Sampson Steel And Supply, Inc.

SAMPSON STEEL & SUPPLY Sampson Steel and Supply, Inc. and Chauffeurs, Teamsters, Warehousemen, and Helpers Local Union No. 377. Case 8-RC-13666 June 30, 1988 DECISION AND ORDER REMANDING TO THE REGIONAL DIRECTOR BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered the objections to and the determinative challenges in an election held September 18, 1987, and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement.' The tally of ballots shows five for and four against the Petitioner, with two challenged ballots. The Board has reviewed the record in light of the Employer's exceptions2 and brief and the Peti- tioner's brief in response to the Employer's excep- tions and adopts the hearing officer's findings, 3 conclusions, and recommendations only to the extent consistent herewith. The only issue raised by the exceptions is the hearing officer's disposition of Norman Cunningh- am's ballot. The hearing officer rejected the Peti- tioner's contention that Cunningham was a statuto- ry supervisor, but sustained its alternative position4 that he is managerial and does not share a commu- nity of interest with unit employees. The Employer I The unit is: All warehousemen and drivers, excluding all office clerical employ- ees, professional employees, guards and supervisors as defined in the Act. 2 The Employer excepts to that portion of the hearing officer's report requiring that exceptions to the report be directly filed with the Board. This requirement is in accord with the requirements of Sec. 102.69(i) of the Board's Rules and Regulations . Accordingly, we find the Employer's exception to be without merit. a In the absence of exceptions thereto, we adopt, pro forma, the hear- ing officer's recommendations that the objections be overruled and that the challenge to the ballot of Roger Chum be sustained. 4 The Employer excepts to the hearing officer's reliance on the Peti- tioner's alternative argument that Cunningham is a managerial employee. It contends that the Regional Director limited the hearing in this case to Cunningham's alleged supervisory status and that by raising the manage- rial issue in her report after the record had been closed, the hearing offi- cer prejudiced the Employer and denied it procedural due process. We find no merit in the Employer's exception . Counsel for the Petitioner in his opening remarks at the hearing asserted that Cunningham was mana- gerial. The Employer's counsel did not raise an objection . Further, evi- dence with respect to Cunningham's managerial status was introduced by the Petitioner at the hearing, without objection. Witnesses were examined and cross-examined on the subject . In his closing statement counsel for the Petitioner reiterated the Petitioner 's position that Cunningham is "either a supervisor or a managerial employee." Accordingly, we fmd that the Employer was sufficiently notified that Cunningham 's status as a managerial employee was in issue and that under the circumstances the Employer was not prejudiced, taken by surprise, or otherwise denied procedural due process. 481 excepts. We find merit in the Employer's excep- tions. Cunningham was hired by the Employer in 1980. He had been a purchasing agent for a large steel manufacturer for 23 years and thereafter worked as warehouse manager for a different employer. Larry Herman, the Employer's president, met Cun- ningham while Cunningham was working for the other employer. When Herman started his own business, 5 he hired Cunningham to be his ware- house supervisor. As warehouse supervisor, Cun- ningham hired and fired employees and directed their work on a day-to-day basis. In the spring of 1985, Larry Herman's son, Roger, became the warehouse supervisor6 and Cunningham became a self-described jack-of-all trades.7 Cunningham's duties include operating a lift truck, working in the pipe yard, making deliv- eries in the pickup truck, and running errands. Ac- cording to Cunningham, his principal duty of driv- ing the pickup truck requires several trips a week to take care of small and emergency customer needs. Cunningham also has the keys to the shop and the code to the Employer's alarm system. He opens the shop for the morning shift employees. In addition, Cunningham is responsible for preparing mileage reports and has a desk in the warehouse office where he prepares these reports. Cun- ningham testified that he spends from 15 to 20 min- utes a day in the office. Although Cunningham does not work a regular shift and adjusts his schedule to his assignments, sometimes working extra hours and at other times working a short day, he does work a 40-hour week. Unlike other employees, he does not punch a clock and is paid a salary. Like other employees, Cunningham makes use of a car owned by Mrs. Herman to run errands on the Employer's behalf. While Cunningham also has personal use of the car and drives it back and forth to work, this is be- cause Cunningham had damaged his own car on the Employer's property. Cunningham held the Employer responsible for the damage. Rather than pay for repairing Cunningham's car Mr. and Mrs. Herman decided to allow Cunningham to use Mrs. Herman's car. All the employees run errands for the Employer. However, the bulk of the errands are performed by Cunningham. Cunningham, unlike the other em- ployees, has the authority to charge items to the 8 The Employer maintains a warehouse from which it sells and deliv- ers metal tube and pipe products. 6 John Brown was also made warehouse supervisor in the spring of 1985. However, he ceased being warehouse supervisor in March 1987 and Roger Herman was the sole warehouse supervisor after that time. The employees were not informed of Cunningham 's job change. 289 NLRB No. 59 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Employer's charge accounts. These charges have sometimes exceeded $200, but those amounts are usually for recurring items such as motor oil for the trucks." In addition, Cunningham can purchase items on his own volition to remedy supply short- ages in the warehouse or office. These items can also be charged on Employer accounts but often Cunningham pays cash for the purchases and is re- imbursed by the Employer. Other employees also purchase needed items such as kerosene and gaso- line and then are reimbursed by the Employer. Cunningham maintains a regular expense account which includes such items as gasoline, turnpike tickets, and meals while on the road. On the aver- age he receives $200 a month for expenses. Also on Cunningham's expense account are "entertainment expenses." The Employer has encouraged Cun- ningham, in the course of making deliveries, to "entertain" customer purchasing agents by taking them to lunch. Cunningham obtains information about possible future orders and customer com- plaints, which he passes on to Larry Herman, but does not take customer orders, sign contracts, or remedy complaints. Larry Herman testified that these lunches constitute good public relations be- cause of Cunningham's experience and reputation in the business. Although the Employer utilized Cunningham's past experience as a purchasing agent for Jones and Laughlin by seeking his advice prior to purchasing two large warehouse saws,9 it is unclear whether Cunningham was advising the Employer on the desirability of the purchase or was simply along to aid in determining how to transport the saws to the Employer's facility. In any case, there is no evidence that this was a regu- lar part of Cunningham's responsibilities. In General Dynamics Corp., 213 NLRB 851, 857 (1974), the Board defined managerial employees as: . .. those who formulate and effectuate man- agement policies by expressing and making op- erative the decisions of their employer, and those who have discretion in the performance of their jobs independent of their employer's established policy [footnote omitted]. . . . managerial status is not conferred upon rank-and-file workers, or upon those who per- form routinely, but rather is reserved for those in executive-type positions, those who are closely aligned with management as true rep- resentatives of management. 8 Cunningham believed that the Employer had placed a $75 limitation on his authority to charge nonrecurring items However, no one told Cunningham of such a limit and there is no evidence in the record that any limitation had been imposed 9 The saws are approximately 3 feet wide and 6 feet long There is no evidence as to the value of the saws The hearing officer found Cunningham manage- rial relying on the fact that Cunningham had pledged the Employer's credit in making both rou- tine and nonroutine purchases. She noted that the mere possession of authority to extend an employ- er's credit did not confer management status but found that Cunningham's ability to determine on his own the purchases to be made together with the fact that he had no express dollar limitation on his purchasing authority denoted the possession of "independent discretion." The hearing officer also found that the Employer's utilization of Cunning- ham's past experience and his business contacts by promoting lunches between Cunningham and cus- tomer purchasing agents and by its seeking Cun- ningham's assistance in the purchase of major ma- chinery proved that the Employer viewed Cun- ningham as a managerial employee. The hearing office further found that Cunningham was responsi- ble for gauging employee performance both at the shop and in his dealings with customers, and con- cluded that such responsibility signified a close alignment with management. Cunningham is a jack-of-all-trades. He shifts con- tinually to where he is needed and it is his respon- sibility to make certain that necessary supplies are purchased. His past experience and general exper- tise permit this flexibility. Cunningham's work and the purchases he makes, however, are not inde- pendent of the Employer's established policy but are essential to maintain an operational status quo. Thus while the Employer may have consulted Cunningham prior to the purchase of the two large saws and while he can at times pledge the Employ- er's credit for nonroutine items, his advice is that of a knowledgeable employee and his purchases are a routine part of his duty to maintain a supply in- ventory. They do not involve independent judg- ment, nor the exercise of independent discretion and are not indicia of managerial status.' ° Further, while Cunningham's lunches with the customer purchasing agents promoted business, they were mainly for information-gathering purposes and did not involve Cunningham in the formulation and ef- fectuation of Employer policies." Accordingly, 10 See JIB Industries, 225 NLRB 162 169 (1976) " See Marine Engineers District I, 259 NLRB 1258, 1266 (1982) Contrary to the hearing officer, we find little in the record to indicate that Cunningham gauges employee performances either in the shop or away Cunningham testified that at various tunes he admonished the em- ployees for not working hard enough, but there is no indication that the Employer sought his opinion of employee performance or that he in fact gave it Further, while there is evidence that Cunningham did pass on to the Employer customer complaints he had gleaned during his lunches with customer purchasing agents, there is no evidence as to how the Em- ployer responded to this information and in any event these were not Cunningham's criticisms but those of the customers SAMPSON STEEL & SUPPLY 483 we find that Cunningham is not a managerial em- ployee. In addition to excluding Cunningham from the unit on the grounds that he was a managerial em- ployee, the hearing officer found that Cunning- ham's exclusion could be based on his lack of a community of interest with the unit employees. The hearing officer relied on Cunningham's differ- ing duties as well as his terms and conditions of employment, which she found to be significantly different from those of the unit employees. These differences include Cunningham's use of the ware- house office, his responsibility for paperwork other employees do not share, his making purchases in behalf of the Employer, his entertainment of cus- tomer purchasing agents, his personal use of a com- pany car, and his method of compensation and his hours of work. None of the Employer's employees have clearly defined job classifications. Although some employ- ees spend most of their worktime doing a particular job, all are expected to do any work that needs to be done. Thus, although Cunningham is assigned the bulk of the errands, all the unit employees do this type of work. Moreover, they, as Cunningham, use the Employer-owned car to run assigned er- rands. Although Cunningham does have some duties that differ from the unit employees, a sub- stantial portion of his time on the job is spent doing unit work.12 As Cunningham performed a substan- tial amount of bargaining unit work along with the other warehouse employees, we find that he had a strong community of interest with them. The dif- ference in his hours' 3 and method of pay or the fact that he uses Mrs. Herman's car are not suffi- cient here to require a contrary conclusion. Ac- cordingly, we find that Cunningham is properly in- cluded in the unit.14 ORDER It is ordered that the Regional Director for Region 8, within 10 days from the date of this deci- sion, open and count the ballot of Norman Cun- ningham and thereafter prepare and cause to be served on the parties a revised tally of ballots, on which basis he shall issue the appropriate certifica- tion. IT IS FURTHER ORDERED that the above-entitled matter is referred to the Regional Director for Region 8 for further processing consistent here- with. 12 Cunningham testified that he spends only 15 to 20 minutes a day in the warehouse office and it is uncontroverted that his principal duty is making deliveries in the pickup truck 's Cunningham was responsible for opening the warehouse for the first-shift employees Thus, it appears he started work at the same time as the other first-shift unit employees. Although his hours vaned from those of other employees there is no evidence that he worked a shortened week 14 See Bay Area Sealers, 251 NLRB 89 (1980)