Colorado Kenworth Corp.

National Labor Relations Board - Board Decisions

Feb 11, 1958

119 N.L.R.B. 1551 (N.L.R.B. 1958)

COLORADO KENWORTH CORPORATION 1551
Colorado Kenworth Corporation and International Association
of Machinists , District Lodge No. 86, AFL-CIO, Petitioner.
Case No. 30-RC-19276. February 11, 1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election
entered into by the parties hereto, an election by secret ballot was
conducted on March 19, 1957, by the Regional Director for the Seven-
teenth Region, among the employees in the stipulated appropriate
unit. At the close of the election a tally of ballots was furnished the
parties. The tally shows that there were approximately 28 eligible
voters and that 28 ballots were cast, of which 14 were for the Peti-
tioner, 13 were against the Petitioner, and 1 was challenged.
As the challenged ballot can affect the results of the election, the
Regional Director investigated the challenged ballot and thereafter,
on June 26, 1957, issued and served upon the parties a report on chal-
lenged ballot, in which he recommended that the challenge to the bal-
lot of Robert L. Nix be sustained on the ground that he was a super-
visor. He also recommended that the Petitioner be certified as the
collective-bargaining representative of the employees in the appro-
priate unit. On July 5, 1957, the Employer filed exceptions to the
Regional Director's report.
On July 23, 1957, the Board issued an order directing a hearing on
the issue raised by the challenge to the ballot of Nix. The Board's
order stated "that the Trial Examiner designated for the purpose of
conducting the hearing shall prepare and cause to be served upon the
parties a report containing resolutions of the credibility of witness,
findings of fact, and recommendations to the Board as to the disposi-
tion of said challenge." Pursuant to the Board's order, a hearing on
the challenged ballot was held on August 26, September 3, and Sep-
tember 4, 1957, before David F. Doyle, Trial Examiner. All parties
appeared and participated in the hearing. The hearing officer's
rulings at the hearing are free from prejudicial error and are hereby
affirmed.' On November 20, 1957, the hearing officer issued and duly
i The Employer has excepted to the hearing officer's ruling excluding timecards which
showed when witness Thorn quit work during January and February 1957. Foreman
Hanson's regular working hours were from 7 a. m. to 3:30 p. m., but he generally worked
later than 3 : 30 p. m. Nix's hours were from 9 a. m. to 6 p. m. Employee Thorn testified
that when Hanson left, Nix took his place. Thorn estimated that a quarter of the time
during January and February 1957, he left the shop after Hanson. The Employer offered
in evidence Thorn's timecards as tending to show that Thorn's estimate of the approxi-
mate times he remained after Hanson departed was incorrect, that only on 5 days dur-
ing January and February did Thorn work later than Hanson. The hearing officer re-
jected the proferred evidence in the form in which the Employer offered it on the ground
that it was excessively burdensome. We find no prejudicial error in this ruling . The hear-
ing officer found that "on those occasions" when Hanson left the shop, "Nix would ac-
119 NLRB No. 195.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
served upon the parties a report on challenged ballot, a copy of which
is attached hereto, in which he found that Robert L. Nix was a super-
visor at the time of the election and recommended that the challenge
to his ballot be sustained.' Within the time provided therefore, the
Employer filed exceptions to the hearing officer's report and a brief in
support of the exceptions.
The Board has considered the hearing officer's report, the excep-
tions, the briefs, and the entire record in the case, and hereby makes
the following findings : 3
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All production and/or maintenance employees employed as journey-
men, specialists , helpers, or apprentice mechanics, machinists , welders,
and painters at the Employer's Denver, Colorado, establishment,
excluding office clerical employees , salesmen , partsmen, parts clerks,
shipping and receiving clerks, delivery and pickup men, steamers,
cept customer work , and assign the men to do it." No exceptions have been filed to this
finding of fact. Thorn 's testimony was therefore essentially correct . The fact that he
may have been wrong in his recollection of the number of days he worked after Hanson
left does not destroy Thorn's general credibility as a witness.
2 There are a number of inadvertencies in the hearing officer's report which do not,
however, affect his or our conclusion that Nix was a supervisor . The report will be cor-
rected as follows :
( a) On page 2 , line 59, the phrase "under $150" is deleted.
(b) On page 3 , lines 1-4 , it is stated that "Upon being assigned this new job ," Nix's
pay was increased and that he thereafter wore khaki shirt and pants instead of coveralls,
The record shows that the pay increase and the change in his clothing occurred about a
month after his assignment to the new job.
( c) On page 5 , lines 48-49 , the report says that Nix recommended the firing of McCaslin.
The record does not support this finding . All it shows is that Nix ordered McCaslin to
do certain work, that \IcCaslin refused to obey the order , and that Nix reported the mat-
ter to Stall who told Nix to fire McCaslin . The incident does show that Nix had full
authority to assign men in his department to jobs and that his superior was willing to
back him up to the extent of ordering the discharge of any employee who disobeyed his
orders . As the finding of supervisory authority is based on Nix's power to assign and
responsibly direct his subordinates , and not on his authority to recommend firing, we
find that this error is not prejudicial.
(d) On page 2 , lines 20-22, it is stated that the pay rate for a rank -and-file mechanic
was $2 . 35 per hour or lower . There seems to have been 1 mechanic , Fred Martin, who
received $2.40 an hour at the time he quit in February 1957. Martin had been a foreman
or leadman at his previous place of employment.
(e) On page 2 , lines 37-38, and page 5, line 17, the words "It is undisputed that" are
deleted.
3 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Leedom and
Members Bean and Jenkins].
COLORADO KENWORTH CORPORATION 1553
greasers, cleanup men, all other employees, guards, and supervisors
as defined in the Act.
5. The Petitioner challenged the ballot of Robert L. Nix on the
ground that he was a supervisor. The hearing officer found as con-
tended by the Petitioner, and recommended that the challenge to
Nix's ballot be sustained. For the reasons stated by the hearing officer
in'his report, we find that Nix was a supervisor and that he was not
therefore eligible to vote in the election. We sustain the challenge
to his ballot. As the Petitioner has won the election, we shall certify
it as the collective-bargaining representative of the employees in the
appropriate unit.
[The Board certified International Association of Machinists, Dis-
trict Lodge No. 86, AFL-CIO, as the designated collective-bargaining
representative of the employees of Colorado Kenworth Corporation,
Denver, Colorado, in the appropriate unit.]
REPORT ON CHALLENGED BALLOT
1. STATEMENT OF THE ISSUE
Pursuant to a stipulation executed by the parties , an election was conducted on
March 19, 1957, among the employees of the above-named employer, in the agreed
appropriate unit, under the direction and supervision of the Regional Director for
the Seventeenth Region of the Board. At the election the ballot of Robert L. Nix
was challenged . On June 24 , 1957, the Regional Director issued his report on the
challenged ballot and thereafter exceptions were filed to said report. On July 23,
1957, the Board entered an order directing that the issues , raised by the report on
challenged ballot and exceptions thereto, be resolved by a hearing before a Trial
Examiner [designated as hearing officer], who would prepare a report to be served
upon the parties , and recommendations to the Board, as to the disposition of said
challenge. Pursuant to said order of the Board , a notice of hearing was served on
the parties by the Regional Director , and a hearing was held before the hearing
officer on August 26 , September 3, and September 4, 1957, at Denver, Colorado.
If. CONTENTIONS
The Petitioner contends that Robert L. Nix is a supervisor within the meaning
of the Act and therefore was not entitled to vote in the election , and that its
challenge of Nix's ballot was proper . The Employer contends that Nix was not
a supervisor within the meaning of the Act, that he was merely a "leadman," and
that he was entitled to vote in the election , and that the challenge of his ballot was
improper.
III. FINDINGS OF FACT
(a) Business of Employer, management officials, the used truck program, job of Nix
The Employer is engaged in the business of selling Kenworth trucks, a heavy
duty, diesel unit. It also engages in the sale of parts , and the repair of Kenworth
trucks and trucks of other makes . In the course of its sales , it accepts used trucks
in trade, which it reconditions , repairs, and sells. The principal office, sales rooms,
parts department , and service department of the Company are maintained at
Denver, Colorado.
It is undisputed that during the period June 1956 to March 19, 1957, the principal
management officials of the Employer were: general manager, Don Ward, later
replaced by Lars Prestrud; sales manager, Edward L. Vette; shop superintendent,
Don Stall; and shop foreman, George A. Hanson. During this period the Company
employed approximately 26 to 30 mechanics who were engaged in the repair of
trucks in the service department, under the immediate supervision of Stall and
Hanson. It is undisputed that at that time the rate of pay for rank-and-file
476321-58-vol. 119--99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mechanics was $2.35 per hour, or lower. Hanson, as shop foreman, was paid
$2.50 per hour. In the sales department there were four salesmen who were
engaged in selling both new and used trucks.
During September 1956, the management of the Company decided to take action
concerning an operational problem which confronted it. Prior to that time Stall,
the shop superintendent, and Hanson, the shop foreman, had spent a considerable
part of each day conferring with Vette, the sales manager, and individual salesmen
as to what repairs or reconditioning would be made on the various trucks which
the salesmen accepted in trade, in order to put those trucks in condition for resale.
Apparently these time-consuming conferences were on an informal basis and the
Company decided to formalize the procedure to be used in the repair and recon-
ditioning of used trucks. At a meeting attended by Ward, Stall, Vette, Hanson, and
Nix, it was decided that Nix would be designated as the shopman responsible for
the repair and reconditioning of used trucks. It is undisputed that as a result of
this decision he became the person in the shop responsible for all shop phases of
the reconditioning program. Thereafter, instead of conferring with either Stall or
Hanson, the salesmen or Vette conferred only with Nix. The new procedure began
with a conference of Nix and the individual salesmen. The salesman told Nix
what he thought the truck needed to be put in a salable condition. It is also
apparent that in these conferences Nix gave his estimate as to the cost of the
various items of reconditioning or repair. As a result of this conference, Nix
wrote up a "face" order which then went to Vette for approval. When Vette
signed the order the work was authorized. Thereafter, Nix had the responsibility
of seeing that the order for reconditioning and repair was performed. This system
relieved Stall and Hanson of the numerous conferences with salesmen, and per-
mitted them to devote most of their time to customer work, which had a priority
in the service department. It is clear that "customer work," under the supervision
of Hanson, had first call on all mechanics' time, but when customer work slacked
off, the unoccupied mechanics were assigned to Nix to work on the reconditioning
program.
Occasionally, in the repair of used trucks, unforeseen, or unordered repairs would
appear to be needed. In those cases, if the extra work was not extensive, under
$150, Nix had authority to authorize the work. If the work would cost more than
that, Nix was required to procure additional authorization from Vette or Ward.
Upon being assigned this new job, Nix's pay was increased from $2.35 per hour to
$2.40 per hour, and thereafter he did not wear coveralls as the other mechanics did,
but wore khaki shirt and pants.
Several of the mechanics testified credibly, and it is clear that in the performance
of their duties, they considered Nix to be an assistant foreman. Thorn, a mechanic,
testified that Nix was assistant foreman, and another mechanic, Hilton, testified that
Nix was foreman. Egelhoff, another mechanic, said that Nix was the assistant to
Hanson. Thorn also testified that Stall, at that time shop superintendent, told him
that he had appointed Nix assistant foreman.
The mechanics were also in agreement that Nix worked very little with the
tools of the trade after he received his new duties. When he had occasion to
assist any of the mechanics he usually used their tools. The employees also were
in general agreement that when Hanson, the shop foreman, was not available, Nix
acted in his place. Hanson worked a shift from 7 a. in. to 3:30 p. m., but it was his
custom to stay later than 3:30 p. in. However on those occasions when he did leave
the shop, Nix who began work at 9 a. m. and quit at 6 p. m., would accept customer.
work, and assign the men to do it. Sometimes during the day, Hanson would road
test a truck, and at those times Nix replaced him.
Apparently prior to the election the company also considered Nix to be a super-
visor, for at the hearing it was stipulated and disclosed that Nix was listed as
foreman on the voting list provided by the Employer for the purposes of the election.
Also, at the hearing, when Hanson, the shop foreman, was asked if Nix was his
assistant, he answered in the affirmative.
However, at the hearing General Manager Ward, and his successor, Prestrud, and
Vette, Hanson, and Nix, himself, testified to contrary effect. According to their
testimony, Nix was a leadman who was given very limited duties in the used truck
repair program. He was not given authority to hire or fire the mechanics, and
any directions he gave to the mechanics were merely routine, under the overall
direction of Hanson, shop foreman. The management officials who testified ap-
peared to be well aware of the narrowness of the issue, and to be slanting their
testimony to show that Nix's authority on the job was minor. Prestrud testified
that he considered Nix to be "the used truck roustabout or leadman or foreman,
COLORADO KENWORTH CORPORATION 1555
whatever you want to call him in the used truck lot." 1 Vette, the sales manager,
testified that in the examination of trucks in the reconditioning program, Nix was
the "hands and eyes" of the salesmen, who made the decision as to what the truck
needed to be put in a salable condition.2
Hanson said that Nix was given the new job because conferring with salesmen
on the used truck program had taken 3 or 4 hours of every day, and Hanson had
other duties to perform. After Hanson was given the job in regard to the truck
program, Nix conferred with the salesmen and wrote up the repair orders. After
that he "worked pretty close with the mechanics checking any part, and so forth,
to see that the work was done." He said that Nix was a working leadman part of"
the time, and that Nix worked under his direction. However, after the order was
written up, it was the responsibility of Nix to see that the work was done correctly.
(b) The McCaslin incident
In addition to testimony as to what Nix did on the job, there was testimony which
related to several incidents which shed some light on the issue herein. Both Han-
son and Nix testified that in February of 1957, Nix ordered an employee named
McCaslin to "clean up" the shop; that when McCaslin refused to obey the order,
Nix reported the incident to Shop Superintendent Stall, who then told Nix to "fire
him." At that point, Dahlberg, the head man in the body shop where McCaslin was
employed intervened with Stall, saying that McCaslin should not be fired, because
he was not in Nix's department, but in Dahlberg's, and that if any orders were to
be given to McCaslin, Dahlberg should give them. Stall then reversed his decision,
and McCaslin was not fired.
(c) Prestrud's conference
Another incident occurred around February 1, 1957, when, Prestrud took over
as general manager. According to the testimony of the mechanics, on this date
the public address system in the shop summoned the men to a meeting with
Prestrud. At the meeting, Prestrud said that he wanted to find out if the men had
any complaints about the bosses. He then asked the "foremen" or the "bosses" to
leave. Stall, Hanson and Nix then left the room. Prestrud's version of this inci-
dent was only slightly different. He testified that at the meeting, as far as he
recalled, he asked the men to leave by name "... because Stall, Hanson, and Nix
would not have left if not named...." 3
(d) The coffee break incident
On another occasion, the mechanics were summoned to a meeting in the ware-
house by a notice over the public address system. When the men assembled, Nix
addressed them. He said that management had decided to offer the men a 5-cent an
hour raise, if the men would forego the, coffee break. He asked them to state their
preference. Several said that they would prefer the raise, so he informed manage-
ment of their preference, and the men received the raise.
Concluding Findings
The evidence narrated above is merely a short summary of the highlights in 300
pages of testimony, describing in minute detail Nix's job and his conduct in the job.
At the hearing, I was favorably impressed by the manner in which the rank-and-
file employees testified. They described Nix's duties, and his performance of them
in a straightforward and fair manner. Their testimony was in sharp contrast to
that offered by the management officials, who appeared acutely aware of the narrow
issue involved, and appeared consciously striving to minimize the authority and
importance of Nix's job and duties. I have credited the testimony of the rank-and-
file employees on all points on which there is a conflict of testimony.
The Employer's principal contention herein rests on the fact that petitioner has
failed to establish any express delegation of supervisory authority to Nix. That
Contention illuminates, in my opinion, the cause for the disagreement of the parties.
Viewing Nix's promotion, in retrospect, in the light of all the evidence, it seems
clear that at the time Nix was given his duties in the used truck reconditioning
program, no one in management sought, or thought, to spell out his exact authority
I Transcript, page 88.
2 Transcript, page 81.
a Transcript, page 263.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with reference to the Act. That was an understandable omission . Management
officials, at that time, were solely concerned with relieving the shop superintendent,
and the shop foreman, of the time- consuming duties of conferring with salesmen
on the problems relevant to used trucks. Also, the Company wanted to place the
responsibility for the used truck program on some individual who would be account-
able to management for its effectiveness. For that job, management choke Nix,
and it is extremely doubtful if anyone in management , at that time, gave any thought
as to whether his authority was that of an assistant foreman, or a leadman. At
that time, his degree of authority was of no apparent importance.
Thereafter, it is undisputed that Nix was in operational control of the used car
reconditioning program as it affected the service department. He conferred with
the salesmen, duties previously performed by the shop superintendent and the shop
foreman, and in conference with the salesmen wrote up the original order for repair
of used trucks. When the order was approved by the sales manager, it was the
responsibility of Nix to see that the work was performed in a workmanlike man-
ner, that the trucks were repaired in certain priority, and that the work was com-
pleted according to the schedule of the salesmen or sales manager. In all of this,
Nix was performing duties previously performed by the shop superintendent or shop
foreman, and which involved the use of a certain amount of independent judgment.
As part of his function, he supervised the work of the mechanics on the used trucks,
and he was consulted by the mechanics when they encountered anything unforeseen,
or unordered. It is true that Nix was required to consult with Hanson, the shop
foreman, prior to assigning any man to work on a used truck, but that was a routine
requirement, growing out of the fact that the Company desired to perform customer
work first, and then devote the men's energies to the used truck program.
From all the evidence it appears to me that Nix "assigned" and "responsibly
directed" the mechanics in the used truck reconditioning program and that he was,
as Hanson testified, Hanson's assistant, and was a supervisor within the meaning
of the Act.
It appears to me that the Company also had this view of Nix's status prior to
the election, hence the election list upon which the Company designated Nix as
"foreman."
The various incidents enumerated show that Nix exercised the authority of a
supervisor, with the consent of his superiors. When Nix recommended the firing
of McCaslin, Stall said to fire that mechanic. When Dahlberg intervened, Stall
changed his mind, not on the basis that Nix did not have authority to recommend
the firing of a mechanic, but on the ground that he had no authority to fire
McCaslin, who worked in the body shop, a department separate and apart from Nix's
used truck program. When the proposition concerning the coffee break was sub-
mitted to the men, Nix was the spokesman for management. And when Prestrud
wanted the men to speak freely about the bosses or the foremen, Nix was asked to
leave the room. This conduct, in my opinion, illustrates that management itself
considered Nix a supervisor at all times prior to the election.
Upon all the credible evidence, I find that Nix occupied the position of assistant
foreman at the time of the election, that he was a supervisor, and that his ballot
was properly challenged.
It is therefore recommended that the challenge to Nix's ballot be sustained.
Swift & Company and United Packinghouse Workers of Amer-
ica, AFL-CIO, Petitioner
Swift & Company and National Brotherhood of Packinghouse
Workers, Petitioner. Cases Nos. 16-RC-2044 and 16-RC-2072.
February 13,1958
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before William H.
Renkel, Jr., hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
119 NLRB No. 194.