harvin testified that
he never said to Walker or anybody else on any occasion
that Donovan to as a bozo; that he never said to Walker
‘‘that bozo is out in the parking lot trying to make trouble’’;
and that he told Walker that ‘‘Hughie [Donovan] was out
front, and he was, he had job to do.’’
On either Tuesday, March 23, or Wednesday, March 24,
according to the testimony of Walker, after he had received
the union authorization cards Keith asked him if there were
any problems with anybody. More specifically, Walker testi-
fied that while they were alone outside the cooler he and
Keith Harvin engaged in the following conversation:
He asked me if I was aware of anybody who had any
problems, whether it be money or the time or day they
were putting in, and I said no. And, I asked him why,
and he said cause sometimes—by the time you find out
about it, its too late to do anything about it.
On cross-examination Walker testified that Kent and Keith
have, in the past, asked him if there were any problems with
anything and they would occasionally ask how the employ-
ees were doing. Keith Harvin testified that probably every
workday he asked Walker if there were any problems regard-
ing fruits and produce; and that about once a week he would
ask Walker, who was supervising, if there were any problems
involving work, money, the employees, and overtime.
Regarding the night run on March 23, Kent Harvin testi-
fied that Tunnell took the box of broccoli rabe which Hercu-
les Country Club rejected back to Pinto Brothers at the Dis-
tribution Center;20 and that Tunnell picked up another box of
broccoli rabe at Pinto Brothers21 for delivery to Giunta’s
Thriftway the next day, Wednesday, March 24.
With respect to what occurred on Wednesday, March 24,
Donati testified that he signed Respondent’s Exhibit 14-2
which is a credit for the first case of broccoli rabe which was
assertedly picked up at Giunta’s on March 24, 1994, ‘‘[i]t
says poor quality on the reason why it was picked up. And
Giunta’s was issued a credit on this broccoli rabe.’’; that re-
garding the second case, Giunta’s ‘‘didn’t receive a credit
slip. What we did was, we worked it off the total dollar fig-
ure of the next order’’;22 that he was told to throw the sec-
ond case out; that the second case looked basically the same
as the first, if not worse; that he telephoned Doyle who said
he would get back to him; that whenever Giunta’s gets some-
thing bad it has to store the item until the next day until it
is picked up and the product to be returned takes up space
in the backroom and it gets pushed around ‘‘[a]nd if . . .
[Giunta’s] night people . . . don’t know that it’s being stored
to send back. . . . they’ll maybe try to redo some of it, and
get rid of the rest’’; that Doyle called him back and said,
‘‘[J]ust . . . throw it out. I talked to my people, throw it out.
We’ll get credit for you’’; that ‘‘if this were to continue, I
have enough suppliers, there’s enough people out there that
want my business that I would have gone elsewhere eventu-
ally, yes’’; that the approximately dozen small suppliers of
produce in Giunta’s delivery area are very competitive; and
that it would have been relatively simple for Giunta’s to de-
cide to cancel this relationship.23 On cross-examination
Donati testified that there was no other small supplier that
Giunta’s deals with like T. K. Harvin that gets most of its
produce from the Philadelphia Distribution Center; that if
broccoli rabe is subject to subfreezing temperatures ‘‘the
leaves will turn a dark, dark green. As if they were frozen.
And then when they thaw out . . . they’ll be, a little bit
withered . . . but they’ll stay a dark green’’; and that he told
Doyle regarding the second case that there was no ice on it,
the florets were yellow, the leaves were all dried up, and it
looked like an old case of broccoli rabe. On redirect Donati
testified that he could not ‘‘honestly . . . [say] yes or no’’
that the second case was actually the first case returned right
back to Giunta’s. Subsequently Donati testified the two cases
were not subjected to subfreezing temperatures for the fol-
lowing reasons:
Because had they been, the florets wouldn’t have
yellowed. They still would have been, in the green, the
green coloring. Had those been frozen, the florets
would have been a darker green also, along with the
leaves. Just, and just the top part.
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Kent Harvin testified that it was the general practice for the
driver who returned something to Pinto Brothers to get someone at
Pinto Brothers to sign Respondent’s return slip. Respondent did not
call as a witness the driver who handled the March 24 night run.
25 More specifically, Kent Harvin testified as follows:
So sometime either real late Wednesday or Thursday morning,
and I think it was Thursday when I got back into my office and
read Wednesday’s hot sheet. I found out that the one box of
broccoli rabe that had been bought on the night truck and deliv-
ered the day before was, back to Giuntas, was bad. And I was
beside myself. I am saying, ‘‘Jesus Christ, two days in a row!’
26 According to Kent Harvin’s testimony, Guinta’s Thriftway told
him, after the second case of bad broccoli rabe was delivered, ‘‘if
. . . [he] couldn’t get it right that . . . [he] was out the door.’’
27 Kent Harvin testified that since he had Guinta’s throw out this
case there would not be a return sheet or a ‘‘HOT SHEET’’ for it;
and that he never discussed the three cases of bad broccoli rabe with
Pinto Brothers.
28 Kent Harvin testified that he believed that it was Thursday
evening.
29 On redirect Kent Harvin testified that while some of the in-
volved shipments could have come originally from the Distribution
Center on the night truck, most of the involved items are general
bulk volume nonspecialty items which are stored in the warehouse
and not picked up on the night run. Regarding two of the specialty
items covered, namely, raspberries and blood oranges, Kent Harvin
pointed out that the former were smashed and the latter were not
dark enough for the customer; and that while they would have been
picked up by the night driver, neither dealt with the quality of the
fruit picked up at the Distribution Center by the night driver.
30 G.C. Exh. 11 are Respondent’s rules and regulations which were
effective at the time of the Tunnell termination.
The whole bunch itself, had this been frozen, had
this bunch that had been frozen would be dark green
and actually have a paper thin skin on it. You could
pick it up and peel the frozen piece off. But the florets
would still be green.
These are yellow like this completely. Completely
yellow.
Kent Harvin sponsored Respondent’s Exhibit 13, which is
the delivering driver’s trip sheet covering the March 24 pick-
up at Giunta’s Thriftway of the first case of broccoli rabe,
which was delivered the day before, March 23. He also spon-
sored, as here pertinent, Respondent’s Exhibit 14-2 which is
Respondent’s computerized invoice covering, as here perti-
nent, the pickup of the one case of broccoli rabe on March
24. The invoice is signed by Donati. Kent Harvin also spon-
sored a ‘‘Return Slip’’ on Harvin letterhead naming Pinto
and dated ‘‘3/24/93’’ and which indicates ‘‘1 Broccoli Rabe
Poor Quality’’ (R. Exh. 15). Unlike Respondent’s Exhibit 12,
Respondent’s Exhibit 15 does not have the signature of
Dave, or anyone else from Pinto Brothers.24 And finally
Kent Harvin sponsored Respondent’s Exhibit 16 which is the
‘‘HOT SHEET’’ covering the ‘‘3–24–93’’ pickup of the case
of broccoli rabe at Giunta’s. The condition is described
thereon as ‘‘TRASH.’’
Kent Harvin testified that he had been spending a lot of
time in Wilmington with Respondent’s new facility and ei-
ther real late Wednesday, March 24, or Thursday, March 25,
he read Wednesday’s ‘‘HOT SHEET’’ and ‘‘found out that
the one box of broccoli rabe that [Tunnell] had . . . bought
on the night truck and delivered the day before was, back to
Giunta’s, and was bad’’ (emphasis added);25 that ‘‘Giunta’s
is saying, you know, who needs to do business’’;26 that he
‘‘didn’t even ask . . . [Giunta’s] to save the box. I said
throw it out.’’;27 that he had asked Giunta’s ‘‘the day before
to save it and let me take it back’’; that actually his con-
versation would have been with the salesman; that to his way
of thinking Tunnell ‘‘has cancer. [He, Kent] . . . tried chem-
otherapy . . . [he] tried radiation, through talking to him,
now it was time to get out the knife cut the cancer out, he
was going, that was it’’; that since drivers were not his realm
of responsibility he spoke with Keith about Tunnell some-
time on Thursday, March 25, down in Wilmington;28 that it
was decided that since Friday was Respondent’s busiest day
and Respondent needed all of its drivers and since Tunnell
had already asked to have off for the weekend to attend the
Reserves, it was decided not to do anything that day. Kent
Harvin also testified that when he and his brother decided to
fire Tunnell neither he nor his brother had any knowledge
that Tunnell was interested in a union, active in a union
drive, solicited cards for a union, or was in any way involved
with the Union; and that Tunnell’s alleged union activity did
not play any part in their decision to fire Tunnell.
On cross-examination of Kent Harvin, the General Counsel
introduced a number of ‘‘HOT SHEETS’’ (G.C. Exhs. 7-A
through 7-CC), which show, among other things, rejection of
shipments by customers.29 Also, the General Counsel intro-
duced General Counsel’s Exhibits 8 and 9 which are driver
sheets for March 22 and 23, respectively. Both show the re-
turn of cucumbers whose condition was described as
‘‘TRASH.’’ After being shown these two exhibits, Kent
Harvin testified that Tunnell ‘‘was not fired for delivery of
[bad] produce to . . . customers. That’s not the reason why
. . . [Tunnell] was terminated’’; and that he did not know
of anyone else at Respondent who was terminated in March
1993 for delivering produce to customers that was rejected
because of its quality.30 On cross-examination by counsel for
the Union, Kent Harvin testified that while he has a temper
and was ‘‘livid’’ when he found out about the second case
of broccoli rabe which was delivered to Giunta’s, he was not
mad when he found out his employees were joining a Union.
Rather, Kent Harvin testified that he was concerned. Also, he
testified that although he was in a very competitive business,
he was not aware of the additional expenses that a union
may or may not bring. According to Kent Harvin’s testi-
mony, the three cases of ‘‘bad’’ broccoli rabe cost a total of
under $100. Kent Harvin testified that he was ‘‘mad’’ be-
cause buying ‘‘bad’’ broccoli rabe two nights in a row
‘‘showed a total disregard for the business, the company, the
customer, and his job. That’s why I was livid. The fact that
he just didn’t give a damn.’’
On redirect regarding General Counsel’s Exhibits 8 and 9,
Kent Harvin testified that the items described as ‘‘TRASH,’’
namely, cucumbers are not normally picked up by the night
truck and the number found to be trash was relatively few.
Also, Kent Harvin testified that during the over 4 years he
worked with the Company he could not recall a situation
where a night driver purchased poor quality items 2 days in
a row. With respect to how he was informed about the
Giunta’s second case, Kent Harvin testified that his sales-
man, Doyle, told him on Thursday morning, March 25, that
the second case of broccoli rabe that was sent to Giunta’s
was no good also; that he would have had Wednesday’s
517T. K. HARVIN & SONS
31 After asking Kent Harvin what he told Keith, counsel for Re-
spondent asked, ‘‘[I]n words to the effect of your interest of how
you felt, what you wanted, or what you recommended.’’
32 When asked when he became aware that Tunnell was interested
in having the Union at the Company, Anderson testified, ‘‘I would
think it would be after he was fired [because] [i]t just coincided with
the fliers being put on the cars.’’
33 Keith Harvin testified that he is in charge of hiring people, and
that he generally oversees the Company as far as the workforce, ac-
counting department, and truck maintenance is concerned.
34 R. Exhs. 7 and 8. The ‘‘NITE TRUCK MARKET LIST’’ pick-
up sheet introduced herein and the returned merchandise sheet of the
vendor are both dated February 28.
‘‘HOT SHEET’’ on Thursday morning; and that even though
he was angry he did not contact his brother immediately be-
cause the drivers had already left 4 or 5 hours’ earlier, Keith
was in Delaware and Kent knew he was going there later in
the day so he just waited until then. When asked what he
told Keith,31 Kent testified as follows:
My opening statement would have been something to
the effect, get Josh the fuck outta here. He’s done. Ex-
cuse me.
And then I would have gone on to explain why. And
then Keith would have told me what he thought.
On recross, Kent Harvin testified as follows regarding
what Keith said the evening of March 25:
Keith first, he said, well, we don’t have extra drivers,
so I need him tomorrow. And, he said, he’s going away
for the weekend. And you know, we’re, we’ll be okay.
We have, you know our business is lighter in the Mon-
days, on Mondays through the first part of the week,
we don’t use as many trucks. We’ll be okay after that.
Meaning Friday.
Keith Harvin testified that on Thursday, March 25, 1993,
his brother Kent came to the Company’s Wilmington facility
about 5 p.m.; that Kent was ‘‘upset and pissed off about
something . . . [Tunnell] had done’’; that Kent told him ‘‘to
fire the son of a bitch, Josh Tunnell. Get rid of him’’; that
Kent told him about the ‘‘Giunta’s incident’’; that he ex-
plained that he did not have a truckdriver to take Tunnell’s
Friday delivery run and no one knew Tunnell’s route so he
needed Tunnell the next day and he, Tunnell, would be fired
on Monday; and that they decided that Kent would tell
Tunnell.
On Friday, March 26, 1994, Tunnell entered Respondent’s
office which, at that time, was located across the street from
its Chester warehouse. Tunnell testified that he was standing
in the office; that an unnamed secretary, Mike Anderson,
who is one of Respondent’s drivers, and Keith Harvin’s wife,
Melody, were in the office; that Anderson approached him
and said, ‘‘You know you should get your boy Alfred to sign
one of them cards’’; that he did not respond; and that Alfred
is another one of Respondent’s truckdrivers. After he turned
his trip tickets and money into Melody Harvin he told her
he needed a $50 advance because he had to go to National
Guards that weekend, he did not have much money, and his
next paycheck was not until April 1 or 2. Tunnell testified
that Melody Harvin telephoned Keith Harvin; that he told
Keith he needed money; and that Keith said, ‘‘You got
Guards this weekend. You and your old lady going to have
a good time, right. I’ll see you Monday.’’ On cross-examina-
tion Tunnell testified that Melody Harvin was not in the
same room as he and Anderson when Anderson made the
above-described statement; that the door to Melody Harvin’s
office was open; that Melody Harvin was about 18 feet from
him when Anderson made the statement; that Anderson said
you, ‘‘need to talk to . . . [your] boy Al, he’ll go for it’’;
and that Anderson was speaking in a normal conversational
tone. On redirect Tunnell testified that when he testified
herein he did not know if Anderson mentioned the union au-
thorization cards when he made this statement in the office.
Keith Harvin testified that when his wife, Melody, tele-
phoned him he told her to give Tunnell the $50 he requested
but he did not have a telephone conversation with Tunnell
that day. Anderson testified that the conversation Tunnell al-
leges he had with him in the office on the Friday before
Tunnell was fired never occurred.32
On Sunday, March 28, Satchell telephoned Tunnell and
told him that he had Sunday night and Monday off. Keith
Harvin testified that he ‘‘would have called . . . [Satchell]
Sunday, told him to call Josh [Tunnell], and tell him he was
off that night and also off that Monday.’’ On Sunday, March
28, Satchell prepared a list of which driver took which route
(G.C. Exh. 14). Satchell wrote ‘‘Backup John M. [McCon-
nell] off Joshua’’ Keith Harvin testified that this meant that
Tunnell was off that day.
When called at the outset of the hearing herein by counsel
for the General Counsel, Keith Harvin testified that he and
his brother Kent discussed terminating Tunnell and the deci-
sion, according to Keith Harvin’s ‘‘best recollection,’’ was
reached on March 29, the day Tunnell was terminated.33 Ac-
cording to Keith Harvin’s testimony, Tunnell, who was re-
sponsible for checking the product, purchased rotten broccoli
rabe two nights in a row, and the rotten product was deliv-
ered to the same customer, Giunta’s Thriftway, 2 days in a
row. Keith Harvin explained that because of Tunnell’s mis-
takes Respondent ran the risk of losing this account.
According to Kent Harvin’s testimony, there were other
prior incidents when Tunnell, as a night truckdriver, did not
‘‘get it [product] and get it good.’’ Kent Harvin testified that
in late February he had a conversation with Tunnell when he
bought some bananas which had to be returned because they
were bad or they were not what the customer ordered;34 that
on occasion Tunnell claimed that some item was not avail-
able at the Distribution Center and when he went to the Dis-
tribution Center about 4 hours later the item was available;
that this necessitated an emergency delivery, which is a serv-
ice Respondent provides ‘‘everyday’’ but which is a very ex-
pensive process; and that he spoke to Tunnell about the
availability situation in the middle of March. When asked on
direct by Respondent’s counsel why Respondent did not keep
Tunnell for his day run only, Kent Harvin testified that
Tunnell ‘‘was cancer . . . an accident waiting to happen. If
he had such disregard for the customer, for the company, for
his job . . . it was just a matter of time before something
happened on the day shift that just was a continuation of
what . . . [Kent Harvin] was seeing on the night.’’ Kent
Harvin testified that he terminated Tunnell on Monday,
March 29.
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 Tunnell testified that he had never received a written warning
during his employment with Respondent. On cross-examination
Tunnell testified that in November 1992 Kent Harvin ‘‘hollered’’ at
him about some raspberries but it turned out that he was not the re-
sponsible party; that no one ever told him that on February 28 he
picked up three cases of allegedly faulty bananas which had to be
returned; and that he was not aware that on March 10 he picked up
four cases of allegedly faulty french beans (haricots vert). Tunnell
testified that T. K. Harvin had haricots vert in its warehouse and
‘‘he changes and sent back the following . . . night to make the dif-
ference.’’ On redirect Tunnell testified that no one reprimanded him
for allegedly picking faulty bananas on February 28 or faulty beans
on March 10.
36 Tunnell testified that he was never told by anyone in manage-
ment that he had a problem with how he did his day run.
On Monday night, March 29, Kent Harvin telephoned
Tunnell and said, according to Tunnell’s testimony, that he
was being terminated for buying bad produce. More specifi-
cally, Tunnell testified that Kent Harvin said, ‘‘Josh, me and
Keith is not satisfied with the way you’re buying produce at
night. We’re going to just go ahead and let you go.’’35
On Tuesday, March 30, Tunnell telephoned Keith Harvin
and asked why he was fired from the day job also since it
did not have anything to do with the night job.36 Keith
Harvin told Tunnell to bring in his uniform and get his pay-
check.
With respect to what it was charged by Pinto Brothers re-
garding the three involved cases of broccoli rabe, Kent
Harvin gave the following testimony:
JUDGE WEST: What kind of an account do you have
with Pinto? Is it a cash and carry or a charge?
THE WITNESS: Charge. All by business is charge—
JUDGE WEST: Are you billed monthly?
THE WITNESS: No sir, weekly.
JUDGE WEST: Weekly?
THE WITNESS: Yes sir.
. . . .
JUDGE WEST: With respect to the third case that was
picked up, it was actually an individual case picked up,
according to the record, on the 23rd of March?
THE WITNESS: I think that’s correct.
JUDGE WEST: [There is [t]estimony . . . [b]y you
and at least one other witness, that that case was de-
stroyed?
THE WITNESS: You mean by that burned in the
trash?
JUDGE WEST: Right.
THE WITNESS: Yes sir.
JUDGE WEST: Since it wasn’t returned, it would fol-
low logically that Pinto billed you for that third case,
and you paid for that third case, is that correct?
THE WITNESS: Yes and no. Logically, it would fall
that way. And an exception to that would be that, you
know, for the most part, in our business, there is no se-
crets. Everybody knows what they’re selling, and I had
the relationship, I had the relationship with just about
all the merchants down on the market that they we’re
a very honorably company, we try to buy good stuff.
And you know, if I were to call and say, hey, you
know, I got some bad broccoli rabe, or I got some bad
peppers, what I told them, you know. I wouldn’t nec-
essarily have to pay for it. If they knew that what I was
telling them was the truth. Meaning that they had other
complaints, or something of that nature.
But the normal, because I didn’t have paper work to
support that return, would indicate that you know, a
week or two later, when a clerical person was doing the
bill, because there wasn’t paper work to support a re-
turn, then the procedure would be to pay the bill.
JUDGE WEST: So you think that’s what happened
here, you paid the bill for that third case?
THE WITNESS: I happen to know that I paid for two
out of the three.
JUDGE WEST: So you didn’t pay for the third case?
THE WITNESS: No sir. Well, I paid for two out of
the three.
JUDGE WEST: You paid for two out of the three?
THE WITNESS: Yes sir.
JUDGE WEST: And you returned two out of the three.
THE WITNESS: Correct.
JUDGE WEST: So you weren’t given credit for both
of the cases that were returned?
THE WITNESS: No sir. I didn’t take credit. I was
given credit, I didn’t take it. It was, what it worked out
to be is a clerical error a couple of weeks down the
road when the bill went to get paid. There was an error.
And one of the two cases of broccoli rabe, to the best
of my knowledge, were paid for in error.
JUDGE WEST: Okay. So you paid for two out of the
three, and it was an error. Was that error ever straight-
ened out?
THE WITNESS: I didn’t find out about it until very
recently. By re-looking at some of the documents
JUDGE WEST: Has anyone contacted Pinto to point
that out, that it was an error?
THE WITNESS: I haven’t yet, no sir.
JUDGE WEST: Anything else?
MR. CABOT: No.
MR. WAINSTEIN: Nothing, Your Honor.
After the lunch break Kent Harvin gave the following tes-
timony:
MR. CABOT: Your Honor, I’d like to have Mr. Keith,
Kent Harvin to return to the stand to ask him one or
two questions, just for the point of clarification of the
record in response to I think the last or the next to the
last question that you asked.
JUDGE WEST: Any objection?
MR. WAINSTEIN: No objection.
Whereupon, Timothy Harvin was recalled as a witness,
and having been previously duly sworn, continued to testify
on oath as follows:
JUDGE WEST: You’re still under oath, sir.
(Further redirect examination)
Q. (By Mr. Cabot): Mr. Harvin, I think you testified
that you were the president of T. K. Harvin?
A. Yes sir.
Q. And that you were the president of T. K. Harvin
during 1993?
A. Yes sir.
Q. And you were the president just to be very clear
and specific during March of 1993.
519T. K. HARVIN & SONS
37 According to Keith Harvin’s testimony, this was the name of the
retail operation which switched to wholesale in 1984.
38 Keith Harvin testified that G.C. Exhs. 12(a), (b), and (c) is a
list of employees terminated by Respondent during a specified pe-
riod; that the list was prepared in response to a subpoena Respond-
ent received for the hearing herein; and that with one exception not
here relevant, he wrote in the reason for the terminations. The list
gives the same date of termination, March 28, 1993, for Tunnell,
Warner, and Walker. The reason for the terminations of Tunnell and
Warner are the same, namely, ‘‘Laid off (Fired).’’ The reason speci-
fied for Walker’s termination is ‘‘Laid off.’’ Only the word ‘‘fired’’
appears after driver Ray Miller’s name.
39 It was indicated by counsel for the General Counsel at the hear-
ing herein that, with respect to the dates on the authorization cards,
1 was signed on March 24, 11, including Tunnell’s, were signed on
March 25, and 4 were signed on March 26. Another card was signed
on May 11. While counsel for the General Counsel indicated that
Walker signed a card, the card apparently had been mislaid.
A. Yes sir.
Q. During your, during the period in question, March
of 1993, let’s take during your entire tenure as presi-
dent of T. K. Harvin. Is one of your responsibilities to
check bills and invoices before they go out to cus-
tomers?
A. No sir.
Q. Is that a responsibility of your brother, Keith
Harvin?
A. No sir.
Q. When was the first time that you discovered that
there were two boxes of broccoli rabe that we’ve been
talking about during this hearing, for which you did not
receive credit?
A. This week. Earlier this week.
Q. You haven’t, as I understand your testimony re-
ceived credit yet for the two crates of broccoli rabe?
A. Have not received credit for two.
Q. Isn’t it important for you to get, or seek, or obtain
credit for that, for those two boxes of broccoli rabe?
A. Yes sir. Yeah, we’re, yes sir, it’s, it is important.
But it’s certainly not the most important issue. It’s a
total of $32. $16 times the two crates.
But really what was at issue here was my reputation,
you know, as being a good shipper of good stuff to
good places, was being destroyed. At least in Giunta’s
eyes. And you know, that’s the real issue here is why
I was so upset and things, and Josh got terminated.
It was because of, you know, the damage that could
be done. I could lose a customer. Giunta’s’ approxi-
mately a thousand, a hundred thousand dollars a year,
customer to us. And you know, the fact that we
couldn’t get something right two days in a row was just
unforgivable.
MR. CABOT: No further questions.
JUDGE WEST: Anything else?
MR. WAINSTEIN: No. [Emphasis added.]
Keith Harvin testified that it is not his responsibility to re-
view bills and invoices and the first time he discovered that
T. K. Harvin did not get a credit for one of the involved
cases of broccoli rabe was the week he first testified herein.
The bills and credits of Pinto Brothers, Inc. to ‘‘5K’s Farm
Market’’37 for the week ending March 25, 1993, were re-
ceived herein as General Counsel’s Exhibits 13(a), (b), and
(c). As listed on General Counsel’s Exhibit 13(a) for the date
March 23 there is an entry for two Rappini, which is broc-
coli rabe, for the date March 24 there is an entry for one
Rappini; and for the date March 25 there is an entry for three
Rappini. General Counsel’s Exhibit 13(c) for March 23 lists
a credit for ‘‘1 broccoli rabe.’’ Keith Harvin testified that the
three above described cases of Rappini with a date of March
25 were bought by his brother Kent probably for the week-
end since the market is closed on Saturdays and Sundays and
Kent was probably buying it for Saturday deliveries; and that
there are some situations where Respondent purchases broc-
coli rabe where it is not on special order because Respondent
has Italian restaurant customers that order on Saturdays and
the Distribution Center is closed so Respondent has to antici-
pate the customer’s needs. Kent Harvin testified regarding
Pinto’s bill for the week ending March 25 (G.C. Exh. 13(a))
and, as here pertinent, the credit (G.C. Exh. 13(c)), that the
rappini listed for ‘‘3/23’’ was actually purchased the night of
March 22 because anything bought after the day people
leave, namely, night purchases, is billed on the next day; that
he purchased the three cases listed on the bill for ‘‘3/25’’
‘‘because . . . [he] already had orders for it’’; that he would
not have purchased broccoli rabe on March 25 if he did not
have a special order for it; and that perhaps the reason the
credit from Pinto, General Counsel’s Exhibit 13(c), is dated
‘‘3/23’’ is that T. K. Harvin’s return slip (R. Exh. 12), a
copy of which was left with Pinto, is dated March 23, the
night when Tunnell returned the case of broccoli rabe which
was rejected by Hercules Country Club.
According to the testimony of Keith Harvin, driver Warner
was terminated at the end of March 1993 because he was
suspected of stealing a pocketbook from Giunta’s Thriftway
and he ran out of gas while making deliveries and con-
sequently made his deliveries late causing one customer to
telephone Respondent.38 Keith Harvin testified that Miller,
was terminated in the beginning of April 1993 when one of
Respondent’s customers accused Miller of urinating at its es-
tablishment. Also, Keith Harvin testified that in March 1993
other than Tunnell, no other employee was disciplined for
reasons relating to the delivery of bad produce to customers.
Sometime around April 2 (8 to 10 days after Donovan
gave the union authorization cards to Tunnell) Donovan met
Walker at McDade Mall and Walker gave Donovan a num-
ber of signed authorization cards.39
According to Donovan’s testimony, on a Sunday sometime
in early April a formal union meeting was held at the Long-
shoremen’s hall in Wilmington. Kuhn, among others, at-
tended. This was the only union meeting held during the
campaign.
Kuhn, who was hired by Respondent in January 1993 as
a truckdriver, testified that in the end of March or the begin-
ning of April 1993 Keith Harvin said, after Kuhn was fin-
ished work that day, ‘‘Hey, Frank, its about time you come
in, we talk about a raise’’ and Kuhn said, ‘‘I’ll get with
you’’; that he was in a hurry that day and a couple of days
later he spoke with Keith Harvin in his office; that Keith
Harvin during this meeting, with just the two of them
present, asked him how he was doing and if he had any
complaints; that the meeting occurred between a week and
a week-and-one-half after Tunnell was fired; that he asked
Keith Harvin if he had a full-time dispatcher and he said he
did not; that he told Keith Harvin that he wanted to work
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 At the time Kuhn’s pay was $45 a day.
41 Kuhn also testified that he discussed this conversation with
counsel for the General Counsel the week before that. Subsequently,
however, Kuhn testified that this subject was not discussed with
counsel for the General Counsel at both of these meetings.
for Respondent as a full-time dispatcher for $70 a day40; that
Keith Harvin asked him if he heard anything about the Union
and he replied, ‘‘[Y]es’’; that Keith Harvin asked him how
he felt about the union and he told Harvin that he wanted
to continue to work for Respondent, he came to work for Re-
spondent without a Union and as long as he could make a
‘‘decent dollar’’ he was not in favor of the Union; that Keith
Harvin asked him what were the drivers’ concerns and what
was the largest problem they have; that he told Keith Harvin
that two of the drivers’ biggest concerns are money and the
way they are treated; that Keith Harvin said, ‘‘[W]ell, if we
can keep the union out of here, I could probably hit your
number’’; that he then asked Keith Harvin if he would like
him to get the drivers together to find out what the concerns
are; and that Keith Harvin said it was okay for him to put
up a flyer by the timeclock to advise all drivers that they
were going to have a meeting. On cross-examination Kuhn
testified that he never asked Keith Harvin for money; that he
did not in March or April 1993 tell Respondent’s employee
Anderson that he was going to go to Keith Harvin and
‘‘shake him down’’ and ask him for $5000; that his con-
versation with Keith Harvin about the dispatcher’s job listed
about 2-1/2 hours; that he volunteered to arrange the drivers
meeting and find out the drivers’ concerns and he said to
Keith ‘‘we’ll discuss them’’; and that the conversation when
he told Keith Harvin that he would ‘‘get back with you’’ oc-
curred probably a day or two after Tunnell was fired. Kuhn
testified on cross-examination that the drivers did meet and
they voted him to be their spokesperson; that he told Keith
Harvin that the drivers had voted him to be their spokes-
person; that a couple of days after the drivers’ meeting Keith
Harvin sought him out and asked him how the meeting went;
that he told Keith Harvin what the drivers’ concerns were;
that this conversation with Keith Harvin lasted one-half hour;
and that they discussed drivers’ concerns, namely, pay, job
security, back braces, and treatment.
Keith Harvin testified that Kuhn came to him and asked
for a raise and he told Kuhn that he was constantly late for
work and he could not do anything about a raise but he
would get back to him. While Keith Harvin conceded that
he had a conversation with Kuhn about a dispatcher’s job,
Keith Harvin asserted that he never had a conversation with
Kuhn between March and the election which lasted 2-1/2
hours. Regarding this conversation, Keith Harvin testified
that when Kuhn asked about a dispatcher’s job he told him
when he thought it was a good business decision he would
entertain the idea; and that he did not discuss Kahn making
$70 a day. Keith Harvin testified that Kuhn approached him
on a regular basis, telling him what the feelings were among
the drivers and giving him the impression that he was close
to the drivers; that he never asked Kuhn how the union prob-
lems came about; that Kuhn never told him who was in-
volved in the union drive and he had no knowledge which
employees were for the Union; that Kuhn told him that Kuhn
could live with the Union or without it; that Kuhn told him
that drivers were concerned about paying for their uniforms,
better hand trucks, lockers, and money; that he did not recall
Kuhn saying that the drivers were concerned about job secu-
rity or about fair treatment; that he did not tell Kuhn that if
he kept the Union out Keith Harvin could ‘‘hit . . . [Kuhn’s]
number’’; that Kuhn did say that he would get the drivers
together to have a meeting; that Keith Harvin did not ask
Kuhn to have the drivers meet; and that he told Kuhn that
he could not promise him anything regarding what the driv-
ers indicated they wanted because that was illegal.
According to the testimony of Kuhn, a day or two after
discussing a dispatcher’s job with Keith Harvin, he had just
finished making his deliveries and when he returned to Re-
spondent’s warehouse he asked Keith Harvin why Tunnell
was fired. Kuhn testified that Keith Harvin had no response
at first; that he then said, ‘‘Come on, why was he fired’’;
and that when he explained to Keith Harvin that people were
concerned about the firings Keith Harvin said, ‘‘Off the
record, he was fired because he brought the Union here.’’ On
cross-examination, Kuhn testified that his relationship with
Keith Harvin was such that Keith offered him and his wife
baseball tickets and Keith offered to let him charge flowers
to Keith which Kuhn was going to sell at Easter and/or
Mother’s Day. Kuhn also testified that he first told counsel
for the General Counsel about this conversation 1 week be-
fore the hearing herein began.41 Additionally Kuhn testified
on cross-examination that he asked about Tunnell’s termi-
nation because he was driving Tunnell’s route and he liked
it. Keith Harvin testified that it would be ludicrous for him
to tell Kuhn that Tunnell was fired because he brought in the
Union; that at the time of this alleged conversation Kuhn had
only worked for Respondent for about 2 months; that he did
not like Kuhn that much; that he never told Kuhn that
Tunnell was fired because he brought in the Union; and that
he did not fire Tunnell because he brought in the Union.
On April 6 a petition for an election was filed by the
Union. Keith Harvin gave the following testimony regarding
what occurred after the petition was filed:
A. . . . When we were petitioned April 6th, I had
several different companies approach our company to
try to give some advice. So we sat down and talked to
probably three or four different companies that were
not attorneys.
Q. Consulting companies?
A. Consulting companies on how to keep the Union
out. And they gave me a lot of information on the
things I could do, legally, and couldn’t do legally.
Q. Do you recall some of the things they told you,
what you could do or what you couldn’t do?
A. I could, I wasn’t allowed, it was illegal to ask
someone whether they were for the Union or against
the Union. It was unlawful for me to approach anyone
about their concerns. Whether they were, you know,
what beef they had. It was illegal to give anybody
raises or anything like that, to try and sway their vote.
That was probably some of the illegalities that I learned
along the way.
Q. Were you told whether or not you could fire
somebody because of the Union activities?
A. No, I couldn’t, they told me I couldn’t fire no-
body. For Union activity. That was against the law.
521T. K. HARVIN & SONS
42 Later Kuhn testified that the conversation started outside in the
warehouse and they walked into the office.
43 More specifically, Anderson testified as follows:
Q. Okay. And could you tell Judge West what happened?
A. Well, Frank approached me about five o’clock in the morn-
ing, and he mentioned something about he was going to ask
Keith Harvin for a substantial amount of money, I think it was,
like, $5,000, to by some no-votes so the Union wouldn’t come
in. It was to be contingent on everybody would have been paid
at the end of the day, had the Union—if they lost the election.
If the Union lost the election, everybody got paid at the end
of the day. And I thought it was kind of absurd what he said
it. I didn’t pay much attention to it. That’s about it. It wasn’t
much of a conversation, just—
Q. Why did you think that was ‘‘absurd,’’ to use your word?
A. Well, to be as honest as I can, I can’t even imagine Keith
Harvin, I mean, even listen, I’ll do something like that. Now,
I’ve known him ten years, and it just seemed utterly ridiculous.
Q. Okay. Now you said that everyone would get a big pay-
check, according to Mr. Kuhn. Right? When were you scheduled
to be paid?
A. Well, that Friday was a pay day, and it just happened to
be the election day; so I guess he figured why don’t they get
paid, plus they get $500 a piece, and it would have swayed them
to a no-vote. That was his reasoning, I suppose. [Emphasis
added.]
As noted above, Anderson, before being asked by counsel for Re-
spondent, did not testify about a ‘‘big paycheck.’’
Q. Did they discuss anything with you about making
promises to employees, other than wage increases?
A. Yes, they did. I couldn’t do that, either. I couldn’t
promise anything. I couldn’t promise anything. Take it
under advisement, but I couldn’t promise anything.
You know, if a driver approached me and said, hey,
what are you going to do about the uniforms? You
know, I said, I’m not going to promise you anything.
When Respondent opened its new facility in Wilmington
in the second or third week in May it had an open house
for its employees and their families. Keith Harvin testified
that only Kuhn brought beer to the party; that alcoholic bev-
erages were not supplied at the party; and that Kuhn was in-
toxicated.
The parties stipulated that on or about June 1 Respondent
posted or disseminated three documents, General Counsel’s
Exhibits 4, 5, and 6 at its facility for the employees to see.
The documents show that the Respondent was opposed to the
Union during the campaign. Counsel for the General Counsel
indicated that they were introduced to show antiunion ani-
mus. Copies are attached hereto as Appendices A [G.C. Exh.
4], B [G.C. Exh. 5], and C [G.C. Exh. 6], respectively.
Kuhn testified that he attended one union meeting during
the campaign; that the meeting occurred approximately 1
week before the June 11 vote for or against the Union and
the meeting was held at the Longshoreman’s union hall in
Wilmington; that the next day, a Monday, Keith Harvin
asked him how the union meeting went; that just he and
Keith were present in the latter’s office during this conversa-
tion;42 that he told Keith Harvin that ‘‘it shouldn’t be too
hard to find out, that, as . . . [he] understood it, he [Keith
Harvin] paid Jack Gehling [one of Respondent’s employees]
to go and tell all that went on at the meeting, who asked
what questions, everything’’; that Keith Harvin then said,
‘‘Whether I paid him or not, that’s my business. I can do
as I like’’; and that Keith Harvin asked him his opinion of
how he thought the election would go and he told Keith
Harvin that Respondent was going to lose. Keith Harvin tes-
tified that Kuhn came to him and told him that the Union
was going to have a meeting; that he did not ask Kuhn any-
thing about the union meeting; that Kuhn came to him after
the meeting and said it was no real big deal and there were
about 10 people there; that Kuhn did not tell him the names
of the people; and that he was not positive that he had a con-
versation with Kuhn about Gehling. With respect to Gehling,
Keith Harvin testified that Gehling approached him and said
that he was going to the meeting; that Gehling approached
him after the union meeting and told him more or less the
same thing Kuhn told him; that he did not pay Gehling to
go to the union meeting; and that he did not tell Kuhn that
even if Keith Harvin paid Gehling, he could spend his
money any way he wanted. Keith Harvin also testified that
he never asked Kuhn how the election vote was going to go;
and that Kuhn did tell him that the drivers were going to
support the Company in the election.
On Wednesday, June 9, according to the testimony of
Keith Harvin, Kuhn told Keith that he could guarantee the
Company would win the election and keep the Union out.
Keith Harvin testified that Kuhn said that he wanted Keith
Harvin to give him $5000 to spread out among the drivers;
that he told Kuhn that would be illegal and Keith Harvin be-
lieved that he could go to jail for that; that he told Kuhn that
he did not need to win that bad; that the conversation lasted
about 3 minutes; that he told his brother about this conversa-
tion later that day; and that he called his attorney about the
conversation. With respect to his telephone call to his attor-
ney, Keith Harvin testified as follows: ‘‘My best recollection
it was Friday of the election. It was too late in the day
Thursday to get a hold of my attorney. This was four, five,
6:00 o’clock.’’ Subsequently, Keith Harvin testified that he
‘‘tried to get a hold of [Respondent’s attorney Cabot] Thurs-
day—. . . . [l]ate in the day Thursday.’’
Anderson testified that on June 9 or 10 Kuhn approached
him about 5 a.m. and said he, Kuhn, was going to ask
Harvin for $5000 to buy no-votes so the Union would not
come in; that ‘‘it was to be contingent on everybody would
have to be paid at the end of the day, had the Union—if they
lost the election’’;43 that the drivers would get $500 a piece;
and that there were 10 drivers.
Regarding the election, Borrelli testified that on June 11
she voted at the Chester facility, at about 8:15 a.m., on her
way to work at the Wilmington facility; that union observer
Tunnell challenged her vote and her ballot was sealed in an
envelope; that she was about 3 feet from the Board agent
when he took the ballot box off the floor, placed it on a
table, and counted the ballots; that she noticed that two of
the ballots had been folded together; that the Board agent
‘‘had to take both of his hands to sort them’’; that she said,
‘‘Wait a minute. They are folded together exactly the same
way; they’re almost stuck together’’; that the Board agent
‘‘turned to me and said—he looked at me, acknowledged
that there was a problem, and said, ‘Well, the vote is yes.
Isn’t that what you wanted’’’; that she said, ‘‘That’s beside
the point. That’s not the issue; the issue is that they were
folded the same way’’; that the Board agent set the ballots
down on the table and moved on to the next one in the box;
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 He pointed out that this was demonstrated by the fact that when
it became an issue he checked the number of people who cast ballots
against the number of ballots that were counted and found that they
were equal.
45 One of the listed ‘‘THINGS NOT TO DO’’ is ‘‘[e]lectioneer
any place during the hours of the election.’’
that company observer Dennis Smith spoke up and said he
saw the same thing; that the Board agent counted the number
of ballots against the number of check marks the observers
placed on a list of these eligible to vote; that the Board agent
said he ‘‘found empty ballots on the floor or laying in the
poll’’; and that she told the Board agent that she was con-
cerned that someone had voted twice. On cross-examination,
Borrelli testified that she could not recall Smith’s exact
words; that the Board agent said he found empty ballots on
the floor in the room that they were voting in and the ballots
did not have any mark on them; and that she took his state-
ment to mean ‘‘this election, the election he was in, that he
had found empty ballots on the floor at this election at the
time.’’
Smith testified that the election was held at Respondent’s
Wilmington and Chester facilities; that the first was held at
Wilmington and the Board agent, before the voting, told him
and the other observer, Tunnell, that, as here pertinent, they
were not allowed to speak to any of the voters outside of a
greeting; that at the Chester facility Tunnell told someone
‘‘in the door getting ready to vote to go and get someone
[a named individual] to vote’’; that he objected to the Board
agent regarding Tunnell’s statement and the Board agent told
the individual who Tunnell spoke to disregard what Tunnell
said; that a couple of minutes later the named employees
showed up; that also at the Chester facility when the Board
agent was counting the ballots after the voting, two of the
ballots were folded together one inside of the other; that he,
along with Borrelli, objected to the Board agent about the
ballots; and that the Board agent counted the ballots and re-
viewed the list of eligible voters which Tunnell and Smith
would check off as an employee came into the polling place
to vote, and he determined that was no discrepancy between
the number of voters and the ballots cast. On cross-examina-
tion Smith testified that the number of names with check
marks next to them was exactly equal to the number of
counted ballots plus the number of challenged ballots. On re-
direct, Smith testified that the Board agent indicated that he
found empty ballots in the polling booth on more than one
occasion with respect to the T. K. Harvin election. On
recross Smith testified that no voter came to vote twice and
that he did not see Protas give any voter two ballots. Subse-
quently Smith testified that the Board agent said regarding
the two ballots that one ballot must have fallen on top of the
other; that as he looked at the two ballots in question the
Board agent indicated which way the ballots were cast but
Smith could not remember which way they went; and that
as far as he could remember the Board agent only said
whether the two ballots were ‘‘yes’’ or ‘‘no’’ votes.
Keith Harvin testified that, among others, six named indi-
viduals who were employed by Respondent at the time were
present for the counting of the ballots at Chester; that he did
not tell the employees, excluding Smith, who was an ob-
server, ‘‘to stay around and watch the counting of the bal-
lots’’; and that he did not tell any of the five employees that
they should be a spokesperson on behalf of Respondent.
Henry Protas, who has been a Board staff attorney and run
representation elections for 18 years, testified that he ran the
election involved herein; that it was held at two sites, Wil-
mington and then Chester; that with the challenged voters he
took all the relevant information to fill out the envelope stub
in which the challenged ballot was placed, namely, among
other things, the voter’s name and the reason for the chal-
lenge; that as he has done in the past, he took the ballots
and folded each one once in half before he gave it to the
voter; that he did this because he noticed over the years that
if he did not fold it, the voters would fold the ballot them-
selves and sometimes they had problems getting the ballot in
the slot on the ballot box; that also when the voter folded
the ballot into a tiny piece of paper he had to unfold the
many folds when he counted the ballot; that he is positive
that he gave only one ballot to each voter;44 that when the
voter entered the polling room he or she would give their
name to the observers to check off his or her name on the
eligibility list; that he then gave the ballot to the voter; that
he watched the voters as they placed their ballots in the box;
that he gave a copy of the Board’s instructions to the elec-
tion observers (G.C. Exh. 18);45 that in addition to the print-
ed instructions he told Smith and Tunnell that they were not
to engage in campaigning and they were to help in the
smooth running of the election; that Tunnell, at the Chester
site, spoke to a voter on his way out after voting, asking the
individual if another named employee was there that day and
then telling the individual that the other employee ‘‘hasn’t
voted yet’’; that he told Tunnell ‘‘not to do that, that was
none of his business whether somebody voted. Campaigning
was over and he shouldn’t do that’’; that as he counted the
cast ballots in Chester he showed them to those present; that
before he did this he took out the challenged ballots, which
were in envelopes, he went through them one-by-one restat-
ing the name of the voter, the reason for the challenge to the
voter and tried to see if any of the parties wanted to change
their position as the voter’s eligibility; that as he subse-
quently counted the unchallenged ballots he took the ballots
out of the box and placed them in a ‘‘yes’’ pile or a ‘‘no’’
pile; that at one point he stuck his hand into the ballot box
and pulled out two ballots with ‘‘[o]ne ballot. . . . stacked
inside the other ballot’’; that regarding these two ballots,
[o]ne was on top of the other. . . . they were stacked on top
of each other’’; that these two ballots were both ‘‘yes’’
votes; that the woman who had been challenged earlier,
Keith Harvin’s sister, said that she felt that these two ballots
were cast by the same individual; that he explained to her
that he folded each of the ballots the same way before he
gave it to the voter and
what often happens is that one person cast[s] [a] . . .
ballot . . . puts it in the box, [it] stands straight up, and
the second person comes in behind them and casts a
ballot and then it slips right inside the other one, or
right outside the other one;
that he told Borrelli that he would count the number of vot-
ers who cast ballots by looking at the eligibility list; that he
told Borrelli
the one thing that is outside of the Board Agent’s com-
plete control is if someone was to take a ballot and then
not cast it.
523T. K. HARVIN & SONS
46 See ALJ Exh. 1. Protas testified that he and the observers could
see the ballot box at all times and there was no one standing be-
tween him and the box or the observers and the box.
47 On April 6 the Union filed a charge against T. K. Harvin &
Sons, Inc. in Case 4–CA–21599, G.C. Exh. 1(c), alleging that ‘‘On
or about March 29, 1993 the Employer discharged Joshua O.
Tunnell for discriminatory reasons because of his support for the
Union.’’
And I said, you know there’s some remote possibil-
ity that there might be less ballots in the box than there
are eligible voters, but there is no way that we are
going to find that there are more ballots in there than
there were voters;
that he counted the votes and filled out the Board’s tally of
ballots and gave the parties copies of the certification of con-
duct of election; that as he was doing his above-described
paperwork Keith Harvin’s sister, Borrelli, insisted that some-
thing was not right about the fact that these two ballots
‘‘were one inside of each other’’; that after he finished his
paperwork he compared the number of ballots that were cast
to the number of people on the eligibility list who had cast
ballots and they were the same; and that Keith Harvin’s sis-
ter, Borrelli, again said that she still thought something was
not right about the placement of these two ballots in the box.
On cross-examination Protas testified that Smith did not raise
a question about the two ballots together; that he did not re-
call Smith saying anything on any subject once the ballot
count began; that after he compared the eligibility list to the
number of ballots cast and as Keith Harvin’s sister, Borrelli,
continued to insist that there was something wrong, Keith
Harvin, who was present at the counting of ballots in Ches-
ter, said, ‘‘Don’t worry about it, don’t worry about it. This
means we have a delay. We’ve won. It doesn’t matter. For-
get about it’’; that he was not aware that Smith provided an
affidavit to the Board indicating that he protested to Protas
the question of the two ballots; that regarding the voting
which took place at Chester, he was not sure of the location
of the ballot box in the room but he believed it was closer
to him than to the doorway voters used to enter the room;46
that be believed that the box was not on the floor but he is
not sure; that he was not sure if he was sitting at the same
table as the observers; that as many as four voters could have
been in line waiting to vote, in the voting room; that the vot-
ers lined up in the doorway to the room but there would not
be as many to four voters at once in the room where he and
the observers sat; that he did not believe that some of the
voters waiting to vote were within a foot or two of the vot-
ing box; that when Tunnell wanted a voter to go out and get
another employee to come in and vote Protas told Tunnell
‘‘[n]o that’s none of your business. You’re serving as an ob-
server now, and it’s none of your business as to whether or
not the person chooses to vote’’; that he was concerned that
Tunnell’s conduct bordered on electioneering; and that he
could not recall the name Tunnell mentioned; that he be-
lieved he told Tunnell ‘‘[t]he campaign is over. While the
election is on, you’re here to help me out in conducting the
election’’; and that in his mind it was implicit that Tunnell
was interested in having the voter come in to vote partisan
reasons. Subsequently, Protas testified that Smith did not say
anything about Tunnell’s conduct in this regard; that he did
not tell the voter to whom Tunnell was speaking to disregard
Tunnell’s remarks; that he did not, with respect to the situa-
tion involving one ballot folded inside another, tell Borrelli’s
‘‘[i]sn’t that what you wanted? yes votes?’’; that he did not
know if he told Borrelli if he found empty ballots on the
floor or in the voting poll or booth; and that he told Borrelli
that he ‘‘heard from other people that there had been stories
of a Board Agent finding a ballot stuck inside the booth, or
something’’ but that did not occur at the T. K. Harvin elec-
tion.
On July 1 Kuhn filed a charge with the Board in Case 4–
CA–21842 against T. K. Harvin & Sons, Inc., alleging Re-
spondent violated Section 8(a)(1) and (3) of the Act (G.C.
Exh. 1(n)), in that
Sometime in late March or early April 1993, the above
named employer conditioned my raise on my being
able to keep Teamsters Local 929 out of the company.
On or about June 12, 1993 the above named employer
threatened to fire me if I did not work on Saturday
(June 12, 1993). The employer has taken the above ac-
tions against me because of my union activities.
As indicated in Respondent’s Exhibit 6, Region 4 of the
Board found that there was
insufficient evidence to establish that the Employer vio-
lated Section 8(a)(3) of the Act, as alleged, or violated
Section 8(a)(1) of the Act by threatening to terminate.
. . . [Kuhn] because of . . . [his] Union activities.
On July 12 Kuhn gave an affidavit to the Board (R. Exh.
5). In it he describes conversations he allegedly had with
Keith Harvin on or about June 6 and in mid-April 1993. The
former assertedly involved a conversation about a union
meeting and the latter involved a conversation about a dis-
patcher’s position. Also included in the affidavit is an alleged
conversation between Kuhn and Keith Harvin on June 11
after the election and a description of what allegedly oc-
curred when Kuhn requested a day off on June 12. Kuhn tes-
tified that he told the Board agent who took the affidavit
about the conversation involving Tunnell being fired because
of the Union but the Board agent ‘‘said to me I have to stick
to the points that just had relevance to me as an individ-
ual.’’47
With respect to Kathy Borrelli, Walker testified that she
worked in the warehouse office as an order taker; that while
the drivers and warehousemen wore uniforms, Borrelli did
not; that he was not aware of Borrelli punching a timeclock;
and that Thomas Harvin formerly owned the Company and
Borrelli is his daughter. On cross-examination Walker testi-
fied that wearing a uniform was voluntary. He also testified
that in January, February, and March 1993 when Keith and
Kent spent most of their time in Wilmington, Delaware, get-
ting that facility ready for operation,
[t]he only one in there [at the Chester facility] who I
had to answer to was Kathy Borrelli, not indirect. I
would have to go to her and say things to get a hold
of Keith, because I need Keith’s advice, and she would
tell me other things to do, or what would you think
Keith would do.
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 The warehouse in Chester has a large glass window so that peo-
ple in the office can look out into the warehouse and vice versa.
49 Smith is paid $5.50 an hour. He testified that he, along with
three other warehouse workers—excluding the tomato sorters,
punches a timeclock.
Additionally, Walker testified that when Keith and Kent were
in Wilmington, if a warehouse employee had to leave work
early they would speak to him or Borrelli; that when there
was little to do Borrelli picked and sorted tomatoes; that this
involved maybe 30 to 40 percent of her time; that Borrelli
did not on a regular basis sort and pack tomatoes and deliver
them in her car to a customer; and that he observed Borrelli
between 60 and 70 percent of the time she was at work.
Walker also testified that maybe once a week Borrelli would
pick tomatoes; and that Keith and Kent occasionally picked
tomatoes. On further cross-examination Walker testified that
he spent most of his time going from one cooler to another
at the opposite ends of the warehouse and the office is in
between both coolers;48 and that when he was in the freezer
(10 or 15 percent of the day) and in the coolers (20 to 30
percent) (of the day) he could not see Borrelli.
Anderson testified that he ‘‘somewhat’’ had the oppor-
tunity to observe Borrelli’s job responsibilities prior to the
election; that Borrelli worked in the warehouse doing dif-
ferent jobs like sorting tomatoes; that he did not see Borrelli
sort tomatoes every day; and that he did not know if Borrelli
performed any other warehouse jobs. On cross-examination,
Anderson testified that he spends most of his time out on the
road driving a truck.
Borrelli testified that she started working for T. K. Harvin
and Sons, Incorporated in January 1991; that she is ‘‘known
as ‘Kathy’ to all my employees and family’’; that when she
started in January 1991 she was a warehouse worker, sorting
tomatoes and other vegetables, making emergency deliveries
in her own automobile, and on occasion she would take an
order; that up through 1993 she would sort 6 to 7 hours of
an 8-hour day; that at times she had ‘‘a, one of my employee
[sic] by the name of Tyrone Oakley’’ doing the sorting; that
four or five times a week she would make emergency deliv-
eries, which deliveries would take 1.5 to 2 hours to make;
that in early 1993 she would spend 30 minutes to 1 hour a
day relaying customer orders; that other warehouse people,
Smith and Walker, took orders from customers and made de-
liveries in their own vehicles; that she was not reimbursed
for her expenses when she made emergency deliveries in her
own vehicle; that when she started in 1991 Keith Harvin and
Walker were her supervisors; that Keith told her to check
with Walker about her problems and concerns before coming
to him; that in 1991 and in 1993 she was paid $66 a day;
that she does not own any stock in T. K. Harvin; that she
did not have any discussions with her brothers Kent and
Keith regarding the management of Respondent, any business
decision concerning Respondent or whether to move to Wil-
mington; that she had no involvement in obtaining funding
for Respondent’s Wilmington facility; that she is not in-
volved in the discipline of any other warehouse employee;
that she does not live with Kent, Keith, or her parents; that
she does not receive bonuses or funding that other warehouse
people do not get; that she does not have a pension; that her
health insurance and vacation are no different than the other
people who work in the warehouse; that she has never had
keys to either of Respondent’s facilities; that she recorded
her time in a logbook in the office accross from the Chester
warehouse facility; that she stopped recording her time when
Respondent moved to Wilmington; that at that time she be-
came ‘‘the Warehouse manager—the Office—actually, ex-
cuse me—the Office Manager in Customer Service’’; that
her additional responsibilities included routing the emergency
truck, making an employee schedule for the day, taking any
calls that pertained to any driver, shortages on the trucks, or
dealt with customer service quality; that once she was given
that title she was told she no longer had to record her time;
that this occurred 6 or 7 months before she testified herein
on March 7, 1994; that she does not wear a uniform, which
is not mandatory; and that there is a uniform charge. Borrelli
also testified that Respondent has a policy that if an em-
ployee is going to be late coming to work, he or she is sup-
posed to call into Respondent the night before, if possible;
that when she violated this policy she was verbally warned
by her brother Kent that if she was late again she would be
suspended; that subsequently she was late for work because
she had to bring her daughter’s glasses to school and she did
not call in; that her brother Kent told her ‘‘no matter what,
under any circumstances, that if [she] . . . didn’t call, the
next time [she] . . . would definitely be suspended’’; and
that she was not late since that time without calling in. On
cross-examination Borrelli testified that she is divorced and
her ex-husband’s name is Borrelli; that her birth name is
Harvin; that she did not testify that Oakley was one of ‘‘my
employees’’ but rather ‘‘one of my fellow workers’’; that she
was not aware of any other warehouse employee who signed
in a log book; that Keith and Kent Harvin are her brothers
and T. K. or Thomas Harvin is her father; that the Company
was called Five K’s and in fact it is still known in the indus-
try as Five K’s; that she along with Kent, Keith, an older
sister, and an older brother are the Five K’s; and that Kent
and Keith help out in the warehouse and sometimes make
deliveries. On redirect Borrelli testified that T. K. Harvin
traded under the name Five K’s at the time she testified at
the hearing herein; that she has no financial interest in T. K.
Harvin; and that she does not get any support from her father
T. K. Harvin.
Smith, who was hired by Respondent in February 1993 to
work in the warehouse in Chester,49 testified that to his
knowledge Borrelli, at the Chester facility, sorted tomatoes
and made emergency deliveries; that he could not see the to-
mato sorters from his work station; that three or four times
a day he was in the area of the tomato sorters and he would
see Borrelli there ‘‘just every time’’; that occasionally he did
tomato sorting himself; that he believed Borrelli sorted toma-
toes about 75 percent of the workday; that in the first 3
months of 1993 no one other than Borrelli was sorting toma-
toes on a regular basis; and that he made emergency deliv-
eries and spent anywhere from 45 minutes to all day doing
this task.
Keith Harvin testified that T. K. Harvin is his father
Thomas; that when his father is not in Florida he works 10
hours a week at Respondent; that, more specifically Thomas
Harvin
come[s] in and ruffle a little bit of feathers, making
sure me and my brother are on our toes, making sure—
525T. K. HARVIN & SONS
50 Husilton estimated that this took about 80 percent of her time.
51 Husilton estimated that Borrelli made emergency deliveries
daily. He testified that other warehouse employees occasionally
made warehouse deliveries.
52 Walker did not include Borrelli in the five individuals he
named.
53 Walker testified that the only other persons who signed bills for
the trucks from California were Kent, Keith, and Thomas Harvin.
he checks on making sure we’re doing the best that we
can. He might come in and have a meeting with the
bank, you know; be able to go over financials, you
know, making sure that what he taught us was what
we’re doing;
that his father sometimes goes to the Distribution Center to
buy for Respondent; that his father gave up his full-time du-
ties at Respondent in 1987; that Kathy Borrelli is his and
Kent’s sister and she is T. K. Harvin’s daughter; and that
Respondent deals with about 200 vendors and about one-half
of these know Respondent as Five K’s and the remainder
know Respondent as T. K. Harvin.
John Husilton, who is Respondent’s comptroller, testified
that Borrelli, between January and June 1993, was paid $66
a day by Respondent; that other warehouse employees who
were paid by the day were Gehling, Oakley, and Wayne
Johnson and they received $60 a day; that some of the ware-
house employees were paid by the hour; that Borrelli had
prior experience working for Respondent’s retail market from
1979 through 1985 and her pay was based on her prior expe-
rience; that between January and June 1993 Borrelli spent
most of her day in the warehouse sorting vegetables and
fruits,50 and she handled emergency deliveries;51 that if
Borrelli missed 1 day of work she would only be paid for
4 days that week; that if Borrelli worked overtime she was
paid time-and-a-half; that Borrelli was not treated in any way
differently than any other warehouseman or driver who
worked for Respondent; that Borrelli had the same chain of
command as other warehouse employees; and that Johnson,
Gehling, and Oakley did not punch a timeclock but rather,
like Borrelli they recorded their time on a logsheet. Also,
their responsibilities were essentially the same as Borrelli’s.
Respondent’s payroll records for the 2-week period ending
March 14 show that Borrelli received gross pay of $880.
This was also her gross pay, according to Respondent’s pay-
roll records, for the 2-week period ending March 28.
Husilton testified that apparently Borrelli worked overtime
during these two pay periods but this was not specifically in-
dicated on the payroll records he was shown at the time of
his testimony herein.
Keith Harvin testified that Borrelli was promoted in Sep-
tember or October 1993; that Respondent’s policy regarding
lateness, is if an employee is late once, they are spoken to,
if the employee is late a second time, they are ‘‘really spo-
ken to,’’ and if the employee is late a third time, they would
be terminated; that the same policy applies to employees who
are late and do not call in, namely ‘‘[t]hey would get spoken
to the first time, and then if it happened again, they would
get yelled at, and then the third time, they would get sus-
pended, and then the fourth time, they would be terminated’’;
that named employees were not suspended until they violated
these rules three times and it would have been ‘‘unfair’’ to
suspend them after they violated the rule twice; and that
Borrelli’s rate of pay was based on the experience she
brought to the Company.
Regarding his position with Respondent, Walker testified
that his title was warehouse supervisor; that he gave the de-
livery drivers their clipboards’, went over inventory in the
warehouse, condensed product, made room for loads of
produce coming into the warehouse, checked the quality of
product in the warehouse, made boxes, unloaded produce
trucks from California, Idaho, or the Distribution Center after
checking the quality of the shipment, picked orders, repack-
aged produce, cleaned up at the end of the day, checked de-
livery trucks to make sure they were clean and gassed up,
and checked to make sure returned merchandise was placed
in the refrigerators; that he and five other people worked in
the warehouse at the time he was fired52; that as warehouse
supervisor he counted merchandise and checked for quality,
told workers how to make room for incoming produce,
showed workers how to make room for incoming produce,
helped with the unloading, called Keith or Kent Harvin if
there was a problem with the quality of an incoming load,
and signed the clipboards of Respondent’s delivery drivers
when they returned to the warehouse; that he reported to
Keith and Kent Harvin; that he would give his opinion about
a person but he did not have authority to hire; that Keith and
Kent did the hiring and Walker did not participate in the
interview process; that while he could suggest he could not
fire; that he had no authority to lay off, recall, transfer, pro-
mote, reward, or approve time off for employees; that he
could only suggest that an employee be disciplined; that he
released warehouse employees at the end of the workday un-
less he was told that there was more work to be done; that
he did not have either an office or a desk; that he never at-
tended any supervisory meetings; and that he clocked in and
out at the same timeclock used by the other warehouse em-
ployees. On cross-examination Walker testified that if the
employees in the warehouse had a problem they would go
to Keith or Kent Harvin; that in the absence of Keith and
Kent the employees would come to him but most of the
time, especially if it involved a major problem like quality,
he would telephone and ask Keith or Kent; that he did not
interview and hire Keith Rickett, Charles Laubsch, or Paul
Gallagher; that Keith Harvin gave employee Alvin Grestry
time off and Walker was directed to send Grestry a note; that
he has suggested that employees be terminated and when
Kent and Keith saw they were not producing they were ter-
minated; that in the last 3 months before he was terminated
he recommended three times that an employee be suspended
and he was aware that at least on one of the occasions an
employee was suspended; that he is paid a salary; that he,
along with another employee, Jack Gallic, and John Livel,
who ran the canned goods section, had keys to a freezer at
Respondent’s facility; that he never told warehouse employ-
ees that they had to work extra time but rather he asked them
and if they left, he did the work himself; that he did not
know if the warehouse employees were paid on an hourly
basis or if they were salaried; that if one of the warehouse
employees had to leave work early when Keith and Kent
Harvin were in Wilmington, they would have to check with
him or Borrelli; and that he signed for receipt of merchandise
at the warehouse.53 On further cross-examination Walker tes-
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 According to Keith Harvin’s testimony, Walker hired Rickett
and Gallagher. At one point Kent Harvin testified that Walker ‘‘was
instrumental in getting him [Gallagher] hired.’’ Then Kent Harvin
testified that Walker made the hiring decision with regard to Galla-
gher.
55 Stealing, failure to report a traffic citation or accident, use of
drugs or alcohol on the job, fighting on company property, or unau-
thorized use of company vehicles.
56 Fn. 20 in counsel for the General Counsel’s brief reads as fol-
lows:
Respondent’s entire broccoli rabe defense rests on the origin
of the second bad case delivered to Giuntas, but Respondent’s
evidence left this case of produce shrouded in mystery. Re-
spondent asserts that Tunnell purchased another case on the
evening of March 23 (400–01), but Tunnell denied that he
picked up another case that night. (95–101, 102–10, 136) Re-
spondent could have settled the matter by producing Tunnell’s
order sheet from the evening of March 23 with his own mark-
ings on it, but instead it produced only the ’final copy’ that was
drawn up later by Satchell or who knows who. (105–07, 108–
09, 146–51, 427–27, RX-1) Respondent’s invoice from Pinto
that week shows a purchase dated March 24 which could have
been made either the evening of March 23 or during the day on
March 24. (603–04, 608–10, 677–78, GCX-13a).
Another troublesome fact: Respondent attempted to show that
the first case of broccoli rabe delivered to Giuntas, which
Giuntas returned to Harvin’s driver on the morning of March 24,
was returned to Pinto’s for credit that evening. (424–25, RX-15)
On further examination, however, it was revealed that the sup-
posed receipt showing the return was not a receipt for credit at
all (529–46, RX-15), and Pinto never gave Respondent credit for
the supposed return. (565–66, 603–04, 606–08, GCX-12) These
facts suggest that this case was never returned to Pinto, and that
there was a reason it was not returned.
It is entirely possible that the second case delivered to Giuntas
was sitting in Respondent’s warehouse from the previous week,
and had gotten a little old. This was the season for broccoli rabe
(462, 476), Keith Harvin (who ran the warehouse) testified that
sometimes there were situations where Respondent purchased
broccoli rabe without a special order and kept it around in case
someone wanted it. (612) Or, it is also possible that the delivery
driver at Giuntas on the morning of March 24 simply got his
boxes mixed up, and after picking up the bad case and bringing
it out to his truck, he redelivered it, and brought the new case
back to the warehouse. This would be consistent with Donati’s
testimony that the second case looked the same as the first, if
not worse. (470, 479) Either set of circumstances would explain
why the first case delivered to Giuntas was not returned to
Pinto. They would also explain why Kent Harvin never spoke
a word to Pinto about selling him bad specialty produce two
nights in a row, and even bought three times more cases from
Pinto on Thursday, March 25. (495–98, 678.)
tified that he, along with Keith, Kent, and Second-Shift Su-
pervisor Satchell, had a key to the roll-up doors.
Kent Harvin testified that ‘‘[t]he leader of the day crew
was a gentleman by the name of Jeff Walker. He, that was
his primary job to make sure that all stocks were replenished
and everything, in what we refer to as front boxes.’’ Kent
Harvin also testified that everything that was at the shipping
end of the warehouse ‘‘had been checked for quality and that
was the day crew’s job.’’ Walker, according to Kent
Harvin’s testimony, has the title day crew supervisor and he
has the responsibility of, among other things, checking ev-
erything that came to the warehouse on the day market truck
which were items Kent Harvin purchased at the Distribution
Center. Additionally, Kent Harvin testified that contrary to
Walker’s testimony he did hire employees.54 Regarding
Walker disciplining employees, Kent Harvin testified that if
anybody gave Walker any ‘‘lip or back talk’’; he could tell
them to go punch out and go home; and that he told Walker
that Walker could send an employee home who came in late.
Kent Harvin also testified that most of the problems Walker
would call him about centered around the produce; and that
‘‘[p]ersonnel problems were primarily, he would talk to
Keith about that. But if I was the first Harvin he got to he
would talk to me about them too.’’ Additionally, Kent
Harvin testified that Walker had the authority to have em-
ployees work overtime or to allow them to leave work early
and it was not necessary for him to get approval from the
Harvins.
Husilton testified that Walker was Respondent’s ware-
house manager at the time of his termination; and that ware-
house employees took their problems to Walker and if Walk-
er was not around they would go to Keith Harvin.
Analysis
In my opinion Tunnel was unlawfully discharged.
On brief, counsel for the General Counsel contends that
Respondent, in its own words, ‘‘strongly’’ opposed the
Union in the union election campaign; that campaign state-
ments not violative of the Act may be used to show
antiunion animus, Gencorp, 294 NLRB 717 fn. 1 (1989); that
while Respondent sought to inflate the importance of the
broccoli rabe deliveries to Giunta’s, even after leading ques-
tions from Respondent’s counsel neither witness from
Giunta’s offered any testimony that there was any threat of
termination of dealing with Respondent made or even con-
sidered; that if Respondent believed its business with
Giunta’s was at risk, it could have made an emergency deliv-
ery to this customer; that Respondent’s rules and regulations
which were in effect at the time specify progressive dis-
cipline, i.e., written warnings and suspensions before dismis-
sal except for specified major offenses;55 that ‘‘it is unclear
from Kent Harvin’s testimony whether he believed Tunnell
had cancer or was cancer’’ (emphasis in original); that Re-
spondent’s ‘‘angry man’’ defense also presented a timing
problem since Kent Harvin would have had to know about
Giunta’s reaction to the second case of broccoli rabe on
Wednesday, March 24, when he told Doyle to tell Giunta’s
to throw the second case out; that the whole broccoli rabe
incident is a red herring;56 that Respondent’s animus toward
the Union is evident from its campaign literature, and the
8(a)(1) violations involved here; that Respondent’s expressed
reasons for terminating Tunnell are clearly pretextual, and
they raise an inference that they were designed to conceal an
unlawful motive, Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966); that while there is no direct
evidence that Respondent knew of Tunnell’s union activity
before his termination, it has long been held that such knowl-
edge may be proven by circumstantial evidence from which
a reasonable inference may be drawn, BMD Sportswear
Corp., 283 NLRB 142, 143 (1987); that if the testimony of
Kuhn is credited, Keith Harvin admitted that union activity
was the reason for Tunnell’s discharge; and that the record
evidence establishes a prima facie case of unlawful discharge
and Respondent has failed to meet its burden of establishing
that it would have terminated Tunnell even absent discrimi-
527T. K. HARVIN & SONS
57 The Union, which filed a brief on Objections to Election and
Challenged Ballots, joins in counsel for the General Counsel’s brief.
58 As noted above, Respondent reached an out-of-Board settlement
with Walker. Consequently, the merits of his discharge were no
longer at issue herein. Warner, as noted above, failed to cooperate
or appear. No findings are made herein regarding the lawfulness of
either of these discharges.
59 Interestingly of Respondent’s 200 to 300 customers, the same
customer, Guinta’s, played a role in both Warner’s and Tunnell’s
terminations.
60 As noted above, Kent Harvin testified that he and his brother
Keith were not aware at the time of Tunnell’s discharge that he was
interested in the Union or active in a union drive. Keith Harvin, with
respect to Kuhn’s allegation that Keith admitted that Tunnell’s firing
was unlawful, testified that he Keith did not fire Tunnell because be
brought in the Union.
natory considerations, NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983); Wright Line, 251 NLRB 1083
(1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982).57
Respondent, on brief, argues that the General Counsel has
not established a prima facie case in that it has not been
shown that Tunnell engaged in protected activity before he
was terminated, Respondent knew this and it was motivated
by antiunion animus; that even if the General Counsel did es-
tablish the elements of the prima facie case, Respondent
nonetheless had a legitimate, nondiscriminatory business jus-
tification for the termination; that there is no direct evidence
that Respondent knew of Tunnell’s union activities before his
discharge; that any circumstantial evidence that Respondent
knew of Tunnell’s union activity before his discharge must
be discounted since Tunnell had no idea whether anyone
from management was in the vicinity during the conversation
between him and Warner about union authorization cards on
the morning of March 22 and Anderson denied having the
alleged March 26 conversation with Tunnell in Respondent’s
office; that it is unlikely that the small plant doctrine, which
is founded on the notion that management will learn quickly
of union activity where it is waged openly in a small com-
plement of employees, applies here in that Tunnell was care-
ful not to discuss the Union with members of management
and there are approximately 30 employees in the unit and
Respondent’s work force exceeds 50; that the General Coun-
sel failed to prove the existence of antiunion animus; that as-
suming arguendo that the General Counsel established the
elements of a prima facie case, Respondent demonstrated that
it had a legitimate business justification for terminating
Tunnell; that Tunnell’s purchase of rotten broccoli rabe two
nights in a row constituted a legitimate business justification
for his dismissal; that Tunnell’s denial of responsibility is not
worthy of belief; that Tunnell’s failure to inspect the broccoli
rabe was the only possible explanation for the customer’s re-
ceipt of the rotten broccoli rabe; that Tunnell’s conduct war-
ranted dismissal; that Tunnell’s job performance on the night
run had been called into question in the past; that after the
first instance Kent Harvin had every reason to believe that
Tunnell would inspect the replacement product purchased for
Giuntas at the Distribution Center; that Kent Harvin con-
cluded that Tunnell did not care about his job performance;
that Respondent has discharged other employees for com-
parable errors impacting on its customer relations, namely
Warner and Miller; and that since Tunnell did not meet with
Donovan until after he purchased the first two rotten cases
of broccoli rabe on the night of March 22 no inference of
pretext can be drawn.
Donovan openly started the union campaign at Respond-
ent’s facility in early March. He placed union flyers on cars
parked outside Respondent’s Chester facility. Both Keith
Harvin and his father went out and spoke to the union orga-
nizer. Respondent was aware before March 22 that the Union
was attempting to organize Respondent’s employees. Appen-
dix C hereto, along with Appendices A and B, explain why
Respondent ‘‘strongly’’ opposed the Union. As alleged by
counsel for the General Counsel, Respondent’s campaign lit-
erature and the 8(a)(1) violations found below demonstrate
Respondent’s antiunion animus.
Three of the employees who were most active in the union
campaign Warner, Tunnell, and Walker were fired within a
week of each other at the outset of the campaign.58
On Monday, March 22, just hours before Giunta’s alleg-
edly complained about its suspicions regarding Warner alleg-
edly taking a purse and apparently before Guintas59 even or-
dered the first of the involved cases of broccoli rabe (unless
Giuntas placed its order before 6 a.m. on March 22) Warner
and Tunnell discussed, 5 to 10 feet from an open door lead-
ing into Respondent’s Chester warehouse, the fact that while
Warner had obtained union authorization cards to be signed
by the employees, he did not bring them with him to work.
Warner said that he would bring the union authorization
cards to work on Tuesday, March 23. While Warner and
Tunnell were engaged in this conversation Keith Harvin
came through the open door and said, ‘‘Get them goddamn
trucks moving now.’’ Keith Harvin never specifically denied
saying this and being present at the time to make this state-
ment. The only question is whether Keith Harvin overheard,
notwithstanding the fact that there were two diesel trucks
idling nearby at the time, what was being discussed by War-
ner and Tunnell about union authorization cards. On the one
hand, Keith Harvin did not admit that he overheard this con-
versation.60 On the other hand, he did not specifically deny
being in a position to overhear this conversation. Keith
Harvin did not even testify about where he was and what he
may or may not have heard at about 6 a.m. on March 22
outside Respondent’s warehouse in Chester.
As pointed out by the Board in BMD Sportswear Corp.,
283 NLRB 142 and 143 (1987):
It has long been held that where there is no direct evi-
dence knowledge may be proven by circumstantive evi-
dence from which a reasonable inference may be
drawn. NLRB v. Wal-Mart Stores, 488 F.2d 114, 117
(8th Cir. 1973). See generally NLRB v. Link-Belt Co.,
311 U.S. 584, 602 (1941). Such circumstances may in-
clude proof of knowledge of general union activity, the
employer’s demonstrated animus, the timing of the dis-
charge, and the pretextual reasons for the discharge as-
serted by the employer. General Iron Corp., 218 NLRB
770, 778 (1975), enfd. 538 F.2d 312 (2d Cir. 1976).
See also Hunter Douglas, Inc. v. NLRB, 804 F.2d 808
(3d Cir. 1986), enfg. 277 NLRB 1179 (1985). In addi-
tion, the discharge of an employee who is not known
to have engaged in union activity but who has a close
relationship with a known union adherent may give rise
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
61 Donati testified that there was no ice in the broccoli rabe he re-
ceived. If the case he received on March 23 was one of the cases
Tunnell picked up the night of March 22 this would be consistent
with Tunnell’s testimony that he removed the ice to inspect all of
the broccoli rabe, and he did not replace it. If Tunnell were only
interested in saving time, he could have taken the first two cases
available, he would not have checked whether they were iced, and
he would not have taken all of the ice out of the case to inspect
the contents. Tinnin testified that in March broccoli rabe would not
normally have to be iced. And Donati, who testified that there
should be ice mixed in the product, also testified that if the broccoli
was purchased good on March 22 it would not have been in the con-
dition of the broccoli rabe he received on March 23 ‘‘unless it was
stored in an oven. . . . and even then, the florets wouldn’t have
turned yellow.’’
to an inference of discrimination. See Permanent Label
Corp., 248 NLRB 118, 136 (1980), enfd. 657 F.2d 512
(3d Cir. 1981). Thus a discharge motivated by an em-
ployer’s belief or suspicion that an employee engaged
in union activity violates the Act. Id.
As indicated above, when called at the outset of the hear-
ing by counsel for the General Counsel Keith Harvin testified
that the decision to terminate Tunnell was made on Monday,
March 29. After hearing his brother Kent testify here, Keith
testified that the decision to terminate Tunnell was made on
Thursday, March 25. From a timing standpoint, the problem
with this changed testimony is that if one accepts Respond-
ent’s scenario and the basis provided for this action, the deci-
sion would have been reached on Wednesday, March 24.
Donati testified that he did not want to keep the second case
of broccoli rabe in his store overnight and he was told by
Doyle to throw it out. Kent Harvin testified that he told
Doyle to tell Donati to throw out the second case. According
to the scenario Respondent presents this was done on
Wednesday, March 24. Consequently Kent Harvin would
have been in a position on March 24 to decide to terminate
Tunnell.
Many aspects of Respondent’s presentation cause me con-
cern. After unsuccessfully attempting to have Tunnell testify
on cross-examination that Respondent’s Exhibits 1 and 2
were the lists covering night run pickups for March 23 and
22, respectively, one of Respondent’s counsel stated that he
would call Satchell to testify. Satchell, one of Respondent’s
supervisors, according to Kent Harvin’s testimony, drafted
these two documents in collaboration with Tunnell. Tunnell
denied this, testifying that he had never seen the documents
before. Satchell, notwithstanding Respondent’s counsel’s de-
clared intent, was not called as a witness by Respondent.
Consequently, Satchell did not deny that he specifically told
Tunnell on March 22 that Kent Harvin wanted Tunnell to
check the broccoli rabe at Pinto. Consequently, Satchell did
not deny that Tunnell telephoned him from the Distribution
Center and said that Tunnell had two good cases of broccoli
rabe.61
While Kent Harvin testified that Tinnin, to the extent nec-
essary, obtained the prices charged Respondent from Re-
spondent’s computer or the vendors and put them on the
night truck pickup list so he could determine, sometime after
speaking to Kent Harvin, how much to charge the customer,
while Tinnin did put prices on the March 23 Hercules and
Giunta’s delivery tickets (R. Exhs. 11 and 14-1), respec-
tively, while the purported night truck list for March 22 lists
prices for the other items picked up that night, it does not
list prices for the broccoli rabe picked up on the night run
on March 22. Instead written where the prices normally go
is the word ‘‘Return.’’ Kent Harvin’s explanation that ‘‘if we
were going to return it, price becomes irrelevant’’ begs the
question. Counsel for the General Counsel specifically raised
the question of when the word ‘‘Return’’ was placed on Re-
spondent’s Exhibit 2, speculating that it could not have been
put there on the night of March 22. One would expect, if Re-
spondent’s Exhibit 2 was drafted on the night of March 22
that the prices would appear on the list. If at a later date,
both cases were returned then one would expect a notation
indicating such along with the price which had already been
placed on the sheet, unless the price was subsequently erased
or white out was used. In the latter case one would expect
some kind of explanation. None was offered.
This leads to the question of whether both of the cases
picked up on March 22 were returned to Pinto. Kent Harvin
testified that both were returned to Pinto for credit. Kent
Harvin sponsored an exhibit (R. Exh. 15), which he claims
demonstrates that Giunta’s first case was returned to Pinto on
March 24. Notwithstanding the fact that when he testified he
knew that Pinto had not given Respondent a credit for the
return of Guinta’s first case. Kent Harvin did not volunteer
this information; it came out with questions I asked of this
witness. This raises additional questions in that Kent Harvin
testified that it is Respondent’s policy to have a representa-
tive of the vendor sign the return slip. Respondent’s Exhibit
15, the ‘‘3/24/93’’ return slip is not signed by a representa-
tive of the vendor. This was pointed out during the hearing.
Respondent did not call the March 24 night driver to explain
why it was not signed by a representative of the vendor.
Kent Harvin also testified that it is Respondent’s practice to
leave one of the copies of the return slip with the vendor so
that Respondent’s account can be credited. Respondent’s ac-
count was not credited with a March 24 return. The night
driver was not called as a witness to testify whether he left
one of the copies of the return slip with Pinto on March 24.
And finally since whether there was a return on March 24
became an issue herein, one would expect Respondent to call
the driver who handled the night run that night to testify that
he physically did handle a return case of broccoli rabe to
Pinto on March 24. Respondent did not call the driver who
handled the March 24 night run to testify that he physically
handled one returned case of broccoli rabe which he brought
to Pinto.
As noted above, at one point Kent Harvin testified that
when he read Wednesday’s (March 24) hot sheet he
found out that the one box of broccoli rabe that he had
bought on the night truck and delivered the day before
was, back to Giuntas, was bad. And I like beside my-
self. I am saying, ‘‘Jesus Christ, two days in a row!’’
[Emphasis added.]
Contrary to the impression that Kent Harvin attempts to con-
vey, Wednesday’s hot sheet (R. Exh. 16), does not speak to
the case that was delivered ‘‘back to Giuntas.’’ Wednesday’s
hot sheet covers the pickup of the first case which was deliv-
ered to Giunta’s the day before. As Kent Harvin himself tes-
tified there was no hot sheet for the second case delivered
to Giunta’s which allegedly was thrown out. Since he spoke
529T. K. HARVIN & SONS
62 Both with respect to the discharge and with respect to a lack
of appreciation thereof on the part of Kent Harvin in that according
to Respondent’s version of events he would have known about the
second case to Giunta’s on Wednesday, March 24, and not, as he
testified, March 25.
to Tunnell on Tuesday, March 23, about the first case deliv-
ered to Giuntas, Wednesday’s hot sheet would not reveal
anything Kent did not already know.
Also as noted above while Keith Harvin testified that there
were some situations where Respondent would purchase
broccolli rabe when it is not on special order, Kent Harvin
testified that he would not have purchased broccoli rabe on
March 25 if he did not have a special order for it.
The picture painted by Respondent was not as bad as Kent
and Keith portray it to be. One receives the impression from
these two witnesses that the broccoli rabe in question was
rotten. After eliciting testimony from Tunnell on cross-exam-
ination that rotten broccoli smells bad and the odor could be
detected from at least 15 feet away counsel for Respondent
apparently realized the full ramifications of this testimony.
He subsequently elicited testimony from Tunnell that ice and
cold weather can sometimes mask the smell. If the broccoli
rabe delivered to Giunta’s was rotten Donati would have
known its condition before he opened the case. There was
no ice to mask the smell and there is no indication that the
broccoli was not left inside at Giunta’s. If it was rotten while
it was sitting without ice in Respondent’s facility before
being loaded onto a delivery truck, would not someone have
noted the problem. Also, while Kent and Keith Harvin at-
tempt to convey the impression that their business with
Giunta’s was in jeopardy, this was not specifically indicated
to Doyle or Kent or Keith Harvin. And as counsel for the
General Counsel points out, if Respondent was concerned
about losing Giunta’s business would not it have had Kathy
Borrelli drive the approximately 10 miles to the Distribution
Center, pick up a case of broccoli rabe and then drive it the
approximately 25 miles to Giunta’s.
And finally there is Keith Harvin’s testimony that after the
aforementioned petition was filed on April 6 he was told by
consultants that, among other things, Respondent could not
fire an employee for union activity. Keith did not testify that
either he or his brother Kent knew this before it was men-
tioned by the consultants. The three most active union adher-
ents, including Tunnell, were fired before Keith spoke with
the consultants.
When one considers the timing,62 the union animus,
Keith’s failure to unequivocally deny that he overheard what
Warner and Tunnell were talking about at 6 a.m. on March
22, the changing testimony and the contradictions of Re-
spondent’s witness, the failure of the documentary evidence
introduced by Respondent to fully support its version of the
involved events, the failure of Respondent to call witnesses
who would have been in a position to explain what occurred,
i.e., Supervisor Satchell, who Respondent indicated it would
call but never did, and the fact that apparently Respondent’s
management was not even aware before Keith spoke to the
consultants sometime after April 6 that it was unlawful to
terminate an employee for union activity, it is reasonable to
infer that Respondent knew of Tunnell’s union activity on
March 22. Counsel for the General Counsel has made a
prima facie showing. As pointed out by the Board in Roure
Bertrand Dupont, Inc., 271 NLRB 443 (1984), which cites
the Supreme Court decision in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983), ‘‘in rebutting the Gen-
eral Counsel’s prima facie case—that the protected conduct
was a ‘motivating factor’ in the employer’s decision—an em-
ployer cannot simply present a legitimate reason for its ac-
tion but must persuade by a preponderance of the evidence
that the same action would have taken place in the absence
of protected conduct.’’ In my opinion, Respondent has not
presented a legitimate reason for its action and, even if the
alleged reason existed, it has not demonstrated, in view of
its failure to follow its own rules and regulations, and its re-
fusal to keep Tunnell on as a day driver, that Tunnell would
have been discharged in the absence of his union activities.
I conclude, therefore, that Respondent violated Section
8(a)(3) and (1) of the Act as alleged in discharging Tunnell.
In my opinion Respondent through Keith Harvin unlaw-
fully solicited employees’ complaints and grievances from
Walker.
On brief, the General Counsel contends that Respondent
does not deny that Keith Harvin asked about employee com-
plaints but it asserts that Walker was a supervisor; that while
Walker’s title was ‘‘warehouse supervisor,’’ he was actually
a leadperson; that Tinnin, who worked the third shift, also
carried the title ‘‘warehouse supervisor,’’ was salaried, was
paid more than Walker, told warehouse employees what to
do, handled employee problems, and checked produce
brought back by the night truckdriver; that for most of
Tinnin’s shift there were no management personnel at the fa-
cility; that Tinnin voted in the election without challenge by
the Employer or anyone else; that Walker testified credibly
that he had no 2(11) authority other than some responsibility
to assign and direct employees and his exercise of this re-
sponsibility was clearly limited and routine in nature; and
that while Keith Harvin had asked Walker before about prob-
lems in the warehouse, Harvin’s explanation for his inquiry
on this occasion—‘‘by the time you find out about it, it’s too
late to do anything about it’’—obviously referred to the em-
ployees’ union activity, and further suggested that he in-
tended to satisfy the employees’ grievances in order to fore-
stall unionization.
Respondent, on brief, argues that conversations between
Walker and Keith Harvin do not constitute solicitation of
grievances since Walker was a statutory supervisor; that the
evidence in the record indicates that Walker’s supervisory
duties are more than strictly routine; that Walker had the au-
thority to hire and his hiring recommendations directly re-
sulted in the hiring of the individual recommended; that
Walker had the authority to discipline; that Walker admitted
that his ‘‘suggestions’’ had resulted in the termination of ‘at
least one employee’; that Walker was salaried; and that the
testimony suggests that the alleged solicitation of grievances
by Keith Harvin constituted merely a conversation about em-
ployee concerns, consistent with the regular discussions held
on this topic between Keith and Kent Harvin and Walker.
As pointed out by the administrative law judge in Chicago
Metallic Corp., 273 NLRB 1677, 1688–1689 (1985), affd.
794 F.2d 527 (9th Cir. 1986):
Section 2(11) of the Act provides:
The term ‘‘supervisor’’ means any individual hav-
ing authority, in the interest of the employer, to hire,
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
63 It is noted that while Kent Harvin testified that Walker had the
title day crew supervisor, Kent Harvin also described Walker as the
leader of the day crew.
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or re-
sponsibility to direct them, or to adjust their griev-
ances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Supervisors are excluded from coverage of the Act.64 In
enacting Section 2(11), Congress emphasized its inten-
tion that only truly supervisory personnel vested with
‘‘genuine management prerogatives’’ should be consid-
ered supervisors, and not ‘‘straw bosses, leadsmen, set-
up men and other minor supervisory employees.’’65
The status of a supervisor under the Act is deter-
mined by an individual’s duties, not by his title or job
classification.66 It is well settled that an employee can-
not be transformed into a supervisor merely by the vest-
ing of a title and theoretical power to perform one or
more of the enumerated functions in Section 2(11) of
the Act.67 To qualify as a supervisor, it is not necessary
that an individual possess all of these powers. Rather,
possession of any one of them is sufficient to confer su-
pervisory status.68 However, consistent with the statu-
tory language and legislative intent, it is well recog-
nized that Section 2(11)’s disjunctive listing of super-
visory indicia does not alter the essential conjunctive
requirement that a supervisor must exercise independent
judgment in performing the enumerated functions.69 In-
deed, as the court stated in Beverly Enterprises v.
NLRB, 661 F.2d 1095, 1098 (6th Cir. 1981):
regardless of the specific kind of supervisory author-
ity at issue, its exercise must involve the use of true
independent judgment in the employer’s interest be-
fore such exercise of authority becomes that of a su-
pervisor.
Thus, the exercise of some supervisory authority in a
merely routine, clerical, perfunctory, or sporadic man-
ner does not elevate an employee into the supervisory
ranks, ‘‘the test must be the significance of his judg-
ment and directions.’’70 Consequently, an employee
does not become a supervisor merely because he gives
some instructions or minor orders to other employees.71
Nor does an employee become a supervisor because he
has greater skills and job responsibilities or more duties
than fellow employees.72 Additionally, the existence of
independent judgment alone will not suffice for, ‘‘the
decisive question is whether [the employee has] been
found to possess authority to use independent judgment
with respect to the exercise . . . of some one or more
of the specific authorities listed in Section 2(11) of the
Act.’’73 In short, ‘‘some kinship to management, some
empathetic relationship between employer and em-
ployee must exist before the latter becomes a supervisor
for the former.’’74 Moreover, in connection with the au-
thority to recommend actions, Section 2(11) of the Act
requires that the recommendations must be effective.
The burden of proving that an employee is a ‘‘super-
visor’’ within the meaning of the Act rests on the party
alleging that such status exists.75 In making determina-
tions regarding supervisory status, ‘‘the Board has a
duty to employees to be alert not to construe super-
visory status too broadly because the employee who is
deemed a supervisor is denied employee rights which
the Act is intendent to protect.’’76
64 Section 2(3) of the Act provides:
The term ‘‘employees’’ shall include any employee . . . but
shall not include . . . any individual employed as . . . a supervisor
. . . .
Section 14(a) of the Act provides:
Nothing herein shall prohibit any individual employed as a super-
visor from becoming or remaining a member of a labor organiza-
tion, but no employer subject to the Act shall be compelled to deem
individuals defined herein as supervisors as employees for the pur-
pose of any law, either national or local relating to collective bar-
gaining.
See Florida Power & Light Co. v. Electrical Workers IBEW Local 641,
417 U.S. 790 (1974); Beasley v. Food Fair of North Carolina, 416 U.S.
653 (1974).
65 S. Rep. No. 105, 80th Cong., 1 Sess. 4 (1947).
66 New Fern Restorium Co., 175 NLRB 871 (1969); Food Store Em-
ployees Local 347 (G.C. Murphy Co.) v. NLRB, 422 F.2d 685 (D.C.
Cir. 1969); NLRB v. Bardahl Oil Co., 399 F.2d 365 (8th Cir. 1968).
67 Advanced Mining Group, 260 NLRB 486 (1982); Magnolia
Manor Nursing Home, 260 NLRB 377 (1982); NLRB v. Southern
Bleachery & Print Works, 257 F.2d 235 (4th Cir. 1958), cert. denied
359 U.S. 911 (1959).
68 NLRB v. Ajax Tool Works, 713 F.2d 1307 (7th Cir. 1983); NLRB
v. Bergen Transfer & Storage Co., 678 F.2d 679 (7th Cir. 1982); NLRB
v. Joe & Dodie’s Tavern, 666 F.2d 383 (9th Cir. 1982).
69 NLRB v. Wilson-Crissman Cadillac, 659 F.2d 728 (6th Cir. 1981);
Poultry Enterprises v. NLRB, 216 F.2d 798 (5th Cir. 1954).
70 NLRB v. Wilson-Crissman Cadillac, supra; Hydro Conduit Corp.,
254 NLRB 433 (1981); Federal Compress & Warehouse Co. v. NLRB,
398 F.2d 631 (6th Cir. 1968).
71 NLRB v. Wilson-Crissman Cadillac, supra; NLRB v. Doctors’
Hospital of Modesto, 489 F.2d 772 (9th Cir. 1973).
72 Federal Compress & Warehouse Co. v. NLRB, 398 F.2d 631 (6th
Cir. 1968); NLRB v. Merchants Police, Inc., 313 F.2d 310 (7th Cir.
1963).
73 Advanced Mining Group, 260 NLRB 486 (1982); NLRB v. Brown
& Sharpe Mfg. Co., 169 F.2d 331 (lst Cir. 1948).
74 Advanced Mining Group, supra; NLRB v. Security Guard Service,
384 F.2d 143 (5th Cir. 1967).
75 RAHCO, Inc., 265 NLRB 235 (1982); Tucson Gas & Electric
Co., 241 NLRB 181 (1979); Commercial Movers, 240 NLRB 288
(1979).
76 RAHCO, Inc., 265 NLRB 235 (1982); Westinghouse Electric
Corp. v. NLRB, 424 F.2d 1151 (7th Cir. 1979), cert. denied 400 U.S.
831 (1970).
Has Respondent met its burden of proof? In my opinion
it has not. Respondent has not shown that Walker possessed
authority to use independent judgment with respect to the ex-
ercise of some one or more of the specific authorities listed
in Section 2(11) of the Act. Walker impressed me as being
a credible witness. Kent Harvin was not a credible witness.
As described above, Kent Harvin’s testimony with respect to
the Tunnell termination undermined Kent Harvin’s credibility
entirely in my opinion.63 Walker was expected to accomplish
certain things during the day. There were warehouse workers
to help him. If the workers did not do their fair share, Walk-
er would stay late to make sure the work was done. If for
some reason the workers did not do their fair share Walker
reported this to the Harvins with suggestions as to what
should be done. When the problem was obvious to the
531T. K. HARVIN & SONS
64 The testimony of Respondent’s controller, Husilton, does not es-
tablish that Walker was a supervisor under the Act.
65 If Respondent truly felt this way about Kuhn after the opening
party, one would have to wonder why it allowed him to continue
to operate one of its motor vehicles. Additionally, if this, under the
scenario presented by Keith Harvin, was the first time Kuhn engaged
in such conduct (there is no testimony indicating otherwise) timing
undermines this argument for the involved opening occurred in May
which is after Keith Harvin’s alleged statement to Kuhn.
Harvins, Walker’s suggestions were followed. On the other
hand, other of Walker’s suggestions regarding the warehouse
employees were not followed. While Kent Harvin testified
that Walker had the title of day crew supervisor, Respondent,
in effect, contends that Walker does not know what he is
talking about when he testified that Borrelli was not a ware-
house worker. Although Borrelli testified that when she start-
ed in 1991 Keith Harvin and Walker were her supervisors,
she did not specifically deny Walker’s testimony that in 1993
when Keith and Kent Harvin were in Wilmington getting
that facility ready he, Walker, answered to Borrelli who con-
tacted Keith or told him, Walker, what to do. Perhaps an ac-
curate gauge of what Walker believed was his ‘‘kinship to
management’’ was his acquiring warehouse employees signa-
tures on union authorization cards. Walker did not have au-
thority to use independent judgment in the areas traditionally
associated with being a supervisor including hiring, transfer-
ring, suspending, laying off, recalling, promoting, discharg-
ing, assigning, rewarding, or disciplining other employees, or
the responsibility to direct them or adjust their grievances as
to effectively recommend such action. In the circumstances
present here it is my opinion that Walker was not a super-
visor as that term is defined in the Act.64
Since Walker was not a supervisor, Keith Harvin’s ques-
tion, which went beyond what he may have asked in the past
because Keith did not deny saying ‘‘by the time you find out
about it, it’s too late to do anything about it’’ and he did not
assert that he had ever used this language before with Walk-
er, violated the Act. As contended by counsel for the General
Counsel, Keith Harvin suggested that he intended to satisfy
the employees’ grievances in order to forestall unionization.
Paragraph 6 of the complaint, issued August 31 in Case
4–CA–21892, as amended at the hearing herein, alleges that
Keith Harvin (1) in mid-April (a) interrogated an employee
concerning the employee’s union sympathies, and (b) prom-
ised an employee a wage increase and an award of a dis-
patcher’s job in order to discourage the employee from sup-
porting Local 929; (2) on or about June 6 created an impres-
sion among its employees that their Local 929 activities were
under surveillance by Respondent by asking an employee
how a Local 929 meeting had been and interrogated an em-
ployee concerning the activities of its employees on behalf
of Local 929; (3) in or about mid-April 1993 by soliciting
employees’ complaints and grievances, promised employees
increased benefits and improved terms and conditions of em-
ployment if they abandoned their support for Local 929; and
(4) in or about mid- or late April 1993 told an employee that
other employees have been discharged because of their union
activity.
Counsel for the General Counsel, on brief, contends that
if Kuhn is credited, then Keith Harvin’s questions to Kuhn
at a meeting just after the organizing campaign had begun,
and in the midst of their discussion about Kuhn’s proposed
dispatcher position and raise, about whether he had heard
about employees’ union activities and how he felt about the
Union constituted an unlawful interrogation about union
sympathies and activities, Sunnyvale Medical Clinic, 277
NLRB 1217 (1985); that Keith Harvin’s questions to Kuhn
about the drivers’ concerns constituted an unlawful solicita-
tion of grievances, Astro Printing Services, 300 NLRB 1028,
1034 (1990), and Harvin’s indication that if the Union was
kept out he could ‘‘hit [Kuhn’s] number’’ amounted to a
promise of a dispatcher’s job and a wage increase in order
to discourage Union support, Bon Marche, 308 NLRB 184,
197 (1992); that Harvin’s statement to Kuhn that Tunnell
was fired because of his union activities constituted an un-
lawful threat of discharge for engaged in protected activity,
J.F.L. Painting & Decorating, 303 NLRB 1029 (1991); and
that Keith Harvin’s question to Kuhn about how the union
meeting went unlawfully created the impression that the em-
ployees’ union activities were under surveillance and con-
stituted an unlawful interrogation about these activities, Bon
Marche, supra and Sunnyvale Medical Clinic, supra.
Respondent, on brief, argues that the record contains sub-
stantial evidence to justify discrediting Kuhn, namely, (1) the
Board’s refusal to issue a complaint because of insufficient
evidence regarding that portion of the charge filed by Kuhn
alleging that Respondent threatened to terminate him because
of his union activities; (2) ‘‘the record contains corroborated
evidence that Mr. Kuhn attempted to bribe Keith Harvin in
exchange for influencing drivers to vote against the Union’’;
and (3) Kuhn is at best, an opportunist in that while he ini-
tially asserted that his concern for Tunnell prompted him to
ask about Tunnell’s dismissal, Kuhn later admitted that he
worried that Tunnell would return to work and that Kuhn
would have to give up Tunnell’s route; that Keith Harvin’s
testimony that Kuhn was intoxicated when he attended the
party for the opening of the Wilmington facility undermines
Kuhn’s credibility because it is inconceivable that Keith
Harvin would confide the reason for Tunnell’s termination to
‘‘such a troubled, unstable individual’’;65 that given the lack
of corroborating testimony by Gheling, as well as the lack
of credibility to be attached to Kuhn’s testimony, the allega-
tion that Keith Harvin engaged in surveillance of the union
activities in violation of the Act is without merit; that there
is insufficient evidence to establish solicitation of grievances
or a promise of benefits by Keith Harvin; and that there is
insufficient evidence to establish that Keith Harvin made
promises of benefits.
I did not find Keith Harvin to be a credible witness. As
noted above, he changed his testimony regarding the termi-
nation of Tunnell. Timing helped undermine Respondent’s
version of what caused the Tunnell termination. The timing
of what allegedly occurred between Kuhn and Keith Harvin
days before the involved election also raises questions. More
than once Keith Harvin testified that Kuhn solicited the bribe
on Wednesday and Keith told Kuhn that it would be illegal
and Keith could go to jail for that. Keith testified that he
spoke to Respondent’s attorney by telephone on Friday be-
cause it was too late Thursday to get him. Apparently in giv-
ing this testimony, notwithstanding the gravity of the situa-
tion, he did not for some reason believe that it was necessary
to explain why if, as alleged, Kuhn solicited a bribe after re-
turning from his deliveries on Wednesday. Keith waited until
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘too late in the day Thursday to get a hold of [his] attor-
ney.’’ Keith Harvin testified as follows regarding the fact
that he allegedly first spoke to his attorney about the matter
on Friday, June 11:
THE WITNESS: And he, he [not I?] had got a hold
of Mr. Cabot because he—on Friday because he wanted
to know what the outcome of the election was. I mean,
he was readily available by phone on Friday because of
the election outcome.
In other words, allegedly this matter was first raised with Re-
spondent’s attorney in a discussion involving the fact that
earlier that day of the number of valid votes counted (exclud-
ing challenged ballots) 12 were for the Petitioner Union and
11 were against the Petitioner Union. Respondent points out
that this allegation is corroborated by Anderson at least to
the extent that Kuhn allegedly told him that he was going
to solicit a bribe from Keith Harvin. The problem with An-
derson’s testimony is that it is not logical or even more basi-
cally it does not make sense. Anderson testified:
Well, Frank approached me about five o’clock in the
morning, and he mentioned something about he was
going to ask Harvin for a substantial amount of money.
I think it was, like $5000, to buy some no-votes so the
Union couldn’t come in. It was to be contingent on ev-
erybody would have been paid at the end of the day,
had the Union—if they lost the election.
. . . .
I guess he figured why don’t they get . . . $500 a
piece. . . .
. . . .
[There was] . . . approximately ten drivers.
. . . .
Q. . . . is that the extent of the conversation, sir?
A. That was about it.
According to the scenario the drivers were not going to get
paid before the vote but rather after the vote and only if the
Union lost. Since there were 32 eligible voters and only 10
drivers, the drivers alone were not going to determine the
outcome of the vote. More importantly there is a missing in-
gredient. It would make no sense whatsoever for Kuhn to tell
Keith Harvin that he Kuhn would deliver the drivers’ vote
for $500 a piece which is going to be paid after the outcome
without first asking the individual drivers if they were will-
ing to sell their vote for $500. Anderson was asked by coun-
sel for Respondent if that was ‘‘the extent of the conversa-
tion.’’ Anderson never testified that Kuhn asked him if he
was willing to vote no for $500. Much of the testimony An-
derson gave on March 7, 1994, was in response to leading
questions. As noted above, at one point Anderson testified,
‘‘[T]o be as honest as I can.’’ I am always concerned when
someone says ‘‘to be honest’’ for I have found that more
often than not these words precede a statement which is any-
thing but totally honest. Here, Anderson was either taking it
a step further or he was telegraphing something wittingly or
unwittingly when he testified ‘‘to be as honest as I can.’’
I do not credit the testimony of either Keith Harvin or An-
derson regarding the solicitation of a bribe. And I do not
credit the testimony of Keith Harvin with respect to the state-
ments that he made to Kuhn. I find Kuhn’s testimony, as it
relates to the above-described violations, to be credible. As
alleged in the involved complaint, and for the reasons set
forth in counsel for the General Counsel’s brief, as set forth
above, I find that Respondent violated the Act through Keith
Harvin as alleged in paragraph 6 of the complaint in Case
4–CA–21842, as described above.
With respect to the ballots challenged by counsel for the
General Counsel, as noted above, Warner failed to cooperate
or appear at the hearing. The allegation that Warner was un-
lawfully terminated was dismissed at the request of counsel
for the General Counsel. Maxwell also did not appear at the
hearing and the Union withdrew its contention that Maxwell
was still an employee. The ballots of these two individuals
should remain unopened and uncounted. These challenges are
sustained. As concluded above, Tunnell was unlawfully ter-
minated. He is an eligible voter. His ballot should be opened
and counted. Regarding the ballots challenged by the Union,
as noted above, the Union withdrew its challenge to
Brightwell. His ballots should be opened and counted. For
the reasons set forth below, I believe that the ballot of
Borrelli should remain unopened and uncounted. The chal-
lenge to her ballot is sustained. In conclusion, therefore, only
the challenged ballots of Tunnell and Brightwell should be
opened and counted.
The Union, on brief, contends that Borrelli is not an em-
ployee and lacks community of interest with other employees
and therefore Borrelli is not eligible to vote; that the United
States Supreme Court has established that the Board has
broad authority to exclude from the bargaining unit relatives
of management even if they do not receive any special job-
related benefits, NLRB v. Action Automotive, Inc., 469 U.S.
490 (1985); that the Board may look to see if the individ-
ual’s interests are more likely to be aligned with the business
interests of the family than with the interests of the employ-
ees. Id. at 498–499; that Borrelli is the daughter of the
former owner and the sister of the two co-owners of Re-
spondent; that Respondent is still known to part of the in-
volved industry as 5K’s and Kathy Borrelli is one of the
5K’s; that it was Borrelli who made the Employer’s objec-
tion that the two ballots had been folded together implying
that someone voted twice; that Borrelli, notwithstanding her
denial on cross-examination, referred to Respondent’s em-
ployee Oakley as ‘‘one of my employee[s]’’; that while
Borrelli and Husilton testified that Borrelli was paid $66 a
day the records received at the hearing herein reveal that
Borrelli was paid $880 during the two pay periods covered
and the records do not show that Borrelli, as testified to by
Husilton, worked overtime during these two pay periods; that
Borrelli reaps substantial financial benefit solely by virtue of
her family status, making more money during the two pay
periods covered than Walker, who Respondent claims is a
supervisor; that employees who receive pay significantly
higher than the bargaining unit based on their family status
are not eligible to vote, Blue Star Ready Mix Concrete Corp.,
305 NLRB 429 (1991); and that by definition the Act ex-
empts any person employed by ‘‘his parent or spouse’’ and
since Thomas Harvin is still involved on a part-time basis
with the business, Borrelli, who is Thomas Harvin’s daugh-
ter, is by definition not an employee and, therefore, not eligi-
ble to vote, Springhill Services, 295 NLRB 1021 (1989).
533T. K. HARVIN & SONS
66 Justice Stevens, with then Justice Rehnquist and Justice
O’Conner joining, dissented.
Respondent Employer, on brief, argues that the Union’s
challenge to Borrelli has no factual or legal basis; that
Borrelli’s job responsibilities are comparable to other ware-
house workers; that Borrelli’s terms and conditions of em-
ployment mirror those within the unit; that Borrelli received
no special job-related benefits; and that Borrelli’s familial
ties are not sufficient to align her interests with management.
In NLRB v. Action Automotive, Inc., supra at 494, 495, and
496, the majority of the Supreme Court66 indicated:
Section 9(b) of the Act vests in the Board authority
to determine ‘‘the unit appropriate for the purposes of
collective bargaining.’’ 61 Stat. 143, 29 U.S.C. Section
159(b). The Board’s discretion in this area is broad, re-
flecting Congress’ recognition ‘‘of the need for flexibil-
ity in shaping the [bargaining] unit to the particular
case.’’ NLRB v. Hearst Publications, Inc., 322 U.S.
111, 134, 64 S.Ct. 851, 862, 88 L.Ed. 1170 (1944). The
Board does not exercise the authority aimlessly; in de-
fining bargaining units, its focus is on whether the em-
ployees share a ‘‘community of interest.’’ See South
Prairie Construction Co. v. Operating Engineers, 425
U.S. 800, 805, 96 S. Ct. 1842, 1844, 48 L.Ed. 2d 382
(1976) (per curiam); 15 NLRB Ann. Rep. 39 (1950). A
cohesive unit—one relatively free of conflicts of inter-
est—serves the Act’s purpose of effective collective
bargaining. Pittsburgh Plate Glass Co. v. NLRB, 313
U.S. 146, 165, 61 S.Ct. 908, 918, 85 L. Ed. 1251
(1941), and prevents a minority interest group from
being submerged in an overly large unit, Chemical
Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157,
172–173, 92 S.Ct. 383, 393–394, 30 L.Ed. 2d 341
(1971).
The Board has long hesitated to include the relatives
of management in bargaining units because ‘‘their inter-
ests are sufficiently distinguished from those of the
other employees.’’ Louis Weinberg Associates, Inc., 13
NLRB 66, 69 (1939). From the earliest days of the
Wagner Act, ch. 372, 49 Stat. 449 et seq., until 1953,
the Board automatically excluded close relatives of a
manager or owner of a closely held company. See, e.g.,
Jerry and Edythe Belanger, 32 NLRB 1276, 1279, and
n. 4 (1941). This bright-line approach was abandoned,
however, in International Metal Products Co., 107
NLRB 65, 67 (1953), and now the Board considers a
variety of factors in deciding whether an employee’s fa-
milial ties are sufficient to align his interests with man-
agement and thus warrant his exclusion from a bargain-
ing unit.4
For instance, a relevant consideration is whether the
employee resides with or is financially dependent on a
relative who owns or manages the business; such an
employee is typically excluded from the unit. See, e.g.,
Pandick Press Midwest, Inc., 251 NLRB 473, 473–474
(1980). The greater the family involvement in the own-
ership and management of the company, the more like-
ly the employee-relative will be viewed as aligned with
management and hence excluded.5 See factors listed in
NLRB v. Caravelle Wood Products, Inc., 466 F.2d 675,
679 (CA7 1972). The Board, of course, is always con-
cerned with whether the employee receives special job-
related benefits such as high wages or favorable work-
ing conditions. See, e.g. Holthouse Furniture Corp.,
242 NLRB 414, 415–416 (1979). When other criteria
satisfy the Board that the employee-relative’s interests
are aligned with management, however, he may be ex-
cluded from the unit even though he enjoys no special
job-related benefits. E.g., Marvin Witherow Trucking,
229 NLRB 412, 412–13 (1977).
Our review is limited to whether the Board’s practice
of excluding some close relatives who do not enjoy
special job related benefits has a ‘‘reasonable basis in
law.’’ NLRB v. Hearst Publications, Inc., supra, 322
U.S., at 131, 64 S. Ct., at 861. In reviewing Board deci-
sions, we consistently yield to the Board’s reasonable
interpretations and applications of the Act, see NLRB v.
City Disposal Systems, Inc., 465 U.S. 822, 829–830,
104 S. Ct. 1505, 1510–1511, 79 L. Ed. 2d 839 (1984);
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891, 104 S.Ct.
2803, 2808, 81 L. Ed. 2d 732 (1984). Indeed, the
Board’s orders defining bargaining units are ‘‘rarely to
be disturbed.’’ Packard Motor Car Co. v. NLRB, 330
U.S. 485, 491, 67 S. Ct. 789, 793, 91 L. Ed. 1040
(1947).
The Board’s policy regarding family members, al-
though not defined by bright-line rules, is a reasonable
application of its ‘‘community of interest’’ standard.6
Close relatives of management, particularly those who
live with an owner or manager, are likely to ‘‘get a
more attentive and sensitive ear to their day-to-day and
long-range work concerns than would other employ-
ees.’’ Parisoff Drive-In Market, 201 NLRB 813, 814
(1973). And it is reasonable for the Board to assume
that the family member who is significantly dependent
on a member of management will tend to equate his
personal interests with the business interests of the em-
ployer. Ibid. The very presence at union meetings of
close relatives of management could tend to inhibit free
expression of views and threaten the confidentiality of
union attitudes and voting. See generally, ibid.; NLRB
v. Hendricks. County Rural Electric Membership Corp.,
454 U.S. 170, 193–94, 102 S.Ct. 216, 230, 70 L. Ed.
2d 323 (1981) (POWELL, J., concurring in part and
dissenting in part).
4 The Board’s policy is not undermined by the fact that it has modi-
fied and refined its position; an agency’s day-to-day experience with
problems is bound to lead to adjustments. See NLRB v. Bell Aerospace
Co., 416 U.S. 267, 294–295, 94 S. Ct. 1757, 1771–1772, 40 L. Ed. 2d
134 (1974).
5 Compare Parisoff Drive-In Market, Inc., 201 NLRB 813 (1973)
(excluding children of corporation’s vice president and significant
shareholder), with Pargas of Crescent City, Inc., 194 NLRB 616 (1971)
(including wife of local manager with no ownership interest).
6 At least since International Metal Products Co., 107 NLRB 65,
(1953), the Board has not excluded an employee simply because he was
related to a member of management.
The business involved herein, a closely held corporation,
is a family business. Respondent does business under more
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
67 See G.C. Exh. 14, which is a bill from Pinto Brothers, Inc.
dated March 25 to ‘‘5K’s Farm Market.’’
68 This conclusion is reached without considering the fact that
Borrelli stopped recording her time when she started working at the
Wilmington facility; and that at some point after she started working
at the Wilmington facility she became office manager in customer
service, taking on additional responsibilities. Also as noted above,
documentary evidence available at the hearing showed that Borrelli,
for a 4-week period, was paid a total of $1760 instead of the $1320
she was supposed to have received for a total of 4 weeks. While
Husilton attributed the difference to overtime, he conceded that the
documents in question did not show that the difference was attrib-
utable to overtime. Although Respondent did not come forward with
documents showing how many hours Borrelli actually worked during
the involved period, it was not necessary to rely on this matter in
reaching the above conclusion.
than one name, viz, T. K. Harvin and Sons. Inc. and 5K’s.67
Kathy Harvin Borrelli is one of the 5K’s. The business was
operated by Thomas Harvin before he retired. As noted
above, even now Thomas Harvin, to a limited extent, is in-
volved in the operation of the business, for as Keith Harvin
testified, his father ‘‘might come in and have a meeting with
the bank, you know; be able to go over financials.’’
In Action Automotive, Inc., supra, the Court agreed with
the Board that without making a finding that a close relative
of management enjoyed special job-related privileges, the
close relative could be excluded from the involved collec-
tive-bargaining unit if it were found that the close relative’s
interests were different from those of other employees in the
unit or more closely aligned with management than with the
employees.
Unlike the two employees in question in Action Auto-
motive, Inc., supra, Borrelli does not live with one of the
owners, namely, Kent or Keith Harvin. But in that case the
company had a number of facilities in different cities. There
it was pointed out that the mother of the three owners of the
company, all of whom were closely related and actively in-
volved in the running of the company, in addition to being
an employee of the company, lived with one of her sons and
she had daily contact with her sons. This was enough to jus-
tify the conclusion that her interests were more likely to be
aligned with the business interests of the family than with the
interests of the employees. Here the Respondent Employer
had only its warehouse and office in Chester and now it op-
erates a facility in Wilmington. Except for when he was in
Wilmington getting that facility ready to open, Borrelli
worked in the same facility as her brother Keith on a day-
to-day basis. And while her brother Kent had his office
across the street from the warehouse in Chester, he was in
the warehouse to sort tomatoes and to speak to employees,
i.e., to Tunnell on March 23. Additionally, Borrelli had to go
into the office building every workday to sign the logbook.
Borrelli has day-to-day contact with her brothers. Addition-
ally, Borrelli does not deny that while Kent and Keith were
in Wilmington getting that facility ready to open Walker,
who Respondent alleges is a supervisor, answered to her in
Chester, she acted as liaison between the warehouse work
force in Chester and Kent and Keith in Wilmington, and
some employees came to her when they wanted permission
to leave work in Chester early.
In my opinion, under the circumstances present here
Borrelli’s interests are more likely to be aligned with the
business interests of the family than with the interest of the
employees.68 The very presence at union meetings of Borrelli
could tend to inhibit free expression of views and threaten
the confidentiality of union attitudes and voting.
As indicated above, T. K. Harvin and Sons, Inc. filed ob-
jections to conduct allegedly affecting the results of the elec-
tion. As here pertinent, in his Supplemental Decision on Ob-
jections to Election dated October 6, 1993 (G.C. Exh. 1(v)),
the Acting Regional Director for the Region 4 of the Board,
pointed out that since the Employer submitted no evidence
in support of Objection 1, it was dismissed. The remaining
objections, are as follows:
Objection 2:
Local 929, by and/or through its agents or adherents,
engaged in improper balloting procedures.
T. K. Harvin avers that an individual may have ob-
tained two (2) ballots at the same time, executed both
in favor of Local 929, folded the ballots and then
placed them in the ballot box. When the election was
concluded, the Board Agent began tabulating the bal-
lots. At one point, a ballot was retrieved. Actually, the
ballot contained two ballots. The ballots were folded to-
gether in such a way that it appeared as if an individual
had executed two ballots at the same time and placed
them in the ballot box. Both ballots were executed in
favor of the union.
When the votes were tabulated, the Board Agent de-
termined that the election was very close. Twelve (12)
ballots were in favor of the Union; eleven (11) ballots
were in favor of the Company; and five (5) ballots were
challenged. Any improper balloting would have a mate-
rial effect on the election.
Objection 3:
Local 929, by and through its agent, Union observer
Joshua Tinnell [sic], engaged in improper electioneering
within the election area. Notwithstanding specific in-
struction to refrain from engaging in prolonged or ma-
terial conversations with any voter, Mr. Tinnell [sic]
spoke to one voter and said words to the effect of ’get
Cooper to come in and vote.’
Objection 4:
T. K. Harvin objects to the conduct of the election
by the National Labor Relations Board, by and through
its Board Agent. The agent engaged in conduct which
may have materially affected the election. These items
of conduct include:
A. Failure to Supervise the Ballot Box.
Throughout the voting in the Wilmington facility, the
ballot box was placed on the floor of the room by the
door rather than on the table (cart) within reach of the
Board Agent.
B. Failure to Monitor the Voting.
As averred in earlier objections, it appears that an in-
dividual may have had an opportunity to execute two
(2) ballots. On information and belief, the opportunity
to engage in such improper balloting could have re-
535T. K. HARVIN & SONS
sulted from the failure of the Board Agent to monitor
the voting process.
The Employer, on brief, contends that Tunnell, the
Union’s observer, engaged in blatant electioneering within
the polling place in violation of Michem, Inc., 170 NLRB
362 (1968), and its progeny; that Tunnell instructed one
voter to get another employee who had not yet appeared at
the polling place; that there is evidence that Tunnell main-
tained a list of individuals who voted in violation of the spe-
cific instructions contained in General Counsel’s Exhibit 18;
that similarly Tunnell’s use of the existing eligibility list to
keep track of voters rather than a separate sheet of paper is
also a violation of Board law; that the Board’s agent’s con-
duct raises a reasonable doubt as the fairness and validity of
the election and requires that the election be set aside in that
Protas failed to take the necessary precautions to secure the
ballot box which may have been improperly placed on the
floor; that the record evidence establishes a substantial level
of commotion between voters entering the voting booth,
waiting to vote, and checking in with the observers; that
these factors raise a reasonable inference that the Board
agent conducting the election did not take steps to prevent
misconduct; that these factors, when coupled with the com-
ments made by Tunnell during the election; require that the
election be set aside.
The Union, on brief, argues that a United States Court of
Appeals recently agreed with the Board in NLRB v. WMFT,
997 F.2d 269 (7th Cir. 1993), that a union observer’s com-
ment to another employee in the polling area to go get a
named employee to come and vote did not warrant setting
aside an election; that the instant case fits squarely within the
Board’s and court of appeals finding in WMFT, supra; that
there is no evidence whatsoever in the record that would in-
dicate that any single voter voted twice or cast two ballots
and the Employer’s objection is based solely on conjecture
or speculation from the appearance of two ballots stuck to-
gether, one on top of the other, during the ballot count; that
here there were not less ballots cast than voters; that there
was no conduct on the part of the Board agent conducting
the election which materially affected the election; that a
United States Court of Appeals in NLRB v. Oesterlen Serv-
ices, 649 F.2d 399 (6th Cir. 1981), cert. denied 454 U.S.
1031 (1981), upheld an election where, during the voting pe-
riod, the Board agent absented the voting area for 10 minutes
without sealing the ballots box, and the court, agreeing with
the Board, found that this conduct did not affect the integrity
of the box or the election; that the observers voiced no prob-
lem with the placement of the ballot box; and that after the
ballot count, Protas compared the number of ballots cast with
the number of voters who entered the voting area to vote,
and found that they were exactly equal.
The court in WMFT, supra at 274, 275, indicated as fol-
lows:
V. ALLEGED UNLAWFUL ELECTION DAY CONDUCT
A Board-run representation election is presumed
valid and the burden is on the objecting party to prove
that the election is invalid. NLRB v. Service American
Corp., 841 F.2d 191, 195 (7th Cir. 1988); NLRB v.
Mattison Machine Works, 365 U.S. 123, 124 (1961).
WFMT, supra, as the objecting party, must demonstrate
not only that unlawful acts occurred, but that those acts
interfered with the employees’ exercise of free choice
‘‘to such an extent that they materially affected the re-
sults of the election.’’ NLRB v. Chicago Tribune Com-
pany, 943 F.2d 791, 794 (7th Cir. 1991) (citation omit-
ted).
A. Alleged Unlawful Electioneering Inside the
Polling Area
The Company contends that Terkel [the Union ob-
server] engaged in last-minute electioneering inside the
polling area in violation of the rule in Michem, Inc. and
Teamsters Local 864, 170 NLRB 362 (1968), when he
stated to Lynn Minich, ‘‘Kurt Tyler hasn’t voted. Go
get Kurt to come and vote.’’ In Michem, the NLRB
prohibited electioneering during a representation elec-
tion:
‘‘Careful consideration of [the effect of conversa-
tions between parties to the election and employees
preparing to vote] now convinces us that the poten-
tial for distraction, last minute electioneering or
pressure and unfair advantage from prolonged con-
versations between representatives of any party to
the election and voters waiting to cast ballots is of
sufficient concern to warrant a strict rule against
such conduct, without inquiring into the nature of the
conversations. The final minutes before an employee
casts his vote should be his own, as free from inter-
ference as possible. Furthermore, the standard here
applied ensures that no party gains a last-minute ad-
vantage over the other, and at the same time deprives
neither party of an important access to the ear of the
voter. . . . This rule is nothing more than a prevent-
ative device to enforce the ban against electioneering
in polling places normally applied in political elec-
tions and in our representation elections.’’
Michem, 170 NLRB at 362–363 (emphasis added). The
Board will normally set aside a representation election
if the parties have violated the Michem rule against
electioneering. NLRB v. Del Rey Tortilleria, Inc., 823
F.2d 1135, 1140 (7th Cir. 1987) (citations omitted);
Midwest Stock Exchange v. NLRB, 620 F.2d 629, 633
(7th Cir. 1980). The Company argues that Terkel’s
statement to Minich constituted a ‘conversation’ that
could develop into electioneering or coercion as it po-
tentially sent a message to other employees that some-
one was monitoring who had voted and might seek out
those employees who had not yet voted. In addition, the
Company labels Terkel’s statements directing Minich to
get Tyler to vote unlawful electioneering because
Minich was standing in an open doorway while ‘‘talk-
ing’’ to Terkel, permitting other potential voters to
overhear Terkel’s statement and feel last-minute pres-
sure to vote. Under the Michem rule, ‘‘the Board will
normally set aside an election if there are ‘prolonged
conversations between representatives of any party to
the election and voters waiting to cast ballots. . . .’’’
Del Rey Tortilleria, 823 F.2d at 1140 (quoting Michem,
170 NLRB at 362).
We agree with the Board’s conclusion that Terkel’s
statement to Minich, to ‘‘go get Kurt [Tyler] to come
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and vote,’’ did not violate the Michem rule because
Minich was not waiting to cast her ballot, and no other
eligible voters were present in the polling area when
Terkel made the statement. Moreover, the Board agent
immediately cautioned Terkel and Minich that she
(Minich) could not instruct an employee to vote. Tyler
testified that he voted without anyone telling him to
vote. There is no testimony in the record that any other
WFMT eligible voters, other than Martinez (WFMT ob-
server), Stevenson and Baum (AFTRA observers) serv-
ing at the polls, overheard Terkel’s statement to Minich
and felt influenced or pressured to vote in the election.
Because the Company failed to establish that Terkel’s
statement to Minich influenced or interfered with voters
waiting to cast their ballots, the Board’s finding that
Terkel’s statement did not violate the Michem rule is
supported by substantial evidence.
If, as Protas testified, Tunnell spoke to a voter on his way
out after voting, asking the individual if another named em-
ployee was there that day and then, telling the individual that
the other employee ‘‘‘hasn’t voted yet,’ ‘if, he Protas, told
Tunnell’ ‘not to do that, that was none of his business
whether somebody voted. Campaigning was over and he
shouldn’t do that,’’’ and if, as company observer, Smith, tes-
tified, Protas told the employee who Tunnell spoke to to dis-
regard what Tunnell said, then there would be no meaningful
difference between the situation WMFT, supra, and the fac-
tual situation presented here. But here there is a conflict in
the testimony of Protas and Smith regarding whether the in-
dividual who Tunnell talked to had voted already or was ‘‘in
the door getting ready to vote.’’ Also, while Smith testifies
that Protas told the voter to whom Tunnell spoke to disregard
Tunnell’s remarks, Protas specifically denied telling this per-
son to disregard Tunnell’s remarks. As noted above, the bur-
den of proof here is on the Employer which filed the objec-
tions. Notwithstanding the fact that Protas may not have, in
the polling area, told the voter who Tunnell spoke to to dis-
regard Tunnell’s instructions, Protas, who overheard
Tunnell’s remarks, did immediately tell Tunnell that he
should ‘‘not do that, that was none of his business whether
somebody voted, [c]ampaigning was over and he shouldn’t
do that.’’ Respondent did not call the voter who Tunnell di-
rected to get another employee to determine when Tunnell
spoke to him and whether he overheard Protas’ statement to
Tunnell and, therefore, may or may not have been placed on
notice that the conduct was not acceptable. Respondent did
not call the employee who Tunnell had indicated had not
voted yet to determine on this record under what cir-
cumstances he appeared at the polling place to vote. It is
noted that Smith testified that a couple of minutes after
Tunnell made his remarks to the voter the other employee
who had not voted yet showed up to vote. As noted, Smith
also testified that Protas told the voter to whom Tunnell
spoke to disregard Tunnell’s direction to get the other em-
ployee to vote. If this is what occurred, either the voter who
Tunnell spoke to disregarded Protas’ admonition or the em-
ployee who had not voted yet showed up to vote without
being told to do so. This is the Employer’s objection. As the
court in WAFT, supra, noted, there is a presumption of valid-
ity and the burden is on the objecting party to prove that the
election is invalid. The Employer has not demonstrated facts
warranting the setting aside of the election on the basis of
facts established under this objection.
Contrary to the Employer’s assertion on brief, there is no
evidence on this record establishing that Tunnell maintained
a list of individuals who voted. This allegation was not spe-
cifically included in the objections, as described above. Re-
garding Tunnell’s use of the existing eligibility list, which
both observers were checking off as the employees came to
the polling area to vote, to keep track of who voted, the
court in WMFT, supra, indicates as follows:
The Company argues that Terkel engaged in unlaw-
ful electioneering because his references to the official
list of eligible voters was equivalent to keeping a pro-
hibited list, separate from the official list, of those em-
ployees who had not yet voted during the election in
violation of the rule in Piggly-Wiggly #011, 168 NLRB
792, 792–793 (1967). See Medical Center of Beaver
County, Inc. v. NLRB, 716 F.2d 995, 999 (3d Cir.
1983). We have recognized that shortly after the sched-
uling of an election, the employer must furnish a list
of the names and addresses of all employees eligible to
vote. NLRB v. Speedway Petroleum, 768 F.2d 151, 157
and n. 6 (7th Cir. 1985) (citing Excelsior Underwear,
Inc., 156 NLRB 1236 (1961)). This official list of em-
ployees eligible to vote has become known as an Excel-
sior list. Id. In Piggly-Wiggly, the Board stated ‘‘[i]t
has been the policy of the Board to prohibit anyone
from keeping any list of persons who have voted, aside
from the official eligibility list used to checkoff voters
as they receive ballots.’’ Piggly-Wiggly, 168 NLRB at
793; see also Textile Service Indus., 284 NLRB 1108,
1109 (1987); Medical Center, 716 F.2d at 999. The fed-
eral courts have generally recognized that ‘‘[i]n the in-
terests of ensuring free, non-coerced elections, the
Board as set aside elections ‘if employee voters know,
or reasonably can infer, that their names are being re-
corded’ on unauthorized lists.’’ Days Inn Management
Co. v. NLRB, 930 F.2d 211, 215 (2d Cir. 1991) (cita-
tion omitted).
The record contains substantial evidence, which we
enumerate below, supporting the Board’s finding that
Terkel’s consultation with the official list failed to
‘‘constitute objectionable conduct’’ under the Piggly-
Wiggly rule. The WFMT observer, Martines, testified
that Terkel did not keep a separate list or refer to any
‘‘piece of paper’’ other than the official list while serv-
ing as the AFTRA observer. As an election observer,
Terkel’s references to the official list were permissable
since this list is placed in the joint custody of the elec-
tion observers, and it is their duty to maintain it. See
NLRB v. A. J. Tower Co., 329 U.S. 324, 326, 67 S.Ct.
324, 325, 91 L. Ed. 322 (1946); NLRB Form 722 ‘‘In-
structions to Election Observers.’’ Martinez also stated
that no eligible voters were present in the polling area
at the time Terkel commented on who had not voted.
Moreover, as we have observed earlier, Minich had
voted prior to the time Terkel instructed her to get
Tyler to vote. Tyler testified he voted without instruc-
tion from anyone. . . . We conclude there is substantial
evidence in the record supporting the Board’s decision
that Terkel’s comments regarding certain employees on
537T. K. HARVIN & SONS
69 And as noted above, he drew a diagram showing its general lo-
cation in the room.
70 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
Continued
the official list did not constitute unlawful electioneer-
ing in violation of the rule in Piggly-Wiggly because,
although Terkel’s behavior was highly inappropriate,
the Company was unable to come forth with any evi-
dence that it influenced the vote of any employee.
Here also the Employer did not come forth with evidence
that demonstrating that Tunnell’s conduct influenced the vote
of any employee. Objection 3 will be overruled.
With respect to the two ballots which were taken from the
ballot box one inside the other, there was no difference be-
tween the number of ballots cast and the number of voters
who participated in the election; and the company observer
testified that no voter entered the voting area twice nor did
Protas give any voter two ballots. Also, Protas testified that
he gave only one ballot to each voter. Protas’ explanation of
how this could have occurred is reasonable. The fact that
Borrelli was not satisfied that misconduct had not occurred
and that there was still a question in Smith’s mind after
Protas compared the number of ballots to the number of peo-
ple who voted, using the checked off eligibility list, does not
constitute evidence of misconduct. Saying or think it is so
does not make it so. It must be shown. The Employer has
the burden of proof. It did not show that there was mis-
conduct or improper balloting procedures. Objection 2 will
be overruled.
Regarding Objection 4 which relates to Protas’ alleged
failure to supervise the ballot box and monitor the voting, as
noted above the Employer’s objection regarding the ballots
which were taken from the ballot box one inside the other
will be overruled. The Employer contends that the placement
of the ballot box on the floor approximately 5 feet from the
entrance to the voting room creates doubt ‘‘as to the sanctity
of the voting atmosphere’’; and that there was ‘‘a congrega-
tion of voters in the doorway’’ and ‘‘commotion was per-
mitted to exist in the voting place.’’
As pointed out by the Board in Rheem Mfg. Co., 309
NLRB 459, 460 (1992):
In order to set aside an election on the basis of
Board agent conduct, the Board must be presented with
facts raising a ‘‘reasonable doubt as to the fairness and
validity of the election.’’ Polymers, Inc., 174 NLRB
282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert. de-
nied 396 U.S. 1010 (1970).
As noted above, the number of ballots cast equaled the
number of voters who participated in the election at Chester.
While Protas could not recall the exact location of the ballot
box in the room at Chester he testified as to its general loca-
tion,69 indicating that he and the observers could see the box
at all times. The Employer’s observer did not object to the
location of the ballot box at Chester. The observers were
present during the entire voting period. The Employer pre-
sented no evidence that any voter tampered with the ballot
box in Chester and the evidence of record does not support
the Employer’s assertion that there was ‘‘a substantial level
of commotion between the voters entering the voting booth.’’
Notwithstanding the fact that Borrelli took certain of Protas’
statements to mean he was referring to the vote taken at
Chester, it is clear, taking into consideration his comparison
of the number of ballots with the check marks on the eligi-
bility list, and his testimony that he only gave one ballot to
each voter, that, in making certain statements after the vote
at Chester, Protas was not referring to the election held at
the Employer’s Chester facility. The Employer’s Objection 4
will be overruled.
In summary, it is my opinion that all of the Employer’s
remaining objections should be overruled.
On the basis of the foregoing findings of fact, and upon
the entire record in this proceeding, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act
by unlawfully terminating Joshua Tunnell.
4. Respondent violated Section 8(a)(1) of the Act (a) by,
on two occasions, soliciting employees complaints and griev-
ances, and promising its employees increased benefits, and
improved terms and conditions of employment if they aban-
doned their support for the Union; (b) by interrogating an
employee concerning the employees’ union sympathies; (c)
by promising an employee a wage increase and an award of
a dispatcher’s job in order to discourage the employee’s from
supporting the Union; (d) by creating an impression among
its employees their union activities were under surveillance
by asking an employee how a union meeting had been; (e)
by interrogating an employee concerning the activities of its
employees on behalf of the Union; and (f) by telling an em-
ployee that another employee had been discharged because
of his union activity.
5. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
I shall recommend that Respondent be ordered to cease and
desist therefrom and that it take certain affirmative actions
designed to effectuate the policies of the Act.
Having found that Respondent discharged Joshua Tunnell
in violation of Section 8(a)(1) and (3) of the Act it is rec-
ommended that Respondent offer him immediate and full re-
instatement to his former job or, if such job no longer exists,
to a substantially equivalent position of employment, without
prejudice to his seniority or other rights and privileges en-
joyed by him and make him whole for any loss of pay he
may have suffered as a result of the discrimination against
him as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest to be computed thereon in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended70
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ommended 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 purposes.
71 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, T. K. Harvin & Sons, Incorporated, Wil-
mington, Delaware, and Chester, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully terminating employees.
(b) Solicting employees’ complaints and grievances, prom-
ising its employees increased benefits and improved terms
and conditons of employment if they abandoned their support
for the Union, interrogating an employee concerning the em-
ployees’ union sympathies, promising an employee a wage
increase and an award of a dispatcher’s job in order to dis-
courage the employee from supporting the Union, creating an
impression among its employees their union activities were
under surveillance by asking an employee how a union meet-
ing had been, interrogating an employee concerning the ac-
tivities of its employees on behalf of the Union, and telling
an employee that another employee had been discharged be-
cause of his union activity.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Joshua
Tunnell who was unlawfully discharged on March 29, 1993,
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of the decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its Wilmington, Delaware, and Chester, Penn-
sylvania facilities copies of the attached notice marked ‘‘Ap-
pendix D.’’71 Copies of the notice, on forms provided by the
Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that each and every objection be
overruled.
IT IS ALSO FURTHER ORDERED that Case 4–RC–18087 be
remanded to the Regional Director to count the ballots of
Joshua Tunnell and Glen Brightwell and to issue a revised
tally of ballots and a certification of representative if Inter-
national Brotherhood of Teamsters, Local 929, a/w Inter-
national Brotherhood of Teamsters, AFL–CIO has received a
majority of the votes cast.
539T. K. HARVIN & SONS
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540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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541T. K. HARVIN & SONS
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