Para-Chem Southern, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1981

258 N.L.R.B. 265 (N.L.R.B. 1981)

PARA-CHEM SOUTHERN, INC.
Para-Chem Southern, Inc. and John H. Lunsford.
Case 11-CA-8997
September 24, 1981
DECISION AND ORDER REMANDING
PROCEEDING TO THE
ADMINISTRATIVE LAW JUDGE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 13, 1981, Administrative Law Judge
Thomas D. Johnston issued the attached Decision
in this proceeding. Thereafter, counsel for the Gen-
eral Counsel filed exceptions and a supporting
brief, and Respondent filed a response in opposition
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herein.
The Administrative Law Judge concluded that
John Lunsford was a supervisor within the mean-
ing of Section 2(11) of the Act. As a result, he
found it unnecessary to decide the question of
whether Lunsford quit, was lawfully discharged, or
was unlawfully discharged for engaging in union
activities. For the following reasons, we reverse
the finding of the Administrative Law Judge that
Lunsford was a supervisor and remand this pro-
ceeding for further findings as to the circumstances
surrounding Lunsford's separation of employment
with Respondent.
In concluding that Lunsford responsibly directed
the work of employees and possessed and exercised
authority over employees, the Administrative Law
Judge relied primarily on secondary indicia, i.e.,
those not specifically enunciated in Section 2(11) of
the Act.
The Administrative Law Jugde placed great
weight on the fact that Lunsford was a salaried
employee and received higher pay than other em-
ployees in the shipping and receiving department
of Respondent. While salary is one factor taken
into consideration by the Board when assessing su-
The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
258 NLRB No. 27
pervisory status, the underlying reasons for Luns-
ford being switched from an hourly to a salary
status are quite helpful in this regard. Unrebutted
testimony at the hearing reveals that the reason
that Lunsford was made a salaried employee was
because Lunsford's overtime wages were, in the
opinion of the Company, too high. At the time that
Lunsford became salaried, his duties did not
change, leading to the conclusion that his status
also did not change.
Lunsford's coverage under a long-term disability
insurance policy, carried by Respondent, was also a
factor found significant by the Administrative Law
Judge. However, also included on the policy, dated
November 1, 1979, were employees Terry Taylor
and Jerry Templeton. Taylor was promoted to a
supervisory position on November 14, 1979, when
he was named traffic manager of the shipping and
receiving department, while Templeton, a clerk in
the same department, was not promoted to supervi-
sor until sometime in 1980. The Board has long
held that the prospect of being promoted to supervi-
sor is not indicative of supervisory status. Fred
Rogers Company, 226 NLRB 1160 (1976). Respond-
ent's contention that Templeton was considered to
be a supervisor in March 1979 is unsupported by
the record.2 Templeton testified that he went from
hourly to salary in terms of wages in March 1979,
but that his duties did not change, and that no one
told him he was a supervisor at that time. Temple-
ton also related that it was only later that a memo
was circulated proclaiming his promotion to super-
visor. This testimony is directly contrary to that of
John Jordan, the chairman of the board. Jordan
testified that memos were not circulated for those
promoted to a low-level supervisory status.
The Administrative Law Judge also relied on
testimony to the effect that Lunsford had received
copies of memorandums sent only to management
and supervisory personnel. However, it was ac-
knowledged by John Jordan that Lunsford, as
senior person in the shipping and receiving depart-
ment, would have to have knowledge of the proce-
dures outlined in the memos in order for the de-
partment to function efficiently. Jordan also ad-
mitted that hourly employees did receive copies of
the memos.
The Administrative Law Judge also found that
Lunsford had attended management training
classes. James Kerr testified that Lunsford had at-
tended a TIPS (Threats, Interrogation, Promises,
2 Apparently. different members of management had different ideas of
when people became supervisors. James Kerr. executive vice president of
production and plant manager, testified that he had considered Mickey
Propers and Alvin Waters to be supervisors "in his] mind" before they
were made supervisors.
265
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
Surveillance) meeting "back in 1970, 1971, 1972,
somewhere in there."3 Even if Lunsford did attend
such a meeting, we would note that, at the time of
the alleged meeting, Lunsford was the only em-
ployee in the department.
Finally, the Administrative Law Judge relied on
the fact that Lunsford had his own mailbox and a
reserved parking space in concluding that Lunsford
was a supervisory employee. However, Lunsford
received the mailbox at the time that he com-
menced working in the department, at which time
he was the only employee in the department. He
continued to maintain the mailbox throughout his
years at the Company. As for the parking space,
uncontradicted testimony revealed that Lunsford
had received the space only shortly before leaving
the Company and that other nonsupervisory em-
ployees, specifically laboratory and office person-
nel, also received reserved parking spaces. The ex-
istence of these two factors is not determinative in
resolving the supervisory question.
We note that the Administrative Law Judge
failed to enumerate other secondary indicia in his
findings, normally relied on by the Board in deter-
mining supervisory status, that were presented
during testimony and were unrefuted. These indicia
are as important as those that the Administrative
Law Judge did rely on in reaching his conclusion.
For example, Lunsford failed to receive the annual
bonus that went to all supervisors. Formerly, all
personnel had received annual bonuses. However,
approximately 3 years prior to the events in ques-
tion, it was decided that the bonuses would be con-
tinued in the future only for supervisory and man-
agement personnel. It should also be noted that, at
the meeting announcing such a change, attended by
Respondent's management and supervisory person-
nel, John Lunsford was absent.
Another factor bypassed by the Administrative
Law Judge was that of the ratio of supervisors to
employees in the shipping and receiving depart-
ment. The Board has held that it will look to the
ratio between supervisors and employees in deter-
mining the supervisory status of an employee. Mon-
arch Federal Savings and Loan Association, 237
NLRB 844 (1978). In Monarch, the Board found
that if the employee in question had been found to
be a supervisor, the resulting ratio would have
three supervisors for seven employees, a ratio of 1
supervisor for every 2.3 employees. Relying on this
factor, among others, the Board found the employ-
ee not to be a supervisor. In the present situation,
testimony revealed that there were 11 employees to
be supervised. Assuming arguendo that Lunsford is
3 In all probability. the alleged meeting took place in 1972 since there
was evidence that there alas an attempt in 1972 to organize the plail
a supervisor, that leaves 10 employees to be super-
vised by 3 supervisors (Waters, Taylor, and Luns-
ford), a ratio of I to 3.3.4
Also, the Administrative Law Judge failed to
rely on the fact that Lunsford, unlike Taylor and
Templeton, wore a uniform provided by Respond-
ent. The former wore casual clothes in the per-
formance of their duties. The presence or absence
of a uniform is a factor relied on by the Board in
determining supervisory status. Bekins Moving &
Storage Co., 211 NLRB 138 (1974).
In addition to relying on the foregoing indicia,
the Administrative Law Judge also found that
Lunsford possessed and exercised authority over
employees including the authority to grant employ-
ees time off from work; to approve vacation sched-
ules, timecards, and delay time for drivers; and to
assign employees work. The Administrative Law
Judge also concluded that Lunsford was consid-
ered to be a supervisor by the employees. Such
findings are not reflected in the record. As for the
Administrative Law Judge's finding that Lunsford
could grant time off and vacations, George Propes,
a driver, testified that he could not recall talking to
Lunsford about requests for time off. He did recall
requesting time off to attend a funeral, but he made
that request of Waters. Propes also testified that he
would tell Lunsford when he was going to be on
vacation. This would seem logical since Propes
would be unavailable for driving if he were on va-
cation. Lunsford would then know not to include
Propes' name on the rotational system of assigning
loads to drivers. The testimony of Larry Brewer, a
driver, reveals that he did request time off or vaca-
tion time through Lunsford, who would then make
a note of it and respond to Brewer at a later time.
Wes Hinson, a driver, testified that Lunsford could
not grant him vacation time. None of the employ-
ees who testified that they had requested time off
from Lunsford were aware of who granted their
request. Lunsford and Waters testified that the
former would make a note of the request and con-
sult with the latter concerning the employee's re-
quest. This testimony was not refuted by Respond-
ent. The record does not reveal that Lunsford
could exercise independent judgment in this regard.
The same is true of employees' requests for raises.
4 The number of employees o be supervised is effectivel reduced
since five of the employees ,ere drivers, who spent the majority of their
time away from the plant. That would leave five employees to be super-
vised by three supervisors (Waters. Taylor. and Lunsford), a ratio of I to
I 6
If, as Respondent contends, Jerry Templeton was a supervisor at this
lime. that would leave four supervisors for four employees, a ratio of 1 to
I See Spector reight Sstem, Inc.. 216 NLRB 551 (1975). where a ratio
of I to 2 was one of the factors relied on by the Board in finding that
dispatchers ere nlot supervisors
266
PARA-CHEM SOLUTHERN, INC.
While Hinson testified that Lunsford could not
grant raises, other employees testified that they in-
quired of Lunsford how long it would be before
they would be eligible for a raise. This is not indic-
ative of any discretion possessed by Lunsford in
this area.
In its brief, Respondent asserts that Lunsford ef-
fectively recommended that Terry Propes, a
driver, be fired. However, in this regard the record
reveals only that Lunsford denied having any au-
thority to recommend that either this particular
employee or any employee be discharged. Re-
spondent failed to offer any affirmative evidence to
support its assertion that Lunsford did possess such
authority.
The record also does not support the Adminis-
trative Law Judge's finding that Lunsford could
approve delay time for the drivers or approve em-
ployee timecards. Lunsford merely indicated on the
sheets whether the driver had, in fact, called in ex-
plaining that he would be delayed. The sheet was
then passed on to Waters who had to approve the
payment of the delay time. The same is true of the
timecards. While Lunsford would tally the cards
the majority of the time, others, including Daisy
Childers, a clerk in the shipping and receiving de-
partment, would occasionally perform the tallying.
In fact, Wes Hinson testified that when he did have
a problem with his timecard, he would seek to cor-
rect the problem through Waters, not Lunsford.
Nor does the record reflect that Lunsford, in an
exercise of discretion, could effectively assign work
to the employees. There was lengthy testimony
concerning the system of dispatch employed by
Respondent. Basically, the system entailed the
person who was dispatching the trucks to line up
the load to be sent with the next available driver.
The person dispatching was not able to engage in a
pick-and-choose method of assigning runs. All of
the drivers testified that it was not just Lunsford
who could dispatch them but also Jerry Templeton
(while he was a clerk in the department) and Daisy
Childers. The fact that Larry Brewer considered
that Lunsford was dispatching him on "trash" runs,
i.e., those that were not as financially rewarding as
others, does not mean that Lunsford could funnel
undesirable runs to drivers. Brewer never men-
tioned this to Lunsford; rather, he complained to
James Kerr. There is no indication in the record as
to how the matter was resolved, if in fact it were
resolved.
The Administrative Law Judge also determined
that the employees looked to Lunsford as their su-
pervisor. At best, the record is ambiguous as to this
finding. Larry Brewer considered Waters, not
Lunsford, to be his supervisor. John McDaniel, a
driver, considered Lunsford to be a supervisor of
the drivers, because he would tell him where to go:
i.e., he would dispatch him. McDaniel admitted
that he had never been told that Lunsford was a
supervisor but "presumed" it since he saw Luns-
ford in the shipping and receiving department. He
also admitted that he tried not to observe what
went on in the department when he was not on a
driving run. Daisy Childers testified only that she
reported to Lunsford. Wes Hinson testified that he
did not consider Lunsford to be his supervisor.
Aside from the findings of the Administrative
Law Judge outlined above, Respondent points to a
memo issued from Waters, dated May 31, 1979,
which states that Lunsford would "continue to su-
pervise- Jerry Templeton and Mitchell Kilgore, as
well as the dispatching of all truck drivers" and
which requested all employees to contact Lunsford
in routine matters. However, the mere term "super-
vise" is not determinative in assessing supervisory
status. Sol Henkind, an Individual d/b/a Greenpark
Care Center, etc., 231 NLRB 753 (1977). Also, the
memo itself points out that Lunsford was to handle
routine matters. Waters testified that the reason for
the memo was the extra responsibilities that had
been assigned to him. By the memo, he hoped to
inform the employees that he was not to be both-
ered by minutiae. Lunsford had been in the employ
of Respondent for 18 years and in the department
for almost 8 years. Thus, in light of his experience
and familiarity with the operations of the depart-
ment, Lunsford would naturally be consulted by
other employees on routine matters.
We similarly fail to find that Lunsford exercised
independent judgment by representing Respondent
at a South Carolina Public Service Commission
hearing in 1972 or by "negotiating" a commodity
rate for Respondent. Lunsford's representation at
the hearing must be reviewed in terms of the time
frame. At the time he represented Respondent,
Lunsford was the only employee in the depart-
ment. The record does not reveal that he had to
make any decisions on behalf of Respondent. Nei-
ther does the commodity rate negotiation illustrate
independent judgment by Lunsford. The rate was
already in existence. What Lunsford did was
merely request that Para-Chem be made a party to
the rate. No exercise of independent judgment was
required in order to secure the rate for Respond-
ent.
Upon finding that Lunsford was a supervisor, the
Administrative Law Judge found it unnecessary to
determine whether Lunsford was discharged (law-
, Waters testified that he did Ilnt hvrt the authority to make I.unsford
a uper. isor
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully or unlawfully) or whether he had quit, con-
cluding that, as a supervisor, Lunsford was not en-
titled to the protection of the Act. In light of our
finding that Lunsford is not a supervisor, we are
not left with any determination as to the specific
nature of the severance of Lunsford's employment
relationship with Respondent. We find it necessary
to remand the proceeding to the Administrative
Law Judge for further findings in this regard.
In sum, we find that Lunsford's activities while
employed by Respondent are insufficient to estab-
lish a finding that he was a supervisor within the
meaning of Section 2(11) of the Act. Any direction
or instruction by Lunsford is attributable essentially
to his familiarity with the operation of the shipping
and receiving department. Lunsford had been em-
ployed at Para-Chem almost as long as his supervi-
sor, Red Waters. As such, he had become familiar
with the department and Waters relied on him ex-
tensively in the day-to-day operations. According-
ly, we reverse the finding of the Administrative
Law Judge pertaining to the supervisory status of
John Lunsford and remand the entire proceeding
to the Administrative Law Judge for further find-
ings as to the circumstances surrounding Luns-
ford's severance of employment with Respondent,
and for the issuance of a Supplemental Decision.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusions of
Law 3:
"3. John Lunsford is an employee within the
meaning of Section 2(3) of the Act, and is not a su-
pervisor within the meaning of Section 2(11)."
ORDER
It is hereby ordered that this case be, and it
hereby is, remanded to the Administrative Law
Judge for the preparation of a Supplemental Deci-
sion containing findings of fact, conclusions of law,
and recommendations, in accordance with this De-
cision and Order Remanding and that, following
service of such Supplemental Decision on the par-
ties, the provisions of Section 102.46 of the Board's
Rules and Regulations, Series 8, as amended, shall
be applicable.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge:
This case was heard at Spartanburg, South Carolina, on
October 30 and November 19 through 21, 1980, pursuant
to a charge filed on March 17, 1980, by John H. Luns-
ford, an individual, in Case 11-CA-8997 and a consoli-
dated complaint issued on June 2, 1980.
The consolidated complaint,' which was amended at
the hearing, alleges Para-Chem Southern, Inc. (herein re-
ferred to as the Respondent), violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended
(herein referred to as the Act), by interrogating an em-
ployee concerning his union activities and sentiments and
discriminatorily discharged and refused to reinstate John
Lunsford because he joined or assisted the Union or en-
gaged in other union or concerted activities2 with other
employees for the purpose of collective bargaining and
other mutual aid and protection.
The Respondent in its answer dated June 6, 1980,
which was amended at the hearing, denies having violat-
ed the Act as alleged. It asserts as defenses in its answer
that the consolidated complaint fails to state a claim
upon which relief can be granted; 3 that the Board is
without jurisdiction over Lunsford's claims because he
was a supervisor within the meaning of Section 2(11) of
the Act; and that Lunsford quit by abandoning his man-
agerial job.
The issues involved are whether Lunsford was a su-
pervisor under the Act and whether the Respondent vio-
lated Section 8(a)(l) and (3) of the Act as alleged by un-
lawfully interrogating an employee and discriminatorily
discharging and refusing to reinstate Lunsford because of
his union membership and activities.
Upon the entire record in this case 4 and from my ob-
servations of the witnesses and after due consideration of
the briefs filed by the parties, I hereby make the follow-
ing:5
I The consolidated complaint originally included Case I l-CA-9088 in-
volving an amended charge filed by James Waters; however, that case
was withdrawn at the request of the General Counsel on the grounds
that Waters had refused to cooperate in the investigation of that case and
as a result of which it was felt the evidence would not justify its decision
to issue a complaint. Since these are issues solely within the province of
the Regional Director, subject to appeal to the General Counsel, to de-
termine the case was remanded to the Regional Director.
2 The General Counsel defined concerted activities to mean only union
activities.
3 Inasmuch as the allegations contained in the consolidated complaint
on their face sufficiently allege a violation under Sec. 8(a)(1) and (3) of
the Act, this defense is hereby rejected.
4 Subsequent to the close of the hearing the Respondent filed a motion
dated December 18, 1980, to reopen the record for the limited purpose of
receiving into evidence Resp. Exh. 19, which is a decision issued by the
South Carolina Employment Security Commission dated March 7, 1980,
regarding a claim filed by John Lunsford; Resp. Exh. 20, which is a deci-
sion issued on June 13, 1980, by the full commission of the South Caroli-
na Employment Security Commission on an appeal of that claim; and a
certified copy, which shall now be designated Resp. Exh. 25, of an Order
issued by Judge James W. Sparks of the court of common pleas for the
County of Greenville dated November 3, 1980, affirming the Commis-
sion's decision. Resp. Exhs. 19 and 20 were rejected at the hearing on the
grounds a final decision had not issued and since Resp. Exh. 25, which
was obtained from the clerk of court on December 18, 1980, appears to
be a final decision on Lunsford's claim. Resp. Exhs. 19. 20, and 25 are
hereby received in evidence. Although such decisions are admissible they
are not binding upon the Board. See Cadillac Marine d Boal Company,
115 NLRB 107, fn. I (1956); erovox Corporation, 104 NLRB 246, 247
(1953).
5 Unless otherwise indicated the findings are based on the pleadings,
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
268
PARA-CHEM SOUTHERN. INC.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation licensed to do business
in the State of South Carolina, owns and operates a plant
located at Simpsonville, South Carolina, where it is en-
gaged in the production of adhesives and chemicals.
During the 12-month period preceding June 2, 1980, a
representative period, Respondent shipped products,
valued in excess of $50,000, from its Simpsonville plant
to points located outside the State of South Carolina and
it also received at its Simpsonville plant, goods and raw
materials, valued in excess of $50,000, directly from
points located outside the State of South Carolina.
Based upon the foregoing, I find the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 28
(herein referred to as the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a plant located at Simpson-
ville, South Carolina, where it is engaged in the produc-
tion of adhesives and chemicals. Included among its offi-
cial and supervisory personnel are Chairman of the
Board John Jordan III, Vice President Frank Dennis,
Traffic Manager Terry Taylor, and Executive Vice
President of Production and Plant Manager James Kerr. 6
James Waters, who previously served as traffic manager
and purchasing agent, was also a supervisor under the
Act.
The Respondent's employees are not represented by
any labor organization. Prior to the time Lunsford last
worked for the Respondent no labor organization was
engaged in an organizing campaign seeking to represent
them.
B. The Supervisory Status of Lunsford
John Lunsford, the alleged discriminatee, was em-
ployed by the Respondent from 1961 until November 26,
1979. 7 He worked in the shipping and receiving depart-
ment where he was the most senior employee among the
11 employees including 4 over-the-road truckdrivers and
I local truckdriver employed there. This department was
under James Waters, who served as both traffic manager
and purchasing agent up until November 14, when Terry
Taylor replaced Waters as traffic manager and took over
the department. Waters continued as purchasing agent
until his termination on April 16, 1980.
a These individuals are supervisors under the Act.
I All dates referred to are in 1979 unless otherwise stated
Lunsford, unlike the other employees in the depart-
ment who were paid on an hourly basis,8 was salaried as
were other supervisory personnel who also received pay
for work missed due to sickness or injury. Lunford's
salary was $19,000 a year, while Chairman Jordan esti-
mated the hourly rate of employees in the department
varied from $4.05 to $5.70 an hour for an annual income
of between approximately $11,000 to $15,000. Lunsford
did not receive a bonus as did Waters.
Lunsford wore a uniform furnished by the Respond-
ent. His duties as described by him included typing bills
of laden, calling trucks, dispatching common carriers and
company trucks,9 running errands to the post office and
airport, unloading trucks, packing samples for shipment,
and cleaning the shipping office. He did not have an
office of his own but used the shipping office.
Former Purchasing Agent Waters estimated Lunsford
spent approximately 70 percent of his time on shipping
and receiving duties, 20 percent on errands, and the re-
maining 10 percent goofing off. He acknowledged that in
1972 Lunsford represented the Respondent in a public
service commission hearing.
Lunsford, who denied he was not a supervisor but
contended he was a leadman, denied having authority
over employees to hire, fire, transfer, discipline, promote,
grant raises, evaluate performances, check employees'
work, schedule vacations, assign overtime, or to effec-
tively recommend hiring, firing, or discipline. While
Lunsford also denied having the authority to grant em-
ployees time off from work, he admitted under cross-ex-
amination he had told employees, who asked him for
time off when Waters and Executive Vice President
Kerr were not there, that it would be all right where-
upon they would then take off and admitted he had also
given an affidavit to a Board agent acknowledging
having okayed employees' time off.
While Waters corroborated the testimony of Lunsford
about his duties and authority and denied he consulted
with Lunsford on any decision he made himself concern-
ing employees, a memorandum from Waters dated May
31 to all the employees in the department informed them
that Lunsford as in the past would continue to supervise
Jerry Templeton and Mitchell Kilgore as well as dis-
patching all truckdrivers and requested the employees to
contact Lunsford on day-to-day routine matters pertain-
ing to the department. Waters' explanation for issuing the
memorandum was his duties as purchasing agent had in-
creased significantly and he did not have time to be in-
volved in everyday routine matters which took place in
the department. His duties as traffic manager also includ-
ed working with regulations issued by the Interstate
Commerce Commission and the Department of Trans-
portation to assure compliance. This memorandum was
issued the same day as Chairman Jordan issued a memo-
randum notifying the employees in the department that
Waters would be in charge of the department including
the truckdrivers but would not physically handle the de-
8 Terry Templeton, who worked in the department as Lunsford's as-
sistant, was paid at the hourly rate of $5.40 an hour until March when he
was placed on salary earning 16.000 annually.
9 The truckdrivers are dispatched on a rotating basis.
269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partment but would reorganize, reconstruct, and super-
vise all activities in it.
Lunsford, unlike rank-and-file employees, admittedly
had a reserve parking place and a mailbox in the general
office with his name on them as did the supervisory per-
sonnel.
Two employees who worked in the department, Larry
Brewer and Wesley Hinson, Jr., called as a witness by
the General Counsel, testified they did not consider
Lunsford to be a supervisor. Brewer, a truckdriver,
denied that Lunsford, who he said along with Jerry
Templeton and Daisy Childers dispatched him, could
give him a raise, reprimand him, or check his work and
stated he viewed Waters as his and the truckdrivers' im-
mediate supervisor who he would go to about problems
or grievances. Under cross-examination, however,
Brewer stated Lunsford primarily dispatched him and he
had observed Lunsford giving assignment to the shipping
and receiving employees and considered him to be a su-
pervisor.10 He also said he scheduled his vacation
through Lunsford and Lunsford had granted his request
for time off from work for as much as a week at a time
when his wife and later his son were ill. Although
Brewer admitted he did not know whether anyone else
besides Lunsford had approved his request for leave,
Lunsford did not testify they did.
Hinson, who claimed Lunsford was a leadman, denied
Lunsford could give him a raise, reprimand him, or ap-
prove his vacation and stated that when he occasionally
substituted as a driver he would contact Waters if he had
any problems. Under cross-examination Hinson acknowl-
edged it was Lunsford who gave him his assignments.
The Respondent presented several officials and super-
visors as well as other employees in the department who
testified concerning Lunsford's supervisory status. Both
Chairman Jordan and Executive Vice President Kerr tes-
tified Lunsford was a supervisor and like other supervi-
sory personnel was provided with long-term disability in-
surance benefits coverage; received copies of communi-
cations directed solely to management and supervisory
personnel; attended production meetings; approved vaca-
tion schedules; in early 1970 attended management train-
ing classes; possessed the authority to excuse employees
from work for sickness, emergencies, and personal leave;
approved timecards of employees including overtime
pay; and approved delay time for truckdrivers. Respond-
ent's records concerning its policy with the Unionmutual
Stock Life Insurance Company of America reflect that
Lunsford was covered by the group insurance policy for
management and supervisory personnel and copies of
communications directed to management and supervisory
personnel during June, July, September, and November
list Lunsford as one of those persons scheduled to re-
ceive a copy.
Traffic Manager Taylor, who became Lunsford's su-
pervisor on November 14, also described Lunsford,
whose duties and responsibilities he denied were
changed, as being a supervisor and stated Lunsford re-
10 While Brewer admitted giving an affidavit to a Board agent in
which he stated he did not view Lunsford as a supervisor, he explained
this was in answer to a question about whether Lunsford was a supervi-
sor over the truckdrivers rather than employees in the department.
ceived copies of communications directed only to mem-
bers of management and supervision. Both Larry Brewer
and Johnny McDaniel, who worked under Lunsford,
corroborated Taylor's testimony that there had been no
changes in Lunford's duties after Taylor took over the
department. According to Lunsford, after Taylor took
over the only thing Taylor told him was that he under-
stood people were going to Lunsford to set up their va-
cations, which Lunsford denied, and told him to tell the
employees if they had problems to go to Taylor.
A memorandum dated October 4, 1976, dealing with
hazardous materials and containing the name Lunsford
and the title of shipping manager after the name, was
identified by Executive Vice President Kerr as being
posted in the shipping office up until Lunsford last
worked on November 26. While Lunsford admitted
having seen the memorandum he denied having the title
or preparing it and stated he was not sure whether it
contained his signature.
Those employees presented as witnesses by the Re-
spondent and who all worked in the department were
Johnny McDaniel, George Propes, Daisy Childers, and
Jerry Templeton. They all testified that Lunsford as-
signed them their work and they considered him to be
their supervisor.
McDaniel, a local truckdriver, stated that he was in-
structed by Lunsford where to go and what to pick up
including trips to the airport and post office and on occa-
sions was assigned backhauls.
Propes, a truckdriver, besides being assigned hauls
which are assigned on a rotating basis, testified he was
also instructed by Lunsford to help certain customers
unload deliveries. Childers, a clerk, stated that Lunsford
dispatched the trucks and his instructions to her included
typing up employees' timecards for him to sign.
Templeton, who has since then taken over the job
Lunsford previously held, testified that upon being as-
signed to work in the department Waters informed him
he would be Lunsford's assistant. Although he was later
made a supervisor and put on salary by Chariman
Jordan, he continued to report to Lunsford.
McDaniels, Propes, Childers, and Templeton all testi-
fied that Lunsford had granted them time off from work.
Templeton further stated that when he made errors
Lunsford would correct him and Propes testified he co-
ordinated his vacation schedule with Lunsford.
Lunsford, whose testimony was corroborated by
Waters, acknowledged attending production meetings
but stated he did so at Waters' request. He also acknowl-
edged tallying the employees' timecards and signing
them and listed and signed delay time as reported by the
truckdrivers but denied he approved them for pay pur-
poses which he said was Waters' responsibility. Lunsford
also denied receiving copies of memorandums sent to su-
pervisors and management, attending management meet-
ings, or receiving insurance only managers received.
I credit the testimony of Respondent's witness Chair-
man Jordan, Executive Vice President Kerr, Traffic
Manager Taylor, employees Johnny McDaniel, George
Propes, Daisy Childers, and Jerry Templeton concerning
the supervisory status of John Lunsford rather than that
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PARA-CHEM SOUTHERN. INC.
of the General Counsel's witnesses John Lunsford,
former Purchasing Agent Waters," Larry Brewer, and
Wesley Hinson, Jr.
Besides my observations of the witnesses in crediting
Respondent's witnesses, their testimony is supported both
by company records and admissions and acknowledge-
ments made by the General Counsel's own witnesses
elicited through cross-examination. For example, memo-
randums addressed to management and supervisory per-
sonnel listed Lunsford as among those persons designat-
ed to receive a copy and Respondent's long-term disabil-
ity insurance policy records reflect Lunsford was cov-
ered as were other management and supervisory person-
nel. Insofar as admissions and acknowledgements made
by the General Counsel's witnesses under cross-examina-
tion, both Lunsford, contrary to his initial denial, and
Brewer admitted Lunsford had granted employees time
off from work. Brewer and Hinson also acknowledged
Lunsford assigned work to employees, while Brewer fur-
ther stated he scheduled his vacation through Lunsford.
Although Waters denied Lunsford was a supervisor his
testimony not only ignores his own May 31 memoran-
dum to employees in the department about Lunsford's
supervisory authority but also such memorandum contra-
dicts his denial.
C. The Alleged Unlawful Interrogation
Attorney Fred Suggs, while representing the Respond-
ent in the investigation of the charge which John Luns-
ford filed against the Respondent on March 17, 1980, in
the instant case, interviewed Wesley Hinson, Jr., who
worked in the shipping and receiving department where
Lunsford formerly worked. Suggs placed the conversa-
tion as occurring on May 23 while Hinson estimated it
occurred 5 to 7 months prior to his testifying on Novem-
ber 20, 1980.
Suggs, after advising Hinson of his rights and the pur-
pose of the interview, discussed with him the supervisory
status of Lunsford. Hinson testified Suggs then asked
whether Lunsford had ever talked to him about the
Union whereupon he mentioned Lunsford had talked to
him once in the breakroom and on another occasion
while going to J. M. Rogers. Hinson stated Suggs next
asked him how he felt about the Union at which time he
replied he felt the Union would be good for the Compa-
ny and mentioned the reason was because Supervisor
Danny Penley had harassed people. Under cross-exami-
nation, upon being questioned about whether Suggs had
specifically asked him how he felt about the Union or
whether he had volunteered such information to Suggs,
Hinson first answered to the best of his knowledge that
Suggs had asked him, but he later indicated he was posi-
tive Suggs had asked the question.
11 The Respondent, for the purpose of impeachment of Waters, prof-
fered as evidence a prior conviction by the Court of General Sessions.
Greenville, South Carolina, on March 11, 1959, for larceny of car radios
and a clock. This conviction, based on Waters' plea of guilty resulted in
an 18-month sentence suspended upon service of 3 months or payment of
a S150 fine and a 3-year probation. Such evidence, upon which ruling
was deferred, is hereby rejected on the grounds that more than 21 years
has since elapsed and no sufficient facts or circumstances have been
shown to warrant its consideration as required by Rule 609(b) of the Fed-
eral Rules of Evidence.
Suggs acknowledged asking Hinson whether Lunsford
had approached him about the Union and that Hinson
mentioned several occasions on which Lunsford had. He
also stated he asked Hinson how long his conversation
with Lunsford lasted and who else was present. Howev-
er, he denied asking Hinson any other questions and spe-
cifically denied asking Hinson how he felt about the
Union.
During the conversation Suggs stated that Hinson,
without being asked, volunteered he had informed Luns-
ford that unions could be both bad and good; that Super-
visor Penley had harassed people in the adhesive depart-
ment and a union might be good; and Lunsford had men-
tioned going to the union hall whereupon he had told
Lunsford he thought that might be a good idea because a
lot of people in the adhesive department had grievances.
According to Suggs, the Respondent had no indication
that Lunsford had engaged in any union activity prior to
receiving his claim from South Carolina Employment
Security Commission and his investigation was to deter-
mine whether Lunsford had engaged in union activities.
Although Suggs took a statement from Hinson who
described it as being one short sentence, at the time of
their conversation, which Hinson signed, it was not es-
tablished what happened to such statement and Hinson
testified Suggs informed him he would not use it.
I credit the testimony of Attorney Suggs rather than
Hinson and find Suggs did not unlawfully interrogate
Hinson about his union activities and sentiments as al-
leged. Apart from my observations of the witnesses in
crediting Suggs, he was not only more positive in his tes-
timony but Hinson's overall testimony indicated some
uncertainty about what actually transpired.
D. Analysis and Conclusions
The General Counsel contends that the Respondent
violated Section 8(a)(1) and (3) of the Act as alleged by
unlawfully interrogating an employee and discriminatori-
ly discharging and refusing to reinstate Lunsford because
of his union membership and activities. The Respondent
denies having violated the Act and asserts as defenses
that Lunsford was a supervisor under the Act and volun-
tarily quit work by abandoning his managerial job.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides, in pertinent
part: "It shall be an unfair labor practice for an employer
. . .by discrimination in regard to hire or tenure of em-
ployment or any term or condition of employment to en-
courage or discourage membership in any labor organi-
zation . . . .
Having found, supra, that Attorney Suggs did not un-
lawfully interrogate Wesley Hinson, Jr., about his union
activities and sentiments as alleged, the remaining issues
to be resolved are whether John Lunsford was a supervi-
sor under the Act and, if not, whether he was discrimin-
atorily discharged and denied reinstatement because of
his union membership and activities.
Section 2(11) of the Act defines a supervisor as "any
individual having authority, in the interest of the em-
271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees,
or responsibly to direct them, or to adjust their griev-
ances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment." An individual
need only have one of the indicia enumerated to be a su-
pervisor. Research Designing Service, Inc., 141 NLRB
211, 213 (1963).
The findings, supra, establish Lunsford, unlike rank-
and-file employees but like other supervisory personnel,
was salaried and received substantially higher pay than
employees in the shipping and receiving department; had
in his own name a mailbox in the general office and a
reserved parking space; was covered by the long-term
disability insurance policy; received copies of memoran-
dums sent only to management and supervisory person-
nel; and had attended management training classes. He
possessed and exercised the authority to grant employees
time off from work; approved vacation schedules; ap-
proved employees' timecards including overtime; ap-
proved delay time for truckdrivers; assigned employees
work; and was considered by employees to be their su-
pervisor.
Based upon the foregoing evidence, I find that Luns-
ford assigned and responsibly directed the work of em-
ployees in the shipping and receiving department requir-
ing the use of independent judgment and possessed and
exercised authority over them including granting em-
ployees time off from work and approving their pay and
vacation schedules and he also enjoyed benefits and
privileges limited only to management and supervisory
personnel and therefore he was a supervisor under Sec-
tion 2(11) of the Act.
Accordingly, having found that Lunsford was a super-
visor under the Act including the period he last worked
for the Respondent and as such would not be entitled to
the Act's protection from discharge because of his union
membership and activities as alleged, I find it unneces-
sary to decide the issue of whether Lunsford quit or was
discharged or the reason. Therefore, I find solely on the
grounds that Lunsford was a supervisor under the Act,
the Respondent did not violate Section 8(a)(1) and (3) of
the Act by discriminatorily discharging or refusing to re-
instate Lunsford as alleged.
CONCLUSIONS OF LAW
1. Para-Chem Southern, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 28, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent did not violate Section 8(a)(1) and
(3) of the Act as alleged in the amended consolidated
complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 1 2
It is hereby ordered that the amended consolidated
complaint in the instant case be, and hereby is, dismissed
in its entirety.
12 In the event no exceptions are filed as provided Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, 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.
272