Stationers Corp.

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD else of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. By discriminating in regard to the hire and tenure of employment of Charles Fayne, thereby discouraging membership in United Gas, Coke and Chemical Workers of America, CIO , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act. 7. The aforesaid labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume. ] STATIONERS CORPORATION and WAREHOUSE, PROCESSING & DISTRSBU- TION WORKERS UNION LOCAL 26, INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, PETITIONER. Case No. 21-RC-1375. May 21,1952 Supplemental Decision and Direction On December 19, 1951, the Board issued a Decision, Direction, and Order herein 1 in which it (1) overruled the challenges to 10 of the 11 challenged ballots; and (2) found that the Employer's exceptions had raised material issues of fact as to the supervisory status of William Kennoy, who cast the other ballot. The Board directed that if, after the 10 challenged ballots were opened and counted, it should appear that the ballot of William Kennoy could affect the results of the election, a hearing should be held to determine whether or not he was a supervisor at the time of the election. Upon the opening and counting of the 10 challenged ballots, it appeared that the ballot of William Kennoy might affect the results of the election. Accordingly, on February 5, 15, and 19, 1952, pursu- ant to the Board's Order, a hearing was held before Ben Grodsky, hearing officer. The Employer and the Petitioner appeared and par- ticipated. On March 12, 1952, the hearing officer issued and served upon the parties a hearing officer's report, a copy of which is attached hereto, in which he found that William Kennoy did not in fact possess or assert supervisory authority, and recommended that the challenge to his ballot be overruled. The Petitioner filed exceptions to the hearing officer's report, and the Employer filed a brief in support of the report. The Board 2 has reviewed the rulings of the hearing officer and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the hearing officer's report, the exceptions, 197 NLRB 601. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to the same three-member panel participating in the original decision [Members Houston, Murdock, and Styles]. 99 NLRB No. 47. STATIONERS CORPORATION 241 briefs, and the entire record in the cases and hereby makes the fol- lowing findings : In substance, the Petitioner contends that the hearing officer im- properly appraised the testimony as to the status of William Kennoy vis-a-vis the truck drivers and Wanda Talamentez and Eugene Curley, two employees who work in the shipping department with Kennoy. The hearing officer correctly found the following as to the functions and duties of these individuals : William Kennoy, classified as dis- patcher of orders or shipping clerk, works in a small office near the receiving dock, and his principal duties are the distribution of "charges" into baskets corresponding to certain truck routes, receiv- ing telephone inquiries from customers and investigating the action taken a particular order, waiting on customers who appear at the warehouse during the absence of the employee who normally handles such will-call orders, laying out furniture orders, and sorting and filing copies of "charges." 4 Wanda Talamentez also works in the same office and, with the exception of laying out furniture orders, performs substantially the same work as Kennoy 5 Eugene Curley, who handles freight shipments, was not an employee at the time of the election, but he replaced an employee who was assigned similar duties. The truck drivers 6 normally pick up the "charges" on their routes after they have been sorted by Kennoy'or Talamentez, locate the orders that have been filled by other employees, load, and deliver the mer- chandise. They are permanently assigned to their routes by Wright, the warehouse superintendent, and they regard him as their immediate supervisor. If, a driver is absent, Kennoy reports that fact to Wright or Anderson, the warehouse foreman, and one of them determines whether the route should be delivered, and who is to make such deliv- 8 On April 7, 1952, New Furniture and Appliance Drivers, Warehousemen and Helpers Union, Local 196, A. F. L., filed a motion to set aside the election , to deny certification, to permit intervention , and to conduct a new election . It indicates that, although at the time of the election it had no interest in the proceeding, it has since been designated by a majority of the employees within the unit found appropriate by the Board , and has filed a petition for these employees in Case No. 21-RC-2493. Under these circumstances, and in view of the lapse of time since the election, it urges the Board to order a new election herein and permit it to appear on the ballot. Although mindful of the fact that a considerable period of time has elapsed since the election, the Board is of the opinion that the parties hereto are nonetheless entitled to a complete adjudication of the issues raised by the challenged ballots. Cf . American Thread Company, 96 NLRB 956. Furthermore, the Board has heretofore held that a union seeking to intervene in a consent-election proceeding must show that it had a repre- sentative interest in the employees affected by the petition as of the date of the consent- election agreement . Lufkin Foundry & Machine Company, 83 NLRB 768. Accordingly, we deny the motion in to to. 4 It appears that Kennoy's duties have not changed substantially since the time of the election. 5 Talamentez does more filing than Kennoy. E There are 11 truck drivers assigned to regular runs which they usually make every day ; in addition , 1 driver travels between the employer's store and the warehouse with orders of merchandise ; 1 driver is regularly assigned to picking up buy-out orders ; 2 truck drivers are regularly assigned to the delivery of furniture orders ; and 2 drivers are regularly assigned to the delivery or surplus orders on other regular routes. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cries. Wright or Anderson also determines who is to assist the truck drivers on heavy loads, and what work the truck drivers are to per- form if their deliveries are completed early. Usually all such direc- tions are conveyed to the drivers through Kennoy.7 We are persuaded, as was the hearing officer, that these facts do, not support a finding that Kennoy exercises supervisory authority within the meaning of Section 2 (11) of the Act. In reaching this conclusion, we are mindful of the testimony of McCormick and Pru- litsky suggestive of such authority. However, both these witnesses were order clerks whose duties required only their occasional presence on the loading dock. In our opinion they were therefore not too well informed on the crucial issue of whether Kennoy was acting on his own or pursuant to instructions from Wright or Anderson .8 On the other hand, Thomas Wiemann, one of the Employer's truck drivers, who the Petitioner contends was supervised by Kennoy, testified that Kennoy did not direct him in his work, and that he was supervised by either Wright or Anderson. We therefore find corroboration as to the nonsupervisory status of Kennoy in the testimony of Wiemann and do not rely on the testimony of McCormick and Prulitsky. We are also mindful of the fact that such a holding would leave 2 supervisors for approximately 100 employees. However, like the hearing officer, we are persuaded that the nature of the work at the warehouse indicates the propriety of such a'ratio between supervisors and rank-and-file employees. Accordingly, as it does not appear that Kennoy uses independent judgment in directing the work of any employee, or makes effective recommendations with respect to pay, promotions, assignments, or personnel action, and for the further reasons pointed out by the hear- ing officer, we find that William Kennoy was not a supervisor within the meaning of the Act at the time of the election. We shall therefore order that his ballot be opened and counted. Direction IT IS HEREBY DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with the Em- ployer, the Regional Director for the Twenty-first Region shall, pur- suant to National Labor Relations Board Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballot of William Kennoy, and thereafter prepare and cause. to be served upon the parties a supplemental tally of ballots, including therein the count of the ballot described above. P The Petitioner's witnesses did not, In our opinion, effectively rebut the evidence that Kennoy acts as a mere conduit of orders from Wright and Anderson. 8In this regard, we note that in relation to one conversation between Kennoy and a truck driver, Prulitsky admitted that he had heard only part of the conversation while waiting to speak to Kennoy. STATIONERS CORPORATION 243 Hearing Officer's Report, Findings of Fact, and Recommendations On December 19, 1951, the Board issued a Decision, Direction, and Order in the above-entitled proceeding. A revised tally of ballots having been issued on December 28, 1951, from which it appeared that the ballot of William Kennoy may be determinative of the results of the election, and the Board having ruled in its above-mentioned Decision that if the ballot is determinative of the results of the election, a hearing should be held to determine whether or not William Kennoy was a supervisor at the time of the election, the undersigned was desig- nated as hearing officer by the Regional Director for the purpose of conducting the hearing and preparing and causing'to be served upon the parties a report containing resolutions of credibility of witnesses, findings of fact, and recom- mendations to the Board as to the disposition of the issue. The hearing was held on February 5, 15, and 19, 1952, before the undersigned hearing officer, at which time the Employer and the Petitioner appeared and participated and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Briefs were received from the parties and have been considered. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT The sole issue here is whether William Kennoy was a supervisor within the meaning of Section 2 (11) of the Act during the payroll period ending June 30, 1950. Kennoy has been employed by the Employer for a period of approximately 14 years, and is classified as dispatcher of orders or freight or as a shipping clerk. His office is located in a small office immediately adjacent to the loading dock. Another employee, Wanda Talamentez, also works in the same office. Kennoy's principal duties are the distribution of the invoices, known to the Employer as charges, into various baskets representing the truck routes, receiving telephone inquiries from customers regarding delivery and condition of merchandise, de- livery of will-call orders when the employee normally handling them is unavail- able, and the laying out of school furniture orders. Talamentez also shares in these duties, with the exception of the laying out of school furniture orders and, in addition, does most of the filing of the invoices or charges. Eugene Curley, the remaining shipping department clerical employee, was assigned to the han- dling of freight shipments. The Petitioner contended that Kennoy was in charge of the shipping depart- ment which included, in addition to Kennoy, Talamentez, and Curley, 14 truck drivers and their occasional helpers or swampers. The Petitioner's main conten- tion was that gennoy could responsibly direct the truck drivers and their helpers, the swampers, in assignment. In the absence of unusual circumstances, the truck drivers would pick up the charges which were placed by Kennoy or Tala- mentez in the basket for their route, would sort out the orders and place them in the truck for delivery in any fashion which the driver would deem appropriate. Certain orders were marked "Rush," generally by the salesmen, and the drivers knew that these orders were to be given priority for delivery. Occasionally, a rush order would%be filled in the morning while the driver would be loading his truck. In this case, Kennoy would give the charge to the driver, possibly with a verbal instruction, calling the driver's attention to the fact that it is a rush order. If a driver completed his deliveries and returned to the warehouse before quitting time, Kennoy would assign him- work from tasks previously indicated to him by Wright or Anderson. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The drivers were permanently assigned to their routes by Warehouse Super- intendent Wright and they looked upon him as their immediate supervisor. If the drivers wished a change In assignment, they would generally discuss,it with Wright or Foreman Anderson. On occasion, drivers have discussed assignment changes with Kennoy but he has referred them to Wright. Drivers have also on occasion asked Kennoy about a wage increase; he has also referred that to Wright. If a driver were absent, Kennoy would report that fact to Wright or Anderson if it came to his attention and, at their direction, would instruct another driver to take that run. In each Instance, the decision relative to the change in pay or assignment was made by Anderson or Wright, and Kennoy merely carried out their instructions. There were occasions at infrequent intervals when drivers required helpers or swampers. On such occasions, Kennoy would direct an employee to assist a truck driver, after having been told by Wright or Anderson whom he could use. On one occasion, Kennoy directed an employee to warn another employee to improve his work habits under threat of discharge. Several employees and former employees testified that they had overheard Kennoy directing drivers and swampers. In view of Kennoy's explanation set out above, r find that he was merely carrying out specific instructions of Wright and Anderson in these Instances. The Petitioner also contends that because there are about 100 employees in the warehouse, there must be more than 2 supervisors. This contention is with- out merit because there is no showing that the nature of the work is such that it requires close supervision. In addition, assuming that more supervisors are justified, this would not tend to establish Kennoy's status as a supervisor. From Kennoy's actions, above described, it can be seen that he had been In- vested with some of the indicia of supervisory authority. If the Issue were whether the Employer is responsible for Kennoy's acts or statements beeause^of his ostensible authority, a different result might be reached ; but the issue here is whether Kennoy in fact is a supervisor. Under all the circumstances, it is clear, and I find, that Kennoy did not in fact possess or assert supervisory au- thority! I find that Kennoy was not, during the payroll period ending June 30, 1950, a supervisor within the meaning of the Act and that he was entitled to vote in the election of July 14, 1950. I therefore recommend that his ballot be opened and counted. I Cf. Kraft Food8 Company, 97 NLRB 1097 (Wrona). KAISER MANUFACTURING CORPORATION, RICHMOND MACHINING DIvI- SION and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 302, AFL, PETITIONER KAISER MANUFACTURING CORPORATION, RICHMOND MACHINING DIVI- SION and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 115) PETITIONER. Cases Nos. 20-1?-1735 and 20-RC-1753. May t1, 1952 3 Decision and Direction of Elections Upon separate petitions duly filed, a consolidated hearing was held in the above cases before Robert V. Magor, hearing officer. The hear- 99 NLRB No. 45.