Interstate Motor Freight System

National Labor Relations Board - Board Decisions

Jan 17, 1977

227 N.L.R.B. 1167 (N.L.R.B. 1977)

INTERSTATE MOTOR FREIGHT SYSTEM 1167
Interstate Motor Freight System 1 and Chauffeurs,
Teamsters and Helpers, Local Union No. 118,
Petitioner . Case 3-RC-6504
January 17, 1977
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On January 13, 1976, the Regional Director for
Region 3 issued a Decision and Direction of Election
in the above-entitled proceeding, finding dispatchers
to be supervisors and excluding them from the
requested unit. Thereafter, in accordance with Na-
tional Labor Relations Board Rules and Regulations,
the Petitioner filed a timely request for review of the
Regional Director's decision, contending that the
dispatchers are not supervisors and that the Regional
Director made erroneous factual conclusions. The
Employer filed a brief in opposition to the request for
review.
By telegraphic order dated February 5, 1976, the
National Labor Relations Board granted the request
for review and stayed the election pending decision
on review.
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 entire record in this
case with respect to the issue under review and makes
the following findings:
The Employer is engaged in the interstate transpor-
tation of goods and materials and operates truck
terminals in various States, including one in Roches-
ter, New York. There are 24 employees at the
Rochester terminal, including the 2 dispatchers
whose status is in dispute here. The other employees
are drivers, dockworkers, and clericals. A central
dispatch office, located in Grand Rapids, Michigan,
coordinates the movement of freight to the various
terminals.
Petitioner seeks to represent a unit of all office
clerical employees and dispatchers employed by the
Employer at its Rochester, New York, terminal. In
dispute herein is the status of the two dispatchers,
whom Petitioner would include in the unit. The
Employer contends that the dispatchers are supervi-
sors, as they exercise independent judgment and
discretion in the assignment of work, selection of
equipment, and review of drivers' records. Contrary
to our dissenting colleague, we find no merit in the
Employer's contention.
Overall supervision of the terminal is provided by
Terminal Manager John Fay, who works during the
day shift. There is a dispatcher for each of two shifts.
The majority of the dispatchers' work is of a routine
and/or clerical nature. The day dispatcher arrives at
6 a.m., opens the terminal, and checks the freight. He
prepares the paperwork necessary to route the freight,
following guidelines and a routing system prepared
by Fay. Fay, who arrives at the terminal within 2
hours after the day dispatcher, calls the terminal
shortly after the day dispatcher arrives to check the
status of the freight, and tells the dispatcher which
loads are to go first and which drivers are to be sent
out on the early loads. The dispatchers have no
control over which drivers to send out on later loads,
as the drivers use a bid system pursuant to their
contract with the Employer. If there should be more
runs than bids, Fay decides which loads are to go out
first. Fay also decides which loads are to receive
priority or special handling.
While the drivers are out on the road, they contact
the dispatcher every 2 hours to report their location
and the status of their delivery. Depending upon the
circumstances, the dispatcher may reroute the freight
or direct the driver to pick up an additional load.
When road drivers, who are long-distance nonlocal
drivers sent out from terminals other than Rochester,
arrive at the Rochester terminal, the dispatcher will
sign their trip sheets, upon which their compensation
is based. The dispatcher will then contact central
dispatch for instructions regarding these road drivers.
The night dispatcher arrives about 4 p.m., and
confers with Fay and the day dispatcher concerning
the condition of the terminal. He deals basically with
a dockman and yardman who handle the freight, as
most of the drivers have been sent out on the road
during the day shift. He tells these men which trailers
are to be prepared, but the dockman and yardman
perform their respective functions without any specif-
ic directions from the dispatcher. The night dispatch-
er also has contact with road drivers and follows the
same procedures with regard to them as does the day
dispatcher. Both dispatchers are in constant contact
with either Fay or central dispatch.
Neither dispatcher is involved in the hiring process.
On the one occasion when a dispatcher was peripher-
ally involved, Fay asked him if he knew of anyone
who might be interested in working part time as a
casual employee. The dispatcher informed several of
his friends that they should fill out applications, and
expressed to Fay his opinion on their working
abilities. Fay, however, interviewed these people and
made the final decision to hire them. Both dispatchers
testified that they had no authority to discharge an
1 The name of the Employer appears as amended at the heanng.
227 NLRB No. 167
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee, although Fay stated that he had given the
dispatchers guidelines to follow in this regard. In any
event, neither dispatcher has had the occasion to fire
an employee. A letter of reprimand originates with
Fay. If a driver arrived at the terminal in an
intoxicated condition, the dispatcher would call Fay
or central dispatch for instructions.
It is Fay who decides whether employees may be
released early or whether they must be kept overtime.
This is generally accomplished by a phone call from
Fay to the night dispatcher to determine the status of
the work. Fay tells him which loads must be finished
by morning. The status of the freight determines an
overtime or early quit situation, and Fay, who is
aware of the situation when he leaves the terminal,
automatically gives his permission to work overtime
or release the employees early. If extra help is needed
with the freight, Fay gives his approval for such help
and informs the dispatcher that he may call in outside
employees. However, there is no discretion on the
part of the dispatcher in this regard, as employees are
called in order of seniority from a layoff list prepared
by Fay. Once this list is exhausted the dispatcher is
instructed to turn to a list of casual employees, which
list has also been prepared by Fay.
Upon the basis of the foregoing, and the record as a
whole, we are of the opinion that there is insufficient
evidence showing that the dispatchers possess super-
visory authority within the meaning of the Act. Their
direction and selection of drivers from the roster is
routine, and they appear to exercise no independent
judgment with respect to hiring, promotions, or
discharges; nor do they make effective recommenda-
tions with respect thereto. It is clear that virtually all
decisions by the dispatchers are controlled and
determined by Terminal Manager Fay pursuant to
well-defined and established company guidelines.
While it is true that Fay is absent from the terminal
for long periods of time, he is in constant contact with
the dispatchers, or, if he cannot be reached, central
dispatch provides necessary instructions. We there-
fore find that the dispatchers are employees and that
they should be included in the unit requested by
Petitioner.
We find that the following employees constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All office clerical employees and dispatchers
employed by the Employer at its location at 979
Mount Read Boulevard, Rochester, New York,
excluding all professional employees, guards and
supervisors as defined in the Act, and all other
employees.
Accordingly, we shall remand the case to the
Regional Director for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, as modified herein, except that the payroll
period for determining eligibility shall be that ending
immediately before the date of issuance of this
Decision on Review.2
MEMBER WALTHER, dissenting:
I disagree with my colleagues, and would find that
the dispatchers are supervisors and therefore exclud-
ed from the unit sought by Petitioner.
Although the terminal is supervised by Terminal
Manager Fay, he is absent from the terminal for
many hours of its daily operations. During the
evening shift, night dispatcher Gunning is the only
person on duty with any supervisory authority. While
I am aware that Gunning is in contact with Fay
during this time and that Gunning may also contact
Grand Rapids for instructions, this does not negate
the fact that Gunning exercises supervisory authority
on his shift. My colleagues' finding that the dispatch-
ers are not supervisors results in a lack of supervision
at the terminal for long periods of time. The Board
has found, on other occasions, that this factor lends
support to a finding that dispatchers are in fact
supervisors.3
Gunning performs many of the same duties as the
day dispatcher, but he has additional responsibilities.
Gunning directs the dockworkers in their duties, as
there is no dock foreman present. Gunning tells them
what loads are ready, which trailers must be hooked
up and fueled, and what equipment is to be used if
there is a breakdown, and he gives them the required
papers for each load. The dockworkers report to
Gunning for their assignments, and, while they are
generally able to do their work without specific
instructions, Gunning oversees the dock operations
so that they are performed in an efficient and
economical manner. While Gunning may not deter-
mine the order in which extra or casual help is called
in, he does direct the work of these employees.
Furthermore, Gunning has blanket authority from
Fay to order overtime when necessary. On many
occasions, Fay knows before leaving the terminal that
overtime will be needed and he grants Gunning
specific permission to work overtime. For the most
part, however, Gunning himself decides if overtime is
needed, depending upon the state of completion of
Fay's orders. According to Fay, he merely indicates
what work must be done, and he allows the dispatch-
ers to formulate their own plans so that his instruc-
tions are carried out. On many occasions, Gunning
will direct overtime without clearing it in advance
2 [Er t el rmr f oo t note omitted from publication I t Pennsylvania Truck Lines, Inc, 199 N LRB 641 (1972)
INTERSTATE MOTOR FREIGHT SYSTEM 1169
with Fay. As an indication of Gunning's discretion to
use overtime without advance pernussion from Fay,
Fay has criticized the use of overtime and asked
Gunning to qualify its use. This has occurred where
dock conditions have appeared, when Fay leaves the
terminal, to require no overtime. In such situations,
Fay has questioned Gunning's authorization of
overtime. Gunning also has authority to release
employees early if the work is completed before the
end of the shift. I am of the opinion that this authority
to use overtime or release employees from their
normal work schedule requires the use of indepen-
dent judgment and discretion and clearly affects the
employees' earning capacities.
As a further indication of supervisory status, the
dispatcher has the right to deny a driver his opportu-
nity to drive. The dispatcher apparently does check
with Fay or central dispatch for some instructions in
this regard, but ultimately it is the dispatcher who
determines whether a driver is intoxicated in the first
place, and it is the dispatcher who, by his initial
determination and the fact he is the only one in a
position to make the determination, has the ability to
deny a driver of his opportunity to take a truck on the
road.
Additionally, unlike the clerical employees, the
dispatchers are salaried; they work 45 hours a week
and are not paid for overtime work. Also unlike the
clericals, the dispatchers are paid for sick days and
are eligible to participate in a disability insurance
program available only to management employees.
Furthermore, the dispatchers have at their disposal
a copy of the Employer's "Labor Relations Guide,"
given to them by Fay to acquaint them with all areas
of supervision. Fay regularly reviews the Company's
profit-and-loss statement with the dispatchers, and
circulates to them various interoffice memoranda
originating from Grand Rapids. Both dispatchers
attend and participate in meetings along with other
management employees.
Considering all the circumstances, I find that the
dispatchers do in fact exercise supervisory authority,
particularly with respect to directing the dockworkers
in their duties and authorizing overtime and early
quit, and their control over an intoxicated driver. I
would therefore exclude them from the unit.