Pilot Freight Carriers, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1975

221 N.L.R.B. 1026 (N.L.R.B. 1975)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pilot Freight Carriers, Inc. and Chauffeurs , Teamsters
,- and . Helpers Local -Union No. 391 , -affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, ` Warehousemen and 'Helpers of America.
Cases 11-CA=5506, 11-CA-5642, and 11-CA-
5718
December 5, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On March 28, 1975, Administrative Law Judge
Benjamin K. Blackburn, issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed cross-exceptions and a brief in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The, Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The complaint alleges that pursuant to a settlement
agreement executed by the parties in August 1973 the
Union has been the collective-bargaining agent for
the Respondent's central, line-haul, and local dis-
patchers as part of an office clerical unit; that in
response to the concerted activities of these dispatch-
ers Respondent in violation of Section 8(a)(3) issued
job descriptions and instituted a supervisory training
program in an attempt to convert these dispatchers
into supervisors within the meaning of Section 2(11)
of the Act; and that these actions, taken without the
benefit of bargaining with the Union, were in
violation of Section 8(a)(5). The complaint further
alleges that Respondent committed certain inde-
pendent violations of Section 8(a)(1) to discourage
the union activity of these dispatchers.
The Administrative Law Judge found that the
dispatchers exercised independent judgment in re-
sponsibly directing drivers and thus were supervisors
even before Respondent allegedly converted them to
that status. He also found that, even if mistaken
about the supervisory status of the dispatchers,
Respondent's conduct was not in violation of Section
8(a)(3) or (5). In his view, the settlement stipulation
which the General Counsel relies upon left in
question the employee status of these dispatchers
and, until the question of their status was resolved,
Respondent had no obligation to bargain. The
Administrative Law Judge rejected the contention
that Respondent's alleged conversion of dispatchers
into supervisors was inherently destructive of their
Section 7 rights or that Respondent had the burden
of explaining its conduct. He found that, even if the
Respondent's conduct was as alleged, Respondent
had proven that it was motivated by the good-faith
belief that the dispatchers had, always been supervi-
sors and its issuance of job descriptions and
initiation of a training program were not meant to
interfere with Section 7 rights. The Administrative
Law Judge also dismissed the independent violations
of Section 8(a)(1) since the allegations were essential-
ly grounded on conduct • affecting individuals he
found to be supervisors.
We note at the outset the Administrative Law
Judge's discussion of the lack of credibility issues in
this case. He believed that witnesses for the Respon-
dent and for the General Counsel testified truthfully
about their duties and supervisory functions, and
whether or not they had been told that they had
supervisory authority. Thus, the real problem was
one of drawing conclusions from lengthy testimony.
Some dispatchers were told they had supervisory
authority; some were not so told. Some testified that
they used discretion in putting a "better" driver on a
load; others that this was taken care of by applying
the first-in, first-out provision of the union contract,
and so on. From this testimony the Administrative
Law Judge concluded that the day-to-day dispatcher
job added up to the use of independent responsible
direction of the various drivers. We reach a contrary
conclusion after analyzing the testimony and the
contentions of the parties.
To us it appears that actual supervision of over-the-
road drivers who work in and out of this busy
Kernersville terminal-a main break-bulk terminal
for the East Coast, except Florida-is provided by
driver supervisors, one of whom is always on duty at
Kernersville. Their function is to assist the director of
driver personnel in supervising over-the-road drivers.
They 'check the incoming trip cards of drivers,
examine tachographs, and handle reprimands and
grievances. Tachographs, among other items, will
reflect whether a driver has deviated from his orders.
By contrast, the function of central dispatchers is to
move the freight and equipment in the most
expeditious and lucrative manner for the Respon-
dent, a function carried out pursuant to established
guidelines and with constant reference to charts that
221 NLRB No. 145
PILOT FREIGHT CARRIERS , INC. 1027
line the walls of the central dispatch room and show
the location of equipment and driver availability.'
Two central dispatchers are on duty at all times, one
for north traffic and one for south traffic. Drivers are
told to contact them if delayed. The major worktime
of central dispatchers is devoted to telephone
communications -with other terminals and with
drivers. Among the decisions made by central
dispatchers are which load to pull first out of a
terminal closed for the night, whether to overrun a
terminal and miss- certain loads, and whether to
permit a terminal to rent equipment. Central dis-
patchers are themselves supervised by a director of
central dispatch, one of whose functions is to issue
written directives, for example:
Advances are, to be issued only to pay fines or in
extreme emergencies, or if a driver has been out
several days and is staying out and needs money
for tolls, etc. All other requests are to be referred
to the driver supervisor on duty. [Emphasis
supplied.]
We cannot agree that central dispatchers "still use
independent judgment" in applying such a directive.
Similarly, authorization of a driver to break a seal on
a trailer when the load has shifted, or to hire casual
help to unload, is pursuant to well defined company
policies. Department of Transportation regulations
obviously prohibit assignment or continued driving
by those who are intoxicated or ill, and require rest
periods for over-the-road drivers at set intervals. The
fact that directions in the interest of expediting
freight may affect a driver's pay-up or down-is not
in itself indicative of the exercise of supervision
within the meaning of the Act. As the Administrative
Law Judge has stated, a central dispatcher "weighs
the economics" in giving his directions. In our view
these central dispatchers are, like the radio dispatch-
ers in The Baltimore Transit Company and The
Baltimore Coach Company, 192 NLRB 1260 (1951),
merely exerting direction and control over the
movement of equipment, and the direction of
personnel by them occurs only as an incidental
result, hence they are not supervisors within the
meaning of Section 2(11) of the Act.2
At the time of hearing there were three line-haul
dispatchers at Kernersville with primary responsibili-
ty for coordinating with the warehouse the hooking
of trailers to tractors, calling in over-the-road drivers
to take the loads, punching them out when the
1 Respondent' has issued a comprehensive manual detailing what
procedures are to be followed for dispatching the equipment and for
providing a driver with any necessary instructions. Additional guidelines
not set out in the manual are issued in the form of memoranda that usually
relate to a specific subject. The collective-bargaining contracts and the
Department of Transportation's motor safety regulations are additional
equipment is ready, and supplying them with a
manifest, bills for the freight, and a trip ticket. The
latter may include special instructions for transport-
ing or delivering. In the operation there are also four
dispatch clerks who man the phone and the typewrit-
er and work as a team with the dispatchers. This
office works round the clock and one dispatcher and
one clerk are on duty at the same time.
The Administrative Law Judge has described this
relationship graphically as a journeyman-helper
situation but nonetheless found, as urged by the
Respondent, that the line-haul dispatchers supervised
the dispatch clerks after the revised job descriptions
were issued .3 Dispatch clerks, as the parties agree,
are within the unit. When a driver arrives with
freight, the dispatcher or the clerk (if he happens to
be "manning the window") marks the time of arrival
and the driver then turns the trip card over to the
driver supervisor.
When a driver who has been called to take a load
does not show up on time, a dispatcher may give the
trip to the next available man, thus automatically
putting the first driver at the bottom of the list. On
occasion, if the list of regular drivers is exhausted, the
dispatcher may assign a casual driver, or may even
request that an incoming driver "turn on the yard"
and go out again immediately with a new load. In
performing these duties the line-haul dispatcher's
overriding interest and concern-like that of the
central dispatcher in his work-is the movement of
equipment in the fastest, most economical way
possible. The incidental impact this may have on
drivers is not in our opinion the exercise of
supervision within the meaning of the Act . Signifi-
cantly, these dispatchers are themselves supervised
by the director of line-haul dispatch.
We come now to the dispatch of local freight
within a 50-mile radius. For this operation there are
two local dispatchers who are supervised by the
terminal manager . The latter has no responsibility
with respect to central or line-haul dispatch. Local
dispatch is a 5-day-a-week operation, with one
dispatcher, arriving about 6 a.m. and the other
leaving between 7 and 8 p.m. Each year local drivers
bid, by seniority, for local runs. Those with less
seniority bid for hours. There are also preferential
casual drivers who come under the contract and are
called by seniority, and casuals who have no
seniority but are on a roster and are paid the
specified contract rate.
guideposts that must be followed.
2 Spector Freight System, Inc., 216 NLRB No. 89 (1975).
3 Contrary to the Administrative Law Judge , we find that the dispatchers
do not supervise clerks. His finding is based on a single discharge, but, as we
read the record , the dispatcher did not do the firing and, as the
Administrative Law Judge admits, the incident was arguably staged.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The local dispatchers punch out local drivers, who
keep in touch with the terminal during the day for
instructions on additional pickups and problems that
may, arise. Despite the fact that the record shows that
the assignment of drivers to loads is thoroughly
routinized, the Administrative Law Judge found the
exercise of independent judgment by local dispatch-
ers based on authorizing overtime pay when a pickup
is delayed for some reason or not available at the
time estimated by the local dispatcher; requesting
that the driver change his lunchtime from that
provided by contract or agreeing to that arrangement
if the driver has a personal errand; authorizing the
hire of casual labor to ` unload; and approving or
disapproving the delivery of a c.o.d. without pay-
ment . In our view, such decisions are essentially
dictated by economic considerations, for which the
Employer has provided comprehensive dispatching
procedures. Although there is no personnel termed a
driver supervisor for the local drivers, we conclude
that the terminal manager has authority to hire,
discharge, and discipline local drivers and to direct
them to the extent not covered by company proce-
dures.
Accordingly, we' see nothing in this record to
support a finding that local dispatchers are supervi-
sors within the meaning of the Act.
Unfair Labor Practices
We have found that Respondent's dispatchers are
employees rather than supervisors, and entitled to
the protection of the Act.4 The question then
concerns the alleged 8(a)(1) interference with Section
7 rights and 8(a)(3) discriminatory effect of the 1973
job descriptions which on their face imply superviso-
ry authority, and of the 1974 initiation of supervisory
training meetings for dispatchers, as well as the
8(a)(5) impact of unilaterally taking such steps
without consulting the recognized bargaining repre-
sentative.
In August 1973 the Union and the Respondent
entered into a settlement stipulation of several
outstanding unfair labor practice proceedings, wher-
ein the parties agreed to a "final and binding card
check" to "resolve the representation issues," except
that Respondent reserved the right to litigate the
employee status of dispatchers in a unit clarification
proceeding before this Board. Several days after the
card check, which showed as to dispatchers that 14 of
4 Based upon the evidence that Respondent 's dispatchers do not
formulate , determine, and effectuate Respondent's business policy and that
their decisions conform to established operating guidelines , we find that the
dispatchers are not excluded from the protection of the Act as managerial
employees N.L R.B v Bell Aerospace Company, Division of Textron, Inc,
416 U.S 267 (1974). See also Spector Freight System, Inc, 216 NLRB No 89
(1975)
the 19 had chosen to be represented by the Union,
Respondent filed a unit clarification petition in an
effort to resolve the status of the dispatchers.
However, in September Respondent issued the
disputed job descriptions covering dispatchers which,
in our view and that of the Administrative Law
Judge, outlined supervisory duties. Later, in Febru-
ary 1974, Respondent, also as found by the Adminis-
trative Law Judge, instituted a supervisory training
program for - dispatchers. Respondent's actions,
following closely a demonstrated majority of dis-
patchers in favor of union representation and before
resolution of the supervisory issue, were, we find,
interference, restraint, and coercion with respect to
employee protected activity in violation of Section
8(a)(1), as well as discrimination to discourage union
activity in violation of Section 8(a)(3). Contrary to
the Administrative Law Judge, we find it immaterial
that Respondent had, in taking these steps, a good-
faith belief that its dispatchers were already supervi-
sors within the meaning of Section 2(11) of the Act.5
In reaching this conclusion we note that these job
descriptions, while purporting to reflect supervisory
responsibilities, do not accurately' reflect the job
functions performed either at the time they were
distributed or at the time of hearing. Except as to the
three line-haul dispatchers, there is no background of
issuing job descriptions for dispatchers, and the
timing of these and of the supervisory training
program pending a determination of the supervisory
issue-a period when the requisite preservation of
the status quo would have been especially desirable
to promote a prompt resolution, of the issue uncloud-
ed by what we view as attempts to influence the
result-is not explained by this record on the
asserted ground that Respondent was simply codify-
ing the supervisory authority already possessed by its
dispatchers.
With respect to the refusal-to-bargain allegation,
we find, contrary to the Administrative Law Judge,
that Respondent, having reserved the right to litigate
the status of dispatchers as supervisors, had an
.obligation to consult with the Union that did not
hinge upon resolution of the issue. While resolution
of the supervisory issue was pending, it acted at its
peril in not consulting the Union concerning the
issuance of the job descriptions and the supervisory
training program. Accordingly, we find that the
Respondent violated' Section 8(a)(5) of the Act .6
5 See NLRB v. Great Dane Trailers, Inc, 388 U.S . 26, 33-34 (1967).
6 In this connection see Mike O 'Connor Chevrolet-Buick-GMC Co, Inc.,
and Pat O'Connor Chevrolet-Buick-GMC Co., Inc, 209 NLRB 701, 703
(1974), concerning the peril of making postelection changes in working
conditions , absent compelling economic considerations for doing so, during
pendency of objections.
PILOT FREIGHT CARRIERS, INC. 1029
The General Counsel urges the Board to make
findings of 8(a)(1) and (3) violations without regard
to the existence of an unlawful motive. While we
agree that the acts of Respondent taken during the
period when the supervisory issue was unresolved
were inherently destructive of the important employ-
ee right under Section 7 to be represented for
bargaining with fellow employees unless determined,
by unit clarification, to be supervisors, and that an
8(a)(3) finding here may also be appropriate without
specific evidence of union animus, we note that this
is not a case where that antiunion motivation is
lacking. On four occasions in April 1974, the
Respondent through its director of central dispatch
urged its employees to "forget about the Union" and
to withdraw their support from it, as the Administra-
tive Law Judge found based upon uncontroverted
testimony. Two occasions involved central dispatch-
ers, one a line-haul dispatcher, and one a dispatch
clerk. The Administrative Law Judge treated the
latter incident as isolated, and found no violation as
to the conversations with dispatchers because of their
supervisory status. As we have concluded that all
dispatchers are employees, we find these conversa-
tions to be independent violations of Section 8(a)(1)
which supply explicit evidence of the discriminatory
purpose underlying the issuance of job descriptions
and the institution, of the training program which
constitute the 8(a)(3) violations we have found.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Pilot Freight Carriers, Inc., Kernersville, North
Carolina, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their activities in support of a labor organization.
(b) Coercively interrogating employees concerning
their involvement in a labor dispute.
(c) Unlawfully threatening to discharge employees
because of their activities in support of a labor
organization.
(d) Unlawfully requesting or directing employees
to withdraw their union authorization cards.
(e) Unlawfully requesting or directing employees to
abandon the Union and to deal directly with
Respondent.
(f) Unilaterally issuing job descriptions or institut-
ing supervisory training for dispatchers.
(g) Attempting to change the duties and responsi-
bilities of its employees because said employees
joined or assisted the Union or engaged in other
activities protected by Section 7 of the National
Labor Relations Act, as amended.
(h) Refusing to bargain collectively concerning the
inclusion of dispatchers in the unit covered by the
terminal office employees contract with Chauffeurs,
Teamsters and Helpers Local Union No. 391,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative in the
following collective-bargaining unit:
All terminal office employees and maintenance
office employees employed by Respondent at its
Kernersville, North Carolina, terminal, including
dispatchers but excluding log clerks, guards,
salesmen, confidential, managerial, and supervi-
sory employees.
(i) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist Chauffeurs, Teamsters, and
Helpers Local Union No. 391, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other right guaranteed them under Section 7 of the
Act.
2. Take the following affirmative action which
the Board finds will effectuate the purposes and
policies of the Act:
(a) Rescind the 1973 job descriptions and 1974
training program as they apply to dispatchers.
(b) Upon request, ^ bargain with the above-named
labor organization for the inclusion of dispatchers in
the unit covered by the terminal office employees
contract.
(c) Post at its place of business in Kernersville,
North Carolina, copies of the attached notice marked
"Appendix." 7 Copies of said notice, on forms
provided by the Regional Director for Region 11,
after being duly signed by Respondent's representa-
tive, shall be posted by ' Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places 1 where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by' any other material.
7 In the event that this Order is enforced by a Judgment of a United Judgment of the United States Court of Appeals Enforcing an Order of the
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
National Labor Relations Board "
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY' ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to
post this notice and we intend to carry out the Order
of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT coercively interrogate you re-
garding your union membership, activities, or
desires, or your involvement in a labor dispute.
WE WILL NOT threaten to fire or take any action
against any of you because you have joined or
supported, support, or will support a labor
organization of your choice, including Chauf-
feurs, Teamsters and Helpers Local Union No.
391, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America.
WE WILL NOT request and direct employees to
withdraw their union authorization cards.
WE WILL NOT request and direct employees to
'abandon the Union and deal directly with
management.
WE WILL NOT issue job descriptions or institute
supervisory training programs for dispatchers
without first bargaining with your collective-
bargaining representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, or to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid, or to -refrain from any or all
such activities.
- WE WILL rescind the 1973 job descriptions and
1974 training program as they apply to dispatch-
ers.
WE WILL, upon request, bargain for the
inclusion of the dispatchers in the contract unit.
You and all our employees' are free to become
members of any labor organization, or to refrain
from doing so.
PILOT FREIGHT
CARRIERS, INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge in Case 1l-CA 5506 was filed on October 4,
1973. The charge in Case. 11-CA-5642 was filed on
February 27, 1974. The cases were consolidated for hearing
and a consolidated complaint was issued on April 22, 1974.
The charge in Case II-CA-5718 was filed on April 29,
1974. All three cases were consolidated for hearing and an
amended consolidated complaint was issued on May 30,
1974. The hearing was held in Greensboro, North
Carolina, on June 27 and' November 6, 7, 8, 9, 11, 12, 13,
14, 18, 19, 20, and 21, 1974. The principal issue litigated
was whether dispatchers employed at Respondent' s •termi-
nal at Kernersville, North Carolina, were as of August 24,
1973, employees or supervisors within the meaning of
Section 2(11) of the National Labor Relations Act, as
amended. For the reasons set forth below, I find that they
were supervisors and that, therefore, Respondent did not
violate Section 8(a)(1), (3), and (5) of the Act by issumg job
descriptions on September 26, 1973, which explicitly set
forth their supervisory authority and responsibilities and
by instituting a supervisory training program for them in
February 1974.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a North Carolina corporation, is engaged in
various States in the interstate motor transportation of
freight pursuant to a license granted by the Interstate
Commerce Commission. During the 12 months immediate-
ly preceding issuance of the amended consolidated
complaint in this proceeding, Respondent' grossed more
than $500,000 and received shipments of goods valued in
excess of $500,000 at its Kernersville, North Carolina,
terminal directly from points outside the State of North
Carolina.
PILOT FREIGHT CARRIERS, INC. - 1031
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Due-Process Issues
1. How they arose
Respondent's drivers, both over-the-road and local, are
represented by the Teamsters. At the Kernersville terminal
the contract is between Respondent and Teamsters Local
391. In the spring of 1973 Local 391 undertook to organize
other employees at the Kernersville terminal. In its initial
contact with Respondent about the matter in mid-May, the
Union asked for a unit of terminal office employees. In late
June, when serious discussions began, the Union first
mentioned that it wanted to include dispatchers. When
telephone communications in early July failed to elicit a
response from Respondent as to whether it would grant
recognition to Local 391, the Union sent a formal demand
letter. This led to a meeting on July 9, 1973, at which
Respondent took the position that dispatchers were
managers or supervisors within the meaning of the Act. On
July 13 terminal office employees staged a 1-day strike in
support of their demand that Respondent recognize Local
391 as their bargaining representative. Dispatchers did not
participate in the strike. The strike resulted in a spate of
litigation, including a charge and a petition filed with the
Board's regional office in' Winston-Salem and an injunc-
tion proceeding filed in United States District Court. When
the latter came to trial on August 24, 1973, Respondent
and the Union settled their dispute on the courthouse
steps. A document entitled "Settlement Stipulation" which
they executed that day provided for a card check to be
conducted by a named arbitrator to determine whether
Local 391 represented a majority of office employees at the
Kernersville terminal. It also provided that the arbitrator
would resolve "all issues which may arise in the above
mentioned card check," save only the question of whether
dispatchers "are supervisors or managerial employees
within the meaning of the National Labor Relations Act."
As to that jssue the right was reserved to Respondent to
have it resolved in a Board unit clarification proceeding.
The last two paragraphs of the stipulation read:
7. The Employer and Union agree to withdraw with
prejudice all litigation, charges and petitions,
including litigation against the International
Brotherhood of Teamsters, arising out of this
controversy, specifically United States District
Court No. C-228-WS-73 and NLRB Cases 11-
CA-5394 and 11-RM-201. Thereafter neither the
Employer nor the Union shall file any litigation,
charges or petitions in the courts or before the
National Labor Relations Board encompassing
any part of the controversy leading up to the
execution of this settlement stipulation, or arising
out of the same, except in enforcement of this
settlement stipulation. In addition, neither party
will aid, abet, encourage or cause any third
parties to file any such litigation, charges or
petitions grounded in the instant controversy.
8. All issues of alleged violations of the terms of this
agreement shall be submitted to the arbitrator,
who shall have full authority to resolve such
issues, including cease and desist, powers. The
arbitrator shall, if possible, order a hearing upon
twenty-four hours notice to the parties. The
arbitrator's decision shall be final land binding
and enforceable in the Federal District Court.
All litigation, including the Labor Board charge and
petition, was withdrawn as agreed. The card check was
held on August 28, 1973, at which time the arbitrator
determined that 49 of 73 office- employees other than
dispatchers and 14 of 19 dispatchers had requested
representation by Local 391 by executing valid authoriza-
tion cards. Respondent thereupon granted recognition to
Local 391 in a unit of "Kernersville, North Carolina office
employees including the maintenance office, excluding log
clerks, supervisors, managerial employees, guards, sales-
men, confidential employees, and all 'employees covered by
existing labor agreements." Resolution of whether dis-
patchers were in the unit as office employees or out as
supervisors or managerial employees was not permitted to
delay negotiations. A contract covering the unit was
executed on December 7, 1973.
Pursuant to the settlement stipulation, Respondent filed
a unit clarification petition. (Actually, it filed two, Case 11-
UC-14 on September 5, 1973, and Case l1-UC-15 on
September 20. Why the first was withdrawn and the second
substituted for it is not clear in This record.) An extensive
hearing was held in Case 11-UC-15 before a Regional
Office Hearing Officer, closing„ apparently, in January
1974. In the meantime, the first of the three cases involved
in this proceeding, Case 11-CA 5506,,had erupted.
Respondent issued written job descriptions on Septem-
ber 26, 1973, covering each of the three types of dispatchers
who work at the Kernersville terminal. Each contained
explicit statements of authority which, if actually possessed
by the dispatchers in that category, clearly made them
supervisors within the meaning of the Act. Included among
the 27 "authorities, duties, and responsibilities" on the
document titled "Job' Description for Central'Dispatchers"
are, for example:
12. Authority' to grant time off to drivers- while on
route. This authority involves extension of break
times and rest periods as the need arises.
15. Authority to originate reprimands for drivers due
to faulty performance.
16. Authority to discharge a driver while enroute for
violation of company policies or contract provi-
sions
20. Authority to initiate the hiring and/or assigning
part-time help on weekends. This involves utiliza-
tion as the need arises of local drivers based at
various terminals throughout the system for over-
the-road work assignments.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Among the 22 on the document titled "Job Description
for Line-haul Dispatchers" are, for example:
9. Authority to grant time off or to assign overtime
work to the dispatch clerks as the need arises.
10. Authority to discharge or to effectively recom-
mend the discharge of a dispatch clerk.
11. Authority to recommend pay raises and promo-
tions for dispatch clerks.
* * *
16. Authority to reprimand drivers and recommend
further disciplinary action to the driver supervisor
if infractions of the contract and company
standards come to the attention of the line-haul
dispatcher.
20. Authority to grant time off to drivers. This
authority also refers to vacation time and sick
time except that the line-haul dispatcher shall
coordinate with the driver supervisor before
granting time off for vacation and sickness.
Among the 20 on the document titled "Job Description
for Local Dispatchers" are, for example:
7. Authority to hire part-time employees as the need
arises . Local dispatch should maintain a pool of
drivers to be utilized as the need arises.
8. Authority to recommend the hiring of part-time
employees as permanent employees.
9. Authority to discharge any local driver whose
conduct warrants immediate discharge under
existing labor agreements.
10. Authority to effectively recommend other discipli-
nary action relative to local drivers who have
violated provisions of existing agreements.
* * * * *
14. Authority to grant time off to local drivers as the
circumstances so require.
Local 391 filed its charge -in Case 11-CA-5506 on
October 4, 1973, alleging that Respondent "has attempted
to change and/or implement certain changes in the
authority and responsibilities of the dispatchers employed
at the Kernersville, N. C. terminal in order to convert said
dispatchers from the status of employees covered by the
Act to supervisors excluded from coverage under the Act"
with an intention "to convert said dispatchers to supervi-
sors and , thereby, depriving them of their rights under
Section 7 of the Act. This conduct of Respondent
"constitutes a cynical attempt to manufacture favorable
evidence for use in the unit clarification proceeding (1I-
UC-15)." (Case 11-CA-5642, another 8(a)(1), (3), and (5)
charge, was triggered by a training program for supervisors
to which Respondent began sending the dispatchers in
February 1974. Case 1l-CA-5718, an 8(a)(1) charge, was
triggered by conversations in April 1974 between dispatch-
ers and Sidney Elms, Respondent's director of central
dispatch at the time.) The Regional Director dismissed
Case 1 l--CA-5506 on October 26, 1973, and the dismissal
was affirmed on appeal to the General Counsel on
December 17. However, on December 27,' 1973, the Union
filed a motion for reconsideration with the General
Counsel. That motion was granted and the Regional
Director was reversed on April 3, 1974. The case was
remanded to the Regional Director for issuance of an
8(a)(1), (3), and (5) complaint. The Regional Director
thereupon suspended further processing of Case I I-UC-15
pending litigation of the complaint in Case I1-CA-5506.
Respondent asked the Board to reverse him. The Board
denied Respondent's appeal in a telegram dated June 26,
1974, and signed by its executive secretary which read, in
pertinent part:
THE BOARD CONCLUDED THAT IN AS MUCH 'AS EVIDENCE
AS TO CERTAIN EMPLOYER CONDUCT, INCLUDING BUT
NOT LIMITED TO THE PROMULGATION OF JOB
DESCRIPTIONS, WAS INTRODUCED IN THE HEARING 11-
UC-15 WHICH EVIDENCE IS RELEVANT TO THE ISSUES
THEREIN BUT WHICH EMPLOYER CONDUCT IS ALLEGED IN
I1-cA-5506 TO HAVE BEEN VIOLATED [SIC] OF SECTIONS
8(A)(1), (3) AND (5) OF THE ACT THE REGIONAL
DIRECTORS DECISION TO HOLD THE UC PROCEEDING IN
ABEYANCE PENDING RESOLUTION OF THE ISSUES IN THE
UNFAIR LABOR PRACTICE PROCEEDINGS WAS AN
APPROPRIATE EXERCISE OF HIS DISCRETION
At the opening of the hearing in this proceeding,
Respondent moved for summary judgment. The settlement
stipulation entered into by Respondent and Local 391
provides that the only important issue in this proceeding,
namely, the status of dispatchers, is to be resolved in a unit
clarification proceeding; it provides that Board litigation
subsequent to the settlement, other than the UC proceed-
ing, will be limited to enforcement of the settlement
stipulation, an element not present in this proceeding; and
it provides that all issues of alleged violations of the
settlement stipulation, the issue in this proceeding, will be
submitted to the arbitrator. The Board has decreed in
Collyer Insulated Wire, A Gulf and Western Systems Co.,
192 NLRB 837 (1971), that it will defer where the parties
before it are also parties to a collective-bargaining
agreement providing for arbitration of the controversy
alleged to be an unfair labor practice. The settlement
stipulation of August 24, 1973, between Respondent and
Local 391 is analogous to such a 'collective-bargaining
agreement. Insofar as the rationale of the Collyer doctrine
is concerned, it is more appropriate for deferral than a
generalized grievance and arbitration clause in a contract
which concerns itself with things in addition to the
resolution of disputes between the parties, for it deals in
specific terms with the very controversy which gave rise to
it, and the manner which the parties have agreed will be
used to resolve any further disputes growing,out of it.
Therefore, on June 27, 1974, I granted Respondent's
motion as to all aspects of the amended consolidated
complaint except the allegations of independent violations
of Section 8(a)(1) of the Act on the ground that forcing
Respondent to participate in this proceeding in addition to
the long hearing already held in Case 11-UC-15 was a
PILOT FREIGHT CARRIERS, INC.
denial of due process. I adjourned the hearing indefinitely
in order to give the General Counsel an opportunity to
appeal my ruling to the Board. The Board reversed on
September 11, 1974, by a telegram signed by an associate
executive secretary which merely stated, in pertinent part,
"General Counsel's request for special permission to
appeal from ruling of Administrative Law Judge granting
Respondent's Motion for Summary Judgment is hereby
granted, the appeal is granted and the Administrative Law
Judge is reversed."
When the hearing resumed on November 6, 1974,
Respondent filed a motion for partial summary judgment
seeking dismissal of the 8(a)(5) portion of the complaint on
the ground that the General Counsel had violated the
Freedom of Information Act, 5 U.S.C. Sec. 552, by
denying its request for material contained in the General
Counsel's and the Board's files which would reveal the
theory on which the General Counsel alleged that
Respondent was under a duty to bargain with Local 391. I
denied the motion with leave to seek to reopen the hearing
in the event the Supreme Court of the United States issued
its decision in N. L R B. v. Sears, 'Roebuck & Co., 480 F.2d
1195 (1973), while this proceeding was still before me.
Respondent's subsequent motion to dismiss the 8(a)(5)
portion of the complaint is disposed of by my recommend-
ed Order herein.
2. Where they stand now
At the close of the hearing Respondent took the position
that the issue posed by my ruling on June 27, 1974, on its
original motion for summary judgment was still before me,
citing the Board's failure to give any reasons for its
decision in its telegram of September 11, 1974. With
respect to the due process issues, its brief reads:
It is clear that the record in the instant case compels
a finding that the Respondent's dispatchers are and
were, at all times material herein, persons properly
excluded from the protections of the Act, thereby
precluding findings that the Respondent violated
Sections 8(a)(1), 8(a)(3), or 8(a)(5) as to its dispatchers.
Admittedly, such a decision by the Administrative
Law Judge would moot the presently blocked decision
in the unit clarification proceeding (11-UC-15). How-
ever, at this juncture, the Respondent suggests, the
Administrative Law Judge should be in no way reticent
on that account.
The Respondent, in spite of binding agreements to
the contrary, has been forced to litigate its case not
once but twice. The Respondent did everything in its
power to avoid the second trial, pointing out to the
Board time and again, the inequities and burden
involved, as well as the potential conflict between a
decision of the Administrative Law Judge and the
blocked decision in 11-UC-15.
"No matter," said the Board; "try it again. The
Charging Party is not pleased with the record it made
in the first trial. It seeks another forum, in spite of its
agreement not to do so."
1033
The Respondent still believes that it has been, at all
times, entitled to the decision which it sought in the
unit clarification proceeding. Nevertheless, the Respon-
dent will now join with the Board and the Charging
Party in urging the Administrative Law Judge to
dispose of the central issue in this entire case.
Were the Respondent's dispatchers supervisors prior
to September 26, 1973? The Respondent is confident
that the record in this case shows overwhelmingly that
they were.
Although the Respondent earnestly maintains that
the supervisory status of the dispatchers is dispositive
of the Section 8(a)(5) allegations in the Complaint, the
Respondent does not waive, and reasserts herein, the
position taken in its Motion For Partial Summary
Judgment (RX 5) denied at trial. Assuming, arguendo,
that the Respondent did unilaterally convert its
dispatchers from employee status to supervisor status,
General Counsel has failed completely to show, the
source of any obligation on the Respondent to first
bargain with the Charging Party about such an act.
I do not agree with counsel for Respondent that "such a
decision by the Administrative Law Judge would moot the
presently blocked decision in the unit clarification proceed-
ing (11-UC-15)." Absent an agreement between Respon-
dent and Local 391 that both parties have waived their
rights under the August 24, 1973, settlement stipulation
and that they will be bound on the unit question by the
decision in this proceeding-and there is no evidence of
any such agreement in this record-the end of this
proceeding will merely unblock Case 11-UC-15. The unit
question will not be resolved until a subsequent final
decision issues in that case.
More importantly, in view of Respondent's belief "that it
has been, at all times, entitled to the decision which it
sought in the unit clarification proceeding," I do not read
"the Respondent will now join with the Board and the
Charging Party in urging the Administrative Law Judge to
dispose of the central issue in this entire case" as a waiver
by Respondent of its right to pursue the argument, before
Board and courts, that it was denied due process when it
was forced to defend itself in an unfair labor practice
proceeding in order to have the unit question resolved
rather than having it, resolved in the unit clarification
proceeding to which it and the Union had committed
themselves. However, by its telegram of September 11,
1974, the Board has already ruled against Respondent on
that issue. I am bound by that ruling. As to the Freedom of
Information Act due process issue, I have received no
posthearing renewal of the motion I denied on November
6, 1974. I find, therefore, that Respondent has been
accorded due process at all stages of this proceeding.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Merits of the Dispute
1. The supervisory issues
a. Credibility
There are no significant credibility conflicts in this
record . Each side relied , in large part, on the testimony of
dispatchers to establish the facts on which it relied.
Dispatchers who obviously do not consider themselves
supervisors (and presumably want to be represented by the
Teamsters) testified for the General Counsel. The thrust of
their testimony was that they possessed none of the
statutory indicia of supervisory status, i.e., that they have
never hired or fired another person and on through the
whole litany of Section 2(11) of the Act, culminating in a
picture of duties so routine as not to require the exercise of
any independent judgment. Dispatchers who obviously do
consider themselves supervisors (and presumably do not
want to be represented by the Teamsters) testified for
Respondent . The thrust of their testimony was that they, or
others as to whom they had firsthand knowledge, had done
some of the things listed disjunctively in Section 2(11), with
emphasis on the nonroutine nature of their day-to-day
duties . However, there are no significant points in the
record at which a witness for one side testified that a hard
fact-as distinguished from a conclusion-testified to by a
witness for the other side was not so.
The simplest example contained in the record will
suffice, I hope , to make this point clear . Respondent has
two local dispatchers. Paul Orion Church testified for the
General Counsel . James Robert (Bob) Merritt testified for
Respondent. There is no evidence to refute Church's
testimony that he was not told, at the time he became a
local dispatcher , that he was a supervisor . There is no
evidence to refute Merritt 's testimony that he was. Both
were obviously honest men doing their best to tell the truth
as they perceived it. I believe both of them. For whatever
significance it has on the issue of whether local dispatchers
are supervisors within the meaning of the Act-and
obviously (once again), given the state of this record, it
cannot be the point on ' which the whole issue turns-
Merritt was told, Church was not.
So it goes throughout the myriad facts thrown into this
record by both sides. From that mass of testimony,
however, emerges a picture of the way Respondent's
dispatchers go about handling their jobs each day which is
essentially undisputed . Those are the facts I have attempt-
ed to set forth below. Since all witnesses agreed that the
issuance of job descriptions on September 26, 1973,
changed nothing about the way these men go about their
jobs, these facts are as true today as they were in January
1973, the earliest period any witness gave as the start of
union talk among Respondent's dispatchers , or on July 9,
1973, the day Respondent first took the position with the
Union that its dispatchers were supervisors within the
meaning of the Act, or on July 13, 1973, the day
dispatchers did not join other terminal workers in a strike
for recognition, or on August 24, 1973, the day Respondent
and the Union agreed to let the Board decide the question
in a unit clarification proceeding, or on September 26,
1973, itself.
b. Respondent's system
Respondent operates on the east coast with one terminal
as far west as Cleveland . Its main office is located in
Winston-Salem. The terminal at Kernersville opened in
1968. Kernersville is located some 10 miles east of
Winston-Salem. The Kernersville terminal is I of 41
operated by Respondent.
Kernersville is Respondent 's main break-bulk terminal.
The only other break-bulk terminal is located in Jackson-
ville. Respondent's Florida operations are sui generis.
Jacksonville relays freight into and out of all of Florida.
Florida drivers do not drive farther north than Jackson-
ville. Non-Florida drivers do not drive farther south than
Jacksonville. Trailer loads of freight into or out of Florida
which require their bulk to be broken because they are
destined for more than one consignee have it broken at
Jacksonville. Those which do not are subject, at a
minimum , to a change in driver and tractor , for Respon-
dent's Florida drivers are owner-operators. Other than
Florida, however , Kernersville serves as the break-bulk
terminal for all of Respondent's operations . As such, it is
the center of the web of Respondent's system from
Jacksonville north. Richmond is Respondent's only relay
terminal other than Jacksonville.
Respondent underwent a systemwide strike by ' the
Teamsters from February to August 1974. Prior to that
strike, Respondent had some 700 over-the-road drivers
domiciled at Kernersville. At the time of the hearing,
because the volume of Respondent's business had not yet
recovered from the effects of the strike, that number was
down to approximately 450 with the balance still on layoff.
During the summer of 1973, the crucial period in this
proceeding, there were some 45 over-the-road drivers
domiciled in terminals south of Kernersville and another
45 domiciled in Richmond. Drivers domiciled at terminals
other than Kernersville are referred to, from the Kerners-
ville point of view, as foreign drivers. Terminals other than
Kernersville are foreign terminals.
Kernersville dispatchers are, and always have been,
salaried. They do not, and never have, punched a
timeclock. They participate in, and have always participat-
ed for those years when Respondent's profits were large
enough to trigger profit sharing, Respondent 's annual
bonus plan. In these three respects they are now unlike
employees in the terminal office unit and like admitted
supervisors and managers . However, at the time of the
August 24 , 1973, settlement , these distinctions did not
clearly separate employees from supervisors within the
meaning of the Act. At that time freight inspectors were
also salaried, did not punch a clock, and participated in the
bonus plan. They were placed in the unit by agreement.
They were subsequently converted to hourly status,
required to punch a clock, and deprived of their bonus
benefits. The latter represented no immediate real loss to
freight inspectors . Because of its profit situation , Respon-
dent paid no bonus in 1974 for 1973. As of the time of the
hearing, Respondent's profit situation for 1974 was still an
open question.
Respondent is a signatory to the National Master
Freight Agreement and various local cartage agreements in
each of the Teamsters jurisdictions in which it operates
PILOT FREIGHT CARRIERS, INC.
terminals , including Kernersville. The former controls its
relationship with its over-the-road drivers. The latter
controls its relationship with its local drivers. Over-the-
road drivers are paid, basically, by the number of miles
they drive. Local drivers are paid by the number of hours
they work. Regulations promulgated by the United States
Department of Transportation also loom large in the
relationship of Respondent with its drivers.
The interplay of union contracts and DOT regulations
creates a situation the complexities of which are beyond
the scope of this decision, especially where over-the-road
operations are concerned. This somewhat simplified
explanation will, I think, be sufficient for an understanding
of the relationship of contracts and regulations to the
issues:
Drivers are forbidden to drive longer than 10 hours
without rest or to be on duty for longer than 15 hours in
any 24-hour period. Each driver must keep an accurate log
of his driving and duty time to ensure compliance with this
rule. When a driver has driven for 10 hours he is said to be
out of hours. Log clerks, who are included in the terminal
office employees unit, keep track of drivers' hours. Drivers
report to them when they return from trips. Drivers keep
track of their own hours when they are on the road. When
an over-the-road driver is dispatched from his domicile, he
may drive up to four full 10-hour periods before returning
to his domicile without Respondent incurring any obliga-
tion to compensate him for time when he is not driving or
otherwise on duty. When a driver is on a trip and not
driving or otherwise working, he is said to have been put to
bed. On a maximum, four-leg trip, Respondent may put its
drivers to bed for as little as 8 and as many as 13 hours
after the first leg and must put them to bed for 8 hours, no
more , no less, after the second and the third legs. If it keeps
them on the road longer than four legs, it'must compensate
them on a time basis ' for each subsequent rest period.
Whether the drivers are alone (single operation) or working
as a team of two in a tractor which has a bunk for the off-
duty or out-of-hours driver (double operation), the applica-
tion of these facts is the same. The only important
difference between single and double operations is that the
truck can keep working, thus increasing Respondent's
revenue, although an individual driver cannot.'
Drivers are dispatched from any terminal, whether their
domicile or one to which they have driven in the course of
a multilegged trip, on a first-in first-out basis. In the event
the first-in first-out principle is violated, whether intention-
ally or unintentionally, the driver who has been bypassed is
said to have been run around. A driver who has been run
around is entitled to penalty pay. Drivers are also entitled
to compensation on a time basis for waiting; e.g., delays
which occur when they have to wait at a consignee's
premises before unloading or delays which occur when
their rest period is up at a terminal other than their
domicile and the terminal has no trailer ready for them to
pull. By the same token, they are entitled to delay pay at
their domicile when they report for a trip as ordered and
the load for which they have been summoned is, for any
reason, not ready to go.
There are three categories of dispatchers at Kernersville,
central, line-haul (or over-the-road), and local. To dispatch
1035
is to control the flow of trailers by controlling the comings
and goings of drivers. The line-haul and local dispatch
functions are performed at each of Respondent's 41
terminals, for each terminal must control the comings and
goings of both over-the-road and local drivers at that
terminal. At some terminals the functions are combined in
the same dispatcher. At some they are performed by a
person or persons who have additional duties and titles
other than dispatcher. At Kernersville, they are performed
by separate categories of employees called hnehaul
dispatchers and local dispatchers. The central dispatch
function is unique to Kernersville. Central dispatchers are
found only there in Respondent's system.
c. Central dispatchers
(1) Facts
Respondent's nine central dispatchers are responsible for
moving freight in the manner which will maximize profits.
They work three 12-hour shifts and one 6-hour shift each
week. Two of them are on duty at any given moment.
Together, they man the central dispatch office around the
clock and around the year. They are supervised by Joe
Scott, Respondent's director of central dispatch.
The central dispatch office is a large room adjacent to
the line-haul dispatch office. Its distinctive feature is the
boards which line its walls, 1 for each of Respondent's 41
terminals. Each board contains 12 horizontal lines. Each
line is actually a slot in which pieces, of plastic measuring
approximately 3 by 6.5 inches can be placed. Each piece of
plastic bears a number corresponding to a trailer and is
known as a trailer backing. Each contains a pocket in
which a 3- by 5-inch card can be inserted. When a trailer
backing is placed in the bottom line of a terminal's board,
it indicates that the trailer is en route. to that terminal.
When it is placed in the line next above the bottom line, it
indicates that the trailer is at the terminal, waiting to be
unloaded, and so on up, the board. Each line indicates the
status of the trailer at any given moment. The fourth line
from the bottom, for example, indicates that the trailer is
empty, ready to be loaded. Central dispatchers move the
trailer backing from line to line as the trailer's status
changes. When the trailer is dispatched, the trailer backing
is moved to the bottom line of the terminal which is the
trailer's destination or, in the case where the trailer is
headed directly to a consignee's premises, which has
jurisdiction over the area. When a tractor is attached to a
trailer, a small plastic tab bearing'the number of the tractor
is attached to the trailer backing.
The cards which are inserted in the trailer backings
contain information about the freight which is on the
trailer. When trailers are loaded at Kernersville, the cards
are filled out in the warehouse. When the trailer is loaded
at some other terminal, the information is sent to central
dispatch from the terminal. '
Central dispatch is linked to terminals other than
Kernersville by teletype and telephone. Central dispatchers
wear telephone headsets and spend a major part of their
time in telephone communications with either terminals or
drivers. For example, the driver trip card which is given to
each driver when he is dispatched contains printed
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instructions that he is to call central dispatch in the event
he is delayed for more than 1 hour, for it is essential to
Respondent's system that central dispatch know where
every trailer is at every moment of the day or night. The
two central dispatchers who, are on duty at any given time
split the work geographically. One handles operations
north of Kernersville; the other operations, south.
Only a few of Respondent's terminals other than
Kernersville are open around the clock. This puts a special
burden on central dispatch at night and over weekends. It
also generates the requirement for two detailed reports
which each terminal must forward to central dispatch each
day, either by teletype or telephone. By 8 a.m. each
working day each terminal must give central dispatch a
complete rundown on the state of its yard. The central
dispatchers on duty at that hour utilize that report to make
sure that each terminal's board accurately reflects what is
happening in that terminal at that hour. As each terminal
closes, it sends its final report to central dispatch. This is,
essentially, the same as the 8 a.m. report and is used for the
same purpose. In addition, it tells central dispatch what
loaded trailers are sitting in the yard waiting to be pulled
away by drivers who arrive during the night or over the
weekend so that central dispatch can do for the terminal
what its own line-haul dispatcher does during the day; i.e.,
dispatch the driver on the next leg of his trip. The final
report sometimes lists all trailers ready for dispatch in the
order in which they should leave the terminal. More often,
it lists only the two or three with top priority and leaves the
remainder up to the discretion of the central dispatcher on
duty when the driver calls for instructions. In addition to
these two full reports, terminals are in constant contact
with central dispatch each day, reporting when loads are
dispatched to terminals other than Kernersville and
working with central dispatch on problems such as their
needs for special equipment like refrigerated trailers or
extra equipment not immediately available from Respon-
dent's own pool. In` the latter event, they must first obtain
the permission of the central dispatcher on duty before
they can rent either trailers or tractors, for only he knows
whether other terminals have unused equipment and can
make the necessary judgment as to whether'paying rent or
driving empty miles (the term used to describe the
movement of empty trailers or bobtailed tractors) is the
more economical solution to whatever problem has arisen.
Weekends create another special situation in Respon-
dent's operations. Ideally, each terminal would have one
full trailer load of outbound' freight for each full trailer
load inbound. Then each driver who hauled a full trailer in
could drop it, hitch his tractor to another full trailer, and,
as soon as his hours permitted, haul it away without getting
paid for any waiting time . The real world, however, is
somewhat less than' ideal. When more tractors arrive at a
terminal than are required to haul outbound freight away,
the terminal is said to be overrun. The result is extra
expenses charged to the terminal's account which are an
anathema to terminal managers since their bonus depends
not only on Respondent showing a profit in its systemwide
operations but also' at their particular terminal. In the past
the overrun problem has been' especially acute in the early
days of the week because of inbound freight that arrives
while terminals are closed for the weekend. As a result a
company policy has been established that each terminal
will coordinate with central dispatch at the end of the week
as to the number of trailers which will be sent to it over the
weekend and through the following Tuesday. The terminal
manager tells central dispatch how many loads he can
efficiently receive, given the personnel he will have
available for unloading, and his needs for trailers for
outbound freight on the Monday and Tuesday upcoming.
Central dispatch pledges its best efforts to send him that
much freight and no more. From Wednesday through
Friday there is no limit on the number of trailers central
dispatch can send into any terminal. The limitations
imposed by the weekend policy, however, are not hard and
fast restrictions on central dispatch's authority. It can
overrun terminals on weekends and frequently does when
the economics of the situation dictate. An example of such
a situation is the development of loads of priority freight,
known in Respondent's parlance as RX loads, for a
terminal after the weekend deal has been made. Overrun-
ing of terminals was particularly common following the
end of the strike in August 1974 when Respondent was
struggling to get its business back to its prestrike level.
Respondent also has on duty at all times at the
Kernersville terminal an official known as a driver
supervisor. Driver supervisors are admittedly supervisors
within the meaning of the Act. Their office is in the vicinity
of central dispatch. They are supervised by Joseph Marsh,
Respondent's director of driver, personnel. Their job is to
assist Marsh in supervising over-the-road drivers. For
instance, the driver supervisor who is on duty when a
driver returns to Kernersville ; from a trip checks the
driver's trip card in order to initiate the paperwork
required to get the driver paid what he, has earned on the
trip. If necessary, driver supervisors also look at the
driver's tachograph, a device which keeps a running record
of time, speed, and other data as a truck is operated. They
also handle driver reprimands and, in their early stages,
grievances . Having a driver supervisor on duty 24 hours a
day postdates the opening of the Kernersville terminal.
Prior to March 3, 1970, driver supervisors were on duty
only during the day.
Deciding which load to pull first out'of a closed terminal,
deciding whether to permit terminals ' to rent equipment
instead ,of logging empty miles, and deciding whether to
overrun terminals are three examples of the judgments
which central dispatchers must make in their day-to-day
efforts to move freight efficiently. Each, affects the driver
involved. When a central dispatcher tells a driver who calls
from a closed terminal that he should take trailer A rather
than trailer B, he is deciding that the driver will be
compensated for the number of miles to trailer "A's
destination rather than the number of miles to trailer B's
destination. When a central dispatcher tells a terminal not
to rent the trailer it needs because , he will send it an empty
trailer from another terminal nerby, he is deciding that
the driver who pulls the empty trailer will be compensated
for the number of miles between the two terminals. When a
central dispatcher decides that a terminal, will be overrun,
he is deciding that the drivers who, exceed the terminal's
immediate need will have to be compensated for some
PILOT FREIGHT CARRIERS, INC.
waiting time before they can be dispatched again. Many
other decisions that central dispatchers make daily affect
over-the-road drivers.
If a driver is at a terminal where there is a load ready to
be hauled but the -central dispatcher knows that an RX
load will shortly be coming out of that terminal and no
other driver will be immediately available for it, he will
balance the cost of having the driver wait against the cost
of having the RX load delayed . This situation may arse as
a result of a call from a driver who has arrived at a closed
terminal or it may arise when a terminal is open and the
central dispatcher calls the terminal 's over-the -road dis-
patcher with instructions about the RX load. If the central
dispatcher elects to have the driver wait for the RX load,
the driver , if he cannot be put to bed until the RX load is
ready, will be compensated for waiting time.
An analogous situation arises when there are two drivers
available to pull a particular load. Under the first -m first-
out principle , the load belongs to driver A. Sometimes, for
economic reasons, the central dispatcher will deliberately
run around driver A and give the load to driver B. Driver
A then collects runaround pay.
Eighty-five percent of Respondent 's over-the-road dis-
patchers are terminal to terminal . On those occasions
where the dispatcher is terminal to consignee , the explana-
tion is usually that the delivery point is beyond the radius
around the nearest terminal which Respondent 's contract
with the Teamsters delineates as the local delivery area.
Occasionally , however, the delivery point is within a local
delivery area . This calls for a penalty to be paid to the
terminal 's local drivers who have lost the work. In
situations analogous to deliberate decisions to incur
runaround pay, central dispatchers sometimes decide, for
economic reasons, to order over-the-road drivers to make
deliveries to consignees within local delivery areas, the
penalty notwithstanding.
Delivering directly to consignees creates a couple of
other situations which can affect a driver's pay. Drivers
sometimes call in and report that they cannot begin
unloading immediately , either because the consignee is not
open or because the dock is blocked . The central
dispatcher then must weigh the cost of having the driver go
on waiting time for the estimated period against the cost of
having the load taken on to the nearest terminal for later
delivery . If he decides that having the driver wait is the
better choice, the driver goes on waiting time.
Except where Respondent's contract with its customer
provides otherwise, over-the-road drivers unload their
trucks at the consignee's premises. Sometimes , for various
reasons , they are reluctant to do so and call central
dispatch for permission to hire casual labor to assist them.
Once again, the central dispatcher weighs the economics of
the situation. If he grants permission , the driver decreases
his waiting time and gets back on the road that much
sooner. If the central dispatcher turns down the request,
the nondriving time' for which the driver is compensated is
extended.
Some freight, such as cigarettes, which Respondent
carries are known as security loads. Company policy is
never to leave a security load unattended . When a driver
who has arrived with a security load calls in from a closed
1037
terminal or from the premises of a closed consignee who
does his own unloading, the central dispatcher instructs
him to stay with the trailer until the terminal or the
consignee opens. The driver is compensated for waiting
time.
Drivers who are anxious to maximize their earnings will
sometimes call in while on the road and offer to give a
central dispatcher all their breaks. This is slang for
agreeing not to claim compensation for fourth and
subsequent rest periods in a particular dispatch if the
dispatcher will keep them out beyond four driving periods.
Since driving pays more than waiting and since finishing a
trip means going back to the bottom of the available
drivers' board to wait for another dispatch on the first-in
first-out principle , giving all his breaks to the dispatcher
can greatly enhance the income of a driver who is not
anxious to get home. If there are loads available which
make it to Respondent's economic advantage to keep the
driver on the road and if the central dispatcher thinks that
he can trust the driver who has made the offer, he accepts
all the driver's breaks. The driver profits accordingly.
Other decisions which central dispatchers make on a
daily basis as a result of calls from drivers affect the routes
they drive and the time they work . States limit by law the
weight which tractor-trailers can haul on their highways.
Respondent's policy is to abide by those laws. Sometimes,
however, violations are unavoidable as, for example, where
the load, such as a single piece of machinery which weighs
more than the law allows, is indivisible . Overweight loads
which originate in! Kernersville are a problem for line-haul
dispatchers . However , overweight loads which originate at
other terminals sometimes become problems for central
dispatchers. For example , a driver is told, on leaving a
foreign terminal, to,check his weight at the first fuel stop he
comes to. He does and finds he is overweight . He calls
central dispatch . The central dispatcher then instructs the
driver
,
to the extent that he is able, what deviation to make
from his assigned route to avoid known official weighing
stations.
The routes which Respondent requires its drivers to drive
on avoid, in the main , toll roads as a way of reducing
expenses . Sometimes a driver who calls central dispatch
because he has been delayed is instructed to run all toll
roads because the greater speed which can be maintained
may still permit the freight to arrive at its destination on
time. Sometimes a driver will request permission to run all
toll roads for his own purposes. Whether the central
dispatcher grants or denies his request depends, once
again, on the economic consequences to Respondent.
Drivers also sometimes ask for permission to deviate
from their assigned routes for personal reasons having
nothing to do with toll roads. Ideally , each leg of a trip
which an over-the-road driver is dispatched on can be
driven in the 10 hours which a driver can be behind the
wheel without resting . Thus, ideally, he can be, to bed
at a terminal. Terminals which have no bunkhouses have
arrangements with neighboring motels and , on jumps
which cannot be driven in 10 hours, Respondent has
arrangements with appropriately located motels along the
way where drivers are instructed to go to bed . Drivers
sometimes call into central dispatch and ask permission to
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deviate from their assigned route and/or to cut their
driving time a little short and/or to extend their rest period
a few hours so that, for example , they can spend some time
with relatives . The quid pro quo implied in these requests is
that they will be resting at a place which involves no motel
bill for Respondent and/or that they will not claim waiting
pay for the additional rest hours. Whether the central
dispatcher grants or denies permission depends, once
again , on the economics of the situation . If Respondent
saves money and if the freight will not be delayed unduly,
he frequently permits the driver to vary route and/or
schedule as the driver wishes. If, on the other hand, the
central dispatcher denies permission , the driver goes off on
a frolic of his own at his peril. The peril is real, for
deviations from his orders cannot be erased from the
tachograph which the driver turns in to the driver
supervisor at the end of his trip.
Central dispatchers have a money relationship with over-
the-road drivers which is even more immediate than the
pay 'consequences detailed above. When a driver on the
road needs cash he calls central dispatch and the
dispatcher, in appropriate circumstances , sends it to him.
Usually, this is 'accomplished by the central dispatcher
authorizing a truck stop with which Respondent has an
ongoing relationship to give cash to the driver and
reimbursing the truck stop by filling out a purchase order
form and sending it through Respondent 's bill-paying
system . On other occasions , the central dispatcher wires
money. The former system usually covers the situation
where ' a driver has run out of funds while on the road and
needs ' eating or' toll money. The latter occasionally (and
rarely) comes into play when a driver is arrested for
speeding or is caught in an overweight truck. State police
hold driver and/or truck until some arrangement is made
for paying the fine . Sometimes , apparently in locations
where Respondent has an ongoing relationship with the
police , they settle for an assurance from the central
dispatcher that the fine is on its way. The central
dispatcher then uses the purchase order technique. Some-
times the police refuse to release truck and/or driver until
they have money in hand . The central dispatcher then uses
the direct wire ' technique.
Other situations ' in which drivers are in contact with
central dispatchers do ,not involve routes, time, or the
driver's money. Drivers do not break seals on trailers
without first getting central dispatch 's permission. These
calls come in when a driver has a shifting or leaking load.
Whether the central dispatcher grants or withholds
permission depends on how serious the situation is.
Generally, he grants it since the driver on the spot is in a
better position to appreciate what has happened than a
central dispatcher at the other end of a long-distance
telephone call.
,Drivers do not extend credit to consignees without first
getting central dispatch's permission . This situation occa-
sionally arises when an over-the-road driver is delivering a
C.O.D. shipment directly to a consignee and the consignee
has no money available. The central dispatcher must then
choose between the alternatives of dropping the freight
without receiving payment or instructing the driver to
carry the freight on to the nearest terminal and let it solve
the problem.
Drivers do not cross picket lines at places where they are
supposed to make deliveries because their union contract
says they do not have to. When a central dispatcher gets a
call- from a driver in that situation , he must figure out
where to tell the driver to drop the freight.
Finally, there is the situation which arises when an over-
the-road driver refuses to carry out an order given to him
by a central dispatcher . The dispatcher is under instruc-
tions to tell the driver to catch the bus, i.e ., leave the truck
and return immediately to his domicile terminal . (In recent
years catch the bus has become catch the plane, but the
principle remains the same.) The situation does not occur
often. (It occurred more frequently prior to the current
contract with the Union than it does now when central
dispatchers ordered inbound drivers anxious to get home
to turn back up the road . The present contract , executed in
1973, provides for penalty pay in that situation .) On most
of the occasions when such a confrontation has developed
between a driver and a central dispatcher , the driver has
backed down and done what he was told. On those rare
occasions when the driver has actually caught the bus, he
has been discharged or otherwise disciplined only after an
independent investigation by the director of driver person-
nel and/or his assistants.
The above list by no means exhausts the situations in
which drivers are in contact with and receive instructions
from central dispatchers.
(2) Analysis and conclusions
Since the General Counsel has the burden of proof, he
has the unenviable task of proving a negative; i.e., that
Respondent 's,dispatchers do not meet any of the indicia of
supervisory status set forth in Section 2(11) of the Act in
their relationship with any of Respondent's employees. His
burden is the same with respect to each of the three
categories of dispatchers involved in this proceeding and
his position is, in broad outline, also the same as to each.
Reduced to the oversimplicity of one sentence , it is that
they do not possess and have not exercised any of the
powers enumerated in Section 2(11) and that the day-to-
day exercise of their duties is so routinized that it does not
rise to the level of an exercise of independent judgment.
Respondent ' s broad position is, of course, the opposite.
With respect to central dispatchers, it contends that they
supervise over-the-road drivers.
The two principal prongs of the General Counsel's
argument that dispatchers carry out only routine duties are
the fact that Respondent has laid down guidelines for
them, principally in the form of interoffice correspondence,
and, in the case of central and line -haul dispatchers, the
fact that driver supervisors are on duty 24 hours a day.
General Counsel's Exhibit 34 is a good example of
interoffice correspondence . It was directed to "Central
Dispatch" by J. M. Newell, Respondent 's then director of
central dispatch, on March 13 , 1973, with copies to J. M.
Bumgarner, vice president in charge of operations, D. E.
Ray, director of safety and security, and J. H. Marsh,
director of driver personnel. It reads:
PILOT FREIGHT CARRIERS, INC. 1039
Re: Road Driver Advances
Policy has been established not to give road drivers
advances prior to leaving Kernersville by the Driver
Supervisors. Investigation reveals drivers are'getting up
the road a few miles and calling for and getting
advances from Central Dispatch. This practice is to be
ceased immediately.
Advances are to be issued only to pay fines or in
extreme emergencies , or if a driver has been out several
days and is staying out and needs money for -tolls, etc.
All other request are to be referred to the driver
supervisor on duty.
The items of interoffice correspondence, (as well, as
similar documents such as portions of Respondent's
manual) which are in evidence vary as to the explicitness of
the policies they- lay down or the stringency with which
they indicate the various policies are to be followed. None,
however, so limits the authority of central dispatchers- in
carrying out those policies that they are ordered to deal
with every situation precisely as Respondent has instruct-
ed. The thrust of each is similar to the thrust of General
Counsel's Exhibit 34. Central dispatchers must still use
independent judgment in ,applying Respondent's overall
policies to particular situations as they arise.
The General Counsel contends that central dispatchers
do not supervise over-the-road drivers because driver
supervisors do. Since driver supervisors are always on duty,
his argument runs, any decisions of a supervisory nature
made or actions taken are the decisions or actions of the
driver supervisor and not the central dispatcher on duty at
the time. Underlying this argument is the distinction
between the central dispatcher's responsibility for the
freight to be moved and the driver supervisor's responsibil-
ity for the driver who moves it. The distinction is a valid
one. The central dispatcher's primary concern is for the
freight. The driver supervisor's primary concern is that
drivers drive right. The irreconcilable difference between
the points of, view of dispatchers who testified for the
General Counsel and those who testified for Respondent is
bottomed on this distinction. Dispatchers who saw them-
selves as employees emphasized the relationship between
themselves and the driver supervisor who worked on their
shift. The, picture they tried to paint was one of bucking
supervisory decisions to the driver supervisor and abiding
by his decision. Dispatchers, present and former, who saw
themselves as supervisors deemphasized that relationship.
Even the former, however, testified in sufficient, detail
about their roles in specific situations or incidents to place
the relationship between central dispatchers and driver
supervisors beyond dispute. Central dispatchers do, on
occasion, refer drivers' calls to driver supervisors and abide
by what they decide. But on other occasions they do not.
And the picture which emerges from the record as a whole
is one of a 'cooperative relationship between two supervi-
sors with two different responsibilities. If, on, those
occasions when they both get involved, the driver supervi-
sor's decision can be implemented without delaying the
freight or incurring undue expense, the central dispatcher
goes along with it. If not, he does not. In fact, the driver
supervisor's first loyalty is also to Respondent. Therefore,
seldom does a situation arise in which a driver supervisor
and a central dispatcher disagree as to how a driver's
request should be answered. When, for example, a driver
supervisor tells a central dispatcher to let a driver deviate
from his route so that he can visit his family, the driver
supervisor does not talk in terms of an order but in terms
of a suggestion, either explicit or implicit, that the driver
should be accommodated if it will make no difference in
delivery of the freight the driver is hauling, a subject about
which the driver supervisor has no knowledge. When the
central dispatcher, who knows about the freight, decides
that a deviation will make a difference, the answer is no.
That is the answer the driver gets, the driver supervisor's,
suggestion to the contrary notwithstanding. -
The valid distinction between the role of driver supervi-,
sors and the role of central dispatchers underlies the
General Counsel's, citation of The Baltimore Transit
Company, 92 NLRB 1260 (1951), for the proposition that
an individual is not a supervisor when he controls, the
movement of equipment and direction of personnel is only
an incidental result. In Baltimore Transit, the persons
found to be employees and not supervisors were radio
dispatchers. The Board said (at 1264):
In all these instances [of situations where the radio
dispatchers received calls about transit company
vehicles in distress and took steps to solve the
problems], it is the contention of. the Employers, the
radio dispatchers direct the activities of other personnel
by the use _ of discretionary action. We do not agree.
The record shows that the great majority of the calls
received by the radio dispatchers involve incidents for
which there is a settled and specified procedure to be
followed.
The dispatcher, in most instances, merely relays
information to a mobile supervisor who proceeds to the
location of the trouble and assumes charge. In
instances where immediate advice is required by the
operator, the dispatcher follows the routine procedure
indicated by his instructions. The evidence is conflict-
ing on the question as to whether the dispatcher, on his
own initiative, may send equipment out to replace or
supplement vehicles in regular operation. In any event,
the type of direction here supplied by the radio
dispatcher is concerned primarily with' a uipment
rather than personnel. We have previously held that
where the direction and control exerted by the
individual is over the movement of equipment and the
direction of personnel occurs only as an incidental
result, the ' statutory definition of "supervisor" does not
apply. Accordingly, we find that the-Employers' radio
dispatchers are not supervisors as defined in Section
2(11) of the amended Act, and, upon the entire record,
we find that the dispatchers have a sufficient conimuni-
ty of interest with other clerical employees to be
included in the existing bargaining unit. [Footnotes
omitted.]
The distinctions between Baltimore Transit and this
proceeding require the conclusion that Respondent's
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
central dispatchers are supervisors within the meaning of
the Act.
Since Section 2(11) is written and has been consistently
interpreted disjunctively, the last of the many authorities of
central dispatchers set forth in the section entitled "Facts"
just above is enough to support that conclusion. The
General Counsel litigated catch-the-bus situations as if
they were an exercise of a power to discharge. The
evidence in this area clearly will riot support that
conclusion because discharge or other discipline only
followed an independent investigation by higher level
supervisors. But there can be no doubt 'that central
dispatchers have, and have exercised, the- authority to
suspend drivers who have refused to follow their instruc-
tions, pending independent investigation of whether the
drivers should be discharged. The fact that the' power is
exercised infrequently does not make it any the less real.
The fact that drivers usually back down rather than have
the central dispatchers follow through with their threats to
suspend them does not' make the exercise of the power
merely sporadic. The fact that investigation by others
follows suspension does not make the suspension any less
effective when it is imposed. Authority, "in the interest of
the employer, to . . . suspend . . . other employees" is one
of the specific indicia of supervisory status set forth in
Section 2(11).
But Respondent's central dispatchers are distinguished
from The Baltimore Transit Company's radio dispatchers
in many other respects. Central dispatchers use`independ-
ent'judgment all day long in making decisions which affect
the wages, hours, and working conditions of over-the-road
drivers. Their direction of personnel is not merely
incidental to their direction of equipment. Direction of
drivers lies at the very heart, of their carrying out the jobs
they have been hired to do, overseeing the movement of
freight in the most economical manner possible. I con-
clude, therefore, on the basis of the record as a whole, that
central dispatchers also responsibly direct over-the-road
drivers within the meaning of Section 2(11).
d. ^ Line-haul dispatchers
(1) Facts
Respondent's line-haul dispatchers are responsible for
sending over-the-road drivers on their way from the
Kernersville terminal and checking them in when they
return. Four are a full complement although, at the time of
the hearing, there, were only three on the payroll. Lonnie
Booe , Respondent's supervisor of road, dispatch, was
himself pulling a full tour of duty as a dispatcher in order
to cover, the -job. (Booe's immediate supervisor is the
director of central dispatch. There is no level of supervision
between the latter and central dispatchers.) There are also
four dispatch clerks. One dispatcher and one dispatch clerk
are on duty at the same time. Their shifts are the same as
those of central dispatchers. Like central dispatch, the line-
haul dispatch office is never closed.
The dispatch procedure begins when the warehouse
finishes loading the trailer. The trailer card is placed in the
trailer backing and sent to central dispatch along with the
bills of lading for the freight on the trailer. Central dispatch
usually marks a departure time on the'card before handing
card, backing, and bills to line-haul dispatch. The time of
dispatch is based on a schedule of running times from
Kernersville to the various points to which trucks are sent
and is computed by subtracting running time from the
hour central dispatch wants the truck to reach its
destination. If central dispatch places no time of dispatch
on the card, line-haul dispatch decides what time the trailer
will be sent on its way.
In any event, card, backing, and bills go from central
dispatch to line-haul haul dispatch. Cards and backings are
placed in a rack at the dispatch clerk's desk next to various
boards which indicate the availability of drivers. One of the
dispatch clerk's principal tasks is to summon drivers to
work by telephone under the first-in first-out principle as
they rise to the top of the list so that each trailer can leave
at its appointed time. The dispatch clerk's other major task
is to prepare the driver's trip card by typing on it all the
instructions, such as where he is going, what he is to do
when he gets there, which fuel stops he is to'use, and the
like, which the driver needs for the trip he is being
dispatched on. Dispatch' clerks were originally lumped in
with dispatchers in Respondent's and the Union's dispute
over unit. However, the problem was resolved at the
hearing when all parties stipulated that dispatch clerks are
rank-and-file employees. (Dispatch clerks are hourly paid,
punch ,a timeclock, and do not participate in the bonus
plan.) '
The line-haul dispatcher's principal tasks are to get
tractors hooked up to the trailers that are ready' for
dispatch, weigh them, check the trip card prepared by the
clerk, and punch' the drivers out when driver, tractor, and
trailer are all ready to go. Punching drivers out and
manning the window are roughly synonymous phrases in
Respondent's parlance. Both simply mean that the dis-
patcher sits at a window in the line-haul dispatch office,
marks the time of departure on the' driver's trip card, and
hands him his trip card, bills of lading, and any other
material, such as interterminal correspondence or payrolls,
which he is to take with him. Punched,out, the driver leaves
Kernersville. A tractor tab is placed on the trailer card and
backing, and all three are handed back to central dispatch
to be placed in the en route line 'of the appropriate
terminal's board.
Manning the window on the one hand and manning the
telephone and the typewriter on the' other are the basic
difference between the line-haul dispatcher's and the
dispatch clerk's jobs. However, in practice, the distinction
is less than sharp, for dispatcher and clerk work as a team
in doing whatever has to be done to get the job done.
When a lot of drivers have to be rounded up at one time,
the dispatcher pitches in with the clerk to make telephone
calls. When a lot of drivers are lined up waiting for their
orders, the clerk mans another of the three windows which
open into the line-haul dispatch office and punches them
out. ' When either one is on break, the other does whatever
has Ito be done at the time.
When an inbound load of freight arrives at Kernersville,
the driver punches in at the line-haul dispatch office. He
leaves ' the bills of lading for the freight on the trailer and
any other items such as interterminal correspondence he
PILOT FREIGHT CARRIERS, INC.
may be carrying. The dispatcher (or the clerk, if he
happens to be manning the window at the time) marks the
time of arrival on the driver's trip card and returns it to
him. The driver turns it in to the driver supervisor.
Meanwhile, the dispatcher retrieves - the trailer backing
from the inbound line of the Kernersville board in the
central dispatch office, removes the tractor tab, bundles
card and backing with the bills of lading, and sends them
to the warehouse.
Yard drivers known as switchers hook up tractors to
trailers. In carrying out his responsibility to get trailers
hooked to tractors, the line-haul dispatcher determines, by
going into the yard and making a visual check, what
tractors are on the power ready line. He then decides which
tractor is to be used to haul each trailer. In making that
decision he takes into consideration such things as whether
to use single operation or double, what States the tractor
carries licenses for, the size of the tractor, and the like. He
then issues orders to switchers to hook a particular tractor
to each trailer in time for departure from Kernersville at
the hour specified by central dispatch or selected by line-
haul dispatch. Once the hookup is made, the switcher
drives across the scale just outside the'line-haul dispatch
office. Dispatcher or clerk weighs the rig, and the switcher
takes it on to the tractor-trailer ready line where the over-
the-road driver picks it up.
Switchers also work around the warehouse, backing
trailers up to the dock to be loaded and then pulling them
away. When the line-haul dispatcher has more hookups
than the switchers"assigned to that operation can handle,
he seeks help from the shift-operations supervisor who is in
charge of warehouse and dock work. If the shift-operations
supervisor cannot meet his needs by sending him switchers
from the dock area, the line-haul dispatcher seeks out over-
the-road drivers who are waiting for their names to rise to
the top of the board and who want to earn extra money by
working as switchers. Line-haul dispatchers also, on
occasion, do favors for over-the-road drivers who do not
want to be sent on the road by assigning them as extra
switchers under these circumstances. If they are not
assigned to switching work and fail to respond when called,
over-the-road drivers get a warning letter for the first
missed trip and a week's suspension for the second.
The weighing part of the hookup operation also, on
occasion, requires the line-haul dispatcher to exercise his
judgment. If a load is grossly overweight, he notifies the
warehouse and sends the trailer back to the dock to have
some freight pulled off. If the violation is not in the gross
weight but in the weight on an axle, the form in which state
laws are sometimes written, he attempts to correct the
problem by slipping the tandem, an adjustment which can
be made on some tractors and which will shift the weight of
the load. If the problem cannot be corrected and the trailer
must be dispatched in an overloaded condition, the line-
haul dispatcher faces the same problem as the central
dispatcher who receives a call from a driver who has just
left a foreign terminal and weighed his rig at a fuel stop. He
solves it in the same way, by including in the instructions
he puts on the 'over-the-road driver's trip card a route
which deviates from the one in the route book issued to
drivers in order to avoid known official scales.
1041
When an over-the-road driver rises to the top of the
board and receives a telephone " call from the line-haul
dispatch' office, he has 2 hours in which to report.
Respondent has no rule covering the situation where a
driver shows up more than 2 hours after he is called. Its
contract with the Union implies that the driver misses the
run and goes to the bottom of the board no matter how
minor his dereliction. Line-haul dispatchers exercise their
discretion. If the driver arrives within what strikes the
dispatcher as a reasonable period of time and no harm has
been done, he is permitted to take the trip. If, for instance,
the load for which he has been summoned is RX, the
period which the dispatcher deems reasonable has a,
shorter duration. The dispatcher may then assign the RX
load to the next driver on the list, assuming he has also
been summoned and has arrived at the dispatch office, and
let the late driver take the nonpriority load for which the
second driver had been called. If the result of the driver's
failure to abide by the 2-hour rule is that he has missed his
run completely, the line-haul dispatcher moves his name to
the bottom of the board and sends hun to the driver
supervisor. The penalties for missing runs are those already
noted.
The relationship between line-haul dispatchers and the
driver supervisors on their shifts is much the same as the
relationship between central dispatchers and driver super-
visors. When drivers with hours are in short supply, the
driver supervisor works with the line-haul dispatcher and
the dispatch clerk in trying °to round some up. This usually
is a matter of contacting drivers who have marked off, i.e.,
who have taken themselves off the available drivers board
pursuant to the union contract, and persuading them to
accept a run. They also cooperate when a driver shows up
for work unfit to drive. While the problem has arisen only,
rarely, Ime-haul dispatchers have the authority to, and
have, refused to dispatch drivers on the ground they appear
to be drunk. When that happens, they turn the driver over
to the driver supervisor so that he can be taken to a
hospital for a breathalyzer test.
Other ways in which line-haul dispatchers exercise, their
judgment and affect the wages,- hours, and working
conditions of over-the-road drivers are similar to central
dispatchers. They sometimes ,deliberately run around one
driver to give a particular load to another. They sometimes
order drivers to run all toll routes. They sometimes order
drivers to turn on the yard , i.e., go out again as soon as
they reach Kernersville, a situation analogous to a central
dispatcher turning an inbound driver back up the road.
They sometimes cause a driver to receive waiting pay by
not having his rig ready to go at die-hour he has been
ordered, to report. ,
(2) Analysis and conclusions
Respondent contends that line-haul dispatchers super-
vise dispatch clerks as well as over-the-road drivers. There
is no merit to the first half of this argument, at least in the
period prior to August 24, '1973. (As to effect of the
promulgation of the line-haul dispatchers' job description
on September 26, 1973, see the section entitled' "The
motive issue" below.) There is no evidence that a line-haul
dispatcher ever hired or fired a dispatch clerk or did any of
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other supervisory things enumerated in Section 2(11)
with respect to them before the dispute which underlies this
proceeding began. As to their day-to-day relationship,` the
way they work together as a team makes it more that of a
journeyman to his helper than a supervisor to an employee
under his control. (In fact, the line of progression in-the
dispatch operation is dispatch clerk to line-haul dispatcher
to central dispatcher with each move considered a
promotion.)
With respect to over-the-road drivers, however, Respon-
dent is, I think, correct. While the question is a much closer
one than in the case of the central dispatchers, I find, for,
the reasons already set forth above in their case, that lme-
haul dispatchers are supervisors within the meaning of the
Act because they have authority responsibly to direct over-
the-road drivers and their exercise of that authority is not
of a merely routine or clerical nature but requires the,use of
independent judgment. Cf. Spector Freight System, Inc.,
216 NLRB No. 89 ( 1975); see cases cited therein, especially
Quality Transport Inc., 211 NLRB 198 (1974).
-e. Local dispatchers
(1) Facts
Local dispatch at Kernersville is wholly separate from
the, integrated central and line-haul dispatch operation. It
does not function around the clock. The official of
Respondent directly over local dispatchers and local
drivers is the terminal manager. The terminal manager has
no responsibility for Kernersville's break-bulk, central
dispatch,, or line-haul dispatch operations. Respondent's
director of central dispatch, supervisor of road dispatch,
and driver supervisors have no responsibility for local
operations..
Respondent's two local dispatchers are responsible for
moving local freight, i.e., freight that must be delivered or
picked up, within a 50-mile radius of Kernersville, in and
out of the terminal . They work a 5-day week. One comes in
early in the morning, usually around 6 a.m., and leaves in
midafternoon. The other comes in midmorning and leaves
when local operations are over for the day, usually between
7 and 8 p.m.-The latter man does not always wait-for the
last local driver to check in although that is the general
pattern. They are supervised by M. Gerald Malone,
Respondent's terminal manager. Malone is supervised by
Respondent's director of transportation, the highest official
actually headquartered at Kernersville.
There are 48 local drivers. Such North Carolina cities as
Winston-Salem, Greensboro,' and High Point fall within a
circle with a 50-mile radius drawn around Kernersville.
Local drivers bid each year, by seniority, for specific areas
such as the Winston-Salem run or the Greensboro run.
Others, lower down on the seniority list and known as wild
card' drivers, bid for hours. Generally, drivers are assigned
work by local dispatchers in, the' area or,according to the
hours they have bid. `However, local dispatchers can; and
do, send area bid drivers in other directions when there is
no work in their own area and 'vary the hours of time bid
drivers, within certain limitations, if the situation requires
it.
Respondent regularly supplements- its staff of local
drivers by using casual drivers. These are divided into two
categories, preferential casuals and casual casuals or
moonlighters. The contract between Respondent and the
Union provides, generally, that its terms apply to the first
group. For example, they are called into work when and as
needed 'by seniority. Casual casuals are covered-only to the
extent that they are paid at the rate specified in the
contract. A driver is placed in either group only after he
has been cleared by, Respondent's personnel and safety
and , security departments. On any given day, local
dispatchers decide if casual drivers are needed and, if so,
how, many will be called in.,In the case, of casual casuals
they decide which men will be used, usually, although not
always, on ^the basis of the men's' familiarity with the area
in which additional help is needed. At the time of the
hearing, few casual drivers had been used since the end of
the 1974 strike because of the depressed state of Respon-
dent's business.
The labor contract also refers to peddle drivers, a
subgrouping within the local drivers category. A peddle
run is distinguished from a nonpeddle run by the distance
to the farthest outbound point. Peddle' drivers leave the
terminal with freight to be delivered. They only make
pickups on their way back. On nonpeddle runs, the local
driver delivers and picks up freight indiscriminately. He
may, in fact, leave the terminal towing an empty trailer in
order to make a pickup.
'Local dispatch begins the day with loaded trailers
containing freight to be delivered. In addition, it has orders
to pick up freight from various customers that day. The
local dispatchers punch local drivers, out, generally in the
morning, to deliver and pick up freight according to the
terms of the bid system. Drivers keep, in touch with the
terminal during, the day. Local dispatchers also instruct
them to pick up any freight which is,generated and is to be
picked up that day. Local dispatchers punch the drivers in
when they return in the evening. Since local drivers are
paid by the hour and not by the mile , all of their
compensation is computed on the basis of this, record of
the 'time they have worked. When they, return to the
terminal , local drivers turn in any ;money they have
collected to a cashier who also works in the local dispatch
office. The cashier is included in the terminal office
employees unit.
Like central and line-haul dispatchers, local dispatchers
have authority to do,; and actually do on a day-to-day
basis, various things which require the; use of independent
judgment. They authorize drivers to incur overtime pay.
Such a situation arises when a driver, calls in and reports
that carrying out his mission will keep him out beyond his
normal quitting time, for example, when a pickup which
the local dispatcher calculated would b'e made at X o'clock
cannot be made until Y o'clock. Local dispatchers
authorize drivers to take their lunchbreak,at a time before
or after the period laid down in the contract. Such a
situation arises, for example, when a'dnver wants to take
care of a personal errand on his lunchtime. Local
dispatchers authorize drivers, to hire casual labor to help
them load or unload trucks. Such a' situation can arise
either before the driver leaves the terminal or when he
PILOT FREIGHT CARRIERS, INC.
realizes that he needs help while at a customer's premises
and calls in to the office. Local dispatchers authorize
drivers to deliver C.O.D. shipments on hand receipts. Such
a situation arises when the driver calls in because a C.O.D.
consignee has no money on hand. In each of these various
situations, the answer which the local dispatcher gives to
the driver is sometimes yes, sometimes no.
Once again, the above list by no means exhausts the
situations in which drivers are in contact with and receive
instructions from local dispatchers.
(2) Analysis and conclusions
Respondent contends that local dispatchers supervise
local drivers. The General Counsel contends that the
terminal manager supervises both local drivers and local
dispatchers with no intermediate level of supervision
between him and the drivers. I think that the preponder-
ance of the evidence is so overwhelmingly on Respondent's
side that, as in the case of central dispatchers, the question
is not even close.
An inordinate amount of time was spent at the hearing
haggling over whether local dispatchers have the authority
to hire. The dispute centered around casual drivers and
casual loaders/unloaders. As to the former, the questions
put to witnesses descended almost to the semantics level. Is
a casual driver hired when he is cleared by personnel and
security and safety and his name is placed on the roster, or
is he hired when the local dispatcher actually puts him to
work? As to the latter, the questions went off in the
direction of whether the use of casual labor has become so
routinized as to remove the local dispatcher's role beyond
the realm of independent judgment. Much was made of
one situation , a cigarette manufacturer who regularly ships
its product on Respondent's trucks, where the senior driver
on the run automatically gets a helper to load each trailer
at $10 per. While the sum total of the testimony establishes
that other occasions when a driver calls in and asks if he
can hire a helper are rare, it also establishes that such
situations have, and do occur, and that, when they do, the
local dispatcher weighs the economic pros and cons before
giving the driver a yes or a no answer.
I see no necessity for deciding whether a local dispatcher
hires casual drivers and/or casual labor within the meaning
of the Act when he calls the former in to work or tells
drivers they have permission to pick up the latter. It is
sufficient for purposes of this proceeding that I find, for the
reasons set forth above, that local dispatchers have
authority responsibly to direct local drivers and their
exercise of that authority is not of a merely routine or
clerical nature but requires the use of independent
judgment.
In summary,, I find that all three categories of dispatch-
ers at Respondent's Kernersville terminal are, and always
have been, supervisors within the meaning of Section 2(11)
of the Act. Quality Transport Inc., supra Pacific Intermoun-
tain Express Company v. N.L.R.B., 412 F.2d 1 (C.A. 10,
1969); N.L.R.B. v. Gray Line Tours, Inc., 461 F.2d 763
(C.A. 9, 1972).
Having found that Respondent's dispatchers are, and
always have been, supervisors within the meaning of the
Act, I do not reach the issues posed by Respondent's
1043
contention that dispatchers are managerial employees
because they express and make operative Respondent's
decisions within the meaning of the Supreme Court's
decision in N.L.R.B. v. Bell Aerospace Co., Division of
Textron, Inc., 416 U.S. 267 (1974), that managerial
employees are "those who `formulate and effectuate
management policies by expressing and making operative
the decisions of their employer' " and/or because it would
be appropriate to exclude them from the unit "on the
ground that their participation in a labor organization
would create a conflict of interest with their job responsi-
bilities" as suggested in footnote 20 of that same opinion.
2. The motive issue
a. The fact issue
The finding that Respondent's Kernersville dispatchers
were supervisors within the meaning of the Act as of
August 24, 1973, is dispositive of this proceeding since
Respondent did not convert employees into supervisors
when it issued job descriptions to dispatchers on Septem-
ber 26, 1973, and began sending them to a supervisory
training program in February 1974. Ever mindful of the
possibility of reversal, however, I turn to two other issues
posed in this record. The second relates to the allegation
that Respondent thereby refused to bargain with Local 391
in violation of Section 8(a)(5) and is discussed below. The
first relates to the 8(a)(1) and (3) allegations and grows out
of the allegation in the complaint that Respondent issued
job descriptions and initiated training because dispatchers
"joined or assisted the Union or engaged in other union
activities or in concerted activities with other employees for
the purpose of collective bargaining or other mutual aid
and protection."
Evidence is nonexistent to counter Respondent's argu-
ment that it did what it did because of its good-faith belief
that dispatchers were supervisors and that some of them
were attempting to slough off part of the duties and
responsibilities they had always had in order to be
represented by the Teamsters. During the hearing, when I
pointed out to counsel that the case they were trying was
essentially a representation issue and would be better
disposed of on the basis of the unit clarification record
already in existence, I pointed to the motive paragraph of
the complaint as creating an issue which was getting in the
way of resolution of the real dispute between Respondent
and the Union. In these colloquies General Counsel did
not challenge the proposition that a finding of bad faith on
the part of Respondent 'was essential to an 8(a)(3) finding;
he did assert that motive was immaterial to an 8(a)(1)
finding. I disagreed with him then, and I disagree with him
now: In my opinion, Respondent can only be held to, have
interfered with, restrained, and coerced its dispatchers in
the exercise of their Section 7 rights if it acted for the
wrong motive. I know of no reason why an employer
cannot convert a category of employees from rank-and-file
to supervisory status for economic reasons as distinguished
from anti-Section 7 rights reasons. I would classify a desire
to have employees who have had less than supervisory
control over other employees in the past assume responsi-
ble direction of their work in the future as an economic
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motive. With regard to the theory advanced in the General
Counsel's brief that proof of improper motive is unneces-
sary here, a theory growing out of the law relating to
Section 8(a)(3) and discussed in the section entitled "The
legal issue" just below, it applies to 8(a)(1) as well as to
8(a)(3). Insofar as this proceeding presents the issue of
whether an illegal motive is essential to findings of
violations, 8(a)(1) and 8(a)(3) must stand or fall together.
In the colloquies during the hearing the General Counsel
pointed to little more as evidence of bad faith than the fact
that Respondent had issued job descriptions and initiated a
training program to the point where his position verged on
ipse dixit or res rpsa loquitur. Evidence of Respondent's
good faith in asserting that dispatchers were supervisors is
found in all those parts of the record which relate to the
events culminating on August 24, 1973. From the moment
Respondent became aware that the Union wanted to
include dispatchers in a terminal office employees unit, it
took the position, both with the Union and with the
dispatchers, that they were supervisors and not employees.
For example, on July 13, 1973, when office employees
walked out while dispatchers stayed in, J. M. Bumgarner,
one of Respondent's vice presidents, aware that dispatch-
ers were interested in union representation, pointed out to
those who happened to be on duty that they were ineligible
because they were supervisors. The General Counsel
argued that all the events which took place after August 24,
1973, are evidence of bad faith because Respondent
engaged in bootstrapping; i.e., it did the things it did in an
effort to create evidence in its favor for the upcoming unit
clarification hearing. Generally, any events in the post-
August 24 period have no weight as evidence because they
are equally compatible with the finding that, even if
Respondent was wrong about the dispatchers as of August
24, it was merely continuing to press that position in good
faith after. The only portion of the record relating to events
after August 24, 1973, which is arguably different involves
the authority of line-haul dispatchers.
The job description issued to line-haul dispatchers on
September 26, 1973, states that they have supervisory
authority over dispatch clerks. I have found that, as of
August 24, 1973, line-haul dispatchers did not supervise
dispatch clerks. On Thursday, September 13, 1973, when
line-haul dispatcher Larry Evans was on duty with
dispatch clerk Jack Ray, supervisor of road dispatch,
Lonnie Booe,' telephoned Evans and asked him how things
were going. Evans complained that Ray's work was
inadequate. A week later, on the morning of September 20,
as Evans was getting off work, Booe took Evans to a
conference with then director of central dispatch, Julius M.
Newell. Ray's ability to do the job was discussed. Evans
was asked for his opinion. He said something should be
done to straighten Ray out. There is no evidence that Booe
or Newell made any further investigation of Ray's ability
to do the job. Sometime after the conference, Booe told
Evans to discharge Ray on the morning of Sunday,
September 23, 1973. (The discharge was put off for a day
or two to ensure that there would be a dispatch clerk on
duty on Saturday night.) Evans did so. In this incident,
Evans effectively recommended the discharge of Ray.
It is possible to argue that Respondent staged the
discharge of Ray as a bootstrapping effort to create
evidence for the unit clarification proceeding. However,
the facts are equally compatible with the finding that
Respondent entertained a good-faith belief that its line-
haul dispatchers had supervisory authority over its dis-
patch clerks, consulted with Evans and acted on his
recommendation in good faith after he raised the subject of
Ray's inadequacy, and listed various supervisory authori-
ties over dispatch clerks in the job description it issued a
few days later in good faith. I know of no reason why an
employer cannot give a journeyman supervisory authority
over his helper or a leadman supervisory authority over the
employees under him so long as its motive for raising the
journeyman or the leadman from employee to supervisor is
not illegal. The effect of issuing job descriptions on
September 26, 1973, was to confer on line-haul dispatchers
supervisory authority over dispatch clerks. I find, therefore,
that line-haul dispatchers now supervise both over-the-
road drivers and dispatch clerks.
Because there is no evidence to justify a contrary finding,
I further find that Respondent acted at all times in the
good-faith belief that its Kernersville dispatchers were
supervisors within the meaning of Section 2(11) of the Act.
b. The legal issue
I assume from the General Counsel's brief that he has
abandoned the position that Respondent acted in bad
faith. The only apposite cases he cites in support of the
proposition that Section 8(a)(1) and (3) was violated by
activities of Respondent that grew out of its position in the
unit dispute are Benson Wholesale Company, Inc., 164
NLRB 536 (1967), and N.L.R.B. v. Great Dane Trailers,
Inc., 388 U.S. 26 (1967). In Benson the employer ostensibly
promoted five employees to supervisory status as a
subterfuge "having for its purpose the suppression of union
activity by those known union adherents." This was found
to be an independent violation of Section 8(a)(1) in a
context of illegal discharges for union activity and an
illegal refusal to bargain. Clearly, with respect to the
question alluded to above of whether illegal motive is an
essential ingredient of an 8(a)(1) violation in this proceed-
ing that would not be derivative of its 8(a)(3) aspects,
Benson stands for the proposition that it is. Equally clearly,
the job descriptions which Respondent issued were not a
subterfuge in the sense that Respondent did not mean
them accurately to reflect the duties and responsibilities it
wanted its dispatchers to have as of September 26, 1973.
The General Counsel places his sole reliance on Great
Dane, supra, arguing that there
the Supreme Court shed further light on the factors
necessary to establish a Section 8(a)(3) violation. After
stating that "the statutory language `discrimination .. .
to . . . discourage' means that the finding of a violation
normally depends on whether the discriminatory
conduct was motivated by an anti-union purpose," the
Court proceeded to set forth and explain the elements
and burdens of proof involved in two different
situations: (1) where the employer conduct involved
falls within "an inherently destructive" category in
PILOT FREIGHT CARRIERS, INC. 1045
which "the employer has the burden of explaining
away, justifying, or characterizing `has actions as
something different than they appear on their face' and
if he fails, an unfair labor practice charge is made out;"
(2) "on the other hand, when `the resulting harm to
employee rights is comparatively slight, and a substan-
tial and legitimate business end is served, the employ-
er's conduct 43 prima facie lawful,' and an affirmative
showing of improper motivation must be made. Thus,
in either situation, once it has been proved that the
employer engaged in discriminatory conduct which
could have adversely affected employer rights to some
extent, the burden is upon the employer to establish
that he was motivated by a legitimate objective since
proof of motivation is most accessible to him." Counsel
for the General Counsel submits that applying the
foregoing principles to the instant case the Employer's
conduct here, i.e., the conversion or attempted conver-
sion of these dispatchers to supervisors, as discussed
above in violation of Section 8(a)(1), and as discussed
below in violation of Section 8(a)(5), is inherently
destructive of significant employee rights and thus
within (1) above.
Even if this proceeding falls in Great Dane's first
category, a proposition about which I have reservations,
Respondent has met the burden imposed upon it. My
finding of fact that, even if mistaken, Respondent acted at
all times in the good-faith belief that its dispatchers had
always been supervisors is not based on the General
Counsel's failure to prove an illegal motive. Rather, it is
based on Respondent's showing that it was motivated by
that belief and no other. I find, therefore, that, even if
Respondent and I are mistaken about the status of its
dispatchers as of August 24, 1973, there has been no
violation of Section 8(a)(1) and (3) of the Act because
Respondent's motive for issuing job descriptions on
September 26, 1973, and initiating a training program in
February' 1974 was not to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights or to
discriminate against them in order to encourage or
discourage union membership.
3. The duty to bargain issue
The dispute over the applicability of the Freedom of
Information Act referred to in the section above entitled
"The Due Process Issues" arose because the General
Counsel refused to make intraagency correspondence
available to Respondent. Respondent argued that it was
entitled to such material because General Counsel had not
indicated in his pleading or in information made available
to Respondent the theory on which it contended a duty to
bargain had arisen. As the General Counsel conceded
during the hearing, this is not a Gissel case (N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969)), or a Snow &
Sons case (Fred Snow, Harold Snow and Tom Snow d/b/a
Snow & Sons, 134 NLRB 709 (1961), enfd. 308 F.2d 687
(C.A. 9, 1962)), or a Board certification case. It is most
emphatically not a voluntary recognition case, for the
question of whether dispatchers were in or out of the unit
as to which Respondent did grant voluntary recognition on
August 24, 1973, was the very issue as to which Respon-
dent reserved its right to a Board determination in the
settlement it entered into that day. As a practical matter,
the procedural dispute has been rendered moot by the
passage of time. As the General Counsel's brief reveals, he
has no special theory.
Omitting the discussion of the cases clearly inapposite,
because they involve situations in which there is no
question but that a duty to bargain has arisen, cited by the
General Counsel, his 8(a)(5) argument runs:
The underlying premises to an 8(a)(5) duty to
bargain over the change in status of dispatchers are:
that the Employer had knowledge of the dispatchers'
majority status (14 of 19 cards) after the card check on
August 28, 1973 and that the issuance of the job
description on September 26 and 27 did, in fact,
accepting the Employer's theory, change the dispatch-
ers to supervisors. The Board law in this area involves
changes in production or distribution methods or
reorganization of personnel for economically justified
reasons. The Employer here could not set forth the
economic justifications in that it elected to proceed on
the contention that the dispatchers had always been
supervisors and the issuance of the job description was
merely a codification of their duties.
As noted earlier, Counsel for the General Counsel
submits that the duty to bargain with respect to
changes in the dispatchers' duties arose with the
recognition agreement of August 24, wherein the
Employer recognized the union as bargaining agent for
a unit of office clerical employees, including, if
employees, the dispatchers here in dispute. The mere
reservation of a right to litigate the status of employees
asserting a right to be represented, does not permit the
Employer to then unilaterally change these contested
employees' titles and duties so as to exclude them from
the unit. This is analagous to-a case where the employer
may challenge certain voters presenting themselves at
the polls as supervisors. Assuming their votes are not
determinative, a Board certification would issue in the
unit. If the parties could not resolve the dispute as to
the inclusion of these disputed employees in the unit,
the matter could be resolved by way of a unit
clarification proceeding, or in the event of unilateral
changes in these employees' duties by way of the unfair
labor practice route....
The Employer has here attempted to deprive a
significant number of employees in the bargaining unit
which it recognized on August 28, of their Section 7
rights.
"The mere reservation of a right to litigate the status of
employees asserting a right to be represented, does not
permit the Employer to then unilaterally change these
contested employees' titles and duties so as to exclude
them from the unit" is, once again, an ipse dixit argument.
This situation is, indeed, analogous to a Board election
where the challenged ballots of employees whose inclusion
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the unit is a matter of dispute are determinative. It is
even more analogous to a Board election in which the
inclusion of specific categories of employees is settled
before the employees even go to the polls. In both of those
cases, the employer is under no duty to bargain at all,
much less under a duty to bargain about the disputed
employees, before the unit questions have been resolved.
Here, by entering into an agreement with the Union on
August 24, 1973, to recognize all employees except the
dispatchers and thereafter bargaining in good faith to a
contract with the Union about all terminal office employ-
ees save only the disputed dispatchers, Respondent gave
more than the Act would have required. Until the issue of
whether dispatchers were supervisors or employees on
August 24 is resolved, no duty to bargain about them can
be imposed on Respondent. That issue had not been
resolved on September 26, 1973, or in February 1974 when
the events took place on which the General Counsel
predicates a duty to bargain. It had not been resolved on
April 22, 1974, when the General Counsel, by issuing the
initial consolidated complaint in Cases 1l-CA-5506 and
11-CA-5642, first gave Respondent official notice that it
claimed such a duty to bargain had arisen. It is not
resolved by the decision in this proceeding. Absent an
agreement between Respondent and the Union to be
bound by results of this proceeding, it will only be resolved
when a final decision issues in Case 11-UC-15. I find,
therefore, that, even if I am wrong about the supervisory
and the motive issues, there has been no violation of
Section 8(a)(5) of the Act because Respondent was under
no duty to bargain over the wages, hours, and conditions of
employment of its dispatchers on September 26, 1973, or in
February 1974.
4. The independent 8(a)(1) allegations
Julius M. Newell succeeded Sidney Elms as Respon-
dent's director of central dispatch only to be succeeded in
turn by Elms. Elms returned to Kernersville sometime
between the discharge of Jack Ray in September 1973 and
April 1974. (By the time of the hearing, he was gone again,
replaced by Joe Scott.) The context of conversations in
April which are alleged as independent violations of
Section 8(a)(1) on the theory they constitute interrogation,
threats, and solicitation of employees to withdraw their
support from the Union makes it clear that his return was
closer to the spring of 1974 than the late summer of 1973.
The testimony of General Counsel's witnesses as to each of
these conversations is uncontroverted. The theme that runs
through each is that the schisms which had developed
among the dispatchers and the gulf which had opened
between dispatchers and Respondent as a result of the unit
issue could easily be healed and the friendly working
conditions of yore could easily be restored if only the
dispatchers would forget about the Union.
Maurice Chamblee, a central dispatcher, testified that
Elms took him into his office, closed the door, and said
He wanted to know if things had improved since he
came back to Kernersvillee, He said he knew that we
were working under hardships, he could tell by talking
to us on the phone from Charlotte. He said that was
one of the reasons that he came back to Kernersville.
He felt it was his duty to the Company.
He wanted to know was there any way he could
negotiate our problems, that he would go to higher
personnel and try to work it out. And I told him that all
of us Dispatchers had talked it over and decided that
we would take the position that we started.
Q. What position was this, if you said?
A. Stay with the Union activities.
Q. What, if anything, did Mr. Elms say?
A. After I told him that we just went to general
conversation then.
John Blaylock, another central dispatcher, testified Elms
took him into the driver supervisor's office and said
"I guess you are wondering what this is all about,"
and I said, "Yes, sir, I sure do."
And he said, "I guess you know, I haven't talked to
you boys on this union situation since it started; I
haven't said anything at all about it."
And I said, "Yes, sir, not to me you haven't."
And he said, "Well, just what do you think about
it?" He said, "What do you think about this situation?"
And he just bluntly hit me with that.
And I said, "Mr. Elms, to tell you the truth, I hadn't
thought that much about it."
And he come back, he said, "Well, I sure would like
to see this mess over with and done away with once and
for all." He said, "I am sure it would take a whole lot of
stress and strain off of everybody, won't it?"
And I said, "I am sure it would too, Mr. Elms, I am
sure it would."
And he said, "we can settle back down in here." He
said, "we are one little happy family." He said, "I think
we can work our problems out between ourselves." He
said one way that I think you all can get rid of this
thing," which was referring to the union situation,
which we were involved in the organization at that
time.
He said, "That is, all you boys in Central Dispatch
can sign a letter and send it to the union to just
withdraw this case, to just drop it"; and he says, "as I
stated before, it will take a whole lot of stress and strain
off of everybody."
"Now," he said, "don't worry"; he said, "I don't
hold no grudges toward none of you." He said, "I have
got no spite, no grudge toward any of you, don't get
worried about nobody getting run off or fired."
He said, "as far as I am concerned, that is not going
to happen; ain't nobody going to [get] run off or fired."
And I said, "Well, Mr. Elms, I can't talk for the
whole group."
I said, "this is a group thing. Everybody is in it
together, we have got to work together."
And I said, "you know, in running freight, you have
got to get along together, everybody, and to give service
on this freight, which is our job, service and coordinate
freight."
PILOT FREIGHT CARRIERS, INC.
And he said, "that's true," but he"said, "I ain't going
to make no answer." He said, "I am starting tonight."
He said, "I just started tonight, I talked to Richie a
while ago"; and he said, "I am going to talk to each
and every one of you."
He said, "you all bounce the ball around and talk it
over." He said, "what we are saying now is between me
and you." He said, "there is one thing I am going to tell
each and every one of you though, just one thing I am
going to tell all of you, and that is, if you all have got
problems, if you all want to work out problems; if you
have got problems you all want to work out; or if you
all want to go see Mr. Sharp," who is the President and
owner of Pilot Freight, he said, "if you want to go see
him, you all just let me know and get together. I will
personally make you an appointment and take you
over there." He said, "I am going to tell each and every
one of you that."
I said, "as I stated before, Mr. Elms, I think that we
should all bounce the ball and talk it over because we
have all got to work as a group, and I can't talk for the
group" and so that was about the extent of the
conversation.
Grady Kaiser, a line-haul dispatcher, testified he was in
Elms' office and
Well, the only thing he mentioned to me was that he
wanted to get the situation with the union straightened
out and that he would like to see all of us forget about
the union activities and everything be back to normal
like it was at one time.
Q. What, if anything, did you say to him?
A. I told him that I was going to stick with the
majority, whatever they would say.
Q. Do you recall anything else from that conversa-
tion?
A. No, it was, he didn't; there was no threats; it
was just a quiet meeting.
Oscar Hill, a dispatch clerk, testified Elms took him into
his office and
Well, we had just some general small talk. He
wanted to know how I felt, and so on, and then he
asked me would I be interested in just forgetting about
the union and getting everything back in the office like
it used to be.
Q. All right, did you make any reply to that?
A. Yes, sir, I told him that I didn't know; I said
.,we went an awful long ways here, we had probably
gone too far to do anything like that."
Q. And what, if anything, did Mr. Elms say?
i In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
1047
A. Well, he said "we had not, and that if we
wanted to drop the union, that we should not have any
fear of being fired or discharged, or any disciplinary
action taken against us.
Q. Do you recall anything else from that conversa-
tion?
A. I told him I would go along with anything the
majority of the dispatchers wanted, and he said that he
would get back with me at a later date, and find out my
decision, and told me to discuss it with the other
dispatchers.
The only one of these individuals who was not a
supervisor at the time Elms talked to him was Hill. Thus, it
is the only conversation that could be violative of the Act.
Even if it were, it would be an isolated incident and thus
would not be coercive. I find, therefore, that Respondent
did not violate Section 8(a)(1) of the Act when Elms talked
to employees in April 1974.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Pilot Freight Carriers, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Chauffeurs, Teamsters and Helpers Local Union No.
391, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. The allegations of the complaint that Respondent
violated Section 8(a)(1), (3), and (5) of the Act by issuing
job descriptions to its dispatchers on September 26, 1973,
and by initiating a supervisory training program for them
in February 1974 have not been sustained.
4. The allegations of the complaint that Respondent
interrogated and threatened employees and requested and
directed them to withdraw their union authorization cards,
abandon the Union, and deal directly with management,
all in violation of Section 8(a)(1) of the Act, when Sidney
Elms talked to employees on various dates in April 1974
have not been sustained.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER1
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.