Petroleum Distributing Co., Inc.

National Labor Relations Board - Board DecisionsJan 24, 1974

208 N.L.R.B. 695 (N.L.R.B. 1974)

PETROLEUM DISTRIBUTING CO. Petroleum Distributing Company , Inc. and International Brotherhood of Teamsters, Chauffeurs, 'arehousemen and Helpers of America-Teamsters Local 959-State of Alaska, Petitioner. Case 19-RC-6590 January 24, 1974 DECISION ON REVIEW BY MEM-BERs FANNING. KENNEDY, AND PENELLO On May 2. 1973, the Regional Director for Region 19 issued a Decision and Direction of Election in the above-entitled proceeding. On May 7, 1973, the Employer filed a request for review of his Decision on the ground that, in concluding that Norman Dunham was not a supervisor as defined in the Act, he made findings of fact which were clearly errone- ous and departed from precedent. On May 25, 1973, the Board, by telegraphic order, denied the request for review, stating that the issues raised as to Dunham's status could best be resolved through the challenge procedure, and it amended the Decision to permit Dunham to vote subject to challenge. On June 1, 1971 the election was conducted, and the tally of ballots showed that six valid ballots were cast for and none against the Petitioner, and one ballot was challenged, Dunham's. Thereafter, the Employer filed timely objections involving certain conduct of Dunham. On August 15, 1973. the Regional Director issued a Supplemental Decision and Certification of Representative in which he reaffirmed his earlier finding as to Dunham's status, concluded that his conduct did not impair employee free choice in the election, and overruled the Employer's objections. Thereafter, the Employer filed a timely request for review of the Regional Director's Supplemental Decision on the ground that substantial issues exist as to Dunham's status as either a supervisor or an agent of the Petitioner when he engaged in the conduct alleged to be objectiona- ble. The Board, by telegraphic order dated Septem- ber 10, 1973, granted the request for review and stayed the certification pending decision on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding with respect to the issues under review and makes the following findings: In support of its contentions that Dunham is a supervisor, the Employer refers specifically to record testimony that Dunham had hired and fired an employee by the name of Wright, and generally to 695 the Board's action in amending the Regional Direc- tor's Decision and Direction of Election because it believed that the issues raised as to Dunham's supervisory status could best be resolved through the challenge procedure. The Employer also attached to its request for review an affidavit of former employee Darrell Rogers to support its contention that Dun- ham in making allegedly coercive statements to Rogers was acting as an agent of the Petitioner. We find no merit in the Employer's contentions. The Regional Director's findings concerning Dun- ham's supervisory status are excerpted from his Decision and Direction of Election and attached hereto. His findings, in our view, are fully supported by the record. While the record indicates that Dunham was involved in the hire and discharge of Wright, it is clear that his actions in this regard took place during the period from December 1972 to February 5, 1973, when Dunham was temporarily assigned as manager of the Fairbanks operations. These actions could not, therefore, form a basis for finding him to be a supervisor during the critical period before the election inasmuch as Weiler had been put in charge of the facilities and he, Dunham, had reverted to his earlier duties and responsibilities at the tank farm. Nor is the testimony of Dunham that he had, in the fall of 1972 when O'Rear was the Fairbanks manager. recommended the hire of em- ployees Lucas and Whitsett sufficient to establish that he had authority effectively to recommend hiring and discharging of employees. In the first place, the record is devoid of evidence that O'Rear relied on Dunham's assessments of their capabilities. Also, as indicated, the record supports the Regional Director's finding that Dunham has played no role in any of the various hiring, firing, retention, or discipline matters which have arisen since Weiler's appointment as Fairbanks manager. We are unable to conclude on this record, therefore, and the Employer advances no probative evidence to estab- lish, that Dunham at the critical times herein possessed or exercised any of the indicia of authority set forth in the statutory definition of a supervisor. In addition, we find that the statements made in Rogers' affidavit are insufficient to support the Employer's contention that Dunham, while engaged in the conduct alleged as objectionable, was acting as an agent of the Petitioner. We do not regard as adequate to establish such agency Rogers' statements therein that Dunham was acting as "liaison between the union and the men," that he was one of three employees who went to the union hall to pick up cards, and that he telephoned union officers fre- quently to ask how the election proceeding was going or to report on what others were saying. Upon the foregoing, we conclude that during the 208 NLRB No. 112 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD critical period before the election Dunham was neither a supervisor nor an agent of the Petitioner and, therefore, the conduct alleged to have been engaged in by him, even if it occurred, did not impair employee free choice in the election. Accordingly, the Regional Director's Supplemental Decision and Certification of Representative is hereby affirmed.' i In view of our affirmance of his finding that Dunham is not a supervisor , he is included in the appropriate unit The stay of certification of representative previously issued is hereby vacated and the certification is effective as of the date set forth below ATTACHMENT The sole issue remaining for consideration con- cerns the supervisory status of Norman Dunham. The Employer contends that Dunham is a statutory supervisor, while the Petitioner takes a contrary position. The tank farm consists of a series of tanks where petroleum products are received and unloaded from tank trucks or freight cars, stored, and subsequently pumped into the Employer's or customers' tank trucks. The Employer's vehicles are operated by its own drivers, who transport the petroleum products to the Fairbanks airport for aircraft refueling and are absent from the premises the majority of their workday. Dunham works almost exclusively at the tank farm. Weiler operates out of the office location, but sometimes makes as many as 3 daily trips to the tank farm. The drivers work on a rotating shift basis, I driver per 8-hour shift, while Dunham works Monday through Friday, 8 a.m. to 4 p.m. Dunham is basically in charge of the physical operation of the tank farm, i.e., he opens the tank farm for business in the morning (all drivers also have keys), loads and unloads petroleum products, signs receipts for goods received, and makes out records of products disbursed. Dunham works with customers' or Employer's drivers in transferring the products from the tanks to the trucks. It is Dunham's responsibility to enforce the Employer's safety regulations at the tank farm, as to both customers and employees. It is also his responsibility to make spot checks to see that drivers are carrying out a prescribed maintenance program on their vehicles. Dunham devised the form and procedure for truck maintenance , but only at the direction of and after consultation with Weiler. With regard to both safety and maintenance, there is no evidence that Dunham has any authority to discipline an employee found to be in noncompliance, or otherwise do more than relay the information to Weiler. There was testimony that Dunham assisted in the training of a new employee, but there is no indication that this was other than a more-experienced employee demon- strating work procedures to a novice. In particular, it does not appear that Dunham makes any reports on a new employee's progress or any effective recom- mendation concerning his continued employment, merit increases, etc. It also appears that another person, agreed by both parties to be an employee, also assists in the training process. It is clear that Dunham has no authority to assign work to the drivers or direct them in their work, other than in routinely "enforcing" the rigid safety rules, training the new employee, or relaying fuel orders. Weiler testified that Dunham recommends wage increases to him. The record, however, does not show any specific instance in which Dunham made any such recommendation nor that it carried any weight. However, I note that Weiler himself can only effectively recommend wage increases to his superior and further note that the most recent wage increases did not emanate from Fairbanks, but from the Employer's Anchorage office. Weiler testified that Dunham can grant employees time off, but there is no evidence that Dunham has ever in fact granted time off to any employee or been informed that he has any such authority. Finally, I note that while Dunham had supervisory authority between approximately December 1972 and February 1973, this was only a temporary appointment while a replacement manager was sought for the Fairbanks operation. When Weiler was appointed to this position, the Fairbanks employees were informed that Weiler was "in full charge" of the Fairbanks operation. It is clear that Dunham has played absolutely no role in any of the various hiring, firing, retention, or discipline matters that have arisen since Weiler's appointment. Weiler is salaried; Dunham and the drivers are hourly paid, punch a time clock, and are paid an overtime premium. Dunham's wage rate is not higher than the drivers', and he receives no premium for his claimed supervisory duties. The fringe benefits of all personnel appear identical. Based on the foregoing and the entire record, I find and conclude that Dunham is not a supervisor as defined in the Act. Accordingly, he is included in the bargaining unit and eligible to vote.