Shayne Bros., Inc.

National Labor Relations Board - Board DecisionsAug 30, 1974

213 N.L.R.B. 113 (N.L.R.B. 1974)

SHAYNE BROS ., INC. 113 Shayne Bros., Inc. and Local Union 639 , a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , Petitioner. Case 5-RC-8509 August 30, 1974 DECISION AND DIRECTION TO OPEN AND COUNT CHALLENGED BALLOTS BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed on April 19 , 1973, an elec- tion by secret ballot was conducted on May 9, 1973, under the direction and supervision of the Regional Director for Region 5, among the employees in the stipulated unit . At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 55 eligible voters 53 ballots were cast , of which 25 votes were cast for the Petitioner , 22 votes were cast against the Petitioner, I ballot was void, and 5 ballots were challenged. The challenged ballots were sufficient in number to affect the results of the election. Thereafter , Employer filed timely objections to the conduct of the election. In accordance with the National Labor Relations Board Rules and Regulations and Statements of Pro- cedure , Series 8, as amended , the Regional Director conducted an investigation on the challenged ballots and objections , and thereafter, on July 10 , 1973, is- sued and duly served on the parties his Report on Challenges and Objections. The Regional Director recommended that each of the challenges be over- ruled and that all five ballots be opened and counted. He further found no merit in the Employer 's objec- tions and recommended that they be overruled. Thereafter , both the Petitioner and Employer filed timely exceptions to the Regional Director 's report with supporting briefs. Employer also filed a brief in answer to the Petitioner 's exceptions. On October 4, 1973, the Board issued a Decision and Order Directing Hearing in the above-captioned matter, adopting the recommendation of the Regional Director with respect to the objections and the chal- lenged ballots of employees Putman and Washington, but directing that a hearing be held on the Petitioner's challenges to the ballots of Lester Neal, Donald Jack- son, and Robert Graham . The hearing was held on December 12 and 13, 1973, and January 3 and 4, 1974, before Hearing Officer Jeffrey C. Falkin. On May 17, 1974, the Hearing Officer issued his report in this proceeding , an excerpt of which is at- tached hereto as an Appendix, and recommended that the challenges be sustained. Thereafter, the Em- ployer filed timely exceptions to the Hearing Officer's report together with a supporting brief, and the Peti- tioner filed a brief in support of the Hearing Officer's report. 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. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby af- firmed. 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 pur- poses 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 certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties agreed, and we find, that the follow- ing employees constitute a unit appropriate for collec- tive bargaining within the meaning of the Act: All drivers and helpers employed by the Employ- er at its location at 1601 W Street, N.E., Wash- ington, D.C., but excluding all other employees, including but not limited to, guards, clericals, and supervisors as defined in the Act. The Board has considered the Hearing Officer's report, the exceptions and briefs, and the entire rec- ord in this proceeding, and hereby adopts the find- ings, conclusions, and recommendations of the Hear- ing Officer, only to the extent consistent herewith.' The Hearing Officer recommended that the chal- lenges to the ballots of Lester Neal, Donald Jackson, and Robert Graham be sustained because they were held out to the employees as agents of, or spokesmen for, management, with terms and conditions of em- ployment different from those of the unit employees, which closely allied them with management. We do not agree. The Board has generally sought to exclude from employee units those employees who, while not su- pervisory, were so closely allied or identified with 1 The Hearing Officer found that the three individuals in question were not supervisors as defined in the Act . In the absence of any exceptions thereto, this finding is adopted pro forma. 213 NLRB No. 18 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management that their interests warranted exclusion from the protection of the Act. Those employees who formulate, determine , and effectuate an employer's policies ,2 and who exhibit sufficient discretion in the performance of their duties to indicate that they are not merely following established employer policy 3 have been held by the Board to be managerial em- ployees. In our opinion, the Hearing Officer has misapplied this standard in the present case by interpreting it too broadly so as to exclude the employees involved herein. Under his interpretation quality control in- spectors or dispatches, for example, whose jobs by definition required the review or direction of the work of fellow employees according to an employer's established rules , would be excluded merely because their job functions placed them in a closer day-to- day working relationship with management. To the contrary, we have found that such employees, in the absence of additional circumstances indicating su- pervisory or managerial status, are to be included in the appropriate unit, even though they may be closer to the management than the balance of the employee complement .4 It is in this situation that we find Graham, Jack- son, and Neal. The record indicates that these men, by virtue of substantial work experience, have at- tained positions of employment which rely heavily on their experience. The Employer's operation in- volves approximately 50 employees who must have a working knowledge of the geographic area of the routes to which they are assigned so that they may efficiently handle trash collections for their custom- ers. Additionally, the operation involves the use of various types of equipment in making such pickups. Since the Employer can not be certain that on any particular day a "routeman" will appear to "run his route," it has endeavored to have on hand employ- ees, as "swingmen ," who are familiar with all the routes within a geographic area and are capable of handling any piece of equipment required to run the route of the absent employee. It is readily apparent that such an employee would be of more value to an employer than the average driver and accordingly the Employer herein has taken steps to pay these spe- cial employees commensurate with their value. It is also evident that these employees, because they do not know what route, or indeed, how many routes they will have to run on any given day, must come 2 American Federation of Labor and Congress of Industrial Organizations, 120 NLRB 969 ( 1958). 3 Eastern Camera and Photo Corp., 140 NLRB 569 (1963). 4 The Grocers Supply Company, Inc., 160 NLRB 485 (1966); Sperry Pied- mont Company, Division of Sperry Rand Corporation, 162 NLRB 857 (1967). into greater contact with the Employer on a daily basis to be informed of their assignments. The record clearly indicates, as the Hearing Offi- cer found, that these men spend approximately 80 percent of their driving time driving routes. The re- mainder of their time is spent doing various errands for the Employer. While the remaining time spent on errands may be greater than that spent by other unit employees, the tasks do not include anything that a regular driver has not or will not be asked to per- form. The fact that they may perform these addition- al assignments more frequently is understandable since they are more readily available, and, in any event, these tasks are not of a nature that would set the men apart as managerial employees. They are merely carrying out assignments given to them by their Employer which do not call for the use of the type of discretion which is key in a finding of mana- gerial employee status. The Hearing Officer did not find, nor does the record disclose, any evidence that these men exercise any discretion independent of es- tablished employee policy. That they may have been used by the Employer as a channel of communica- tions to the other employees is not enough to warrant a finding of managerial status. These "swingmen" may have salaries and other employment benefits different and in some respects higher than the regular employees, but they generally work longer hours and have greater responsibilities than do the routemen. It is clear that their job func- tions and work assignments give them a community of interest with the unit employees. The only differ- ences stem from their status as senior employees, and seniority has never been a basis for exclusion from an appropriate unit. Accordingly, we shall overrule the challenges and direct that the Regional Director open and count the challenged ballots of Lester Neal, Donald Jackson, and Robert Graham, and prepare and serve on the parties a revised tally of ballots and the appropriate certificate. DIRECTION It is hereby directed that the Regional Director for Region 5 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this De- cision and Direction, open and count the ballots of Lester Neal, Donald Jackson, and Robert Graham and, thereafter, prepare and cause to be served on the SHAYNE BROS ., INC. 115 parties a revised tally of ballots, including therein the count of said ballots, upon the basis of which he shall issue the appropriate certification. APPENDIX Employer is engaged in the collection of trash from commercial, industrial and government estab- lishments in the Washington, D.C. Metropolitan Area (Northern Virginia, District of Columbia, and the Maryland counties of Montgomery and Prince Geor- ges). Its operations facilities (W Street) are located in the District of Columbia but it also maintains an ac- counting office (Annapolis Road) in Maryland. At the W Street facility, Employer stores trucks, per- forms maintenance upon trucks and containers used to transport trash, and dispatches unit employees (col- lectively known as routemen) to collect the trash. The area of trash collection is divided into three geograph- ic areas-Virginia, District of Columbia, and Mary- land-which in turn is divided into routes (totaling in all 45-50). Each route consists of a number of trash collection stops. The number of stops and the loca- tions vary from day to day depending upon the needs of the customer, i.e., whether quantity of trash neces- sitates daily, bi-weekly, or weekly collection. Employ- er also makes irregular collections for customers who "call-in" a request for a collection. David Naftaly is the Employer's vice president and general manager. He is in charge of the day-to-day operations of the Employer. Curtis Dever is the opera- tions manager and directly in charge of the routemen. The record establishes that Naftaly and Dever jointly share oversight of the activities of the routemen. Also involved directly in the day-to-day operations of the Employer is Harold Naftaly, the customer service manager, who adjusts customer complaints and insur- ance claims including those claims arising from em- ployee truck accidents. Drivers are assigned to each regular route on a more or less permanent basis. On most routes the driver is alone (30-35) but on some routes the driver is assisted by a helper. Daily routemen report to the W Street facility where the dispatcher hands them their route sheet for that day listing the stops they are to make. Ninety-nine percent of a routeman's time is spent `out-on-the-street' collecting and dumping trash. Employer utilizes various types of equipment to collect the trash: front-end loader, roll-off, rear load- er, side loader, or dumpster. Each driver is normally trained to operate only the one piece of equipment used on his assigned route. Employer classifies Neal, Graham, and Jackson swingmen or leadmen. However, Naftaly testified that these employees are entitled "supervisors" in the Company records and at least one of these employees wore a jacket bearing the title "supervisor". Further, several present and former employees testified that they called these employees supervisors. For purposes of discussion I shall use the title `swingman' which is used by challenged employees to describe their job. Each swingman is assigned a geographical area (Neal to Virginia, Jackson to the District of Colum- bia, and Graham to Maryland). Within this geograph- ical area he is expected to know all the routes and the types of equipment being used. When a driver is ill, on vacation, or there is no driver for a route because of quit or discharge, the swingman will drive the route. It is estimated that approximately 80% t of the swingman's time is spent driving these routes. Unlike regular routemen, swingmen are daily assigned their routes by Dever depending upon the needs of the Employer. The swingman' s remaining time is divided among various duties: They perform errands , i.e., getting "service tickets" signed 2 or parts for the maintenance department. They are sent to investigate a customer's complaint: "if it's questionable in his [Dever] mind or if he cannot elicit a proper response from the driver to get the stop handled, he may ask one of the swing- men to go out and see if the garbage was picked up or if it was not picked up." The swingman is directed not to speak to the customer but to report back to either Naftaly or Dever about the conditions at the customer's premises. Naftaly or Dever will then either direct the swingman to service the customer, contact the driver and have him correct the situation, or direct the swingman to contact the driver about the situa- tion.3 However, "Decision what to do is reserved" for Dever or the customer service manager. In addition, swingmen are occasionally directed to go to the scene of an accident to obtain basic information (names, license numbers, and insurance carriers of parties in- volved) and try to find out what occurred. This infor- mation they report to Dever or the customer service manager .4 Finally, swingmen perform various chores Naftaly estimated 80%; Dever estimated 90%; Jackson estimated 80%; Graham estimated 75%; and Neal estimated between 75-80%. Roscoe Wright, a former employee, testified however that it was not true that Neal, the swingman in Virginia where Wright drove a route , spent most of his time driving a truck . I do not credit such a statement since Wright was in no position to know first-hand the constant activities of Neal. 2 A signed service ticket is required by many customers to establish that the Employer in fact collected the trash on a particular day. Sometimes drivers arrive too early or are otherwise unable to get such tickets signed when they serviced the customers . In such event if the customer refused to give verbal authorization , the swingman is sent to the customer to get the ticket signed. 3 "We could tell Lester or Donald or Robert [ the swingmen ] to call a driver and tell him to pick up a particular stop ." Several present and former employ- ees testified that they were contacted by swingmen with such instructions. Wright testified that swingmen when they went to an accident made recommendations about who was at fault . I do not credit this testimony since Continued 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about the W Street facility and remove broken trash collection containers. Swingmen are salaried, do not punch a time-card, and work a 6-day week. Graham and Jackson earn $210 and Neal $230 a week . Routeman are hourly paid on a coefficient pay scale because of their fluctu- ating hours and punch a time -card . Drivers earn be- tween $125 and $200 a week; helpers between $115-120. In addition to salary swingmen are also covered by a profit-sharing program. Eight other em- ployees are covered by the program: Naftaly; Dever; Dick Williams, assistant general manager ; H. Nafta- ly, customer service manager; Clem Burch and Lee Weinberger who are shop foremen; Floyd Joiner, container repair department foreman; and Ron Hurd "who handles the Compacting Services." Routemen while not participating in this program do receive var- ious types of bonuses; "chicken" (cash payments giv- en to routemen for doing extra work), attendance bonuses (arriving at work before 6 a.m.), and safety bonuses. Swingmen also have $10,000 of life insur- ance paid by the Employer whereas routemen have only $3,000. Employer pays for the swingmen's uniforms and upkeep while routemen must supply and maintain their uniforms. Swingmen wear green pants and white shirt-routemen wear all green uniforms. However, both swingmen and routemen on many occasions wear a variety of clothing. Each swingman is assigned a company car with a two-way radio (all of Employer's trucks are also equipped with a two-way radio). Routemen also use company cars and a couple take company vehicles home. Swingmen Interaction With Routeman Swingmen's contact with routemen is normally confined to that time before routemen leave to make their route collections and upon their return after completion of the collection. During the course of the day swingmen, by two-way radio, may contact or be contacted by the routemen for a number of reasons.' The Employer's witnesses maintain that swingmen act only as a conduit passing the orders, given by their superiors to the routemen, and, in turn, relaying re- he had no first hand knowledge . Further, Naftaly and fever credibly testi- fied that it was the job of the insurance company to determine fault and that they themselves did not make the determination . However, drivers would often admit to being at fault. The swingman , it would be assumed, would report the admission to fever or the customer service manager. Moreover, the record indicates that routemen , including Wright , were also occasionally sent to investigate an accident. 3 At least one swingman (Neal) denies any contact by radio with routemen during the course of the day . This is inherently in conflict with testimony of other swingmen as well as those of present and past employees . I credit the testimony in the record establishing that swingmen are in contact with the routemen during the course of the workday by two-way radio. quests and grievances made by the routemen to their superiors. Further directions and instructions given by swingmen are simple and made as a matter of course. For example, giving instructions to a route- man how to get to a particular stop or inquiring from the routemen when plans to pick up a certain customer's trash. It may be assumed that Petitioner will argue that the witnesses testifying on its behalf portray a different picture of the scope and nature of the authority exercised by swingmen over routemen. Turning now to an examination of the testimony .6 It is undenied that when Roscoe Wright, a former 3-1/2 year employee, was hired, he was told by a former operations manager: Mr. Neal was characterized as being area manag- er in Virginia and I was told that if any problem came up , I was to go see my supervisor, which was Lester Neal, and if I had to be late, I was to call in to talk to Lester Neal. Similarly Louis Preston, a former 3 year employee, testified that he was told when first hired that: "I am going to put you downtown in the District, and he said your supervisor will be Donald Jackson. If you have any complaints, take them to your supervisor." Wright also testified that a couple of times he tried to speak to Naftaly and was told to take his problem to his supervisor and then the supervisor would take the problem to Naftaly. Coleman, a present employee, was directed on one occasion by Dever to "go to the supervisor, Jackson" to take care of a trash container that was damaged. One of the duties of the swingman is removing broken trash containers and bringing them in for repair. Dever denies using the term "su- pervisor" in describing Jackson but did direct Cole- man to see Jackson about the exchange of containers. Role in hiring routemen. Both Dever and Naftaly testified that they have the only authority to hire new employees. However, occasionally swingmen and routemen would be sent out to hire casual helpers. Little, a former 20 year employee, testified that while he was a driver he picked up casuals to work as help- ers. Normally when employees are hired permanently they fill out an application and take a physical exami- nation. However, Wright testified that when he want- ed his brother-in-law, Primus Feaster, hired he spoke to his swingman (Neal). Wright "recommended" Feaster and assured Neal that Feaster could do the job. The swingman then said: "Well, bring him on in." The next morning Feaster went to work as a helper without filling out an application or having an inter- ' Petitioner called on its behalf two witnesses in direct presentation and four witnesses in rebuttal . Employer called on its behalf five witnesses in direct presentation and recalled four witnesses in surrebuttal. SHAYNE BROS., INC. view with either Dever or Naftaly. Later Wright asked Neal if he could train Feaster as a driver. Neal told him that when Feaster could "handle the work" Neal would then "put him on a route." Dever agrees that Wright brought in Feaster, but states that he person- ally interviewed Feaster and hired him as a helper although Feaster requested employment as a driver. Wright's testimony fails to establish that Neal had anything to do with Feaster' s hire . Further, it is unrea- sonable to assume that the Employer departed from its usual procedure of requiring employees to file ap- plications and take a physical examination . I do not credit Wright's assertion that Neal had the authority to place Feaster on a route. Clearly Naftaly has the sole authority to make such an assignment. Another former employee testified that he had worked sporadically for the Employer. The last time he wished reemployment, he contacted Neal by tele- phone. Neal told him "to come on back and he would help me as much as he could." When he went to the Employer's premises, he spoke with Neal who at that time said "stick around, I will see what I can do." He was then hired as a helper. Role in the discharge or discipline of routemen. Nafta- ly and Dever testified that only Naftaly has the au- thority to discharge or discipline an employee. Wright related that on several occasions he was discharged by Naftaly. In each instance, Neal told Wright that he would see what he could do to get Wright's job back. The last discharge resulted when Wright refused to drive a truck with bad tires. Neal agreed that the truck was dangerous to drive but told Wright that the "man say if you don't drive the truck, you're fired."' Wright refused to drive and was dismissed . He asked Neal, partially out of friendship, to help him get his job back. A day or so after the discharge, Neal contacted him and asked that he come and see Naftaly. At the meeting , Naftaly told Wright that he was going to give him his last chance and if he made a mistake he would be discharged. Naftaly's version of the Wright dis- charges is different. Neal never came to him about the discharges-only Wright. In regard to the last dis- charge, Naftaly needed Wright because he was short- handed so he directed that Neal contact Wright and ask him to come back to work. Neal also denies that he interceded on behalf of Wright when he was dis- missed. Rather, Neal states that he told Wright that he would have to see Dever or Naftaly about getting his job back. While I do not believe that Neal made no effort on behalf of Wright, I find that the evidence fails to establish that Neal was instrumental in the r Wright complained about the tires to Neal the night before the discharge. The next morning he met Neal who told him "they've still got them on there," meaning the tires, and then Neal said, "What are you going to do, are you going to be a man or a mouse? So are you going to drive it or not." 117 rehiring of Wright. Wright also participated in the discharge of another individual, his brother-in-law, Feaster. According to Wright, on the day after Feaster was involved in an accident, he was called to a meeting with Neal and Dever. At the meeting, Neal explained to Dever about the accident stating that Feaster was at fault and rec- ommended, in light of Feaster's past record of acci- dents and general attitude, that Feaster be dismissed. Dever asked Wright what he thought and Wright agreed with Neal. Dever then stated that Feaster would be dismissed. Again the versions of Employer's witnesses varies. Naftaly states that on the day of the accident he was on vacation but in a telephone con- versation with Dever was informed of the accident. Naftaly directed that Dever dismiss Feaster. Dever argued that they had no one to replace Feaster. Nafta- ly still directed that Dever make the discharge. Dever corroborates Naftaly's testimony. Dever further stat- ed that he had Feaster report to him the morning following the accident and informed him that he had been discharged. Thereafter Wright requested that he have a meeting with Dever regarding Feaster's dis- missal . Present were Wright, Neal, Feaster, and Dev- er. Wright requested Neal's presence. Dever discussed with Wright for approximately 20 minutes the reasons for Feaster's dismissal. Both Neal and Dever testified that Neal said nothing during this meeting. I credit the Employer's version. The three Employer witnesses corroborate each other's testimony. Further, it is rea- sonable to assume that Dever would have to consult with Naftaly before dismissing Feaster in accordance with Employer's past practice. Role in the granting of raises and bonuses. Wright, as well as other Petitioner witnesses, testified that when they wanted a raise they went to their swingman. Wright testified that he asked Neal about a raise on several occasions. Neal would ask how much he want- ed and then he would say "Well, I'll tell you what we will do. We will put you in for fifteen or something like that and you may get five or ten, you know, but you are going to get something." He was never refused a raise . However, Coleman testified that when he asked Neal and Jackson for a raise, they told him that they would see what could be done. He never received a raise. Employer in January of 1973 distributed to the swingman printed "Evaluation Sheets" which they were to fill out on the routemen working in their geo- graphical areas. Naftaly testified that he did not use the evaluation sheets. He found that: I had 35 or 40 of the best employees that the company could want. Everyone of them had ex- 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cellent evaluations with the exception of one or two where the particular swingman might not have got along with the driver for whatever rea- son and I ripped them up and threw them in the trash can. However, Wright testified that he was told by Dever that the evaluations would be helpful in finding out how well employees performed. Another former em- ployee, Roger Saunders, testified that Dever told him that his evaluation was excellent and therefore he was getting a $3 raise. But Wright also states that some of the routemen with high evaluations received low rais- es and others with poor evaluations also received rais- es. Dever denies that he told Wright and Saunders the Employer's reliance upon the evaluations. I credit Naftaly that he did not rely upon the evalu- ations in determining wage increases. He was forth- right and appeared candid in his testimony on this subject. Further his testimony is reinforced by Wright's statement that many routemen did not re- ceive raises in accordance with the swingman's evalu- ation. Routemen from time to time were offered "chick- en," a bonus given them for performing extra work. On occasion, swingmen would ask the routemen to perform extra work for "chicken." Wright testified that he on at least one occasion negotiated with Neal about the amount of "chicken." The Employer's wit- nesses as a group deny that the swingmen have au- thority to grant bonuses and were only relaying the requests of Dever or Naftaly to offer "chicken" to certain routemen. Role in granting loans and advances. Employer has granted various employees advances and loans. All loans must be approved by Naftaly. Witnesses disput- ed the role played by the swingmen. Coleman testified that on one occasion after being denied a loan re- quested by Dever he spoke with Neal about getting a loan to get married. Neal said he "couldn't guarantee me nothing, but he would try". That evening he spoke to Naftaly about the loan and Naftaly stated that since he was getting married he would let him have the loan provided that Dever approved it. On another occasion, he asked Neal about a $50 loan in the morn- ing. That afternoon after he had finished his route, he saw Neal go into Dever's office and heard his name mentioned. Then he was called into Dever's office and "Mr. Dever had a blank, and I signed my name to the blank, I got the $50 and walked out." Naftaly and Neal state Neal played no part in getting Coleman the first loan. Naftaly testifies that he spoke to Coleman at the cigarette machine and agreed to bend the rules and grant the loan. Coleman testified that Neal is a friend and has also lent money to him "out of pocket." Similarly, other present and former employees testi- fied that when they wished advances or loans they asked the swingmen. Invariably, the swingmen replied "he would see what he could do for me" or "he would do what he could do." None of the witnesses knew if the swingman did anything for them. However, in almost every instance a loan was given by the Em- ployer only after an interview with General Manager Naftaly. Dever, Naftaly, and the swingmen deny that swingmen recommended or granted loans and ad- vances. Each swingman testified that if a man asked about a loan they either told them to see Naftaly or brought them to Dever or Naftaly. However, when a routeman would leave before Naftaly arrived, the swingman would speak to Naftaly about the routeman's request. Role in granting time off. Present and former em- ployees testified that they called the swingman for the area where their route is located when they would not be at work due to illness. Each witness testified that the swingman never challenged their right to take time off or questioned them about their illness but merely told them that they should get well and come in when they can. Naftaly testified that nothing was done at the time a man reported ill but that later he would investigate to find out the nature of the illness. In- deed, at least one of Petitioner's witnesses opined that there was nothing the Employer could do if he wanted to take some time off. Training of routemen. Both swingmen and route drivers train new drivers and older drivers changing routes. Swingmen do most of the training, however, Naftaly estimates that 50 percent of the other drivers have trained new employees. Swingmen, who normal- ly make collections on routes after a driver leaves employment, will train the new route driver by show- ing him where the trash stops are located, how to operate the equipment used to collect the trash, and any peculiarities of the particular route. It is estimated that it takes between 3 and 6 weeks to train a driver on a particular route. The swingman or driver training the new employee will inform Dever or Naftaly that the new man is capable of driving the route by him- self. The new driver then is sent on his own and the Employer waits to see whether there are customer complaints. If none, then it is assumed that the route- man is properly servicing the customers. Transfers. Naftaly designs the trash collection routes. Assignments of drivers to the routes are made by Naftaly and Dever. Employer's witnesses assert that swingmen have no say on which employees are assigned to particular routes. However, Wright testi- fied that he asked Neal to have Feaster transferred because of personality clashes between them. A few days after, Feaster was transferred. Again, Louis Pre- SHAYNE BROS ., INC. 119 ston, a former employee, testified that he was told by Neal that he felt Preston was a good and dependable worker and would like to have him transferred to Virginia. Later he was transferred to Virginia. Conclusions and Recommendations Petitioner challenges the ballots of Neal, Graham, and Jackson on the ground that they are supervisors. The determination of supervisory status of an em- ployee depends upon whether that employee possess- es the authority to act in the interest of his employer to hire, transfer , suspend, lay off, recall, pro- mote, discharge, assign , reward, or discipline other employees or responsibly to direct the, or to adjust grievances, or effectively to recom- mend such action, if in connection with the fore- going the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment [Section 2(11) of the Act] Possession of anyone of the authorities listed above places the employee within the supervisory class. Ohio Power Co. v. N.L.R.B., 176 F.2d 385 (C.A. 6), cert . denied 338 U.S. 899 ; Edward G. Budd Manufac- turing Co., 169 F.2d 571, cert. denied 355 U.S. 908. While the definition of what constitutes supervisory authority is simply the determination of when an em- ployee possesses such supervisory authority is con- siderably more difficult . Such a determination can only be made after a careful examination of the facts in the particular case. There is no credited evidence that swingmen had the authority to hire , discharge , grant wage increases or effectively recommend such action . While present and former employees testified that they went to the swingman with various problems and requests (loans, wage increases , transfers , time-off), almost without exception the swingman only told them that he would see what could be done. None of these em- ployees knew what the swingman did in response to the request . Every witness called by the Employer (Naftaly, Dever , and the swingmen) testified that the swingman neither had authority to grant any of the routemen 's requests or make effective recommenda- tions . When an employee made a request to a swing- man the swingman would only relay the request to his superiors or bring the routemen to his superiors so that a final determination could be made. I con- clude that the Employer's witnesses testimony is sub- stantially what occurs. Petitioner 's witnesses stated that in almost every instance where a request was made through a swingman it was only granted after a discussion with either Dever or Naftaly . Further the noncommittal swingmen response to routemen re- quests clearly can not be construed as a recommen- dation. Rather, it leads to a conclusion that the swingmen did not have the authority to either take action upon the request or make recommendations. Indeed, on numerous occasions employees, even with the swingman' s assurance that he would see what could be done, were denied requests, e.g., Coleman's requests for increases. Several witnesses testified about incidents when they were given directions to perform certain tasks by the swingmen. Again, Employer witnesses testi- fied that the swingmen were merely acting upon the directions of their superiors. Nothing in the record refutes the Employer witnesses testimony. However, there is evidence that swingmen have given drivers directions as to how to get to a particular stop or asked a routeman when he expects to make a collec- tion when a customer makes an inquiry. Such actions on the part of the swingmen are routine and do not call for the exercise of independent judgment. In sum, I conclude that the swingmen have acted for the Employer as a conduit transmitting the re- quests and problems of the routemen to their superi- ors and in turn transmitting the directives of the swingmen's superiors to the routemen. I base my conclusions not only upon the foregoing but also upon my observation of the manner in which Employer's top management personnel (Albert Shayne, president and David Naftaly, general man- ager) testified about the duties and position of the swingmen. Security Guard Service, Inc., 154 NLRB 8, 10. Accordingly, based upon the above and the entire record I conclude that the Swingmen, Lester Neal, Donald Jackson, and Robert Graham do not possess any of the requisite authority to cause them to be classed as supervisors within the meaning of Section 2(11) of the Act.8 8 I am aware that there are indicia often used by the Board in determining the supervisory status present in the instant case . However, in light of the extensive testimony (some 750 pages of it) about the swingmen 's duties and authority exercised over unit employees I do not consider these indicia are controlling in this matter . Moreover, while swingmen are salaried and receive a higher wage and other benefits (cars and uniforms) not given to routemen, they are clearly more knowledgeable and skilled than any of the routemen. The Employer considers them to be the keystone of its trash collection operations . They are familiar with all Employer' s equipment and a substan- tial number of the 50-odd trash collection routes. They normally work more hours than routemen . Further, the fact that Employer gave the individuals the title "supervisor" and held these employees out as managerial representa- tives fails to establish that these employees were actually given supervisory authority by the Employer. Finally, while the ratio of supervisor to routeman will be high if the swingmen are found not to be supervisors , I do not find it significant. Employer maintains that close supervision is unnecessary since the Employer will promptly find out through the complaints of its customers whether the trash is properly being picked up. This explanation is plausible. The routemen 's work only requires knowledge of the equipment and the locations of the trash collection stops. Employer's only concern is that the customers are serviced . How long it takes the routemen to accomplish the collection is of little concern since they are paid on a coefficient pay scale rather than at a straight hourly. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the duties and responsibilities of swingmen do not place them within the statutory definition for supervisor I conclude and recommend that they should be excluded from the bargaining unit because their duties and responsibilities ally them more close- ly with management than with unit employees. The Employer gave swingmen the title of "supervisors"; permitted them to wear jackets which designated them as "supervisor"; required that they wear a uni- form distinct from routemen; and, based upon testi- mony standing almost undenied, told new employees that the swingmen were supervisors to whom the new employees were to bring their problems. I credit the testimony of former and past employees that they looked upon the swingman as their supervisor, the individual whom they were to bring their problems. Further the Employer fostered the notion among unit employees (routemen) that the swingmen were managerial representatives by channeling a substan- tial amount of the communications going back and forth between the Employer and the routemen through the swingmen. The activities which the swingmen performed also establish their nexus with management. When swing- men were called upon to investigate customer com- plaints and accidents, or when they were sent to pro- cure "service tickets" they were not acting in a normal employee capacity but as the "eyes and ears" of the Employer's management. Further, as previous- ly stated, the Employer relied upon them as the key- stone of his operations. They worked many more hours than regular routemen; working 6 days a week, driving not only one route but sometimes upwards of three routes in a day. They worked into the evening on many occasions and were called upon to "trouble- shoot" when there was any difficulty in the Employer's operations. In recompense the Employer not only gave swingmen a salary somewhat above that of the routeman but also included them in the Employer's profit-sharing program which was almost exclusively reserved for supervisory and managerial employees. By so doing the Employer tied these em- ployees income to the general success of the Compa- ny. Their participation in the profit-sharing program further strengthens their alliance with management and draws a distinct wedge between their interests and those of the unit employees. Finally swingmen were given special privileges, i.e., the exclusive use of a company car. In sum , while Employer may not have actually vested the swingmen with authority to act on matters affecting the employer-employee relationship, it held the swingmen out to employees as an agent or man- agement spokesman . There is no evidence whatever that Employer had put employees on notice that swingmen acted only as a conduit, without authority to speak for it. Further the type of duties, responsibil- ities and compensation place them in a position closely allied with management and with considera- bly different interests than the rank-and-file unit em- ployees. Ramar Dress Corp., 175 NLRB 320, 329. I therefore recommend that the challenges to the ballots of Lester Neal, Donald Jackson, and Robert Graham be sustained.