Fred Rogers Co.

National Labor Relations Board - Board DecisionsNov 24, 1976

226 N.L.R.B. 1160 (N.L.R.B. 1976)

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fred Rogers Company and Line Drivers , Helpers, Pickup and Delivery Local No. 741, International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America , Independent, Peti- tioner . Case 19-RC-7790 November 24, 1976 DECISION AND ORDER DIRECTING REGIONAL DIRECTOR TO OPEN AND COUNT BALLOTS BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 19 of the National Labor Relations Board on December 3, 1975, an election by secret ballot was conducted in the above-entitled proceeding on December 15, 1975, under the direction and supervision of the said Re- gional Director. Upon conclusion of the election, a tally of ballots was furnished the parties which showed that five bal- lots were cast, of which two were for the Union, one was against the Union, and two were challenged. The challenged ballots are sufficient in number to affect the results of the election. No objections to conduct affecting the results of the election were filed by either party. In accordance with the National Labor Relations Board Rules and Regulations Series 8, as amended, the Regional Director conducted an investigation of the issues raised by the challenged ballots and, on January 5, 1976, issued and duly served on the par- ties his Report on Challenges and Direction of Hear- ing, in which he concluded that the challenges to the ballots of John Henry Endresen and Jack M. Hen- ninger raised substantial and material questions of fact and credibility which could best be resolved by a hearing. Pursuant to said notice of hearing on challenged ballots, a hearing was held on January 12, 13, 14, and 19, 1976, before Hearing Officer Gerald D. Dulz. On February 5, 1976, the Hearing Officer issued and duly served on the parties his report and recommen- dations in which he recommended that the challenge to the ballot of John Endresen be overruled and that the challenge to the ballot of Jack Henninger be sus- tained. Thereafter, the Petitioner filed timely excep- tions and a supporting brief to the Hearing Officer's finding that Henninger was a supervisor. The Em- ployer filed a reply to Petitioner's exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The parties stipulated and we find that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Truck drivers and warehousemen employed by Fred Rogers Company, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 5. The Board has considered the Hearing Officer's report, the exceptions, and reply thereto, and finds merit in said exceptions. In our view, neither the fac- tors on which the Hearing Officer relied nor the rec- ord as a whole warrants a finding that Henninger possessed or exercised any meaningful authority suf- ficient to constitute him a supervisor within the meaning of the Act. The Hearing Officer concluded that Henninger, the assistant warehouse manager, was a supervisor substantially on the following grounds: (1) the Em- ployer had a policy of promoting the assistant ware- house manager to fill a vacancy in the position of warehouse manager; (2) his responsibilities as assis- tant warehouse manager differed from those of the driver-warehousemen and he attended management meetings; (3) he sometimes "filled in" for Warehouse Manager Rick Endresen and performed supervisory duties at such times; (4) he effectively recommended the hiring of one employee and hired and terminated a casual employee; and (5) he received a higher hour- ly rate of pay than other warehousemen. None of the factors relied on by the Hearing Offi- cer justifies a finding of supervisory status. (1) Henninger became assistant warehouse man- ager upon the promotion of Rick Endresen to ware- house manager as a result of the departure of the 226 NLRB No. 175 FRED ROGERS COMPANY previous manager. This put Henninger in line to be- come warehouse manager on Endresen's departure. The Hearing Officer's reliance on this promotion policy as evidence of Henninger's supervisory status is clearly misplaced. The prospect of being promoted to warehouse manager does not satisfy any of the statutory indicia of supervisory authority. (2) Henninger's responsibilities as assistant ware- house manager relied on by the Hearing Officer as supervisory in nature included becoming knowl- edgeable about paperwork, delivering paperwork, unloading containers in the warehouse, putting up "slop chest" orders, and making sales calls on vessels on overtime "duty weekends." In addition, Hennin- ger continued to make truck deliveries along with other driver/warehousemen. These duties are nonsu- pervisory in nature and provide no evidence of su- pervisory status even though they may have been performed previously by the present warehouse man- ager. And the fact that Henninger attended manage- ment meetings (about six) when he was not driving a truck, is no substitute for the exercise of supervisory functions. (3) On a number of occasions in 1975 Henninger "filled in" for the warehouse manager. This occurred when Rick Endresen was away from the warehouse, during his vacations and emergency leave, and when he was performing other duties. But mere substitu- tion for a supervisor without the exercise of supervi- sory authority does not confer supervisory status.' Henninger's duties while substituting were nonsuper- visory in character. On three or four occasions in 1975 he initialed employees' weekly timecards, some- times assigned drivers to make deliveries, and other- wise directed employees in their work. It appears that generally Henninger allowed drivers to decide among themselves what deliveries to make. Thus, the instances of directing work appear to be rather ca- sual. Moreover, any direction of work was routine in nature and did not involve the exercise of indepen- dent judgment. In any event, even assuming that Henninger exercised supervisory authority when he "filled in" for the warehouse manager, this substitu- tion was too sporadic to warrant a finding that Hen- ninger was a supervisor as defined in the Act. (4) The Hearing Officer also found that Hennin- ger hired a casual employee and effectively recom- mended the hiring of David Bergstrom. The hiring incident, however, involved only the hiring of a ca- sual employee for 3 days during a period when Hen- ninger was filling in for Endresen. Moreover this hir- ing becomes even less significant as an indicium of 1 The Boston Store, 221 NLRB 1126 (1976), Oka-inn, d/b/a Holiday Inn of Henryetta, 198 NLRB 410, 420 (1972), Cubit Systems Corporation, 194 NLRB 622, 624 (1971) 1161 supervisory authority in the light of the fact that Bergstrom, a nonsupervisory driver/warehouseman, also hired a casual employee for a short period of time on one occasion. Henninger's alleged recom- mending of Bergstrom for hire amounted to no more than his telling Bergstrom a job might be open when Endresen asked him if he knew of anyone looking for a job. Bergstrom reported to Endresen who decided to put him to work. Thus, the evidence does not es- tablish that Henninger exercised the independent judgment and authority associated with supervision in the isolated hiring of one casual employee or the recommending of a friend for a job. (5) The Hearing Officer also takes note of Henninger's hourly wage rate. Henninger's hourly rate of pay of $4.50 is higher than that of the other driver/warehousemen who receive from $3.20 to $3.50 per hour. The warehouse manager received $6.75 per hour. Fringe benefits with respect to vaca- tions, sick leave, holiday pay, and pension plan are the same for all employees. Henninger received the same $35 Christmas bonus as other driver/ware- housemen, while the warehouse manager received a $150 bonus. In these circumstances, Henninger's hourly wage, though higher than other employees, does not support a finding that he is a supervisor. Although Henninger bore the title of assistant warehouse manager, his title is not determinative of supervisory status. It is clear, based on all the fore- going, that his direction of work was routine in na- ture, his reponsibilities were nonsupervisory, and his designation as assistant warehouse manager essen- tially did not carry with it any delegation of genuine supervisory authority. In short, none of the factors relied on by the Hearing Officer establishes the exis- tence of supervisory status. Finally, it is clear that if Henninger is a supervisor, there would be as many as four supervisors for three employees, an abnormally high supervisor-employee ratio. And, this is particu- larly true when it is considered that two of the em- ployes are driver/warehouseman who spend at least 50 per cent of their time on the road without direct supervision. We therefore conclude that Henninger is not a supervisor and that the challenge to his ballot should be overruled. In the absence of exceptions, we adopt the Hearing Officer's finding and recommen- dation and overrule the challenge to John Endresen's ballot. Accordingly, as we have overruled the challenges to both Endresen's and Henninger's ballots and as the said ballots are sufficient in number to affect the results of the election, we shall order the Regional Director to open and to count these ballots, to pre- pare a revised tally of ballots, and to issue the appro- priate certification. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER der, open and count the ballots of John Endresen and Jack Henninger and thereafter prepare and It is hereby ordered that the Regional Director for cause to be served on the parties a revised tally of Region 19 shall, pursuant to the Board's Rules and ballots , on the basis of which he shall issue the ap- Regulations , within 10 days from the date of this Or- propriate certification.