F. M. Reeves & Sons, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1955

114 N.L.R.B. 1243 (N.L.R.B. 1955)

F. M. REEVES & SONS, INC. 1243
F. M. Reeves & Sons, Inc. and Chauffeurs, Teamsters & Helpers
Local Union 492, AFL, Petitioner. Case No. 33-RC--500. No-
vember 30,1955
SUPPLEMENTAL DECISION AND DIRECTION
• Pursuant to a Decision and Direction of Election issued by the
Board herein on April 19, 1955,1 an election by secret ballot was con-
ducted on May 17, 1955, under the direction and supervision of the
'Regional Director for the Sixteenth Region, among the employees of
the Employer in the unit found appropriate in the Decision. At the
conclusion of the election, the parties were furnished with a tally of
ballots which showed that of approximately 26 eligible voters, 24 cast
=ballots, of which 12 were for, and 10 against, the Petitioner, and 2
'were challenged.2
'As the challenged ballots were sufficient in number to affect the
results of the election, the Regional Director, pursuant to the Board's
-Rules and Regulations, investigated them and, thereafter, issued and
duly served upon the parties a report on challenged ballots, in which
he recommended that the Board direct a hearing on the challenged
ballots of A. L. Stubblefield and Burnie B. Shull. No exceptions
were filed to the Regional Director's report.
On June 17, 1955, the Board issued an order directing a hearing on
the challenged ballots. A hearing was held before Evert P. Rhea,
hearing officer, on July 13,14, and 15,1955, in which the Employer and
the-Petitioner appeared and participated. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded the parties. On September
16, 1955, the hearing officer issued and duly served upon the parties
his report, recommending that the challenges to the ballots of Stubble-
field'and Shull be sustained and that the Board certify that a majority
of the valid ballots had been cast for the Petitioner. Thereafter, the
'Employer filed exceptions to the hearing officer's report and a support-
ing brief.
The Employer's request for oral argument is denied, as the record,
including the exceptions and brief, adequately presents the issues' and
positions of the parties.
i Not reported in printed volumes of Board Decisions and Orders.
2 The Petitioner challenged the ballots on the ground that the two individuals involved
were ' supervisors . The Employer contends that the Petitioner was foreclosed from
challenging the ballots on that ground because it had failed to exclude the two individuals
from the unit stipulated at the initial representation hearing. Reference to that hearing
shows that the parties stipulated to exclude "supervisors ." • The present position of the
Petitioner is not inconsistent with its stipulation as to the unit . Moreover, a stipulation
to include supervisors is in direct conflict with ; Section 2 (11) of the Act and, therefore,
is not binding. .
114 NLRB No. 193.
1244 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
The Board has reviewed the hearing officer's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the hearing offi-
cer's report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings and conclusions of the hearing
officer only insofar as they are consistent with the findings and con-
clusions below. -
The Employer excepts to the hearing officer's findings that Stubble-
field and Shull are supervisors within the meaning of Section 2
(11) of the Act, which findings constitute the grounds for the hearing
officer's recommendation that the challenges to both ballots be sus-
tained.
Stubblefield: The hearing officer found that Stubblefield was in
charge of the crusher plant, instructed new employees in their duties,
assigned employees overtime work and reported their overtime, di-
rected employees in their overtime work when no acknowledged super-
visor was present, and granted an employee time off to take care of
personal business.3 He also found that Stubblefield considered him-
self a supervisor and had told employees that if he saw them "sitting
down on the job" he had authority "to send them to the office to -get
their time."
Stubblefield has worked about 8 years for the Employer and is the
operator of the crusher which crushes gravel to desired sizes and then
sorts gravel and sand. He has no regularly assigned assistant in the
operation of this machine. Some of the Employer's truckdrivers are
assigned for extended periods to the hauling of unsorted rock and
sand from a pit to the crusher, and others drive trucks carrying the
separated sand and gravel from the crusher to stock piles. On occa-
sion, some of the Employer's transit-mix truckdrivers are assigned
to drive the vehicles operated in conjunction with the crusher oper-
ation. When the transit-mix drivers are so assigned, they are directed
by Trent, the Employer's general manager, to "go to work with
Stubblefield." At regular intervals, there arise tasks incidental to
the operation of the crusher which Stubblefield cannot handle alone.
For example, sand and gravel pile up underneath the crusher and
have to be shoveled away, or screens which sort the different sizes of
gravel have to be changed. Those drivers working in conjunction
with the crusher operation shovel the overflow sand and gravel and
help change the screens. They do such tasks without direction, on the
basis of established practice, although on occasion Stubblefield may
actually request their assistance.
8 The record shows more specifically that Stubblefield told the employee to go to the
office and find out whether he could be excused.
'F. M. REEVES & SONS,,INC. 1245
When the crusher is not operating, which is fairly often, Stubble-
field makes repairs on the crusher, helps make repairs elsewhere in
the plant, drives a truck, and performs general utility work. Stubble-
field receives $1.65 an hour, a rate equal to or actually less than that of
5 other employees working for the Employer .4
We do not agree with the hearing officer's conclusion that Stubble-
field is a supervisor. Stubblefield's pay is on a par with that received
by rank-and-file personnel. His operation of the crusher machine
places him in frequent contact with the Employer's truckdrivers. He
apparently has knowledge and experience pertaining to the crusher
greater than that of the other employees. Occasionally, Stubblefield
calls upon the drivers to assist him at the crusher. With his greater
knowledge and experience Stubblefield is most familiar with the jobs
which must be done around the crusher, and he therefore directs the
drivers to those tasks. However, the directions he gives are merely
routine in nature; they are not the type given by an individual with
supervisory powers. Indeed, when the crusher is not operating,
Stubblefield works for, and along with, the employees who are his help-
ers at the crusher. Some of Stubblefield's actions may have a super-
ficial resemblance to those of a supervisor, but, upon consideration of
the entire record, we are convinced that he is no more than an older,
experienced, rank-and-file employee. Accordingly, we find that Stub-
blefield is not a supervisor and overrule the challenge to his ballot.
Shull: The hearing officer found that Shull possesses authority re-
sponsibly to direct and assign work to employees and had effectively
recommended the discharge of one employee, Rabb, and the employ-
ment of another, Berg. He therefore concluded that Shull is a
supervisor.
Shull works in the Employer's shop where mechanical repairs
are made. A combination welder and mechanic (Berg) also spends
the greater portion of his worktime in the shop, and the truckdrivers
often work there making minor repairs on their vehicles and doing
general utility work. In support of his conclusion that Shull is a
supervisor, the hearing officer reported three incidents. One involved
the fabrication of a truck headboard, and, as indicated above, the
other two events were the discharge of one employee and the hire of
another.
The headboard incident involved Shull and employee Berg. Berg
was working on a new headboard for a truck, and Shull noted that
Berg was not following the design which had been used for the head-
board previously installed on another truck. Berg thereupon changed
* The record does not fully identify the five. However, one of them is Berg, a combina-
tion mechanic-welder who had been hired at a $1 . 65 per hour rate and who , at the time
of the hearing less than a year from the time of his hire, was receiving $1.75 an hour.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the design to conform to the one previously used. We cannot agree
with the hearing officer's conclusion that such an event establishes su-
pervisory authority. We consider it merely as typical of a situation
in which a.more experienced employee advises a less experienced one
in the performance of a particular task.
In his report of Rabb's discharge, the hearing officer found that
Trent gave directions to Shull that the oil house be cleaned, and Shull
passed on the order to Rabb. The hearing officer concluded, "This di-
rection was coupled with authority to the extent that when Rabb re-
fused to follow the direction of Shull, that upon complaint from Shull
back to'Trent, Rabb was discharged." In so concluding the hearing
officer necessarily inferred that Shull's report of Rabb's refusal to fol-
low Trent's orders was coupled with a recommendation that Rabb be
discharged. There is no evidence that Shull had any effective voice in
the action taken against Rabb. Moreover, the circumstances do not
necessarily justify the inference drawn by the hearing officer. The
record shows that Trent discharged Rabb when advised that Rabb re-
-fused to clean the oil house. Trent's authority as general manager of
the Employer's plant had thus been challenged by Rabb, and the rea-
sonable thing for him to do was to discharge Rabb. A recommenda-
tion by Shull would seem to have been unnecessary. Shull's role in the
entire incident consisted of nothing more than the routine duty of
passing along Trent's direction to Rabb and then of reporting to Trent
-Rabb's refusal to follow the direction.
With respect to the hiring of Berg, the hearing officer found that
Berg went to the Employer's office to see Trent upon learning that a
job was open. Trent was not in the office and Berg told Griswold, an
office employee, that he was interested in a job as a mechanic. Berg
then wandered over to the-shop and talked to Shull, relating his work
'experience and advising Shull that he wanted to work for the Em-
ployer. Shull told Berg that he could not hire but would tell Trent
of Berg's visit and that, in Berg's testimony, "if they need me they
could call me." Several days after the talk with Shull, Berg received
•a-phone call from some unidentified person and was told to report for
-work. Berg reported on a Friday, and, as Trent was not in, went di-
-iectly to the shop where Shull told him "there was a job or two he
could go to work on." Berg saw Trent the following Monday, and
;Trent told him -his salary and what would be expected of him. • Here
again ' the hearing officer's conclusion that Shull effectively recom-
mended- Berg's employment. is based upon inference. However, the
record shows. merely that, as Trent was not available when Berg was
seeking a job, Berg voluntarily went to the shop and spoke to Shull
about his work qualifications. ^ There is no showing.that Berg's talk
with` Shull was even in the nature of an informal job interview. In-
F. M. REEVES & SONS, INC. 1247
deed, Shull specifically told Berg that he had no authority to hire new
employees. We also note that Berg left with office employee Griswold
the details concerning himself necessary for the phone call from the
Employer. In these circumstances, we are not satisfied that, as in-
ferred by the hearing officer, Shull effectively recommended the hire
of Berg.
Not only do the above-detailed matters relied upon by the hearing
officer fail to establish that Shull is a supervisor within the meaning of
the Act, but the record otherwise affirmatively shows that Shull was not
a supervisor. For example, although the Employer's truckdrivers
often work in the shop, the record does not show that Shull exercised
supervisory direction over them. At one time a welder, West, worked
for the Employer and he spent most of his worktime in the shop, yet,
Shull did not direct West in his work. Berg, who at the time of the
hearing was the only employee other than Shull regularly assigned to'
the shop, did not consider Shull as having authority to give him orders
or directions. These factors and the substantial record evidence show,
that Shull was a rank-and-file employee entitled to vote in the election,
and we therefore overrule the challenge to his ballot.
As we have overruled the challenges to the ballots of Stubblefield
and Shull, we shall direct that their ballots be opened and counted .5
[The Board directed that the Regional Director for the Sixteenth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballots of A. L. Stubblefield and Burnie B. Shull
and serve upon the parties a revised tally of ballots.]
CHAIRMAN LEEDOM, concurring in part and dissenting in part:
I agree with my colleagues that Stubblefield is not a supervisor and
would overrule the challenge to his ballot. In my opinion, however,
the substantial evidence supports the hearing officer's findings that
Shull is in complete charge of the shop and the employees working
therein whom he responsibly directs, and that he effectively recom-
mended the discharge of Rabb and the hire of Berg. I would there-
fore find that Shull is a supervisor and adopt the hearing officer's rec-
ommendation that the challenge to his ballot be sustained.
Further, as the counting of Stubblefield's ballot alone would not
alter the results of the election, which the Petitioner won, I would
certify the Petitioner.
MEMBER MURDOCK took no part in the consideration of the above
Supplemental Decision and Direction.
6 In its exceptions to the hearing officer 's report, the Employer raised an objection to
the, conduct of the election . The election took place on May 17 , 1955, and the Employer's
exceptions are dated October 18 , 1955. As the objection to the conduct of the election
was not timely filed under Section 102 .61 of the Board 's Rules and Regulations , vte do-
not consider it.