Spector Freight System, Inc.

1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In short, it would seem that the Board's action in now specifically overruling the Ballantine case, supra, and other similar decisions in- volving branch operations in the brewing industry,26 is based solely on the Union's extent of organization. This approach is not sanc- tioned by the statute?' Accordingly, as I would find that a unit consisting of the branch salesmen at the Employer's 12 branches constitutes the narrowest ap- propriate unit, I would dismiss the petitions herein. 2" See cases cited in footnote 24, supra. Section 9( c) specifically prohibits the Board from giving "controlling" weight to the extent of organization in determining whether a unit is appropriate. My colleagues refer to the rule that employees who might otherwise constitute an appro- priate plant unit may be so integrated into a more comprehensive grouping as to destroy the appropriateness of the plant unit. They then equate the branch units here to single- plant units, and find the requisite degree of integration lacking. I do not agree that the Employer's branches are equivalent to single plants But even if they were, my colleagues' failure to find the rule controlling in the instant case, in spite of the extent to which the Employer's branch operations have been integrated , causes me to question whether the rule has any real meaning. illy colleagues also assert that the Board's prior determination involving the Employer impeded the employees' exercise of their rights under the Act. But the Ballantiae case, soopra, like the others which are now being overruled, was decided not for the purpose of impeding the organization of employees, but rather to establish a realistic bargaining unit which can be administered without unduly disrupting , or doing violence to, Ballantine's operations Moreover, I note that my colleagues , to show "the adverse impact on organi- zational development" of the Ballantine case, supra, point to the fact that no labor organization has petitioned for a companywide unit of Ballantine 's branch salesmen since 1958. Do my colleagues also deprecate the Board 's traditional production and mainte- nance unit rule as unduly impeding the organization of the myriad number of unorganized plants in this country as to which petitions have never been filed? Spector Freight System, Inc. and Thomas Joseph Ferro. Case No. 13-CA-4632. April 5, 1963 DECISION AND ORDER On August 27,1962, Trial Examiner Eugene F. Frey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the Charging Party filed exceptions to the Intermediate Report and a brief in sup- port thereof, and moved for a new hearing. The General Counsel and the Respondent filed no exceptions. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings, except as noted herein, are hereby affirmed. The Board has considered the Intermediate Report, the Charging Party's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner. The Charging Party's motion for a new hearing is denied. 141 NLRB No. 86. SPECTOR FREIGHT SYSTEM, INC. 1111 In his exceptions and brief the Charging Party contends that the Trial Examiner, in violation of the Board's Rules and Regulations and due process of law, denied or unduly restricted the right of its counsel to fully participate in the examination and cross-examination of wit- nesses, and thereby made it impossible for its counsel to develop a record in addition to that made by the General Counsel. Accordingly, the Charging Party requests that the case by remanded for a new hearing. Section 102.8 of the Board's Rules and Regulations, Series 8, as amended, provides that "any person filing a charge" is a "party" within the meaning thereof, and Section 102.38 of the same Rules confers upon "any party" to the proceeding : ... the right to appear at such hearing in person, by counsel, or by other representative, to call, examine, and cross-examine wit- nesses, and to introduce into the record documentary or other evidence, except that the participation of any party shall be limited to the extent permitted by the Trial Examiner. .. . [Emphasis supplied.] Although under Section 102.38 the Charging Party is entitled to participate in the examination and cross-examination of witnesses, the section does not confer upon the Charging Party the right to en- gage in unrestricted examination, even though the matters have been exhaustively covered by the General Counsel in his examination. Rather, we believe, the extent of the Charging Party's participation in the examination and cross-examination of witnesses and the presenta- tion of evidence, under the Board's Rules and Regulations, is com- mitted to the sound discretion of the Trial Examiner, reviewable only for abuse of discretion.' Section 102.38 specifically states that "the participation of any party [in the hearing] shall be limited to the extent permitted by the Trial Examiner." Section 102.35 of the Board's Rules, which confers upon Trial Examiners a. broad power "to regu- late the course of the hearing," further reaffirms this conclusion. Indeed, these provisions are but counterparts of the provisions found in the Administrative Procedure Act 2 designed to expedite administra- tive proceedings without impairing the right of the parties to partici- pate in such proceedings. Section 7(b) of the Administrative Proce- dure Act specifies, among the powers of the hearing officer, the authority "to regulate the course of the hearing." Section 7(c) of the Admin- istrative Procedure Act requires that "every agency shall as a matter of policy provide for the exclusion of irrelevant, immaterial, or un- duly repetitious evidence." I To the extent that International Brotherhood of Boilermakers, etc. (Richfield Oil Cor- poration ), 95 NLRB 1191, and John L. Clemmey Company, Inc., 118 NLRB 599 , are in- consistent with this rule, they are hereby overruled Attorney General's Manual on the Administrative Procedure Act, 1947. 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have carefully examined the rulings made by the Trial Examiner at the hearing and find that the rulings set forth below were un- reasonable limitations on the Charging Party's right to participate in the examination of witnesses : (a) The rulings denying the Charging Party's request for examina- tion on direct or redirect solely on the ground that the witness had been already examined on the subject by the General Counsel. (b) Rulings denying the request for examination of the witness on matters not covered by the General Counsel, except through the Gen- eral Counsel. (c) Rulings denying the request for an examination on matters not covered by the General Counsel, where the General Counsel had refused the Charging Party's request, or did not choose , to conduct the examination on such matters. (d) Rulings denying the request for examination on redirect on matters developed during the cross-examination of the witness, where the General Counsel had refused to examine the witness on such matters. The Charging Party is entitled to participate in the examination of witnesses subject, as indicated above, to the Trial Examiner's dis- cretion to exclude matters which are irrelevant, immaterial, or unduly repetitious. The mere fact that the witness had been already examined by the General Counsel on the subject does not necessarily preclude the Charging Party's examination . Nor does Section 102.38 require examination by the Charging Party through the General Counsel. As any other party it is entitled to examine witnesses through its own counsel. For the same reason , the denial of a request to examine on matters not covered by the General Counsel on direct or on matters developed during the cross-examination only because the General Counsel has refused to examine the witness on such matters, without more, constitutes an erroneous limitation on the Charging Party's participation in the examination of witnesses. Whether the rulings are prejudicial: The Charging Party contends that it was denied due process of law because its participation in the examination and cross -examination of witnesses was unduly restricted, and that as a result thereof it became impossible for it to develop a record in addition to that developed by the General Counsel. Accord- ingly, the Charging Party argues, the only real remedy would be for the Board to remand the case for a new hearing . While we agree that the Trial Examiner committed error, we do not believe that a reversal is appropriate in the circumstances of this case. Under Rule 61 of the Federal Rules of Civil Procedure, "no error or defect in any ruling or order of the court is ground for a new trial . . . . unless refusal to take such action appears to the court inconsistent with substantial SPECTOR FREIGHT SYSTEM, INC. 1113 justice." 3 The Charging Party, therefore, must show that the Trial Examiner's rulings denying its request for examination of witnesses or rejecting its offers of proof were not only erroneous but also prej- udicial to its substantive rights.' In this proceeding, the counsel for the Charging Party made offers of proof on only two occasions, after he had been denied permission to examine a particular witness. We do not know, therefore, what evidence the Charging Party intended to elicit from these witnesses. In the first instance, he offered to prove through the business repre- sentative for Local 710, Janapoulos, that during the bargaining nego- tiations for the February 1, 1961, contract with Local 710, the Respond- ent's representatives never "questioned the supervisory status of [city] dispatchers." On the second occasion, he offered to prove through the organizer for Local 710, Senese, that the Respondent hired an agent to check on violations by city drivers while making deliveries and pickups, and that reports on such violations are sent to Operations Manager Pecora directly, bypassing city dispatchers, and that city dispatchers do not participate in disciplinary action against drivers based on these reports. As for the first offer of proof, the Respondent's failure to raise the issue as to the supervisory status of city dispatchers very likely stems from Respondent's reasonable belief that that issue had been settled once and for all in 1959 when the Respondent refused to bring the city dispatchers under the contract then in force. Under the circumstances, it was up to the Union rather than the Respond- ent, to raise this issue. As for the second offer of proof, the Trial Examiner, on substantial evidence, found that city dispatchers had authority to discipline city drivers in various ways; by reprimanding and warning city drivers for their delays in executing their assign- ments, by assigning to them "difficult" loads, which involve no over- time, by bringing a driver in early which "hurt him in his pocketbook," and even by discharging a driver outright if he refused to take out a load without a valid cause. Although Operations Manager Pecora had apparently broader disciplinary powers over city drivers than city dispatchers did, this evidence does not detract from the Trial Exami- ner's finding that city dispatchers had certain disciplinary authority and were supervisors. We conclude that our disposition of the case ,'Rule 61 of the FRCP in full reads as follows: No error in either admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying , or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect substantial rights of the parties 4 Crown Corrugated Container, Inc., 123 NLRB 318, where the Board held that the error in refusing to allow evidence to impeach a witness or to receive an offer of proof was not so prejudicial as to warrant either a remand of the proceeding , or a hearing de novo. 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be unchanged, even accepting as true these matters which the Charging Party sought to adduce. The record further shows that the Trial Examiner denied the Charging Party's request for redirect examination of City Dispatcher Kunka with respect to the following matters touched upon in his cross-examination: (a) The circumstances under which the Respond- ent's counsel obtained from Kunka on April 5, 1962, his unsworn pre- hearing statement concerning the charges and whether all of Kunka's answers to the questions were included in that statement; (b) if Kunka knew of the average seniority or years of service of city drivers he normally dispatches; (c) if there are mandatory calls to be made by drivers during the day; and (d) the number of calls he, personally, and the dispatchers' office, handle each day. As all these matters were touched on during Kunka's cross-examination, they were proper sub- jects for redirect examination. Nevertheless, since the evidence which the Charging Party sought to elicit from the witness would have been either of slight, if any, materiality or, admittedly, cumulative, we find that its admission would not have altered our disposition of the case. Nor did the Charging Party in its exceptions and brief particularize the evidence which it expects to adduce at the new hearing. Its sole grievance is, that were it permitted an unrestricted examination of witnesses, there would have been developed a different record. This is not enough. For example, we have denied a petition for a new hear- ing because it failed to particularize the materiality of the evidence and the issues to which it related, or to show what evidence the Peti- tioner proposed to introduce at the new hearing.-' We believe that similar considerations warrant denial of further hearing in this case. We have carefully examined the record and find that all the issues in the case, including the supervisory status of city dispatchers, were fully explored at the hearing in some 1,000 pages of testimony. Eight witnesses testified for the General Counsel and eight for the Respond- ent. All five dispatchers called by the General Counsel testified fully with respect to their duties, responsibilities, and their employment status, the principal and underlying issue in the case. Head City Dis- patcher Ferro, the Charging Party, testified in support of the allega- tion of the complaint that the city dispatchers were nonsupervisory employees and that his discharge was discriminatory. His testimony was spread over 120 pages of the record. Counsel for the Charging Party was permitted to examine Ferro on redirect with respect to matters touched on in his cross-examination. He was also permitted to examine on redirect witnesses Bourke, Morman, and Senese, and to cross-examine seven of the Respondent's eight witnesses. Alto- gether, the Charging Party's examination and cross-examination of c Julian Aluminum Foundry Company, 120 NLRB 1319. See also B V D Company, Inc, 117 NLRB 1455, 1458. SPECTOR FREIGHT SYSTEM, INC. 1115 witnesses cover some 85 pages of the record. In addition, the Charg- ing Party was permitted to interpose objections, make offers of proof, argue its position, and submit a brief to the Trial Examiner. The Charging Party alleges no bias or prejudice on the part of the Trial Examiner. Upon the entire record, we conclude that the Charging Party has failed to show that the Trial Examiner's rulings restricting its partic- ipation in the examination of witnesses resulted in prejudice to its substantial rights. [The Board dismissed the complaint.] CFIAIRMAN MCCULLOCH and MEMBER RODGERS took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT STATEMENT OF THE CASE This issues in this case are whether Spector Freight System, Inc. (herein called the Respondent), has (1) interrogated employees about their membership in, and activities on behalf of, Local 710, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (herein called the Union), and threat- ened them with reprisals and refused to grant them pay increases because of such membership and activities, and (2) discharged an alleged employee because of such activity, in violation of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues arise on a complaint issued February 20, 1962, by the General Counsel of the National Labor Relations Board,' and an answer of Respondent denying the commission of any unfair labor practices A hearing on the issues was held before Trial Examiner Eugene F Frey at Chicago, Illinois, on various dates between April 17 and May 3, 1962, in which all parties participated through counsel and were given full opportunity to be heard, to examine and cross-examine witnesses, to present pertinent evidence, to make oral argument, and to file written briefs All parties waived oral argument, but General Counsel and Respondent have filed written briefs which have been carefully con- sidered by the Trial Examiner. Respondent's motions during the hearing to dismiss the complaint on the merits were taken under advisement, and are now disposed of by the findings and conclusions in this report. Motions filed by General Counsel and Respondent since the close of the hearing to correct the transcript of the record have been considered and granted, and the transcript is hereby corrected accordingly; the motion of General Counsel is admitted in the record as General Counsel's Exhibit No. 11, and Respondents' motion is admitted as Respondent's Exhibit No. 42. Upon the entire record in the case, and from my observation of witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Missouri corporation which maintains a terminal and place of business in Chicago , Illinois , where it is engaged in the business of transportation of freight by truck. During 1961 , in the course of its business operations , Respondent derived revenue in excess of $100 ,000 from transportation of freight from Illinois to other States , and vice versa, and between States other than Illinois. Respondent admits, and I find on these facts, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. 1 The complaint was based on a charge filed January 5, 1962, by Thomas Joseph Ferro, an individual. 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Background facts The facts and issues arise from the conduct of Respondent toward six employees, known as city dispatchers ,2 at its Chicago terminal, after they signed cards on April 25, 1961, authorizing the Union to represent them in collective bargaining and authorizing Respondent to check off their dues to the Union 3 The officials of Respondent involved in this conduct were Edward Latimer , regional vice president in charge of the Chicago terminal , Edward R. Pecora , operations manager at that terminal during 1961 and up to February 1962 , when he succeeded Latimer as termi- nal manager, and Charles Gorecki , assistant operations manager under Pecora. As Respondent contends that the city dispatchers were supervisors and not employees entitled to the protection of the Act , at the times material herein , this issue will be decided first. 1. The status of the city dispatchers 4 During 1961 , Respondent employed the six city dispatchers named above to handle the daily dispatching of about 140 to 150 city drivers for the pickup and delivery of all freight coming into or out of Chicago within a 50-mile radius. One of the dispatchers was at all times designated as "head city dispatcher" or "acting head city dispatcher ." 5 Operating in a room known as the city dispatch office, these dispatchers daily assigned loads to city drivers under procedures detailed below . The dispatchers were responsible to Terminal Manager Pecora and his assistant , Gorecki, whose authority during 1961 and early 1962 covered the complete cartage, dock, and road operations at Chicago, involving about 450 employees. In addition to the dispatchers , one or two pickup clerks, a record clerk, and a cashier work in the dispatch office 6 It is the general duty of the city dispatchers to arrange all pickups and deliveries of all freight coming into or out of Chicago and its immediate suburbs promptly and at the lowest possible cost consistent with efficient service, by using the minimum number of drivers with the least possible use of overtime . In performing these duties, the dispatchers control the city drivers in all phases of their work 7 Aside from the routine daily dispatch of 25 to 40 drivers who are assigned to regular suburban runs,8 dispatchers assign drivers to all city and certain extra surburban runs by taking into consideration the weight of the load and whether particular tractors or trucks are licensed to handle it, the destination of the load and number of loads awaiting pickup in that area, the driver's familiarity with that area, and his general ability to make deliveries quickly and efficiently without running into overtime pay; 9 the latter two factors are relatively more important in achieving the basic goal of maximum possible delivery of tonnage per day per driver, which directly affects the daily and weekly 2 Thomas Joseph Ferro, Leon Battalini, Eugene Bourke , Irwin Punka, Albert Morman, and Ignatius Vitale. s Since February 1957 , Respondent has had successive collective-bargaining agreements with the Union recognizing it as the exclusive bargaining representative of its highway drivers, helpers, meat drivers, and office and miscellaneous terminal employees a The facts in this section are based on credited and mutually corroborative testimony of Pecora, Gorecki, the six city dispatchers named above , and Anthony Jonatta, a city driver of long experience and the union steward who has long handled affairs of those drivers under the Union's contract with Respondent 5 Some witnesses called the head dispatcher "city driver foreman" and the five other city dispatchers "assistant city driver foreman," but their description as "foreman" is of little consequence in determining their status under settled Board law. 8 The pickup clerics take telephone calls , like dispatchers , from customers requesting pickup of freight , and turn the data over to a dispatcher who assigns a driver to make the pickup , pickup clerks make no actual assignments except in rare instances The clerks and cashier are hourly paid employees represented by the Union under its contract with Respondent aforesaid 4 During 1961 , Respondent used a daily average of about 90 city drivers to handle "volume" or large truckloads, and about 60 to handle "LTL," or less-than -truckload shipments At least one city dispatcher was assigned daily to handle drivers in each category at the same time 8 In Its business , Respondent has divided Chicago and its outlying suburban areas into geographical areas , or "runs," to which one or more tractors or trucks are assigned each day, depending upon the number of deliveries and pickups in each area 9 Dispatchers soon learn , and during 1961 knew, the relative ability of city drivers to complete assignments quickly. SPECTOR FREIGHT SYSTEM, INC. 1117 cartage costs of Respondent. After the initial morning assignments, the dispatchers assign loads to be picked up during the day, called "pickups," to drivers as they call in periodically to report their location and progress or completion of deliveries to In assigning pickups, dispatchers have substantial discretion. While they normally assign a pickup to a driver already in that area, if he still has deliveries to make, and no other driver is available in that area, they may assign the pickup to a driver from another area, or to one from a regular run, whichever is most available. At times, they may find it necessary to assign an "LTL" driver to pick up a "volume" load, and vice versa.ii Thus, in order to clean up all loads possible during the day and use drivers economically and efficiently, dispatchers on their own initiative often transfer drivers from one route to another, one area to another, or between volume and LTL work, the overall objective being to place drivers in the place where most needed and where they feel the drivers can do the best job. In handling pickups, dispatchers must use their judgment in determining the time of pickup. Aside from pickups on regular suburban runs which are mostly guaranteed overtime runs because of the distance involved, dispatchers decide whether to handle pickups the same day, with possible overtime cost, or hold them over for handling without overtime the next day; the decision involves the same consideration of the weight, nature, and location of the pickup, the load situation of the driver calling in, his ability to handle the type of pickup involved, and in addition, the number of loads waiting at terminal for delivery, the need for trailers with loads at the dock for unloading, the time when the pickup was called in, the value of the customer to Respondent in terms of volume of business; 12 on "late pickups" (usually called in after 2 p in ), these factors, particularly the nature of the customer, become important in deciding whether to handle the load that day or the next. If the dispatcher decides to handle it the same day, he must use his judgment to choose the driver already in the area, or another closest to point of pickup, as well as a fast worker, in order to keep the amount of overtime as low as possible. In handling certain deliveries or pickups, the dispatcher may in his judgment authorize a driver to work during part of his lunch period, for which he is paid "lunch overtime" upon direct authority of the dispatcher.13 In addition, when a driver calls in for assistance in unloading his truck, dispatchers often exercise discretionary authority to help him by permitting him to hire casual labor off the street, if they cannot locate another driver nearby to help him, or it appears that authorizing him to work "lunch overtime" will not suffice. The proper and efficient handling of pickups is vital to Respondent's operations, because at least 75 percent of the pickups handled daily call for same-day service, which very often involves overtime work During 1961 the economic layoff and recall of city drivers was normally handled by Head Dispatcher Ferro, or by Pecora with Ferro's recommendations,14 but when drivers called in sick, or requested permission to leave early for personal reasons, the dispatcher had authority to recall a replacement driver for the sick man, and had discretion to tell the driver asking time off to postpone it to the next day, or bring him in early from his run, depending upon the load situation On Saturdays. the assistant city dispatcher on duty had full authority to recall drivers on his own 10 Drivers are required to call the city dispatch office for orders at least three tines during the course of the day, and at the completion of their run, as well as any time they are delayed by breakdowns or other cause. 11 The dispatchers work together to shift one or more drivers from one category to handle overloads of pickups in the other, which occurs several times a week. In the process, they may also shift a driver from a "straight" truck (handling LTL) to a tractor used for "volume" hauls, if he is capable of handling both types Particular drivers may be chosen or ruled out for a particular load, depending on whether their tractor or truck can handle the weight. whether they are skilled in handling the type of cargo involved, and whether or not they know the area of the pickup "Customers which give Respondent a large and steady amount of business, called "A-accounts," usually got inimedia,te, or same-day, service, regardles sof overtime costs, as a matter of business policy In general, dispatchers are required to exercise their judgment to get the oldest loads, as well as the "hot" (sane-day-delivery) loads out of the terminal first "The existence of this authority, and the importance of proper exercise of it by dis- patchers, was highlighted in 1961 by the fact that at one point, when the amount of such overtime rose substantially, Pecora Issued orders to the city dispatchers through Head Dispatcher Ferro to cut down on lunch overtime, and at one period in the sunnier Pecora ordered that dispatchers get approval of Ferro in each instance befoic authoiiz- ing it 11 This will be discussed in detail in considering Ferro's status. 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD initiative, and regularly exercised it, when an unexpected increase of Saturday business required it, or drivers scheduled to report failed to show up. In like manner, if the Saturday work fell below expectations, that dispatcher had authority to send drivers on duty home at noon, so that they would receive only their guaranteed 4 hours of Saturday work, and no overtime work.15 During 1961 the dispatchers had standing orders to bring at least 15 drivers with pickups back to the terminal by 5 p.m. daily, so that the night-shift dockmen would have plenty of work. To comply with this order, dispatchers had to exercise judgment in picking the drivers to come in early; they could bring in a particularly driver before 5 p m. in order to avoid paying him overtime. They usually chose "volume" drivers whose deliveries would be made in time for an early return or various LIL drivers whose runs were short. They would avoid bringing back a driver who was delivering in a distant area. However, they often called in drivers before 5 p.m to avoid paying them overtime, as a disciplinary action. Dispatchers had authority to discipline drivers in various ways. In trying to keep down costs of operation, they constantly observed the length of time a driver took to complete an assignment. If he took an excessive amount of time, or failed to return to the terminal by a specific time as ordered, the dispatcher would ask him the reason for the delay, and if his excuse did not appear valid, they would verbally reprimand him and warn him against repetition. Besides "bawling out" drivers for other omissions or poor performance, they also disciplined them by giving them loads difficult to handle, runs which involved no overtime, or would bring them in early regardless of the amount of pickups; the latter measures were most effective because they "hurt him in his pocketbook." If a driver refused to take out a load without valid cause, the dispatcher had authority to discharge him outright is In contrast, dispatchers have authority on their own initiative to reward efficient drivers, and at times those in financial straits, by assigning them to runs or pickups involving overtime, provided the assignment does not violate company policy on costs. City dispatchers have authority to handle and settle most grievances of city drivers involving their working conditions. On complaints such as unfair assignments of overtime work, assignments to bad loads or poor trailers, failure to observe the Union "first-in-first-out" rule in assignments, or failure of the dispatcher to recall a driver according to seniority, the driver makes his complaint to the union steward who discusses it directly with the dispatcher controlling that driver, in an effort to settle the grievance at that level. If the claim is valid and involves payment of wages, the dispatcher approves it on his own initiative. If it cannot be settled there, or if the grievance recurs due to failure of the dispatcher to abide by the settlement, the steward then takes it to Pecora for settlement.i7 It is clear from the above facts, that, in performing the above duties and exercising the above authorities, the city dispatchers are required to use their ingenuity and independent judgment, based on their know-how and experience, in controlling and "juggling" city drivers in all aspects of their work, to carry out the basic transporta- tion operations and policy of Respondent stated above, and that the city drivers have always considered the dispatchers as their supervisors in this respect.18 In their own status and relationship to Respondent, as contrasted with other em- ployees, city dispatchers have other attributes of supervisory status They are paid weekly salaries, ranging from $140 to $165, regardless of hours worked.19 Like other supervisors, and in contrast to the hourly pay of drivers, their salary is nor- During most of 1961, the five assistant city dispatchers rotated on it full Saturday shift, operating under standing orders to clean up all deliveries so that none would b(', left for Monday, and especially to make sure that all loads scheduled for rail transporta- tion were delivered that day at the rail terminal. '- This was pursuant to a custom well-known in the transportation industry and recog- nized by Respondent and the Union to the effect that when a driver refuses an assignment for a reason other than safety or violation of governmental regulations, he is considered to have quit his job. 17 The Union takes grievances directly to Pecora only where they involve discharge or suspension for misconduct, or discrimination against a city driver by preferential use of a driver or employee from another division in the terminal In the latter case Pecora settles it and authorizes payment, only because the action complained of was taken by employees other than city dispatchers. is Close control of drivers by dispatchers is also enhanced by the fact that the city drivers' room is adjacent to the city dispatch office and the docks where city trucks and trailers are parked, loaded, and unloaded 19 The maximum pay for assistant city dispatchers was $210 a week SPECTOR FREIGHT SYSTEM, INC. 1119 mally kept at least 10 percent higher than the gross weekly pay of city drivers. They receive fringe benefits, such as special retirement and sick leave plans, which are afforded other supervisors and management officials of Respondent, but are different from those given to hourly paid workers. They participate in a profit- sharing plan, and get severance pay on discharge, neither of which are given to hourly paid workers. During 1960 and 1961, city dispatchers were invited to, and attended, regular yearly management meetings for supervisors, at which company policies and methods of improving service, operations, and cutting costs were dis- cussed, and also attended many informal supervisors' meetings called weekly and at times daily by Pecora to discuss operations. During early 1959, the three dispatchers then employed (Ferro, Kunka, and Vitale) attended and completed a training course conducted by Respondent for supervisors and trainees for such positions. I find on all of the above facts that during 1961, 1962, and at all times material herein, the city dispatchers have had and exercised authority, in the interest of their employer, to hire, transfer, layoff, recall, discharge, assign, reward, and discipline employees, and to adjust their grievances, and responsibly to direct them, to the extent found above, that their exercise of such authority required the use of in- dependent judgment, and that said dispatchers were supervisors within the meaning of Section 2(11) of the Act.20 2. The status and discharge of Ferro Ferro came to work for Respondent in 1957 as an assistant city dispatcher When Respondent merged with Steffke, another motor carrier, late in 1960, Bourke (a former Steffke dispatcher) was made head city dispatcher. Pecora came to Re- spondent during the merger as operations manager at Chicago, and found operations in confusion and costs running high. After observing Bourke's supervision of the city dispatch operation for a few months, Pecora demoted Bourke to assistant city dispatcher about November 26, 1960, because, although he was a willing and hard worker as a dispatcher, he could not handle the control responsibilities of head dispatcher so as to keep costs down. On November 28, 1960, Pecora offered the job to Ferro, explaining the duties and emphasizing the objective of giving the best service at the lowest cost, by using drivers efficiently with the least possible use of overtime. He said that Ferro would get $175 a week ($15 over his former pay of $160) and would work on a trial basis for 90 days, during which Ferro could return to his old job if he desired or Pecora could return him to it, if he felt Ferro was not doing well, and that after the 90-day period Ferro would be "on his own." Ferro accepted and was given the job under these conditions in December 1960.21 From the beginning, Ferro's basic responsibility was overall supervision and con- trol of the city dispatch office, to make sure that all city cartage operations were promptly and efficiently handled by the dispatchers. As part of his duties, Ferro visited the terminal garage at the outset each day to examine vehicles out of service for repair, ascertain and expedite the progress of repairs, arrange to shift early re- i The fact that the dispatchers did not exercise other normal supervisory powers, such as actual hiring and firing of drivers, and leasing of special equipment as needed from outside sources, does not detract from their supervisory status, because it is well settled that the existence and exercise of any one or more of the functions outlined in the Act is sufficient to make an employee a supervisor. Further, the fact that at times during 1961 Terminal Manager Pecora and his assistant, Gorecki, were compelled to inject themselves into the dispatcher operation from time to time to overrule dispatchers' actions or omis- sions which were increasing costs, by issuing special layoff and recall orders at times, as well as orders to handle specific loads for valued customers or in special situations, for the purpose of increasing efficiency and coordinating the city dispatch and other terminal operations, does not detract from the dispatchers' supervisory status The same is true of the facts that some of their actions were routine, such as assignment of loads in certain areas to drivers regularly assigned to those areas, making assignments at times on the basis of the "first-in-first-out" rule, assignment of loads on the basis of a drivers' eye- sight, the weight which a tractor can handle, and hiring of outside labor to unload toxic materials of a few customers pursuant to a practice agreed upon with the Union in the past. =i Pecora and Ferro agree on the basic terms of the employment, except that Ferro does not mention a 90-day tryout period, indicating that their agreement was that he could return to his old job at any time. I accept Pecora's version of the agreement, because it seems unlikely that Pecora would want a temporary, or "acting," head dispatcher for an indefinite period, but was rather looking for a man who could fill the job on a permanent basis 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porting drivers to other loads if their assigned trailers would take long to repair, expedite repairs on some to avoid having their drivers sit idle or work overtime due to a late start on their runs , and shifting loads held up by repair work to drivers reporting later in the day. In expediting repairs, Ferro had authority to order drivers to take trailers out without repair, if the defect reported by the driver did not render the vehicle unsafe to operate. He could also have repair jobs handled out of normal order to insure that particular "hot" loads went out on time. From the garage, Ferro stopped at Pecora's office to pick up mail and special orders regarding handling of specific loads and other aspects of city dispatch operations, and then went to the city dispatch office where he put the special orders into opera- tion by posting them or giving directions to the assistant dispatchers . He then assisted them in handling telephone calls from customers , and assigning loads to drivers as they reported in on the telephone . In this respect, he exercised all the supervisory functions of the assistant city dispatchers found above . Ferro also had authority to lay-off and recall drivers depending on fluctuations of business during the day, and the shapeup of business for the next day. Normally, he con- sulted in the late afternoon with the assistant dispatchers about their driver needs for the next day, after he had received data from Pecora or Gorecki on the number of loads for delivery that day, the number held over for the morrow , and the number of loads expected to arrive during the night. In the early months of his regime, Ferro alone made the decisions on layoff and recall of drivers , though at times, as at Christmas 1960 (usually a slack season ), he made a large layoff only after consul- tation with Pecora, who would give advice based largely on Ferro 's prior experience as a dispatcher with Respondent and his knowledge of seasonal fluctuations (which Pecora did not know since he was new on Respondent 's staff). During much of 1961, Ferro made the decisions on his own , particularly a layoff of vacation replace- ment drivers during September 1961 ; only occasionally he would seek consultation and advice from Pecora before taking action . As time went on, however, he sought Pecora's advice more and more frequently before making layoffs. Pecora would usually give advice, but only after getting all the facts from Ferro . In addition, whenever Pecora noticed that cartage costs were rising, he would more frequently give Ferro specific orders for layoff or recall of drivers , or bringing groups of drivers in from runs early, in efforts to keep down the costs . Even in such cases, how- ever, Pecora would often defer to Ferro's objection and postpone layoffs for a day or so. During the normal slack season of December 1961 , when Ferro failed to make any substantial layoffs, Pecora overruled him, and directed him to lay off 36 drivers on successive weekends ; when Ferro protested that this was hard on the men at that season, Pecora reminded him that at times a supervisor had to make such decisions to protect the employer .22 These facts convince me that layoff and recall authority resided in Ferro during his incumbency ; his failure to use it properly, and gradual relinquishment of it, did not make him any the less a supervisor under the act,23 but is pertinent only on the reason for his discharge. Ferro also had and exercised authority to make, and effectively to recommend, changes in dispatchers' and drivers' working conditions . When Respondent in 1961 disposed of 15 "straight" trucks and tractors, Ferro in conjunction with the union steward of the city drivers reassigned drivers to other vehicles in accordance with their driving abilities, without prior consultation with management. When Pecora decided early in 1961 to reduce the city dispatcher staff by one man, he laid off the dispatcher recommended by Ferro. During the 1961 vacation period, Pecora approved Ferro's choice of a city driver as temporary assistant dispatcher , and when the same driver returned from an illness in the fall , but was still unable to drive, Pecora approved Ferro's temporary transfer of him to the job of pickup clerk in the city dispatch office. Whenever the amount of LTL or volume freight to be handled 23 ily findings as to the authority and practice on layoffs and recalls is based on credited testimony of Pecora and Vitale, and I do not credit conflicting testimony of Ferro which would indicate that Pecora kept that function entirely in his hands by giving daily and detailed orders about layoff and recall of drivers, for it is inconceivable to me that, in the light of his other broad responsibilities involving operations of the dock, road dispatch, and other divisions in the vast terminal operation, which he handled from an office about two city blocks removed from the city dispatch office, Pecora would raetin to himself the single daily decision on fluctuations in the city driver force, which was one of the duties for which the head city dispatcher was paid, and which could best be handled by him and his assistants, who were constantly in touch with that operation during the day, in contrast to Pecora's comparatively infrequent and only momentary observations of that operation. 23 Leonard Niederritei Company, Inc, 130 NLRB 113, 115 SPECTOR FREIGHT SYSTEM, INC. 1121 became too large, Ferro would shift LTL and volume dispatchers from one category to another to handle the overload, without prior clearance with Pecora. In the matter of discipline, Ferro was, in December 1960, assigned the duty of meting out discipline, including issuance of warning letters, directly to city drivers, at the same time that the duty was placed on all other supervisors. Ferro asked Pecora to relieve him of that duty, and to issue warning letters himself, because Ferro was new on the job and did not like drivers to get the idea he was trying to "browbeat" them. Pecora acquiesced and, during Ferro's incumbency as head dis- patcher, issued and signed warning letters, and also imposed other discipline on the advice and recommendation of Ferro, in most instances without independent investi- gation of the facts. In cases involving violation of safety or traffic regulations, Re- spondent's safety director issued warning letters on Ferro's recommendation. This was a departure from Respondent's normal disciplinary practices, for when Kunka was head city dispatcher from 1954 to 1960, he disciplined drivers himself, both by discharge, warning letters, and other methods, and Head Dispatcher Bernard Rago, who succeeded Ferro, has issued warning letters from the beginning. The variance from the practice for Ferro's benefit emphasizes that the disciplinary authority was a normal attribute of the job of head city dispatcher, and that Ferro had that authority at the outset Ferro also handled and settled certain grievances of city drivers regarding favori- tism by dispatchers in handing out overtime loads, and other problems, without any recource to Pecora other than advising him of the settlement and securing his pro forma approval after the fact. Ferro clearly recognized that he had a vital responsibility as head city dispatcher for the efficient operation of the city dispatchers in their handling of city drivers, and had a duty to see that they used all measures to keep down the city cartage costs. During the early part of 1961 he made various recommendations to Pecora about the dispatch, layoff, and recall of drivers. In the summer of 1961, he recom- mended that Respondent discontinue daily pickup stops at customers who did not give Respondent business at least 3 days a week. After making a statistical check on those customers, Pecora adopted the recommendation and put it through channels for adoption.24 In October, on recommendation of Ferro, Pecora made a change in the method of handling small LTL loads at the dock for the purpose of quicker un- loading of trucks, less idle time for their drivers, and having more trailers available for loading by the night shift. Finally, the record shows that the assistant city dispatchers regarded Ferro as their supervisor in charge of the whole city dispatch operation, and obeyed his decision and orders. In the spring of 1961, they agreed to his determination that, as their supervisor, he was working long hours and thus entitled to drop out of the rotation of Saturday work among the six dispatchers, and thereafter only the five assistants rotated in that work, with Ferro visiting the office only occasionally on Saturdays to observe the operation. Pecora approved the arrangement after learning that the six agreed on it. When Ferro was available, the assistants usually secured his ap- proval before denying overtime runs to a driver or transferring him as a disciplinary measure. After Ferro and the city driver steward worked out the agreement for use of outside labor in unloading toxic materials for certain customers, Ferro announced the arrangement to the dispatchers and put it into effect. As to the overall scope of Ferro's authority, it is significant that Dispatcher Kunka, who had been head dispatcher for 5 years up to 1960, admits he gave up the job be- cause of the multitude of responsibilities involved, and that he considered the re- sponsibilities of Ferro's job to be greater than when he held the position. Moreover, it is noteworthy that when Kunka was head dispatcher in 1959, the Union did not include him in its attempt to have the assistant city dispatchers (then three in number) included in the bargaining unit covered by its contract. That dispute was decided against the Union in December 1959, by a joint State and local committee created under the grievance procedure of the contract, and its decision was final and binding on the parties. It should also be noted that, before Ferro was discharged, Dispatcher Vitale told Pecora he would like to be considered for the job if it ever became vacant, because of his ownership of stock and other obligations of Re- spondent. Although Vitale turned it down after Ferro's discharge for personal rea- sons, his original desire for it indicates that he at least considered it a desirable position above that of assistant city dispatcher. 24 Due to a contemporaneous change in its top management , the sales department of Respondent never implemented the recommendation , but this does not detract from the fact that Ferro had authority effectively to recommend changes in the city dispatch opera- tion, and that Pecora recognized it. 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In summary, I am satisfied and find on the entire recorde that, as head city dispatcher, Ferro had and exercised all the supervisory authority vested in the as- sistant city dispatchers , plus the additional supervisory authority outlined above, and that he was a supervisor within the meaning of the Act. General Counsel contends that Ferro was discharged for his union adherence and activities, but if Ferro was a supervisor when he engaged in such activities on behalf of an employees ' union, and when he was discharged therefor , it seems well settled that his activities were not protected by the Act, and his discharge did not violate Section 8 (a) (3) or ( 1) of the Act 25 Even if the record showed that Ferro was in a nonsupervisory status when he joined the Union or at his discharge , I would still be impelled to conclude from the preponderance of credible and substantial evidence in the entire record that he was discharged because he failed to perform satisfactorily as head city dispatcher. I have already found that neither Ferro nor Pecora terminated his appointment during the 90-day tryout period . He was thereafter a permanent incumbent as head city dispatcher and "on his own, " which meant he was subject to discharge at any time for cause . At the time of his appointment, Respondent had budgeted its city cartage operation for 1961 at 0 231 or 231,4 cents per hundredweight , and Ferro knew that he was responisble for keeping the city cartage operation as close to that figure as possible. During his first month in the job, cartage costs were high at first but trended downward, which Pecora considered satisfactory for a new man breaking in on the job; in this period and up to June, Ferro carried on his overall duties without more than occasional consultation with Pecora , and costs continued to drop, although not as low as the budget figure. When Pecora noticed that costs began to rise from June onward, he had weekly talks with Ferro about it, suggesting that he keep closer check on use of drivers and the amount of work they did. Pecora also noticed that in periods when Ferro was on vacation , and the assistant dispatchers cleared all layoffs and recalls and other steps in driver control with Pecora , weekly costs dropped to around 27 cents per hundredweight , which was appreciably lower than the figure when Ferro was on hand . From August onward, costs rose and remained high, particularly overtime costs, which suggested lack of close control and efficient use of drivers . This was unusual because the fall season is a busy one in which costs normally drop with efficient operation . Hence, Pecora frequently talked to Ferro on this point, and at the same time would often direct Ferro to make layoffs on specific days and call drivers in early. At the same time , Ferro began to seek advice from Pecora and Gorecki about layoffs , recalls, and availability of equipment , and other matters more frequently , and while Pecora usually gave ad- vice willingly, he always reminded Ferro that he had the data to make these de- cisions, which was his duty , and that Pecora was too far from the operation and the facts to do so. Pecora also had to warn Ferro about his failure to get enough LTL pickups into the dock by 5 p.m. for night unloading, to the extent that in October he issued a standing order that at least 15 pickups should be in by 5 p .m. daily. In November and December , Ferro had reached the point of getting Pecora's advice on layoffs two or three times a week, before taking action 26 Ferro admitted that: As early as March 1961 , he knew the city dispatch operation was not running properly, and costs were rising too high, that in July the assistant operations manager in charge of night work told him the city dispatchers were not doing a good job in holding costs down, and that four of the dispatchers should be replaced, and that for this reason Ferro tried in March, July , and October to give up his job. Pecora's only response appears to have been continued efforts to encourage and assist Ferro to exercise closer driver control in order to reduce costs . However, Ferro's ad- mission is significant because it is supported by Vitale's own appraisal of the opera- tion of the dispatch office: Vitale told Pecora in December 1961 , that he would like to be considered for the job of head dispatcher if it became vacant , as he was a stockholder of Respondent and desired to "protect my interests ," adding that he could see money "being thrown out the window back there." 25 Gabbs Automatic Division, Pierce Industries, Inc , 129 NLRB 196, 198 ; Leonard Niederriter Company, Inc, supra. 20 This was in effect a relinquishment of the duty of layoff and recall: a decision on lay- off was not necessary on Monday or Tuesday, as the terminal had enough freight piled up on the weekend to keep a full force of drivers busy both days . However , decisions were necessary Tuesday , Wednesday , and Thursday nights. If men were not laid off on the basis of work on hand and coming in, the effect would appear to Pecora in the day's cost figures showing LTL costs far higher than the budget figure. SPECTOR FREIGHT SYSTEM, INC. 1123 In the fall of 1961, Ferro began to spend part of his time after the morning visit to the garage, in daily conversations with employees in the accounting room near Pecora's office, particularly with Josephine Cook, assistant steward of the Union. This became noticeable to Pecora, Gorecki, and even higher company officials who commented on it. His absences came at times when the dispatch office was loaded with early telephone calls. The assistant dispatchers complained to Ferro and criticized him for being absent when they needed help most. Gorecki often had to advise him about the telephones ringing in the dispatch office when he saw him talking in the accounting room. These complaints became so frequent that Pecora called a meeting of the city dispatchers on October 7, 1961, at which the complaints were discussed, and Pecora finally made an arrangement to assign other employees to assist the dispatchers in handling telephone calls. However, Ferro continued his conversations with the clerical personnel, despite continued hints from Gorecki that he was needed in the dispatch office, until Pecora had to warn him privately against the practice several times between October and December; Ferro's only defense was that he had a right to talk to his friends, such as Stewards Senese and Cook. Pecora reminded him that during his absences he was not only not doing his own job, but keeping others from doing theirs.27 In the first 3 weeks of December 1961, city cartage costs were quite high, fluctuat- ing between 28 and 33 cents. On successive weekends in this period, Pecora di- rected Ferro to lay off 36 drivers, after Ferro had failed to take that action in the slack season. While Ferro was on vacation between Decmber 23, 1961, and January 2, 1962, and Pecora was handling layoffs with the guidance of the assistant dispatchers, the costs dropped to 0.275. This was the final circumstance that caused Pecora to decide to discharge Ferro. On January 4, 1962, Pecora called Ferro in and said he had to let him go, because city dispatch costs were still far over the budget, and that he had repeatedly talked to Ferro about it and about his frequent absences from the dispatch office Ferro asked if he could return to his old job as an assistant at his former salary, as had been done for Bourke and Kunka. Pecora said he did not want Ferro as an assistant because he felt that if he could not do a job costwise as head dispatcher, he could not do any better as an assistant, since all dispatchers had the same responsibility to cut down costs.28 He also reminded Ferro that under the hiring agreement Ferro was "on his own" after 90 days. Ferro charged that the discharge decision was not made by Pecora, but by others based on the fact that he signed a union card. Pecora denied this, saying the decision was his alone, because he was responsible for the cartage and dock operations and the costs thereof, that his decision had nothing to do with the union cards, because after the Union had dropped its unfair labor practice charge, Respondent still considered the dispatchers as supervisors, that "ended it" as far as Pecora was concerned.29 Ferro then asked for his severance and vacation pay, and Pecora arranged to have checks prepared covering his regular salary to date, plus 3 weeks' severance pay (as against the usual 2 weeks) and vacation pay. Pecora testified that he discharged Ferro because he had lost interest in his job, and had failed to control the operation so as to keep down the costs, despite numerous admonitions and advice on that subject. The facts found above showing Ferro's per- formance in the job are based on credited testimony of Pecora, Gorecki, and various city dispatchers, and are corroborated by admissions of Ferro, and constitute sub- stantial support for Pecora's contention. General Counsel relies on a variety of circumstances to show that Respondent had a union animus against the dispatchers ever since they signed the union cards, and that Ferro's discharge was part of its retaliation against them for that conduct He cites proof that Ferro had long been friendly with Union Steward Senese and 27 Ferro testified that these visits to Cook, who was also manager of the employees' credit union, were on credit union business for himself and the other dispatchers, but I do not believe this, for he did not give this explanation to Pecora or Gorecki when criticized about it, and further his story is not supported by testimony of Cook or the other dis- patchers, and it is inconceivable that he had to visit her on credit union business almost daily. 28 It is significant that Respondent considered two former head dispatchers valuable enough to retain them as assistants: Kunka was kept on after he voluntarily gave up the job, and Bourke was demoted, not discharged, when lie failed to handle the -top job satisfactorily. 29 The facts regarding the unfair labor practice charge are discussed hereafter 708-006-64-vol. 141-42 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assistant Steward Cook, and openly consorted with them at the terminal at lunch time and other times, that Assistant Operations Manager Gorecki often noticed the association, and often commented on it to both Senese and Ferro by sarcastic and disparaging references to the Union and Ferro 's association with union agents, that Ferro openly campaigned at the terminal for Senese as a union officer prior to a union election in December 1961, that shortly after the dispatchers signed cards Vice President Latimer openly showed concern about their affiliation with the Union when he questioned Ferro about the reason therefor and then told Ferro Respondent would "fight it," that just before Christmas 1961, Pecora told Ferro he was satisfactory in his job and should not worry about it, and that after Ferro's discharge Security Officer Rago told him he was fired because he consorted with union people and "leaned toward unionization ." However, these factors lose controlling significance in the light of the following circumstances: (1) The record shows a long course of apparent amicable collective bargaining by Respondent with the Union and other locals of the Teamsters at the Chicago terminal under successive contracts 30 In 1959, the Union in an orderly manner tried to bring the assistant city dispatchers under its office workers' contract with Respondent, by resort to the grievance procedure of that contract, and lost. Ferro was one of the assistant dispatchers involved and testified in the case for the Union. Notwithstanding that prounion activity and his long and open association with union officials, Pecora chose Ferro as head dispatcher , partly on the basis of his long ex- perience as assistant dispatcher and partly on the recommendation of Steward Jon- natta. Late in 1960, Respondent had raised Ferro's salary as assistant dispatcher from $140 to $160. These actions denote the direct antithesis of resentment toward Ferro for his union sympathies. (2) Respondent learned about the dispatchers' union affiliation about May 10, 1961 , when Steward Senese brought the dispatchers' authorization cards to Pecora, who at once gave them to Vice President Latimer. About the same time, the Union formally advised Respondent that it represented the dispatchers and desired to apply the terms of its current contract to them. Shortly after, Latimer called Ferro to his office, and asked why he, a supervisor, would want to sign a union card. He emphasized that Ferro had a right to do so, but still wanted to know why a super- visor would join a union. Ferro replied that it was for job security, and that he was saying this for all the city dispatchers. Latimer asked if he did not feel that he had security as long as he was "doing a job," and Ferro repeated the same reason, say- ing he had seen many employees laid off recently. Latimer asked what Ferro was earning Ferro replied, $175 a week. Latimer said Respondent would not mind paying Ferro as high as $250 for doing a good job.31 Latimer tried to get Respondent's president on the telephone, but could not, and then told Ferro that "you signed the card, but we are going to fight it." About May 24, Latimer familiarized himself with the circumstances of the 1959 dispute with the Union over the assistant city dispatchers. In late May and on June 3, Latimer had conferences with the Union's business agent and Steward Senese, at which the Union repeated its demand for plac- ing the city dispatchers under the contract. In discussion of the salary and other working conditions of the dispatchers, the Union claimed they wanted full rights under the contract, with their present salary "compressed" into a 40-hour week, and an hourly rate established for them on that basis. Latimer finally refused the demand, claiming they were supervisors On the basis of that refusal, the Union filed a charge with the Board on June 12, 1961, alleging that Respondent refused to bargain with it in violation of Section 8(a) (5). On June 23, Respondent advised the Board that it considered the dispatchers supervisors , and that the current contract recognized that position . On or about August 4, the Union withdrew its charge. About a week later, Ferro commented to Pecora that the city dispatchers should probably look for other jobs, "now that the case has been dropped " Pecora asked if anyone from Respondent had ever threatened him because of the case, and Ferro admitted no one had, saying he was "only kidding about it " Pecora suggested that they all forget about the Union and the cards, get back to work and cut the costs down, and every- body would be happy. I find nothing illegal in Latimer's interrogation of Ferro, a supervisor, about the reason for the dispatchers' affiliation with the Union. Nor was his statement that Respondent "would fight it" a violation of the Act because it was so During 1961, Union Steward Jonnatta of Local 705 representing the city drivers al\\ ays succeeded in settling grievances with Respondent without being compelled to call upon his business agent for assistance. 31 Respondent had fixed $245 as top pay for head city dispatcher SPECTOR FREIGHT SYSTEM, INC. 1125 made only to a supervisor and related to supervisors' actions, and in itself it did not amount to a threat of reprisal for union activity, but was only an announcement of a legitimate decision to contest the same claim on which Respondent had defeated the Union in 1959, and was consistent with Latimer's reiteration of that position in later dealing with the Union in 1961. It is a legitimate inference that the Union felt there was merit in this position when it voluntarily withdrew its 8(a)(5) charge. Pecora's later remarks to Ferro about the unfair labor practice charge indicates that he considered it a closed issue and harbored no resentment toward the dispatchers because of their union affiliation. I therefore grant Respondent's motion to dismiss paragraph VI(a) of the complaint alleging illegal interrogation and threats by Latimer, and shall recommend a Board order dismissing the complaint in that respect. (3) The record shows that Gorecki, who was a man of aggressive and blunt speech with a volatile temperament, had been exchanging pointed and often sar- castic banter with Senese for about 5 years, during which he often disparaged the Union, and Senese for his union affiliation. Senese took it good-naturedly, recog- nized it as rough "kidding," and often gave as good as he received. The two argued a lot, but were otherwise friendly. In like manner, Gorecki during 1961 and earlier often sarcastically and jokingly derided Ferro for his constant association with Senese; on some occasions, after an argument with Senese about grievances, he would tell Ferro in a burst of temper that "we ought to get rid of all of you, you and your Mafia union," and made other remarks of like tenor. The most that Senese ever did about his remarks was to suggest once to Pecora that he have "that crazy Polack" stop hollering so loud about the Union, because some newer employees might not realize he was kidding, and it might interfere with smooth operations. In such circumstances, and in light of Respondent's amicable relations with the Union and other labor organizations, I am convinced that Gorecki's remarks represented only his own antiunion feelings and his own brand of humor, were long recognized by the union employees and steward as such, and cannot be attributed to Respond- ent. I consider in the same light and as personal opinion only, his remarks to Ferro after discharge indicating that the discharge was for union reasons. Rago's similar remarks to Ferro came from a management official not directly in charge of operations, and are at best an isolated instance of antiunion opinion which cannot overweigh Pecora's statements and conduct denoting a lack of union animus, nor the preponderant proof indicating the discharge was for cause. I find no violation of the Act in Gorecki's occasional inquiries of Ferro about his union activities, nor do I consider his frequent outbursts showing resentment toward the Union in 1961 as actionable coercive threats of reprisal, for they were all made to or in the presence of supervisors. I grant Respondent's motion to dismiss paragraph VI(b) of the complaint involving remarks by Gorecki, and shall recommend a Board order dismissing that portion of the complaint. (4) I can draw no adverse inference from Pecora's remarks to Ferro about the dispatch operation in a pre-Christmas social gathering in 1961, for at most they indicate to me that Pecora, in a holiday spirit, was merely reassuring Ferro that the operation would be handled satisfactorily in his absence, and that he should not worry about it while on vacation. It is hardly likely that Pecora would be so callous, in that time and place, to mention Ferro's many shortcomings, particularly since Pecora did not make up his mind about the discharge until after he had compared cartage costs during the period of Ferro's vacation with those for the preceding weeks. Rather, I credit Pecora's testimony that he did not compliment Ferro on his work, but suggested they have a good time that night and talk business the next morning in the office. (5) There is a conflict of testimony as to whether Pecora and Gorecki saw Ferro campaigning for Senese for a union office during his Christmas 1961 vacation. Ferro says they saw and spoke to him; they deny it. Pecora admits he knew about the campaign and tried to remain neutral by denying both union factions the right to post campaign material inside the terminal, and that in line with that neurality he would have prohibited Ferro from distributing circulars for Senese on the dock if he had seen him doing so. In light of the lack of other substantial proof of union animus by Respondent toward the Union or the city dispatchers in particular, I credit the testimony of Pecora and Gorecki. For the same reasons, any adverse inference which might be drawn from proof indicating that Pecora was in a posi- tion to notice campaign posters favoring Senese in Ferro's car in the same period, is far from sufficient to support a finding of discrimination against Ferro 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that General Counsel has failed to sustain his ultimate burden of proving by a preponderance of credible evidence on the record as a whole that Ferro was dis- charged for his union affiliation . I therefore grant Respondent 's motion to dismiss After careful consideration of all the facts and circumstances pro and con I the complaint in that respect, and recommend that the Board enter an order to that effect. 3. The denial of wage raises At the October 7 meeting between Pecora and the city dispatchers, the latter asked for raises, arguing that they had received none for a long time, and remark- ing that dock foremen had received raises earlier in the year. Pecora admitted that some dock foremen had received raises during 1961, and said the dsipatchers had missed out on two raises because they had signed union cards, that at one time in the past he could honestly have recommended raises for them, but when they were signing union cards, the company was not in a position to give them raises because Respondent felt it might be considered an attempt to persuade them to renounce their union affiliation. He added that, since the Union had dropped its charges, he could not then recommend a raise because cartage costs had risen in the second half of the year, and in support of this Pecora brought out records showing the fluctuations of costs. Pecora admitted to them that they had been doing a good job, but when Kunka asked if he could not report that to the "front office" to support a raise, Pecora said costs were starting to rise, and they would have to concentrate on controlling them, and if costs went down, he would try to get them a raise. Kunka asked Pecora if he thought they had "let down because we lost our case on the union charges," and Pecora replied he did not think they had 32 Since the discussion was held only with dispatchers who were supervisors, and there is no proof that Pecora's remarks were heard by, or intended by him to reach, the ears of rank-and-file employees, I must conclude on that basis alone that his re- marks and the denial of the raises did not violate the Act.33 Even if I found his remarks coercive, in light of testimony of Kunka indicating that in prior talks with Pecora and Gorecki those officials told him he had been denied raises for discrimina- tory reasons, my conclusion would have to be the same. I therefore grant Respond- ent's motion for dismissal of the complaint insofar as it alleges that Respondent discriminatorily failed and refused pay raises to the city dispatchers, and that Pecora threatened employees, and shall recommend that the Board issue an order to that effect. Upon the basis of the foregoing findings of fact, and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The head city dispatcher and assistant city dispatchers at Respondent's Chicago, Illinois, terminal were during 1961 and have since been supervisors within the mean- ing of Section 2(l 1) of the Act. 4. By discharging and failing to reinstate Thomas Joseph Ferro, by refusing wage increases to the city dispatchers, and by various remarks of Latimer, Pecora, and Gorecki to the city dispatchers as found above, all during 1961, Respondent has not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8(a) (3) and (1) of the Act. RECOMMENDATION Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. 39 These findings are based on a composite of credible and mutually corroborative testi- mony of Pecora, Gorecki, and the six dispatchers, particularly admissions of Kunka and Battalini Testimony of the dispatchers in conflict therewith is not credited. zi See cases cited in footnote 25, supra, and National Mattress Company, etc., 111 NLRB 890, 891.