Willis Shaw Frozen Food Express, Inc.

WILLIS SHAW FROZEN FOOD EXPRESS 487 Willis Shaw Frozen Food Express, Inc. and General Drivers and Helpers, Local Union No. 823, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Petitioner. Case 26-RC-3120 October 30, 1968 DECISION ON REVIEW BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 11, 1968, the Regional Director for Region 26 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found appropriate a unit of all over-the-road drivers and loaders employed at the Employer's Elm Springs, Arkansas, operation, excluding, inter alia, head drivers Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Petitioner filed with the Nation- al Labor Relations Board a timely request for review of the Regional Director's Decision on the ground that he erred in concluding that the head drivers were supervisors as defined in the Act. By telegraphic order dated May 23, 1968, the Board granted the request for review and stayed the election pending decision on review Thereafter, the Petitioner filed a brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the entire record in this case with respect to the issues under review, including the briefs, and makes the following findings- The Petitioner contends that the record does not support the Regional Director's finding that head drivers are supervisors as defined in the Act. We find merit in this contention. The Employer, an ICC certified carrier of frozen commodities, is headquartered at Elm Springs, Arkan- sas. It has about 1 10 tractors and refrigerated trailers. About 80 of the trucks are used for coast-to-coast hauls and are driven by two-man teams. About 30, generally the older trucks, are used on short hauls and are driven by single operators. The long hauls are of 12 to 23 day's duration. The Employer designates one of the men on the two-man teams as head driver or first driver, the other as assistant or second driver. The head driver, in addition to dividing the driving time with his assistant, has the responsibility for picking up the trip instructions from the dispatcher, contacting his assistant, getting the truck loaded, checking temperature of the load to ensure against spoilage in transit, arranging a depar- ture time, and on arrival at the destination, getting the truck unloaded and calling in for the next dispatch. He is given enough money in $100 checks to cover trip expenses, including the cost of unloading the truck, and is responsible for making disburse- ments as needed. In practice, he gives his assistant enough money to cover expenses which are likely to arise while he is operating the truck At the end of the trip, the head driver returns to the Employer the unused portion of the trip money. Each driver operates the truck in conformity with ICC rules and regulations and maintains the ICC log book while on driving duty. At the destination, the driver then on duty has the option of unloading the truck for the going rate at that location or hiring a "lumper" to unload in his place. All drivers are under the supervision of the director of operations and the dispatcher on duty.' There is a progression from second driver to single operator or head driver. The starting rate for second drivers is 3 cents per mile (whether he or the first driver is at the wheel) and he receives an automatic increase of 1/4 cents at 6-month intervals until he reaches the top rate of 31/a cents per mile.' The head driver's starting rate is 3 3/4 cents per mile and he receives automatic annual increments of 1/4 cents until he reaches his top rate of 41/4 cents per mile. The single operators receive 6 cents per mile for trips of more than 700 miles, and 71/2 cents per mile for trips of 700 miles or less. All drivers receive a $6 per day subsistence allowance. First drivers receive greater vacation benefits than second drivers. A hospital plan, at the drivers' expense, is available to all drivers. Through the years the Employer has had to hire additional drivers to meet its expanding business needs. Hiring is done by the director of operations. About 30-35 percent of new hires are walk-in applicants; the rest are recommended by head drivers, usually in recruitment of their own assistants. The Employer solicits its head drivers to recruit their own assistants and, indeed, follows the policy of permit- ting its head drivers to select an assistant from those available on the basis of compatibility.' The only apparent requirements for employment as a driver are 1 The parties agreed to exclude dispatchers as supervisors 3 Likewise , if the Employer acquires a new truck and has need of a 2 His first increase may be accelerated if the head driver so new team to operate it, a head driver has on occasion recommended his recommends The basis for his decision is not clearly stated in the assistant for promotion to head driver on the basis of his ability to get record However, it appears to be related to the head driver's decision , along with others and his willingness to assume responsibilities as discussed below, as to whether the man is compatible and will be kept as his assistant. 173 NLRB No. 77 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD possession of the necessary operator's permit and an ICC physical examination certificate. Those appli- cants whose medical certificate has expired are given a physical examination at the Employer's expense. The drivers also complete a formal employment applica- tion form, sometimes after they have begun their employment. If a head driver concludes that his assistant is incompatible, under the Employer's policy, he is reassigned to another head driver or, if his driving competence is established, he may be assigned as a single operator for short hauls.' If it becomes evident to a head driver after teaming with a new assistant that he does not meet the ICC standards for safe driving, the head driver may terminate him or recommend that he be terminated.' For example, a head driver has recommended termination of an assistant who was unable to read and understand road signs or instructions. Two occasions were cited when head drivers had to terminate their assistants while on trips because of drunkenness. It appears, however, that actions taken by head drivers affecting the status of their assistants are subject to the approval of the director of operations. In most instances when prob- lems have arisen on trips, the director of operations or the dispatcher is called by phone either by the head driver or the assistant driver. Despite the fact that there is a progression from assistant to head driver, based in part on length of service with the Employer, the record indicates that many of the second drivers are equal in driving skill to the head drivers. Furthermore, although, as stated, the head driver is primarily responsible for the equipment and load, the assistant shares much of this responsibility, as evidenced by the fact that the team divides the driving time and the responsibilities incident thereto, and that the assistant must be prepared to be in full charge in case the driver becomes incapacitated.' Upon the foregoing, we conclude that the part played by head drivers in the recruitment and selection of their own assistants does not constitute 4 Also, if an assistant institutes a complaint about his assignment to a particular head driver, the director of operations discusses the matter with the head driver in question and a reassignment may result 5 Also, if a head driver became ill and unable to continue his driving duties, the assistant would so inform the dispatcher and presumably would take over the head driver 's responsibilities 6 We note that, from time to time , the assistants may, if they wish, make a short haul as a single operator , and at such times they assume all responsibilities for the equipment and load 7 See Scott Paper Company, 171 NLRB No 117, and Great Northern Paper Company, 171 NLRB No 120 authority, in the interest of the Employer, to hire or transfer employees or to recommend the same. We are persuaded that the role they play in such matters is, under the Employer's policy, principally in their own interest to ensure a harmonious relationship between themselves and their assistants during the lengthy periods when they will be alone on the truck and away from their homes and friends.7 Nor do we believe that the actions of head drivers in recommend- ing acceleration of an automatic rate increase for their assistants or in occasionally recommending their assistants for head driver positions as they become available, involve the degree of independent judgment necessary to constitute indicia of supervisory author- ity within the Act's definition. To the contrary, we find that such recommendations are rather in the nature of factual assessments of their assistants' readiness for the next step in the normal progression of the Employer's drivers. We further find that the instances shown in which head drivers, with the approval of the Employer, have terminated their assistants, confined as they are to serious infractions of safety rules, such as drunkenness rendering the assistants incapable of continuing their driving duties, do not establish more than a sporadic exercise of authority to discharge. Finally, the responsibilities given to the head drivers, in our opinion, cast them in the role of leadmen for the two-man driver teams and do not involve responsible direction of the assistants.' In the circumstances, including the fact that each has but one assistant who shares the driving function with him, we conclude that the head drivers are not supervisors as defined in the Act. Therefore, contrary to the Regional Director's finding, we shall include them in the unit. Accordingly, the case is remanded to the Regional Director for the purpose of conducting an election pursuant to his Decision and Direction of Election, as modified herein, except that the eligibility payroll period therefor shall be that immediately preceding the date below.' 8 See Atlanta Coca-Cola Bottling Company, 83 NLRB 187, Wells Dairies Cooperative, 109 NLRB 1450, Southern Illinois Sand Co., Inc, 137 NLRB 1490 9 A corrected election eligibility list, containing the names and addresses of all the eligible voters, must be filed with the Regional Director for Region 26 within 7 days after the date of this Decision on Review. The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed . Excelsior Underwear Inc., 156 NLRB 1236