E. M. Bailey Distributing Co.

National Labor Relations Board - Board Decisions

Apr 12, 1977

228 N.L.R.B. 1400 (N.L.R.B. 1977)

1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. M. Bailey Distributing Company and Chauffeurs,
Teamsters , Warehousemen and Helpers of Ameri-
ca, Local Union 236, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Petition-
er. Case 9-RC-1 1413
April 12, 1977
DECISION AND ORDER
By MEMBERS JENKINS , PENELLO, AND
WALTHER
Pursuant to the provisions of a Stipulation for
Certification Upon Consent Election, executed by
the parties and approved by the Regional Director
for Region 9 on April 5, 1976, an election by secret
ballot was conducted on April 28, 1976, among the
employees in the appropriate unit. Upon the conclu-
sion of the election a tally of ballots was furnished to
the parties in accordance with the Board's Rules and
Regulations, Series 8, as amended. The tally of
ballots showed that of approximately 13 eligible
voters, 5 cast ballots for the Petitioner, 3 cast ballots
against the Petitioner, 5 ballots were challenged, and
none were void. The challenged ballots were suffi-
cient in number to affect the results of the election.
No objections to the conduct of the election or to
conduct affecting the results of the election were
filed.
The Regional Director thereafter caused an investi-
gation to be made into the issues raised by the
challenged ballots. On June 30, 1976, the Regional
Director issued his report on election and challenged
ballots. In this report, the Regional Director ordered
that a hearing be held to resolve the issues raised by
all five of the challenged ballots and that the case be
transferred and continued before the Board.
Pursuant thereto, a hearing was held before
Hearing Officer J. Michael Fischer of the National
Labor Relations Board. On December 27, 1976, the
Hearing Officer issued his report and recommenda-
tions on challenged ballots in which he sustained the
challenges to the ballots of Louis Beyer, Morris
Beyer, Steve Spraggs, and Leroy Goode and over-
ruled the challenge to the ballot of Matthew Valerius.
Thereafter the Employer filed a timely exception to
the Hearing Officer's report, contending that the
Hearing Officer erred in sustaining the challenge to
the ballot of Leroy Goode.
Pursuant to the provisions of the Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
I In the absence of exceptions thereto, we adopt pro forma the Hearing
Officer's recommendation to sustain the challenges to the ballots of Louis
228 NLRB No. 177
The Board has considered the entire record in this
case and makes the following findings:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees of the Employer constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All truckdrivers, warehousemen , and mainte-
nance employees employed by the Employer at its
premises located at 1000 South Eighth Street,
Paducah , Kentucky , but excluding all office
clericals , technical employees, professional em-
ployees, guards , and supervisors as defined in the
Act.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
record, including the Hearing Officer's report and
recommendations on challenged ballots, and the
Employer's exception and brief. For the reasons set
out below, the Board finds merit to the Employer's
exception and further finds that the challenged ballot
of Leroy Goode should be opened and counted.'
The ballot of Leroy Goode was challenged by the
Petitioner on the basis that he is a supervisor within
the meaning of the Act. The evidence showed that
Goode did not possess the requisite indicia of
supervisory authority. However, the Hearing Officer
sustained the challenge on the basis that Goode was
a managerial employee. For the reasons set forth
hereafter, we disagree.
The record reveals the following facts regarding the
duties of Leroy Goode. The Employer is engaged in
the distribution of petroleum products and automo-
bile accessories. In distributing petroleum products
to his customers, the Employer employs tank truck
drivers who load their trucks at a terminal located
away from the Employer's warehouse. Goode's
primary duty is to dispatch the aforementioned tank
trucks, via two-way radio, from his post within the
warehouse. Ordinarily, the drivers are dispatched
from a list that is compiled chronologically as the
Beyer, Morris Beyer, and Steve Spraggs and to overrule the challenge to the
ballot of Matthew Valenus
E. M. BAILEY DISTRIBUTING COMPANY 1401
customer's orders are called in. At times, however,
Goode deviates from the list in his dispatching.
Based on 26 years of experience with the Employer
and corresponding knowledge of the customers,
Goode will dispatch a driver to a customer further
down the list if that customer has exhausted his
supply of gasoline, or if it would most likely be
exhausted by the time a scheduled delivery would
arrive.
In addition to his dispatching duties, Goode
performs some truck maintenance work, helps
unload railroad cars, waits on customers, performs
certain bookkeeping functions, and serves as a relief
truckdriver. His driving duties increased somewhat
in February or March 1976 when the Employer
began to utilize contract carriers to assist in the
distribution process. Since the drivers for the
contract carriers were not qualified to load their
trucks at the petroleum terminal, Goode became
responsible for loading them. Also, Goode is respon-
sible for providing emergency deliveries of fuel.
Thus, if a customer requires fuel at a time when the
Employer is normally closed, such as a weekend, the
customer will contact Goode directly at his home.
Goode will then load a truck and make the delivery
without first consulting with the Employer.
The record further indicates that, besides a
terminal key, Goode has keys to the warehouse and
office and opens both every morning. However, all
the drivers have keys to the warehouse and terminal.
Two final factors that have a bearing on Goode's
status are that he is salaried and thus does not receive
additional compensation for his emergency deliver-
ies, and he has a desk and phone in an office that he
shares with another employee.
In Bell Aerospace, A Division of Textron, Inc., 219
NLRB 384 (1975), the Board stated that the proper
legal standard for deciding the question of manageri-
al status was established by the earlier cases of
Eastern Camera and Photo Corp., 140 NLRB 569
(1963), and General Dynamics Corporation, Convair
Aerospace Division, San Diego Operations, 213 NLRB
851 (1974).
In General Dynamics, the standard was enunciated
as follows:
The Board long has defined managerial em-
ployees as those who formulate and effectuate
management policies by expressing and making
operative the decision of their employer, and
those who have discretion in the performance of
their jobs independent of their employer's estab-
lished policy. . . . [M]anagerial status is not
conferred upon rank-and-file workers, or upon
those who perform routinely, but rather is
reserved for those in executive-type positions,
those who are closely aligned with management
as true representatives of management.
The determination of managerial status depends on
a careful weighing of facts. The exclusion of
managerial employees from bargaining units rests on
the premise that the functions and interests of such
individuals are more closely allied with those of
management than with rank-and-file employees.
However, the Board will not lightly exclude employ-
ees from the protection of the Act.
Applying these principles to this case, although the
record indicates that Goode exercises a limited
discretion in his dispatching duties, this exercise of
judgment is certainly not independent of established
policy. Rather, he is acting within the parameters of
judgment and experience commonly utilized by an
employee with long experience. While it is true that
customers deal directly with Goode regarding emer-
gency deliveries, to concentrate on that aspect of his
duties is to overlook the essentially and predominate-
ly routine nature of his work. Thus, to consider
Goode a managerial employee would be an unwar-
ranted extension of that classification and would
tend to blur the traditional distinction between labor
and management. Accordingly, we shall remand the
case to the Regional Director for the purpose of
opening and counting the ballot of Leroy Goode and
issuing a revised tally of ballots.
ORDER
It is hereby ordered that the instant case be, and
hereby is, remanded to the Regional Director to open
and count the challenged ballots of Leroy Goode and
Matthew Valerius and issue a revised tally of ballots
and an appropriate certification.