Orange Transportation Co.

National Labor Relations Board - Board Decisions

Nov 28, 1955

114 N.L.R.B. 1206 (N.L.R.B. 1955)

1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Orange Transportation Company and Teamsters, Chauffeurs,
Warehousemen and Helpers Local No. 222, A. F. L., Petitioner.
Case No. 200-RC-00725. November 08,1955
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election dated March 21,
1955,1 an election was conducted on March 31 , 1955, under the direc-
tion and supervision of the Regional Director for the Twentieth Re-
gion. At the conclusion of the election, the parties were furnished
with a tally of ballots which shows that there were approximately 21
eligible voters, and that '21 votes were cast, of which 10 were for the
Petitioner, 9 were against it, and 2 were challenged.
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 , conducted an investigation , and on May 5,
1955, issued his report on challenged ballots , in which he recommended
that the challenges be sustained and the Petitioner be certified . There-
after the Employer filed timely exceptions to the Regional Director's
report. The Board found that the Employer 's exceptions raised sub-
stantial and material issues of fact, and on June 9, 1955 , issued its
order directing hearing, in which it ordered the hearing officer to pre-
pare a report on such hearing containing resolutions of witnesses'
credibility, findings of fact, and recommendations . Pursuant to
notice, a hearing was held in Salt Lake City , Utah, on June 28, 1955,
before James W. Cherry, hearing officer. The Employer and the Pe-
titioner appeared and participated. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded the parties.
On August 2, 1955 , the hearing officer issued and served on the
parties his report on challenged ballots , in which he recommended that
the challenges be overruled and the challenged ballots be opened and
counted. The Petitioner excepted to the report.
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 hearing officer found that Collier Allen and Robert Davis,
whose ballots were challenged on the ground that they were super-
visors, were not in fact supervisors . The Petitioner has excepted
to most of the hearing officer 's findings of fact and to his conclusion.
On the basis of the entire record the Board makes the following
findings :
Collier Allen : Allen is employed in the traffic department. In ad-
-dition to Allen, this department includes D. H. Culbertson, a rate
s Orange Transportation fJoncpa , 20-RC-2725 , not reported in printed volumes of
Board Deeisions and Orders.
114 NLRB No. 184.
ORANGE TRANSPORTATION COMPANY 1207
clerk, and Alice McBride, a secretary. All three are under E. B.
Taylor, the traffic manager, who is concededly a supervisor.
Allen's title is "assistant traffic manager," but it appears that this
title was assigned to him as a public relations matter in connection
with his principal duty, the settling of customers' claims of over-
charge. Most of these claims are routine in nature, and Allen has,
considerable discretion in dealing with them. Those claims which are
not routine or involve substantial amounts are handled by the traffic
manager. In the course of his work, Allen dictates letters to McBride,
the secretary in the traffic department. The record indicates, how-
ever, that he does not supervise her. She receives her orders from
Taylor and Rigby, the office manager. She was hired jointly by these
two officials. The remaining employee in the traffic department is
Culbertson, the rate clerk. He too receives his orders from Taylor
and Rigby.
Allen's further duties include helping Taylor conduct a class for
trainee rate clerks, about whose progress and readiness to assume
regular duties he is sometimes consulted. He also engages in some
correspondence with rate clerks at the Employer's various terminals
and in this connection informs them of proper rates and classifications.
Allen alternates with Taylor in working on Saturday mornings; this
involves no supervisory duties, but only the requirement that someone
be present who can answer any question about rates that may arise.
Allen at one time recommended that his secretary be replaced, but
she left before the Employer acted. Allen, like admitted supervisors
and unlike employees, does not punch a timecard, and is paid a monthly
salary, rather than on an hourly basis.
From the foregoing it appears that Allen has considerable discre-
tion with regard to the work entrusted to him. Such discretion, how-
ever, does not include the active direction, or responsibility for the
work, of other employees. In view of these facts, including the small
number of employees in the traffic department and the presence of a
traffic manager with supervisory authority for this group, we find, in
agreement with the hearing officer, that Allen is not a supervisor within
the meaning of the Act, and we shall direct, that his ballot be opened
and counted.2
Robert K. Davis: Davis, who has since left the Employer's employ,
was employed in two branches of the Employer's offices. His time was
divided approximately equally between claims work and accounting.
8 The Petitioner has excepted to the hearing officer ' s finding that an affidavit given
by Allen before the hearing in this case is not "probative evidence ." In fact, however,
the hearing officer did consider the several statements made by Allen in the above affidavit
These statements amounted to assumptions by Allen that he had authority to direct other
employees and affect their employment status. The facts developed at the hearing, how-
ever , including the testimony of Allen and that of other witnesses , establish that such
assumptions were unwarranted . The hearing officer concluded that Allen was honestly
mistaken as to the scope and nature of his authority . Under these circumstances, no
prejudice to the Petitioner resulted from the hearing officer's ruling, which is affirmed to
the extent it means that the mere assumption of supervisory authority by an employee is
not in and of itself evidence of such authority.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In connection with his claims work Davis had the title of claims
agent. He was concerned principally with customer claims of "over,
short, and damage." In this work he, like Allen, had discretion in his
dealings with the Employer's customers but any nonroutine questions
or claims involving substantial amounts were settled by Taylor, who
is in charge of this work. The only other employee engaged in claims
work is a secretary, who performs such work on a part-time basis.
She is also secretary to another employer and does office work under the
supervision of the office manager. The record establishes that Davis
had no supervisory powers over this secretary.
As noted above, Davis also did accounting work under the super-
vision of the office manager. This consisted principally of reconciling
bank statements and auditing freight bills. In this connection he did
not assign work to others or direct them.
Although Davis had the title of "assistant office manager;" the
record establishes that he at no time exercised any of the powers of
Rigby, the office manager. Rather, it appears that his title was indica-
tive of his seniority status and availability for advice to less expe-
rienced clerks.
Davis, like Allen, was paid a monthly salary, did not punch a time
clock, and rotated with Rigby, Blaine, and York, admitted super-
visors, in working Saturdays. However, we find that, like Allen, he
was not a supervisor within the meaning of the Act, and we shall order
that his ballot be opened and counted.'
[The Board directed that the Regional Director for the Twentieth
Region shall within 10 days from the date of this Direction open and
count the ballots of Collier Allen and Robert Davis and serve upon
the parties a supplemental tally of ballots.]
MEMBER MURDOCK took no part in the consideration of the above
Supplemental Decision and Direction.
0 The principal evidence to support the Petitioner 's contention that Davis was it super-
visor derives from an affidavit he gave a Board agent in which he said he understood he
would be in charge of the office when the office manager was away. However, on the
basis of the testimony in the entire record, the hearing officer concluded that Davis'
affidavit was an honest error . We see no reason to upset that finding.
Ekstrom , Carlson & Co. and ,Lodge No : 1553, International As-
sociation of Machinists , AFL. Case No. 13-CA-1877. Novem-
ber 09, 1955
DECISION AND ORDER
On July 29, 1955, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices and recom-
114 NLRB No. 191.