Spector Freight System, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1975

216 N.L.R.B. 551 (N.L.R.B. 1975)

SPECTOR FREIGHT SYSTEM, INC. 551
Spector Freight System, Inc. and Dennis E. Utegg.
Case 3-CA-5590
February 12, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND KENNEDY
On July 31, 1974, Administrative Law Judge Elbert
D. Gadsden issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.'
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
The complaint alleged that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
Dennis Utegg, Earl Sanford, and Ronald McGinnis,
the dispatchers at its Ripley, New York, freight relay
station , and by refusing to reinstate Sanford and
Utegg, and violated Section 8(a)(1) by unlawfully
interrogating Sanford. Respondent's answer denied
the commission of any unfair labor practices and
also denied that the dispatchers were employees
under the Act. The Administrative Law Judge found
that the dispatchers were employees and concluded
that Respondent had violated the Act as alleged.
Respondent excepted both to the finding that the
dispatchers were employees and to the conclusions
regarding its violation of the Act. We agree with the
Administrative Law Judge's finding that Respondent
did engage in the acts alleged in the complaint, and
that it did so to inhibit the dispatchers' union
activities. For the reasons set forth below, as well as
those contained in the Administrative Law Judge's
Decision, we also agree that the dispatchers were not
supervisors.
As noted by the Administrative Law Judge,
Respondent's Ripley, New York, station functioned
I Respondent has requested oral argument The request is hereby denied,
as the record and Respondent's brief adequately present the issues and
Respondent 's position
2 Depending on the time of day, the routing sequence for 25 percent to
70 percent of the trailers is determined by instructions from Northfield The
rules governing the remaining trailers are that from Monday through
Thursday trailers containing freight for many customers -"big bill loads"-
are to be moved first, then trailers containing perishable freight or those in
the station more than 24 hours, and finally "small bill loads " On Fridays
through Sundays , small bill loads are moved first . The dispatcher may vary
the normal sequence for moving trailers where necessary to provide work
for the dock crew at a particular terminal or to maintain balance in the
number of trailers arriving from and departing to a particular terminal
216 NLRB No. 89
exclusively as an interchange point for trailers
transported by Respondent's drivers from its termi-
nals located in Columbus, Ohio; Northfield, Ohio;
Springfield, Massachusetts; and Albany, New York.
The Northfield terminal, also referred to as Linehaul,
coordinates Respondent's entire freight operations
by means of a computerized information-gathering
system set up in 1972. The Ripley dispatchers had a
teletype connection with the Northfield computer,
and also reported information to and received
instructions from Northfield by telephone regarding
the movement of freight.
The total employee complement at the Ripley
station consisted of the three dispatchers, seven
mechanics, and Fred Henning, the station manager
and an admitted supervisor. The dispatchers and
mechanics all worked 8-hour shifts, 6 days a week.
Henning filled in for the dispatchers during the one
shift a week each was absent, and also worked three
additional daytime shifts performing administrative
tasks connected with the station's operation.
The dispatchers' principal duty was to route trailers
arriving from the East to one of the two western
terminals, and vice versa. While they had some
leeway in determining the sequence in which to send
trailers on to the appropriate terminal,2 they had no
significant discretion in the assignment of drivers to
take them. The sequence in which they dispatched
drivers was controlled by collective-bargaining agree-
ments covering them, and the fact that the normal
destination of drivers leaving Ripley was their home
terminal.3 The only significant variation from this
routine was that drivers from the Columbus terminal
might be dispatched to the Northfield terminal, from
which they would be sent on to Columbus.4 Thus, in
contrast with the choice of runs upon which
dispatchers at a terminal ordinarily have to decide,
the dispatchers at the Ripley relay station had few
such decisions to make.
Cases urged by the Respondent as determinative of
the supervisory status of dispatchers-Spector Freight
System, Inc., 141 NLRB 1110 (1963); Dixie Ohio
Express, Inc., 123 NLRB 1936 (1959); and Overnite
Transportation Company, 128 NLRB 723 (1960)-all
involve large city terminals with a complement of
drivers assigned to the terminal: Chicago, Cincinnati,
3 Other than in situations where Northfield directed otherwise, all
Northfield and Albany dnvers were dispatched directly back to their home
terminal, and in at least 95 percent of the cases the same was true of
Springfield drivers. Henning testified that in rare instances Springfield
dnvers might be returned to their home terminal through Albany , a routing
that might be required if the only trailers available were destined for Albany
but Albany had trailers destined foe Springfield Rather than sending a
driver back to Springfield without a load , the dispatcher would route him to
Springfield through Albany.
4 The principal factors resulting in the dispatch of Columbus drivers to
Northfield would be that they lacked sufficient driving time under
Department of Transportation regulations to make the 6-hour return trip to
Columbus, or that there were not trailers available destined for Columbus.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Atlanta, respectively. We note, in addition, that
in Overnite the Board included in the bargaining unit
sought those dispatchers who relayed instructions by
radio to drivers working in fixed areas and who did
not appear to have or exercise supervisory authority.
On cross-examination, Station Manager Henning
testified that "the dispatcher assigns load by priority,
common knowledge, power, or Linehaul." "Lin-
ehaul" is explained partly by General Counsel's
Exhibits 7 and 8, two memos to "all supervisors"
from Henning in March 1973. The memo dated
March 6 is entitled "New Linehaul Operation at
Ripley." This assures the dispatchers (called "sup-
ervisors") that their workload is being lightened
rather than their positions being eliminated by the
new dispatching procedure for setups (two or more
trailers) coming from the East and from the West;
"this new system will do this and at the same time
control the operation more successfully." Dispatch-
ers are further advised "to notify Linehaul for
instructions" in the event of problems and to enter in
the logbook the person contacted at Linehaul. The
March 26 memo cautions the dispatchers on certain
card entries and the use of the appropriate slot on the
trailer rack, and then states:
Work very closely with L.H., Acl and Cbs road
dispatch on any problems that may arise in the
east , west operation, this means the Supervisors at
Acl and Cbs, not the OTR Dispatchers. [Acl and
Cbs may mean Akron-Cleveland and Columbus;
presumably OTR is over-the-road.]
With these few rules we are going to find out
where the lag is and any other problem which is
holding up the freight and bringing our Service
down. Also I want to mention that when the V.P.
(Mr. Z) or the Manager (Mr. Minetti) of Linehaul
calls and finds out you have a problem, and if
they ask if you have discussed this with all 3,
(L.H., Acl, & Cbs.) and you have to answer, no I
haven't, I suggest you have a very good reason for
giving them this type of answer.
Henning testified that if a dispatcher had an option
of sending a Syracuse load by an Albany driver or a
Springfield, Massachusetts, driver this would be
"discussed mutually" with Linehaul. Linehaul would
also be consulted on any exception to a union rule
concerning dispatch.5 Linehaul receives a copy, as
does the station manager and the home terminal, of
any dispatcher report on why a driver was not sent
out.
S Respondent put on testimony that Linehaul exists only as an
information -gathering device, but in its bnef admits that 20 percent of
Linehaul transmissions are "strong statements of advice which are
Priority: Among priority customers Linehaul estab-
lishes the order of priority, according to Henning's
testimony on cross-examination.
Common knowledge: Henning gave this example:
reassignment when a load ready to go develops a flat
tire at a time when another load is also ready.
According to his testimony, about 75 percent of
dispatching at Ripley is based on common knowl-
edge.
Power: Henning explained power as the immediate
availability of a driver or tractor which, if assignment
were delayed, might later be unavailable.
The essential simplicity of the Ripley dispatchers'
duties involving the assignment of drivers is most
strongly indicated by the fact that the mechanics,
who had no training as dispatchers, filled in for them
for up to an hour during their lunchbreaks, and have
dispatched for as long as 3 hours when the dispatcher
on duty became ill. Since virtually all drivers except
those from Columbus were routinely dispatched back
to their home terminals , there was only one alterna-
tive rug for any driver, and the order of dispatch was
established by contract, we conclude that the Ripley
dispatchers did not exercise independent judgment in
assigning runs to drivers.
The evidence bearing on the alleged disciplinary
authority of the dispatchers is that if a driver failed to
appear on time for a run or if, according to Henning,
he appeared physically incapable of taking a run
because of inebriation, for example, the dispatcher
was required to drop him to the bottom of the
board-place him last in sequence of those awaiting
dispatch-and to send a factual report regarding the
incident to his home terminal . The dispatchers were
not instructed to make recommendations as to
discipline in the report, and there is no evidence that
any of the dispatchers involved herein made such
recommehdations.6 Nor is there any evidence that
dispatchers were authorized to suspend the driver
involved until the driver's superiors had acted on the
dispatcher's report.
The dispatcher's function in dropping to the
bottom of the board drivers who were tardy in
appearing to take out a run was mandated by the
collective-bargaining agreement covering the drivers
and was therefore routinely performed; the dispatch-
er had no discretion in the matter. The alleged duty
to examine the physical fitness of drivers to take out
a run and drop them to the bottom of the board if
they appeared unfit would require no more than the
exercise of commonsense . This is especially so
because the incapacitating condition would have to
be immediately obvious and thus fairly severe for the
tantamount to orders "
6 The wnting of such a report is not by itself indicative of supervisory
authority. Auto Transports, Inc., 100 NLRB 272, 274 (1952).
SPECTOR FREIGHT SYSTEM, INC. 553
dispatcher to be able to observe it. The dispatchers
did not subject the departing drivers to any sort of
examination that might reveal a less than obvious
condition. They had no authority to require a
sobriety test, as did the linehaul dispatchers at a
Milwaukee terminal in Consolidated Freightways
Corporation of Delaware, 196 NLRB 807, 808 (1972),
cited by the dissent . It can hardly be said that the
determination to delay assigning an obviously
incapacitated driver to a truck pulling loads exceed-
ing 40,000 pounds required the exercise of independ-
ent judgment. Finally, the dispatcher's limited
authority to delay a driver's departure was not
disciplinary, since it did not reduce the driver's
earning ability more than momentarily. Drivers did
not begin to accrue driving time until they left the
station, and thus any driver who lost his place on the
board could still drive the maximum time allotted
under Department of Transportation regulations
once he was assigned a run.
The conclusion that dispatchers did not possess
disciplinary authority is also strongly indicated by
the fact that there is no evidence that they either were
instructed to exercise or did exercise responsibility
for determining the physical fitness of drivers for
driving. Henning alone testified regarding the exist-
ence of such responsibility, but his testimony does
not establish whether it stemmed from anything
more than his expectation that the dispatchers would
use some commonsense in a situation where a driver
was obviously incapacitated. That the asserted
responsibility was founded only on Henning's expec-
tation is suggested by the lack of any evidence that
the dispatchers were instructed to enforce other
regulations that Henning asserted they were respon-
sible for enforcing. For example, while he testified
that dispatchers were to enforce the DOT regulation
that a driver not be dispatched within 4 hours of
consuming an alcoholic beverage, he admitted that
they were not given copies of DOT regulations
applicable to the drivers or told to memorize them.
As regards the DOT regulations limiting the number
of hours drivers were permitted to drive daily,
Dennis Utegg, one of the dispatchers, testified
without contradiction that he made no attempt to
enforce that regulation and was never instructed to
do otherwise. Yet assigning a run to a driver
exhausted by excessive driving hours could be just as
dangerous as assigning one to a driver who had been
drinking. We are therefore not convinced that the
r City Yellow Cab Company, and G.I Cab Company, 144 NLRB 994, 996
(1963), enfd. 344 F.2d 575, 580-581 (C A. 6, 1965); see also Capital Transit
Company, 98 NLRB 141, 144 (1952), 100 NLRB 1173 (1952), 105 NLRB 582
(1953), remanded 221 F.2d 864 (C.A.D.C., 1955), decision on remand 114
NLRB 617 (1955), enfd. 38 LRRM 2681 (C A.D.C, 1956). The dispatchers'
lack of authority to suspend drivers distinguishes this case from Eastern
Greyhound Lines v. N.L R.B., 337 F.2d 84 (C.A. 6, 1964), and Pacific
dispatchers exercised the responsibility Henning
attributed to them of ascertaining the physical fitness
of the drivers to drive, beyond the exercise of
commonsense based upon outward appearance. In
view of the foregoing, we conclude that the dispatch-
ers did not possess authority to impose or effectively
recommend the imposition of discipline.?
Besides dispatching drivers and assigning them
loads, the only significant remaining function of the
dispatchers with respect to drivers is that they were
authorized to grant drivers "downtime" or "trip
delay" pay when they were unable to leave the
Ripley station because of a mechanical problem with
the tractor or trailer assigned to them. Again, there is
no evidence that this function was other than routine.
The granting of downtime was mandatory where
mechanical problems resulted in the delay of a
driver's departure, and Utegg testified that in his 5
years with Respondent he had never disapproved a
driver's request for downtime, nor had it happened
that a driver had refused to leave the terminal once a
mechanic had checked and repaired his vehicle. This
establishes that the existence of a mechanical
problem was easily determined, was never the subject
of dispute, and always resulted in the payment of trip
delay money where it in fact resulted in such a delay.
We therefore conclude that the granting of downtime
did not require the exercise of independent judgment
and thus was not indicative of supervisory authority.
As more fully set forth in the Administrative Law
Judge's Decision, the dispatchers' duties with respect
to the mechanics were to instruct them as to which
trailers to hook to or drop from a given tractor, to
inform them as to the existence of any minor
mechanical defects of a vehicle,8 though only defects
which the mechanics were responsible for repairing,
to determine the times at which mechanics were to
do hook and drop or repair work, to call in a
substitute for a sick mechanic,9 and to "O.K." sick
leave. In addition, Utegg was authorized to sign
mechanics' timecards in the event of Henning's
unavailability.
There is no evidence that the dispatchers issued
other than routine instructions to the mechanics. In
contrast, Henning issued a variety of memoranda to
them regarding the timeliness of their work, the care
with which they should perform it, and the location
where they should park tractors, and Henning alone
handles disciplinary or other personnel matters
involving them. Most of the mechanics had been
Intermountain Express Company v. N L R B, 412 F.2d I (C.A. 10, 1969).
8 This information is reported by the drivers on a "Driver 's Vehicle
Condition Report ," or DVCR, which they turn in upon arrival at the
station.
9 As noted by the Administrative Law Judge , the dispatchers had no
discretion in selecting substitutes for sick mechanics.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by Respondent for considerable periods of
time, and the routine nature of their work was such
that, as Manager Henning admitted, they normally
had no conversation with the dispatchers. The
mechanics and dispatchers both work a 48-hour
week, but, although the mechanics are only semi-
skilled, they earned considerably more than the
dispatchers-$339 versus $22910 per week. Dispatch-
ers also receive certain fringe benefits applicable to
Respondent's managerial personnel, such as sick
leave, vacation, incentive, pension and insurance
plans, but there is no evidence that the dollar value
of those benefits exceeded the value of those
applicable to the mechanics or compensated to any
significant extent for the differential in gross pay
between the mechanics and dispatchers.
The fact that dispatchers might "O.K." mechanics'
sick leave is not itself an indicium of supervisory
authority, since the dispatchers evidently accepted all
requests at face value 11 and there is no evidence that
they had the discretion to reject such requests. As
regards Utegg's authority to initial timecards, author-
ity which he exercised only as a substitute for
Henning, it is well settled that the sporadic substitu-
tion for a supervisor does not render the substitute a
supervisor.12
The only remaining factor 13 bearing on the
dispatchers' alleged supervisory status is that, as
Respondent points out, they were the only persons
capable of representing management during 71
percent of the time the Ripley station was in
operation. However, we do not regard this factor as
significant in the circumstances of this case, princi-
pally because the essentially routine nature of the
station's operations and the limited number of
employees there at any given time-two mechanics
and a dispatcher and no driver complement-ren-
dered the presence of supervisors around the clock
unnecessary. Nor did the dispatchers require supervi-
sory authority in order to handle personnel matters
10 The Administrative Law Judge inadvertently referred to the dispatch-
ers' earnings as $2.29 an hour, we hereby correct the error
1I Utegg testified that if a mechanic called in sick and said he was going
to take the night off he, Utegg, would "0 K." it and call certain laid-off
mechanics in order of seniority to substitute Sanford likewise testified that
if a mechanic became ill during a shift he would let him go home and call a
substitute from among the laid-off mechanics in order of seniority. Neither
indicated that they could refuse to let a sick employee go home or to grant
sick leave Routine approval of sick leave is not a supervisory function Auto
Transports, Inc, supra at 275
&12 Directors Guild of America, Inc. (Association of Motion Picture
Television Producers, Inc), 198 NLRB 707 (1972)
13 We are aware that dispatchers have been assigned the title "superv-
isor," but this factor is of significance only where other factors also tend to
establish that the dispatchers possess supervisory authority
11 Drivers from the West were normally dispatched within 6 minutes of
arriving at the station Those from the East left the station immediately after
arriving and went to a nearby motel to rest . After a minimum of 8 hours'
rest they were assigned a new tractor -trailer to return East Their only
subsequent contact with the dispatcher was to pick up certain papers, such
as bills of lading Thus, they had only momentary contact with the
since all personnel matters involving the mechanics
were the sole responsibility of Henning, all drivers
appearing at the station were responsible to supervi-
sory officials at their home terminal, and were at the
station for very short periods,14 and the record
indicates that any problem that arose with the
drivers, such as when one became ill, was resolved by
the dispatcher's calling Northfield for instructions.15
Likewise, problems the drivers encountered after
leaving Ripley, mechanical breakdowns, for example,
were resolved by their calling Northfield. A further
factor against our assigning controlling weight to the
frequent absence of supervisory personnel at the
station is that finding the dispatchers to be supervi-
sors would result in an extremely low supervisor-
employee ratio at the station, approximately one to
two, when, as indicated above, the exigencies of the
station's operations did not require such a low ratio.
We recognize, as Respondent points out, that in a
number of cases we have found dispatchers to be
supervisors because the contrary finding would result
in a lack of supervisory personnel for long periods at
the location involved.16 But those cases involved
truck terminals whose operations, unlike those of the
Ripley freight relay station, were sufficiently complex
to require the continuous presence of supervisory
personnel. And finding the dispatchers to be supervi-
sors did not result in the establishment of a
supervisor-employee ratio disproportionate to the
needs of the operation. The fact that we have found
Respondent's dispatchers at other locations to be
supervisors is not material, since in each case there
have been factors not present here which warranted
that finding.17 As we have examined each of the
functions performed by the Ripley dispatchers and
the authority vested in them and found no evidence
of supervisory authority, we conclude that the
dispatcher.
i5 Utegg testified that he could not grant sick leave to a driver who
asserted he was too sick to drive, but would have to call Northfield for
instructions.
16 E.g , Pennsylvania Truck Lines, Inc, 199 NLRB 641, 642 (1972);
Consolidated Freightways Corporation of Delaware, 196 NLRB 807, 809
(1972); Dixie Ohio Express, Inc, 123 NLRB 1936, 1937 (1959).
17 For example, in Spector Freight System, Inc., 141 NLRB 1110 (1963),
the dispatchers had to select from a wide variety of possible assignments for
drivers, permitted drivers to hire casual labor from off the street, could
discipline drivers by limiting their worktime , and could settle drivers'
grievances ; none of which is true in this case . The six dispatchers there
involved directed a complement of 150 city drivers assigned to the Chicago
terminal , as to whom the Administrative Law Judge made a broad
supervisory finding including hire, transfer , layoff, recall, and discharge
The quotation in the dissent here was appended as a footnote to that
finding In another case , 26-RC-3445 , which is unreported , the dispatchers
represented Respondent in the first step of the grievance procedure, and
reprimanded drivers for violation of work rules , factors which also are not
present here . Other unreported decisions involving Respondent are similarly
distinguishable . All involved terminals , not relay stations
SPECTOR FREIGHT SYSTEM, INC.
dispatchers are not supervisors within the meaning of
the Act.18
Respondent also contends that we are required by
the Supreme Court's decision in N.LR.B. v. Bell
Aerospace Company, Division of Textron, Inc., 416
U.S. 267 (1974), to find that the Ripley dispatchers
are managerial officials and thus not subject to the
Act's protection. We disagree. The Court itself cited
with approval 19 our observation in Eastern Camera
and Photo Corp.20 that "the determination of an
employee's `managerial' status depends upon the
extent of his discretion, although even the authority
to exercise considerable discretion does not render
an employee managerial where his decision must
conform to the employer's established policy." Since
the record abundantly demonstrates that every
action of the dispatchers must conform to Respond-
ent's established policies, and since we have found
that they exercise only the most limited discretion,
the necessary conclusion is that the dispatchers are
not managerial officials . Our dissenting colleague
places much emphasis on their "puffing" statements
made to the station manager concerning their own
importance when complaining about a new work
schedule. Viewed in the total context of this record,
we would not find such statements to be evidence of
managerial authority, or of supervisory status.
In view of our conclusion that the Ripley dispatch-
ers are neither supervisors nor managerial officials,
we find no merit in Respondent 's exceptions to the
Administrative Law Judge's Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Spector Freight
System, Inc., Ripley, New York, its officers, agents,
successors , and assigns , shall take the action set forth
in the said recommended Order.
is We would distinguish the recent decision of the First Circuit Court of
Appeals in N.L.R.B. v. Metropolitan Petroleum Co., 87 LRRM 3139 (1974),
where the court found that the Board 's finding of employee status for city
fuel oil dispatchers was not based on substantial evidence , only the
company's operation manager having testified , and noted the lack of
evidence that these dispatchers were required to consult with their
supervisor in extraordinary situations. By contrast, here two of the three
dispatchers testified , as well as the relay station manager and the company
industrial and labor relations manager , and the record has ample evidence
of necessity for dispatchers consulting with a superior or with Linehaul.
Our dissenting colleague also cites Quality Transport Inc., 211 NLRB 198
(1974), again a terminal with a large complement of drivers who, on the
basis of evidence presented, were actually controlled and disciplined by
dispatchers . Missing are factors like the remote dispatch and information
and supervisory direction which the Ripley relay dispatchers are obligated
to use. Thus, the fact that Ripley dispatchers work many hours in the
absence of the station manager does not have the significance it frequently
has in connection with terminals. Our colleague speaks of the Board's duty
555
MEMBER KENNEDY, dissenting:
I dissent from my colleagues' conclusion that
dispatchers Dennis E. Utegg, Earl W. Sanford, and
Ronald McGinnis were not supervisors as defined in
the Act. Since the three dispatchers were not
"employees," their discharge did not violate Section
8(a)(3) and (1) of the Act.
Respondent's contention that its dispatchers are
supervisors was not conceived as an afterthought
defense to the charge herein. Respondent has long
adhered to the position that its dispatchers at all
terminals, including the one at Ripley, New York,
are statutory supervisors. On June 9, 1972, Station
Manager Henning posted a notice to all employees
designating the dispatchers and himself as "supervi-
sors ." Employees were instructed to bring their
problems to the named supervisors for handling and
decision.21 A dispatcher's authority to resolve a
mechanic's or driver's problem is strong evidence of
statutory supervisory status.
It is significant that the Board and four Regional
Directors have consistently agreed with Respondent
that its dispatchers at other terminals are supervi-
sors.22 In my view, the facts in the instant case
compel the same result reached by the Board in the
earlier cases involving this Respondent. The follow-
ing observations of the Board with respect to
Chicago dispatchers are applicable to the instant
case:23
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 supervi-
sor. 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 omissions which
to apply the same standards to all cases , an obligation we readily
acknowledge . What is difficult to fathom is his equation of the facts in all
cases.
19 N.LR.B. v. Bell Aerospace Company, Division of Textron, Inc., at
fn. 19.
m 14O NLRB 569, 571 (1%3).
21 An employer's holding out an individual as a supervisor with
instructions to take problems to him was held by the Board to establish
supervisory status within the meaning of the Act . A.T.I. Warehouse, Inc.,
169 NLRB 580 (1%8 ). See American Optical Company, 104 NLRB 263
( 1953); Des Moines Foods, Inc., 129 NLRB 890 (1960).
za Spector Freight System , Inc., 141 NLRB 1110 (Chicago, 1963); Spector
Freight System, Inc., (Memphis, 1%9), Case 26 -RC-5445; Spector Freight
System, Inc. (St. Louis, 1970), Case 14-RC-6505; Spector Freight System,
Inc. (Boston , 1971), Case 1-RC-11328 ; Spector Freight Systems, Inc
(Dayton, 1974), Case 9-RC-10577.
23 141 NLRB at 1119 , fn. 20.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 driver's eyesight, 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 do not agree with my colleagues that the facts in the
instant case are sufficiently distinguishable from
those at Respondent's other locations to justify a
finding contrary to the uniform result reached by the
Board and its four Regional Directors.
Dennis Utegg, the Charging Party and principal
witness for the General Counsel, acknowledged no
less than three times during his testimony that
"dispatchers controlled the Ripley operation," that
the dispatchers "could make or break the Ripley
operation" because "they control the efficiency of
how that station operates."24 The Ripley station is
open 24 hours each day and 7 days every week.
Station Manager Henning works only six shifts of 8
hours per week. It is undisputed that the Ripley
station operates at least 16 hours each day with a
single dispatcher in sole charge. The station manager
is absent from the station 71 percent of the time that
it is in operation. It is totally unrealistic to conclude
that the Ripley station is unsupervised during 16 of
the 24 hours each day that the station is open. The
courts and the Board have frequently relied upon the
absence of other supervisors as a persuasive circum-
stance in determining statutory supervisory status.25
In Consolidated Freightways Corporation of Delaware,
196 NLRB 807 (1972), we found line-haul dispatch-
ers to be supervisors because of their "weekend
responsibilities when they are the sole persons who
are in charge of the terminal."
It is the responsibility of the dispatcher "to match"
the "tractors and trailers and drivers" to ensure the
efficient movement of freight throughout the Re-
spondent's entire system.26 In fulfilling his function,
the dispatcher is influenced by a wide variety of
factors and considerations. The choices and determi-
nations he makes cannot be accurately characterized
as "routine," "clerical," or "mechanical." Dispatch-
ers consistently exercise true independent judgment
in deciding how the Respondent's delivery capacity
can best be utilized to provide the best service to
customers at the lowest cost to Respondent.
Dennis Utegg testified that he makes the decision
as to the order of dispatch in 75 percent of the loads
sent from Ripley during his shift. While extensive
information is received on the IBM printout,27 Utegg
conceded that Northfield made the decision only on
priority freight as to which Respondent had made a
firm commitment as to delivery date but that such
priority freight constituted no more than 25 percent
of the total dispatched from Ripley.28 In determining
which drivers to assign to which loads and to
schedule their departures, the dispatcher must weigh
a wide variety of considerations.
In matching up tractors, trailers, and drivers and
timing their movement from the station, the dis-
patcher must be mindful of the need to protect dock
forces and city drivers at other terminals,29 the need
to reduce costly "imbalances," 30 and the need to
24 For convenience , the reader 's attention is directed to transcript pages
50, 93-94, and 145
25 In Pacific Intermountain Express Company v N L.R B, 412 F 2d 1
(1969), the Tenth Circuit denied enforcement of the Board 's finding that
line-haul dispatchers were employees (173 NLRB 470 ( 1968)) with the
observation "that if the dispatchers are not supervisors , the terminal is
operated many hours each day without the benefit of direct supervision
This seems highly unlikely Furr's Inc v N L.R B., 381 F.2d 562, 566, fn 7
(10th Cir 1967) "
Board cases in accord are Dixie Ohio Express, Inc, 123 NLRB 1936
(1959), Sehon Stevenson & Co, Inc, 150 NLRB 675 (1964), J. P Stevens and
Co, Inc, 163 NLRB 217 at 225 (1967), McKinnon Services, Inc, 174 NLRB
1141 at 1143 (1969)
26 Respondent has 60 terminals , 22 special commodity terminals, and 4
relay stations , and operates in 28 States.
27 The Ripley terminal receives extensive information from the IBM
printouts as well as telephonic reports which update every few hours the
traffic picture throughout Respondent 's entire operation . The Ripley
dispatchers are required to monitor the IBM reports so that their
dispatchers are based on the latest data The Ripley dispatcher receives on
the IBM machine "estimated time of arrival" (E.T.A ) messages which are
sent by the terminals when drivers depart Similarly, "load on hand" reports
update information from other terminals as to freight on hand, its
destination , the number of tractors available , and the home terminals of
drivers in layoff status at various terminals throughout the system . Thus, if
the Northfield, Ohio, terminal has 10 Chicago-based drivers getting their
rest , the Ripley dispatcher would be aware that loads must be sent to
Northfield if Respondent is to avoid paying delay time to the Chicago
drivers.
28 Respondent's evidence is that 80 percent of the data sent from
Northfield is informational so that dispatchers can act on timely
information.
29 A trailer containing shipments to many customers requires extensive
dock work before city drivers leave their terminal to deliver the freight If
the trailer arrives at a time when it cannot be unloaded before the departure
of city delivery drivers, there is no work for either the dockmen or city
drivers and they are sent home.
19 Imbalance refers to the situation in which more freight is being sent to
a terminal or area than is being sent from it. Imbalances cannot be avoided,
but they should be minimized so that the carrier is not required to return
drivers to home terminals with trailers empty
SPECTOR FREIGHT SYSTEM , INC. 557
return drivers and equipment to home terminals.31
General Counsel's Exhibit 8 is a notice to the Ripley
dispatchers, dated March 6, 1973, in which dispatch-
ers were told:
Move all of the LTL that is possible and as fast as
possible, (also protect your truckload expedites
such as Ford, Polaroid and etc.) use your head as
to whether a load can make delivery, or if the
dock needs the work, this has to be considered on
every load of freight that you move.
The dispatcher must be aware of the provisions of
the collective-bargaining agreements which impose
penalty pay to drivers for failure to dispatch in
accordance with those contracts. He must also
consider Department of Transportation regulations
which limit driving and duty time of drivers. Plainly,
the Administrative Law Judge erred in concluding
that the dispatchers carry out "essentially ministerial
duties."
The dispatcher must choose the chronological
order or priority as to which loads are to be
dispatched and he has the authority and responsibili-
ty to make sure that his decisions in this regard are
implemented. It is uncontradicted that the dispatcher
has the responsibility to determine if drivers are unfit
by reason of intoxication or otherwise to perform
their duties. Courts have consistently held that such
authority requires the use of independent judgment
and renders the dispatchers to be supervisors within
the meaning of the Act. See Pacific Intermountain
Express Company v. N. L. R. B., 412 F.2d 1 (1969), in
which the Tenth Circuit denied enforcement of a
Board's finding that line-haul dispatchers were
employees.32 The court stated:
Although it does not appear that the dispatchers
play any part in determining the ultimate disci-
pline to be assessed against the drivers, "it can
scarcely be denied that sending a man home is
discipline or that it does require the use of
independent judgment." Warner Company v.
N. L. R. B., 365 F.2d 435, 439 (3d Cir. 1966). "[1 It is
the dispatcher who must, in his independent
judgment, make the initial on-the-spot decision
that the circumstances require taking a driver
off. . . . While the dispatcher's action is responsi-
ble for suspending the driver only until higher
authority reviews its propriety, this does not make
the driver any the less suspended by the dispatch-
er's action." Eastern Greyhound Lines v. N.L.R.B.,
337 F.2d 84, 88 (6th Cir. 1964).
31 Prompt return of drivels , tractors , and trailers to their home terminal
ensures efficient utilization of the equipment and reduces travel expenses for
drivers and avoids penalty pay provided under various collective -bargaining
In Eastern Greyhound Lines (A Division of the
Greyhound Corporation) v. N. L. R. B., 337 F.2d 84
(C.A. 6, 1964), and in N.L.R.B. v. Gray Line Tours,
Inc., 461 F.2d 763 (C.A. 9, 1972), the courts held that
dispatchers' authority to order a driver off a vehicle
for intoxication or misconduct made them supervi-
sors . In the Eastern Greyhound Lines case, the court
expressly rejected the Board's characterization of the
authority to remove a driver from a vehicle:
... as a "simple ministerial act, capable of
performance by any rank and file employee." We
are unable to accept this ipse dixit as a substitute
for substantial evidence. Neither can we accept
the easy assertion that "It lacks any element of
responsible direction of employees, and is in no
way indicative of supervisory status." [337 F.2d at
88.]
Charging Party Utegg testified that dispatchers
order the drivers to drive and refusal of such an order
would be tantamount to the driver quitting his job.
Utegg acknowledged that drivers simply do not
refuse orders issued by dispatchers. Utegg's testimo-
ny on this point is in accord with the observation of
the Trial Examiner in the earlier Spector Freight case,
141 NLRB 1110 at 1118, with respect to the authority
of the dispatcher to discharge for refusing to take out
an assigned load. The Trial Examiner stated (fn. 16),
"This was pursuant to a custom well-known in the
transportation industry and recognized by Respond-
ent [Spector] 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."
That Respondent continues to adhere to this
industrywide policy was recently recognized by the
United States District Court for the Western District
of New York in which the Ripley terminal is located.
See, Steinman v. Spector Freight System, Inc. (not
reported officially), 83 LRRM 2281 (1972), affd. 476
F.2d 437 (C.A. 2, 1973), where the court discussed
the Respondent's "work now, grieve later" rule
which obligates a driver dissatisfied with a dispatch
order to utilize the grievance procedure "and that
refusal to pull a load could cost him his job." In my
view, the conclusion is inescapable that a dispatcher
is a statutory supervisor when a driver's failure to
follow an order to drive subjects the driver to
discharge.
The record contains persuasive evidence that the
dispatchers exercise independent judgment in assign-
ing work to employees, granting time off to employ-
agreements if the driver is delayed in returning to his home terminal.
32 173 NLRB 470.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees, and granting or denying employee pay claims.
Dispatchers tell the mechanics what work to do and
when to do it. If trailer and tractor are both
available , they may be hooked up long before they
are to be dispatched. It is clear that the time of the
arrival of a trailer does not determine when the
mechanic will connect the trailer to the tractor. This
is determined solely by the dispatcher preparing a
"hook and drop slip." Dispatchers authorize me-
chanics to take time off without clearing with
anyone. Based on his evaluation of the anticipated
workload, the dispatcher makes the decision as to
whether a replacement for the absent mechanic is
necessary. Utegg admitted that he has decided not to
call for a replacement for an absent mechanic.
Admittedly, the dispatchers do not issue instruc-
tions to mechanics as to how to change a tire or
perform other mechanical repairs. But it is the
dispatcher who makes the judgmental decision as to
whether a mechanic repairs defective equipment or
whether the mechanic hooks trailers to tractors.
Similarly, if a driver and a mechanic disagree as to
whether a mechanical repair is necessary, it is the
dispatcher who decides if repairs are to be made
before the load leaves the terminal. If the dispatcher
decides repairs are necessary, he will order the
mechanic to make the repair. Mechanics obey orders
of dispatchers. If there is no other load to which the
driver can be reassigned , the Respondent will incur
trip delay penalty pay. Of course, if the dispatcher
decides repair of the equipment is unnecessary, the
driver is obliged to drive.
Finally, Utegg acknowledged that the Ripley
dispatchers have authority to grant downtime.
Indeed, drivers are not paid delay time in the
absence of approval by the dispatcher. Dispatchers
are evaluated from an efficiency standpoint on the
basis of how much trip delay pay is incurred during
their shift .33 It must also be remembered that the
dispatch of westbound and eastbound drivers is
governed by different, complicated collective-bar-
gaining agreement provisions . Failure of the Ripley
dispatchers to comply with those contracts obligates
the Respondent to pay runaround claims.
I note that on December 11, 1974, the First Circuit
denied enforcement of the Board's decision in
Metropolitan Petroleum Company of Massachusetts,
209 NLRB 837 (1974), N.L.R.B. v. Metropolitan
Petroleum Company of Massachusetts, 87 LRRM
3139. The following observations of the First Circuit
are equally applicable to the instant case:
Cavanaugh's testimony indicates that the dis-
patchers' functions, far from being routine,
33 Sometimes systemwide efficiency may require a dispatcher to
deliberately delay the departure in order to get freight dispatched to a
included the maneuvering of drivers and depart-
ing from routine operations when necessary.
Other courts have considered such judgmental
direction of men in the field to require reversal of
a Board's finding that dispatchers were not
supervisors, even when other evidence seemed to
indicate that the jobs involved no supervisory
role. See, e.g., Arizona Pub. Serv. Co. v. N. L. R. B.
453 F.2d 228 (9th Cir. 1971).
The Board's position is that the dispatchers'
functions "amount to no more than the clerical
transmission of information, such as would be
performed by a switchboard operator." Particular
reliance is placed on N.L.R.B. v. City Yellow Cab
Co., 344 F.2d 575 (6th Cir. 1965). In that case the
court upheld a Board determination that switch-
board operators for a taxi company constituted
employees rather than supervisors, This case
differs from City Yellow Cab in a number of
respects , however. In City Yellow Cab the primary
function of the switchboard operator was to
receive telephone calls from customers for taxi
service and to relay these requests to available
cabdrivers. 344 F.2d at 579. Here the dispatchers
must do considerably more than relay phone
messages . They must plan the day's deliveries in
the most economical fashion, bearing in mind the
customer requirements, the driver requirements,
the available delivery equipment, the time re-
quired for delivery, and the experience of the
driver. The general company guideline is that the
customer must get his oil on time, but within that
guideline the dispatcher exercised a large measure
of independent discretion. [87 LRRM at 3141.]
I think my colleagues ' attempt to distinguish the
instant case from the recent adverse decision in the
Metropolitan Petroleum Co. case is totally unpersua-
sive . Furthermore, the instant case cannot be
distinguished from the Board 's recent decision in
Quality Transport Inc., 211 NLRB 198 (1974). There,
the Board adopted without discussion the conclusion
of the Administrative Law Judge that the dispatchers
were supervisors. The dispatchers ran the operation
of the company during the absence of the terminal
manager and shop foreman. The terminal operated
24 hours a day and the terminal manager and shop
foreman were present at the terminal only from 8
a.m. to 5 p.m. The Administrative Law Judge
concluded:
The above facts clearly show that the dispatch-
ers including Bridges and DeVille exercised full
authority over the terminal for approximately 16
particular terminal to protect that terminal's dock force.
SPECTOR FREIGHT SYSTEM, INC. 559
of the 24 hours a day when Tapp and Lee were
absent. They had no authority to hire or fire but
they did have authority to use or not use drivers,
to order mechanics to work on certain trucks, and
under certain circumstances to give drivers time-
off, and to assess points against them. In making
these determinations which were not infrequent,
the dispatchers used their independent judgment.
Each dispatcher also used his independent judg-
ment in assigning runs and in fili4g late reports.
The record contains other evidence of the
supervisory status of the dispatchers. In light,
however, of N.L.R.B. v. Metropolitan Life Insur-
ance Co., 405 F.2d 1169, it would only lengthen
this decision unnecessarily to itemize them.
Metropolitan and Board decisions hold that
Section 2(11) of the Act speaks in the disjunctive;
that to constitute a per$on a supervisor it is
sufficient to show that the individual performs
any one of the functions, or in the performance of
his duties possesses one of the enumerated powers
and responsibilities, set forth in that section. As
set forth above, the record clearly shows such
powers were within functions of Bridges and
DeVille. Accordingly it is found that Bridges and
DeVille at all times mentioned herein were
supervisors within the meaning of Section 2(11) of
the Act. [Footnotes omitted.]
In my view, this Board is obliged to apply in the
instant case the same standards used in determining
the supervisory status of dispatchers in the Quality
Transport Inc. case. We found Quality to be responsi-
ble for antiunion conduct of its dispatchers because
they were supervisors. We cannot now say in this
case that prounion dispatchers performing the same
duties are not supervisors. The courts have reminded
us that we are obliged to apply the statute with an
even hand. See Wilkinson Manufacturing Company v.
N.L.R.B., 456 F.2d 298 (C.A. 8, 1972); Automation
and Measurement Division, The Bendix Corporation v.
N.L.R.B., 400 F.2d 141 (C.A. 6, 1968); Boaz Spinning
Company, Inc. v. N. L. R. B., 439 F.2d 876 (C.A. 6,
1971); Cross Baking Company v. N. L. R. B., 453 F.2d
1346, fn. 2 (C.A. 1, 1971); Famet, Inc. v. N.L.R.B.,
490 F.2d 293 (C.A. 9, 1973).
The dispatchers responsibly direct the work of the
drivers and mechanics and their duties require the
exercise of independence of judgment. They are
clearly supervisors. N.L.R.B. v. Big Three Welding
Equipment Company, 359 F.2d 77, 80-81 (C.A. 5,
1966); Pacific Intermountain Express, Co. v. N.L.R.B.,
supra; Dixie Ohio Express, Inc., 123 NLRB 1936,
1937; Groendyke Transport, Inc., 171 NLRB 997, 998
(1968).
In my view, it cannot be said that dispatchers
perform routine, ministerial duties. They are vested
with powers and responsibilities which require the
exercise of independent judgment. They are supervi-
sors within the meaning of the Act and clearly a part
of the management team.34 I would dismiss the
complaint in its entirety.
34 Since I find the dispatchers to be statutory supervisors, it is
unnecessary for me to discuss Respondent's alternate contention that the
dispatchers are managerial employees under the Supreme Court's decision
in N.LR B v. Bell Aerospace Company, Division of Textron, Inc., 416 U S.
267 (1974). It cannot be doubted , however, that the dispatchers satisfy the
Board's definition of managerial employees as those who "formulate and
effectuate management policies by expressing and making operative the
decisions of their employer."
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
a charge of unfair labor practices filed on February 27,
1974, and amended on April 5, 1974, by Dennis E. Utegg,
herein called the Charging Party, against Spector Freight
System, Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board issued a
complaint against Respondent 'on April 9, 1974, alleging
that Respondent had engaged in unfair labor practices in
violation of Sections 8(a)(1) and (3) and 2(6) and (7) of the
National Labor Relations Act, as amended, herein called
the Act. The Respondent filed an answer denying that it
interrogated its employees about their union desires and
activity, or that it discharged and refused to rehire
employees Ronald McGinnis and Earl W. Sanford because
of their union activity, or that they engaged in any
unlawful labor practices.
A hearing in the above matter was held before me at
Mayville, New York, on May 21 and 22, 1974. Briefs have
been received from counsel for the Respondent and
counsel for the General Counsel, respectively, and have
been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of Missouri. At all times
material herein, Respondent has maintained its principal
place of business at 205 West Walker Drive in the city of
Chicago, and State of Illinois, and has maintained facilities
at various other locations throughout the United States,
including one at Shortman Road in the town of Ripley and
State of New York, herein called the Ripley facility. The
Respondent is, and has been at all times material herein,
continuously engaged at said facilities in the business of
the interstate transportation of freight and related services.
During the past year, a representative period, Respond-
ent, in the course and conduct of its business operations in
the State of New York, derived revenue in excess ' f
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$100,000 from its trailer truck transportation of freight to,
through, and from the State of New York directly to other
States and from other States directly to, through, and from
the State of New York. During the same period, Respond-
ent derived revenues in excess of $100,000 from the
transportation of freight in interstate commerce between
the various States of the United States.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Local 649, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondent is engaged in the interstate transfer of
freight for hire. Its Ripley facility at Ripley, New York, is
operated as a relay station in the tractor trailer transfer of
freight. Such relay station serves as an exchange point for
tractor-trailer trucks and drivers traveling between Re-
spondent's terminals located at Albany, New York, and
Springfield, Massachusetts, in the east, and Respondent's
terminals located at Northfield and Columbus, Ohio, in the
west. More specifically, the Ripley facility provides a place
for double bottom trailers from the terminals in the east to
be broken down into singles to travel to the termin4ls in
the west, and for single trailers from the terminals in the
west, to be received and doubled up for travel to the
terminals in the east.
A major objective of Respondent's business operation is
to provide the best transfer service to its customers at the
lowest possible cost to the company. In an effort to achieve
this objective, Respondent has established a system
designed to minimize delays and imbalances in the overall
geographical transfer of freight, by the use of relay stations
of which the Ripley facility is representative. Respondent
has employed at the Ripley facility Fred Henning, as
station manager, three dispatchers, and seven mechanics.
There are no drivers employed at Ripley and drivers who
drop and pick up trailers at Ripley are domiciled either in
Albany, Springfield, Northfield, or Columbus.
The subject of the present proceeding arises from
Respondent's discharge of three Ripley dispatchers, after
the latter expressed to Respondent their dissatisfaction
with a change in their work schedule and their contem-
plation to organize. The Respondent admits that it
discharged the dispatchers but denies that it interrogated
said dispatchers about their union desires or activity, or
that it discharged them for such desires and activity.
Additionally, Respondent contends and defends its posi-
tion at the proceedings on the theory tllat the discharged
dispatchers were "supervisors" within the meaning of the
Act and, therefore, were not entitled to the protection
afforded "employees" under the Act.'
Thus, in regard to the alleged unlawful interrogation and
discharges of the subject dispatchers, the principal ques-
tions presented for decision are: whether said dispatchers
were "employees," rather than "supervisors," within the
meaning of the Act, and, if so, were they unlawfully
interrogated about their organizational or concerted
desires and activities and/or discharged for the same.
B. Supervisory Status of the Dispatchers
Duties of dispatchers and mechanics
A composite of the undisputed and credited testimony of
Dennis E. Utegg, Earl W. Sanford, and Station Manager
Fred Henning established that Utegg was employed by
Respondent from June 20, 1969, to February 26, 1974, as a
dispatcher; that Sanford who was working in several
capacities for Respondent since 1943, has worked as a
dispatcher from 1970 to February 26, 1974; 2 that Fred
Henning was employed by Respondent in 1965, having
worked as a serviceman, dispatcher, chief OTR dispatcher
and dispatcher, and station manager, in which latter
capacity he was serving in June 1972 to the present; and
that the duties performed by the dispatchers were as
follows:
Dispatchers complete or fill in the hookup slip (G.C. Exh.
3), identifying the tractor-trailer by a number, and by
further indicating whether to hook or drop a trailer and/or
to fuel the tractor. The dispatcher then places the hookup
slip on a clipboard in the office window so that a mechanic
can pick it up and service the identified tractor-trailer
accordingly. The mechanic inserts the number of the dolly.
In completing this slip, the dispatcher has a tablet which
lists the numbers of the tractors available to roll in
chronological order. He gets the number of the trailer from
linehaul (Northfield). Under direction, "east" means
double trailer and "west" means single trailer, and the
dispatcher knows from regulations, training, and experi-
ence that a double can only travel east.
Every truckdriver coming into Ripley completes a
"Vehicle Condition Report" (indicating whether the
tractor-trailer needs any minor repairs), and gives it to the
dispatcher. If such report shows no necessary repairs, it is
filed, but if needed repairs are indicated, the report is
clipped to the hookup slip for the mechanics to service
accordingly. The dispatchers do not give mechanics any
instructions with respect to mechanic work. If major
repairs are needed, the dispatcher calls Northfield for
specific instructions.
Truckdrivers from the west arriving at Ripley present to
the dispatcher a "Drivers Trip Record" (DTR) and "Bills
of Lading," which accompany the truck, and which were
completed by the original departure dispatcher. The Ripley
dispatcher then designates and inserts on the record a
number of a tractor and trailer available to roll to the
driver's original point of departure for his return. In
making these designations, the dispatcher is advised on
IBM system by Northfield 25 percent of the time and the
remaining 75 percent of the time, he (the dispatcher) makes
I The facts set forth above are undisputed and not in conflict in the record.
SPECTOR FREIGHT SYSTEM, INC. 561
the designation based on past practice and procedure
established by Respondent, or he calls Northfield for
special instructions on the matter.
A truckdriver arriving from the east presents his DVER
to the dispatcher and goes to bed at a nearby motel for 8
hours' sleep as required by U. S. Department of Transpor-
tation regulations . After such driver has had 8 hours within
which to sleep, the dispatcher calls him and he has 2 hours
thereafter within which to report to the station to pick up
his route papers and leave. If the driver does not appear at
the station within 2 hours after the call, the established
practice of Respondent requires the dispatcher to drop his
card to the bottom of the other driver's cards.
Freight route slips are not determined or varied by
dispatchers but variance may be obtained by the driver
calling Northfield for such permission. Dispatchers do not
have authority to give drivers cash advances or to grant
them "down time," except the latter may be granted to
drivers from the west when occasioned by a 6-minute delay
at the Ripley station, in accordance with their union
contract. Similarly, such "down time" may be granted to
drivers from the east, after a delay of 14 hours. Neither
Utegg nor any of the dispatchers (not including Manager
Henning) has the authority, nor has either of them ever
exercised the authority to hire, fire, discipline, transfer,
layoff or grant overtime or leave to any dispatcher or
mechanic at Ripley. Whenever a man is absent, the
dispatchers on duty have been given systematic authority
to call in a casual employee from a list of laid-off
employees, in their order of seniority. This list is estab-
lished and maintained by the Respondent, and the
dispatcher has no authority to vary the order of priority.
Dispatchers have nothing to do with grievances filed by
mechanics or drivers which are handled by Manager Fred
Henning.
If after having 8 hours' sleep a driver advises a dispatcher
that he is not willing or is unable to drive, or if a dispatcher
concludes that a driver is inebriated or drunk, company
rules require the dispatcher to prepare a report setting forth
the facts of the particular situation, and file the original
with the driver's home domicile, and copies with North-
field and Manager Henning's files. The dispatcher should
not and does not recommend that such driver be
discharged or otherwise disciplined.
Dispatcher Utegg had special authority from Manager
Henning to sign timecards, in the absence of Manager
Henning , but this was not a part of his regular duties and
he only exercised this authority on three or four occasions
during his entire working tenure with Respondent. Dis-
patchers do not give drivers or mechanics instructions
relating to the performance of their respective duties;
namely, driving and vehicular maintenance work. Nor do
dispatchers (except Manager Henning) have access to the
personnel files of any Ripley employees, and they do not
keep the timecards of any such employees. The dispatch-
2 The mechanics are paid $6.52 an hour for an 8-hour day and they are
guaranteed a 48-hour week , including overtime for 8 hours' work.
Dispatchers were paid $1 less per hour for a 48-hour week. Utegg's salary
was $2 29 per hour with no overtime
3 1 credit the testimonial account of Utegg, Sanford, and Manager
Henning , not only because they appeared to be testifying truthfully, but,
er's timecards are approved for payment by Manager
Henning.
The seven mechanics employed at Ripley hook and drop
hooks of the tractors to and from the trailers, make minor
repairs on the tractor-trailers such as flat tires, windshield
wipers, drain fuel fillers, and they fuel the tractors, if
necessary, to keep the freight vehicles mobile. Except for
occasionally informing the mechanics as to which load
(truck) should be given priority in readiness for travel
(which happens about 5 percent of the working time),
dispatchers generally have nothing to say to the mechanics.
Ripley mechanics are unionized and the majority of them
have worked for Respondent about 11 years. Mr. Henning
has issued instructions to all mechanics on several
occasions per memorandum (G.C. Exhs. 10, 11, 13, and 14)
regarding the location where tractors are to be parked,
directing mechanics to work full 8 hours regardless of the
time they punched the clock, directing and urging the
timely repair of tractor-trailers, and admonished mechan-
ics regarding damage to line hoses and light cord dollys
caused by careless handling of mechanics.2
A composite of the credible testimony of all of the
witnesses and the documentary evidence of record have
essentially established that, in keeping with the major
operational business objective of the Respondent, namely,
giving the best service to its customers at the lowest
possible cost, Respondent has established an office at
Northfield, Ohio, to coordinate the efficient flow of freight
amongst its transfer terminals herein involved. To further
sophisticate the operation of the system, the Ripley station
dispatchers serve as subcoordinators to Northfield by
making essentially routine decisions regarding the dis-
patching of tractor-trailers in accordance with a set of rules
or guidelines developed from Respondent's practical
experience and knowledge of its business, from initial
instructions to the dispatchers from management, as well
as from strict compliance with regulations of the U. S.
Department of Transportation, the Interstate Commerce
Commission, and provisions of the respective union
contracts of the drivers and mechanics. These rules or
guidelines (including those embodied in G.C. Exhs. 7 and
8) routinely followed by the dispatchers in dispatching
involve such directives as dispatching on a first-in, first-out
basis, giving priority to hot loads, reading and complying
with ETA or IBM system instructions or suggestions, and
the dispatcher calling Linehaul, Ace, and Cb for instruc-
tions or consultation, when nonroutine or unusual prob-
lems arise which affect the timely flow of freight. All of
these things are done in an effort to minimize imbalances
in the flow of freight in an effort to maintain a reasonable
and relatively even utilization of drivers and equipment .3
Mr. Phillip D. Stanoch, director of industrial relations
for Respondent, credibly testified that dispatchers at other
locations of Respondent, who perform the same duties as
Ripley dispatchers, are unionized but they are not covered
because their versions are essentially consistent with and corroborative of
each others' Although on direct and cross-examination Utegg often said he
made certain decisions with respect to dispatching , the entire evidence of
record nevertheless shows that he did not in fact (independently) make such
decisions but, instead , implemented the decisions in accordance with rules
and practices established by Respondent.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the management vacation and work incentive plans as
are the Ripley dispatchers.
Based on the foregoing credible testimony and documen-
tary evidence, I conclude and find that the Ripley
dispatchers carried out essentially ministerial duties with
respect to other dispatchers, mechanics, and drivers at the
Ripley station; that the dispatchers do not in any way
direct or instruct the mechanics or the drivers with respect
to the performance of their respective duties of driving or
repairing the tractor-trailers ; that the dispatchers do not
keep timecards or personnel files of mechanics, drivers, or
other dispatchers ; that dispatchers do not exercise, nor
have they the authority to hire, fire, layoff, discipline,
transfer , or grant overtime or leave to any other dispatcher,
mechanic , or driver; that the dispatchers exercise very little
or no independent discretion in performing their duties,
but rather , make routine decisions in accordance with rules
and practices established over a period of time by
Respondent , follow specific instructions or suggestions
from their superior coordinators, and simply comply with
regulations of the U.S. Department of Transportation, the
Interstate Commerce Commission, or provisions of the
respective union contracts of the drivers and the mechan-
ics; and therefore, the dispatchers are not supervisors but
are employees within the meaning of the Act.
C. Union or Concerted Activity of Dispatchers
Utegg credibly testified that prior to January 28, 1974,
Manager Henning worked as a relief-dispatcher on the off
days of dispatchers Utegg, McGinnis, and Sanford.
However, the following notice was given to the dispatchers
and posted on the bulletin board on the date indicated
therein:
To All Supervisors4
From Fred Henning
Subject Shift Change
Date 1125174
At 0800/28 the following shift change for Supervi-
sors will become effective . If any questions concerning
the change , feel free to contact me.
Sat. Sun. Mon. Tue.
0001 Utegg Utegg Utegg Utegg
0800 Sanford Sanford Hannin Henning
1 6600 McKinnie
tied.
McKinnis
Thu.
Sanford
Fri.
MCKinnie
0001 Sanford Utegg Utegg
0800 Henning Sanford Sanford
1600 ltKinnis McKinnia McKinnia
/s/ Fred Henning
cc: V. Shepard
4 Although the memorandum (notice of change in work shifts) is
addressed to "All Supervisors ," the individuals named therein are all
Dispatcher Sanford credibly testified that he received a
copy of the above memorandum on January 25 and
thereupon called Mr. Henning about 4:15 p.m. that
afternoon and advised him that he (Sanford) had taken
night calls in St. Louis for 4 years and that it interrupted
his sleep working so many different shifts in 1 week; that
he Sanford got angry, said he would resign and hung up
the telephone but he called back, apologized, and said he
would like to talk to him (Mr. Henning) the next morning
(January 26); that when he went to Mr. Henning's office
the next morning he tried to talk to him but the latter
pushed the telephone in front of him and said "call
whoever you want to call"; and that he pushed the phone
back and told Henning he did not want to call anyone
because he could work out the sleeping problem. Sanford
also said he discussed his dissatisfaction with the changed
work schedule with Utegg and McGinnis, and he asked
them if they thought it was a good deal after all the years
he had worked for Respondent.
Utegg credibly testified that, on the evening of January
25, he talked with Mr. Johnson, the steward for members
of Local 649 of the Ripley station, and advised him that the
dispatchers at Ripley wanted to organize; that Mr.
Johnson said he would call Mr. Francis Harvey, business
agent for IBT at 9 a.m. on the next day, January 26; that
on the next morning Mr. Johnson called Mr. Harvey for
Utegg and Mr. Harvey asked Utegg was he a supervisor
and did we have the authority to hire and fire people
(mechanics and drivers) and Utegg replied in the negative
to both questions. On that same morning, or the next
morning, Utegg said he called Manager Henning and
advised him that he had contacted the Union. Utegg
admitted on cross-examination that the business of
Respondent is huge and complex and that the dispatchers
control the efficiency of the Ripley station.
A composite of the credible testimony of Utegg and
Sanford established that in early February they told
Manager Henning that the dispatchers wanted to see him
at 3 p.m. and Manager Henning consented and did in fact
meet with them for about an hour. During the meeting
Utegg said the dispatchers complained about the four shift
changes since Labor Day 1973, and stated that Manager
Henning made the change for his own benefit. Utegg said
he also said he was tired of working an 8-hour shift because
it cuts short his weekends and he (the dispatchers) did not
receive enough in salary; that the mechanics received.
$140.79 more than they do and that dispatchers in the
Union at Northfield received $1 an hour more. He
requested that the dispatchers be allowed to work 12-hour
shifts, 4 hours on and 4 hours off, and pointed out that
dispatcher Smith was not replaced when he left Respond-
ent's employ. Dispatcher McGinnis said very little during
the meeting.
Utegg and Sanford further testified that Henning said he
understood their problem and that he would take it up with
management . Utegg requested I week's leave for vacation
which was approved by Henning for the first part of
February. On February 25 Manager Henning met with the
dispatchers and informed them that he had discussed their
dispatchers.
SPECTOR FREIGHT SYSTEM, INC. 563
problem with management but could not do anything for
them . Utegg then said "well if that is the best Henning
could do, they [the dispatchers ] should join the Union."
The dispatchers said Manager Henning was pleased with
their interest in the Union and said that it would make the
job better for all of them because they would then have
four dispatchers , and he (Henning) would not have to
dispatch . McGinnis did not support the idea of unioniza-
tion but he was dissatisfied with the new work shift.
During the same meeting on February 25, Manager
Henning told Sanford he was doing a good job; that the
Respondent had made $ 183,000 in the last quarter of 1973
and that both he (Sanford ) and Utegg were due for a raise.5
Based on the foregoing credible testimony, I conclude
and find that on January 25 through February 25,
employees Utegg, Sanford, and McGinnis requested a
meeting and did in fact meet and communicate with their
supervisor, Manager Henning, about their mutual interest
in their individual and collective work schedules as
dispatchers, as well as their salaries; that one of said
dispatchers (Utegg) advised Manager Henning of their
interest in and contemplation of joining the Union; that
neither of said dispatchers ever refused or failed to work
their shifts in accordance with the new schedule of January
25; and that such efforts on the part of the dispatchers, on
behalf of themselves and on behalf of each other,
constituted concerted and/or union activity.
Respondent 's knowledge of dispatcher's concerted
or union activity
Manager Henning credibly testified that after his
meeting with the dispatchers on February 25, 1974, he
talked with Mr. Vince Shepard of management of the
Respondent corporation , whom he told about everything
that was said at the meeting with the dispatchers , including
their plan to unionize if Respondent did not have a fourth
dispatcher. About 8 p.m. on that same day, February 25,
he (Henning) received a call from Mr. Steve Neiman, vice
president of transportation for Respondent, who said he
had talked to Mr. Shepard and was told about his meeting
with the dispatchers; that after a brief discussion about the
meeting Mr . Neiman asked him "why don't we terminate
these fellows right now?"; that he (Henning) was shocked,
and asked him was he serious and Mr. Neiman said "yes";
that he then asked Mr. Neiman, on what grounds, and Mr.
Neiman said "negative attitude as far as willingness to
accept the working conditions as they are"; and that he
then said we should terminate them before they go to the
Union.
Mr. Henning admitted on cross-examination that
neither Utegg , Sanford, nor McGinnis had refused to work
the newly changed work schedule . Mr. Neiman then
suggested that he (Henning) get in touch with Mr. Shepard.
Consequently, Manager Henning said he telephoned Mr.
Shepard in Nashville about 11 o 'clock that night (February
25, 1974) and again they discussed the dispatchers'
situation , including terminating the dispatchers , and again
5 Manager Henning said he did not say Utegg and Sanford were due for
a raise, but rather, that they were due for review for a raise and that he
(Henning) would recommend them for a raise. I credit Manager Henning's
version over Sanford's and Utegg's version as being a more accurate
during the next morning, February 26, when Mr. Shepard
asked him if he felt that the current dispatchers were the
type of people, type of cooperation he wanted to work
with, and he (Henning) said "no." So he (Henning)
thereupon decided to terminate dispatchers Utegg, McGin-
nis, and Sanford.
D. Respondent's Discharge of Dispatchers
About 12:30 p .m., 1 p.m., and after 1:30 p.m. on
February 26 , Manager Henning called dispatchers San-
ford , McGinnis , and Utegg, respectively, and essentially
advised each of them individually that it was the decision
to management to terminate their employment with
Respondent effective that day; that the termination was
not due to union activity but for negative attitudes, not
willing to accept the working conditions, hours, and the
decisions of management ; except that Manager Henning
told Sanford his poor work was a factor in his termination.
Manager Henning asked each dispatcher did he have
anything to say and Sanford said nothing , Utegg said he
did not think Respondent would be that dumb; and
Henning asked Utegg would he be willing to accept
working conditions as they were and the latter said "yes,
but he would not be able to change his attitude."
When he (Henning) advised McGinnis that he was
terminated, Manager Henning described McGinnis' reac-
tion and their conversation as follows:
... After he absorbed this shock, he went into great
detail that he was very sorry that it had happened, that
the crisis had come to this point. He had explained to
me that he had great plans, was going farther in the
company other than being a dispatcher. We discussed
this a little farther as far as what his plans actually
were. We discussed his negative attitude as far as being
not willing to accept the working conditions as they
were, the hours, the money involved, and so on. After
talking with Ron these few minutes, I raised the
question if the position was available, would he be
willing to accept this under the same working condi-
tions which he had previously held. He said he would
and was very-would be very grateful to accept a
position as such. And after talking with Ron and
listening to him, I made the decision to rehire him and
reinstate him and at this point I informed him of this
and told him to report to work at 4:00 o'clock the 16th.
Q. Do you recall if Mr. McGinnis stated anything
regarding future acceptance of management decisions?
A. I don't know as it would be stated in exactly
that way but he was very willing to accept-well, you
could almost say as far as management decisions, he
was willing to accept them.
Q. And you reinstated him?
account of Henning's statement , because it is not substantially different
from Sanford's and Utegg's account and because neither Sanford nor Utegg
disputed his version.
564
A. Yes .6
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the credible evidence and findings described
under Sections B and C (supra), I conclude and find that,
through Manager (Supervisor) Henning's knowledge of the
concerted activity of Utegg, Sanford, and McGinnis on
January 25 through early February, and more particularly,
through the joint knowledge of Manager Henning and
corporate officials Neiman and Shepard , of the views and
demands of the subject dispatchers on February 25,
Respondent did in fact have knowledge of the concerted
and/or union activity of the subject dispatchers on
February 25; that based on such knowledge, Vice
President Neiman suggested that Manager Henning
terminate said dispatchers for their concerted activity and
union interest before they went to the Union; that Officer
Shepard and Manager Henning not only acquiesced in this
suggestion , but Manager Henning implemented it by
terminating said dispatchers on February 26; that the
reason for the dispatcher 's termination , suggested by Vice
President Neiman and relayed to the dispatchers by
Henning, was pretextual ; that Manager Henning 's rehiring
of dispatcher McGinnis was based on the implied
condition of the latter's promise to relinquish his interest
and participation in the concerted and/or union activity of
the dispatchers , and his willingness to accept the working
hours and conditions as established by Respondent; that
when Utegg and/or Sanford refused or failed to make such
a pledge as did McGinnis , they were not rehired by
Respondent ; that such fact is clear evidence of Respond-
ent's animus towards the dispatchers' concerted and union
activity and reveals the real motivating discriminatory
cause for their discharge and denial of reemployment; that
since Manager Henning terminated the employment of
Utegg, Sanford, and McGinnis, for their concerted activity
and union interest, characterized by Henning as "negative
attitude and unwillingness to accept the working condi-
tions, hours, and directives of Respondent , without any
evidence that either dispatcher failed or refused to comply
with the new work schedule , such discharges were
disparate and discriminatory in violation of Section 8(aX3)
and (1) of the Act; that, although Henning added that
Sanford was also terminated for poor work, the evidence
does not substantiate this charge and Sanford was not
given any warning about , or opportunity to question, such
charge ; that under the circumstances Sanford's termina-
tion is not shown to have been based on cause; and that
Respondent's (Manager Henning) disclaiming that the
three dispatchers were not discharged for concerted or
union activity is merely pretextual.
E. Interrogation of Discharged Dispatcher
Sanford also credibly testified that, subsequent to his
discharge, he called Manager Henning and asked to meet
with management to discuss his discharge , and that at first
Manager Henning told him he was not allowed to discuss
6 I credit the testimony of Manager Henning because not only was I
impressed that he was testifying truthfully, but his testimony is essentially
consistent with that of Utegg and Sanford, as well as with the logical
consistency of all of the evidence of record.
7 1 credit Sanford's testimony not only because I received the distinct
the matter with him . However, on March 15 , Manager
Henning called him and informed him that Mr. Shepard, a
management representative of Respondent , was due in
town and they agreed to meet with Utegg at the Squire
Motel . Sanford attended the meeting and said he asked
Messrs. Henning and Shepard why he (Sanford) and Utegg
could not return to work ; that Mr . Shepard said they
(Sanford and Utegg) had union on their minds, that he
would not trust them running the station , and, further-
more , Respondent had a meeting with the Labor Board in
Buffalo that week and they could not do anything until he
and company representatives had a meeting . Sanford said
he then advised Mr. Shepard that their (dispatchers) job
status and work schedules continued to change to their
disadvantage and dissatisfaction , and that Mr. Shepard
said he should have come to them (Respondent) instead of
going to the Labor Board ; that Mr . Shepard and/or
Manager Henning asked him if he went to the Labor
Board and he (Sanford ) said "yes." He (Sanford) told Mr.
Shepard that he called Manager Henning the first 2 weeks
but the latter informed him that he (Henning) was not
allowed to talk to him; and that Mr. Shepard wanted to
know if he (Sanford) and/or Utegg were going to the
Union , and he advised him that Utegg had called the
Union and that was as far as it went.?
I therefore conclude and find upon the foregoing
credible testimony that, after Utegg, Sanford , and McGin-
nis were fired and McGinnis was rehired , Respondent
asked Sanford whether he and Utegg went to the Union
and whether they went to the Labor Board , and, if so, why;
that although Sanford answered both of these questions in
the affirmative, while he was seeking an explanation for his
discharge and the possibility of his reinstatement , neither
Sanford nor Utegg was rehired or reinstated by Respond-
ent; that such refusal or failure by Respondent to reemploy
Sanford and/or Utegg was obviously motivated by its
discriminatory discharge of Sanford and Utegg on Febru-
ary 26, and its antiunion interrogation of Sanford on
March 15 ; during which it learned that they had contacted
the Union and the Labor Board ; and that such interroga-
tion constituted an interference with, restraint upon, and
coercion against employees' rights protected by Section 7
and was therefore violative of Section 8(axl) of the Act.
Analysis and Conclusion
A reading of the entire record in this proceeding readily
reveals that the evidence herein is essentially free of
conflict. Hence, the major dispute between the parties (the
Respondent and the dispatchers) is whether the discharged
dispatchers were supervisors within the meaning of the
Act. In resolving this issue, it would appear that an
examination of the Act in this regard is warranted.
Section 2(11) of the Labor Management Relations Act,
as amended, provides as follows:
impression that he was truthful and accurate in testifying , but also because
Mr. Shepard did not appear in this proceeding and Manager Henning nor
any other representative of Respondent did not dispute his testimony, which
is also not inconsistent with the tenor of the entire evidence of record.
SPECTOR FREIGHT SYSTEM, INC. 565
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall , promote , discharge,
assign , reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority is
not of a merely routine or clerical nature , but requires
the use of independent judgment.
In relating the evidence of record to the language of the
above-cited section of the Act, it is noted that the evidence
is clearly unequivocal that neither dispatcher Utegg,
Sanford, nor McGinnis had, nor exercised authority to
hire, fire, transfer, suspend, layoff, recall , promote, actually
and not routinely, assign, reward, or discipline any of the
drivers, mechanics , or even each other (dispatchers), nor
any other employees of Respondent . Nor did such
dispatchers have or ever exercise any responsibility to
direct the drivers, mechanics, or each other, in the
performance of their respective duties, or to adjust their
grievances which were processed by Manager Henning.
Although the subject dispatchers exercised some judg-
ment and discharged some clerical chores in the perfor-
mance of their dispatching duty, the exercise of such
judgment was not substantially , if at all, independent, but
rather, routinely in accordance with instructions , rules,
long-established practices, regulations of the U. S. Depart-
ment of Transportation , the Interstate Commerce Commis-
sion, and certain provisions of the respective contracts of
the drivers and the mechanics . Essentially all clerical work
performed by the dispatchers was of a recordkeeping and
informative nature, and was routinely executed . While the
evidence concedes that the performance of the dispatchers
can significantly affect the efficiency of the operation of
Respondent 's business , so can the performance of bricklay-
ers on a construction job, or the performance of busboys in
a restaurant affect such business operations . However,
neither of such employees , ipso facto, can be said to be
"supervisors" as that term is defined in the Act . Likewise,
nor does the mere fact that the Ripley dispatchers enjoyed
the same vacation time and incentive award opportunities
as did management, render them "supervisors" in the face
of the conspicuous absence of the several other attributes
of a supervisor enumerated in the Act. Moreover the Board
has repeatedly held that the mere conferment of the title
"supervisor" upon a worker does not make him a
supervisor in the absence of delegating such authority and
duties as are outlined in the Act . Consequently, the
evidence permits only one conclusion, and that is, that
dispatchers Utegg, Sanford , and McGinnis were not
supervisors within the meaning of the Act.
Since the evidence is clear that dispatchers Utegg,
Sanford , and McGinnis were dissatisfied with their salaries
and the new work schedule posted on January 25 ; that they
thereafter discussed their dissatisfaction with each other
and with Manager Henning ; that they further discussed
their dissatisfaction on their plan to unionize with each
other and with Manager Henning on February 25; that
such conduct on the part of the dispatchers, in addition to
Utegg's contact with the Union on February 25, constitut-
ed concerted and union activity of the dispatchers, of
which Manager Henning (Respondent) had full knowledge
and which he imparted to other higher management
officials. Hence the evidence is uncontroverted that, on
February 25 and 26, Respondent had knowledge of the
dispatchers' concerted and/or union activity.
In view of the considerable anticoncerted and antiunion
activity discussions amongst Manager Henning and man-
agement representatives, Neiman and Shepard, on Febru-
ary 25 and 26, about the dispatcher's concerted and union
activity, followed by management's subsequent concurring
decision and action in discharging dispatchers Utegg,
Sanford, and McGinnis on February 26, the conclusion is
inevitable that the dispatchers' concerted and/or union
activity was the sole and motivating cause for their
discharge by Respondent. Moreover, the very reasons
given by Respondent for the dispatchers' termination,
coupled with its interrogation of dispatcher Sanford after
his discharge, about his going to the Union and the Labor
Board, make it abundantly clear that all three dispatchers
were not only discharged for their concerted and union
activity, but that Utegg and Sanford were denied reem-
ployment by Respondent for the same reasons . Conse-
quently, both the discharge of the three dispatchers (Utegg,
Sanford, and McGinnis) and the failure or refusal of
Respondent to rehire Utegg and Sanford were discrimina-
tory and violative of Section 8(a)(3) and (1) of the Act.
When the discharge of the dispatchers and Respondent's
failure or refusal to rehire Utegg and Sanford are
considered in the context of Respondent's total conduct
along with Manager Henning and Mr. Shepard 's interroga-
tion of Sanford on March 15, it becomes clear that such
interrogation was of an interfering , coercive, and restrain-
ing nature and effect, and, therefore, was unlawful and in
violation of Section 8(axl) of the Act.
In arriving at the above conclusion and findings, I did
not construe a dispatchers' duty to refuse to dispatch a
driver whom he deemed drunk as a discretionary authority
and function. Rather, I view such a determination as a
routine factfmding function mandated by Government
regulations and company policy, which, once made,
deprived the dispatcher of any independent discretion and
further imposed upon him an additional ministerial duty
not to dispatch such driver.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial Order, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies of
the Act.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been found that Respondent interfered with,
restrained, and coerced Dennis E. Utegg, Earl W. Sanford,
Ronald McGinnis, and its other employees in the exercise
of their Section 7 protected rights in violation of Section
8(a)(1) of the Act; and that it discharged Dennis E. Utegg,
Earl W. Sanford, and Ronald McGinnis and failed or
refused to rehire Dennis E. Utegg and Earl W. Sanford in
violation of Section 8(a)(3) and (1) of the Act, the
recommended Order will provide that Respondent offer to
Dennis E. Utegg and Earl W. Sanford their jobs, and make
them whole for loss of earnings within the meaning and in
accord with the Board's decisions in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), except as specifically
modified by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any other manner
interfering with, restraining, or coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg., Co., 120 F.2d 532, 536 (C.A. 4,
1941).
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Spector Freight System, Inc., the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 649, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is,
and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the tenure of
employment of Dennis E. Utegg, Earl W. Sanford, and
Robert McGinnis thereby discouraging employees concert-
ed activity and membership in the Union, a labor
organization, Respondent has engaged in unfair labor
practices condemned by Section 8(aX3) and (1) of the Act.
4. By interrogating its employee Earl W. Sanford about
his past and current union affiliation, Respondent violated
Section 8(a)(1) of the Act; except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing fmdings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER8
Respondent, Spector Freight System, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining, coercing or discriminat-
ing against employees' exercise of their Section 7 protected
rights, by interrogating employees about their union or
concerted activities, or threatening to treat them differently
on account thereof.
(b) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment because of protected
concerted activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Dennis E. Utegg and Earl W. Sanford
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights previously enjoyed, and make them whole for
any loss of pay suffered by reason of the discrimination
against them with interest at the rate of 6 percent, in the
manner described in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of the recommended Order.
(c) Post at Respondent's Ripley facility, at Ripley, New
York, copies of the attached notice marked "Appendix."9
Copies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respond-
ent for 60 consecutive days thereafter, in conspicuous
places, including all places 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.
(d) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
8 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.
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.
9 In the event that the Board 's Order is enforced by a Judgment of the
United 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 Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees
about their and other employees' union membership,
activities and desires.
WE WILL NOT threaten to treat employees differently
on account of their concerted or union activity.
SPECTOR FREIGHT SYSTEM, INC.
WE WILL NOT discourage membership in Local 649,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , or any other
labor organization , by discharging employees or other-
wise discriminating in any manner in respect to their
tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise and
enjoyment of rights guaranteed to them by Section 7 of
the National Labor Relations Act, except to the extent
that such rights may be affected by lawful agreements
in accord with Section 8(aX3) of the Act.
WE WILL offer Dennis E. Utegg and Earl W. Sanford
immediate and full reinstatement to their former
567
positions or, if such positions no longer exist, to
substantially equivalent ones, without prejudice to the
seniority and other rights and privileges enjoyed by
them, and make them whole for any loss of pay they
may have suffered by reason of their discharge, with
interest at the rate of 6 percent per annum.
All our employees are free to become, remain , or refuse
to become or remain members of said Union or any other
labor organization , except to the extent that such rights
may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
SPECTOR FREIGHT SYSTEM,
INC.