Commercial Movers, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1979

240 N.L.R.B. 288 (N.L.R.B. 1979)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Commercial Movers, Inc. and Henry J. Ruppel. Case
9-CA-1 1358
January 26, 1979
DECISION AND ORDER
BY MEMBERS PENELLO. MURPHY. AND TRUESDALE
On April 21, 1978, Administrative Law Judge Phil
W. Saunders issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision and a motion to reopen the record with a
brief in support of that motion. Respondent filed a
response to the motion, and the General Counsel
filed an attachment to his motion.'
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, findings, 2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(3) and () of the Act
by discharging Henry Ruppel because of his involve-
ment in certain union activities. In reaching this re-
sult, the Administrative Law Judge found, over Re-
spondent's contentions to the contrary, that Ruppel
was not a supervisor within the meaning of Section
2(11) of the Act. In its exceptions and supporting
brief, Respondent contends that the Administrative
Law Judge erred in this latter finding. For the rea-
sons discussed below, we find no merit in Respon-
dent's contention. Rather, for the reasons more fully
set forth below, we agree with the conclusions of the
Administrative Law Judge that Ruppel was an em-
ployee under the Act and hence that his discharge
violated the Act.
Respondent was engaged by Nationwide Mutual
We deny General Counsel's motion to reopen the record in this proceed-
ing as the evidence sought to be adduced therein is not necessary to our
resolution of the instant proceeding.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect 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 reversing his findings.
3The Administrative Law Judge inadvertently failed to conform his rec-
ommended Order and notice with his findings and remedy. We shall modify
them accordingly.
240 NLRB No. 24
Insurance Company as the moving contractor re-
sponsible for the relocation of certain of
Nationwide's office equipment into its new head-
quarters in Columbus, Ohio. Henry Ruppel was
hired by Respondent to work on this Nationwide job
and was given the title of general labor foreman. The
actual moving work was performed after normal
business hours and on weekends; but at the begin-
ning of each week Respondent's president, Daniel
Cordray, and Nationwide's facilities planning man-
ager, Chuck Wallace, jointly planned the details of
the move for the upcoming weekend. As noted by the
Administrative Law Judge, the planning covered all
aspects of the move. The two determined the number
of employees needed for the move and the number of
employees to be assigned to each floor of the build-
ing. Ruppel was never involved in these preparations.
For the actual move at Nationwide's new head-
quarters, Ruppel would receive a sheet containing
the manpower needs and job area allocations pre-
pared earlier in the week. Workers would be referred
from the union hall and Ruppel and the steward on
the job, Fred Boffman, would accept the workers on
a first-come-first-served basis until they reached the
limit set forth on the manpower sheet. Occasionally,
the Union would refer too many workers. In such
instances, the latecomers would be sent back. Once
the workers were chosen, Ruppel's job was to assign
the employees to specified tasks, although the num-
ber of employees to be assigned to each task was
already dictated by the manpower sheet. Thus, some
employees were assigned to unload the truck, and
others to push the equipment from the elevator, to
push the equipment to the general floor location, or
to place the equipment at the precise spot.
After assigning employees to these tasks, Ruppel
remained at the job, circulating throughout the build-
ing, and did not perform any manual labor. How-
ever, he was not primarily responsible for determin-
ing how the work was to be done. Rather, the record
shows that Chuck Wallace and his assistants were
usually present to oversee the moving operations. As
Nationwide's representatives, these people had better
knowledge of the intended furniture arrangements
and were more often the ones to direct Respondent's
employees as to where the equipment was to be
placed.4 The record also shows that Respondent em-
ployed a general supervisor named John Custa who
floated from the shipping end of the job to the mov-
ing end, and also employed John Curly who was sta-
tioned at the moving end and who was responsible
for completing timesheets, keeping track of the em-
4 While the contract between Nationwide and Respondent indicated that
Respondent was responsible for the supervision of its employees, the record
nevertheless suggests that Nationwide's representatives directed employees
where to place the furniture and the other equipment.
COMMERCIAL MOVERS, INC. 289
ployees' hours, and directing trucks where to drop off
the equipment outside the new Nationwide head-
quarters. In addition, Daniel Cordray, Respondent's
president, spent a good deal of time overseeing the
move.6
From the foregoing, it is apparent that Ruppel did
not possess very extensive authority. He was indeed
authorized to make job assignments. Beyond that,
however, he appears to have been responsible for
very little. He did not keep the timelogs, was not
consulted about problems with equipment,7 and did
not direct employees where to place the furniture.
When pressed for a description of his supervisory re-
sponsibilities, Cordray claimed that Ruppel was
there to make sure equipment was handled carefully
to avoid damage, to alleviate personality problems
among the workers, and to tell the workers whether
or not they were doing a good job. Respondent fur-
ther contended that Ruppel had the authority to dis-
cipline employees and to represent Respondent in
handling grievances.
However, when asked at the hearing to illustrate
Ruppel's authority to administer discipline or resolve
grievances, Cordray offered two examples which
only served to demonstrate further the routine nature
of Ruppel's responsibility. For in both instances (one
involving employee Cadillac, the other, employee
Frazier), Cordray himself made the disciplinary deci-
sion involved and instructed Ruppel to carry out his
orders. Similarly, with respect to Ruppel's alleged
grievance-handling responsibilities, the record is de-
void of any evidence to demonstrate such responsi-
bility on a significant level. Admittedly, the record
reveals that Job Steward Boffman and Ruppel, who
were longtime coworkers, sometimes met to smooth
over problems among the workers but, again, such
matters were largely routine, typically dealing with
workers who were not where they were supposed to
be or who may have left too early for lunch. In this
regard, Boffman was unable to recall any significant
grievance resolutions or any instance in which Rup-
pel affected an employee's work status or sent an
employee home for a work-related reason.8
Based on our review of the record, we are con-
When Ruppel was first hired, he was responsible for keeping records of
employees' hours. However, shortly thereafter, Curly was hired to assume
this function. While noting Curly's job responsibilities, we do not pass on
whether he is a supervisor under the Act.
6In the beginning of the job. Cordra) was present as much as 80 percent
of the time.
cWhen there was a problem with the shipped equipment, Wallace would
contact John Custa, the general supervisor, who spent much of his time at
the shipping end of the job.
8 In addition, the Administrative Law Judge correctly concluded that
Ruppel's handling of employee complaints concerning paycheck shortages
did not constitute grievance resolution. In the few instances where the stew-
ard raised payroll problems. Ruppel referred the matter to Cordra> or his
secretary, either of whom would then independently review the situation.
vinced that Ruppel's job responsibilities were largely
routine and whether viewed separately or in toro did
not require the exercise of any independent judgment
indicative of a supervisor within the meaning of the
Act. The selection of employees referred by the
Union was done on a first-come-first-served basis.
Job assignments required no independent discretion
since the number of employees assigned to each task
was already determined for Ruppel earlier in the
week. While the record indeed shows that Ruppel
circulated through the new headquarters to check to
see that furniture was safely handled, such responsi-
bility does not reflect the kind of discretion indica-
tive of supervisory status.9 Nor do we find that
Ruppel's authority to tell employees they were doing
a good or bad job demonstrates any meaningful au-
thority to discipline, as there is no evidence that these
"verbal reprimands" or "compliments" had or could
have had any impact on an employee's job status.'"
Indeed, the limited nature of Ruppel's authority is
confirmed by the disciplinary examples noted above
in which Cordray himself made the disciplinary deci-
sion and instructed Ruppel to carry it out. Thus,
while Respondent apparently saw fit to hire Ruppel,
a longtime member of the Union who was familiar
with the union laborers, with the hope that he might
be able to alleviate personality problems among the
workers, Respondent did not see fit to confer upon
Ruppel anything but the most routine responsibilities
with respect to the actual move. Rather, the record
shows that the real supervisory responsibilities were
assumed, at various times, by Cordray himself, Wal-
lace and the other Nationwide representatives, and
John Custa."
Respondent attempts to refute this conclusion by
citing testimony of various witnesses, particularly
that of Wallace, Boffman, and John Scales, the
Union's business agent, who stated that they and the
employees considered Ruppel to be a supervisor with
the authority to act as such. However, while the
Board has held that ostensible supervisory authority
is one of many factors which may indicate superviso-
9 In fact, the record shows that at certain times it was Wallace, not Rup-
pel, who possessed the real authonty to make sure that furniture was han-
dled safely. In this regard, Wallace testified that, when he observed workers
rmshandling the equipment. he would seek out Ruppel and instruct him to
make sure that the equipment was handled properly. According to Wallace,
his instructions were relayed to the negligent employee.
ItSee. e.g.. Maremount Corporation, 239 NL.RB No. 37 (1978). Z and L
Lumber Company of Columbus. 179 NLRB 75 (1969).
11 We also note that the record indicates that Respondent's contract with
Nationwide was a cost-plus or manpower arrangement in which Nationwide
covered Respondent's labor costs. Thus, Respondent suffered no added ex-
pense in employing Ruppel. In fact, it appears that, under this "cost-plus"
financial arrangement. it was to Respondent's economic advantage to add
Ruppel to the payroll.
COMMERCIAL MOVERS, NC. _ . _ _, . . _ .
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ry status, it is not determinative, particularly where,
as here, the facts themselves suggest otherwise. l2 Nor
do we find that Ruppel's salary, which was admitted-
ly higher per hour than those of the other employees,
conclusively demonstrates supervisory status where
the record reveals that Ruppel did not display true
independent judgment in performing any of the
functions set forth in Section 2(11) of the Act."
In sum, since the burden is on the party alleging
supervisory status to prove that it, in fact, exists, we
find that Respondent has not sufficiently demon-
strated that Ruppel was a representative of manage-
ment. We therefore uphold the Administrative Law
Judge's finding that Ruppel, an employee entitled to
the protection of the Act, was unlawfully discharged
in violation of Section 8(a)(3).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Com-
mercial Movers, Inc., Columbus, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
i. Substitute the following for paragraph 2(a) and
reletter the subsequent paragraphs accordingly:
"(a) Offer Henry Ruppel immediate and full rein-
statement to his former position or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earn-
ings he may have suffered by reason of the discrimi-
nation against him by payment to him of a sum of
money equal to that which he normally would have
earned from the date of his discharge, with interest,
as outlined in "The Remedy" portion of this Decision."
2. Substitute the attached notice for that of the
Administrative Law Judge.
2 See, e.g., Piccadil!v (afeteriar, Inc., 231 N RB 1302 (1977). Nor do we
deem it controlling that Ruppel, at the time he was responsible for preparing
the timesheets an admittedly routine task placed his name under the ca-
tegory identified as "supervisor." In filling out the timesheet in this manner.
Ruppel may very well have been influenced by his title-general labor fore-
man and it is well established that an individual's functions and authon-
ties, not his title, determine his status under the Act. See. e.g.. Orr Iron, Inc.,
207 NLRB 863, n. 2 (1973). Moreover, in explaining his actions. Ruppel
noted that the timesheets were identical to those used in his full-time job
with Turner Construction Company where he is an admitted supervisor.
Thus, according to Ruppel, designating himself as supervisor on Respon-
dent's timesheet was a habit picked up from completing the timesheets at his
other job.
13 See, e.g., Picadilly Cafeterias. Inc., upra Moreover, aside from his
higher hourly wage, Ruppel continued to be a union member in good stand-
ing and participated in the same fringe benefit programs as the other em-
ploees. See, e.g., Fred Rogers (ompnarv, 226 NLRB 1160 (1976).
See. e.g., Thav'er Dairy (onpanv, Inc. 233 NI.RB 1383 (1977).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI. IABOR RI.ArIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to give evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
We intend to abide by the following:
WE WILL NOI lay off, discharge, or otherwise
discriminate against our employees because of
their union activities.
WE WIIL NOI discourage membership in the
Union, or any other labor organization, by dis-
criminating against our employees in regard to
their hire and tenure of employment or any
terms and conditions of employment.
We wI.L N in any other manner interfere
with our employees' exercise of the rights guar-
anteed by Section 7 of the National Labor Rela-
tions Act, as amended.
WE will offer Henry Ruppel immediate and
full reinstatement to his former position or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or other rights and privileges, and we
WII.L make him whole for any loss of earnings he
may have suffered by reason of our discrimina-
tion against him, with interest.
COMMERCIAI. MOVERS. INC
DECISION
STAIEMENt OF IHEF CASE
PHIL W SAUNDERS. Administrative Judge: Based on a
charge filed on May 12, 1977, by Henry J. Ruppel, herein
the Charging Party or Ruppel, a complaint was issued on
June 30, 1977, against Commercial Movers, Inc., herein the
Respondent or Company, alleging violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended. Respondent filed an answer to the complaint de-
nying it had engaged in the alleged matter. The Respon-
dent and the General Counsel filed briefs.
Upon the entire record in the case. and from my obser-
vation of the witnesses and their demeanor,' I make the
following:
The facts found herein are based on the record as a hole and upon my
observations of the witnesses. he redihity re.solutrion herein have been
deri ed from a review of the entire testimonial record and exhibits witrh due
regardfor the logic of probabdrii, the demeanor of the wirnes.ses, and the teach-
ing of N L. R.B. . Wa/ton lanufucturing (onpann & I.oganvillh Panrts (Co..
369 U.S. 404 (1962). As to those itnesses testify ing in contradiction of the
findings herein, their testimony has been discredited, either as having been
COMMERCIAL MOVERS, INC. 291
FINDINGS OF FACT
I. THE BUSINESS OF FHF COMPANY
The Respondent, an Ohio corporation, is engaged in the
business of providing equipment moving and relocation
services to various commercial enterprises in the Colum-
bus, Ohio, area. During the past 12 months, a representa-
tive period, Respondent purchased and received goods and
materials valued in excess of $50,000 which were shipped
directly to its Columbus. Ohio, facility from points outside
the State of Ohio.
The Respondent is an employer as defined in Section
2(2) of the Act, and is engaged in commerce and in opera-
tions affecting commerce as defined in Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Laborers' International Union of North America, Local
Union No. 423, AFL-CIO, herein called the Union or Lo-
cal 423, is a labor organization as defined in Section 2(5) of
the Act.
11i. THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that on or about April 29,
1977, Respondent discriminatorily discharged the Charg-
ing Party and at all times thereafter failed and refused to
reinstate him to his former position of employment.
The Company maintains that Henry Ruppel was laid off
for legitimate reasons, and further that Ruppel was a sup-
ervisor, and therefore not within the protection of the Act.
In December 1976, Respondent and Nationwide Mutual
Insurance Company, herein Nationwide, entered into an
agreement whereby Respondent was hired as the moving
contractor responsible for relocating Nationwide's office
equipment from its numerous Columbus area offices into
its new headquarters complex. The actual moving work
was to be performed after business hours and on weekends
so as not to interfere with Nationwide's normal business
operations. It further appears that Respondent's employees
assigned to the Nationwide moving job were represented
by Local 423 pursuant to a collective-bargaining agree-
ment, and prior to the start of the job in December 1976,
the Union's Business Manager John Scales informed Hen-
ry Ruppel and Fred Boffman, both members of Local 423,
that they would be working on the job for Respondent as
general labor foreman and steward, respectively.
Respondent's contract with Nationwide required that
the Company "completely supervise, control, and direct
the activities of all its personnel during the moving work."
The Company points out that Henry Ruppel was employed
because of his knowledge of the Nationwide building's de-
sign and his experience in supervising union labor. This
was the first moving contract undertaken by Respondent
in conflict with the testimony of credible witnesses or because it was in and
of itself incredible and unworthy of belief. .4/1 testimony hs heen reviesed
and weighed in the ight f the enire rlecord
wherein union labor was to be employed. Previous to and
concurrently with this employment, Ruppel was also re-
tained by Turner Construction Company to act as one of
their supervisors during the construction of the Nationwide
building during the normal hours and workweek. The
Company maintains that prior to the commencement of
the move, Ruppel consulted and advised Respondent with
respect to the move, and was subsequently paid a fee of
$2,000. The Company further contends that as the move
progressed through the first quarter of the calendar year
1977, the amount of work decreased, and this coupled with
the fact that there had been substantial damage to some of
the items being moved, resulted in Respondent's decision
to lay Ruppel off and replace him with a less costly and
more efficient supervisor.
On April 27, 1977, Ruppel attended a meeting of Local
423 at which time he was nominated to run for president of
the Union as part of a slate opposing the incumbent offi-
cials, among whom was John Scales. The next day, April
28, Respondent's President Daniel Cordray encountered
John Kempton, Marion Jennings, and Henry Ruppel on
the ramp near the Nationwide building. These men, all
candidates on the dissident slate, were discussing union
affairs when Cordray asked, "Do you guys really think you
got a chance going against that power structure?"
As pointed out, the testimony by John Kempton attri-
buting the above remark to Respondent's President Cor-
dray stands undenied, and definitely indicates Cordray's
knowledge of Ruppel's involvement in the intraunion poli-
tics. Cordray disclaims knowledge of the Union's political
situation and of Ruppel's involvement until a week or two
after Ruppel's layoff, but in consideration of the unrebut-
ted testimony by Kempton and of Cordray's affidavit,
which included a statement that he had heard rumors of
internal union problems a day or so prior to his meeting
with Ruppel, it becomes even more obvious that Cordray
had knowledge of the dissident slate of officers for Local
423, and of Ruppel's active participation in it.
On the morning of April 29, Ruppel phoned Cordray, as
he had not as yet received his instructions for that
evening's move.) Cordray told Ruppel to have the steward
call him and said that he (Cordray) would get back to Rup-
pel. However, later that afternoon Cordray met Ruppel at
the Nationwide complex and informed him that a new
foreman was coming from the hall because he (Cordray)
"couldn't take a chance on any trouble." Ruppel then
brought up his intraunion activities, but about this time
Cordray's companion got out of the nearby car and joined
the conversation. He inquired of Ruppel if he was "run-
ning." and after Ruppel replied in the affirmative, he then
asked if Scales could lay everybody off. Ruppel answered,
"[W]ell he'll try." Ruppel then requested a layoff slip, but
Cordray said he would bring it Monday. Ruppel stated
that the only reason he was given for his termination was
2 Ruppel testified that the incumbents had never been opposed before.
Later on Ruppel and his otither running mates were disqualified.
As indicated, the normal procedure was for Cordray and Chuck Wal-
lace. the facilities planning manager at Nationwide, to meet earl) in the
week and plan the details of the upcoming weekend move. Ruppel as then
given a list containing the number of emplovees required.
COMMERCIAL OVERS. INC.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Cordray "couldn't take a chance on any trouble." 4
That evening (April 29, 1977), Levi Hagwood, one of the
Union's qualification judges who later disqualified Ruppel
from running for office, replaced Ruppel on Respondent's
moving job.
Ruppel testified that in early August 1977, Cordray
asked him if he was willing to meet with Cordray's attorney
and settle this matter. However, a few days later when
Ruppel asked if he could have his job back, Cordray re-
sponded by asking Ruppel if he was "alright with Scales
now." Ruppel replied that he and Scales had spoken at the
last Union meeting. Cordray then informed Ruppel he
would get back to him, but about a week or two later, when
Ruppel encountered Cordray by the Nationwide building,
Cordray turned his back and ignored him.
Respondent contends that Ruppel was a supervisor and,
therefore, should not be accorded the protection of the
Act. In support of this contention, Respondent presented
several witnesses who testified in "grossly conclusionary
terms" as to Ruppel's alleged supervisory authority.5 How-
ever, I am in agreement with the General Counsel that a
careful examination of the record will indicate that Re-
spondent did not delegate to Ruppel the type of authority
or responsibility which would make him a supervisor with-
in Section 2(11) of the Act, even though he did receive a
higher wage than other employees.
As pointed out, early in each week Cordray and Wallace
planned the details of the move for the upcoming weekend.
Their planning covered all aspects of the move, including
manpower and equipment requirements, and they drew up
a list detailing the number of employees to be assigned to
the move as well as the number of employees to be as-
signed to each work area or floor. Thus, as further noted,
Ruppel had no discretion as to how many employees
would be assigned to the job, nor did he have any authority
to determine how the work was to be done. 6
I am also in agreement that this record does not support
the contention that Ruppel had the authority to discipline
employees. When questioned as to the extent of Ruppel's
on-the-job authority, Cordray testified:
4Cordray testified that he informed Ruppel he was "terminating" his
employment "due to lack of work," and could not recall any discussion
about the Union, but after having his memory refreshed by his affidavit, he
admitted that Ruppel might have stated he felt the layoff was because of the
internal Union problems.
5Cordray testified that he informed Ruppel that his responsibilities were
to supervise the employees on the receiving end of the Nationwide move-
to alleviate damages and to take care of personality problems-that his
authority was "very extensive." and that he could also resolve grievances on
behalf of the Company. Fred Boffman, the Union's steward on the Na-
tionwide move, testified that the employees thought of Ruppel "as boss."
that Ruppel had authority to discipline employees, and that if there was a
disagreement on the job he would discuss it with Ruppel and they would
then work it out. Chuck Wallace, planning manager for Nationwide, testi-
fied that Ruppel had the responsibility to place the men in their locations,
and that he would characterize Ruppel as the chief supervisor during the
move.
6 Due to thejoint aspects of the moving operations, it is noted also that on
occasion Chuck Wallace of Nationwide directed and corrected Respon-
dent's employees in the performance of their work. Wallace also supervised
his own "spotters" who directed the placement of the furniture. The fact
that Ruppel could assign one employee to a specific floor and another to the
elevator pursuant to the overall plan, or send home those in excess of the
total number called for. is certainly does not mean that he was required to
use independent judgment.
During the work scope he had the authority to tell a
man if he was doing a bad job, or to straighten up if he
was doing a bad job. That was basically, his job, to
supervise people.
At most, according to Cordray, Ruppel could verbally
warn an employee, but such limited authority is not suffi-
cient to find Ruppel a supervisor. In fact, on cross-exami-
nation Cordray was asked to substantiate his broad gener-
alizations that Ruppel disciplined employees, but he could
then only recall two instances, and it is clear that in both of
those situations, involving employees Cadillac and Frazier,
Cordray himself made the disciplinary decision and then
instructed Ruppel to carry out his orders. Thus, this record
simply does not support the contention that Ruppel had
the authority to discipline or to effectively recommend dis-
ciplinary action.
There is also no reliable evidence in this record to indi-
cate that Ruppel engaged in responsible or official griev-
ance resolutions on behalf of Respondent. In the few in-
stances when the steward brought up payroll problems,
Ruppel did no more than refer the steward to Cordray or
his secretary and they, in turn, would then independently
review the matter.
Actual existence of true supervisory power is to be dis-
tinguished from abstract, theoretical or rule-book authori-
ty. It is well settled that a rank-and-file employee cannot be
transformed into a supervisor merely by investing him or
her with a "title and theoretical power to perform one or
more of the enumerated functions." N.L.R.B. v. Southern
Bleachery & Print Works Inc., 257 F.2d 235, 239 (4th Cir.
1958), cert. denied 359 U.S. 911 (1959). What is relevant is
the actual authority possessed and not the conclusionary
assertions of a company's officials. And while the enumer-
ated powers listed in Section 2(11) of the Act are to be read
in the disjunctive, the Section also "states the requirement
of independence of judgment in the conjunctive with what
goes before." Poultry Enterprises, Inc. v. N.L. R.B., 216 F.2d
798, 802 (5th Cir. 1954). Thus, the individual must consis-
tently display true independent judgment in performing
one of the functions of Section 2(11) of the Act. The exer-
cise of some supervisory tasks in a merely "routine," "cleri-
cal," "perfunctory" or "sporadic" manner does not elevate
a rank-and-file employee into the supervisory ranks.
N.L.R.B. v. Security Guard Service, Inc., 384 F.2d 143, 146-
149 (5th Cir. 1967). Nor will the existence of independent
judgment alone suffice; for "the decisive question is wheth-
er [the individual involved has] been found to possess au-
thority to use [her] independent judgment with respect to
the exercise by [her] of some one or more of the specific
authorities listed in Section 2(11) of the Act." N. L. R. B. v.
Brown & Sharpe Mfg. Co., 169 F.2d 331, 334 (Ist Cir. 1948).
In short, "some kinship to management, some empathetic
relationship between employer and employee must exist
before the latter becomes a supervisor for the former."
N.L.R.B. v. Security Guard Service, Inc., supra, 384 F.2d at
149.
7 Cordray was actually on the moving job a great deal of the time, and he
further acknowledged Ruppel's role as a conduit for his directives when he
stated, "The line of communication . .. was from Nationwide to me, and
then from me to Hank."
COMMERCIAL MOVERS, INC. 293
I have found that Ruppel was not a supervisor within the
meaning of the Act. As indicated above, the evidence does
not establish that Ruppel either exercised or was vested
with the various supervisory functions defined in Section
2(11) of the Act. At best, I would find Ruppel's position
comparable to that of a nonsupervisory leadman. The rec-
ord reflects that whatever assistance or direction he may
have given to the other employees was of routine nature
and did not require the use of any meaningful independent
judgment. Moreover, even if on a few occasions Ruppel
did participate in some activity involving a degree of super-
visory authority, the Board has held that isolated or spo-
radic exercise of such authority is insufficient to establish
an individual as being a supervisor. Directors Guild of
America, Inc. (Association of Motion Picture & Television
Producers, Inc.) 198 NLRB 707 (1972).
I turn now to the events and circumstances surrounding
the discharge of Ruppel on April 29, 1977. Counsel for
Respondent argues that the evidence in this record sup-
ports a finding that Ruppel was not performing his job
properly, that he was frequently absent from the job, and
that there were times when Chuck Wallace of Nationwide
knew that Ruppel had been drinking liquor prior to going
to work. Respondent further maintains that a considerable
amount of damage occurred while Ruppel was the foreman
and, also, that the time selected to lay off Ruppel coincided
with Respondent's business justifications as the work on
the job was distinctly decreasing, but that prior to that
slowdown, it would have been unfeasible to replace Ruppel
with a new employee unfamiliar with the Nationwide job
and the building.
The General Counsel, on the other hand, argues as fol-
lows: "It would be naive to expect Cordray to admit that
his decision to terminate Ruppel was motivated by his de-
sire not to antagonize the Union hierarchy in the person of
Business Manager Scales. Apparently Cordray perceived,
and perhaps rightfully so, that the continued employment
of Ruppel could interfere with the productive relations Re-
spondent enjoyed with the Union. In view of the credible
testimony and the sequence of events it would be difficult,
if not impossible, to conclude otherwise." 8
As indicated, the abruptness and the timing of Ruppel's
discharge, as well as the reasons proffered for his termina-
tion, are extremely telling. Ruppel was discharged I day
after Cordray indicated his knowledge that Scales' reelec-
tion was being opposed by a dissident slate of officers.
Moreover, the timing element is all the more illuminating
in that the initial reason given by Cordray at the time of
the discharge was lack of work-a reason which must now
be totally discredited inasmuch as Ruppel's replacement,
8 Cordray duly acknowledged that he had had frequent dealings with
Scales. Cordray consulted with Scales concerning the choice of Ruppel as
general labor foreman, and when Ruppel subsequently requested reinstate-
ment, Cordray wanted to know if Ruppel was "alright with Scales now."
This record contains further evidence of Cordray's awareness of Scales'
power and, indeed, of Cordray's attempts to enlist that power for his own
benefit. On one occasion Scales instructed Ruppel to approach Cordray for
a "donation," an act which eventually resulted in a questionable S2.000
payment. On another occasion Cordray requested Ruppel to enlist Scales'
assistance in preventing another company from obtaining the job that Cor-
dray was interested in.
Levi Hagwood, worked for Respondent on the Nationwide
moving job on the evening of the very same day Ruppel
was terminated.
At the hearing before me, Cordray offered two addition-
al reasons-frequent absence from the job and damage to
equipment. However, in respect to Ruppel's attendance,
Cordray admitted that he was aware of this alleged prob-
lem as early as February 1977. Therefore, it is difficult to
believe that absence from the job was actually a real prob-
lem in that Cordray tolerated this situation, if it existed, for
about 3 months without doing anything about it and with-
out even mentioning it to Ruppel.
In respect to the claim of excessive equipment damage,
Wallace testified that major damage occurred during
moves in January 1977, at which time it was immediately
reported to Cordray. Wallace was unable to pinpoint at
what stage of the moving operation the damage was
caused, but agreed that the damage could have been
caused during the loading operation and prior to its arrival
at Ruppel's receiving location.
As indicated and detailed, Respondent has advanced at
least three reasons for the discharge-lack of work, absen-
teeism, and equipment damage. The first reason is clearly
false as Respondent has admitted that Ruppel's work was
performed that same evening by another man. In respect to
the second and third reasons, the record discloses that Cor-
dray was aware of these alleged "problems" as early as
January or February 1977, but nevertheless supposedly
chose to tolerate them until shortly after he became aware
that Ruppel was part of a challenge to the incumbent lead-
ership of the Union. In the final analysis, the controlling
and surrounding circumstances in this case clearly indicate
that Ruppel's discharge was motivated by his protected
union activity.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Henry Ruppel, I shall recommend that Respon-
dent offer him immediate and full reinstatement to his for-
mer position or to a substantially equivalent one, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him by pay-
ment to him of a sum of money equal to that which he
would normally have earned from the date of his dis-
charge, less net earnings, during said period. All backpay
provided herein shall be computed with interest on a quar-
terly basis, in the manner described by the Board in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon computed in the manner and amount prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977). 9
9See. generally Isis Plumbing and Heating Co., 138 NLRB 716 (1962).
COMMERCIAL MOVERS, INC. 93
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in conduct described in section III,
above, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
4. Upon the foregoing findings of fact and conclusions
of law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 'o
The Respondent, Commercial Movers, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off, discharging, or otherwise discriminating
against employees because of their union activities.
(b) Discouraging membership in the Union, or any
other labor organization of its employees, by discriminat-
ing against them in regard to their hire and tenure of em-
ployment or any terms and conditions of employment.
I0 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
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.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Make whole Henry Ruppel for any loss of earnings
by reasons of Respondent's unlawful conduct as outlined
in The Remedy portion of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Decision.
(c) Post at its place of business, copies of the attached
notice marked "Appendix." " Copies of said notice, on
forms provided by the Regional Director for Region 9, af-
ter being duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days,
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
1 In the event that this Order is enforced by a judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."