Stationers Corp.

National Labor Relations Board - Board Decisions

May 21, 1952

99 N.L.R.B. 240 (N.L.R.B. 1952)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
else of rights guaranteed in Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. By discriminating in regard to the hire and tenure of employment of
Charles Fayne , thereby discouraging membership in United Gas, Coke and
Chemical Workers of America, CIO , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and 8 (a) (3)
of the Act.
7. The aforesaid labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume. ]
STATIONERS CORPORATION and WAREHOUSE, PROCESSING & DISTRSBU-
TION WORKERS UNION LOCAL 26, INTERNATIONAL LONGSHOREMEN'S
& WAREHOUSEMEN'S UNION, PETITIONER. Case No. 21-RC-1375.
May 21,1952
Supplemental Decision and Direction
On December 19, 1951, the Board issued a Decision, Direction, and
Order herein 1 in which it (1) overruled the challenges to 10 of the
11 challenged ballots; and (2) found that the Employer's exceptions
had raised material issues of fact as to the supervisory status of
William Kennoy, who cast the other ballot. The Board directed that
if, after the 10 challenged ballots were opened and counted, it should
appear that the ballot of William Kennoy could affect the results of
the election, a hearing should be held to determine whether or not he
was a supervisor at the time of the election.
Upon the opening and counting of the 10 challenged ballots, it
appeared that the ballot of William Kennoy might affect the results
of the election. Accordingly, on February 5, 15, and 19, 1952, pursu-
ant to the Board's Order, a hearing was held before Ben Grodsky,
hearing officer. The Employer and the Petitioner appeared and par-
ticipated.
On March 12, 1952, the hearing officer issued and served upon the
parties a hearing officer's report, a copy of which is attached hereto, in
which he found that William Kennoy did not in fact possess or assert
supervisory authority, and recommended that the challenge to his
ballot be overruled. The Petitioner filed exceptions to the hearing
officer's report, and the Employer filed a brief in support of the
report.
The Board 2 has reviewed the rulings of the hearing officer and finds
no prejudicial error was committed. The rulings are hereby affirmed.
The Board has considered the hearing officer's report, the exceptions,
197 NLRB 601.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to the same three-member panel participating in the
original decision [Members Houston , Murdock, and Styles].
99 NLRB No. 47.
STATIONERS CORPORATION 241
briefs, and the entire record in the cases and hereby makes the fol-
lowing findings :
In substance, the Petitioner contends that the hearing officer im-
properly appraised the testimony as to the status of William Kennoy
vis-a-vis the truck drivers and Wanda Talamentez and Eugene Curley,
two employees who work in the shipping department with Kennoy.
The hearing officer correctly found the following as to the functions
and duties of these individuals : William Kennoy, classified as dis-
patcher of orders or shipping clerk, works in a small office near the
receiving dock, and his principal duties are the distribution of
"charges" into baskets corresponding to certain truck routes, receiv-
ing telephone inquiries from customers and investigating the action
taken a particular order, waiting on customers who appear at the
warehouse during the absence of the employee who normally handles
such will-call orders, laying out furniture orders, and sorting and
filing copies of "charges." 4 Wanda Talamentez also works in the
same office and, with the exception of laying out furniture orders,
performs substantially the same work as Kennoy 5 Eugene Curley,
who handles freight shipments, was not an employee at the time of the
election, but he replaced an employee who was assigned similar duties.
The truck drivers 6 normally pick up the "charges" on their routes
after they have been sorted by Kennoy'or Talamentez, locate the orders
that have been filled by other employees, load, and deliver the mer-
chandise. They are permanently assigned to their routes by Wright,
the warehouse superintendent, and they regard him as their immediate
supervisor. If, a driver is absent, Kennoy reports that fact to Wright
or Anderson, the warehouse foreman, and one of them determines
whether the route should be delivered, and who is to make such deliv-
8 On April 7, 1952, New Furniture and Appliance Drivers, Warehousemen and Helpers
Union , Local 196 , A. F. L., filed a motion to set aside the election , to deny certification,
to permit intervention , and to conduct a new election . It indicates that , although at the
time of the election it had no interest in the proceeding, it has since been designated by a
majority of the employees within the unit found appropriate by the Board , and has filed
a petition for these employees in Case No. 21-RC-2493 . Under these circumstances, and
in view of the lapse of time since the election, it urges the Board to order a new election
herein and permit it to appear on the ballot.
Although mindful of the fact that a considerable period of time has elapsed since the
election, the Board is of the opinion that the parties hereto are nonetheless entitled to a
complete adjudication of the issues raised by the challenged ballots. Cf . American Thread
Company , 96 NLRB 956. Furthermore , the Board has heretofore held that a union
seeking to intervene in a consent -election proceeding must show that it had a repre-
sentative interest in the employees affected by the petition as of the date of the consent-
election agreement . Lufkin Foundry & Machine Company, 83 NLRB 768 . Accordingly,
we deny the motion in to to.
4 It appears that Kennoy 's duties have not changed substantially since the time of the
election.
5 Talamentez does more filing than Kennoy.
E There are 11 truck drivers assigned to regular runs which they usually make every
day ; in addition , 1 driver travels between the employer 's store and the warehouse with
orders of merchandise ; 1 driver is regularly assigned to picking up buy-out orders ; 2
truck drivers are regularly assigned to the delivery of furniture orders ; and 2 drivers are
regularly assigned to the delivery or surplus orders on other regular routes.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cries. Wright or Anderson also determines who is to assist the truck
drivers on heavy loads, and what work the truck drivers are to per-
form if their deliveries are completed early. Usually all such direc-
tions are conveyed to the drivers through Kennoy.7
We are persuaded, as was the hearing officer, that these facts do,
not support a finding that Kennoy exercises supervisory authority
within the meaning of Section 2 (11) of the Act. In reaching this
conclusion, we are mindful of the testimony of McCormick and Pru-
litsky suggestive of such authority. However, both these witnesses
were order clerks whose duties required only their occasional presence
on the loading dock. In our opinion they were therefore not too well
informed on the crucial issue of whether Kennoy was acting on his
own or pursuant to instructions from Wright or Anderson .8 On
the other hand, Thomas Wiemann, one of the Employer's truck drivers,
who the Petitioner contends was supervised by Kennoy, testified that
Kennoy did not direct him in his work, and that he was supervised
by either Wright or Anderson. We therefore find corroboration as
to the nonsupervisory status of Kennoy in the testimony of Wiemann
and do not rely on the testimony of McCormick and Prulitsky.
We are also mindful of the fact that such a holding would leave 2
supervisors for approximately 100 employees. However, like the
hearing officer, we are persuaded that the nature of the work at the
warehouse indicates the propriety of such a'ratio between supervisors
and rank-and-file employees.
Accordingly, as it does not appear that Kennoy uses independent
judgment in directing the work of any employee, or makes effective
recommendations with respect to pay, promotions, assignments, or
personnel action, and for the further reasons pointed out by the hear-
ing officer, we find that William Kennoy was not a supervisor within
the meaning of the Act at the time of the election. We shall therefore
order that his ballot be opened and counted.
Direction
IT IS HEREBY DIRECTED that, as part of the investigation to ascertain
representatives for the purposes of collective bargaining with the Em-
ployer, the Regional Director for the Twenty-first Region shall, pur-
suant to National Labor Relations Board Rules and Regulations,
within ten (10) days from the date of this Direction, open and count
the ballot of William Kennoy, and thereafter prepare and cause. to
be served upon the parties a supplemental tally of ballots, including
therein the count of the ballot described above.
P The Petitioner 's witnesses did not, In our opinion, effectively rebut the evidence that
Kennoy acts as a mere conduit of orders from Wright and Anderson.
8In this regard, we note that in relation to one conversation between Kennoy and a
truck driver , Prulitsky admitted that he had heard only part of the conversation while
waiting to speak to Kennoy.
STATIONERS CORPORATION 243
Hearing Officer's Report, Findings of Fact, and Recommendations
On December 19, 1951, the Board issued a Decision, Direction, and Order in
the above-entitled proceeding. A revised tally of ballots having been issued on
December 28, 1951, from which it appeared that the ballot of William Kennoy
may be determinative of the results of the election, and the Board having ruled
in its above-mentioned Decision that if the ballot is determinative of the results
of the election, a hearing should be held to determine whether or not William
Kennoy was a supervisor at the time of the election, the undersigned was desig-
nated as hearing officer by the Regional Director for the purpose of conducting
the hearing and preparing and causing'to be served upon the parties a report
containing resolutions of credibility of witnesses, findings of fact, and recom-
mendations to the Board as to the disposition of the issue. The hearing was
held on February 5, 15, and 19, 1952, before the undersigned hearing officer, at
which time the Employer and the Petitioner appeared and participated and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues. Briefs were received from
the parties and have been considered.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
The sole issue here is whether William Kennoy was a supervisor within the
meaning of Section 2 (11) of the Act during the payroll period ending June 30,
1950. Kennoy has been employed by the Employer for a period of approximately
14 years, and is classified as dispatcher of orders or freight or as a shipping clerk.
His office is located in a small office immediately adjacent to the loading dock.
Another employee, Wanda Talamentez, also works in the same office. Kennoy's
principal duties are the distribution of the invoices, known to the Employer as
charges, into various baskets representing the truck routes, receiving telephone
inquiries from customers regarding delivery and condition of merchandise, de-
livery of will-call orders when the employee normally handling them is unavail-
able, and the laying out of school furniture orders. Talamentez also shares in
these duties, with the exception of the laying out of school furniture orders and,
in addition, does most of the filing of the invoices or charges. Eugene Curley,
the remaining shipping department clerical employee, was assigned to the han-
dling of freight shipments.
The Petitioner contended that Kennoy was in charge of the shipping depart-
ment which included, in addition to Kennoy, Talamentez, and Curley, 14 truck
drivers and their occasional helpers or swampers. The Petitioner's main conten-
tion was that gennoy could responsibly direct the truck drivers and their helpers,
the swampers, in assignment. In the absence of unusual circumstances, the
truck drivers would pick up the charges which were placed by Kennoy or Tala-
mentez in the basket for their route, would sort out the orders and place them
in the truck for delivery in any fashion which the driver would deem appropriate.
Certain orders were marked "Rush," generally by the salesmen, and the drivers
knew that these orders were to be given priority for delivery. Occasionally, a
rush order would%be filled in the morning while the driver would be loading his
truck. In this case, Kennoy would give the charge to the driver, possibly with
a verbal instruction, calling the driver's attention to the fact that it is a rush
order. If a driver completed his deliveries and returned to the warehouse before
quitting time, Kennoy would assign him- work from tasks previously indicated to
him by Wright or Anderson.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The drivers were permanently assigned to their routes by Warehouse Super-
intendent Wright and they looked upon him as their immediate supervisor. If
the drivers wished a change In assignment, they would generally discuss,it with
Wright or Foreman Anderson. On occasion, drivers have discussed assignment
changes with Kennoy but he has referred them to Wright. Drivers have also
on occasion asked Kennoy about a wage increase; he has also referred that to
Wright. If a driver were absent, Kennoy would report that fact to Wright or
Anderson if it came to his attention and, at their direction, would instruct
another driver to take that run. In each Instance, the decision relative to the
change in pay or assignment was made by Anderson or Wright, and Kennoy
merely carried out their instructions.
There were occasions at infrequent intervals when drivers required helpers
or swampers. On such occasions, Kennoy would direct an employee to assist
a truck driver, after having been told by Wright or Anderson whom he could
use. On one occasion, Kennoy directed an employee to warn another employee
to improve his work habits under threat of discharge.
Several employees and former employees testified that they had overheard
Kennoy directing drivers and swampers. In view of Kennoy's explanation set
out above, r find that he was merely carrying out specific instructions of Wright
and Anderson in these Instances.
The Petitioner also contends that because there are about 100 employees in
the warehouse, there must be more than 2 supervisors. This contention is with-
out merit because there is no showing that the nature of the work is such that
it requires close supervision. In addition, assuming that more supervisors are
justified, this would not tend to establish Kennoy's status as a supervisor.
From Kennoy's actions, above described, it can be seen that he had been In-
vested with some of the indicia of supervisory authority. If the Issue were
whether the Employer is responsible for Kennoy's acts or statements beeause^of
his ostensible authority, a different result might be reached ; but the issue here
is whether Kennoy in fact is a supervisor. Under all the circumstances, it is
clear, and I find, that Kennoy did not in fact possess or assert supervisory au-
thority! I find that Kennoy was not, during the payroll period ending June 30,
1950, a supervisor within the meaning of the Act and that he was entitled to
vote in the election of July 14, 1950. I therefore recommend that his ballot be
opened and counted.
I Cf. Kraft Food8 Company, 97 NLRB 1097 ( Wrona).
KAISER MANUFACTURING CORPORATION, RICHMOND MACHINING DIvI-
SION and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL UNION No. 302, AFL, PETITIONER
KAISER MANUFACTURING CORPORATION, RICHMOND MACHINING DIVI-
SION and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT
LODGE No. 115) PETITIONER. Cases Nos. 20-1?-1735 and 20-RC-1753.
May t1, 1952 3
Decision and Direction of Elections
Upon separate petitions duly filed, a consolidated hearing was held
in the above cases before Robert V. Magor, hearing officer. The hear-
99 NLRB No. 45.