Spector Freight System, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1963

141 N.L.R.B. 1110 (N.L.R.B. 1963)

1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In short, it would seem that the Board's action in now specifically
overruling the Ballantine case, supra, and other similar decisions in-
volving branch operations in the brewing industry,26 is based solely
on the Union's extent of organization. This approach is not sanc-
tioned by the statute?'
Accordingly, as I would find that a unit consisting of the branch
salesmen at the Employer's 12 branches constitutes the narrowest ap-
propriate unit, I would dismiss the petitions herein.
2" See cases cited in footnote 24, supra.
Section 9( c) specifically prohibits the Board from giving "controlling" weight to the
extent of organization in determining whether a unit is appropriate.
My colleagues refer to the rule that employees who might otherwise constitute an appro-
priate plant unit may be so integrated into a more comprehensive grouping as to destroy
the appropriateness of the plant unit. They then equate the branch units here to single-
plant units, and find the requisite degree of integration lacking. I do not agree that the
Employer' s branches are equivalent to single plants But even if they were, my colleagues'
failure to find the rule controlling in the instant case, in spite of the extent to which the
Employer's branch operations have been integrated , causes me to question whether the
rule has any real meaning.
illy colleagues also assert that the Board's prior determination involving the Employer
impeded the employees ' exercise of their rights under the Act. But the Ballantiae case,
soopra, like the others which are now being overruled , was decided not for the purpose of
impeding the organization of employees , but rather to establish a realistic bargaining unit
which can be administered without unduly disrupting , or doing violence to, Ballantine's
operations Moreover , I note that my colleagues , to show "the adverse impact on organi-
zational development" of the Ballantine case, supra, point to the fact that no labor
organization has petitioned for a companywide unit of Ballantine 's branch salesmen since
1958. Do my colleagues also deprecate the Board 's traditional production and mainte-
nance unit rule as unduly impeding the organization of the myriad number of unorganized
plants in this country as to which petitions have never been filed?
Spector Freight System , Inc. and Thomas Joseph Ferro. Case
No. 13-CA-4632. April 5, 1963
DECISION AND ORDER
On August 27,1962, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the alleged unfair labor practices and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Intermediate Report. Thereafter, the Charging
Party filed exceptions to the Intermediate Report and a brief in sup-
port thereof, and moved for a new hearing. The General Counsel
and the Respondent filed no exceptions.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings, except as noted herein, are hereby affirmed. The Board has
considered the Intermediate Report, the Charging Party's exceptions
and brief, and the entire record in this case, and hereby adopts the
findings, conclusions , and recommendations of the Trial Examiner.
The Charging Party's motion for a new hearing is denied.
141 NLRB No. 86.
SPECTOR FREIGHT SYSTEM, INC. 1111
In his exceptions and brief the Charging Party contends that the
Trial Examiner, in violation of the Board's Rules and Regulations and
due process of law, denied or unduly restricted the right of its counsel
to fully participate in the examination and cross-examination of wit-
nesses, and thereby made it impossible for its counsel to develop a
record in addition to that made by the General Counsel. Accordingly,
the Charging Party requests that the case by remanded for a new
hearing.
Section 102.8 of the Board's Rules and Regulations, Series 8, as
amended, provides that "any person filing a charge" is a "party"
within the meaning thereof, and Section 102.38 of the same Rules
confers upon "any party" to the proceeding :
... the right to appear at such hearing in person, by counsel,
or by other representative, to call, examine, and cross-examine wit-
nesses, and to introduce into the record documentary or other
evidence, except that the participation of any party shall be
limited to the extent permitted by the Trial Examiner. .. .
[Emphasis supplied.]
Although under Section 102.38 the Charging Party is entitled to
participate in the examination and cross-examination of witnesses,
the section does not confer upon the Charging Party the right to en-
gage in unrestricted examination, even though the matters have been
exhaustively covered by the General Counsel in his examination.
Rather, we believe, the extent of the Charging Party's participation in
the examination and cross-examination of witnesses and the presenta-
tion of evidence, under the Board's Rules and Regulations, is com-
mitted to the sound discretion of the Trial Examiner, reviewable only
for abuse of discretion.' Section 102.38 specifically states that "the
participation of any party [in the hearing] shall be limited to the
extent permitted by the Trial Examiner." Section 102.35 of the Board's
Rules, which confers upon Trial Examiners a. broad power "to regu-
late the course of the hearing," further reaffirms this conclusion.
Indeed, these provisions are but counterparts of the provisions found
in the Administrative Procedure Act 2 designed to expedite administra-
tive proceedings without impairing the right of the parties to partici-
pate in such proceedings. Section 7(b) of the Administrative Proce-
dure Act specifies, among the powers of the hearing officer, the authority
"to regulate the course of the hearing." Section 7(c) of the Admin-
istrative Procedure Act requires that "every agency shall as a matter
of policy provide for the exclusion of irrelevant, immaterial, or un-
duly repetitious evidence."
I To the extent that International Brotherhood of Boilermakers, etc. (Richfield Oil Cor-
poration ), 95 NLRB 1191, and John L. Clemmey Company, Inc., 118 NLRB 599 , are in-
consistent with this rule, they are hereby overruled
Attorney General's Manual on the Administrative Procedure Act, 1947.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have carefully examined the rulings made by the Trial Examiner
at the hearing and find that the rulings set forth below were un-
reasonable limitations on the Charging Party's right to participate
in the examination of witnesses :
(a) The rulings denying the Charging Party's request for examina-
tion on direct or redirect solely on the ground that the witness had
been already examined on the subject by the General Counsel.
(b) Rulings denying the request for examination of the witness on
matters not covered by the General Counsel, except through the Gen-
eral Counsel.
(c) Rulings denying the request for an examination on matters
not covered by the General Counsel, where the General Counsel had
refused the Charging Party's request, or did not choose , to conduct
the examination on such matters.
(d) Rulings denying the request for examination on redirect on
matters developed during the cross-examination of the witness, where
the General Counsel had refused to examine the witness on such
matters.
The Charging Party is entitled to participate in the examination
of witnesses subject, as indicated above, to the Trial Examiner's dis-
cretion to exclude matters which are irrelevant , immaterial, or unduly
repetitious . The mere fact that the witness had been already examined
by the General Counsel on the subject does not necessarily preclude
the Charging Party's examination . Nor does Section 102.38 require
examination by the Charging Party through the General Counsel.
As any other party it is entitled to examine witnesses through its own
counsel . For the same reason , the denial of a request to examine on
matters not covered by the General Counsel on direct or on matters
developed during the cross-examination only because the General
Counsel has refused to examine the witness on such matters, without
more, constitutes an erroneous limitation on the Charging Party's
participation in the examination of witnesses.
Whether the rulings are prejudicial: The Charging Party contends
that it was denied due process of law because its participation in the
examination and cross -examination of witnesses was unduly restricted,
and that as a result thereof it became impossible for it to develop a
record in addition to that developed by the General Counsel. Accord-
ingly, the Charging Party argues, the only real remedy would be for
the Board to remand the case for a new hearing . While we agree that
the Trial Examiner committed error, we do not believe that a reversal
is appropriate in the circumstances of this case. Under Rule 61 of the
Federal Rules of Civil Procedure, "no error or defect in any ruling
or order of the court is ground for a new trial . . . . unless refusal
to take such action appears to the court inconsistent with substantial
SPECTOR FREIGHT SYSTEM, INC. 1113
justice." 3 The Charging Party, therefore, must show that the Trial
Examiner's rulings denying its request for examination of witnesses
or rejecting its offers of proof were not only erroneous but also prej-
udicial to its substantive rights.'
In this proceeding, the counsel for the Charging Party made offers
of proof on only two occasions, after he had been denied permission
to examine a particular witness. We do not know, therefore, what
evidence the Charging Party intended to elicit from these witnesses.
In the first instance, he offered to prove through the business repre-
sentative for Local 710, Janapoulos, that during the bargaining nego-
tiations for the February 1, 1961, contract with Local 710, the Respond-
ent's representatives never "questioned the supervisory status of [city]
dispatchers." On the second occasion, he offered to prove through the
organizer for Local 710, Senese, that the Respondent hired an agent
to check on violations by city drivers while making deliveries and
pickups, and that reports on such violations are sent to Operations
Manager Pecora directly, bypassing city dispatchers, and that city
dispatchers do not participate in disciplinary action against drivers
based on these reports. As for the first offer of proof, the Respondent's
failure to raise the issue as to the supervisory status of city dispatchers
very likely stems from Respondent's reasonable belief that that issue
had been settled once and for all in 1959 when the Respondent refused
to bring the city dispatchers under the contract then in force. Under
the circumstances, it was up to the Union rather than the Respond-
ent, to raise this issue. As for the second offer of proof, the Trial
Examiner, on substantial evidence, found that city dispatchers had
authority to discipline city drivers in various ways; by reprimanding
and warning city drivers for their delays in executing their assign-
ments, by assigning to them "difficult" loads, which involve no over-
time, by bringing a driver in early which "hurt him in his pocketbook,"
and even by discharging a driver outright if he refused to take out a
load without a valid cause. Although Operations Manager Pecora
had apparently broader disciplinary powers over city drivers than city
dispatchers did, this evidence does not detract from the Trial Exami-
ner's finding that city dispatchers had certain disciplinary authority
and were supervisors. We conclude that our disposition of the case
,'Rule 61 of the FRCP in full reads as follows:
No error in either admission or the exclusion of evidence and no error or defect in
any ruling or order or in anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting aside a verdict or for
vacating, modifying , or otherwise disturbing a judgment or order, unless refusal to
take such action appears to the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect substantial rights of the parties
4 Crown Corrugated Container, Inc., 123 NLRB 318, where the Board held that the
error in refusing to allow evidence to impeach a witness or to receive an offer of proof
was not so prejudicial as to warrant either a remand of the proceeding , or a hearing
de novo.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be unchanged, even accepting as true these matters which the
Charging Party sought to adduce.
The record further shows that the Trial Examiner denied the
Charging Party's request for redirect examination of City Dispatcher
Kunka with respect to the following matters touched upon in his
cross-examination: (a) The circumstances under which the Respond-
ent's counsel obtained from Kunka on April 5, 1962, his unsworn pre-
hearing statement concerning the charges and whether all of Kunka's
answers to the questions were included in that statement; (b) if
Kunka knew of the average seniority or years of service of city drivers
he normally dispatches; (c) if there are mandatory calls to be made
by drivers during the day; and (d) the number of calls he, personally,
and the dispatchers' office, handle each day. As all these matters were
touched on during Kunka's cross-examination, they were proper sub-
jects for redirect examination. Nevertheless, since the evidence which
the Charging Party sought to elicit from the witness would have been
either of slight, if any, materiality or, admittedly, cumulative, we find
that its admission would not have altered our disposition of the case.
Nor did the Charging Party in its exceptions and brief particularize
the evidence which it expects to adduce at the new hearing. Its sole
grievance is, that were it permitted an unrestricted examination of
witnesses, there would have been developed a different record. This
is not enough. For example, we have denied a petition for a new hear-
ing because it failed to particularize the materiality of the evidence
and the issues to which it related, or to show what evidence the Peti-
tioner proposed to introduce at the new hearing.-' We believe that
similar considerations warrant denial of further hearing in this case.
We have carefully examined the record and find that all the issues
in the case, including the supervisory status of city dispatchers, were
fully explored at the hearing in some 1,000 pages of testimony. Eight
witnesses testified for the General Counsel and eight for the Respond-
ent. All five dispatchers called by the General Counsel testified fully
with respect to their duties, responsibilities, and their employment
status, the principal and underlying issue in the case. Head City Dis-
patcher Ferro, the Charging Party, testified in support of the allega-
tion of the complaint that the city dispatchers were nonsupervisory
employees and that his discharge was discriminatory. His testimony
was spread over 120 pages of the record. Counsel for the Charging
Party was permitted to examine Ferro on redirect with respect to
matters touched on in his cross-examination. He was also permitted
to examine on redirect witnesses Bourke, Morman, and Senese, and
to cross-examine seven of the Respondent's eight witnesses. Alto-
gether, the Charging Party's examination and cross-examination of
c Julian Aluminum Foundry Company , 120 NLRB 1319. See also B V D Company,
Inc, 117 NLRB 1455, 1458.
SPECTOR FREIGHT SYSTEM, INC. 1115
witnesses cover some 85 pages of the record. In addition, the Charg-
ing Party was permitted to interpose objections, make offers of proof,
argue its position, and submit a brief to the Trial Examiner. The
Charging Party alleges no bias or prejudice on the part of the Trial
Examiner.
Upon the entire record, we conclude that the Charging Party has
failed to show that the Trial Examiner's rulings restricting its partic-
ipation in the examination of witnesses resulted in prejudice to its
substantial rights.
[The Board dismissed the complaint.]
CFIAIRMAN MCCULLOCH and MEMBER RODGERS took no part in the
consideration of the above Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This issues in this case are whether Spector Freight System, Inc. (herein called
the Respondent), has (1) interrogated employees about their membership in, and
activities on behalf of, Local 710, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (herein called the Union), and threat-
ened them with reprisals and refused to grant them pay increases because of such
membership and activities, and (2) discharged an alleged employee because of such
activity, in violation of Sections 8(a)(1) and (3) and 2(6) and (7) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act).
The issues arise on a complaint issued February 20, 1962, by the General Counsel
of the National Labor Relations Board,' and an answer of Respondent denying
the commission of any unfair labor practices
A hearing on the issues was held before Trial Examiner Eugene F Frey at Chicago,
Illinois, on various dates between April 17 and May 3, 1962, in which all parties
participated through counsel and were given full opportunity to be heard, to
examine and cross-examine witnesses, to present pertinent evidence, to make oral
argument, and to file written briefs All parties waived oral argument, but General
Counsel and Respondent have filed written briefs which have been carefully con-
sidered by the Trial Examiner. Respondent's motions during the hearing to dismiss
the complaint on the merits were taken under advisement, and are now disposed of
by the findings and conclusions in this report. Motions filed by General Counsel and
Respondent since the close of the hearing to correct the transcript of the record have
been considered and granted, and the transcript is hereby corrected accordingly;
the motion of General Counsel is admitted in the record as General Counsel's Exhibit
No. 11, and Respondents' motion is admitted as Respondent's Exhibit No. 42.
Upon the entire record in the case, and from my observation of witnesses on the
stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Missouri corporation which maintains a terminal and place of
business in Chicago , Illinois , where it is engaged in the business of transportation
of freight by truck. During 1961 , in the course of its business operations , Respondent
derived revenue in excess of $100 ,000 from transportation of freight from Illinois
to other States , and vice versa, and between States other than Illinois. Respondent
admits, and I find on these facts, that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of Section 2(5) of the Act.
1 The complaint was based on a charge filed January 5, 1962, by Thomas Joseph Ferro,
an individual.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background facts
The facts and issues arise from the conduct of Respondent toward six employees,
known as city dispatchers ,2 at its Chicago terminal, after they signed cards on
April 25, 1961, authorizing the Union to represent them in collective bargaining
and authorizing Respondent to check off their dues to the Union 3 The officials of
Respondent involved in this conduct were Edward Latimer , regional vice president
in charge of the Chicago terminal , Edward R. Pecora , operations manager at that
terminal during 1961 and up to February 1962 , when he succeeded Latimer as termi-
nal manager , and Charles Gorecki , assistant operations manager under Pecora. As
Respondent contends that the city dispatchers were supervisors and not employees
entitled to the protection of the Act , at the times material herein , this issue will be
decided first.
1. The status of the city dispatchers 4
During 1961 , Respondent employed the six city dispatchers named above to
handle the daily dispatching of about 140 to 150 city drivers for the pickup and
delivery of all freight coming into or out of Chicago within a 50-mile radius.
One of the dispatchers was at all times designated as "head city dispatcher" or
"acting head city dispatcher ." 5 Operating in a room known as the city dispatch
office, these dispatchers daily assigned loads to city drivers under procedures detailed
below . The dispatchers were responsible to Terminal Manager Pecora and his
assistant , Gorecki, whose authority during 1961 and early 1962 covered the complete
cartage, dock , and road operations at Chicago , involving about 450 employees. In
addition to the dispatchers , one or two pickup clerks, a record clerk, and a cashier work
in the dispatch office 6
It is the general duty of the city dispatchers to arrange all pickups and deliveries
of all freight coming into or out of Chicago and its immediate suburbs promptly and
at the lowest possible cost consistent with efficient service, by using the minimum
number of drivers with the least possible use of overtime . In performing these duties,
the dispatchers control the city drivers in all phases of their work 7 Aside from the
routine daily dispatch of 25 to 40 drivers who are assigned to regular suburban runs,8
dispatchers assign drivers to all city and certain extra surburban runs by taking into
consideration the weight of the load and whether particular tractors or trucks are
licensed to handle it, the destination of the load and number of loads awaiting pickup
in that area , the driver 's familiarity with that area, and his general ability to make
deliveries quickly and efficiently without running into overtime pay; 9 the latter two
factors are relatively more important in achieving the basic goal of maximum possible
delivery of tonnage per day per driver, which directly affects the daily and weekly
2 Thomas Joseph Ferro, Leon Battalini, Eugene Bourke , Irwin Punka, Albert Morman,
and Ignatius Vitale.
s Since February 1957 , Respondent has had successive collective -bargaining agreements
with the Union recognizing it as the exclusive bargaining representative of its highway
drivers, helpers, meat drivers, and office and miscellaneous terminal employees
a The facts in this section are based on credited and mutually corroborative testimony
of Pecora, Gorecki, the six city dispatchers named above , and Anthony Jonatta, a city
driver of long experience and the union steward who has long handled affairs of those
drivers under the Union's contract with Respondent
5 Some witnesses called the head dispatcher "city driver foreman" and the five other city
dispatchers "assistant city driver foreman ," but their description as "foreman" is of
little consequence in determining their status under settled Board law.
8 The pickup clerics take telephone calls , like dispatchers , from customers requesting
pickup of freight , and turn the data over to a dispatcher who assigns a driver to make the
pickup , pickup clerks make no actual assignments except in rare instances The clerks
and cashier are hourly paid employees represented by the Union under its contract with
Respondent aforesaid
4 During 1961 , Respondent used a daily average of about 90 city drivers to handle
"volume" or large truckloads, and about 60 to handle "LTL ," or less-than -truckload
shipments At least one city dispatcher was assigned daily to handle drivers in each
category at the same time
8 In Its business , Respondent has divided Chicago and its outlying suburban areas into
geographical areas , or "runs," to which one or more tractors or trucks are assigned each
day, depending upon the number of deliveries and pickups in each area
9 Dispatchers soon learn , and during 1961 knew , the relative ability of city drivers to
complete assignments quickly.
SPECTOR FREIGHT SYSTEM, INC. 1117
cartage costs of Respondent. After the initial morning assignments, the dispatchers
assign loads to be picked up during the day, called "pickups," to drivers as they call
in periodically to report their location and progress or completion of deliveries to
In assigning pickups, dispatchers have substantial discretion. While they normally
assign a pickup to a driver already in that area, if he still has deliveries to make,
and no other driver is available in that area, they may assign the pickup to a driver
from another area, or to one from a regular run, whichever is most available. At
times, they may find it necessary to assign an "LTL" driver to pick up a "volume"
load, and vice versa.ii Thus, in order to clean up all loads possible during the day
and use drivers economically and efficiently, dispatchers on their own initiative
often transfer drivers from one route to another, one area to another, or between
volume and LTL work, the overall objective being to place drivers in the place where
most needed and where they feel the drivers can do the best job.
In handling pickups, dispatchers must use their judgment in determining the time
of pickup. Aside from pickups on regular suburban runs which are mostly guaranteed
overtime runs because of the distance involved, dispatchers decide whether to handle
pickups the same day, with possible overtime cost, or hold them over for handling
without overtime the next day; the decision involves the same consideration of the
weight, nature, and location of the pickup, the load situation of the driver calling in,
his ability to handle the type of pickup involved, and in addition, the number of
loads waiting at terminal for delivery, the need for trailers with loads at the dock for
unloading, the time when the pickup was called in, the value of the customer to
Respondent in terms of volume of business; 12 on "late pickups" (usually called in
after 2 p in ), these factors, particularly the nature of the customer, become important
in deciding whether to handle the load that day or the next. If the dispatcher decides
to handle it the same day, he must use his judgment to choose the driver already
in the area, or another closest to point of pickup, as well as a fast worker, in order to
keep the amount of overtime as low as possible. In handling certain deliveries or
pickups, the dispatcher may in his judgment authorize a driver to work during part
of his lunch period, for which he is paid "lunch overtime" upon direct authority of the
dispatcher.13 In addition, when a driver calls in for assistance in unloading his truck,
dispatchers often exercise discretionary authority to help him by permitting him to
hire casual labor off the street, if they cannot locate another driver nearby to help him,
or it appears that authorizing him to work "lunch overtime" will not suffice. The
proper and efficient handling of pickups is vital to Respondent's operations, because
at least 75 percent of the pickups handled daily call for same-day service, which very
often involves overtime work
During 1961 the economic layoff and recall of city drivers was normally handled
by Head Dispatcher Ferro, or by Pecora with Ferro's recommendations,14 but when
drivers called in sick, or requested permission to leave early for personal reasons, the
dispatcher had authority to recall a replacement driver for the sick man, and had
discretion to tell the driver asking time off to postpone it to the next day, or bring him
in early from his run, depending upon the load situation On Saturdays. the
assistant city dispatcher on duty had full authority to recall drivers on his own
10 Drivers are required to call the city dispatch office for orders at least three tines
during the course of the day, and at the completion of their run, as well as any time they
are delayed by breakdowns or other cause.
11 The dispatchers work together to shift one or more drivers from one category to
handle overloads of pickups in the other, which occurs several times a week. In the
process, they may also shift a driver from a "straight" truck (handling LTL) to a tractor
used for "volume" hauls, if he is capable of handling both types Particular drivers may
be chosen or ruled out for a particular load, depending on whether their tractor or truck
can handle the weight. whether they are skilled in handling the type of cargo involved,
and whether or not they know the area of the pickup
"Customers which give Respondent a large and steady amount of business, called
"A-accounts," usually got inimedia,te, or same-day, service, regardles sof overtime costs,
as a matter of business policy In general, dispatchers are required to exercise their
judgment to get the oldest loads, as well as the "hot" (sane-day-delivery) loads out of
the terminal first
"The existence of this authority, and the importance of proper exercise of it by dis-
patchers, was highlighted in 1961 by the fact that at one point, when the amount of
such overtime rose substantially, Pecora Issued orders to the city dispatchers through
Head Dispatcher Ferro to cut down on lunch overtime, and at one period in the sunnier
Pecora ordered that dispatchers get approval of Ferro in each instance befoic authoiiz-
ing it
11 This will be discussed in detail in considering Ferro's status.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
initiative, and regularly exercised it, when an unexpected increase of Saturday business
required it, or drivers scheduled to report failed to show up. In like manner, if the
Saturday work fell below expectations, that dispatcher had authority to send drivers
on duty home at noon, so that they would receive only their guaranteed 4 hours
of Saturday work, and no overtime work.15
During 1961 the dispatchers had standing orders to bring at least 15 drivers with
pickups back to the terminal by 5 p.m. daily, so that the night-shift dockmen would
have plenty of work. To comply with this order, dispatchers had to exercise judgment
in picking the drivers to come in early; they could bring in a particularly driver
before 5 p m. in order to avoid paying him overtime. They usually chose "volume"
drivers whose deliveries would be made in time for an early return or various LIL
drivers whose runs were short. They would avoid bringing back a driver who was
delivering in a distant area. However, they often called in drivers before 5 p.m
to avoid paying them overtime, as a disciplinary action.
Dispatchers had authority to discipline drivers in various ways. In trying to keep
down costs of operation, they constantly observed the length of time a driver took
to complete an assignment. If he took an excessive amount of time, or failed to
return to the terminal by a specific time as ordered, the dispatcher would ask him the
reason for the delay, and if his excuse did not appear valid, they would verbally
reprimand him and warn him against repetition. Besides "bawling out" drivers
for other omissions or poor performance, they also disciplined them by giving
them loads difficult to handle, runs which involved no overtime, or would bring
them in early regardless of the amount of pickups; the latter measures were most
effective because they "hurt him in his pocketbook." If a driver refused to take out
a load without valid cause, the dispatcher had authority to discharge him outright is
In contrast, dispatchers have authority on their own initiative to reward efficient
drivers, and at times those in financial straits, by assigning them to runs or pickups
involving overtime, provided the assignment does not violate company policy on
costs.
City dispatchers have authority to handle and settle most grievances of city drivers
involving their working conditions. On complaints such as unfair assignments of
overtime work, assignments to bad loads or poor trailers, failure to observe the
Union "first-in-first-out" rule in assignments, or failure of the dispatcher to recall a
driver according to seniority, the driver makes his complaint to the union steward
who discusses it directly with the dispatcher controlling that driver, in an effort to
settle the grievance at that level. If the claim is valid and involves payment of wages,
the dispatcher approves it on his own initiative. If it cannot be settled there, or
if the grievance recurs due to failure of the dispatcher to abide by the settlement, the
steward then takes it to Pecora for settlement.i7
It is clear from the above facts, that, in performing the above duties and exercising
the above authorities, the city dispatchers are required to use their ingenuity and
independent judgment, based on their know-how and experience, in controlling and
"juggling" city drivers in all aspects of their work, to carry out the basic transporta-
tion operations and policy of Respondent stated above, and that the city drivers have
always considered the dispatchers as their supervisors in this respect.18
In their own status and relationship to Respondent, as contrasted with other em-
ployees, city dispatchers have other attributes of supervisory status They are paid
weekly salaries, ranging from $140 to $165, regardless of hours worked.19 Like
other supervisors, and in contrast to the hourly pay of drivers, their salary is nor-
During most of 1961, the five assistant city dispatchers rotated on it full Saturday
shift, operating under standing orders to clean up all deliveries so that none would b(',
left for Monday, and especially to make sure that all loads scheduled for rail transporta-
tion were delivered that day at the rail terminal.
'- This was pursuant to a custom well-known in the transportation industry and recog-
nized by Respondent and the Union to the effect that when a driver refuses an assignment
for a reason other than safety or violation of governmental regulations, he is considered
to have quit his job.
17 The Union takes grievances directly to Pecora only where they involve discharge or
suspension for misconduct, or discrimination against a city driver by preferential use of
a driver or employee from another division in the terminal In the latter case Pecora
settles it and authorizes payment, only because the action complained of was taken by
employees other than city dispatchers.
is Close control of drivers by dispatchers is also enhanced by the fact that the city
drivers' room is adjacent to the city dispatch office and the docks where city trucks and
trailers are parked, loaded, and unloaded
19 The maximum pay for assistant city dispatchers was $210 a week
SPECTOR FREIGHT SYSTEM, INC. 1119
mally kept at least 10 percent higher than the gross weekly pay of city drivers.
They receive fringe benefits, such as special retirement and sick leave plans, which
are afforded other supervisors and management officials of Respondent, but are
different from those given to hourly paid workers. They participate in a profit-
sharing plan, and get severance pay on discharge, neither of which are given to
hourly paid workers. During 1960 and 1961, city dispatchers were invited to, and
attended, regular yearly management meetings for supervisors, at which company
policies and methods of improving service, operations, and cutting costs were dis-
cussed, and also attended many informal supervisors' meetings called weekly and
at times daily by Pecora to discuss operations. During early 1959, the three
dispatchers then employed (Ferro, Kunka, and Vitale) attended and completed
a training course conducted by Respondent for supervisors and trainees for such
positions.
I find on all of the above facts that during 1961, 1962, and at all times material
herein, the city dispatchers have had and exercised authority, in the interest of their
employer, to hire, transfer, layoff, recall, discharge, assign, reward, and discipline
employees, and to adjust their grievances, and responsibly to direct them, to the
extent found above, that their exercise of such authority required the use of in-
dependent judgment, and that said dispatchers were supervisors within the meaning
of Section 2(11) of the Act.20
2. The status and discharge of Ferro
Ferro came to work for Respondent in 1957 as an assistant city dispatcher When
Respondent merged with Steffke, another motor carrier, late in 1960, Bourke (a
former Steffke dispatcher) was made head city dispatcher. Pecora came to Re-
spondent during the merger as operations manager at Chicago, and found operations
in confusion and costs running high. After observing Bourke's supervision of the
city dispatch operation for a few months, Pecora demoted Bourke to assistant city
dispatcher about November 26, 1960, because, although he was a willing and hard
worker as a dispatcher, he could not handle the control responsibilities of head
dispatcher so as to keep costs down. On November 28, 1960, Pecora offered the
job to Ferro, explaining the duties and emphasizing the objective of giving the best
service at the lowest cost, by using drivers efficiently with the least possible use of
overtime. He said that Ferro would get $175 a week ($15 over his former pay
of $160) and would work on a trial basis for 90 days, during which Ferro could
return to his old job if he desired or Pecora could return him to it, if he felt Ferro
was not doing well, and that after the 90-day period Ferro would be "on his own."
Ferro accepted and was given the job under these conditions in December 1960.21
From the beginning, Ferro's basic responsibility was overall supervision and con-
trol of the city dispatch office, to make sure that all city cartage operations were
promptly and efficiently handled by the dispatchers. As part of his duties, Ferro
visited the terminal garage at the outset each day to examine vehicles out of service
for repair, ascertain and expedite the progress of repairs, arrange to shift early re-
i The fact that the dispatchers did not exercise other normal supervisory powers, such
as actual hiring and firing of drivers, and leasing of special equipment as needed from
outside sources, does not detract from their supervisory status, because it is well settled
that the existence and exercise of any one or more of the functions outlined in the Act is
sufficient to make an employee a supervisor. Further, the fact that at times during 1961
Terminal Manager Pecora and his assistant, Gorecki, were compelled to inject themselves
into the dispatcher operation from time to time to overrule dispatchers' actions or omis-
sions which were increasing costs, by issuing special layoff and recall orders at times, as
well as orders to handle specific loads for valued customers or in special situations, for
the purpose of increasing efficiency and coordinating the city dispatch and other terminal
operations, does not detract from the dispatchers' supervisory status The same is true
of the facts that some of their actions were routine, such as assignment of loads in certain
areas to drivers regularly assigned to those areas, making assignments at times on the
basis of the "first-in-first-out" rule, assignment of loads on the basis of a drivers' eye-
sight, the weight which a tractor can handle, and hiring of outside labor to unload toxic
materials of a few customers pursuant to a practice agreed upon with the Union in
the past.
=i Pecora and Ferro agree on the basic terms of the employment, except that Ferro does
not mention a 90-day tryout period, indicating that their agreement was that he could
return to his old job at any time. I accept Pecora's version of the agreement, because it
seems unlikely that Pecora would want a temporary, or "acting," head dispatcher for an
indefinite period, but was rather looking for a man who could fill the job on a permanent
basis
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porting drivers to other loads if their assigned trailers would take long to repair,
expedite repairs on some to avoid having their drivers sit idle or work overtime due
to a late start on their runs , and shifting loads held up by repair work to drivers
reporting later in the day. In expediting repairs, Ferro had authority to order
drivers to take trailers out without repair, if the defect reported by the driver did
not render the vehicle unsafe to operate. He could also have repair jobs handled
out of normal order to insure that particular "hot" loads went out on time.
From the garage , Ferro stopped at Pecora 's office to pick up mail and special orders
regarding handling of specific loads and other aspects of city dispatch operations,
and then went to the city dispatch office where he put the special orders into opera-
tion by posting them or giving directions to the assistant dispatchers . He then
assisted them in handling telephone calls from customers , and assigning loads to
drivers as they reported in on the telephone . In this respect, he exercised all the
supervisory functions of the assistant city dispatchers found above . Ferro also
had authority to lay-off and recall drivers depending on fluctuations of business
during the day, and the shapeup of business for the next day. Normally, he con-
sulted in the late afternoon with the assistant dispatchers about their driver needs
for the next day, after he had received data from Pecora or Gorecki on the number
of loads for delivery that day, the number held over for the morrow , and the number
of loads expected to arrive during the night. In the early months of his regime,
Ferro alone made the decisions on layoff and recall of drivers , though at times, as
at Christmas 1960 (usually a slack season ), he made a large layoff only after consul-
tation with Pecora, who would give advice based largely on Ferro 's prior experience
as a dispatcher with Respondent and his knowledge of seasonal fluctuations (which
Pecora did not know since he was new on Respondent 's staff ). During much of
1961, Ferro made the decisions on his own , particularly a layoff of vacation replace-
ment drivers during September 1961 ; only occasionally he would seek consultation
and advice from Pecora before taking action . As time went on, however, he sought
Pecora's advice more and more frequently before making layoffs. Pecora would
usually give advice, but only after getting all the facts from Ferro . In addition,
whenever Pecora noticed that cartage costs were rising, he would more frequently
give Ferro specific orders for layoff or recall of drivers , or bringing groups of drivers
in from runs early, in efforts to keep down the costs . Even in such cases, how-
ever, Pecora would often defer to Ferro's objection and postpone layoffs for a day
or so. During the normal slack season of December 1961 , when Ferro failed to make
any substantial layoffs, Pecora overruled him, and directed him to lay off 36 drivers
on successive weekends ; when Ferro protested that this was hard on the men at that
season, Pecora reminded him that at times a supervisor had to make such decisions
to protect the employer . 22 These facts convince me that layoff and recall authority
resided in Ferro during his incumbency ; his failure to use it properly, and gradual
relinquishment of it , did not make him any the less a supervisor under the act,23
but is pertinent only on the reason for his discharge.
Ferro also had and exercised authority to make, and effectively to recommend,
changes in dispatchers ' and drivers ' working conditions . When Respondent in 1961
disposed of 15 "straight" trucks and tractors , Ferro in conjunction with the union
steward of the city drivers reassigned drivers to other vehicles in accordance with
their driving abilities , without prior consultation with management . When Pecora
decided early in 1961 to reduce the city dispatcher staff by one man, he laid off
the dispatcher recommended by Ferro. During the 1961 vacation period, Pecora
approved Ferro's choice of a city driver as temporary assistant dispatcher , and when
the same driver returned from an illness in the fall , but was still unable to drive,
Pecora approved Ferro's temporary transfer of him to the job of pickup clerk in the
city dispatch office. Whenever the amount of LTL or volume freight to be handled
23 ily findings as to the authority and practice on layoffs and recalls is based on credited
testimony of Pecora and Vitale, and I do not credit conflicting testimony of Ferro which
would indicate that Pecora kept that function entirely in his hands by giving daily and
detailed orders about layoff and recall of drivers, for it is inconceivable to me that, in the
light of his other broad responsibilities involving operations of the dock, road dispatch,
and other divisions in the vast terminal operation, which he handled from an office about
two city blocks removed from the city dispatch office, Pecora would raetin to himself the
single daily decision on fluctuations in the city driver force, which was one of the duties
for which the head city dispatcher was paid, and which could best be handled by him
and his assistants , who were constantly in touch with that operation during the day, in
contrast to Pecora 's comparatively infrequent and only momentary observations of that
operation.
23 Leonard Niederritei Company, Inc, 130 NLRB 113, 115
SPECTOR FREIGHT SYSTEM, INC. 1121
became too large, Ferro would shift LTL and volume dispatchers from one category
to another to handle the overload, without prior clearance with Pecora.
In the matter of discipline, Ferro was, in December 1960, assigned the duty of
meting out discipline, including issuance of warning letters, directly to city drivers,
at the same time that the duty was placed on all other supervisors. Ferro asked
Pecora to relieve him of that duty, and to issue warning letters himself, because
Ferro was new on the job and did not like drivers to get the idea he was trying to
"browbeat" them. Pecora acquiesced and, during Ferro's incumbency as head dis-
patcher, issued and signed warning letters, and also imposed other discipline on the
advice and recommendation of Ferro, in most instances without independent investi-
gation of the facts. In cases involving violation of safety or traffic regulations, Re-
spondent's safety director issued warning letters on Ferro's recommendation. This
was a departure from Respondent's normal disciplinary practices, for when Kunka
was head city dispatcher from 1954 to 1960, he disciplined drivers himself, both by
discharge, warning letters, and other methods, and Head Dispatcher Bernard Rago,
who succeeded Ferro, has issued warning letters from the beginning. The variance
from the practice for Ferro's benefit emphasizes that the disciplinary authority was
a normal attribute of the job of head city dispatcher, and that Ferro had that authority
at the outset
Ferro also handled and settled certain grievances of city drivers regarding favori-
tism by dispatchers in handing out overtime loads, and other problems, without any
recource to Pecora other than advising him of the settlement and securing his pro
forma approval after the fact.
Ferro clearly recognized that he had a vital responsibility as head city dispatcher
for the efficient operation of the city dispatchers in their handling of city drivers,
and had a duty to see that they used all measures to keep down the city cartage
costs. During the early part of 1961 he made various recommendations to Pecora
about the dispatch, layoff, and recall of drivers. In the summer of 1961, he recom-
mended that Respondent discontinue daily pickup stops at customers who did not
give Respondent business at least 3 days a week. After making a statistical check
on those customers, Pecora adopted the recommendation and put it through channels
for adoption.24 In October, on recommendation of Ferro, Pecora made a change
in the method of handling small LTL loads at the dock for the purpose of quicker un-
loading of trucks, less idle time for their drivers, and having more trailers available
for loading by the night shift.
Finally, the record shows that the assistant city dispatchers regarded Ferro as their
supervisor in charge of the whole city dispatch operation, and obeyed his decision
and orders. In the spring of 1961, they agreed to his determination that, as their
supervisor, he was working long hours and thus entitled to drop out of the rotation
of Saturday work among the six dispatchers, and thereafter only the five assistants
rotated in that work, with Ferro visiting the office only occasionally on Saturdays to
observe the operation. Pecora approved the arrangement after learning that the
six agreed on it. When Ferro was available, the assistants usually secured his ap-
proval before denying overtime runs to a driver or transferring him as a disciplinary
measure. After Ferro and the city driver steward worked out the agreement for use
of outside labor in unloading toxic materials for certain customers, Ferro announced
the arrangement to the dispatchers and put it into effect.
As to the overall scope of Ferro's authority, it is significant that Dispatcher Kunka,
who had been head dispatcher for 5 years up to 1960, admits he gave up the job be-
cause of the multitude of responsibilities involved, and that he considered the re-
sponsibilities of Ferro's job to be greater than when he held the position. Moreover,
it is noteworthy that when Kunka was head dispatcher in 1959, the Union did not
include him in its attempt to have the assistant city dispatchers (then three in
number) included in the bargaining unit covered by its contract. That dispute was
decided against the Union in December 1959, by a joint State and local committee
created under the grievance procedure of the contract, and its decision was final and
binding on the parties. It should also be noted that, before Ferro was discharged,
Dispatcher Vitale told Pecora he would like to be considered for the job if it ever
became vacant, because of his ownership of stock and other obligations of Re-
spondent. Although Vitale turned it down after Ferro's discharge for personal rea-
sons, his original desire for it indicates that he at least considered it a desirable
position above that of assistant city dispatcher.
24 Due to a contemporaneous change in its top management , the sales department of
Respondent never implemented the recommendation , but this does not detract from the
fact that Ferro had authority effectively to recommend changes in the city dispatch opera-
tion, and that Pecora recognized it.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In summary , I am satisfied and find on the entire recorde that, as head city
dispatcher , Ferro had and exercised all the supervisory authority vested in the as-
sistant city dispatchers , plus the additional supervisory authority outlined above,
and that he was a supervisor within the meaning of the Act.
General Counsel contends that Ferro was discharged for his union adherence and
activities , but if Ferro was a supervisor when he engaged in such activities on behalf
of an employees ' union , and when he was discharged therefor , it seems well settled
that his activities were not protected by the Act , and his discharge did not violate
Section 8 (a) (3) or ( 1) of the Act 25
Even if the record showed that Ferro was in a nonsupervisory status when he
joined the Union or at his discharge , I would still be impelled to conclude from the
preponderance of credible and substantial evidence in the entire record that he was
discharged because he failed to perform satisfactorily as head city dispatcher. I
have already found that neither Ferro nor Pecora terminated his appointment during
the 90-day tryout period . He was thereafter a permanent incumbent as head city
dispatcher and "on his own, " which meant he was subject to discharge at any time
for cause . At the time of his appointment , Respondent had budgeted its city cartage
operation for 1961 at 0 231 or 231,4 cents per hundredweight , and Ferro knew that
he was responisble for keeping the city cartage operation as close to that figure as
possible. During his first month in the job, cartage costs were high at first but
trended downward , which Pecora considered satisfactory for a new man breaking
in on the job; in this period and up to June, Ferro carried on his overall duties without
more than occasional consultation with Pecora , and costs continued to drop, although
not as low as the budget figure. When Pecora noticed that costs began to rise from
June onward , he had weekly talks with Ferro about it, suggesting that he keep
closer check on use of drivers and the amount of work they did. Pecora also
noticed that in periods when Ferro was on vacation , and the assistant dispatchers
cleared all layoffs and recalls and other steps in driver control with Pecora , weekly
costs dropped to around 27 cents per hundredweight , which was appreciably lower
than the figure when Ferro was on hand . From August onward, costs rose and
remained high , particularly overtime costs, which suggested lack of close control
and efficient use of drivers . This was unusual because the fall season is a busy
one in which costs normally drop with efficient operation . Hence, Pecora frequently
talked to Ferro on this point , and at the same time would often direct Ferro to make
layoffs on specific days and call drivers in early. At the same time , Ferro began
to seek advice from Pecora and Gorecki about layoffs , recalls, and availability of
equipment , and other matters more frequently , and while Pecora usually gave ad-
vice willingly , he always reminded Ferro that he had the data to make these de-
cisions, which was his duty , and that Pecora was too far from the operation and the
facts to do so. Pecora also had to warn Ferro about his failure to get enough LTL
pickups into the dock by 5 p.m. for night unloading , to the extent that in October
he issued a standing order that at least 15 pickups should be in by 5 p .m. daily. In
November and December , Ferro had reached the point of getting Pecora's advice on
layoffs two or three times a week, before taking action 26 Ferro admitted that:
As early as March 1961 , he knew the city dispatch operation was not running properly,
and costs were rising too high , that in July the assistant operations manager in
charge of night work told him the city dispatchers were not doing a good job in
holding costs down, and that four of the dispatchers should be replaced, and that
for this reason Ferro tried in March, July , and October to give up his job. Pecora's
only response appears to have been continued efforts to encourage and assist Ferro
to exercise closer driver control in order to reduce costs . However, Ferro's ad-
mission is significant because it is supported by Vitale's own appraisal of the opera-
tion of the dispatch office: Vitale told Pecora in December 1961 , that he would
like to be considered for the job of head dispatcher if it became vacant , as he was a
stockholder of Respondent and desired to "protect my interests ," adding that he
could see money "being thrown out the window back there."
25 Gabbs Automatic Division , Pierce Industries , Inc , 129 NLRB 196, 198 ; Leonard
Niederriter Company, Inc, supra.
20 This was in effect a relinquishment of the duty of layoff and recall: a decision on lay-
off was not necessary on Monday or Tuesday , as the terminal had enough freight piled up
on the weekend to keep a full force of drivers busy both days . However , decisions were
necessary Tuesday , Wednesday , and Thursday nights. If men were not laid off on the
basis of work on hand and coming in, the effect would appear to Pecora in the day's cost
figures showing LTL costs far higher than the budget figure.
SPECTOR FREIGHT SYSTEM, INC. 1123
In the fall of 1961, Ferro began to spend part of his time after the morning visit
to the garage, in daily conversations with employees in the accounting room near
Pecora's office, particularly with Josephine Cook, assistant steward of the Union.
This became noticeable to Pecora, Gorecki, and even higher company officials who
commented on it. His absences came at times when the dispatch office was loaded
with early telephone calls. The assistant dispatchers complained to Ferro and
criticized him for being absent when they needed help most. Gorecki often had to
advise him about the telephones ringing in the dispatch office when he saw him talking
in the accounting room. These complaints became so frequent that Pecora called a
meeting of the city dispatchers on October 7, 1961, at which the complaints were
discussed, and Pecora finally made an arrangement to assign other employees to
assist the dispatchers in handling telephone calls. However, Ferro continued his
conversations with the clerical personnel, despite continued hints from Gorecki that
he was needed in the dispatch office, until Pecora had to warn him privately against
the practice several times between October and December; Ferro's only defense was
that he had a right to talk to his friends, such as Stewards Senese and Cook. Pecora
reminded him that during his absences he was not only not doing his own job, but
keeping others from doing theirs.27
In the first 3 weeks of December 1961, city cartage costs were quite high, fluctuat-
ing between 28 and 33 cents. On successive weekends in this period, Pecora di-
rected Ferro to lay off 36 drivers, after Ferro had failed to take that action in the slack
season. While Ferro was on vacation between Decmber 23, 1961, and January 2,
1962, and Pecora was handling layoffs with the guidance of the assistant dispatchers,
the costs dropped to 0.275. This was the final circumstance that caused Pecora to
decide to discharge Ferro.
On January 4, 1962, Pecora called Ferro in and said he had to let him go, because
city dispatch costs were still far over the budget, and that he had repeatedly talked
to Ferro about it and about his frequent absences from the dispatch office Ferro
asked if he could return to his old job as an assistant at his former salary, as had
been done for Bourke and Kunka. Pecora said he did not want Ferro as an assistant
because he felt that if he could not do a job costwise as head dispatcher, he could
not do any better as an assistant, since all dispatchers had the same responsibility to
cut down costs.28 He also reminded Ferro that under the hiring agreement Ferro
was "on his own" after 90 days. Ferro charged that the discharge decision was not
made by Pecora, but by others based on the fact that he signed a union card. Pecora
denied this, saying the decision was his alone, because he was responsible for the
cartage and dock operations and the costs thereof, that his decision had nothing to do
with the union cards, because after the Union had dropped its unfair labor practice
charge, Respondent still considered the dispatchers as supervisors, that "ended it"
as far as Pecora was concerned.29 Ferro then asked for his severance and vacation
pay, and Pecora arranged to have checks prepared covering his regular salary to
date, plus 3 weeks' severance pay (as against the usual 2 weeks) and vacation pay.
Pecora testified that he discharged Ferro because he had lost interest in his job,
and had failed to control the operation so as to keep down the costs, despite numerous
admonitions and advice on that subject. The facts found above showing Ferro's per-
formance in the job are based on credited testimony of Pecora, Gorecki, and various
city dispatchers, and are corroborated by admissions of Ferro, and constitute sub-
stantial support for Pecora's contention.
General Counsel relies on a variety of circumstances to show that Respondent had
a union animus against the dispatchers ever since they signed the union cards,
and that Ferro's discharge was part of its retaliation against them for that conduct
He cites proof that Ferro had long been friendly with Union Steward Senese and
27 Ferro testified that these visits to Cook , who was also manager of the employees'
credit union, were on credit union business for himself and the other dispatchers, but I do
not believe this, for he did not give this explanation to Pecora or Gorecki when criticized
about it, and further his story is not supported by testimony of Cook or the other dis-
patchers, and it is inconceivable that he had to visit her on credit union business almost
daily.
28 It is significant that Respondent considered two former head dispatchers valuable
enough to retain them as assistants: Kunka was kept on after he voluntarily gave up
the job, and Bourke was demoted , not discharged , when lie failed to handle the -top job
satisfactorily.
29 The facts regarding the unfair labor practice charge are discussed hereafter
708-006-64-vol. 141-42
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assistant Steward Cook, and openly consorted with them at the terminal at lunch
time and other times, that Assistant Operations Manager Gorecki often noticed the
association , and often commented on it to both Senese and Ferro by sarcastic and
disparaging references to the Union and Ferro 's association with union agents, that
Ferro openly campaigned at the terminal for Senese as a union officer prior to a union
election in December 1961, that shortly after the dispatchers signed cards Vice
President Latimer openly showed concern about their affiliation with the Union when
he questioned Ferro about the reason therefor and then told Ferro Respondent would
"fight it," that just before Christmas 1961, Pecora told Ferro he was satisfactory in
his job and should not worry about it, and that after Ferro's discharge Security
Officer Rago told him he was fired because he consorted with union people and
"leaned toward unionization ." However, these factors lose controlling significance
in the light of the following circumstances:
(1) The record shows a long course of apparent amicable collective bargaining
by Respondent with the Union and other locals of the Teamsters at the Chicago
terminal under successive contracts 30 In 1959, the Union in an orderly manner
tried to bring the assistant city dispatchers under its office workers' contract with
Respondent, by resort to the grievance procedure of that contract, and lost. Ferro was
one of the assistant dispatchers involved and testified in the case for the Union.
Notwithstanding that prounion activity and his long and open association with union
officials, Pecora chose Ferro as head dispatcher , partly on the basis of his long ex-
perience as assistant dispatcher and partly on the recommendation of Steward Jon-
natta. Late in 1960, Respondent had raised Ferro's salary as assistant dispatcher from
$140 to $160. These actions denote the direct antithesis of resentment toward Ferro
for his union sympathies.
(2) Respondent learned about the dispatchers' union affiliation about May 10,
1961 , when Steward Senese brought the dispatchers ' authorization cards to Pecora,
who at once gave them to Vice President Latimer. About the same time, the Union
formally advised Respondent that it represented the dispatchers and desired to apply
the terms of its current contract to them. Shortly after, Latimer called Ferro to
his office, and asked why he, a supervisor, would want to sign a union card. He
emphasized that Ferro had a right to do so, but still wanted to know why a super-
visor would join a union. Ferro replied that it was for job security, and that he
was saying this for all the city dispatchers. Latimer asked if he did not feel that he
had security as long as he was "doing a job," and Ferro repeated the same reason, say-
ing he had seen many employees laid off recently. Latimer asked what Ferro was
earning Ferro replied, $175 a week. Latimer said Respondent would not mind
paying Ferro as high as $250 for doing a good job.31 Latimer tried to get Respondent's
president on the telephone, but could not, and then told Ferro that "you signed the
card, but we are going to fight it." About May 24, Latimer familiarized himself
with the circumstances of the 1959 dispute with the Union over the assistant city
dispatchers. In late May and on June 3, Latimer had conferences with the Union's
business agent and Steward Senese, at which the Union repeated its demand for plac-
ing the city dispatchers under the contract. In discussion of the salary and other
working conditions of the dispatchers, the Union claimed they wanted full rights
under the contract, with their present salary "compressed" into a 40-hour week, and
an hourly rate established for them on that basis. Latimer finally refused the demand,
claiming they were supervisors On the basis of that refusal, the Union filed a charge
with the Board on June 12, 1961, alleging that Respondent refused to bargain with
it in violation of Section 8(a) (5). On June 23, Respondent advised the Board that it
considered the dispatchers supervisors , and that the current contract recognized that
position . On or about August 4, the Union withdrew its charge. About a week
later, Ferro commented to Pecora that the city dispatchers should probably look for
other jobs, "now that the case has been dropped " Pecora asked if anyone from
Respondent had ever threatened him because of the case, and Ferro admitted no
one had, saying he was "only kidding about it " Pecora suggested that they all forget
about the Union and the cards, get back to work and cut the costs down, and every-
body would be happy. I find nothing illegal in Latimer's interrogation of Ferro, a
supervisor, about the reason for the dispatchers' affiliation with the Union. Nor was
his statement that Respondent "would fight it" a violation of the Act because it was
so During 1961, Union Steward Jonnatta of Local 705 representing the city drivers
al\\ ays succeeded in settling grievances with Respondent without being compelled to call
upon his business agent for assistance.
31 Respondent had fixed $245 as top pay for head city dispatcher
SPECTOR FREIGHT SYSTEM, INC. 1125
made only to a supervisor and related to supervisors' actions, and in itself it did not
amount to a threat of reprisal for union activity, but was only an announcement of a
legitimate decision to contest the same claim on which Respondent had defeated
the Union in 1959, and was consistent with Latimer's reiteration of that position in
later dealing with the Union in 1961. It is a legitimate inference that the Union felt
there was merit in this position when it voluntarily withdrew its 8(a)(5) charge.
Pecora's later remarks to Ferro about the unfair labor practice charge indicates that
he considered it a closed issue and harbored no resentment toward the dispatchers
because of their union affiliation. I therefore grant Respondent's motion to dismiss
paragraph VI(a) of the complaint alleging illegal interrogation and threats by
Latimer, and shall recommend a Board order dismissing the complaint in that
respect.
(3) The record shows that Gorecki, who was a man of aggressive and blunt
speech with a volatile temperament, had been exchanging pointed and often sar-
castic banter with Senese for about 5 years, during which he often disparaged the
Union, and Senese for his union affiliation. Senese took it good-naturedly, recog-
nized it as rough "kidding," and often gave as good as he received. The two argued
a lot, but were otherwise friendly. In like manner, Gorecki during 1961 and earlier
often sarcastically and jokingly derided Ferro for his constant association with
Senese; on some occasions, after an argument with Senese about grievances, he
would tell Ferro in a burst of temper that "we ought to get rid of all of you, you
and your Mafia union," and made other remarks of like tenor. The most that Senese
ever did about his remarks was to suggest once to Pecora that he have "that crazy
Polack" stop hollering so loud about the Union, because some newer employees
might not realize he was kidding, and it might interfere with smooth operations. In
such circumstances, and in light of Respondent's amicable relations with the Union
and other labor organizations, I am convinced that Gorecki's remarks represented
only his own antiunion feelings and his own brand of humor, were long recognized
by the union employees and steward as such, and cannot be attributed to Respond-
ent. I consider in the same light and as personal opinion only, his remarks to
Ferro after discharge indicating that the discharge was for union reasons. Rago's
similar remarks to Ferro came from a management official not directly in charge of
operations, and are at best an isolated instance of antiunion opinion which cannot
overweigh Pecora's statements and conduct denoting a lack of union animus, nor
the preponderant proof indicating the discharge was for cause. I find no violation
of the Act in Gorecki's occasional inquiries of Ferro about his union activities, nor
do I consider his frequent outbursts showing resentment toward the Union in 1961
as actionable coercive threats of reprisal, for they were all made to or in the presence
of supervisors. I grant Respondent's motion to dismiss paragraph VI(b) of the
complaint involving remarks by Gorecki, and shall recommend a Board order
dismissing that portion of the complaint.
(4) I can draw no adverse inference from Pecora's remarks to Ferro about the
dispatch operation in a pre-Christmas social gathering in 1961, for at most they
indicate to me that Pecora, in a holiday spirit, was merely reassuring Ferro that
the operation would be handled satisfactorily in his absence, and that he should not
worry about it while on vacation. It is hardly likely that Pecora would be so
callous, in that time and place, to mention Ferro's many shortcomings, particularly
since Pecora did not make up his mind about the discharge until after he had
compared cartage costs during the period of Ferro's vacation with those for the
preceding weeks. Rather, I credit Pecora's testimony that he did not compliment
Ferro on his work, but suggested they have a good time that night and talk business
the next morning in the office.
(5) There is a conflict of testimony as to whether Pecora and Gorecki saw Ferro
campaigning for Senese for a union office during his Christmas 1961 vacation. Ferro
says they saw and spoke to him; they deny it. Pecora admits he knew about the
campaign and tried to remain neutral by denying both union factions the right to
post campaign material inside the terminal, and that in line with that neurality he
would have prohibited Ferro from distributing circulars for Senese on the dock if
he had seen him doing so. In light of the lack of other substantial proof of union
animus by Respondent toward the Union or the city dispatchers in particular, I
credit the testimony of Pecora and Gorecki. For the same reasons, any adverse
inference which might be drawn from proof indicating that Pecora was in a posi-
tion to notice campaign posters favoring Senese in Ferro's car in the same period, is
far from sufficient to support a finding of discrimination against Ferro
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that General Counsel has failed to sustain his ultimate burden of proving by
a preponderance of credible evidence on the record as a whole that Ferro was dis-
charged for his union affiliation . I therefore grant Respondent 's motion to dismiss
After careful consideration of all the facts and circumstances pro and con I
the complaint in that respect , and recommend that the Board enter an order to
that effect.
3. The denial of wage raises
At the October 7 meeting between Pecora and the city dispatchers, the latter
asked for raises, arguing that they had received none for a long time, and remark-
ing that dock foremen had received raises earlier in the year. Pecora admitted that
some dock foremen had received raises during 1961, and said the dsipatchers had
missed out on two raises because they had signed union cards, that at one time
in the past he could honestly have recommended raises for them, but when they
were signing union cards, the company was not in a position to give them raises
because Respondent felt it might be considered an attempt to persuade them to
renounce their union affiliation. He added that, since the Union had dropped its
charges, he could not then recommend a raise because cartage costs had risen in the
second half of the year, and in support of this Pecora brought out records showing
the fluctuations of costs. Pecora admitted to them that they had been doing a
good job, but when Kunka asked if he could not report that to the "front office"
to support a raise, Pecora said costs were starting to rise, and they would have
to concentrate on controlling them, and if costs went down, he would try to get
them a raise. Kunka asked Pecora if he thought they had "let down because we
lost our case on the union charges," and Pecora replied he did not think they had 32
Since the discussion was held only with dispatchers who were supervisors, and there
is no proof that Pecora's remarks were heard by, or intended by him to reach, the
ears of rank-and-file employees, I must conclude on that basis alone that his re-
marks and the denial of the raises did not violate the Act.33 Even if I found his
remarks coercive, in light of testimony of Kunka indicating that in prior talks with
Pecora and Gorecki those officials told him he had been denied raises for discrimina-
tory reasons, my conclusion would have to be the same. I therefore grant Respond-
ent's motion for dismissal of the complaint insofar as it alleges that Respondent
discriminatorily failed and refused pay raises to the city dispatchers, and that Pecora
threatened employees, and shall recommend that the Board issue an order to that
effect.
Upon the basis of the foregoing findings of fact, and on the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The head city dispatcher and assistant city dispatchers at Respondent's Chicago,
Illinois, terminal were during 1961 and have since been supervisors within the mean-
ing of Section 2(l 1) of the Act.
4. By discharging and failing to reinstate Thomas Joseph Ferro, by refusing wage
increases to the city dispatchers, and by various remarks of Latimer, Pecora, and
Gorecki to the city dispatchers as found above, all during 1961, Respondent has not
engaged in unfair labor practices as alleged in the complaint within the meaning
of Section 8(a) (3) and (1) of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the complaint be dismissed in its
entirety.
39 These findings are based on a composite of credible and mutually corroborative testi-
mony of Pecora, Gorecki, and the six dispatchers, particularly admissions of Kunka and
Battalini Testimony of the dispatchers in conflict therewith is not credited.
zi See cases cited in footnote 25, supra, and National Mattress Company, etc., 111 NLRB
890, 891.