Pacific Fruit and Produce Co.

National Labor Relations Board - Board Decisions

Oct 2, 1957

118 N.L.R.B. 1517 (N.L.R.B. 1957)

PACIFIC FRUIT AND PRODUCE COMPANY 1517
or, in the alternative, hold a hearing on the issues raised by the excep-
tions. As the Petitioner has received a majority of the votes cast
in the election, we shall certify the Petitioner as the representative of
the employees in the appropriate unit.
[The Board certified General Drivers, Warehousemen and Helpers
Local Union No. 968, AFL-CIO, as the collective-bargaining repre-
sentative of the employees of the Employer in the appropriate unit
described in paragraph 4, above.]
Pacific Fruit and Produce Company and Chauffeurs, Teamsters
and Helpers Union, Local No. 448, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen ' and Helpers of
America, AFL-CIO, Petitioner. Case No. 19RC 1940. October
2,195'
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Following a consent election which resulted in 2 votes for and 2
votes against the Petitioner and 2 ballots challenged, the Board on
May 9, 1957, issued its Decision, Direction, and Order 1 overruling the
challenge to the ballot of employee Allen and directing that that ballot
be opened and counted. The Board made no final disposition with
respect to the other challenged ballot, that of Caryl Fausett, but or-,
dered that a hearing be held on the issues raised by the Employer's
exceptions to the Regional Director's recommendation to sustain that
challenge, such hearing to be held, however, only if Allen's ballot
failed to determine conclusively the results of the election. There-
after, a supplemental tally of ballots was issued which showed 3 votes
for the Petitioner and 2 against. Thus, Fausett's challenged ballot
could, if valid, affect the results of the election. Accordingly, the
prescribed hearing was duly held before James R. Hemingway, hearing
officer, who, on July 23, 1957, issued his report on challenged ballot,
a copy of which is attached, recommending that the challenge to
Fausett's ballot be sustained upon the ground that Fausett is a man-
agement representative, not properly included in the unit. On August
2, 1957, the Employer filed exceptions to the hearing officer's report
on challenged ballot in which it requested the Board to reject the
conclusion and recommendation therein and overrule the challenge to
Fausett's ballot.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Murdock. and Rodgers].
1117 NLRB 1511. A detailed account of the prior history of this proceeding may. be
found in that decision.
118 NLRB No. 208.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the hearing officer 's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the hearing officer's report and the ex-
ceptions, and makes the following findings :
Fausett's duties and authority are detailed to a considerable extent
in the hearing officer's report. In .summary, the record shows that
Fausett is in charge of the city deliveries of the Employer's produce
and sees that the orders from various establishments are assembled in
the warehouse and delivered by truck. He directs the activities of
several employees, transfers them from one task to another, has repri-
manded them, and has hired part-time employees to help out with
certain work. New employees are directed to Fausett to be instructed
in their work and also apparently to be assigned their particular job.
Fausett has handled requests for time off. Unlike other employees he
has the authority to countersign checks for the Employer. It is clear
that the employees working on city orders consider Fausett to be their
foreman. On the basis of the whole record and especially in view of
the foregoing, we are convinced that Fausett responsibly directs the
work of the employees under him. Accordingly, we find that he is
a supervisor 2 and, in accord with the hearing officer's recommendation,
we sustain the challenge to Fausett's ballot.
As the tally of ballots shows that the Petitioner received a majority
of the votes cast in the election, we shall certify the Petitioner.
[The Board certified Chauffeurs, Teamsters and Helpers Union,
Local No. 448, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO, as the designated
collective-bargaining representative of the employees in the appro-
priate unit of truckdrivers, delivery men, loaders, order fillers, ware-
housemen and helpers employed at the Employer' s Missoula, Montana,
branch, but excluding office clerical employees, guards and watchmen,
and supervisors as defined in the Act.]
2 See, Engine Rebuilding Corporation , 115 NLRB 1776, 1778; Sterchi Bros. Stores, Inc.,
100 NLRB 70, 71.
REPORT ON CHALLENGED BALLOT
1. STATEMENT OF THE ISSUE
Pursuant to a stipulation for certification upon consent election dated January 7,
1957, in the above-entitled case, an election was conducted on January 16, 1957,
among the employees of the above -named Employer in the agreed appropriate unit
under the direction and supervision of the Regional Director for the Nineteenth
Region of the Board, Two ballots were challenged at the election ; the Regional
Director issued his report on challenged ballots; and exceptions were thereafter filed
to said report. On May 9, 1957, the Board issued an order directing that the ballot
of Ray Allen be counted and that, if that did not determine the results of the election,
a hearing should be held before a Trial Examiner on the challenge of the ballot of
Caryl Fausett, and that the Trial Examiner should issue a report and recommendation.
Allen's ballot having been counted and not having determined the results of the
election , pursuant to said order of the Board and notice of hearing served by the
PACIFIC FRUIT AND PRODUCE COMPANY 1519
Regional Director, a hearing was held before the Trial Examiner on June 13 and 14,
1957, at Missoula, Montana.
IT. CONTENTIONS
The Petitioner contends that Caryl Fausett is a supervisor within the meaning of
the Act and was therefore excluded from the unit and was not entitled to vote. The
Employer contends that Fausett was not a supervisor within the meaning of the Act
and that, in its petition, the Petitioner described the unit and excluded only the man-
ager. I note, however, that in the consent-election agreement, the parties agreed to
exclude from the unit, among others, "supervisors as defined in the Act." Therefore,
I find no waiver, and the question here is whether or not Caryl Fausett is a supervisor
within the meaning of Section 2 (11) of the Act.
III. FINDINGS OF FACT
The Employer is engaged in the wholesale distribution of fresh fruits, vegetables,
and food products in a number of States. In this business it operates a warehouse
and distributing plant at Missoula, Montana. At the time of the election, the
Employer had at its Missoula plant a branch manager, an office manager, an office
assistant, and six men in the warehouse proper. The office manager described 3 of
the warehouse employees as shipping clerks and 3 others as warehousemen-drivers.
One of the so-called shipping clerks works alone at night except in rush periods,
when he has part-time help. The other two so-called shipping clerks work in the
daytime. One, Howard Tom, the office manager called country shipping clerk. His
duties are to prepare customers' orders to be delivered to out-of-town points.'
Although he sometimes has an assistant working with him, Tom spends most of his
time preparing orders himself, that is, getting produce out of stock and putting it in
containers for shipment. He sometimes waits on country customers who come in
to place orders. When not busy on country orders he may, on request, work at
other types of warehouse work, perhaps checking out loads (i. e., calling out invoice
items as they are put on city delivery trucks) or helping to unload cars and trucks.
Caryl Fausett, called by the office manager the city shipping clerk, the man whose
status is here in question, is responsible for city deliveries. Ostensibly, he would
appear to be to city deliveries what Tom is to country deliveries. However, in prac-
tice, most of Fausett's activities differ considerably. He often waits on city customers
just as Tom waits on country customers, but Fausett infrequently engages in physical
labor (especially the heavier type of work), usually directing other employees to
such functions. Fausett does not have authority to hire or discharge full-time em-
ployees. There is evidence of an instance when he interviewed an applicant for
employment, but Manager Paul Schilling came up at the time and apparently ap-
proved the hiring, so it does not appear that Fausett would have been able to hire
the man himself.
It is contended by the Petitioner that Fausett hires part-time employees. On
occasions he has called the University of Montana placement service to get students
to unload banana cars, but the pattern for the practice of getting such help had been
established by Schilling, who testified that he had placed a standing order with that
placement service and that ordinarily a regular crew would come over to unload the
banana car without being told each time,2 but sometimes a man would not show up
and someone, either Fausett or Schilling usually, would have to call the placement
service for another man. Fausett would supervise the unloading of the bananas,
seeing to it that the bananas were carefully handled and taken to the room he desig-
nated. One day, presumably in the summer when there were no university students
available, Fausett sent an employee, Raymond Allen, in the Company's pickup truck,
to the [State] employment office to get 1 or 2 men to unload bananas. Allen brought
a man back with him. There is no evidence that Fausett was merely passing along
a specific direction from Schilling in this instance. I infer that Fausett did not need
specific authorization each time he hired such help. When the banana crew would
finish their work, it was their practice to go to the office manager to report their time
and get their pay. Fausett apparently did not have to turn in their time.
When part-time help is needed for general warehouse work, Schilling calls in some
regular part-time men and enters their names in the time book. Fausett, therefore,
I No evidence was given concerning the manner in which country deliveries were made,
whether in the Employer's trucks, customers' trucks, or railroad cars. As there were, in
1956 and early this year, usually only two men driving trucks and as there were different
city routes mentioned which they took and no mention was made of any country routes
which they drove, I infer that the Employer's drivers did not deliver country orders.
2 Presumably the car arrived on a day of the week known in advance.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has no occasion to hire them or call these men back unless he might be specifically
directed by Schilling to do so.
Before September 1956, the Employer had a foreman named Ed Gamble in the
warehouse. Gamble, when he retired in that month, had been foreman for about
20 years. Although on an hourly pay scale, Gamble was, when working full time,
guaranteed 48 hours a week but with no pay in excess of that. Schilling is the only
one on salary, and no one is now guaranteed a certain number of hours. Gamble
recommended hiring, did some hiring and discharging, and at times laid off or re-
called men, although Schilling did most of that. Gamble kept the time book and
entered the overtime work in it. In addition to his supervision of the employees
in the warehouse, Gamble had some special clerical or administrative functions, such
as making out receiving records and condition reports, buying local produce, and
fixing buying and selling prices of such produce. Also, pursuant to the Employer's
policy that all checks written at branch offices be signed and countersigned, the
Employer had authorized the signatures of Manager Schilling, Office Manager John
Morgan, and Gamble. When I of the first 2 was not available to sign checks that were
issued, Gamble would sign. Because of a back injury some years ago, Gamble was
able to do less work. In 1952, he took a leave of absence for about 6 months,3
and when he returned from his leave of absence, he was less active. He was, ac-
cording to Morgan, becoming a foreman pretty much in name only, except that he
continued to do the buying of local produce. Toward the end of his employment,
Gamble was present only en a part-time basis. Schilling testified that, during the last
10 years or so of Gamble's employ, he would often direct new men to Fausett instead
of to Gamble. I infer that in Gamble's last few years, Fausett was the one who
had to be relied on to direct the employees and to keep the warehouse activities
running properly.
In 1952, when Gamble was going on leave of absence, the Employer authorized
Fausett to sign checks (as Gamble had) and Fausett thereafter cosigned checks when
Schilling or Morgan was not available. Fausett's authority to countersign checks
did not carry with it the right to prepare, or cause to be prepared, any checks. Ac-
cording to a bulletin issued by the Employer's home office in Seattle, Washington:
"The person who prepares the check, of course, is responsible for its accuracy and
propriety. But the co-signer is also responsible and should not sign a check unless
he has before him evidence that the check is properly and accurately prepared."
It had generally been expected that when Gamble retired, Fausett would become
foreman. However, when Gamble retired in 1956, no one was given the title of
foreman. According to Arnold Schoenecker, personnel director for the entire
company, a foreman is not considered necessary unless 12 or more employees are
employed. No evidence was available to show how many employees Gamble had
when first he was appointed foreman. After Gamble retired, Manager Schilling
took over the buying and pricing of local produce and some of Gamble's other cleri-
cal or administrative functions. Schilling testified that he took over Gamble's duties
and that Fausett's duties were not changed by Gamble's retirement. However, it may
be observed that Fausett had for several years before Gamble retired already as-
sumed much of Gamble's supervisory work; so there would have been little of
Gamble's supervisory work to inherit at the time Gamble retired. Schilling portrayed
Fausett as an ordinary warehouseman with no more, or little more, authority than new
employees, but because of the Employer's evident partisan interest in a finding that
Fausett was not a supervisor, because Schilling's answers on examination by Em-
ployer's counsel were often induced by leading questions, and because on cross-
examination his answers were often guarded and indirect, I do not rely on his testimony
as giving a perfect picture of Fausett's status. I received the impression that, if the
Employer had desired to exclude Fausett from the appropriate unit, Schilling would
have presented a somewhat different picture of Fausett's authority. In varying de-
grees the same was true of the testimony of other witnesses for the Employer. In
contrast, the witnesses for the Union appeared to present the facts with little 4 or no
shading.
3 Schilling testified that Gamble was on leave from October 1, 1952, until early the
following spring,
4 George Meyers at first testified that when he was hired by Schilling, the latter pointed
out Fausett and told Meyers that Fausett would "show" him what to do. Later he sub-
stituted the word "tell" for "show" in an apparent desire to avoid the connotation of.
"demonstrate" as contrasted to "direct" conveyed by the word "show." In a few instances,
the answers of witnesses for the Union appeared to convey conclusions rather than facts.
I have avoided use of such answers in making findings of fact.
PACIFIC FRUIT AND PRODUCE COMPANY 1521
George Meyers and Robert Lebsack each testified that, when they were hired,
Schilling told them that when they started to work they should go to Fausett and
that he would tell them (or show them ) what to do , that they did so , and that Fausett
did tell them what to do. According to them, he might, for example, tell them to take
a certain delivery route , unload a particular truck or railroad car, put the fruit or
produce in a particular room , remove spoiled produce, sweep up, or help one of the
other employees in his work . When they were unloading , Fausett would stand by and
supervise the men . If Tom needed help on country deliveries , Fausett would assign
one of the men to help him . Although Schilling testified that Fausett 's duties were
the same as those of other men in the warehouse , and although Fausett testified that
he did as much physical labor as other employees , the evidence indicates that this is
misleading . Actually, he spent very little, if any, time in the heavier type of
physical labor performed by the warehousemen-drivers. There is evidence that he
sometimes sorted out spoiled produce and that, when taking an order from a city
customer in the plant, he might get something for him, like a crate of lettuce, which
he would wheel out. Otherwise , aside from supervising the several employees and
waiting on customers , he spent his time as a checker when the delivery trucks were
loading, he checked the refrigeration , set the thermostats , and oiled the fans.
Fausett was authorized to make out receiving records and condition reports as
Gamble had , but these could also be made out by any of the shipping clerks, as well as
by Manager Schilling and Office Manager Morgan .5
When acting as checker , Fausett would make out the delivery route . The various
routes within the city had, in general, long been established . Within these general
limits, depending on what customers had orders , the stops would ordinarily be ar-
ranged in the order which would result in the greatest gasoline economy . Anyone
acting as checker could and would map out the routes for the drivers accordingly,
and anyone except the driver could act as checker and map the routes if he was
familiar with the location of the customers and with the streets of the city. Oc-
casionally, however, Fausett would vary the route from that which would be most
economical in order to make earlier deliveries to big, or favored , customers. Some-
times Fausett would do this at the request of one of the salesmen. The evidence does
not disclose whether or not, independent of a request of a salesman, Fausett uses
any discretion in causing deviation from the most economical route in order to
favor a customer.
All new employees start as truckdrivers, but when they are not making deliveries
they help in the warehouse. In this way they become familiar with the work inside.
After they become familiar with the work, they are transferred inside when the
need arises. Raymond Allen was hired in May 1956 and started as a truckdriver.
On about October 9, 1956, Robert Lebsack was hired by Schilling, who referred
him to Fausett. Fausett told Lebsack to go on the truck with Allen. Apparently
as soon as Lebsack became familiar with the route, during October , Fausett told
Allen that they were going to be short of help in the warehouse and they would like
him to work inside instead of driving a truck. Allen told Fausett that he preferred
to drive a truck . Fausett said that he felt that Allen should be in the warehouse
because he knew what to do. After that, Allen worked in the warehouse. It was
routine for those working inside to put up orders as long as there were any to put up.
When Allen would get caught up on this, Fausett would tell him where to work
next. Sometimes he would tell him to help Tom on country orders.
Although Country Shipping Clerk Tom usually worked on country orders,
Fausett occasionally called on him for help. It does not appear , however, that
Fausett had authority to call Tom off his work when Tom was very busy on country
orders. Employees frequently asked one another for help on their work, and for
all that appears Fausett may have been doing that with Tom when he called for
his help. It does not appear what would have happened if Tom thought he could
not spare the time and Fausett thought the job on which he wanted Tom to work
was an emergency requiring Tom's services. With respect to newer employees,
Fausett 's authority was, I would judge, somewhat broader than with respect to
Tom and Fausett would have had no occasion to give orders to the night shipping
clerk, who was directly responsible to Schilling . Schilling testified that Fausett
had no more authority than a new man , but he admitted that if a new man refused
to obey Fausett's orders, it would jeopardize the new man's job; however, he then
5 When a driver gave a customer credit for banana crates he would sign a credit mem-
orandum . Fausett would often sign the memo before it went to the office manager, but
this was not an indication of supervisory status, because any warehouseman could check
the crates in and sign the memorandum . The procedure was merely a double check.
450553-58-vol. 118-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
qualified this by adding , ". the same as if one new man refused to help another
one." By this statement , Schilling was apparently asserting that Fausett merely
made requests for help like the other employees and had no right to expect obedience.
Schilling conceded , however, that it would not be quite the same if a new man
gave Fausett an order, and he conceded that Fausett had more authority over the
new men than the new men had over Fausett . The younger employees did not
have the same regard for orders from their fellow employees as they did for those
given by Fausett , whom they looked upon as their foreman . Allen testified that
other men might attempt to give him orders in a joking sort of way and that he
would tell them to go to hell , but he never refused to do what Fausett directed
him to do. George Meyers testified to similar reactions . When Fausett would
tell one of the newer men what to do, he was not, like other employees merely asking
for assistance in work which he himself was performing . He would assign the job
when not doing it himself.
When any of the new men made mistakes or caused damage, Fausett would
reprimand them . He even did this with Tom once in 1954 when Tom dropped 'a
sack of potatoes he was carrying . Schilling testified that Fausett exceeded his
authority if he reprimanded employees . It does not appear , however, that he ever
told Fausett that he should not reprimand them. Yet reprimanding would appear
to be an adjunct to the responsibility which Fausett had for getting the work done
right . Except for reprimand and warning , the Employer apparently did not disci-
pline employees for their mistakes or accidents.
It is the Employer 's policy not to dock employees when they are off for an hour
or two for personal business . I infer, however , that the existence of this policy
does not authorize the employee to leave any time he chooses . In practice, the
employees under Fausett's direction would go to him for permission when they
wanted time off. If the employee wanted only -a fraction of a day off and if
Fausett felt that the man could be spared, he apparently approved the time off
without going to Schilling about it; 6 but if an employee wanted to take a day off,
Schilling's approval was necessary . But even in this case , Fausett did not tell the
employee to go to Schilling direct as he or one of the other shipping clerks would
do when they wanted time off. Fausett testified that he would make the request,
himself, because the drivers were out a great deal and Schilling himself was out at
times or too busy in the office and the driver might not be able to get to speak with
Schilling. When Schilling was away, Morgan was next in charge , but Fausett did
not send the men to Morgan . I would infer that another reason for Fausett's pro-
cedure also existed-that is, that since the employees were doing work for which
Fausett was responsible , Schilling would want to ask Fausett whether or not he
thought he could spare the man on the day that the employee wanted to be off.
Schilling testified that , if Fausett brought up matters regarding the other men, he
might have asked Fausett's opinion or Fausett might have asked his.
Schilling testified that Gamble had had authority to grant time off for parts of a
day (but not full days) without clearing with him, but that, after Gamble retired,
no one had had such authority . If this testimony were credited , it would eliminate
both Fausett and Morgan as having such authority . Certainly if Schilling were out of
town , Morgan, as second in command would be expected to have such authority.
As an unqualified statement of fact, Schilling's testimony is not credible . There is
reason to believe that Schilling had given no thought to this question before he testified
and that his -answer was influenced by his interest in having Fausett's election vote
counted . It is not unreasonable to infer that Gamble was allowed authority to grant
a short period off on a single day because of the exigencies involved, for if an
employee, having an emergency or special situation arise during the day, wished to
leave work when Schilling was not present , the emergency or special situation could
probably not be met if the employee had to await Schilling's return in order to get
permission to leave. The same exigencies could arise under Fausett's supervision.
To the extent that Fausett was exercising such supervisory functions as Gamble
had at one time exercised , such authority to release employees for parts of a day
could reasonably be inferred to have passed to Fausett , certainly in the absence of
notice to him to the contrary . No evidence was adduced that Fausett had been so
notified and, from the incident related in the last footnote , I deduce that Fausett
reasonably assumed he had such authority.
The above finding is based on an incident related by George Meyers . On Fridays, the
men were expected to work from 7 a. m. to 5 p . m., the hour from 4 to 5 p . m. being over-
time . One Friday , Meyers asked Fausett ' s permission to leave at 4 p. m. to attend to
"some important business ." At the time, Fausett merely said , "On Friday ?" But when
4 o'clock came Meyers again asked Fausett. Fausett told him to "go ahead ." No evi-
dence was adduced to show that on this occasion , Fausett had consulted Schilling.
PACIFIC FRUIT AND PRODUCE COMPANY 1523
When Foreman Gamble was still working full time , he kept the overtime record
book and made practically all the entries therein . When Gamble began to work part
time (morning only ) he was usually not present when the overtime work was per-
formed . But the book was not put into any particular person 's hands. It became
the practice for shipping clerks to enter their own overtime and that of anyone work-
ing with them . In some instances Fausett would forget to make the entries. One
such occasion , when Meyers found that he had not received pay for overtime he had
worked , he went to Office Manager Morgan about it. Morgan told him to straighten
the matter out with Fausett. On subsequent occasions when the same thing occurred,
Meyers went direct to Fausett . In a few instances , employees other than shipping
clerks entered their own overtime . In such instances , if Morgan knew, of his own
knowledge , that the man who made the entry had worked overtime when such work
was needed , he would pay him accordingly , but if he did not know, then Morgan
would question the man who made the entry to learn on whose authority he had
worked overtime . I deduce that Morgan would then send the man to whomever had
authorized the overtime in order to have it verified , as he did with Meyers. The fact
that it had to be verified by Fausett does not necessarily mean that Fausett had to
approve in advance of working overtime . It is conceivable that , if 'a truckdriver
came in from his run at 4:30 or 5 p. m., Fausett would have to ascertain that a
legitimate reason existed for the late return, because normally all deliveries were
finished by 4 p . m. and , if overtime work was performed , it was customarily done
in the warehouse . It was not necessary for Fausett to give advance approval of
working overtime on unfinished work in the warehouse . The crew is expected to
remain as long as a job is unfinished . So if a truckdriver returns at 4 p. m. and
sees others unloading a truck, he would proceed to help them until the truck -is
unloaded . I infer , however, that if a man wishes to be excused from such overtime
work, he would have to get Fausett's permission , as Meyers once did . Such evidence
does not establish that Fausett uses much discretion in determining whether or not
work should be done during overtime. The existence of unfinished work, most of
it routine , determined that . And I judge that when warehousemen -drivers claim
that they should have received overtime pay, although their names are not in the
book, Morgan refers them to Fausett more to get Fausett to say that he witnessed
the overtime work than to say that he authorized the work's being done on overtime.
When Schilling is in the building and wishes to relay orders to anyone in the ware-
house, he does so through Fausett rather than anyone else . When outside , Schilling
would probably call Morgan, who would pass directions along to Fausett.
It is customary for truckdrivers to make complaints of needed repairs to Fausett.
Fausett would not tell the men to report such complaints direct to Schilling but would
himself notify Schilling if he remembered to do so. If Schilling approves the repairs,
he would tell Fausett to proceed to have the repairs made. Fausett would then tell
one of the truckdrivers to take the truck to the place where the repairs are to be made.
Schilling has authority to effect truck repairs to the extent of $50. The evidence
does not disclose who makes the decision as to where the repairs are to be made and
on what basis within that limit.
The Petitioner adduced evidence to shaw that Fausett enjoys special treatment and
privileges other employees do not enjoy. These included the following: Fausett's
hours were , until about April 1957, 8 a. m. to 5 p. m. (the same as Gamble's had been
before he went on part -time ) as compared to 7 a. m. to 4 p. m. for most employees.
Fausett uses the Employer 's pickup truck when he goes home at night , returning
in it in the morning and using it to go home for lunch at noon . He has access beind
a counter , where the warehousemen -drivers are not allowed . (Whether others be-
sides Fausett are allowed there does not appear .) Schilling carries on conversations
in the warehouse with Fausett , whereas he merely says "Good morning" to the
drivers, except when he might give them an order.
Fausett's hours, when they were 8 a. m. to 5 D. m., appear to put him in the class
with management personnel . No explanation for these hours was offered . His use
of the pickup truck was attempted to be explained by the Employer on the ground
that the Employer's garage barely holds two trucks and, to avoid the danger of
vandalism that existed if the pickup were left out all night, the Employer permits
Fausett to take it home with him because Fausett lives the nearest to the warehouse,
thus reducing the chances of accident in transit . However, Morgan testified that
he had been offered the pickup to take home but had refused it. I infer that, if
Fausett is the one who lives closest , Morgan's residence was not the closest to the
warehouse , and that when giving Morgan first choice to the pickup truck, the Em-
ployer was not moved by the distance of Morgan 's residence from the warehouse.
Thus, although the move may have been designed to safeguard the truck, use thereof
was apparently considered a privilege to be offered to one of the head men . But even
if proximity to the warehouse might serve to explain Fausett's privileged use of the
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck when going home at-night , it would not explain his use of it when going home
to lunch . I deduce, therefore , that the privilege of using the pickup was given to
Fausett because of his status.
Before September 1956, Fausett received $1.55 an hour, Country Shipping Clerk
Tom, $1.50, and the drivers, $1.20. In September 1956, the drivers were raised to
$1.30, while Fausett and Tom each received a 5-cent increase. Night Shipping Clerk
Fristo, who had worked off and on for the Employer for 11 years, had for a time
before September 1956 not been in the employ of the Employer, but, when he re-
turned, he received $1.45 an hour. Fausett's pay, although the highest, was hardly
so far above that of the others as to create an inference by itself that Fausett was
a supervisor, especially considering the length of his service, but it is a factor that is
to be considered along with other evidence.
According to the Employer's witnesses, either Schilling or Morgan (when Schilling
was absent), constantly acted as supervisors over the men in the warehouse and that,
aside from that, no real supervision was needed. Schilling testified that he, himself,
worked 41 hours in the warehouse "with the boys," 1V hours in the office, and the
other 2 hours daily calling on customers. Other evidence makes it appear that
Schilling spends little of his time in actual supervision of the warehousemen-drivers.
He sometimes acts as a checker for about an hour or so first thing in the morning,
calling off items in the invoices as they are loaded. Then he sets upon his other
duties. Schilling explained that despite the fact that he is in the warehouse for 4'
hours a day on the average, he nevertheless refers new men to Fausett because "I
have other duties to perform in the warehouse such as taking inventory, figuring out the
advance orders and inspecting merchandise, counting to see that we receive the right
amounts." I deduce that in spending 41 hours in the warehouse, he occupies
himself with duties other than supervision, which he leaves principally to Fausett.
Office Manager Morgan gave testimony to the effect that if Fausett were a super-
visor, then there would be 3 supervisors, Schilling, himself, and Fausett, to 4 supervised
employees in the warehouse. Schilling and Morgan, however, are more executive-
administrative than supervisory employees. Morgan does not exercise any super-
visory authority in the warehouse except when Schilling is absent, and he spends very
little of his time in the warehouse proper even when Schilling is away. Schilling and
Morgan could, from their places in the office, look into the warehouse, but did not
spend much time doing so. Morgan conceded that, when neither he nor Schilling
was in the warehouse, someone had to give orders, and the proper persons to do so
would be Fausett on the city shipping side, and Tom on the country shipping side. Of
course Tom rarely had more than one assistant for any appreciable time and spent
most of his time actually preparing country orders for delivery, himself. Hence
there was little supervision required of him. Fausett directed the three warehouse-
men-drivers and did much less manual work. Furthermore, Fausett's duties appeared
to go beyond the city shipping desk. Produce arriving at the warehouse was not, I
would infer, separated according to whether or not it would be used for city or country
deliveries, but Fausett supervises the unloading, unless he specifically asks Tom to do
so. He sometimes sorts out spoiled produce or has someone do it, regardless of
whether it is to be used for the city or country deliveries. And Fausett causes the
warehouse to be swept out at the end of the day. Presumably the refuse that had to
be cleaned up would come from both country and city produce. These duties and
responsibilities of Tom and Fausett, as well as those herein earlier described, appear,
therefore, not to be equivalent, and calling each a shipping clerk does not result in
placing them in equal rank or give them equal responsibilities.
Calling Fausett a shipping clerk likewise does not settle the question of his status
as a supervisor, for shipping clerks have been held in various decisions to be either
supervisors or not depending on all the circumstances? By the same token, the fact
that Fausett had never been told that he was a foreman and that employees under
his direction were never told specifically that he was a foreman is not determinative of
his status. Although authority to hire, discharge, or effectively to recommend hire
or discharge may be determinative of an employee's status as a supervisor, the absence
of such authority does not necessarily identify the employee whose status is in ques-
tion as nonsupervisory if he responsibly directs other employees. In the case of
T Not supervisors : American Lawn Mower Co., 108 NLRB 1589; Miami Paper Board
Mills, Inc., 109 NLRB 167; Charlotte Tank Corporation, 1.14 NLRB 1459; Jackson Jitney
Jungle Stores, Inc., 115 NLRB 374; Peninsular Metal Products Corporation, 116 NLRB
452.
Supervisors : Fairbanks, Morse & Company, 117 NLRB 1449; Extral Corporation,
111 NLRB 878; Sterehi Bros. Stores, Inc., 100 NLRB 70; Pollock Paper Corporation,
100 NLRB 1306.
PACIFIC FRUIT AND PRODUCE COMPANY 1525
Sterchi Bros. Stores, Inc., 100 NLRB 70, the shipping clerk was found to be a super-
visor on the ground that he directed the work of a warehouseman, truckdrivers, and
helpers, and was responsible for seeing that deliveries were properly made. No men-
tion was made of any other authority which he had. The Board found that he re-
sponsibly directed the work of such employees and hence was a supervisor within the
meaning of the Act .8
The Employer here contends that Fausett's direction of the warehousemen-drivers
is routine, involving no exercise of discretion, and that he does not therefore re-
sponsibly direct others within the meaning of the Act. An employee with experience
in the warehouse requires less supervision than a new man since, in time, any em-
ployee would come to recognize the kind of work that needs to be done, would recog-
nize the importance of doing one job before another, and knows how to go about it.
This is true- of most kinds of occupations, but it does not do away with the necessity
for having a supervisor who is responsible for the operation. In the Employer's ware-
house, Tom is the only employee on the day shift (aside from Fausett) who appears
to require little or no supervision, and Tom spends most of his time on one type of
work. The other three employees are frequently given directions by Fausett. It is
claimed that the type of directions Fausett does give is routine because, it is alleged,
Fausett merely would point out to those employees the work that required their at-
tention. This is true as to some types of work and, with respect to employees with
experience. But Fausett sometimes directed the work to be done in a way in which
the employees would not, when exercising their own judgment, do it.
Numerous cases are to be found which decide that a particular employee does or
does not, under the circumstances presented, responsibly direct others, but no for-
mula for easy determination of the question in all cases appears to have been devised.
It is easy enough to say that one who exercises independent judgment in his direction
of the work of other employees responsibly directs. But exactly what does this mean?
What kind of judgment is involved? If it means that to be a supervisor one must
be required to make a choice between two or more courses that might be followed,
then most of those who direct others probably are confronted with that problem
in making assignments . Fausett, no doubt, would be so confronted if more than
one job needed attention at the same time. In view of the fact that it was his re-
sponsibility, at the least , to see that the warehousemen-drivers got the orders out
and delivered them, he would necessarily have to decide the most expeditious way
to discharge his responsibilities. So he might well think to himself, "I should
assign this man to work where the interests of my over-all responsibility would best
be served. Now, which is more important to be done at the present time-have him
help with the country orders, sort out spoiled produce, unload cars, or clean up?"
His decision may be relatively easy to reach in view of his experience, but he makes
it himself without referring the matter to -a superior, and therefore he exercises an
independent judgment, simple as it may be. When he directs employees to perform
a job in the way he decides it is to be done, he substitutes his judgment for that
of the subordinate employee. When Fausett testified that he made no decisions
at all but waited until Schilling returned, if he were out, I am satisfied that Fausett
must have had in mind the kind of decision which he was not authorized to make
by himself, such as effecting repairs to the trucks, granting an employee a day off,
or some other decision which he knew was beyond the scope of his authority.
The sum of the evidence shows that Fausett is looked upon as a foreman by the
warehousemen-drivers, that he supervises work which is more or less routine, that
he has duties and responsibilities somewhat broader than those of a mere city shipping
clerk, that he exercises some discretion in his supervision as to who shall perform
work, when, and how, that employees are expected to do what he tells them, that
he sometimes calls for part-time help under an established practice, but this is
limited to employees for the job of unloading banana cars, a job that might take 2
hours once a week, that he undertakes to reprimand employees for their mistakes
or carelessness , that he receives complaints and requests for time off from the ware-
housemen-drivers, passing certain of them on to Schilling, that Schilling might ask
Fausett's opinion respecting the men working in the warehouse (an opinion which
Schilling must have believed of some value), that Schilling never relays orders
through any of the older employees in the warehouse except Fausett, that Fausett
is the oldest and highest paid employee in the warehouse section of the plant and as
such was expected to succeed Gamble as foreman when the latter retired, that he
enjoys certain privileges not enjoyed by other employees, and that he is 1 of 3
persons authorized to sign company checks. It is contended by the Employer
that Fausett's signing of checks is merely a ministerial act requiring no decision
8 Compare with Board's decision as to leadmen in Potomac Electric Power Company,
111 NLRB 553, 557.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to whether or not the check should issue . Although Fausett would not, in the
first instance , make the decision to prepare - the check for issuance , he is under
the Employer-imposed responsibility to determine that the facts justify the issuance
of the check . He is not, therefore , a mere amanuensis to sign what he is told to sign.
In view of all the circumstances , I conclude that , if not by a sudden stroke, at least
by gradual degrees of authority conferred on him , Fausett has crossed the line
separating management from the rank-and-file workers and that he would normally
be excluded from the appropriate unit as a management representative.
It is therefore recommended that the challenge to Fausett 's ballot be sustained.
Camden Lime Company ( Flexicore Division ) and Local 222, Inter-
national Hod Carriers' Building & Common Laborers' Union
of America , AFL-CIO. Case No. 4-CA-1461. October 4,1957
DECISION AND ORDER
On March 8, 1957, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of 'the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. 'The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in this
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
As set forth in the Intermediate Report, the Respondent and Charles
Mims, president of Local 222, after a series of negotiations at which
they attempted to work out the terms of a labor contract covering the
Respondent 's new operation at Kresson , terminated their last meeting
on July 6, 1957, without having reached an agreement. At this meet-
ing the Respondent's representative, despite his negotiations with
Local 222, questioned Local 222's majority status, stating, "You don't
even have my employees [signed up], yet." Up to this time Mims
had the Respondent's permission to enter upon the plant property at
will. However, on or about July 10, the Respondent informed Mims
that in the future he would need the Respondent's permission to talk
with the employees.
i The Trial Examiner found that Weiss' announcement to the keymen on July 11, that
Basher was fired for purporting to represent the men without an election and for
"misrepresenting" the employees, was "tantamount" to telling the employees that dis-
charge was the penalty for engaging in concerted activities on behalf of Local 222, and
was therefore a violation of Section S (a) (1). We do not pass upon these findings.
118 NLRB No. 211.