Ferguson-Steere Motor Co.

National Labor Relations Board - Board Decisions

Apr 5, 1948

76 N.L.R.B. 1122 (N.L.R.B. 1948)

In the Matter of FERGUSON-STEERE MOTOR COMPANY, EMPLOYER and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, LOCAL 492, AFL, PETITIONER
Case No. 16-R-34.-Decided April 5, 1948
Messrs, Jack Little , of Amarillo , Tex., and Jack Love , of Fort
Worth, Tex ., for the Employer.
Mr. Chide Hodge , of Albuquerque, N. Mex., for the Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Carlsbad,
New Mexico, on January 12, 1948, before Clyde F. Waers, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board 1 makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Ferguson-Steere Motor Company, a Texas corporation,2 transports
petroleum products for hire and operates in that connection two ter-
minals, one in the State of Texas and the other in New Mexico. We
are here concerned only with the Employer's terminal at Artesia,
New Mexico. During the year 1947, the Employer furnished trans-
portation services amounting to more than $250,000, of which approxi-
mately 15 percent represented shipments across State lines.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
I Pursuant to the provisions of section 8 (b) of the National Labor Relations Act, the
Board has delegated its poxxers in connection 1xith this case to a three - man panel consisting
of the undersigned Boaid 11[ewbeis [Houston , Murdock , and Cray]
2 The naive of the Employer, as well as that of the Petltionei, appears heiein as awended
at the heating
76 N. L. B 13., -No 159
1122
FERGUSON-STEERE MOTOR COMPANY
II. THE ORGANIZATION INVOLVED
1123
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Em-
ployer.
III. TI-IE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.'
1V. THE APPROPRIATE UNIT
The Petitioner seeks a unit of all drivers, servicemen, loaders,
mechanics, and the parts man at the Employer's Artesia terminal,
excluding office employees, dispatchers, the salesman, and supervisors.
The Employer is in disagreement with the Petitioner as to the me-
chanics and 3 of the 15 drivers whom it would exclude from the
unit, and as to dispatchers and office employees whom it would in-
clude. The Employer has also failed to take a position as to the
requested inclusion of the parts man.
V. C. Phillips, Frank Jones, and Earl Turner: The Employer con-
tends that these 3 drivers should be excluded from the unit because
they exercise supervisory authority. The Petitioner urges that the
disputed drivers are very seldom in a position to act in a supervisory
capacity because their runs take them in different directions from
the other 12 drivers.
All drivers are subject to the supervision of the superintendent.
However,-immediate supervision is lodged with the three individuals
in question, particularly during about 50 percent of the working
time when the superintendent is away from the terminal. These
three drivers are authorized to pass upon the qualifications of other
'At the hearing, the Employer moved to dismiss the petition on the ground that the
Petitioner was not then in compliance with the filing requuwnents of the amended Act
The hearing officer referred this motion to the Board At the some time, the hearing officer
denied the Employer's motion to make the forms, filed by Petitionei under Section 9 (f),
(g), and (h) of the amended Act, part of the record for the purpose of questioning the
,information contained therein As to the fo,mei, because our official records show that
the Petitioner. whose compliance status had lapsed at the time of the hearing, is no« in
(o mphance. we shall deny the motion to dismiss As to the latter. inasmuch as the deter-
mination of compliance is an administrative matte, to be disposed of by the Board itself
and is not litigable by the parties, the ruling of the hearing officer is affirmed. Matter of
Lion Oil Company, 76 N L. R B 565; Matter of Baldwin Locomotive Works, 76
N L R B 922
781902-48-vol 76- 7 2
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers for the job and also to make effective recommendations with
respect to the hire and discharge of other drivers. While there is
some question as to the opportunity of the disputed drivers to super-
vise the work of the other drivers in view of evidence that all are
assigned separate runs and only infrequently travel in groups, it
appears that the three drivers have actually exercised the power effec-
tively to recommend hire and discharge in the past. In view of all
the circumstances, we find that W. C. Phillips, Frank Jones, and Ear]
Turner possess supervisory powers. We shall therefore exclude them
from the unit as supervisors.
Mechanics: The Employer would exclude all three mechanics on the
grounds that they have professional and supervisory status. The
Petitioner maintains that the responsibility of the mechanics for the
condition of the equipment is not a supervisory duty and that they
are not professionals.
The Employer's mechanics consisting of a chief mechanic, an as-
sistant chief mechanic, and an assistant mechanic 4 work in the ter-
lninal shop where they repair and overhaul the Diesel motor units.
The chief mechanic or shop foreman is assigned to the clay shift and
possesses power to hire and discharge the assistant mechanic who
works under his direction. The assistant chief mechanic is the sole
mechanic on night work and has no subordinate employee. While
the authorization of a mechanic is necessary before a driver may take
out a truck, the authorization relates to the condition of the equipment;
it does not constitute supervision over the work of the driver. And,
although the skill required of a Diesel mechanic is greater than that
of a gasoline engine mechanic, the duties are essentially routine rather
than professional in character.' Under all the circumstances we are
of the opinion that the duties and interests of the assistant chief me-
chanic and the assistant mechanic are closely allied to those of the
drivers.6 Accordingly, we shall include them in the unit hereinafter
found appropriate. We shall, however, exclude the chief mechanic
as a supervisor.
Dispatchers: The Employer urges the inclusion of dispatchers in
the unit for the reason that they do not perform the supervisory duties
usually associated with this position in the transportation industry.
The Petitioner would exclude the dispatchers as supervisors.
The record shows that the two dispatchers do not allocate runs,
direct the work of the drivers, or effectively recommend the hire and
discharge of employees.' The record shows further that the dls-
4 Al Williams, Melton, and Phillips, respectively.
Cf. Matter of Jersey Publishing Company, 76 N. L R. B 467
fi See Matter of Lincoln Tiansit Co , Inc., 47 N. L. R. B. 1325.
Cf. Matter of Blue Ribbon Lines, 43 N . L. R. B. 381.
FERGUSON-STEERE MOTOR COMPANY 1125
patchers spend most of their time in the office receiving orders and
making out bills of lading; and that, occasionally, the dispatchers load
and drive trucks, or change a tire. In view of the primarily office
clerical duties of the dispatchers, we shall exclude them from the unit
as office clericals.
Office clericals: The Employer contends that the office employees
should be included on the ground that they spend a substantial part
of their working time outside the office, i. e., in the shop or driving
trucks. The Petitioner does not seek the inclusion of the office em-
ployees.
The office employees check and send out statements and handle the
correspondence of the Employer. One of the office employees cur-
rently spends more than half of his working time driving trucks.
The record discloses that this is not the usual practice of the Employer
and that this employee will resume his regular office assignment
when no longer needed on the trucks. The other office employee
spends most of his working time on clerical duties and only a minor
part on errands that take him outside the office. In view of all the
circumstances, and in accordance with our practice, we shall exclude
the office clerical employees."
Parts man: The parts man performs the duties of a stock clerk. He
furnishes the mechanics with parts upon request, keeps inventory, and
orders replacements. We are of the opinion that the work of the parts
man is comparable to that of a plant clerical employee. We shall,
therefore, in accordance with our practice, include the parts man in the
unit.
We find that all operating and maintenance employees at the Em-
ployer's Artesia, New Mexico, terminal, including drivers, service-
men, loaders, mechanics, and the parts man, but excluding office and
clerical employees, dispatchers, the salesman, chief mechanic, and all
supervisors, constitutea unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Ferguson-Steere Motor Com-
pany, Artesia, New Mexico, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Sixteenth Region, and subject to Sections
203.61 and 203.62, of National Labor Relations Board Rules and Regu-
8 See Matter of Kallafer d Mee, Inc., 75 N. L. R. B. 802.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations-Series 5, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction , including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, but excluding those employees
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election , and also exclud-
ing employees on strike who are not entitled to reinstatement , to deter-
mine whether or not they desire to be represented by International
Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America, Local 492, AFL , for the purposes of collective bargaining.