Millard Refrigerated Services

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1437 (N.L.R.B. 1998)

MILLARD REFRIGERATED SERVICES 1437
Millard Refrigerated Services, Inc. and United Steel-
workers of America, AFL–CIO–CLC. Case 10–
RC–14820
September 30, 1998
DECISION, DIRECTION, AND ORDER
BY MEMBERS FOX, LIEBMAN AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held August 1, 1997, and the hearing offi-
cer’s report recommending disposition of them (attached
as an appendix). The election was conducted pursuant to
a Stipulated Election Agreement. The tally of ballots
shows 18 for and 14 against the Petitioner with 5 chal-
lenged ballots, a sufficient number to affect the results.1
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the hearing officer’s
findings2 and recommendations only to the extent consis-
tent with this Decision, Direction, and Order.
The hearing officer found that leadmen Jimmy W.
McCoy and William Smith are supervisors within the
meaning of Section 2(11) of the Act, and recommended
that the challenges to their ballots be sustained. The
Employer excepts, contending that McCoy and Smith do
not have authority to exercise independent judgment in
connection with their duties. For the reasons set forth
below, we find merit in the Employer’s exceptions.
The Employer operates a cold storage warehouse in
Attala, Alabama where it stores food items, such as
cheese, chicken, and french fries. These items must be
kept refrigerated to preserve their freshness. Part of the
facility abuts railroad tracks where rail cars are loaded
and unloaded. The facility has over 30 truck docks for
the receipt and shipment of products. Forklift operators
unload the goods and transport them to the appropriate
spaces within the facility, as directed by McCoy and
Smith. Forklift operators send items to “blast cell”
rooms, where they are frozen solid. The food is then
moved by the forklift operators into regularly refrigerated
rooms. The forklift operators also load the trucks and
rail cars. Checkers count the food items loaded and un-
loaded and then check their calculations against the bills
of lading. The employees perform the same tasks every
day, although on different trucks and railroad cars.
McCoy and Smith assign and direct the work of the
service employees, checkers, and forklift operators who
work on the first shift. They assign employees to service
the trucks and rail cars in the order that they arrive.
Some of the Employer’s major customers, however, have
priority in being serviced, and it is common knowledge
that their trucks are to be serviced ahead of others. In the
interest of keeping costs down, McCoy and Smith rotate
certain employees between different jobs and crews, and
send employees home when there is not enough work.
When not overseeing the employees’ work, McCoy and
Smith spend a majority of their time completing paper-
work. They do not attend supervisory meetings, are
hourly paid, and occasionally perform checking and fork-
lift operators’ work.
1 At the hearing, the Union withdrew its challenge to the ballot cast
by Jeff L. Billingsley.
2 In the absence of exceptions, we adopt pro forma, the hearing offi-
cer’s recommendation that the challenges to the ballots of James R.
Ragan and Kermit E. Richey should be overruled.
McCoy and Smith once had authority to discipline ser-
vice employees, but in December 1996 that authority was
rescinded. Since then, McCoy has had no involvement
in employee discipline, and Smith’s involvement has
been limited to one instance. In that instance, Smith
submitted a written warning to the plant superintendent
regarding an employee’s tardiness. The plant superin-
tendent thereafter signed the warning after independently
reviewing the time records.
The hearing officer found that McCoy and Smith exer-
cise independent judgment in assigning and directing the
work of the service employees, and thus are 2(11) super-
visors. He relied on the fact that McCoy and Smith in-
struct the service employees as to which trucks or trains
they should unload, that they allocate manpower among
various jobs, and that they have sent employees home.
The hearing officer also found that McCoy and Smith are
supervisors because they effectively recommend disci-
pline. Contrary to the hearing officer, we find that nei-
ther the evidence concerning the assignment and direc-
tion of work, nor that concerning the recommendation of
discipline, establishes supervisory status.
The Board, with court approval, has found that the as-
signment and direction of employees in connection with
the loading and unloading of trucks, and in connection
with the storing of goods, is generally routine in nature.3
Here, the service work at the Respondent’s facility con-
sists of unloading food items from trucks and railroad
cars, counting and storing the delivered goods, and load-
ing the stored food items onto the outgoing trucks and
railroad cars. The service employees all understand that
the trucks are handled in the order they arrive at the facil-
ity, unless a particular truck has priority, and it is com-
mon knowledge among the employees as to which trucks
have priority. Further, the record indicates that individ-
ual service employees perform the same job tasks on a
continuous basis.
In these circumstances, we find that the record fails to
establish that McCoy and Smith’s assignment of work
constitutes responsible direction within the meaning of
Section 2(11) of the Act. The service employees’ work
is repetitive and requires little supervision, and thus
3 Piggly Wiggly, 280 NLRB 1160, 1166–1169 (1986), enfd. 827 F.2d
1098 (6th Cir. 1987); Sears, Roebuck & Co., 292 NLRB 753 (1989);
Highland Superstores, Inc., 927 F.2d 918 (6th Cir. 1991), enfg. 297
NLRB 155 (1989).
326 NLRB No. 156
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1438
McCoy and Smith’s assignments are routine in nature.4
That McCoy and Smith assign service employees to
various tasks, and that they may rotate them between
different jobs and crews, does not, by itself, reflect their
ability to responsibly direct employees. McCoy and
Smith are experienced employees who know which of
their fellow employees have the greater skill and experi-
ence. Their use of this information when assigning ser-
vice work does not establish that they exercise inde-
pendent judgment.5
Nor does the fact that McCoy and Smith send service
employees home early confer supervisory status. Ac-
cording to the standards set by the plant manager and
superintendent, the leadmen may send employees home
only when it is clear that their services are not needed for
the remainder of the day. Thus, the decision to send em-
ployees home is based solely on the observation that
there is no other work to be done, and does not involve
the use of independent judgment.6
Accordingly, in relation to McCoy and Smith’s role in
assigning and directing service employees’ work, includ-
ing the decision to send employees home early, we find
that in each instance the authority exercised does not
involve independent judgment, but rather constitutes
routine decisions typical of leadmen and other employees
that are typically found by the Board not to be supervi-
sors.7
We also do not agree with the hearing officer that
McCoy and Smith have the authority to effectively rec-
ommend discipline. As noted above, in December 1996,
the Respondent rescinded their authority to discipline
service employees. This recission notwithstanding, the
hearing officer relies on a subsequent incident involving
Smith’s submission of a written disciplinary form to
plant superintendent Joe Webb, citing service employee
Scott Holmes for tardiness. As noted above, Webb, not
Smith, signed the disciplinary form only after reviewing
the time records. We find that this action fails to show
that this was anything more than a reportorial function or
that Smith exercised independent judgment in submitting
the form to Webb. Indeed, Webb engaged in an inde-
pendent investigation, by checking the time records, be-
fore he signed the written disciplinary form. Thus, the
record does not support the hearing officer’s finding that
the leadmen have the authority to effectively recommend
discipline requiring the use of independent judgment.

4 See, e.g., House of Mosaics, 215 NLRB 704, 710 (1974).
5 See Sears, Roebuck & Co., supra at 755.
6I n finding that the authority to send employees home early involves
independent judgment, our dissenting colleague relies on the hearing
officer’s description of the “factors” taken into account when deciding
to send employees home. This description, however, amounts to noth-
ing more than checking to see whether there is any other work to be
done. In our view, this does not demonstrate the use of independent
judgment.
7Byers Engineering Corp., 324 NLRB 743 (1997).
In sum, the factors relied upon by the hearing officer,
considered separately and cumulatively, are insufficient
to establish that McCoy and Smith possessed any of the
indicia of supervisory status enumerated in Section 2(11)
of the Act. Accordingly, we shall overrule the challenge
to the ballots of Smith and McCoy and shall direct that
their ballots be opened and counted.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
10 shall, within 14 days from the date of this Decision,
Direction, and Order, open and count the ballots of Jeff
L. Billingsley, James R. Ragan, Kermit E. Richey,
Jimmy W. McCoy, and William Smith, and serve on the
parties a revised tally of ballots. Thereafter, the Regional
Director shall issue the appropriate certification.
ORDER
It is ordered that this matter be remanded to the Re-
gional Director for Region 10 for further processing con-
sistent with this decision.

MEMBER HURTGEN, dissenting.
Contrary to my colleagues, I agree with the hearing of-
ficer that challenged voters Jimmy W. McCoy and Wil-
liam J. Smith are 2(11) supervisors and are thus ineligi-
ble to vote in the election. Accordingly, I would sustain
the challenges to their ballots and certify the Union as the
exclusive bargaining representative.1
The hearing officer found, and I agree, that leadmen
McCoy and Smith2 are supervisors based on their author-
ity to assign and to responsibly direct the work of ap-
proximately 18 first-shift service employees, checkers,
and fork lift operators. Even if the work of these em-
ployees can be characterized as repetitive and routine,
this does not mean that the assignment and direction of
that work is repetitive and routine. As discussed below,
that assignment and direction involve independent judg-
ment.
The Employer has established “cost per hundred
weight” standards for its cold-storage operation. These
corporate standards prescribe the total labor costs that
can be expended on the product handled by the Employer
within a particular time frame. McCoy and Smith are
responsible for tabulating the “cost per hundred weight”
calculations for their respective day-shift crews. As
found by the hearing officer, McCoy and Smith are re-
quired to keep their crews’ cost within these cost limits.
They do so through their assignment, reassignment, and
direction of day-shift personnel. As noted by the hearing
officer, McCoy and Smith have no control over the
1 The election results were 18–14, in favor of the Union. There were
five challenges. One was withdrawn and two were overruled by the
hearing officer. There are no exceptions to the overrulings, and the
Board adopts them pro-forma.
2 McCoy and Smith were termed “supervisors” until shortly before
the election when the Employer renamed them “leadmen.”
MILLARD REFRIGERATED SERVICES 1439
weight of goods handled by the day shift. However, in
order to make sure that the weight is handled within ac-
ceptable costs, McCoy and Smith must make independ-
ent judgments as to how many employees, and which
ones, are to be assigned to a particular task.
Further, although the Employer’s general practice is to
provide “first-in, first-out” service to customers, McCoy
and Smith may deviate from this procedure in several
circumstances. For example, they alter assignments as
needed to provide preferential service to favored custom-
ers, to take into account relative employee skills and apti-
tudes as judged by McCoy and Smith, to divert product
that requires quick “blast” freezing, and to deal with the
varying quantities of product handled by the facility.
Further, to contain costs when facing these or other exi-
gencies, McCoy and Smith substitute or rotate employ-
ees, trade employees between their respective crews,
hasten employees in their work, reassign employees in
order to improve efficiency, extend employees’ regular
hours as needed, approve requests for excused absences,
deny requests for time off, and send employees home to
curtail costs.3 These actions, in my view, clearly consti-
tute assignment and responsible direction of work, using
independent judgment.
I also agree with the hearing officer that McCoy and
Smith have an additional indicium of supervisory status
based on their authority to effectively recommend disci-
pline. Prior to December 1996, these leadmen had au-
thority to discipline employees on their own. As found
by the hearing officer, the only change to this authority
in December 1996 was that Smith and McCoy could no
longer decide for themselves whether to discipline em-
ployees. They could, however, effectively recommend
employee discipline. Further, Smith exercised this auth-
ority by subsequently writing up employee Holmes for
tardiness, which recommendation Plant Superintendent
Webb approved.4 As found by the hearing officer (fn.6),

3 The majority oversimplifies the authority of McCoy and Smith to
send employees home early, stating that this is done only “when it is
clear that their services are not needed for the remainder of the day.”
As found by the hearing officer:
The decision to send employees home is made by taking ac-
count of such factors as: whether all the trucks and rail cars have
been unloaded; how much additional freight is expected to arrive;
the expected arrival times of additional freight; whether any ex-
pected freight can be unloaded with regular forklifts or only by
use of the slip sheet machine; whether there is work other than
unloading, such as cleaning the dock areas to occupy waiting for
expected deliveries; and, finally, whether the services of workers
whose services are no longer needed in their usual work areas that
day are in demand on another dock.
And, significantly, all of these factors must be considered in light of
the labor costs per hundred weight. In this regard, McCoy and Smith
must balance the respective costs of retaining an employee at work
versus sending him home early.
4 The majority notes that, prior to signing the disciplinary form that
McCoy prepared, Webb may have checked the numbers on Holmes’
tardiness. However, the fact that the decision-maker checks a fact
these write-ups can, and do, affect terms and conditions
of employment.
In sum, for these reasons, as well as those relied on by
the hearing officer, I find that McCoy and Smith are
statutory supervisors. Accordingly, I would sustain the
challenge to their ballots.

APPENDIX
HEARING OFFICER’S REPORT ON
CHALLENGED BALLOTS
The petition in the above-captioned proceeding was filed on
June 17, 1997. Pursuant to a Stipulated Election Agreement
approved on July 7, 1997, an election by secret ballot was con-
ducted on August 1, 1997, among the employees in the unit
stipulated to be appropriate to determine the question concern-
ing representation.1 Upon conclusion of the balloting, the par-
ties were furnished a tally of ballots, which showed that of
approximately 37 eligible voters, 18 cast valid votes for and 14
cast valid votes against the Petitioner. There were five chal-
lenged ballots and no void ballots. The challenged ballots were
sufficient in number to affect the results of the election. No
objections to the conduct of the election were filed.
Thereafter, on October 29, 1997, the Regional Director is-
sued a Report on Challenged Ballots, Order Directing Hearing,
and Notice of Hearing. A hearing was conducted by Hearing
Officer John D. Doyle Jr. on November 5 and 6, 1997, in Bir-
mingham, Alabama. Both parties were represented at the hear-
ing and were allowed full opportunity to participate, to exam-
ine, and to cross-examine witnesses and to introduce evidence.
I have considered the entire record in this case carefully.
The findings of fact and credibility resolutions contained herein
are based on my observations of the testimony and demeanor of
the witnesses.2
Upon the entire record, I make the following findings of fact,
credibility resolutions, and recommendations.3
BACKGROUND FACTS
The Employer operates a 198,000-square-foot cold storage
warehouse in Attala, Alabama. (Transcript, hereinafter “Tr.,”
283–284.) The facility has two types of docks, to accommo-
date both rail cars and trucks. The employees unload food
items, such as cheese, chicken, and french fries transported to

before making a decision does not render the recommendation ineffec-
tive.
Further, I do not find it significant that this authority has been exer-
cised infrequently. Sec. 2(11) covers not only action, but the authority
to take action.
1 The stipulated appropriate unit is: All service and maintenance em-
ployees, including custodians, employed by the Employer at its Attalla,
Alabama facility, but excluding all other employees, office clericals,
guards, and supervisors as defined in the Act.
2 I have made determinations of credibility based upon general de-
meanor, partisan interests, guarded or evasive answers, replies to lead-
ing questions under direct examination, memory for detail, the ability to
comprehend questions and their answers, self-serving answers, and
conclusional testimony. When deemed necessary, I shall note my
specific findings and the reasons therefor. Testimony judged patently
incredible or unworthy of belief may not be discussed or subjected to
comment. Accordingly, any failure to detail all conflicts in evidence
does not mean that such conflicting evidence was not considered.
3 Both the Employer and the Union filed posthearing briefs, which
have been duly considered.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1440
the facility by trucks and rail cars. (Tr. 545.) The food items
must be kept refrigerated to preserve freshness. The service
employees in the bargaining unit fall within two general catego-
ries: checkers and forklift operators. The bargaining unit also
includes maintenance employees and custodians. The checkers
count the food items delivered and their calculations are then
checked against the bills of lading. The operators unload the
goods and transport them by forklift to the appropriate space
within the facility. The facility also has “blast cell” rooms,
where not fully frozen food items are exposed to exceptionally
cold “blasts” of air which freeze them solid. (Tr. 463–464.)
The forklift operators move the goods from the blast cooling
rooms into regular refrigerated storage space elsewhere in the
warehouse once they are frozen solid. (Tr. 463–464.)
Where parts of a shipment are damaged, the Employer takes
pictures and ascertains the customers’ desires as to disposition
of the damaged articles. Where there is only minimal damage,
the Employer does not take pictures. The warehousing opera-
tion runs continuously, but there are two primary shifts for
work crews. The first shift operates from approximately 7 a.m.
to 4 p.m., and the general hours of the second shift are 4 p.m. to
12 midnight. The warehouse receives shipments during both
shifts, but outgoing goods are shipped primarily during the first
shift.
The Employer employs three maintenance personnel who are
responsible for servicing and repairing the ammonia system
which cools the warehouse. The maintenance employees also
repair problems with tools and equipment as necessary pursuant
to work order forms assigned them. The maintenance employ-
ees report to the Plant Engineer, an individual whom the parties
agree is a Supervisor within the meaning of Section 2(11) of the
Act. There are two custodial employees, who report to Office
Manager Michelle McCoy.
The four office employees keep records, file paperwork, and
answer telephones. The office employees also report to Office
Manager McCoy, whom the parties agree is a supervisor within
the meaning of Section 2(11) of the Act. The office clerical
employees are excluded from the bargaining unit pursuant to
the stipulated election agreement.
Plant Manager Charles Margraf is responsible for the overall
operations of the facility, including hiring, disciplining employ-
ees, responding to customer concerns, generating business, and
meeting the corporately prescribed cost-per-hundred weight
goal. (Tr. 283, 322, 323, 348–349.) The cost-per-hundred
weight is calculated by dividing the total labor expenditures by
the weight of the cargo shipped and received at the facility for
the pertinent time frame. (Tr. 320.) Margraf’s usual hours are
about 7 a.m. to 5 p.m. (Tr. 324.) Plant Superintendent Joe
Webb assists Margraf with his duties. Webb also works day-
shift hours. Webb administers discipline, responds to customer
complaints, and reviews bills of lading and employees’ tabula-
tions of the quantities of goods received and shipped. The par-
ties agree that both Margraf and Webb are supervisors within
the meaning of Section 2(11) of the Act.
Bill Jenkins has occupied the position of night-shift Superin-
tendent since he came to work for the Employer in October
1996. He works from approximately 4 p.m. to 1 a.m. (Tr. 562.)
Jenkins is responsible for the hiring on his shift, he disciplines
employees, computes the estimated cost-per-hundred-weight
ratio for his shift, and checks the accuracy of employees’ tabu-
lations of quantities received. (Tr. 534, 549.) The parties agree
that Jenkins is a supervisor within the meaning of Section 2(11)
of the Act.
THE CHALLENGED BALLOTS
At hearing, the Union requested and was granted permission
to withdraw the challenge it had made to the ballot cast by Jeff
L. Billingsley. (Tr. 8-9.) The Union and the Employer stipu-
lated that Jeff L. Billingsley was eligible to vote in the election,
and that, in the event the Board concludes that his ballot is de-
terminative, that ballot should be opened and counted. (Tr. 9.)
The validity of the Union’s challenges to the ballots cast by
Jimmy W. McCoy, William J. Smith, James R. Ragan, and
Kermit E. Richey are the only issues before the Hearing Offi-
cer. The Union takes the position that the four individuals are
supervisors within the meaning of Section 2(11) of the Act.
The Employer takes the contrary position. The challenges
should be sustained if the individuals are supervisors within the
meaning of Section 2(11) of the Act. Otherwise, the challenges
must be overruled, and the challenged ballots opened and
counted.4
The burden of establishing the supervisory status of these in-
dividuals rests with the Union as the party contending that the
individuals are not employees within the meaning of the Act.
Ohio Masonic Home, Inc., 295 NLRB 390, 393 (1989). The
Board has a duty not to construe the term supervisor too
broadly, because employees who are deemed supervisors are
denied important rights that the Act was intended to protect.
Phelps Community Medical Center, 295 NLRB 486, 492
(1989). The statute lists supervisory duties in the disjunctive,
so an individual need have authority only with regard to any
one listed supervisory function in order to be within the statu-
tory definition. Id. at 489. In order to establish supervisory
status, however, the exercise of authority must be made in con-
junction with the use of independent judgment in the Em-
ployer’s interest. Id.
The Employer’s admitted supervisory hierarchy consists of
Plant Manager Charles Margraf, Plant Superintendent Joe
Webb, Night Shift Superintendent Bill Jenkins, the Plant Engi-
neer position, which was held by William Corneliuson at the
time of the election, and Office Manager Michelle McCoy.
Jimmy W. McCoy and William J. Smith work on the day shift
in positions which the Employer now calls “leadmen.” James
R. Ragan and Kermit E. Richey work on the evening shift in
positions the Employer now calls “leadmen.” As is stated
above, the Union contends that these four individuals are su-
pervisors within the meaning of Section 2(11) of the Act. The
Employer contends that the individuals have never been super-
visors within the meaning of Section 2(11) of the Act. Addi-
tionally, the Employer contends that, even if the individuals did
possess supervisory authorities in the past, changes in opera-
tions which took place in October 1996, and December 1996
stripped the individuals of any supervisory authority they pos-
sessed. Thus, there are two subissues before the hearing offi-
cer: (1) Were the individuals’ supervisors within the meaning
of Section 2(11) of the Act as late as October 1996? and (2) If
so, did the Employer’s asserted change in operations alter the

4 Initially, the Union took an alternative position that the individuals
were office clerical employees. Near the close of hearing, the Union
withdrew its contention that the individuals were office clerical em-
ployees, and stated that its only grounds for challenging the ballots is
2(11) supervisory status. (Tr. 648.)
MILLARD REFRIGERATED SERVICES 1441
individuals’ supervisory status?5 This Report will address these
issues below, seriatim.
I. THE INDIVIDUALS OCCUPYING THE DISPUTED JOB
CLASSIFICATIONS WERE SUPERVISORS WITHIN THE MEANING OF
SECTION 2(11) OF THE ACT PRIOR TO THE CHANGES IN OPERATION
WHICH BEGAN IN OCTOBER 1996
A. The Possession of Statutorily Defined Supervisory Authority
Although the Employer contends to the contrary, I think
there is little doubt that the individuals possessed 2(11) supervi-
sory authorities prior to October 1996. The Employer intro-
duced an Exhibit 23, through its own witness Joe Webb, which
demonstrates that individuals in the disputed job classification
issued almost 50 percent of the disciplines undertaken at the
facility over the course of the time period 1993 through 1997.
(Employer Exhibit, hereinafter “Exh.,” 23.) The document
demonstrates that individuals in the “leadman” category issued
30 disciplines, including 17 verbal warnings, 11 written warn-
ings, and 2 suspensions during that time period. (Emp. Exh.
23.) The evidence disclosed that the individuals signed the
disciplinary forms and other company paperwork as “supervi-
sors.” (U. Exhs. 1, 5, 6, 7, 9, 11, 13, 14, 15, 16, 17, 18, 20, 21.)
Employer Exhibit 23 demonstrates that individuals employed in
the disputed classification issued 30 of the 63 total disciplines
issued during the pertinent time frame, including 2 of the 8
suspensions.6 (Emp. Exh. 23.)

5 I deem it necessary in resolving the issue presented to consider first
the supervisory status of the individuals at the time preceding the
operational changes and then to proceed to the question of whether the
individuals were supervisors at the time of the election. To base a
conclusion regarding supervisory status on the actions and authorities
the individuals possessed before the asserted operational changes alone
without considering the effect of the asserted changes on the supervi-
sory status issue would be to ignore the possible scenario, as urged by
the Employer, that the individuals were stripped of some of their duties
and authorities through changes that took place in October 1996 and
December 1996. By contrast, to consider the supervisory status ques-
tion based only on the occurrences between December 1996 and the
August 1, 1997 election would provide a disturbingly possessed before
the asserted operational changes alone without considering the effect of
the asserted changes on the supervisory status issue would be to ignore
the possible scenario, as urged by the Employer, that the individuals
were stripped of some of their duties and authorities through changes
that took place in October 1996 and December 1996. By contrast, to
consider the supervisory status question based only on the occurrences
between December 1996 and the August 1, 1997 election, would pro-
vide a disturbingly short time period sample, where the Employer’s
operations during some of that time period were possibly influenced (as
asserted by the Union) by a desire to affect the composition of the
bargaining unit in the event of an election. The evidence established
that the Union organizing drive was underway at the time the Employer
assertedly implemented the second series of operational changes in
December 1996.
6 The Employer correctly argued that an individual’s authority to is-
sue verbal and written reprimands does not, in itself, confer supervisory
status absent a showing of some effect on the employment relationship.
E.g., Azusa Ranch Market, 321 NLRB 811, 812 (1996); S.D.I. Operat-
ing Partners, 321 NLRB 111, 112 (1996). In the instant case though,
the evidence demonstrated that the individuals had the authority to
suspend employees, and individuals in the disputed category issued two
of the eight suspensions at the facility during the time period 1993
through 1997. Moreover, Plant Superintendent Joe Webb testified that
the Employer follows a progressive disciplinary system, such that re-
peated commissions of the same offense result in progressively sterner
disciplinary measures. (Tr. 581.) In one case, the progressive discipli-
Although the Employer claims that the individuals are
“leadmen” I conclude that no Employer representative referred
to the individuals as “leadman” prior to October 1996.7 Thus,
each individual signed disciplines as “supervisor;” they signed
work orders as “supervisor;” and the Plant Superintendent Joe
Webb introduced McCoy and. Smith to employees as the “su-
pervisors.” (Tr. 16, 60.) Webb told employees that if they had
problems to go to their supervisors, and he motioned to McCoy
and Smith. (Tr. 77.) Webb told employees that the chain of
command was for them to take problems to Supervisors Jimmy
McCoy and Billy Smith first, who would take the problems up
the chain of command if necessary. (Tr. 611.) Although the
Employer’s use of the term “supervisor” is not controlling on
the issue of supervisory status within the meaning of Section
2(11) of the Act, e.g., Chevron U.S.A., 301 NLRB 59, 61
(1992), the Employer’s consistent use of this terminology, and
Webb’s statements directing employees to go to supervisors
McCoy and Smith with their problems demonstrates that the
Employer held the individuals out to employees as supervisors.
Additionally, the evidence established that prior to October
1996, all employees in the disputed job classifications com-
pleted cost per hundred weight calculations for the employees
in their crew. (Tr. 388, 435.) Plant Superintendent Joe Webb
testified that he “got on” McCoy and Smith “pretty heavy”
about the need for them to come in with acceptable cost per
hundred weight figures. (Tr. 591, 611.) Webb’s statement that
he “got on” McCoy and Smith about the figure was corrobo-
rated by the testimony of witness Bryan Abney, who occasion-
ally fills in for Jimmy McCoy. Abney testified that one will
“hear about it” if the figure is unacceptable. (Tr. 112.) Abney
explained that on occasions where he substituted in McCoy’s
absence, it was his duty to rotate employees, and move em-
ployees around to control costs. (Tr. 122–123, 148.) Further,
witness Randy Jenkins testified that Billy Smith said it was his
responsibility to run at a 12-cent ratio. (Tr. 270.) Jenkins testi-
fied that Billy Smith said he got chewed out by management if
he failed to contain costs. (Tr. 270.) I credit Jenkins’ testimony
in this regard. Even though Jenkins apparently misunderstood
the means by which supervisors calculated the ratio, he was
certain that Billy Smith had made the statement about getting
chewed out if costs ran too high. (Tr. 270.) Thus, Randy Jen-
kins’ testimony regarding Billy Smith’s statements corrobo-
rated Webb’s testimony that he had gotten on the lead men
pretty heavy when the ratio did not meet expectations. (Tr.
591.)
The evidence is undisputed that McCoy and Smith assign
work to the checkers and forklift operators, and direct those
employees in their work. (Tr. 297–298, 368, 458, 627.) How-

nary system has resulted in discharge for repeated tardiness. (Tr. 639.)
Thus, even verbal and written warnings have a definite effect on the
employment relationship in this case.
7 Kermit Richey testified that on occasion truckdrivers from outside
companies had asked to speak with a leadman and employees had di-
rected them to Richey. (Tr.429.) However, Richey’s response to the
question posed by union counsel demonstrates that leadman was not a
part of the plant’s internal vocabulary prior to October 1996. (Tr. 429.)
Brian Abney testified that the Employer only started using the term
“leadman” around the time of the election. (Tr. 129, 142.) Roger Leath
testified that the Employer called. Smith and McCoy supervisors at the
safety meeting in February or March 1997, and only started using the
term “leadman” subsequent to that. (Tr. 77, 81.) I credit Abney’s and
Leath’s testimony regarding when the Employer began using the term
“leadman.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1442
ever, the Employer contends that McCoy’s and Smith’s as-
signment and direction of work did not involve the exercise of
independent judgment in the interest of the Employer. Where
individuals assign and direct work in a routine manner, the
Board will conclude that such assignment and or direction is
not done through the exercise of independent judgment. E.g.,
Somerset Welding & Steel, 291 NLRB 913, 914 (1988). The
Employer’s witnesses uniformly used the adjective “routine” in
describing the disputed individuals’ assignment and direction of
work. (Tr. 290, 307, 325, 345, 356, 458, 534, 535, 536, 543,
566.)8 However, the evidence concerning what the individuals
actually do in assigning and directing work, has convinced me
that such assignment and direction is not at all routine.
During the day shift for example, Jimmy McCoy and Billy
Smith each assign unloading duties to members of their crews.
There is a rail car crew, and crews that unload trucks. The
Employer follows a general practice of “first in first out” in that
whichever truck or rail car arrives first will be the first to be
unloaded, and whichever truck or rail car arrives second will be
next, etc. However, there are a number of exceptions to this
general rule. Some customers have a preferred arrangement
with the Employer, such that the Employer will sometimes skip
over other trucks or rail cars, even though they may have ar-
rived sooner, and unload the truck or rail car of the preferred
customer out of turn. Further, there is the matter of the blast
freezers.
As mentioned above, some customers bring less than frozen
goods to the facility, in which case, the Employer subjects
those goods to cold blasts until they freeze, at which point the
Employer then moves the goods to the regular storage space of
the warehouse which is also refrigerated, but is not as cold as
the cold blast areas. (Tr. 463.) The testimony established that
truckers sometimes bring in goods that need to be exposed to
the cold blasts at a time when the Employer’s limited number
of cold blast areas are occupied by other goods still in the proc-
ess of freezing. (Tr. 463, 628.) In those instances, the new
goods have to wait until a cold blast area becomes available.
(Tr. 628.) This is another instance where the person in charge
of assigning the unloading of trucks must decide which truck to
do next and which employees to assign to it. (Tr. 628.)
Only two operators on Jimmy McCoy’s crew, Mike Elrod,
and Brian Abney, know how to operate the slipsheet machine.
(Tr. 140.) Some of the freight which the warehouse employees
unload can be unloaded only through use of the slip sheet ma-
chine. Thus, the person in charge of assignments must decide,
when a truck arrives carrying goods that can be unloaded only
through use of a slipsheet machine: “Do I pull the slip sheet
operator off of his current assignment on a truck which can be
unloaded by an ordinary forklift, in order to put him on assign-
ment to the truck which can be unloaded only by use of a slip
sheet?” The decision’s difficulty level is compounded if there
are other trucks to be unloaded, or if some of the other trucks
are those of preferred customers with special arrangements, or
if one of the trucks waiting has goods which must be exposed
to cold blasting, and what if no cold blasting areas are vacant
right then, and when will the next opening be? Along with this,
the person making the assignments will need to have someone

8 I accord no weight to the Employer’s witnesses persistent use of
the word “routine” while testifying. As is set forth more fully in this
Report, the evidence I credit demonstrates that the work which the
individuals assign and direct is not routine, and the Employer’s ability
to clutter the record with the word “routine” is of no help to it.
move the goods in the cold blast area to the regular warehouse
space in order to free up the cold blast area to receive the goods
on the truck, and to keep the unloading process moving. Fur-
ther, the supervisors are responsible for deciding where in the
warehouse unloaded goods should be placed. (Tr. 627.)
I am convinced that those who make the assignments for
truck and rail unloading do not perform a “routine” function.
The testimony of Brian Abney, who filled in for Jimmy McCoy
on numerous occasions during 1997, demonstrated that the
Employer relied even on McCoy’s substitute to rotate employ-
ees, move employees around, and send employees home early
in order to contain the cost levels. (Tr. 111, 123–124, 148.)
This kind of assignment and direction of work, driven by the
omnipresent burden of McCoy and Smith to meet the corpo-
rately prescribed cost per hundred weight ratio, is the kind of
assignment and direction of which Section 2(11) of the Act
speaks.
In Ten Broeck Commons, 320 NLRB 806, 810–811 (1996),
the Board concluded that Licensed Practical Nurses at a nursing
home were not supervisors within the meaning of Section 2(11)
of the Act even though they assigned and directed the work of
the Certified Nursing Assistants at the facility. The Board
based this determination on its conclusion that the LPNs’ as-
signment and direction of work was merely routine, and did not
involve the exercise of independent judgement in the interest of
the employer. The instant case is in sharp contrast to the facts
which were before the Board in Ten Broeck Commons.
Whereas the CNAs in Ten Broeck Commons possessed identi-
cal certifications and essentially identical skills, the bargaining
unit employees of the Employer possess varying levels of skills
and aptitudes with the different machines. As discussed above,
Jimmy McCoy will, on occasion, assign slipsheet operators
Brian Abney and Mike Elrod to other jobs, and then McCoy
must make an assignment decision if a need arises for use of
the slipsheet machine somewhere else. Whereas the primary
factor in the LPNs’ care plan for residents in Ten Broeck Com-
mons was the LPNs’ professional judgment, the Employer’s
supervisors herein are driven only by the Employer’s directive
to bring labor costs within the acceptable ambit that will gener-
ate a satisfactory cost per hundred weight ratio. The Employer
here delegated to its supervisors, particularly those on first
shift, the authority to direct and assign employees, including
rotating employees between different jobs and different crews,
sending employees home, approving requests for excused ab-
sences, and denying employees’ requests for time off, for the
express purpose of the supervisors thereby controlling costs.
(Tr. 29, 122–123, 148, 270, 485–486, 517–518, 591, 611; U.
Exhs. 14, 17.)
The dock supervisors, as Plant Superintendent Joe Webb re-
ferred to McCoy and Smith exclusively before October 1996,
had an ever changing number of factors to consider in making
assignments. They pulled employees off some jobs and as-
signed them to others, and McCoy and Smith “traded” employ-
ees between their two crews. There are approximately 18
checkers and operators on the first shift, and McCoy’s and
Smith’s management of that workforce was the sole means by
which they could control the cost per hundred weight ratio
which Plant Superintendent Joe Webb required them to keep
under control. In brief, the Employer cited Byers Engineering
Corp., 324 NLRB 743 (1997), for the proposition that an indi-
vidual’s reassignments of work designed to equalize employ-
ees’ work does not confer supervisory status. In this case,
MILLARD REFRIGERATED SERVICES 1443
however, it was the individuals’ duty to assign work, not for the
purpose of equalizing work, but to contain costs and drive
down the cost per hundred weight ratio. (Tr. 111.) This as-
signment and direction was not routine; it was done in the exer-
cise of independent judgment in the interest of the Employer.
The weight of goods handled each day is not a factor over
which the supervisors have any control. That is, however many
tons of freight are coming each day are coming and there is
nothing the supervisors can do to change that number. The
only factor in the cost-per-hundred-weight formula that the
supervisors can effect is the number of hours worked by em-
ployees on their crews. The supervisors can manage these
numbers by assigning work to employees in the most efficient
way; by hurrying employees to do it faster, through such means
as discipline for unsatisfactory job performance, and by sending
employees home early. The Plant Superintendent “gets on” the
supervisors if they do not control the cost-per-hundred-weight
figure.
The assignment decision which most directly affects the cost
per hundred weight ratio is the decision of when to send em-
ployees home. Although employees have scheduled work
hours, they work more or less than the scheduled hours if indi-
viduals in the disputed classifications believe the circumstances
warrant sending them home. (Tr. 485–486.) The decision to
send employees home is made by taking account of such fac-
tors as: whether all the trucks and rail cars have been unloaded;
how much additional freight is expected to arrive; the expected
arrival times of additional freight; whether any expected freight
can be unloaded with regular forklifts or only by use of the slip
sheet machine; whether there is work other than unloading,
such as cleaning the dock areas to occupy employees waiting
for expected deliveries; and finally, whether the services of
workers whose services are no longer needed in their usual
work area that day are in demand on the other dock.
I credit the evidence which established that the supervisors,
Jimmy McCoy and Billy Smith, and their predecessors in the
positions before them, made the decisions about whom to send
home and when, at all times prior to October 1996. (E.g., Tr.
485–486.) I am convinced that these decisions were not rou-
tine, based on the litany of interrelated factors cited above
which the supervisors would have to consider before deciding
and due to the fact that the assignment and direction was ac-
companied by an obligation placed on the supervisors by man-
agement to insure that the labor costs were contained. (Tr. 591,
611 629–630.) The decision to send employees home is the
only factor in the cost per hundred weight analysis over which
the supervisors had direct control.
As the bargaining unit employees are hourly paid, the super-
visors’ decisions about when to send them home will affect the
Employer’s cost. The decision has a similar effect on the fi-
nancial well-being of employees because a decision to send
them home early means they make less money. Thus, the su-
pervisors exercised independent judgment in making work
assignments and directing employees’ work. By assigning
employees to tasks they can perform more efficiently and by
getting employees out the door faster, the supervisors’ inde-
pendent judgement clearly is exercised in the interest of the
Employer to control costs. (Tr. 517–518.) During the time
period preceding October 1996, the Employer relied on the
supervisors to make assignments, change assignments, swap
employees between crews, and send employees home early
toward the goal of lowering the cost-per-hundred-weight ratio.
The testimony was most detailed concerning the cost per hun-
dred weight calculations Smith and McCoy made. The testi-
mony of Bill Jenkins and Kermit Richey, which I credit, dem-
onstrated that, prior to October 1996, the night shift supervisors
also made cost-per-hundred-weight calculations and were relied
on to keep those numbers in line by disciplining employees
with poor performance and by making efficient work assign-
ments that would allow some employees to go home earlier
than scheduled.
Where an employer places on individuals the obligation to
control labor costs by their direction and assignment of work, it
clothes these individuals with the robes of supervisory authority
defined in Section 2(11) of the Act.
The credited evidence firmly establishes that prior to Octo-
ber 1996, Supervisors Jimmy McCoy, Billy Smith, Kermit
Richey, and James Ragan had authority to discipline employees
on the Employer’s behalf, through the use of independent
judgment. Further the credited evidence establishes that, prior
to October 1996, Supervisors Jimmy McCoy, Billy Smith,
Kermit Richey, and James Ragan assigned and directed em-
ployees in their work through the use of independent judgment
in the interest of the Employer, and for the purpose of control-
ling labor costs. Thus, all four individuals whose ballots the
Union challenged were supervisors within the meaning of Sec-
tion 2(11) of the Act prior to October 1996.
B. Secondary Indicia also Support a Conclusion of
Supervisory Status
Additionally, some of the secondary indicia of supervisory
authority support the conclusion that the individuals were su-
pervisors. For example, the employee to supervisor ratio in the
undisputed job classifications accords with a conclusion that
the disputed positions are supervisory. Plant Engineer John
Corneliuson supervised only three individuals. Office Manager
Michelle McCoy supervised only six employees. If Jimmy
McCoy, Billy Smith, Kermit Richey, and James Ragan were
considered nonsupervisory employees, this would mean that
Plant Superintendent Joe Webb was the immediate supervisor
for approximately 18 employees, and that the night-shift super-
intendent was the immediate supervisor for approximately 10
employees. These numbers are in disaccord with the supervisor
to employee ratio in the other facets of the Employer’s opera-
tion at the facility. The maintenance department supervisor to
employee ratio is only 1:3 and the office department supervisor
to employee ratio is only 1:6.
Although the Employer contended that Plant Manager Char-
les Margraf should also be considered a supervisor for the em-
ployees on first shift, Margraf’s duties encompass affairs much
more broad sweeping than supervision of warehouse employ-
ees. Thus, Margraf is responsible for customer contact, initiat-
ing new business, and responding to the concerns of the corpo-
rate office. Margraf is the highest ranking official at the facil-
ity, and his responsibilities include the entire facility, that is:
warehouse, office, and maintenance. Margraf does walk the
warehouse floor daily and therefore observes the dock employ-
ees as they work, but the evidence demonstrated that Margraf
did not administer any of the disciplinary actions listed on Em-
ployer’s Exhibit 23 and Margraf does not involve himself with
assignment or direction of work. Margraf is a high level man-
ager, not a first-line supervisor.
The Employer’s use of the term “supervisor” in referring to
individuals in the disputed classification prior to October 1996
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1444
is indicative that the Employer viewed the individuals as having
authority historically and statutorily supervisory in nature. The
Employer represented to employees that the individuals were
supervisors. Although the nomenclature is not dispositive, the
use of the term supervisor as opposed to “leadman” which the
Employer has used only of late is further evidence that the indi-
viduals are statutory supervisors.
Additionally, there are times when the individuals who work
the disputed classifications are the highest ranking officials at
the facility. Jimmy McCoy and Billy Smith have keys to the
facility. They open it up in the morning before any more au-
thoritative personnel arrive. Similarly, James Ragan remains in
the facility at night even after Night Shift Superintendent Bill
Jenkins has left. Jimmy McCoy and Billy Smith field tele-
phone calls in the morning from employees who will not be
able to make it in. The Employer disciplines employees if they
miss work without calling in, but the evidence showed that
those who call in and tell Jimmy McCoy or Billy Smith they
will not be coming in are excused. The fact of employees being
the highest ranking officials at the facility for short periods of
time does not itself convert them to supervisors, but it is one
factor of secondary indicia supporting a conclusion that the
individuals are supervisors. Also, the fact that individuals in
the disputed classification open the facility in the morning, field
calls from employees calling in sick or otherwise unable to
come to work, and lock the facility at night provides a secon-
dary indicator that the individuals are supervisors within the
meaning of Section 2(11) of the Act.
Other secondary indicators of supervisory authority militate
against a conclusion that the individuals are supervisors. Thus,
the supervisors are paid on an hourly basis and receive no in-
centive bonuses, whereas those whom the parties agree are
supervisors are paid on a salary basis and participate in a bonus
pool. Additionally, the individuals who work in the disputed
classification perform checking, and loading duties on occa-
sion. This fact is supportive of the Employer’s argument that
the individuals are “leadmen” as opposed to supervisors within
the meaning of Section 2(11) of the Act. Further, management
meetings take place at which only the admitted 2(11) supervi-
sors attend.
It is true that some of the secondary indicia (hourly pay, lack
of bonus program, occasional performance of manual duties,
lack of attendance at management meetings) favor a conclusion
that the individuals are leadmen. Other secondary indicia
(highest ranking officials at the facility some of the time, the
ones who open up the facility in the morning and lock it at
night, the ones who field calls from employees seeking to be
excused from work, the Employer’s use of the term “supervi-
sor”) favor a conclusion that the individuals are supervisors.
The controlling criteria are the statutory duties delineated in
Section 2(11) of the Act. As mentioned above, I conclude,
based on the credited evidence, that prior to October 1996, the
individuals in the disputed job classifications possessed the
authority to discipline employees, to assign employees, and to
direct employees in their work. I further conclude that, prior to
October 1996, the four individuals in dispute exercised their
authority to discipline, assign, and direct through the use of
independent judgment in the interest of the Employer.
II. CHANGES IN OPERATIONS
A. When Bill Jenkins Became Night-Shift Superintendent, He
Stripped Kermit Richey and James Ragan of their
2(11) Authorities
The first asserted change in the Employer’s operations,
which it claims stripped the supervisors of their 2(11) authori-
ties, occurred in October 1996 when Bill Jenkins became the
night-shift superintendent. Bill Jenkins testified at the hearing.
He was candid in his responses, and appeared to me to be truth-
ful while he was testifying. Kermit Richey and James Ragan
work on Jenkins’ shift. Jenkins testified that since he started
with the Employer, Richey and Ragan have not had the author-
ity to issue discipline. (Tr. 537–538, 558.) Jenkins explained
that he had a conversation with Richey and Ragan. His testi-
mony about that conversation was as follows:

I was aware that they had some write ups because I had seen
them, had done some writeups. I said you don’t do that any-
more, I do that. I’m a supervisor. I handle that.

Employer’s Exhibit 23 corroborated Jenkins’ testimony that
he was the only official to administer discipline on the night
shift at any time from October 1996 through August 1997.
(Emp. Exh. 23.)
Kermit Richey testified that, since Jenkins has been with the
Employer, Jenkins does all the cost per hundred weight calcula-
tions for the shift. (Tr. 434–435.) Since Jenkins has come to
the plant, Richey spends most of his time loading and unload-
ing trucks. (Tr. 435.) Richey’s testimony was uncontroverted.
I credit it for this reason and because Richey struck me as truth-
ful while he was testifying. Formerly, Richey had been among
the most zealous issuers of discipline at the facility (Emp. Exh.
23), but since he has been under Jenkins charge, Richey sticks
primarily to loading and unloading trucks, and he has not issued
any discipline. Richey stated that his work is basically that of a
checker. (Tr. 436–437.) Richey testified that he spends only
five to ten percent of his time performing paperwork. (Tr. 424.)
Bill Jenkins similarly testified that manual work is most of
what Richey and Ragan do. (Tr. 535.)
I conclude that when Bill Jenkins came to work for the Em-
ployer, from his former position with Tyson Foods, Jenkins
changed the way things were done on the night shift. Jenkins
told Richey and Ragan that they were not to issue discipline
anymore. Jenkins assumed the responsibilities for calculating
the cost-benefit analysis, and in fact took over most of the pa-
perwork formerly associated with the positions held by Richey
and Ragan. There are only 12 regular employees on the night
shift, including those in the disputed job classifications, and
Jenkins has them all working. (Tr. 544.) Richey and Ragan
appear to fill in for Jenkins when he occasionally goes home for
lunch or otherwise is not at the plant, and Richey also assists in
paperwork if Jenkins is behind in it. But other than these dif-
ferences, Richey’s and Ragan’s duties are not distinguishable
from checkers, such as Dale Jenkins. (Tr. 437.) Thus, I find the
evidence insufficient to establish that either Kermit Richey or
James Ragan were supervisors within the meaning of Section
2(11) of the Act at the time of the election herein. Accordingly,
I recommend that the Board conclude that Richey and Ragan
were eligible voters whose ballots should be opened and
counted if determinative. I recommend that the Board overrule
the challenges to the ballots cast by employees Kermit E.
Richey and James R. Ragan.
MILLARD REFRIGERATED SERVICES 1445
B. Although the December 1996 Change in Operations Re-
duced the Supervisory Authority of the Day-Shift Supervisors, It
Did Not Remove Them from the Definition of Section 2(11)
Bill Jenkins’ changes in the way things ran on his shift did
not have any effect on the day-shift operations. The day-shift
operations are substantially larger than operations on the night
shift. Whereas there are only 12 or so employees on the night
shift, there are more than 20 on day shift. The day-shift service
employees are divided into two crews, whereas the night-shift
employees are not divided by crew. (Tr. 13, 59, 105, 123, 544.)
Of the two day-shift crews, one is Jimmy McCoy’s crew, and
the other is Billy Smith’s crew.
Charles Margraf and Joe Webb both testified as to a conver-
sation they had in December 1996 with Ron Graham, who was
the Employer’s regional vice-president at the time. (Tr. 295,
575.) According to Margraf and Webb, Graham informed them
that the practice of hourly employees issuing discipline to other
hourly employees was to stop immediately. (Tr. 296–297, 575–
577.) Neither Margraf nor Webb could remember many details
of the conversation. There was no written communication of
the decision. (Tr. 362.) However, the testimony that Graham
made these statements was uncontroverted.9 Employer’s Ex-
hibit 23 corroborates the Employer’s assertion that individuals
in the disputed classifications did not issue any disciplines after
December 1996. I conclude that the Employer did change its
policy of having hourly employees discipline other hourly em-
ployees in December 1996, as Margraf and Webb testified they
did. I conclude that the issuance of disciplines by hourly em-
ployees was the only change Graham directed concerning the
duties of the employees in the disputed classifications.
No mention was made of changing the job title from supervi-
sor to “leadman.” The change in terminology came later, near
the time of the election.10 No mention was made in December
1996 about changing who computed the cost-per-hundred
weight calculations, or about who would be held accountable
for an unacceptable cost-per-hundred-weight ratio. Nor does
the Employer assert that there were any changes in the method
for assigning work, and directing work. The only change
which the Employer made was in the authority of individuals in
the disputed classifications to issue discipline. I find that this
action did not remove the supervisors from the statutory defini-
tion.
Thus, Supervisors Jimmy McCoy and Billy Smith continued
to calculate the cost-per-hundred-weight ratio. Even though
they did not issue any discipline after December 1996, I am
convinced that they did have authority, on behalf of the Em-
ployer to recommend discipline, and I am further convinced
that these recommendations were effective. For example, Billy
Smith testified that he has written up a disciplinary form for
Scott Holmes for tardiness for Webb’s signature and that Webb
then signed the form. (Tr. 375, 398.) The Employer tried to
cast the dock supervisors’ duties in the most December 1996

9 I received the testimony concerning what Graham had told Webb
and Margraf as probative of the effect the statement had on the listen-
ers, as explanatory of the actions Webb and Margraf took, and as evi-
dence that Graham had actually made the statement, not for the truth of
any assertions contained in Graham’s statement.
10 I credit the testimony of witnesses Brian Abney and Roger Leath,
that the Employer did not use the term “leadman” until approximately
the time of the election. This testimony was corroborated by the writ-
ten documents showing that the individuals persisted in signing as
“supervisors” in 1997.
era as merely reportorial in relation to discipline. Where an
individual fills out a disciplinary form and provides it the
higher level supervisor for signature, he goes well beyond re-
porting.11
There are approximately 18 service employees on the day
shift, and their work carries them among the Employer’s 35
docks and to various locations within the enormous warehouse.
Without dispute, Supervisors Smith and McCoy had authority
to discipline employees prior to December 1996, and Joe Webb
held them accountable to provide an acceptable cost-per-
hundred-weight ratio in part by disciplining those not turning
out the work. (Tr. 591.)
Neither Smith nor McCoy had the ability to effect the
amount of goods handled at the warehouse each day, but yet
Webb required them to come in at an acceptable ratio. The
only control they had was over the cost aspect of the equation.
The less hours employees work to move the same amount of
freight, the better the ratio. Sending employees home earlier,
getting them to do their work faster, and assigning the work to
employees in the most efficient manner are all ways in which
Jimmy McCoy and Billy Smith control the cost ratio for which
Webb holds them accountable.
I conclude that Smith and McCoy are supervisors within the
meaning of Section 2(11) of the Act. Webb testified that he has
in the past “gotten on” Smith and McCoy for coming in with
unacceptably high cost ratios. The testimony showed that even
since McCoy and Smith have ceased issuing disciplines, Billy
Smith has filled out a disciplinary form, brought it to Webb,
and Webb signed it. I find that very little has changed since
December 1996. Although McCoy and Smith do not issue
disciplines anymore, this fact has not been communicated to
employees. Instead, they fill out the forms and Webb signs
them. This is the epitome of effective recommendation.12 Billy
Smith and Jimmy McCoy continue to direct and assign the
work of employees. Although direction and assignment of
work does not confer supervisory authority absent the use of
independent judgment in the interest of the Employer, the evi-
dence clearly shows that McCoy and Smith were required to
exercise independent judgment in performing these tasks for
the sole purpose of controlling the costs for which Webb held
them accountable.
The Union presented persuasive evidence that, within a few
days of the election, Jimmy McCoy used his supervisory au-
thority to deny employee Joseph David Whitten a day off that
he requested. (Tr. 29.) I credit Whitten’s testimony concerning
a conversation he had with Jimmy McCoy around the time of
August 4, 1997. Whitten recalled the event specifically, and he
was certain of the date. Whitten asked to be off on August 4,
1997. It was his anniversary. McCoy denied this request.
Although the Employer’s counsel suggested that McCoy may
11 The fact that Webb may have checked the numbers on Holmes’
tardiness is of no help to the Employer. Merely checking to verify that
someone was tardy before signing a writeup for tardiness is a clerical
function and does not constitute “independent investigation.”
12 Although Billy Smith suggested that Ken Smith might need disci-
pline and Webb did not issue any, this example is much different from
the recommendations where Smith has, in the past, filled out the disci-
plinary form and given it to Webb for him to sign. I would not find the
example helpful in any event because it happened on the day before the
hearing and Webb’s decision not to carry through on the suggestion
may have been influenced by the value his decision not to could have at
hearing the next day.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1446
have conferred with someone else before saying no, Whitten
testified that McCoy denied the request on the spot, while no
one else was around. McCoy could not possibly have consulted
with anyone. Whitten’s testimony in this regard was uncontro-
verted. Although the Employer called McCoy to testify, coun-
sel did not ask him about the recent incident where he refused
to allow Whitten to leave early. In brief, the Employer con-
tended that to the extent Jimmy McCoy exercised any supervi-
sory authorities, it was ultra vires, an act outside his authority.
To the contrary, I conclude that McCoy’s disapproval of
Whitten’s requested absence was an act within his authority,
consistent with the Employer’s practice of having individuals in
his position sign absence request forms as approving or disap-
proving. (E.g., U. Exhs. 14, 17.) Moreover, Webb had told
employees to go to Supervisors Jimmy McCoy and Billy Smith
with their problems first. (Tr. 611.) Whitten was merely fol-
lowing Webb’s direction by going to McCoy first, and the Em-
ployer can not be heard now to claim that McCoy was acting
beyond his authority. The Employer, by Joe Webb, had told
employees that McCoy was the person to whom they should
bring such requests. (Tr. 611.)
Unlike the night-shift personnel Richey and Ragan, the evi-
dence showed that Smith and McCoy rarely perform manual
labor. (Tr. 128–129, 180, 391.) The operations are larger and
more complicated on first shift, and there are more employees
on first shift, but just one superintendent. Although Joe Webb
testified that he could supervise the 20 first-shift employees
alone, I am convinced that not even Webb believed this state-
ment. The assignment and direction of work of checkers, fork-
lift drivers, slipsheet operators and coordination of them be-
tween the two crews, and different kinds of docks, together
with the complications of the facility’s limited number of blast
freezers and special rules for handling the freight of particular
customers is too much for Webb to handle by himself, or even
with Margraf’s help. The evidence showed that Webb works
with the three maintenance employees on occasion and that has
some interaction with customers. (Tr. 613–614.)
Unlike the night shift, where Bill Jenkins undertook of him-
self, before any suggestion from the regional vice-president, to
handle the smaller scale operation all on his own, Webb relied
on supervisors Jimmy McCoy and Billy Smith to effectuate
assignment and direction of work through the use of independ-
ent judgment in the interest of the Employer. Moreover, al-
though the regional vice-president prohibited Webb from con-
tinuing the practice of McCoy and Smith issuing discipline
themselves, I am convinced that Webb continued to rely on
McCoy and Smith to recommend discipline, as in the instance
where Smith filled out the discipline form and gave it to Webb
for Webb to sign.13

13 Webb testified that along with the change in disciplining authority
effectuated in December 1996, he changed his reliance on the supervi-
sors and viewed them as having, essentially, no authority. As noted
earlier, I find that the only change in operations in effectuated in De-
cember 1996 was that the individuals lost the ability to issue discipline
themselves and started, instead, to effectively recommend discipline (as
in the case of Scott Holmes, where Billy Smith wrote up the form and
gave it to Joe Webb for Webb to sign). Implicit in this conclusion is
my discrediting of Webb’s assertions at various places on the record
that he took over all the minutia of decision about assignments, whom
to send home, etc. Joe Webb testified on the one hand that he would not
have changed the supervisors’ authority to discipline but for Vice
President Graham’s direction to do so. (Tr. 630.) On the other hand,
Webb testified that he did not trust Jimmy McCoy or Billy Smith to
I conclude that there was no change in the practice of Smith
and McCoy assigning and directing the work of employees
through the use of independent judgment in the interest of the
Employer. My conclusions regarding the pre-October 1996
assignment and direction of work are set forth in greater detail
above, in section 1(A). I conclude that there was no change in
the assignment and direction responsibilities of Smith and
McCoy. I make this conclusion on the basis of there being no
evidence that the practice ever changed. Ron Graham directed
a change only in the practice of McCoy and Smith issuing dis-
cipline. The evidence demonstrated that right up until the date
of the election, McCoy and Smith continued to exercise their
section 2(11) authorities with respect to assigning and directing
work.
Accordingly, I conclude that Jimmy McCoy and William
Smith were supervisors within the meaning of Section 2(11) of
the Act at the time of the election herein, and I therefore rec-
ommend that the Board sustain the challenges to the ballots
they cast.
CONCLUSIONS AND RECOMMENDATIONS
I recommended that the challenges to the ballots cast by
Jimmy W. McCoy and William J. Smith be sustained because
McCoy and Smith are supervisors within the meaning of Sec-
tion 2(11) of the Act.
Since the remaining three challenged ballots are not determi-
native of the outcome of the election, the United Steelworkers
of America, AFL–CIO received a majority of the valid votes
cast. Therefore, I further recommend that a Certification of
Representative issue.14

issue discipline at all because of the potential for favoritism(!) (Tr. 579,
618–619, 639.) Which was it? I found Webb to be an evasive witness
whose testimony was gilded with an edge of self-servience. I do not
credit Webb’s testimony to any substantial degree. The only change
Graham directed concerned who had the authority to issue discipline.
Were it up to Webb, he would not have implemented even that change.
Accordingly, I do not believe that anything else changed as a result of
the conversation with Graham.
14 Under the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, exceptions to this report may be filed with the Board in
Washington, D.C. Exceptions must be received by the Board in Wash-
ington by December 10, 1997. Under the provisions of Sec. 102.69(g)
of the Board’s Rules and Regulations, documentary evidence, including
affidavits, which a party has timely submitted to the Regional Director
in support of its objections or challenges and which are not included in
the Report, are not a part of the record before the Board unless ap-
pended to the exceptions or opposition thereto which the party files
with the Board. Failure to append to the submission to the Board cop-
ies of evidence timely submitted to the Regional Director and not in-
cluded in the Report shall preclude a party from relying upon that evi-
dence in any subsequent related unfair labor practice proceeding.