Cal-Western Transport

CAL-WESTERN TRANSPORT 453 Cal-Western Transport and Building Material & Dump Truck Drivers, Local 420, International Brotherhood -, of Teamsters, Chauffeurs, Ware- housemen and Helpers of America: Case 21- CA-24322 31 March 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON ,AND MEMBERS BABSON AND STEPHENS On 9 May 1986 the National Labor Relations Board issued a Decision and Order in this proceed- ing, reported at 279 NLRB No. 115 (unpublished), granting the General Counsel's Motion for Summa- ry Judgment. On 8 August 1986 -the- Board in- formed the parties of its sua sponte determination to ` reconsider its decision in the above case. The parties were invited to file statements of position with respect to- the distinction, if any, between "major" and "minor" supervisors in the context of evaluating the coercive impact of preelection, prounion supervisory conduct. The Respondent filed a statement of position on 25 August 1986. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. As noted in our earlier Decision and Order, a secret-ballot election was held in the petitioned-for unit on 5 August 1983. Out of 28 eligible voters, 12 cast votes for, and 6 cast votes against, the Union; there were 8 challenged ballots, a number sufficient to affect the results of the election. The Company filed objections to the election, alleging, inter alia, that "supervisory taint" was present during the so- licitation of authorization cards as well as through- out the course of the Union's organizing drive. On 19 October' 1983 the Acting Regional Director issued a Supplemental Decision and Order direct- ing that a hearing be held on the challenged ballots and on the Company's' objections. A hearing was held on 26 October 1983, and'the hearing officer's report and recommendations " issued on 14 March 1984. The hearing officer found, inter alia, that the challenge to the ballot of Craig Kuyper should be sustained on the basis of Kuyper's supervisory status. The hearing officer also recommended over- ruling the Employer's objections to the election, in- cluding the objection alleging that Kuyper's in- volvement with the union organizing drive created a supervisory taint which invalidated the election, because Kuyper was only a minor supervisor and therefore his involvement in the union campaign was not coercive. The Employer filed exceptions to the hearing officer's report and recommenda- tions. On 31 July 1984 the Regional Director issued a Second Supplemental Decision and Certification of Representative to which the Employer filed a request for review. On 24 January 1985 the Board issued a mailgram denying the Employer's request for review except with respect to -',the Union's al- leged promise to waive initiation fees.' With re- spect to the alleged supervisory taint, the Board, citing - Ideal Electric &,Mfg. Co., 134 NLRB 1275 (1961), found that because there was no allegation that any of the alleged "taint" occurred during the critical period, the Employer was precluded from raising the issue for the first time in this, postelec- tion proceeding. By letter dated 5 November 1985, the Union made a formal demand for recognition and bargain- ing. The Employer refused,,,maintaining that the Board had committed reversible error in its deci- sion certifying the Union. The Union filed an unfair labor practice charge- and the Region issued a complaint. On 20 February, 1986 the General Counsel filed a Motion for Summary Judgment which we granted in our ,9 May 1986 decision. We now, however, wish to address in more detail the issues raised by our classification of individuals as major or minor supervisors. In his report and recommendations, the hearing officer made a detailed analysis of Kuyper's super- visory,authority and prounion conduct, finding that Kuyper was a supervisor and that he had been in- strumental in the Union's organizing drive. He then noted that there are two situations in which a su- pervisor's conduct on behalf of the union can have an objectionable effect sufficient to warrant setting aside the election. The first involves a situation in which the employer takes no- stand contrary to the supervisor's prounion conduct, and employees can be led to believe the employer favors the union.2 The second involves the possibility that a supervi- sor's prounion conduct could coerce employees into supporting the union out of fear of future re- taliation by that supervisor. In order to determine whether a supervisor's conduct could reasonably tend to coerce employ- ees, the Board has reviewed the degree of supervi- sory authority possessed by the supervisor and the extent of the supervisor's prounion conduct. The hearing officer, relying on ITT Corp., 265 NLRB 1480 (1982), stated that the initial analysis in_ deter- mining whether Kuyper's conduct was objection- able centered on his status as a major or a minor i In a Third Supplemental Decision and Certification of Respondent dated 24 April 1985, the Regional Director adopted the hearing officer's recommendations that this objection be overruled On 21 October 1985 the Board denied the Employer's request for review of this issue. 2 No party asserts that such is the case here. 283 NLRB No. 66 454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD supervisor. A major supervisor was defined in that case as one who can hire, fire, promote, and issue written warnings to employees, or effectively rec- ommend that such action be taken. Only supervi- sors who possessed such authority were viewed as possessing sufficient retaliatory potential to make their prounion conduct coercive. Applying this analysis, the hearing officer concluded that since Kuyper did not possess the above-described au- thority, he was a minor supervisor. Thus, although the hearing officer found that Kuyper was the cen- tral figure in the organizing campaign, the hearing officer's classification of Kuyper as a minor super- visor led him to conclude that Kuyper's prounion conduct was not coercive. The Employer asserts that the Board's distinc- tion between major and minor supervisors is an ar- tificial one Without any validity. It further asserts that Kuyper -possessed extensive authority to retali- ate against and to reward employees. In addition, the Employer maintains that Kuyper's prounion ac- tivity was sufficiently extensive to have reasonably tended to affect employees' choice in the election. We agree with the hearing officer's conclusion that Ku'yper's conduct did not interfere with the employees' free choice in the election. In so doing, we rely on all the relevant circumstances in the case. In particular, we evaluate, as we have in the past, all the relevant aspects of Kuyper's superviso- ry authority in determining whether his prounion conduct would reasonably tend to coerce employ- ees -in the exercise of their Section 7 rights.3 How- ever, we do not rely on the summary characteriza- tion of Kuyper as a minor supervisor. The designation of a supervisor as major or minor has been used as a type of shorthand to indi- cate the extent of supervisory power exercised, by an individual. The designation met with criticism, however, when certain courts of appeals perceived that the labeling of a supervisor's authority as major or minor was taking the place of a thorough analysis by the Board of the potential for coercion by a prounion supervisor of unit employees.4 Nowhere is this conflict more evident than in the series of cases involving ITT Corp. A representa- tion election was held on 16 February 1979 in a unit of production and maintenance employees. The employer protested the inclusion of, 31 group s See, e.g, Deichamp4 Inc., 210 NLRB 179 (1974); Sheraton Motor Inn, 194 NLRB 733 (1971). 4 See NLRB v. Kahala Kai Photo Service, 784 F.2d 1446 (9th Cyr. 1986); ITT Corp. v NLRB, 712 F 2d 40 (2d Cit. 1983); Turner's Express v. NLRB, 456 F.2d 289 (4th Cir. 1972). As the Ninth Circuit stated in NLRB v. Hawaiian Flour Mill, 792 F.2d 1459, 1463 (9th Cit. 1986), the characterization of an individual as a minor supervisor "cannot save an election when that supervisor has the power to punish or reward, and acts so that the threat of exercising that power reasonably tends to coerce employees in their voting " leaders in the- unit, and these individuals voted sub- ject to challenge. The company filed objections to the election, maintaining that the group leaders were supervisors and that their prounion conduct tainted the election. The Board adopted the Re- gional Director's finding that even assuming that all 31 individuals were supervisors,- they were minor, as opposed to major, supervisors without any real authority to affect the working conditions of unit employees. The Board subsequently found that the company's refusal to bargain with the union violated Section 8(a)(5) and (1). On review of the Board's bargaining order, the Second Circuit remanded the case to the Board, finding that the Board had not addressed the cen- tral issue of whether any of the unit employees' votes had been affected by the group leaders' con- duct. In its supplemental decision, the Board inter- preted the Second Circuit's opinion as approving its major/minor supervisor- distinction, and found that the day-to-day supervisory authority of the group leaders did not afford an opportunity for ef- fective retaliation against antiunion employees. In its opinion on review of the Board's supple- mental decision the court expressly noted that its earlier opinion had "not approve[d] an automatic conclusion that a supervisor's conduct might or might not affect voting based on a distinction be- tween `major' and `minor' supervisory authority."5 What the court was interested in, it stated, and failed to find in the supplemental decision, were the criteria used by the Board for determining whether a supervisor exercised major or-'minor authority, and whether the exercise of that authority could have an' effect on employee voting. The court clearly rejected the' Board's determination that an individual was a major supervisor' only i- possessed of "the authority to hire, fire, promote, or issue written warnings on his own volition, -or has the authority, effectively to recommend' such action." Rather, the court concluded, the criteria to be used in determining the potential of a, supervisor to in- fluence unit employees should include not only the power to retaliate, as indicated by the Board, but the power to reward employees as wells Based on these criteria, the court found that the group lead- ers did possess sufficient authority, to influence em- ployee votes by their conduct and set aside the election.? 5 712 F.2d at 43-44. 6 Id. at 44. "See also NLRB v. Kahala Kai Photo Service, supra, in which the Ninth Circuit also adopted the view that the Board should consider both the potential to reward as well as the potential- to retaliate in evaluating the effects of a supervisor's proumon conduct. 'CAL-WESTERN TRANSPORT 455 We agree that _ in evaluating whether a supervi- sor's prounion conduct -could reasonably tend to coerce employees' votes in a representation elec- tion, it is necessary to evaluate the -ability of a su- pervisor both to reward and to retaliate against em- ployees. In this regard, the indicia of authority which a supervisor possesses are factors to be con- sidered in making this evaluation. That evaluation is not furthered, however, by characterizing super- visors as major or minor based on a summary of those indicia. To the contrary, the use of such characterizations has the tendency, as the Board's own experience has shown, to lead to an incom- plete analysis of the degree of a supervisor's au- thority. Thus, to the extent that our decision in ITT Coa p. and subsequent cases can be interpreted as suggesting that a major/minor characterization may be substituted for a complete analysis of the extent of supervisory authority, they are hereby overruled. In determining that Kuyper's prounion conduct could not reasonably tend to coerce employees here, we rely on his minimal supervisory power to either reward or adversely affect unit employees. Primary among Kuyper's duties as dispatcher are the establishment, assignment, and adjustment of the drivers' pickup and delivery routes. Kuyper testified that those routes were designed by taking into account the milking times of the dairies, the delivery requests by customers, and the amount of milk which could be transported on a given route. Once the routes are established, they remain essen- tially the same throughout a season, and Kuyper is responsible for assigning them to drivers and estab- lishing starting times. Although the assignment of drivers to, routes may be a significant indicia of su- pervisory power 'in some situations, the circum- stances here indicate that Kuyper exercised only a "degree" of independent judgment in that the routes are designed to accommodate factors outside of Kuyper's control, and thus cannot be easily ma- nipulated in order to punish or reward an employ- ee. Other aspects of Kuyper's supervisory authority are equally benign with respect to the possibility of using such power for or against specific employees. Kuyper's ability to grant time off and sick leave is fairly routine, because the various routes require, no special skills and the drivers frequently fill in for one another. Kuyper testified that when someone asks for time off, he will either take the route him- self, call a casual employee, or call a regular em- ployee who is normally scheduled to be off at that time. If no replacement can be found, the request is denied. An employee who is regularly scheduled to be off at that time is not compelled to come into work. Thus, although Kuyper has a degree of inde- pendent---authority in making decisions about the routes, the extent to which. that authority could be used for or against a particular employee is mini- mal. Kuyper also reviews drivers' worksheets and paysheets, and has the authority to, correct inaccu- racies or discrepancies. Such corrections, however, would not be likely to give rise to it situation in which an employee could be rewarded or pun- ished, because there is no evidence that Kuyper has any discretion in refraining from reporting them. Kuyper testified that his - power to discipline em- ployees is minimal, consisting of verbal warnings which are not recorded in the employees' person- nel files.8 He has no authority to hire, fire, or pro- mote employees and, although on occasion his rec- ommendations on hiring have been followed, the record indicates that employees have also recom- mended individuals who have been hired. Kuyper attends supervisory meetings concerning the profit- ability of routes, driver performance, and cost of supplies and vehicles. He also prepares monthly profit and route analysis reports used by the Em- ployer to check revenue-to-ratios and to evaluate whether route changes can increase profit. Kuyper testified that with respect to employee perform- ance, his role is basically suggesting modifications in the routes, depending on how quickly drivers were making their runs, but he takes no part in em- ployee evaluations. None of these functions lends itself to creating a situation in which Kuyper can significantly reward or punish unit employees. Based on these factors, we find that Kuyper does not possess sufficient authority such that his proun- ion conduct could reasonably be said to have been coercive. Moreover, we note that although Kuyper was involved with the initial organizing drive and solic- ited employees to sign authorization cards, there has been no allegation that Kuyper engaged in ob- jectionable conduct after the representation petition was filed. The Board has, on occasion, considered prepetition actions as evidence of objectionable conduct, particularly, when prepetition misconduct occurred in connection with a, union's attempt to generate a sufficient showing of interest.9 Here, however, the Employer is not objecting to the Union's showing of interest, but rather asserting that Kuyper's conduct created a supervisory taint that interfered with the conduct of the election. There is no evidence that Kuyper engaged in any 8 Although Kuyper also testified that he was told he has the power to issue written warnings, he has never exercised this power. s Lyon 's Restaurants, 234 NLRB 178 (1978); Gibson's Discount Center, 214 NLRB 221 (1974). 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD significant prounion conduct after the petition had been filed. Although his -conduct may have been influential in starting the union's organizing drive, we believe that this' prepetition conduct, without more, and in light of its remoteness in time from the election, was insufficient to affect the results of the election..Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961). In addition, we note that it is not al- leged - that Kuyper threatened employees in any way or promised any rewards in order to ensure their support for the Union and, significantly, the opinions he expressed about the Union were strict- ly his own personal views." 0 Therefore, we find that the objection was prop- erly overruled and that the issuance of the Certifi- cation of Representative was appropriate. Accord- ingly, we reaffirm our earlier finding that the Re- spondent was obligated to bargain with the Union and that its refusal to do so violated Section 8(a)(5) and (1). ORDER The Order in case 279 NLRB No. 115 (May 9, 1986) (unpublished) is reaffirmed. is See NLRB v. Hawaiian Flour Mill, 792 F.2d 1459, 1464 (9th Or. 1986).