Bar & Barbeque Products

National Labor Relations Board - Board Decisions

Jun 1, 1977

229 N.L.R.B. 1058 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bar and Barbeque Products, Inc. and Miscellaneous
Warehousemen, Drivers & Helpers Local 986,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
Petitioner. Case 31-RC-3648
June 1, 1977
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the determinative
challenge to a ballot cast in an election held
November 5, 1976,1 and the Hearing Officer's
Report, pertinent parts which are attached hereto,
recommending disposition of same. The Board has
considered the entire record in this case in light of
the Petitioner's exceptions and brief and has decided
to reject the recommendation of the Hearing Officer.
Rather, for the reasons discussed below, we find that
Robert Russell is a supervisor within the meaning of
the Act and that the challenge to his ballot must
therefore be sustained.
The Employer is a California corporation engaged
in the production and sale of gift items. The
Employer employs approximately eight assembly
and warehouse employees at its plant in Woodland
Hills, California. Employer's owner and president,
Robert Stine, is regularly on the premises. The only
other admitted supervisor is Howard Barriscale,
Employer's purchasing agent.
Robert Russell began working for the Employer in
February 1971 and is by far its most senior
employee. 2 Russell works in the warehouse where his
duties include picking merchandise off the shelves,
shipping, stocking shelves, and preparing bills of
lading. In addition to these duties, Russell is also
responsible for preparing daily timesheets for the
approximately four warehouse employees.3 Unlike
other warehouse employees, Russell has a desk in the
warehouse where he admittedly spends about 25
percent of his working time. Russell is the only
salaried warehouse employee and, as such, he is not
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election approved by the Regional Director for Region 31
on October 21, 1976. The tally was: four for, and three against, the
Petitioner, there was one challenged ballot.
2 After Russell, the next senior warehouse employee is Joseph Forgo,
who had worked for the Employer only 9 months at the time of the hearing.
: When Russell is away, this is done by either Barnscale or Stine.
4 arriscale testified that prior to April 1976 he would enter the
warehouse five or six times a day Ibr 30 minutes per visit; since April, he
goes into the warehouse only two or three times per day. Robert Stine
229 NLRB No. 144
docked for time taken off and is not paid for
overtime worked, as are the other warehouse employ-
ees.
The warehouse is organized in such a fashion that
the employees' duties are well defined and routine.
However, there is an apparently high turnover rate
(see fn. 2, supra) and neither Barriscale nor Stine is in
the warehouse on a regular full-time basis.4 The
Employer admittedly utilizes Russell to convey
criticisms and instructions to the warehouse employ-
ees. For example, employee Donald Wilson testified
without contradiction that, when he was hired, Stine
told him that Russell "was the man I would have to
be taking orders from, and if I do anything wrong,
Russell scolds me .... " The warehouse employees
are instructed to call Russell when they are going to
be absent or late. They also report to him for
training.
Although Russell does not have the authority to
hire or fire employees, the record reveals that, in late
summer 1976 when employee Donald Wilson was
hired, Stine discussed with Russell the question of
when Wilson should begin his employment.5 It was
at this interview that Stine told Wilson that he would
be taking orders from Russell. Russell was also used
to inform the only two employees discharged during
his tenure ("Gus," in late Summer 1976, and Vincent
Rubino on or about October 13, 1976) that they were
terminated. 6
The Hearing Officer, without resolving credibility
issues, found that Russell supervises the workflow in
the warehouse; acts as a conduit for the Employer's
criticism of employees; relays to employees the
decision to terminate them; and grants time off for
absences when Barriscale or Stine is not available.
Nevertheless, the Hearing Officer concluded that
Russell is not a supervisor on the grounds that his
direction of the work of other employees is routine
and does not require the exercise of discretion and
independent judgment; there was no evidence that
new employees are told that Russell is their "boss" or
supervisor; and Russell's authority to grant time off
for absences is not sufficient supervisory authority to
render Russell a supervisor within the meaning of the
Act. Further, if Russell were found to be a supervi-
sor, the ratio of supervisory to nonsupervisory
employees would be I to 2.
testified that he was in the backroom "at least on or off 30 percent of my
time" at the plant, spread over many different visits.
5 Barriscale had primary responsibility for the hiring of employees.
Wilson is the only employee hired by Stine in the past several years.
6 The evidence is uncontroverted that Russell told "Gus" he was
terminated at the direction of Mrs. Robert Stine, Employer's bookkeeper
and wife of owner Stine. With respect to Rubino's discharge, Stine testified
that he informed Russell of his decision to terminate Rubino, and instructed
Russell to send Rubino into the office to tell him he was fired.
1058
BAR AND BARBEQUE PRODUCTS
We disagree with the Hearing Officer's conclusion.
Testimony of the Employer's witnesses and other
uncontroverted testimony in the record establish that
Russell directs the daily workflow of the warehouse
employees. And, although the work is routine once
the employees learn their duties, given the high
employee turnover rate, we find it unlikely that the
Employer would allow the employees to function
without full-time oversight. Additionally, we con-
clude that the Employer in fact holds Russell out to
be a supervisor. Thus, Wilson was told that Russell
was the man from whom he would take orders.
Russell also keeps records of the other employees'
work hours. He criticizes and directs their work and
grants them time off under circumstances where it
would be impossible for him to be acting on the
specific instructions of Barriscale or Stine, and was
put in the position of telling employees "Gus" and
Rubino that they were discharged. Furthermore,
Russell is the only salaried employee in the ware-
house. On the basis of the above, we conclude that
warehouse employees reasonably regard Russell as
their supervisor and that the Employer is responsible
for having created this impression. In these circum-
stances, we do not consider determinative the fact
that all warehouse employees were never explicitly
told that Russell was their boss or supervisor.
Accordingly, we find that Russell is a supervisor7
within the meaning of Section 2(11) of the Act, and
we shall sustain the challenge to his ballot.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Miscellaneous Warehouse-
men, Drivers & Helpers, Local 986, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the following
appropriate unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment:
All production and maintenance employees,
shipping and receiving employees, warehousemen
and truckdrivers employed by the Employer at its
plant located at 6140 Variel Avenue, Woodland
Hills, California. Excluded: all other employees,
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
7 See HowardJohnson Companv, 201 NLRB 376, 380(1973).
APPENDIX
F'NDrNos OF FACT
Petitioner's Witnesses
The Petitioner presented three witnesses in support of its
contention that Robert Russell is a supervisor. Vincent
Rubino testified that he was employed for about a month
until shortly before October 13, 1976, as a packer in the
warehouse, where four to seven employees work. He had
been hired by Howard Barriscale, whom the Employer
contends shares supervision of the warehouse with Robert
Stine, president and owner of the Employer. Rubino was
instructed in what to do by Joseph Forgo, another
warehouse employee. Rubino stated that Russell worked in
the warehouse and occasionally asked Rubino to pack
orders ahead of other orders, and he considered Russell to
be the supervisor. Russell keeps the time log for the
employees and records the total daily hours worked by
each employee.
Rubino testified that on the day prior to his termination,
in early October, his car "blew up" and he did not report
for work. He did not call in to report his absence, and it
appears from the record that he failed to call in as required
on at least one earlier occasion. When Rubino reported for
work the following day, these events occurred according to
his testimony: Russell told him that he would have to let
Rubino go because Rubino wasn't [at work] that much, it
was a busy time of year. Rubino said he wanted to talk to
Stine. Russell replied that it wouldn't do any good, the
decision was Russell's. Rubino met with Stine, who told
Rubino to go back to work. On cross-examination, Rubino
stated that he told Stine he needed the money for doctor
bills, and that Stine did not say whether he could get by
with Rubino's absences. After Rubino left Stine, Russell
went to Stine's office, returned, and told Rubino to stop
work. Rubino returned to Stine's office 30 to 45 minutes
later, at which time Stine told Rubino he was fired for
absences and would get a day's pay. Stine told Rubino that
Russell runs the backroom (warehouse) and it was
Russell's decision. Rubino testified that if Russell was
directed to discharge him, he did not hear it.
Rubino further testified that he did not receive direction
from Barriscale or Stine, who were seldom in the ware-
house, or from any employee other than Russell.
Employee Donald Wilson testified that he was inter-
viewed by Stine about 5 months prior to the hearing for a
job. Stine reviewed Wilson's application, described some of
the job duties, then called in Russell, reviewed Wilson's
application with him, and told Wilson that he would be
taking orders from Russell, that if Wilson did anything
wrong, Russell would scold Wilson, and Stine would scold
Russell. Stine asked Russell when he could work Wilson in,
there being apparently a question as to when Wilson could
start. Wilson testified that he was not actually hired by
Stine until after Russell was called in and Russell could tell
him when to start work. Wilson was put to work packing,
picking stock, and filling out United Parcel Service sheets,
among other unspecified duties. He testified that he called
in to Russell if he was going to be late or could not come to
work, and that Barriscale had told him to call Russell in
1059
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such instances. Russell told Wilson which orders to do first.
Wilson further testified that Russell asked him to work
overtime, which is voluntary. On two occasions, according
to Wilson's testimony, Russell criticized Wilson for not
working fast enough, and told him and Forgo that if they
had the attitude of not wanting to work fast enough, they
could leave. Wilson testified that he considers Russell to be
his supervisor.
On the day of Rubino's termination, Wilson overheard
Russell tell Rubino to stop work after Rubino returned
from Stine's office. He did not hear any of the other
conversations.
Wilson testified that, about a week after he was
employed, an employee identified only as "Gus" was
absent for a day, and upon returning to work, Russell took
him into the breakroom, out of Wilson's hearing. When
Gus came out, he announced that he was fired. Wilson
testified that he did not see either Barriscale or Stine in the
breakroom, and was sure that neither was there during the
conversation between Gus and Russell.
Russell spends 2 or 3 hours a day in warehouse work, the
rest on paperwork, according to Wilson.
Joseph Forgo testified that he was hired by Barriscale
about 9 months prior to the hearing. Forgo is the senior
warehouse employee after Russell. Russell gives him orders
for merchandise and gives him priorities in orders, and
Forgo asks Russell about substituting merchandise. He
reported to Russell after being hired, who assigned him to
another packer to learn the work.
Forgo also testified that he overheard Russell tell Rubino
to stop work on the day of his discharge, and that Rubino
sat about for approximately an hour, then left. Forgo also
observed Russell calling Gus into the breakroom, and
following the meeting, Russell remarked to the effect that
Gus wasn't working out.
Forgo testified that Stine had asked him to work
overtime once or twice that he recalled, and that Russell
had also asked him once or twice, possibly more.
Forgo also testified as to the alleged criticism by Russell,
that he presented grievances to Russell, who replied that if
Forgo's attitude didn't change, Forgo could quit.
On cross-examination, Forgo testified that the selection
of order priority is generally according to the cancellation
date, that there is no real decision to be made.
Forgo testified that he obtained permission for time off
from Russell, who gave permission immediately.
Employer's Witnesses
The Employer presented three witnesses to rebut Peti-
tioner's witnesses' testimony and to support its contention
that Russell is not a supervisor within the meaning of the
Act.
Howard Barriscale testified that he has been employed
about 6 months less than Russell. 2 He is purchasing agent,
does the inventory, does the hiring, and oversees the
backroom (warehouse). He sees that merchandise is
ordered and is put into proper places, while Stine oversees
the flow of orders in and out. Barriscale testified that Stine
does the firing, and, if Stine is absent, Mrs. Stine, who is
active in the business, can act in his place. Barriscale
presently goes into the warehouse area three or four times a
day for an average of 30 minutes each time. Until April
1976, when his wife became seriously ill and required
Barriscale's absence part of a day each week for medical
treatment visits, Barriscale was in the warehouse every day,
5 or 6 times a day.
Barriscale further testified that Russell was not involved
in hiring and is not consulted about hiring. Russell keeps
the time log because the warehouse employees start work at
8 a.m. and Barriscale does not start until 9 a.m. Company
policy requires calling in between 8 and 8:30 a.m. of the
day of an absence, and he believes that Rubino did not call
in the day prior to his termination, though Barriscale was
not involved in the termination.
Barriscale testified that Stine is responsible for discipline
and for deciding priority of orders, and the work of the
day-to-day warehouse operations is routine. If there are
any exceptions, they come from Stine. If any employee
wants to leave early or needs time off, Russell must check
with Barriscale or Stine before giving permission. Barris-
cale has called employees to check why they haven't called
in. Russell is salaried, at his own request, otherwise his
hours of work and benefits are the same as the other
warehouse employees. He cannot change work schedules
but can okay lunch hour adjustments for personal
convenience of employees. Barriscale never told employees
that Russell was "boss" or a supervisor and testified that he
told employees to come to him or Stine if they have
problems. Barriscale and Stine confer when the occasion
arises as to an employee's performance, e.g., absenteeism.
Robert Stine testified that he is continually going in the
backroom taking orders to be filled. He is aware of the
good and bad points of the employees from personal
observation. He estimates that he spends 30 percent of his
time in the backroom, spread over many visits. He knows
how long it takes to fill orders, having picked and packed
orders himself on occasion. Stine decides when overtime is
necessary and asks employees to work. Russell has no
authority, according to Stine, to assign overtime. Stine may
give orders to be filled directly to employees, even when
Russell is present, if there is a need, but normally gives
such orders to Russell.
As to the discharge of Rubino, Stine denied that he told
Rubino that the decision was Russell's and that it would
stand. According to Stine, Mrs. Stine brought Rubino's
absence record to Stine's attention. Stine told Russell that
he was to send Rubino to him when he saw him, that he
was going to fire Rubino. Stine testified that he decided to
terminate Rubino because of absences, when he didn't call
in, not because of absences for medical reasons. Rubino
came to see him. Stine told him he couldn't keep him,
Rubino argued that he needed the job, then Stine sent him
out. Stine denied that Rubino returned a second time.
As to the hiring of Wilson, Stine further testified that he
interviewed Wilson, reviewed his application, and told him
that he would be put to work, before Russell was called in.
When Russell came in, Stine read Wilson's application
2 Russell testified that he has been been employed since February 1971.
1060
BAR AND BARBEQUE PRODUCTS
aloud and discussed with Russell as to when Wilson could
start work. The following Monday was set due to payroll
considerations. Stine denied asking Russell when he could
begin training Wilson.
Stine further testified that criticism of employees comes
from him, he notices the employees' work, and there has
been a slowdown in the last 2 months. Russell relays
criticism of employees originated by Stine.
Stine testified that he has told employees to come to him
with problems. He denied that Russell can grant time off.
Robert Russell testified that he has been employed since
February 1971 and is the most senior employee. He spends
about 25 percent of his time at a table working on bills of
lading, UPS records, and other paperwork connected with
orders. He spends the remainder in taking inventories,
picking some orders, making samples, and other work not
specified. He is salaried at his own request, having made
the request about 1 1/2 years ago prior to getting married
and wishing to have a stable income. He does not receive
overtime and is not docked for time off. Orders for filling
are given him by Stine, who decides their priority based on
availability of merchandise, cancellation dates, and other
factors. Russell denied that he can decide priority.
Russell testified as to the discharge of Gus, that Mrs.
Stine told him that Gus had poor work habits and
attendance and to tell him he was fired, because she would
not be in until noon that day. Russell took Gus to the
breakroom and relayed the message. Russell testified that
he was not consulted about the discharge and the decision
was not his.
When Wilson was hired, Russell was called to Stine's
office and introduced to Wilson. Stine read Wilson's
application, said, "This looks like a pretty good fellow,"
and told Russell to start Wilson the following Monday.
Russell denied that he was consulted on hiring Wilson.
When Forgo came to him with grievances, Russell
testified, he told Forgo that he could not do anything, to
see Stine. He denied telling Forgo that he could leave if he
did not change his attitude.
Regarding Rubino's discharge, Russell testified that
Stine told him to let Rubino go because Rubino wasn't
calling in. When Rubino came in, and Russell told him he
was fired, Rubino asked if it was Russell's or Stine's
decision. Russell told him it was Stine's decision; Rubino
then asked to see Stine. After Rubino saw Stine and
returned to Russell, Russell denied that Rubino told him
that Stine said Rubino wasn't fired, he could stay, and
denied telling Rubino that it was useless to see Stine, and
denied that he told Rubino that he, Russell, made those
decisions.
Russell also stated that he never told employees he was
in charge, or that he was the one to see if they had any
problems. He denied that he hires, fires, changes work
schedules, changes orders in the sequence of processing,
grants permission to leave early, or replace Barriscale when
he is absent. He denied telling employees how to work,
saying only that he makes suggestions on better ways to do
the work.
ANALYSIS AND CONCLUSIONS
Testimony of Petitioner's witnesses concerned the direc-
tion of the work, criticism of employees' work, amount of
time spent in the warehouse by Supervisors Barriscale and
Stine, granting time off, the apparent position of authority,
the hiring of employee Wilson, and the firing of employee
Rubino and an employee known only as "Gus," who was
not a witness in this proceeding. Petitioner's witnesses'
testimony was deneid by the Employer's witnesses, in
general. I shall discuss the above areas seriatim
Testimony of witnesses for both Petitioner and Employer
concerning the nature of the warehouse work was that it
was generally repetitive, requiring little supervision after an
employee was established in the routine, and not a great
deal of supervision even while learning. Direction of work
of a routine nature, not requiring exercise of independent
judgment, is not sufficient to find that an employee is a
supervisor. The Barnsider, Inc., 195 NLRB 754. Therefore,
I conclude that Russell's supervision of the work flow is
routine in nature and that he does not responsibly direct
the work of the warehouse employees.
Petitioner's witness Wilson stated that, when he was
hired by Stine, Stine told him that if Wilson made an error,
Stine would scold Russell, who would scold Wilson. Stine
and Russell testified that Stine took his criticisms of
employees to Russell, who relayed them to the employees.
There being undisputed evidence that Stine would convey
criticisms through Russell, I conclude that criticism of
employees originated with Stine and were relayed through
Russell. There was no evidence presented as to actual
"discipline" of employees other than discharges.
Petitioner's witnesses testified that Barriscale and Stine
spent little time in the warehouse, whereas Barriscale and
Stine testified that they were in the warehouse constantly,
Barriscale stating that he was in there three or four times a
day for 30 minutes at a time. While there is an unresolved
dispute as to the amount of time Barriscale and Stine spend
in the warehouse, I conclude that they spend some time
each day in the warehouse, and, in view of the size of the
operation and the nature of the work, are in a position to
observe the employees.
Petitioner's witnesses testified that they call in to Russell
when they are going to be absent and he okays the absence.
The Employer's witnesses testified that Russell cannot
authorize absences on his own authority, that he receives
calls because there is no supervisor present to receive them
between 8 and 8:30 a.m. when they are required to call in.
The evidence establishes that Russell is at work generally
around 8 a.m. or shortly after, and receives calls from
employees who will be absent, and that Barriscale (and,
presumably, Stine) is not at work until 9 a.m. Barriscale
testified that he has called employees at home when they
do not call in, but this does not alter the fact that there is
no admitted supervisor at work at the time employees are
required to call in. It is therefore reasonable to conclude
that Russell has no one with whom to consult regarding
absences and perforce makes those decisions himself. The
record is silent as to whether Russell refuses permission.
Petitioner's witnesses testified that they considered
Russell to be their supervisor but no evidence was adduced
that Russell was introduced to new employees as their
1061
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"boss" or supervisor, or that employees were told when
they come to work that Russell is in charge of the
warehouse. The Employer's witnesses denied that Russell
was held out to be the boss or supervisor. In the absence of
this uncontroverted denial, I conclude that Russell was not
held out to be the supervisor.
Wilson testified that Russell was introduced to him
during the interview with Stine before Wilson was actually
employed, telling Wilson that he would be taking orders
from Russell, and asked Russell when he could work
Wilson in (to the job). Stine had orally presented Wilson's
application and commented that Wilson appeared to be a
good employee. The evidence supports a conclusion that
Stine asked Russell for a starting date for Wilson.
However, a reasonable conclusion may be reached, from
Wilson's testimony, that Stine had already made the
decision to hire Wilson and now needed only to know
when he could be actually employed. Employer's witnesses
testified that Stine decided to employ Wilson, and that
Russell had no part in the decision to employ him. I
conclude that the evidence does not support the finding
that Russell played any part in the hiring of Wilson.
In the matter of the discharge of Rubino, the evidence
establishes that Russell told Rubino he was fired for
absences, and that he returned from a meeting with Stine
and was told by Russell to stop working. There is a dispute
as to whether Russell told Rubino that the decision to fire
him was Russell's. Rubino alleges that Russell told him
that he made the decision, that Stine told him to return to
work, that Russell again told him to stop work; then
Rubino went back to Stine and was told he was discharged,
the decision was Russell's. Russell and Stine allege that
Stine decided to terminate Rubino because he failed to call
in, and Russell was informed of the discharge and told to
send Rubino to Stine when he reported for work. Inasmuch
as Rubino claims that he went to Stine twice and the
second time was told that he was discharged, it is
reasonable to conclude that Stine, having made the
decision to terminate Rubino, was of course aware of the
decision, otherwise he would have consulted with Russell
about the termination before overruling Russell and
sending Rubino out, ostensibly to return to work. Other-
wise, crediting Rubino's version, arguendo, if Russell had
made the decision to terminate Rubino, and Stine over-
ruled that decision by sending Rubino back to work,
Russell's effective authority to discharge Rubino was
negated, since Stine was accepting only Rubino's version of
the facts. I therefore conclude that the facts support a
finding that Stine made the decision to terminate Rubino
and that his decision was relayed by Russell.
The discharge of Gus presents evidence that Russell
summoned Gus into a private meeting, after which Gus
announced that he had been fired. Russell testified that he
discharged Gus at the order of Mrs. Stine. No evidence was
introduced to contravene this testimony. I conclude that
the evidence does not support a reasonable inference that
Russell himself discharged Gus.
Summarizing the foregoing conclusions, the record
evidence supports a finding that in only one area does
Russell exercise any supervisory authority: granting time
off for absence when Barriscale or Stine is not yet at work.
This limited authority is not sufficient to render Russell a
supervisor within the meaning of the Act, Cosby-Hodges
Milling Company, 170 NLRB 1137 (1968). In other areas
where it is contended that Russell exercises supervisory
responsibilities, the record evidence supports the conclu-
sion that his direction of other employees is routine and
does not require exercise of discretion and independent
judgment. Routine direction of employees is not sufficient
to render Russell a supervisor, Benson Wholesale Company,
Inc., 164 NLRB 536 (1967), The Barnsider, Inc., supra. In
addition, the ratio of supervisors to nonsupervisory
employees would be approximately 2 to I if Russell were a
supervisor. I therefore conclude that Russell is not a
supervisor within the meaning of the Act, and I so find.
1062