Mid-State Fruit, Inc.

National Labor Relations Board - Board Decisions

Oct 22, 1970

186 N.L.R.B. 51 (N.L.R.B. 1970)

MID-STATE FRUIT, INC. 51
Mid-State Fruit , Inc., Employer-Petitioner and Gener-
al Teamsters Union , Local 406, affiliated with The
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 7-RM-804
October 22, 1970
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
Pursuant to a Stipulation for Certification upon
Consent Election executed by the parties on April 29,
1970, and approved by the Regional Director for
Region 7 of the National Labor Relations Board, an
election by secret ballot was conducted on May 18,
1970, among the employees of the stipulated appro-
priate unit. Upon conclusion of the election, the
parties were furnished with a tally of ballots which
shows that 13 ballots were cast, of which 6 were cast
for the Union, 5 against the Union, and 2 challenged.
The challenged ballots are sufficient in number to
affect the results of the election.
Pursuant to a Notice of Hearing on Challenged
Ballots issued by the Regional Director, a hearing was
held on June 16, 1970, before Hearing Officer James
P. Lewis. All parties participated and were given full
opportunity to examine and cross-examine witnesses
and to introduce evidence bearing on the issues. On
July 9, 1970, the Hearing Officer issued his Report
and Recommendations on Challenges, recommend-
ing that the challenge to the ballot of John Jenema be
overruled and that the challenge to the ballot of
Robert Barrons be sustained. Thereafter, the Employ-
er filed timely exception to the Hearing Officer's
recommendation that the challenge to Barrons' ballot
be sustained.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
to a three-member panel.
Upon the entire record of this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming 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 Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All truck drivers, mechanics, warehousemen,
leadmen, and shipping employees, excluding
clericals, professional employees, guards and
supervisors as defined in the Act.
5. The Board has considered the Hearing Officer's
Report, the Employer's exception, and the entire
record in this case and finds merit in the Employer's
exception to the Hearing Officer's recommendation
that the challenge to the ballot of Robert Barrons be
sustained.
The Employer maintains a warehouse and office in
or near Cadillac, Michigan, from which it supplies
institutions and commercial eating establishments
with food and related supplies. The Employer
operates from Monday morning (when its night shift
comes on at midnight) until the following Saturday.
Its president and manager, Judson Besteman, spends
Monday through Thursday of each week, and the
intervening nights, in Cadillac; on Fridays and
Saturdays the assistant manager, Harold Boven, is in
charge. A night crew, in summer some 10 or more
employees, loads trailers. During the day, truckdri-
vers take these trailers to various customers in
northern Michigan. On the night shift, Barrons has
responsibility for produce, Henry Brink has responsi-
bility for poultry, and other individuals are responsi-
ble for the freezer and for dry goods.
There is evidence that Barrons tells other employees
what to do, including the giving of instructions
concerning the filling of orders and loading of trucks.
On several occasions Barrons determined whether or
not a mechanic was needed in case of a truck
malfunction, and he occasionally directed the rear-
rangement of the order of deliveries and recruited
substitute drivers in case of illness.
The Hearing Officer also credited testimony that
Barrons, in a meeting of union supporters, had stated
that he had fired an employee.
Based on the above factual determinations, the
Hearing Officer concluded that Barrons has authori-
ty, of more than a routine kind, responsibly to direct
the night crew and even, upon occasion, the Employ-
er's drivers. We agree with the facts as found by the
Hearing Officer, but, when taken together with the
testimony of the president, Judson Besteman,2 we
must disagree with the conclusion that Barrons
exercises a degree of independent judgment and
responsibility sufficient to make him a supervisor
within the meaning of Section 2(11) of the Act.
Besteman testified as follows: It is he who arranges
No exception was filed to the Hearing Officer's recommendation that
the challenge to John Jenema's ballot be overruled. This recommendation
is therefore adopted pro forma.
2 Besteman's testimony was uncontradicted and was never discredited
by the Hearing Officer. Barrons did not testify.
186 NLRB No. 11
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the orders from customers and sorts the orders out for
trips. He then routes the orders according to the
location of the customer and what products are
included in each order. When the orders are ready,
they are given to the night crew for filling. If any
special instructions are required, it is Besteman who
gives the instructions, either orally or through written
notes. Besteman determines which trucks will be used
for which routes and matches up drivers and trucks.
Barrons has nothing to do with making up orders or
routes.
Besteman further testified that Barrons has no
authority to hire and fire employees, nor does he have
the authority to discipline employees, recommend
disciplinary action, or effectively recommend raises.
Barrons does recruit substitute drivers and may
occasionally direct an extra delivery to a good
customer. However, Besteman is always on call at his
motel, and, in fact, Barrons calls him at the motel
regardless of the hour. It is common practice for
Barrons to call the motel for instructions in matters
involving substitution of drivers or any other emer-
gency situation. While Barrons may direct a delivery
to a good customer, such a decision is always made on
the basis of who the customer is and what he wants
rather than on the complete discretion of Barrons.
Likewise, Barrons does not have the authority to
divert a truck from its route.
Barrons works the same hours and receives the same
benefits as other members of the night crew and is
required to punch in and out. Barrons is paid an
hourly rate which is 15 cents per hour more than a
mechanic, and he receives overtime pay for work in
excess of 40 hours per week. Besteman further
indicated that, while Barrons may have asked certain
employees to work overtime, he did so at the specific
instruction of Besteman.
Concerning Barrons' statement that he had fired an
employee, Besteman testified that he learned of the
incident through Henry Brink, the man who was in
charge of the section in which the employee worked,
and that Brink informed him that the employee had
quit. There is no other testimony about this incident.
Therefore, although Barrons claimed to have fired an
employee, there is no evidence that he actually did so,
and there is undisputed evidence that he does not
possess the authority to fire.
It is apparent from the record that Barrons issues
instructions and directs other employees in the
performance of their tasks. However, it is clear that
any such instructions or directions either originated
directly with Besteman or conformed to guidelines
established by him. In these circumstances, we find
that Barrons is not free to use his own independent
judgment and therefore does not responsibly direct
the work of other employees.
Barrons does not possess any of the other statutory
indicia of a supervisor. We find that he is not a
supervisor within the meaning of Section 2(11) of the
Act. Accordingly, we shall overrule the challenge to
his ballot.
DIRECTION
It is hereby directed that the Regional Director for
Region 7 shall, pursuant to the Rules and Regulations
of the Board, within 10 days from the date of this
Direction, open and count the ballots of Robert
Barrons and John Jenema, prepare and cause to be
served on the parties a revised tally of ballots,
including therein the count of said ballots, and
thereafter issue the appropriate certification.