Spector Freight System, Inc.

SPECTOR FREIGHT SYSTEM, INC. 551 Spector Freight System, Inc. and Dennis E. Utegg. Case 3-CA-5590 February 12, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND KENNEDY On July 31, 1974, Administrative Law Judge Elbert D. Gadsden issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. The complaint alleged that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Dennis Utegg, Earl Sanford, and Ronald McGinnis, the dispatchers at its Ripley, New York, freight relay station, and by refusing to reinstate Sanford and Utegg, and violated Section 8(a)(1) by unlawfully interrogating Sanford. Respondent's answer denied the commission of any unfair labor practices and also denied that the dispatchers were employees under the Act. The Administrative Law Judge found that the dispatchers were employees and concluded that Respondent had violated the Act as alleged. Respondent excepted both to the finding that the dispatchers were employees and to the conclusions regarding its violation of the Act. We agree with the Administrative Law Judge's finding that Respondent did engage in the acts alleged in the complaint, and that it did so to inhibit the dispatchers' union activities. For the reasons set forth below, as well as those contained in the Administrative Law Judge's Decision, we also agree that the dispatchers were not supervisors. As noted by the Administrative Law Judge, Respondent's Ripley, New York, station functioned I Respondent has requested oral argument The request is hereby denied, as the record and Respondent's brief adequately present the issues and Respondent's position 2 Depending on the time of day, the routing sequence for 25 percent to 70 percent of the trailers is determined by instructions from Northfield The rules governing the remaining trailers are that from Monday through Thursday trailers containing freight for many customers -"big bill loads"- are to be moved first, then trailers containing perishable freight or those in the station more than 24 hours, and finally "small bill loads " On Fridays through Sundays, small bill loads are moved first . The dispatcher may vary the normal sequence for moving trailers where necessary to provide work for the dock crew at a particular terminal or to maintain balance in the number of trailers arriving from and departing to a particular terminal 216 NLRB No. 89 exclusively as an interchange point for trailers transported by Respondent's drivers from its termi- nals located in Columbus, Ohio; Northfield, Ohio; Springfield, Massachusetts; and Albany, New York. The Northfield terminal, also referred to as Linehaul, coordinates Respondent's entire freight operations by means of a computerized information-gathering system set up in 1972. The Ripley dispatchers had a teletype connection with the Northfield computer, and also reported information to and received instructions from Northfield by telephone regarding the movement of freight. The total employee complement at the Ripley station consisted of the three dispatchers, seven mechanics, and Fred Henning, the station manager and an admitted supervisor. The dispatchers and mechanics all worked 8-hour shifts, 6 days a week. Henning filled in for the dispatchers during the one shift a week each was absent, and also worked three additional daytime shifts performing administrative tasks connected with the station's operation. The dispatchers' principal duty was to route trailers arriving from the East to one of the two western terminals, and vice versa. While they had some leeway in determining the sequence in which to send trailers on to the appropriate terminal,2 they had no significant discretion in the assignment of drivers to take them. The sequence in which they dispatched drivers was controlled by collective-bargaining agree- ments covering them, and the fact that the normal destination of drivers leaving Ripley was their home terminal.3 The only significant variation from this routine was that drivers from the Columbus terminal might be dispatched to the Northfield terminal, from which they would be sent on to Columbus.4 Thus, in contrast with the choice of runs upon which dispatchers at a terminal ordinarily have to decide, the dispatchers at the Ripley relay station had few such decisions to make. Cases urged by the Respondent as determinative of the supervisory status of dispatchers-Spector Freight System, Inc., 141 NLRB 1110 (1963); Dixie Ohio Express, Inc., 123 NLRB 1936 (1959); and Overnite Transportation Company, 128 NLRB 723 (1960)-all involve large city terminals with a complement of drivers assigned to the terminal: Chicago, Cincinnati, 3 Other than in situations where Northfield directed otherwise, all Northfield and Albany dnvers were dispatched directly back to their home terminal, and in at least 95 percent of the cases the same was true of Springfield drivers. Henning testified that in rare instances Springfield dnvers might be returned to their home terminal through Albany, a routing that might be required if the only trailers available were destined for Albany but Albany had trailers destined foe Springfield Rather than sending a driver back to Springfield without a load, the dispatcher would route him to Springfield through Albany. 4 The principal factors resulting in the dispatch of Columbus drivers to Northfield would be that they lacked sufficient driving time under Department of Transportation regulations to make the 6-hour return trip to Columbus, or that there were not trailers available destined for Columbus. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Atlanta, respectively. We note, in addition, that in Overnite the Board included in the bargaining unit sought those dispatchers who relayed instructions by radio to drivers working in fixed areas and who did not appear to have or exercise supervisory authority. On cross-examination, Station Manager Henning testified that "the dispatcher assigns load by priority, common knowledge, power, or Linehaul." "Lin- ehaul" is explained partly by General Counsel's Exhibits 7 and 8, two memos to "all supervisors" from Henning in March 1973. The memo dated March 6 is entitled "New Linehaul Operation at Ripley." This assures the dispatchers (called "sup- ervisors") that their workload is being lightened rather than their positions being eliminated by the new dispatching procedure for setups (two or more trailers) coming from the East and from the West; "this new system will do this and at the same time control the operation more successfully." Dispatch- ers are further advised "to notify Linehaul for instructions" in the event of problems and to enter in the logbook the person contacted at Linehaul. The March 26 memo cautions the dispatchers on certain card entries and the use of the appropriate slot on the trailer rack, and then states: Work very closely with L.H., Acl and Cbs road dispatch on any problems that may arise in the east, west operation, this means the Supervisors at Acl and Cbs, not the OTR Dispatchers. [Acl and Cbs may mean Akron-Cleveland and Columbus; presumably OTR is over-the-road.] With these few rules we are going to find out where the lag is and any other problem which is holding up the freight and bringing our Service down. Also I want to mention that when the V.P. (Mr. Z) or the Manager (Mr. Minetti) of Linehaul calls and finds out you have a problem, and if they ask if you have discussed this with all 3, (L.H., Acl, & Cbs.) and you have to answer, no I haven't, I suggest you have a very good reason for giving them this type of answer. Henning testified that if a dispatcher had an option of sending a Syracuse load by an Albany driver or a Springfield, Massachusetts, driver this would be "discussed mutually" with Linehaul. Linehaul would also be consulted on any exception to a union rule concerning dispatch.5 Linehaul receives a copy, as does the station manager and the home terminal, of any dispatcher report on why a driver was not sent out. S Respondent put on testimony that Linehaul exists only as an information-gathering device, but in its bnef admits that 20 percent of Linehaul transmissions are "strong statements of advice which are Priority: Among priority customers Linehaul estab- lishes the order of priority, according to Henning's testimony on cross-examination. Common knowledge: Henning gave this example: reassignment when a load ready to go develops a flat tire at a time when another load is also ready. According to his testimony, about 75 percent of dispatching at Ripley is based on common knowl- edge. Power: Henning explained power as the immediate availability of a driver or tractor which, if assignment were delayed, might later be unavailable. The essential simplicity of the Ripley dispatchers' duties involving the assignment of drivers is most strongly indicated by the fact that the mechanics, who had no training as dispatchers, filled in for them for up to an hour during their lunchbreaks, and have dispatched for as long as 3 hours when the dispatcher on duty became ill. Since virtually all drivers except those from Columbus were routinely dispatched back to their home terminals, there was only one alterna- tive rug for any driver, and the order of dispatch was established by contract, we conclude that the Ripley dispatchers did not exercise independent judgment in assigning runs to drivers. The evidence bearing on the alleged disciplinary authority of the dispatchers is that if a driver failed to appear on time for a run or if, according to Henning, he appeared physically incapable of taking a run because of inebriation, for example, the dispatcher was required to drop him to the bottom of the board-place him last in sequence of those awaiting dispatch-and to send a factual report regarding the incident to his home terminal. The dispatchers were not instructed to make recommendations as to discipline in the report, and there is no evidence that any of the dispatchers involved herein made such recommehdations.6 Nor is there any evidence that dispatchers were authorized to suspend the driver involved until the driver's superiors had acted on the dispatcher's report. The dispatcher's function in dropping to the bottom of the board drivers who were tardy in appearing to take out a run was mandated by the collective-bargaining agreement covering the drivers and was therefore routinely performed; the dispatch- er had no discretion in the matter. The alleged duty to examine the physical fitness of drivers to take out a run and drop them to the bottom of the board if they appeared unfit would require no more than the exercise of commonsense. This is especially so because the incapacitating condition would have to be immediately obvious and thus fairly severe for the tantamount to orders " 6 The wnting of such a report is not by itself indicative of supervisory authority. Auto Transports, Inc., 100 NLRB 272, 274 (1952). SPECTOR FREIGHT SYSTEM, INC. 553 dispatcher to be able to observe it. The dispatchers did not subject the departing drivers to any sort of examination that might reveal a less than obvious condition. They had no authority to require a sobriety test, as did the linehaul dispatchers at a Milwaukee terminal in Consolidated Freightways Corporation of Delaware, 196 NLRB 807, 808 (1972), cited by the dissent. It can hardly be said that the determination to delay assigning an obviously incapacitated driver to a truck pulling loads exceed- ing 40,000 pounds required the exercise of independ- ent judgment. Finally, the dispatcher's limited authority to delay a driver's departure was not disciplinary, since it did not reduce the driver's earning ability more than momentarily. Drivers did not begin to accrue driving time until they left the station, and thus any driver who lost his place on the board could still drive the maximum time allotted under Department of Transportation regulations once he was assigned a run. The conclusion that dispatchers did not possess disciplinary authority is also strongly indicated by the fact that there is no evidence that they either were instructed to exercise or did exercise responsibility for determining the physical fitness of drivers for driving. Henning alone testified regarding the exist- ence of such responsibility, but his testimony does not establish whether it stemmed from anything more than his expectation that the dispatchers would use some commonsense in a situation where a driver was obviously incapacitated. That the asserted responsibility was founded only on Henning's expec- tation is suggested by the lack of any evidence that the dispatchers were instructed to enforce other regulations that Henning asserted they were respon- sible for enforcing. For example, while he testified that dispatchers were to enforce the DOT regulation that a driver not be dispatched within 4 hours of consuming an alcoholic beverage, he admitted that they were not given copies of DOT regulations applicable to the drivers or told to memorize them. As regards the DOT regulations limiting the number of hours drivers were permitted to drive daily, Dennis Utegg, one of the dispatchers, testified without contradiction that he made no attempt to enforce that regulation and was never instructed to do otherwise. Yet assigning a run to a driver exhausted by excessive driving hours could be just as dangerous as assigning one to a driver who had been drinking. We are therefore not convinced that the r City Yellow Cab Company, and G.I Cab Company, 144 NLRB 994, 996 (1963), enfd. 344 F.2d 575, 580-581 (C A. 6, 1965); see also Capital Transit Company, 98 NLRB 141, 144 (1952), 100 NLRB 1173 (1952), 105 NLRB 582 (1953), remanded 221 F.2d 864 (C.A.D.C., 1955), decision on remand 114 NLRB 617 (1955), enfd. 38 LRRM 2681 (C A.D.C, 1956). The dispatchers' lack of authority to suspend drivers distinguishes this case from Eastern Greyhound Lines v. N.L R.B., 337 F.2d 84 (C.A. 6, 1964), and Pacific dispatchers exercised the responsibility Henning attributed to them of ascertaining the physical fitness of the drivers to drive, beyond the exercise of commonsense based upon outward appearance. In view of the foregoing, we conclude that the dispatch- ers did not possess authority to impose or effectively recommend the imposition of discipline.? Besides dispatching drivers and assigning them loads, the only significant remaining function of the dispatchers with respect to drivers is that they were authorized to grant drivers "downtime" or "trip delay" pay when they were unable to leave the Ripley station because of a mechanical problem with the tractor or trailer assigned to them. Again, there is no evidence that this function was other than routine. The granting of downtime was mandatory where mechanical problems resulted in the delay of a driver's departure, and Utegg testified that in his 5 years with Respondent he had never disapproved a driver's request for downtime, nor had it happened that a driver had refused to leave the terminal once a mechanic had checked and repaired his vehicle. This establishes that the existence of a mechanical problem was easily determined, was never the subject of dispute, and always resulted in the payment of trip delay money where it in fact resulted in such a delay. We therefore conclude that the granting of downtime did not require the exercise of independent judgment and thus was not indicative of supervisory authority. As more fully set forth in the Administrative Law Judge's Decision, the dispatchers' duties with respect to the mechanics were to instruct them as to which trailers to hook to or drop from a given tractor, to inform them as to the existence of any minor mechanical defects of a vehicle,8 though only defects which the mechanics were responsible for repairing, to determine the times at which mechanics were to do hook and drop or repair work, to call in a substitute for a sick mechanic,9 and to "O.K." sick leave. In addition, Utegg was authorized to sign mechanics' timecards in the event of Henning's unavailability. There is no evidence that the dispatchers issued other than routine instructions to the mechanics. In contrast, Henning issued a variety of memoranda to them regarding the timeliness of their work, the care with which they should perform it, and the location where they should park tractors, and Henning alone handles disciplinary or other personnel matters involving them. Most of the mechanics had been Intermountain Express Company v. N L R B, 412 F.2d I (C.A. 10, 1969). 8 This information is reported by the drivers on a "Driver's Vehicle Condition Report," or DVCR, which they turn in upon arrival at the station. 9 As noted by the Administrative Law Judge , the dispatchers had no discretion in selecting substitutes for sick mechanics. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed by Respondent for considerable periods of time, and the routine nature of their work was such that, as Manager Henning admitted, they normally had no conversation with the dispatchers. The mechanics and dispatchers both work a 48-hour week, but, although the mechanics are only semi- skilled, they earned considerably more than the dispatchers-$339 versus $22910 per week. Dispatch- ers also receive certain fringe benefits applicable to Respondent's managerial personnel, such as sick leave, vacation, incentive, pension and insurance plans, but there is no evidence that the dollar value of those benefits exceeded the value of those applicable to the mechanics or compensated to any significant extent for the differential in gross pay between the mechanics and dispatchers. The fact that dispatchers might "O.K." mechanics' sick leave is not itself an indicium of supervisory authority, since the dispatchers evidently accepted all requests at face value 11 and there is no evidence that they had the discretion to reject such requests. As regards Utegg's authority to initial timecards, author- ity which he exercised only as a substitute for Henning, it is well settled that the sporadic substitu- tion for a supervisor does not render the substitute a supervisor.12 The only remaining factor 13 bearing on the dispatchers' alleged supervisory status is that, as Respondent points out, they were the only persons capable of representing management during 71 percent of the time the Ripley station was in operation. However, we do not regard this factor as significant in the circumstances of this case, princi- pally because the essentially routine nature of the station's operations and the limited number of employees there at any given time-two mechanics and a dispatcher and no driver complement-ren- dered the presence of supervisors around the clock unnecessary. Nor did the dispatchers require supervi- sory authority in order to handle personnel matters 10 The Administrative Law Judge inadvertently referred to the dispatch- ers' earnings as $2.29 an hour, we hereby correct the error 1I Utegg testified that if a mechanic called in sick and said he was going to take the night off he, Utegg, would "0 K." it and call certain laid-off mechanics in order of seniority to substitute Sanford likewise testified that if a mechanic became ill during a shift he would let him go home and call a substitute from among the laid-off mechanics in order of seniority. Neither indicated that they could refuse to let a sick employee go home or to grant sick leave Routine approval of sick leave is not a supervisory function Auto Transports, Inc, supra at 275 & 12 Directors Guild of America, Inc. (Association of Motion Picture Television Producers, Inc), 198 NLRB 707 (1972) 13 We are aware that dispatchers have been assigned the title "superv- isor," but this factor is of significance only where other factors also tend to establish that the dispatchers possess supervisory authority 11 Drivers from the West were normally dispatched within 6 minutes of arriving at the station Those from the East left the station immediately after arriving and went to a nearby motel to rest. After a minimum of 8 hours' rest they were assigned a new tractor-trailer to return East Their only subsequent contact with the dispatcher was to pick up certain papers, such as bills of lading Thus, they had only momentary contact with the since all personnel matters involving the mechanics were the sole responsibility of Henning, all drivers appearing at the station were responsible to supervi- sory officials at their home terminal, and were at the station for very short periods,14 and the record indicates that any problem that arose with the drivers, such as when one became ill, was resolved by the dispatcher's calling Northfield for instructions.15 Likewise, problems the drivers encountered after leaving Ripley, mechanical breakdowns, for example, were resolved by their calling Northfield. A further factor against our assigning controlling weight to the frequent absence of supervisory personnel at the station is that finding the dispatchers to be supervi- sors would result in an extremely low supervisor- employee ratio at the station, approximately one to two, when, as indicated above, the exigencies of the station's operations did not require such a low ratio. We recognize, as Respondent points out, that in a number of cases we have found dispatchers to be supervisors because the contrary finding would result in a lack of supervisory personnel for long periods at the location involved.16 But those cases involved truck terminals whose operations, unlike those of the Ripley freight relay station, were sufficiently complex to require the continuous presence of supervisory personnel. And finding the dispatchers to be supervi- sors did not result in the establishment of a supervisor-employee ratio disproportionate to the needs of the operation. The fact that we have found Respondent's dispatchers at other locations to be supervisors is not material, since in each case there have been factors not present here which warranted that finding.17 As we have examined each of the functions performed by the Ripley dispatchers and the authority vested in them and found no evidence of supervisory authority, we conclude that the dispatcher. i5 Utegg testified that he could not grant sick leave to a driver who asserted he was too sick to drive, but would have to call Northfield for instructions. 16 E.g , Pennsylvania Truck Lines, Inc, 199 NLRB 641, 642 (1972); Consolidated Freightways Corporation of Delaware, 196 NLRB 807, 809 (1972); Dixie Ohio Express, Inc, 123 NLRB 1936, 1937 (1959). 17 For example, in Spector Freight System, Inc., 141 NLRB 1110 (1963), the dispatchers had to select from a wide variety of possible assignments for drivers, permitted drivers to hire casual labor from off the street, could discipline drivers by limiting their worktime, and could settle drivers' grievances; none of which is true in this case. The six dispatchers there involved directed a complement of 150 city drivers assigned to the Chicago terminal, as to whom the Administrative Law Judge made a broad supervisory finding including hire, transfer, layoff, recall, and discharge The quotation in the dissent here was appended as a footnote to that finding In another case, 26-RC-3445, which is unreported, the dispatchers represented Respondent in the first step of the grievance procedure, and reprimanded drivers for violation of work rules , factors which also are not present here . Other unreported decisions involving Respondent are similarly distinguishable. All involved terminals, not relay stations SPECTOR FREIGHT SYSTEM, INC. dispatchers are not supervisors within the meaning of the Act.18 Respondent also contends that we are required by the Supreme Court's decision in N.LR.B. v. Bell Aerospace Company, Division of Textron, Inc., 416 U.S. 267 (1974), to find that the Ripley dispatchers are managerial officials and thus not subject to the Act's protection. We disagree. The Court itself cited with approval 19 our observation in Eastern Camera and Photo Corp.20 that "the determination of an employee's `managerial' status depends upon the extent of his discretion, although even the authority to exercise considerable discretion does not render an employee managerial where his decision must conform to the employer's established policy." Since the record abundantly demonstrates that every action of the dispatchers must conform to Respond- ent's established policies, and since we have found that they exercise only the most limited discretion, the necessary conclusion is that the dispatchers are not managerial officials . Our dissenting colleague places much emphasis on their "puffing" statements made to the station manager concerning their own importance when complaining about a new work schedule. Viewed in the total context of this record, we would not find such statements to be evidence of managerial authority, or of supervisory status. In view of our conclusion that the Ripley dispatch- ers are neither supervisors nor managerial officials, we find no merit in Respondent's exceptions to the Administrative Law Judge's Decision. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Spector Freight System, Inc., Ripley, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. is We would distinguish the recent decision of the First Circuit Court of Appeals in N.L.R.B. v. Metropolitan Petroleum Co., 87 LRRM 3139 (1974), where the court found that the Board's finding of employee status for city fuel oil dispatchers was not based on substantial evidence, only the company's operation manager having testified , and noted the lack of evidence that these dispatchers were required to consult with their supervisor in extraordinary situations. By contrast, here two of the three dispatchers testified , as well as the relay station manager and the company industrial and labor relations manager, and the record has ample evidence of necessity for dispatchers consulting with a superior or with Linehaul. Our dissenting colleague also cites Quality Transport Inc., 211 NLRB 198 (1974), again a terminal with a large complement of drivers who, on the basis of evidence presented, were actually controlled and disciplined by dispatchers. Missing are factors like the remote dispatch and information and supervisory direction which the Ripley relay dispatchers are obligated to use. Thus, the fact that Ripley dispatchers work many hours in the absence of the station manager does not have the significance it frequently has in connection with terminals. Our colleague speaks of the Board's duty 555 MEMBER KENNEDY, dissenting: I dissent from my colleagues' conclusion that dispatchers Dennis E. Utegg, Earl W. Sanford, and Ronald McGinnis were not supervisors as defined in the Act. Since the three dispatchers were not "employees," their discharge did not violate Section 8(a)(3) and (1) of the Act. Respondent's contention that its dispatchers are supervisors was not conceived as an afterthought defense to the charge herein. Respondent has long adhered to the position that its dispatchers at all terminals, including the one at Ripley, New York, are statutory supervisors. On June 9, 1972, Station Manager Henning posted a notice to all employees designating the dispatchers and himself as "supervi- sors." Employees were instructed to bring their problems to the named supervisors for handling and decision.21 A dispatcher's authority to resolve a mechanic's or driver's problem is strong evidence of statutory supervisory status. It is significant that the Board and four Regional Directors have consistently agreed with Respondent that its dispatchers at other terminals are supervi- sors.22 In my view, the facts in the instant case compel the same result reached by the Board in the earlier cases involving this Respondent. The follow- ing observations of the Board with respect to Chicago dispatchers are applicable to the instant case:23 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 supervi- sor. 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 omissions which to apply the same standards to all cases, an obligation we readily acknowledge. What is difficult to fathom is his equation of the facts in all cases. 19 N.LR.B. v. Bell Aerospace Company, Division of Textron, Inc., at fn. 19. m 14O NLRB 569, 571 (1%3). 21 An employer's holding out an individual as a supervisor with instructions to take problems to him was held by the Board to establish supervisory status within the meaning of the Act . A.T.I. Warehouse, Inc., 169 NLRB 580 (1%8). See American Optical Company, 104 NLRB 263 (1953); Des Moines Foods, Inc., 129 NLRB 890 (1960). za Spector Freight System, Inc., 141 NLRB 1110 (Chicago, 1963); Spector Freight System, Inc., (Memphis, 1%9), Case 26-RC-5445; Spector Freight System, Inc. (St. Louis, 1970), Case 14-RC-6505; Spector Freight System, Inc. (Boston, 1971), Case 1-RC-11328; Spector Freight Systems, Inc (Dayton, 1974), Case 9-RC-10577. 23 141 NLRB at 1119, fn. 20. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 driver's eyesight, 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 do not agree with my colleagues that the facts in the instant case are sufficiently distinguishable from those at Respondent's other locations to justify a finding contrary to the uniform result reached by the Board and its four Regional Directors. Dennis Utegg, the Charging Party and principal witness for the General Counsel, acknowledged no less than three times during his testimony that "dispatchers controlled the Ripley operation," that the dispatchers "could make or break the Ripley operation" because "they control the efficiency of how that station operates."24 The Ripley station is open 24 hours each day and 7 days every week. Station Manager Henning works only six shifts of 8 hours per week. It is undisputed that the Ripley station operates at least 16 hours each day with a single dispatcher in sole charge. The station manager is absent from the station 71 percent of the time that it is in operation. It is totally unrealistic to conclude that the Ripley station is unsupervised during 16 of the 24 hours each day that the station is open. The courts and the Board have frequently relied upon the absence of other supervisors as a persuasive circum- stance in determining statutory supervisory status.25 In Consolidated Freightways Corporation of Delaware, 196 NLRB 807 (1972), we found line-haul dispatch- ers to be supervisors because of their "weekend responsibilities when they are the sole persons who are in charge of the terminal." It is the responsibility of the dispatcher "to match" the "tractors and trailers and drivers" to ensure the efficient movement of freight throughout the Re- spondent's entire system.26 In fulfilling his function, the dispatcher is influenced by a wide variety of factors and considerations. The choices and determi- nations he makes cannot be accurately characterized as "routine," "clerical," or "mechanical." Dispatch- ers consistently exercise true independent judgment in deciding how the Respondent's delivery capacity can best be utilized to provide the best service to customers at the lowest cost to Respondent. Dennis Utegg testified that he makes the decision as to the order of dispatch in 75 percent of the loads sent from Ripley during his shift. While extensive information is received on the IBM printout,27 Utegg conceded that Northfield made the decision only on priority freight as to which Respondent had made a firm commitment as to delivery date but that such priority freight constituted no more than 25 percent of the total dispatched from Ripley.28 In determining which drivers to assign to which loads and to schedule their departures, the dispatcher must weigh a wide variety of considerations. In matching up tractors, trailers, and drivers and timing their movement from the station, the dis- patcher must be mindful of the need to protect dock forces and city drivers at other terminals,29 the need to reduce costly "imbalances," 30 and the need to 24 For convenience , the reader's attention is directed to transcript pages 50, 93-94, and 145 25 In Pacific Intermountain Express Company v N L.R B, 412 F 2d 1 (1969), the Tenth Circuit denied enforcement of the Board's finding that line-haul dispatchers were employees (173 NLRB 470 ( 1968)) with the observation "that if the dispatchers are not supervisors, the terminal is operated many hours each day without the benefit of direct supervision This seems highly unlikely Furr's Inc v N L.R B., 381 F.2d 562, 566, fn 7 (10th Cir 1967) " Board cases in accord are Dixie Ohio Express, Inc, 123 NLRB 1936 (1959), Sehon Stevenson & Co, Inc, 150 NLRB 675 (1964), J. P Stevens and Co, Inc, 163 NLRB 217 at 225 (1967), McKinnon Services, Inc, 174 NLRB 1141 at 1143 (1969) 26 Respondent has 60 terminals , 22 special commodity terminals, and 4 relay stations, and operates in 28 States. 27 The Ripley terminal receives extensive information from the IBM printouts as well as telephonic reports which update every few hours the traffic picture throughout Respondent's entire operation. The Ripley dispatchers are required to monitor the IBM reports so that their dispatchers are based on the latest data The Ripley dispatcher receives on the IBM machine "estimated time of arrival" (E.T.A ) messages which are sent by the terminals when drivers depart Similarly, "load on hand" reports update information from other terminals as to freight on hand, its destination, the number of tractors available , and the home terminals of drivers in layoff status at various terminals throughout the system . Thus, if the Northfield, Ohio, terminal has 10 Chicago-based drivers getting their rest, the Ripley dispatcher would be aware that loads must be sent to Northfield if Respondent is to avoid paying delay time to the Chicago drivers. 28 Respondent's evidence is that 80 percent of the data sent from Northfield is informational so that dispatchers can act on timely information. 29 A trailer containing shipments to many customers requires extensive dock work before city drivers leave their terminal to deliver the freight If the trailer arrives at a time when it cannot be unloaded before the departure of city delivery drivers, there is no work for either the dockmen or city drivers and they are sent home. 19 Imbalance refers to the situation in which more freight is being sent to a terminal or area than is being sent from it. Imbalances cannot be avoided, but they should be minimized so that the carrier is not required to return drivers to home terminals with trailers empty SPECTOR FREIGHT SYSTEM, INC. 557 return drivers and equipment to home terminals.31 General Counsel's Exhibit 8 is a notice to the Ripley dispatchers, dated March 6, 1973, in which dispatch- ers were told: Move all of the LTL that is possible and as fast as possible, (also protect your truckload expedites such as Ford, Polaroid and etc.) use your head as to whether a load can make delivery, or if the dock needs the work, this has to be considered on every load of freight that you move. The dispatcher must be aware of the provisions of the collective-bargaining agreements which impose penalty pay to drivers for failure to dispatch in accordance with those contracts. He must also consider Department of Transportation regulations which limit driving and duty time of drivers. Plainly, the Administrative Law Judge erred in concluding that the dispatchers carry out "essentially ministerial duties." The dispatcher must choose the chronological order or priority as to which loads are to be dispatched and he has the authority and responsibili- ty to make sure that his decisions in this regard are implemented. It is uncontradicted that the dispatcher has the responsibility to determine if drivers are unfit by reason of intoxication or otherwise to perform their duties. Courts have consistently held that such authority requires the use of independent judgment and renders the dispatchers to be supervisors within the meaning of the Act. See Pacific Intermountain Express Company v. N. L. R. B., 412 F.2d 1 (1969), in which the Tenth Circuit denied enforcement of a Board's finding that line-haul dispatchers were employees.32 The court stated: Although it does not appear that the dispatchers play any part in determining the ultimate disci- pline to be assessed against the drivers, "it can scarcely be denied that sending a man home is discipline or that it does require the use of independent judgment." Warner Company v. N. L. R. B., 365 F.2d 435, 439 (3d Cir. 1966). "[1 It is the dispatcher who must, in his independent judgment, make the initial on-the-spot decision that the circumstances require taking a driver off. . . . While the dispatcher's action is responsi- ble for suspending the driver only until higher authority reviews its propriety, this does not make the driver any the less suspended by the dispatch- er's action." Eastern Greyhound Lines v. N.L.R.B., 337 F.2d 84, 88 (6th Cir. 1964). 31 Prompt return of drivels, tractors, and trailers to their home terminal ensures efficient utilization of the equipment and reduces travel expenses for drivers and avoids penalty pay provided under various collective-bargaining In Eastern Greyhound Lines (A Division of the Greyhound Corporation) v. N. L. R. B., 337 F.2d 84 (C.A. 6, 1964), and in N.L.R.B. v. Gray Line Tours, Inc., 461 F.2d 763 (C.A. 9, 1972), the courts held that dispatchers' authority to order a driver off a vehicle for intoxication or misconduct made them supervi- sors. In the Eastern Greyhound Lines case, the court expressly rejected the Board's characterization of the authority to remove a driver from a vehicle: ... as a "simple ministerial act, capable of performance by any rank and file employee." We are unable to accept this ipse dixit as a substitute for substantial evidence. Neither can we accept the easy assertion that "It lacks any element of responsible direction of employees, and is in no way indicative of supervisory status." [337 F.2d at 88.] Charging Party Utegg testified that dispatchers order the drivers to drive and refusal of such an order would be tantamount to the driver quitting his job. Utegg acknowledged that drivers simply do not refuse orders issued by dispatchers. Utegg's testimo- ny on this point is in accord with the observation of the Trial Examiner in the earlier Spector Freight case, 141 NLRB 1110 at 1118, with respect to the authority of the dispatcher to discharge for refusing to take out an assigned load. The Trial Examiner stated (fn. 16), "This was pursuant to a custom well-known in the transportation industry and recognized by Respond- ent [Spector] 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." That Respondent continues to adhere to this industrywide policy was recently recognized by the United States District Court for the Western District of New York in which the Ripley terminal is located. See, Steinman v. Spector Freight System, Inc. (not reported officially), 83 LRRM 2281 (1972), affd. 476 F.2d 437 (C.A. 2, 1973), where the court discussed the Respondent's "work now, grieve later" rule which obligates a driver dissatisfied with a dispatch order to utilize the grievance procedure "and that refusal to pull a load could cost him his job." In my view, the conclusion is inescapable that a dispatcher is a statutory supervisor when a driver's failure to follow an order to drive subjects the driver to discharge. The record contains persuasive evidence that the dispatchers exercise independent judgment in assign- ing work to employees, granting time off to employ- agreements if the driver is delayed in returning to his home terminal. 32 173 NLRB 470. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees, and granting or denying employee pay claims. Dispatchers tell the mechanics what work to do and when to do it. If trailer and tractor are both available, they may be hooked up long before they are to be dispatched. It is clear that the time of the arrival of a trailer does not determine when the mechanic will connect the trailer to the tractor. This is determined solely by the dispatcher preparing a "hook and drop slip." Dispatchers authorize me- chanics to take time off without clearing with anyone. Based on his evaluation of the anticipated workload, the dispatcher makes the decision as to whether a replacement for the absent mechanic is necessary. Utegg admitted that he has decided not to call for a replacement for an absent mechanic. Admittedly, the dispatchers do not issue instruc- tions to mechanics as to how to change a tire or perform other mechanical repairs. But it is the dispatcher who makes the judgmental decision as to whether a mechanic repairs defective equipment or whether the mechanic hooks trailers to tractors. Similarly, if a driver and a mechanic disagree as to whether a mechanical repair is necessary, it is the dispatcher who decides if repairs are to be made before the load leaves the terminal. If the dispatcher decides repairs are necessary, he will order the mechanic to make the repair. Mechanics obey orders of dispatchers. If there is no other load to which the driver can be reassigned , the Respondent will incur trip delay penalty pay. Of course, if the dispatcher decides repair of the equipment is unnecessary, the driver is obliged to drive. Finally, Utegg acknowledged that the Ripley dispatchers have authority to grant downtime. Indeed, drivers are not paid delay time in the absence of approval by the dispatcher. Dispatchers are evaluated from an efficiency standpoint on the basis of how much trip delay pay is incurred during their shift.33 It must also be remembered that the dispatch of westbound and eastbound drivers is governed by different, complicated collective-bar- gaining agreement provisions. Failure of the Ripley dispatchers to comply with those contracts obligates the Respondent to pay runaround claims. I note that on December 11, 1974, the First Circuit denied enforcement of the Board's decision in Metropolitan Petroleum Company of Massachusetts, 209 NLRB 837 (1974), N.L.R.B. v. Metropolitan Petroleum Company of Massachusetts, 87 LRRM 3139. The following observations of the First Circuit are equally applicable to the instant case: Cavanaugh's testimony indicates that the dis- patchers' functions, far from being routine, 33 Sometimes systemwide efficiency may require a dispatcher to deliberately delay the departure in order to get freight dispatched to a included the maneuvering of drivers and depart- ing from routine operations when necessary. Other courts have considered such judgmental direction of men in the field to require reversal of a Board's finding that dispatchers were not supervisors, even when other evidence seemed to indicate that the jobs involved no supervisory role. See, e.g., Arizona Pub. Serv. Co. v. N. L. R. B. 453 F.2d 228 (9th Cir. 1971). The Board's position is that the dispatchers' functions "amount to no more than the clerical transmission of information, such as would be performed by a switchboard operator." Particular reliance is placed on N.L.R.B. v. City Yellow Cab Co., 344 F.2d 575 (6th Cir. 1965). In that case the court upheld a Board determination that switch- board operators for a taxi company constituted employees rather than supervisors, This case differs from City Yellow Cab in a number of respects, however. In City Yellow Cab the primary function of the switchboard operator was to receive telephone calls from customers for taxi service and to relay these requests to available cabdrivers. 344 F.2d at 579. Here the dispatchers must do considerably more than relay phone messages. They must plan the day's deliveries in the most economical fashion, bearing in mind the customer requirements, the driver requirements, the available delivery equipment, the time re- quired for delivery, and the experience of the driver. The general company guideline is that the customer must get his oil on time, but within that guideline the dispatcher exercised a large measure of independent discretion. [87 LRRM at 3141.] I think my colleagues' attempt to distinguish the instant case from the recent adverse decision in the Metropolitan Petroleum Co. case is totally unpersua- sive. Furthermore, the instant case cannot be distinguished from the Board's recent decision in Quality Transport Inc., 211 NLRB 198 (1974). There, the Board adopted without discussion the conclusion of the Administrative Law Judge that the dispatchers were supervisors. The dispatchers ran the operation of the company during the absence of the terminal manager and shop foreman. The terminal operated 24 hours a day and the terminal manager and shop foreman were present at the terminal only from 8 a.m. to 5 p.m. The Administrative Law Judge concluded: The above facts clearly show that the dispatch- ers including Bridges and DeVille exercised full authority over the terminal for approximately 16 particular terminal to protect that terminal's dock force. SPECTOR FREIGHT SYSTEM, INC. 559 of the 24 hours a day when Tapp and Lee were absent. They had no authority to hire or fire but they did have authority to use or not use drivers, to order mechanics to work on certain trucks, and under certain circumstances to give drivers time- off, and to assess points against them. In making these determinations which were not infrequent, the dispatchers used their independent judgment. Each dispatcher also used his independent judg- ment in assigning runs and in fili4g late reports. The record contains other evidence of the supervisory status of the dispatchers. In light, however, of N.L.R.B. v. Metropolitan Life Insur- ance Co., 405 F.2d 1169, it would only lengthen this decision unnecessarily to itemize them. Metropolitan and Board decisions hold that Section 2(11) of the Act speaks in the disjunctive; that to constitute a per$on a supervisor it is sufficient to show that the individual performs any one of the functions, or in the performance of his duties possesses one of the enumerated powers and responsibilities, set forth in that section. As set forth above, the record clearly shows such powers were within functions of Bridges and DeVille. Accordingly it is found that Bridges and DeVille at all times mentioned herein were supervisors within the meaning of Section 2(11) of the Act. [Footnotes omitted.] In my view, this Board is obliged to apply in the instant case the same standards used in determining the supervisory status of dispatchers in the Quality Transport Inc. case. We found Quality to be responsi- ble for antiunion conduct of its dispatchers because they were supervisors. We cannot now say in this case that prounion dispatchers performing the same duties are not supervisors. The courts have reminded us that we are obliged to apply the statute with an even hand. See Wilkinson Manufacturing Company v. N.L.R.B., 456 F.2d 298 (C.A. 8, 1972); Automation and Measurement Division, The Bendix Corporation v. N.L.R.B., 400 F.2d 141 (C.A. 6, 1968); Boaz Spinning Company, Inc. v. N. L. R. B., 439 F.2d 876 (C.A. 6, 1971); Cross Baking Company v. N. L. R. B., 453 F.2d 1346, fn. 2 (C.A. 1, 1971); Famet, Inc. v. N.L.R.B., 490 F.2d 293 (C.A. 9, 1973). The dispatchers responsibly direct the work of the drivers and mechanics and their duties require the exercise of independence of judgment. They are clearly supervisors. N.L.R.B. v. Big Three Welding Equipment Company, 359 F.2d 77, 80-81 (C.A. 5, 1966); Pacific Intermountain Express, Co. v. N.L.R.B., supra; Dixie Ohio Express, Inc., 123 NLRB 1936, 1937; Groendyke Transport, Inc., 171 NLRB 997, 998 (1968). In my view, it cannot be said that dispatchers perform routine, ministerial duties. They are vested with powers and responsibilities which require the exercise of independent judgment. They are supervi- sors within the meaning of the Act and clearly a part of the management team.34 I would dismiss the complaint in its entirety. 34 Since I find the dispatchers to be statutory supervisors, it is unnecessary for me to discuss Respondent's alternate contention that the dispatchers are managerial employees under the Supreme Court's decision in N.LR B v. Bell Aerospace Company, Division of Textron, Inc., 416 U S. 267 (1974). It cannot be doubted, however, that the dispatchers satisfy the Board's definition of managerial employees as those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer." DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon a charge of unfair labor practices filed on February 27, 1974, and amended on April 5, 1974, by Dennis E. Utegg, herein called the Charging Party, against Spector Freight System, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board issued a complaint against Respondent 'on April 9, 1974, alleging that Respondent had engaged in unfair labor practices in violation of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer denying that it interrogated its employees about their union desires and activity, or that it discharged and refused to rehire employees Ronald McGinnis and Earl W. Sanford because of their union activity, or that they engaged in any unlawful labor practices. A hearing in the above matter was held before me at Mayville, New York, on May 21 and 22, 1974. Briefs have been received from counsel for the Respondent and counsel for the General Counsel, respectively, and have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Missouri. At all times material herein, Respondent has maintained its principal place of business at 205 West Walker Drive in the city of Chicago, and State of Illinois, and has maintained facilities at various other locations throughout the United States, including one at Shortman Road in the town of Ripley and State of New York, herein called the Ripley facility. The Respondent is, and has been at all times material herein, continuously engaged at said facilities in the business of the interstate transportation of freight and related services. During the past year, a representative period, Respond- ent, in the course and conduct of its business operations in the State of New York, derived revenue in excess ' f 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $100,000 from its trailer truck transportation of freight to, through, and from the State of New York directly to other States and from other States directly to, through, and from the State of New York. During the same period, Respond- ent derived revenues in excess of $100,000 from the transportation of freight in interstate commerce between the various States of the United States. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED Local 649, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The Respondent is engaged in the interstate transfer of freight for hire. Its Ripley facility at Ripley, New York, is operated as a relay station in the tractor trailer transfer of freight. Such relay station serves as an exchange point for tractor-trailer trucks and drivers traveling between Re- spondent's terminals located at Albany, New York, and Springfield, Massachusetts, in the east, and Respondent's terminals located at Northfield and Columbus, Ohio, in the west. More specifically, the Ripley facility provides a place for double bottom trailers from the terminals in the east to be broken down into singles to travel to the termin4ls in the west, and for single trailers from the terminals in the west, to be received and doubled up for travel to the terminals in the east. A major objective of Respondent's business operation is to provide the best transfer service to its customers at the lowest possible cost to the company. In an effort to achieve this objective, Respondent has established a system designed to minimize delays and imbalances in the overall geographical transfer of freight, by the use of relay stations of which the Ripley facility is representative. Respondent has employed at the Ripley facility Fred Henning, as station manager, three dispatchers, and seven mechanics. There are no drivers employed at Ripley and drivers who drop and pick up trailers at Ripley are domiciled either in Albany, Springfield, Northfield, or Columbus. The subject of the present proceeding arises from Respondent's discharge of three Ripley dispatchers, after the latter expressed to Respondent their dissatisfaction with a change in their work schedule and their contem- plation to organize. The Respondent admits that it discharged the dispatchers but denies that it interrogated said dispatchers about their union desires or activity, or that it discharged them for such desires and activity. Additionally, Respondent contends and defends its posi- tion at the proceedings on the theory tllat the discharged dispatchers were "supervisors" within the meaning of the Act and, therefore, were not entitled to the protection afforded "employees" under the Act.' Thus, in regard to the alleged unlawful interrogation and discharges of the subject dispatchers, the principal ques- tions presented for decision are: whether said dispatchers were "employees," rather than "supervisors," within the meaning of the Act, and, if so, were they unlawfully interrogated about their organizational or concerted desires and activities and/or discharged for the same. B. Supervisory Status of the Dispatchers Duties of dispatchers and mechanics A composite of the undisputed and credited testimony of Dennis E. Utegg, Earl W. Sanford, and Station Manager Fred Henning established that Utegg was employed by Respondent from June 20, 1969, to February 26, 1974, as a dispatcher; that Sanford who was working in several capacities for Respondent since 1943, has worked as a dispatcher from 1970 to February 26, 1974; 2 that Fred Henning was employed by Respondent in 1965, having worked as a serviceman, dispatcher, chief OTR dispatcher and dispatcher, and station manager, in which latter capacity he was serving in June 1972 to the present; and that the duties performed by the dispatchers were as follows: Dispatchers complete or fill in the hookup slip (G.C. Exh. 3), identifying the tractor-trailer by a number, and by further indicating whether to hook or drop a trailer and/or to fuel the tractor. The dispatcher then places the hookup slip on a clipboard in the office window so that a mechanic can pick it up and service the identified tractor-trailer accordingly. The mechanic inserts the number of the dolly. In completing this slip, the dispatcher has a tablet which lists the numbers of the tractors available to roll in chronological order. He gets the number of the trailer from linehaul (Northfield). Under direction, "east" means double trailer and "west" means single trailer, and the dispatcher knows from regulations, training, and experi- ence that a double can only travel east. Every truckdriver coming into Ripley completes a "Vehicle Condition Report" (indicating whether the tractor-trailer needs any minor repairs), and gives it to the dispatcher. If such report shows no necessary repairs, it is filed, but if needed repairs are indicated, the report is clipped to the hookup slip for the mechanics to service accordingly. The dispatchers do not give mechanics any instructions with respect to mechanic work. If major repairs are needed, the dispatcher calls Northfield for specific instructions. Truckdrivers from the west arriving at Ripley present to the dispatcher a "Drivers Trip Record" (DTR) and "Bills of Lading," which accompany the truck, and which were completed by the original departure dispatcher. The Ripley dispatcher then designates and inserts on the record a number of a tractor and trailer available to roll to the driver's original point of departure for his return. In making these designations, the dispatcher is advised on IBM system by Northfield 25 percent of the time and the remaining 75 percent of the time, he (the dispatcher) makes I The facts set forth above are undisputed and not in conflict in the record. SPECTOR FREIGHT SYSTEM, INC. 561 the designation based on past practice and procedure established by Respondent, or he calls Northfield for special instructions on the matter. A truckdriver arriving from the east presents his DVER to the dispatcher and goes to bed at a nearby motel for 8 hours' sleep as required by U. S. Department of Transpor- tation regulations. After such driver has had 8 hours within which to sleep, the dispatcher calls him and he has 2 hours thereafter within which to report to the station to pick up his route papers and leave. If the driver does not appear at the station within 2 hours after the call, the established practice of Respondent requires the dispatcher to drop his card to the bottom of the other driver's cards. Freight route slips are not determined or varied by dispatchers but variance may be obtained by the driver calling Northfield for such permission. Dispatchers do not have authority to give drivers cash advances or to grant them "down time," except the latter may be granted to drivers from the west when occasioned by a 6-minute delay at the Ripley station, in accordance with their union contract. Similarly, such "down time" may be granted to drivers from the east, after a delay of 14 hours. Neither Utegg nor any of the dispatchers (not including Manager Henning) has the authority, nor has either of them ever exercised the authority to hire, fire, discipline, transfer, layoff or grant overtime or leave to any dispatcher or mechanic at Ripley. Whenever a man is absent, the dispatchers on duty have been given systematic authority to call in a casual employee from a list of laid-off employees, in their order of seniority. This list is estab- lished and maintained by the Respondent, and the dispatcher has no authority to vary the order of priority. Dispatchers have nothing to do with grievances filed by mechanics or drivers which are handled by Manager Fred Henning. If after having 8 hours' sleep a driver advises a dispatcher that he is not willing or is unable to drive, or if a dispatcher concludes that a driver is inebriated or drunk, company rules require the dispatcher to prepare a report setting forth the facts of the particular situation, and file the original with the driver's home domicile, and copies with North- field and Manager Henning's files. The dispatcher should not and does not recommend that such driver be discharged or otherwise disciplined. Dispatcher Utegg had special authority from Manager Henning to sign timecards, in the absence of Manager Henning, but this was not a part of his regular duties and he only exercised this authority on three or four occasions during his entire working tenure with Respondent. Dis- patchers do not give drivers or mechanics instructions relating to the performance of their respective duties; namely, driving and vehicular maintenance work. Nor do dispatchers (except Manager Henning) have access to the personnel files of any Ripley employees, and they do not keep the timecards of any such employees. The dispatch- 2 The mechanics are paid $6.52 an hour for an 8-hour day and they are guaranteed a 48-hour week , including overtime for 8 hours' work. Dispatchers were paid $1 less per hour for a 48-hour week. Utegg's salary was $2 29 per hour with no overtime 3 1 credit the testimonial account of Utegg, Sanford, and Manager Henning, not only because they appeared to be testifying truthfully, but, er's timecards are approved for payment by Manager Henning. The seven mechanics employed at Ripley hook and drop hooks of the tractors to and from the trailers, make minor repairs on the tractor-trailers such as flat tires, windshield wipers, drain fuel fillers, and they fuel the tractors, if necessary, to keep the freight vehicles mobile. Except for occasionally informing the mechanics as to which load (truck) should be given priority in readiness for travel (which happens about 5 percent of the working time), dispatchers generally have nothing to say to the mechanics. Ripley mechanics are unionized and the majority of them have worked for Respondent about 11 years. Mr. Henning has issued instructions to all mechanics on several occasions per memorandum (G.C. Exhs. 10, 11, 13, and 14) regarding the location where tractors are to be parked, directing mechanics to work full 8 hours regardless of the time they punched the clock, directing and urging the timely repair of tractor-trailers, and admonished mechan- ics regarding damage to line hoses and light cord dollys caused by careless handling of mechanics.2 A composite of the credible testimony of all of the witnesses and the documentary evidence of record have essentially established that, in keeping with the major operational business objective of the Respondent, namely, giving the best service to its customers at the lowest possible cost, Respondent has established an office at Northfield, Ohio, to coordinate the efficient flow of freight amongst its transfer terminals herein involved. To further sophisticate the operation of the system, the Ripley station dispatchers serve as subcoordinators to Northfield by making essentially routine decisions regarding the dis- patching of tractor-trailers in accordance with a set of rules or guidelines developed from Respondent's practical experience and knowledge of its business, from initial instructions to the dispatchers from management, as well as from strict compliance with regulations of the U. S. Department of Transportation, the Interstate Commerce Commission, and provisions of the respective union contracts of the drivers and mechanics. These rules or guidelines (including those embodied in G.C. Exhs. 7 and 8) routinely followed by the dispatchers in dispatching involve such directives as dispatching on a first-in, first-out basis, giving priority to hot loads, reading and complying with ETA or IBM system instructions or suggestions, and the dispatcher calling Linehaul, Ace, and Cb for instruc- tions or consultation, when nonroutine or unusual prob- lems arise which affect the timely flow of freight. All of these things are done in an effort to minimize imbalances in the flow of freight in an effort to maintain a reasonable and relatively even utilization of drivers and equipment .3 Mr. Phillip D. Stanoch, director of industrial relations for Respondent, credibly testified that dispatchers at other locations of Respondent, who perform the same duties as Ripley dispatchers, are unionized but they are not covered because their versions are essentially consistent with and corroborative of each others' Although on direct and cross-examination Utegg often said he made certain decisions with respect to dispatching , the entire evidence of record nevertheless shows that he did not in fact (independently) make such decisions but, instead, implemented the decisions in accordance with rules and practices established by Respondent. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the management vacation and work incentive plans as are the Ripley dispatchers. Based on the foregoing credible testimony and documen- tary evidence, I conclude and find that the Ripley dispatchers carried out essentially ministerial duties with respect to other dispatchers, mechanics, and drivers at the Ripley station; that the dispatchers do not in any way direct or instruct the mechanics or the drivers with respect to the performance of their respective duties of driving or repairing the tractor-trailers ; that the dispatchers do not keep timecards or personnel files of mechanics, drivers, or other dispatchers; that dispatchers do not exercise, nor have they the authority to hire, fire, layoff, discipline, transfer, or grant overtime or leave to any other dispatcher, mechanic, or driver; that the dispatchers exercise very little or no independent discretion in performing their duties, but rather, make routine decisions in accordance with rules and practices established over a period of time by Respondent, follow specific instructions or suggestions from their superior coordinators, and simply comply with regulations of the U.S. Department of Transportation, the Interstate Commerce Commission, or provisions of the respective union contracts of the drivers and the mechan- ics; and therefore, the dispatchers are not supervisors but are employees within the meaning of the Act. C. Union or Concerted Activity of Dispatchers Utegg credibly testified that prior to January 28, 1974, Manager Henning worked as a relief-dispatcher on the off days of dispatchers Utegg, McGinnis, and Sanford. However, the following notice was given to the dispatchers and posted on the bulletin board on the date indicated therein: To All Supervisors4 From Fred Henning Subject Shift Change Date 1125174 At 0800/28 the following shift change for Supervi- sors will become effective. If any questions concerning the change, feel free to contact me. Sat. Sun. Mon. Tue. 0001 Utegg Utegg Utegg Utegg 0800 Sanford Sanford Hannin Henning 1 6600 McKinnie tied. McKinnis Thu. Sanford Fri. MCKinnie 0001 Sanford Utegg Utegg 0800 Henning Sanford Sanford 1600 ltKinnis McKinnia McKinnia /s/ Fred Henning cc: V. Shepard 4 Although the memorandum (notice of change in work shifts) is addressed to "All Supervisors," the individuals named therein are all Dispatcher Sanford credibly testified that he received a copy of the above memorandum on January 25 and thereupon called Mr. Henning about 4:15 p.m. that afternoon and advised him that he (Sanford) had taken night calls in St. Louis for 4 years and that it interrupted his sleep working so many different shifts in 1 week; that he Sanford got angry, said he would resign and hung up the telephone but he called back, apologized, and said he would like to talk to him (Mr. Henning) the next morning (January 26); that when he went to Mr. Henning's office the next morning he tried to talk to him but the latter pushed the telephone in front of him and said "call whoever you want to call"; and that he pushed the phone back and told Henning he did not want to call anyone because he could work out the sleeping problem. Sanford also said he discussed his dissatisfaction with the changed work schedule with Utegg and McGinnis, and he asked them if they thought it was a good deal after all the years he had worked for Respondent. Utegg credibly testified that, on the evening of January 25, he talked with Mr. Johnson, the steward for members of Local 649 of the Ripley station, and advised him that the dispatchers at Ripley wanted to organize; that Mr. Johnson said he would call Mr. Francis Harvey, business agent for IBT at 9 a.m. on the next day, January 26; that on the next morning Mr. Johnson called Mr. Harvey for Utegg and Mr. Harvey asked Utegg was he a supervisor and did we have the authority to hire and fire people (mechanics and drivers) and Utegg replied in the negative to both questions. On that same morning, or the next morning, Utegg said he called Manager Henning and advised him that he had contacted the Union. Utegg admitted on cross-examination that the business of Respondent is huge and complex and that the dispatchers control the efficiency of the Ripley station. A composite of the credible testimony of Utegg and Sanford established that in early February they told Manager Henning that the dispatchers wanted to see him at 3 p.m. and Manager Henning consented and did in fact meet with them for about an hour. During the meeting Utegg said the dispatchers complained about the four shift changes since Labor Day 1973, and stated that Manager Henning made the change for his own benefit. Utegg said he also said he was tired of working an 8-hour shift because it cuts short his weekends and he (the dispatchers) did not receive enough in salary; that the mechanics received. $140.79 more than they do and that dispatchers in the Union at Northfield received $1 an hour more. He requested that the dispatchers be allowed to work 12-hour shifts, 4 hours on and 4 hours off, and pointed out that dispatcher Smith was not replaced when he left Respond- ent's employ. Dispatcher McGinnis said very little during the meeting. Utegg and Sanford further testified that Henning said he understood their problem and that he would take it up with management. Utegg requested I week's leave for vacation which was approved by Henning for the first part of February. On February 25 Manager Henning met with the dispatchers and informed them that he had discussed their dispatchers. SPECTOR FREIGHT SYSTEM, INC. 563 problem with management but could not do anything for them. Utegg then said "well if that is the best Henning could do, they [the dispatchers ] should join the Union." The dispatchers said Manager Henning was pleased with their interest in the Union and said that it would make the job better for all of them because they would then have four dispatchers, and he (Henning) would not have to dispatch. McGinnis did not support the idea of unioniza- tion but he was dissatisfied with the new work shift. During the same meeting on February 25, Manager Henning told Sanford he was doing a good job; that the Respondent had made $ 183,000 in the last quarter of 1973 and that both he (Sanford) and Utegg were due for a raise.5 Based on the foregoing credible testimony, I conclude and find that on January 25 through February 25, employees Utegg, Sanford, and McGinnis requested a meeting and did in fact meet and communicate with their supervisor, Manager Henning, about their mutual interest in their individual and collective work schedules as dispatchers, as well as their salaries; that one of said dispatchers (Utegg) advised Manager Henning of their interest in and contemplation of joining the Union; that neither of said dispatchers ever refused or failed to work their shifts in accordance with the new schedule of January 25; and that such efforts on the part of the dispatchers, on behalf of themselves and on behalf of each other, constituted concerted and/or union activity. Respondent's knowledge of dispatcher's concerted or union activity Manager Henning credibly testified that after his meeting with the dispatchers on February 25, 1974, he talked with Mr. Vince Shepard of management of the Respondent corporation, whom he told about everything that was said at the meeting with the dispatchers , including their plan to unionize if Respondent did not have a fourth dispatcher. About 8 p.m. on that same day, February 25, he (Henning) received a call from Mr. Steve Neiman, vice president of transportation for Respondent, who said he had talked to Mr. Shepard and was told about his meeting with the dispatchers; that after a brief discussion about the meeting Mr. Neiman asked him "why don't we terminate these fellows right now?"; that he (Henning) was shocked, and asked him was he serious and Mr. Neiman said "yes"; that he then asked Mr. Neiman, on what grounds, and Mr. Neiman said "negative attitude as far as willingness to accept the working conditions as they are"; and that he then said we should terminate them before they go to the Union. Mr. Henning admitted on cross-examination that neither Utegg, Sanford, nor McGinnis had refused to work the newly changed work schedule . Mr. Neiman then suggested that he (Henning) get in touch with Mr. Shepard. Consequently, Manager Henning said he telephoned Mr. Shepard in Nashville about 11 o'clock that night (February 25, 1974) and again they discussed the dispatchers' situation, including terminating the dispatchers, and again 5 Manager Henning said he did not say Utegg and Sanford were due for a raise, but rather, that they were due for review for a raise and that he (Henning) would recommend them for a raise. I credit Manager Henning's version over Sanford's and Utegg's version as being a more accurate during the next morning, February 26, when Mr. Shepard asked him if he felt that the current dispatchers were the type of people, type of cooperation he wanted to work with, and he (Henning) said "no." So he (Henning) thereupon decided to terminate dispatchers Utegg, McGin- nis, and Sanford. D. Respondent's Discharge of Dispatchers About 12:30 p.m., 1 p.m., and after 1:30 p.m. on February 26, Manager Henning called dispatchers San- ford, McGinnis, and Utegg, respectively, and essentially advised each of them individually that it was the decision to management to terminate their employment with Respondent effective that day; that the termination was not due to union activity but for negative attitudes, not willing to accept the working conditions, hours, and the decisions of management; except that Manager Henning told Sanford his poor work was a factor in his termination. Manager Henning asked each dispatcher did he have anything to say and Sanford said nothing , Utegg said he did not think Respondent would be that dumb; and Henning asked Utegg would he be willing to accept working conditions as they were and the latter said "yes, but he would not be able to change his attitude." When he (Henning) advised McGinnis that he was terminated, Manager Henning described McGinnis' reac- tion and their conversation as follows: ... After he absorbed this shock, he went into great detail that he was very sorry that it had happened, that the crisis had come to this point. He had explained to me that he had great plans, was going farther in the company other than being a dispatcher. We discussed this a little farther as far as what his plans actually were. We discussed his negative attitude as far as being not willing to accept the working conditions as they were, the hours, the money involved, and so on. After talking with Ron these few minutes, I raised the question if the position was available, would he be willing to accept this under the same working condi- tions which he had previously held. He said he would and was very-would be very grateful to accept a position as such. And after talking with Ron and listening to him, I made the decision to rehire him and reinstate him and at this point I informed him of this and told him to report to work at 4:00 o'clock the 16th. Q. Do you recall if Mr. McGinnis stated anything regarding future acceptance of management decisions? A. I don't know as it would be stated in exactly that way but he was very willing to accept-well, you could almost say as far as management decisions, he was willing to accept them. Q. And you reinstated him? account of Henning's statement, because it is not substantially different from Sanford's and Utegg's account and because neither Sanford nor Utegg disputed his version. 564 A. Yes .6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based on the credible evidence and findings described under Sections B and C (supra), I conclude and find that, through Manager (Supervisor) Henning's knowledge of the concerted activity of Utegg, Sanford, and McGinnis on January 25 through early February, and more particularly, through the joint knowledge of Manager Henning and corporate officials Neiman and Shepard, of the views and demands of the subject dispatchers on February 25, Respondent did in fact have knowledge of the concerted and/or union activity of the subject dispatchers on February 25; that based on such knowledge, Vice President Neiman suggested that Manager Henning terminate said dispatchers for their concerted activity and union interest before they went to the Union; that Officer Shepard and Manager Henning not only acquiesced in this suggestion, but Manager Henning implemented it by terminating said dispatchers on February 26; that the reason for the dispatcher's termination, suggested by Vice President Neiman and relayed to the dispatchers by Henning, was pretextual ; that Manager Henning's rehiring of dispatcher McGinnis was based on the implied condition of the latter's promise to relinquish his interest and participation in the concerted and/or union activity of the dispatchers, and his willingness to accept the working hours and conditions as established by Respondent; that when Utegg and/or Sanford refused or failed to make such a pledge as did McGinnis, they were not rehired by Respondent ; that such fact is clear evidence of Respond- ent's animus towards the dispatchers' concerted and union activity and reveals the real motivating discriminatory cause for their discharge and denial of reemployment; that since Manager Henning terminated the employment of Utegg, Sanford, and McGinnis, for their concerted activity and union interest, characterized by Henning as "negative attitude and unwillingness to accept the working condi- tions, hours, and directives of Respondent , without any evidence that either dispatcher failed or refused to comply with the new work schedule , such discharges were disparate and discriminatory in violation of Section 8(aX3) and (1) of the Act; that, although Henning added that Sanford was also terminated for poor work, the evidence does not substantiate this charge and Sanford was not given any warning about, or opportunity to question, such charge; that under the circumstances Sanford's termina- tion is not shown to have been based on cause; and that Respondent's (Manager Henning) disclaiming that the three dispatchers were not discharged for concerted or union activity is merely pretextual. E. Interrogation of Discharged Dispatcher Sanford also credibly testified that, subsequent to his discharge, he called Manager Henning and asked to meet with management to discuss his discharge , and that at first Manager Henning told him he was not allowed to discuss 6 I credit the testimony of Manager Henning because not only was I impressed that he was testifying truthfully, but his testimony is essentially consistent with that of Utegg and Sanford, as well as with the logical consistency of all of the evidence of record. 7 1 credit Sanford's testimony not only because I received the distinct the matter with him. However, on March 15, Manager Henning called him and informed him that Mr. Shepard, a management representative of Respondent , was due in town and they agreed to meet with Utegg at the Squire Motel. Sanford attended the meeting and said he asked Messrs. Henning and Shepard why he (Sanford) and Utegg could not return to work; that Mr. Shepard said they (Sanford and Utegg) had union on their minds, that he would not trust them running the station, and, further- more, Respondent had a meeting with the Labor Board in Buffalo that week and they could not do anything until he and company representatives had a meeting. Sanford said he then advised Mr. Shepard that their (dispatchers) job status and work schedules continued to change to their disadvantage and dissatisfaction, and that Mr. Shepard said he should have come to them (Respondent) instead of going to the Labor Board ; that Mr. Shepard and/or Manager Henning asked him if he went to the Labor Board and he (Sanford) said "yes." He (Sanford) told Mr. Shepard that he called Manager Henning the first 2 weeks but the latter informed him that he (Henning) was not allowed to talk to him; and that Mr. Shepard wanted to know if he (Sanford) and/or Utegg were going to the Union , and he advised him that Utegg had called the Union and that was as far as it went.? I therefore conclude and find upon the foregoing credible testimony that, after Utegg, Sanford , and McGin- nis were fired and McGinnis was rehired , Respondent asked Sanford whether he and Utegg went to the Union and whether they went to the Labor Board , and, if so, why; that although Sanford answered both of these questions in the affirmative, while he was seeking an explanation for his discharge and the possibility of his reinstatement, neither Sanford nor Utegg was rehired or reinstated by Respond- ent; that such refusal or failure by Respondent to reemploy Sanford and/or Utegg was obviously motivated by its discriminatory discharge of Sanford and Utegg on Febru- ary 26, and its antiunion interrogation of Sanford on March 15 ; during which it learned that they had contacted the Union and the Labor Board; and that such interroga- tion constituted an interference with, restraint upon, and coercion against employees' rights protected by Section 7 and was therefore violative of Section 8(axl) of the Act. Analysis and Conclusion A reading of the entire record in this proceeding readily reveals that the evidence herein is essentially free of conflict. Hence, the major dispute between the parties (the Respondent and the dispatchers) is whether the discharged dispatchers were supervisors within the meaning of the Act. In resolving this issue, it would appear that an examination of the Act in this regard is warranted. Section 2(11) of the Labor Management Relations Act, as amended, provides as follows: impression that he was truthful and accurate in testifying, but also because Mr. Shepard did not appear in this proceeding and Manager Henning nor any other representative of Respondent did not dispute his testimony, which is also not inconsistent with the tenor of the entire evidence of record. SPECTOR FREIGHT SYSTEM, INC. 565 The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connec- tion with the foregoing the exercise of such authority is not of a merely routine or clerical nature , but requires the use of independent judgment. In relating the evidence of record to the language of the above-cited section of the Act, it is noted that the evidence is clearly unequivocal that neither dispatcher Utegg, Sanford, nor McGinnis had, nor exercised authority to hire, fire, transfer, suspend, layoff, recall, promote, actually and not routinely, assign, reward, or discipline any of the drivers, mechanics, or even each other (dispatchers), nor any other employees of Respondent. Nor did such dispatchers have or ever exercise any responsibility to direct the drivers, mechanics, or each other, in the performance of their respective duties, or to adjust their grievances which were processed by Manager Henning. Although the subject dispatchers exercised some judg- ment and discharged some clerical chores in the perfor- mance of their dispatching duty, the exercise of such judgment was not substantially, if at all, independent, but rather, routinely in accordance with instructions, rules, long-established practices, regulations of the U. S. Depart- ment of Transportation, the Interstate Commerce Commis- sion, and certain provisions of the respective contracts of the drivers and the mechanics . Essentially all clerical work performed by the dispatchers was of a recordkeeping and informative nature, and was routinely executed . While the evidence concedes that the performance of the dispatchers can significantly affect the efficiency of the operation of Respondent's business, so can the performance of bricklay- ers on a construction job, or the performance of busboys in a restaurant affect such business operations. However, neither of such employees, ipso facto, can be said to be "supervisors" as that term is defined in the Act . Likewise, nor does the mere fact that the Ripley dispatchers enjoyed the same vacation time and incentive award opportunities as did management, render them "supervisors" in the face of the conspicuous absence of the several other attributes of a supervisor enumerated in the Act. Moreover the Board has repeatedly held that the mere conferment of the title "supervisor" upon a worker does not make him a supervisor in the absence of delegating such authority and duties as are outlined in the Act. Consequently, the evidence permits only one conclusion, and that is, that dispatchers Utegg, Sanford, and McGinnis were not supervisors within the meaning of the Act. Since the evidence is clear that dispatchers Utegg, Sanford, and McGinnis were dissatisfied with their salaries and the new work schedule posted on January 25 ; that they thereafter discussed their dissatisfaction with each other and with Manager Henning ; that they further discussed their dissatisfaction on their plan to unionize with each other and with Manager Henning on February 25; that such conduct on the part of the dispatchers, in addition to Utegg's contact with the Union on February 25, constitut- ed concerted and union activity of the dispatchers, of which Manager Henning (Respondent) had full knowledge and which he imparted to other higher management officials. Hence the evidence is uncontroverted that, on February 25 and 26, Respondent had knowledge of the dispatchers' concerted and/or union activity. In view of the considerable anticoncerted and antiunion activity discussions amongst Manager Henning and man- agement representatives, Neiman and Shepard, on Febru- ary 25 and 26, about the dispatcher's concerted and union activity, followed by management's subsequent concurring decision and action in discharging dispatchers Utegg, Sanford, and McGinnis on February 26, the conclusion is inevitable that the dispatchers' concerted and/or union activity was the sole and motivating cause for their discharge by Respondent. Moreover, the very reasons given by Respondent for the dispatchers' termination, coupled with its interrogation of dispatcher Sanford after his discharge, about his going to the Union and the Labor Board, make it abundantly clear that all three dispatchers were not only discharged for their concerted and union activity, but that Utegg and Sanford were denied reem- ployment by Respondent for the same reasons. Conse- quently, both the discharge of the three dispatchers (Utegg, Sanford, and McGinnis) and the failure or refusal of Respondent to rehire Utegg and Sanford were discrimina- tory and violative of Section 8(a)(3) and (1) of the Act. When the discharge of the dispatchers and Respondent's failure or refusal to rehire Utegg and Sanford are considered in the context of Respondent's total conduct along with Manager Henning and Mr. Shepard's interroga- tion of Sanford on March 15, it becomes clear that such interrogation was of an interfering, coercive, and restrain- ing nature and effect, and, therefore, was unlawful and in violation of Section 8(axl) of the Act. In arriving at the above conclusion and findings, I did not construe a dispatchers' duty to refuse to dispatch a driver whom he deemed drunk as a discretionary authority and function. Rather, I view such a determination as a routine factfmding function mandated by Government regulations and company policy, which, once made, deprived the dispatcher of any independent discretion and further imposed upon him an additional ministerial duty not to dispatch such driver. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial Order, I shall recommend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It having been found that Respondent interfered with, restrained, and coerced Dennis E. Utegg, Earl W. Sanford, Ronald McGinnis, and its other employees in the exercise of their Section 7 protected rights in violation of Section 8(a)(1) of the Act; and that it discharged Dennis E. Utegg, Earl W. Sanford, and Ronald McGinnis and failed or refused to rehire Dennis E. Utegg and Earl W. Sanford in violation of Section 8(a)(3) and (1) of the Act, the recommended Order will provide that Respondent offer to Dennis E. Utegg and Earl W. Sanford their jobs, and make them whole for loss of earnings within the meaning and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg., Co., 120 F.2d 532, 536 (C.A. 4, 1941). Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Spector Freight System, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 649, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the tenure of employment of Dennis E. Utegg, Earl W. Sanford, and Robert McGinnis thereby discouraging employees concert- ed activity and membership in the Union, a labor organization, Respondent has engaged in unfair labor practices condemned by Section 8(aX3) and (1) of the Act. 4. By interrogating its employee Earl W. Sanford about his past and current union affiliation, Respondent violated Section 8(a)(1) of the Act; except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing fmdings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER8 Respondent, Spector Freight System, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, coercing or discriminat- ing against employees' exercise of their Section 7 protected rights, by interrogating employees about their union or concerted activities, or threatening to treat them differently on account thereof. (b) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment because of protected concerted activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Dennis E. Utegg and Earl W. Sanford immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of the discrimination against them with interest at the rate of 6 percent, in the manner described in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of the recommended Order. (c) Post at Respondent's Ripley facility, at Ripley, New York, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respond- ent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps -shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. 9 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court ofAppeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees about their and other employees' union membership, activities and desires. WE WILL NOT threaten to treat employees differently on account of their concerted or union activity. SPECTOR FREIGHT SYSTEM, INC. WE WILL NOT discourage membership in Local 649, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging employees or other- wise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise and enjoyment of rights guaranteed to them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(aX3) of the Act. WE WILL offer Dennis E. Utegg and Earl W. Sanford immediate and full reinstatement to their former 567 positions or, if such positions no longer exist, to substantially equivalent ones, without prejudice to the seniority and other rights and privileges enjoyed by them, and make them whole for any loss of pay they may have suffered by reason of their discharge, with interest at the rate of 6 percent per annum. All our employees are free to become, remain, or refuse to become or remain members of said Union or any other labor organization, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. SPECTOR FREIGHT SYSTEM, INC.