The Boston Store

National Labor Relations Board - Board Decisions

Dec 11, 1975

221 N.L.R.B. 1126 (N.L.R.B. 1975)

1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Boston Store and General Warehousemen Local
No. 598, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Petitioner . Case 21-RC-14040
December 11, 1975
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On June 5, 1975, the Regional Director for' Region
21 issued a Supplemental Decision and Order in the
above-entitled proceeding, in which, inter alia, l he
overruled the challenge to the ballot cast by Jeffrey
Hamilton on the basis that he is not a supervisor as
defined in the Act, and therefore overruled, the
Employer's Objections 1 and 2 alleging that Hamil-
ton's participation in the Petitioner's organizational
effort tainted the showing of interest to support the
petition. Thereafter, in accordance with the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Employer filed a timely request
for review of the Regional Director's decision on the
grounds, inter alia, that in making the above
determinations he departed from precedent.
On September 18, 1975, the National Labor
Relations -Board by telegraphic order granted the
request for review solely with regard to the issues
raised concerning Hamilton's status and Objections 1
and 2, and denied it in all other respects. Thereafter,
the Employer filed a brief on review.
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 entire record in this
case with respect to the issues under review,
including the Employer's brief on review, and hereby
affirms the Regional Director's determinations to
overrule the challenge to Hamilton's ballot and to
overrule Objections 1 and 2.2 Accordingly, the case is
hereby remanded to the Regional Director for
further proceedings pursuant to his Supplemental
Decision and Order.
1 The tally of ballots for the election conducted on May 18, 1975, showed
that four valid ballots were cast for, and three against, the Petitioner and
that two ballots were challenged, a number sufficient to affect the results.
The Regional Director overruled the challenges and the Employer's
objections, and he ordered the opening and counting of the challenged
ballots.
E As no additional evidence was presented concerning Hamilton 's status,
the Regional Director adhered to the finding he made in his Decision and
Direction of Election that Hamilton is not a supervisor The relevant
portion (fn 2) of his earlier decision is attached hereto as an appendix.
Except for his substitution for the general manager during the latter's
absences from the warehouse, there is no evidence that Hamilton exercises
APPENDIX
The Employer operates a warehouse at 1010 East
Sandhill Avenue, Carson, California, from which it
supplies its retail junior department stores in Los
Angeles and Orange Counties, California.
The unit is in substantial accord with the stipula-
tion of the parties.
The only issue presented by the record is the
supervisory status of Jeffrey Hamilton. The Employ-,
er contends that Hamilton is a supervisor within the
meaning of the Act, whereas the Petitioner contends
that Hamilton is not a supervisor and that he"should
be included in the unit.
The employees in the unit work in the distribution
and dock areas of the warehouse. Both areas are
under the supervision of Richard Carpenter, the
general manager. During Carpenter's absence, the
dock employees are directed by Hamilton, and the
distribution employees by Alice Thurman. Carpenter
is absent from the warehouse approximately 8 hours
per week on the average. Neither party contended
that Thurman should be excluded from the unit.
The dock work force consists of four employees.
Hamilton and one other employee work on the dock,
receiving good's and unloading trucks. The other two
employees are truckdrivers,who assist in loading and
processing their shipments when they are in the dock
area. The work of receiving consists, of checking
incoming goods and placing them in areas designat-
ed for storage of the type of merchandise contained
in the package. Usually, the, appropriate area can be
determined by reading the labels. When the label is
missing or incomplete, the employees consult Car-
penter as to where to put the merchandise. In
Carpenter's, absence, they consult Thurman or
Hamilton.
A memorandum kept by the Employer at Carpen-
ter's desk states that in Carpenter's absence, all
questions arising as to truck routing should be
directed through Hamilton, and all questions arising
as to merchandise processing should be directed
through Thurman. The trucks follow a basic schedule
established by others than Hamilton. Hamilton can
direct a truck to proceed to a particular store in
response to a request from the store, and has
exercised this authority occasionally, when a truck-
supervisory authority. Our review of the record reveals that the general
manager is absent from the plant "up to a couple hours a day" and for
"probably no more than 8 hours a week " Hamilton testified that the
general manager "[I lust cuts out in the middle of the day to get some lunch
or go to the bank " There is no indication in the record that Hamilton is
aware of the general manager's departure or that, during the latter's
absences, when problems apse in his direction of employees, Hamilton acts
on his own to resolve them instead of waiting for the return of the general
manager Upon these facts , therefore, we conclude that Hamilton's effective
substitution during the general manager 's absences from the warehouse are
too sporadic to warrant a finding that Hamilton is a supervisor as defined in
the Act
221 NLRB No. 188
THE BOSTON STORE
driver has skipped a store, or when a truckdriver
visits one store twice, causing a departure from the
schedule.
Although the record reveals that Kaufman asserted
that Hamilton had the power to hire, fire, and
discipline employees during Carpenter's absence,
Hamilton denied that he had any such authority.
Both Kaufman and Hamilton testified that he never
exercised these powers. Kaufman also asserted that
he and Hamilton granted employees time off and
authorized overtime in Carpenter's absence. Hamil-
ton further testified that he did not have authority to,
and never did,, assign work, lay employees off, grant
employees time off, or authorize overtime. On two
occasions, Hamilton was advised of job openings and
told friends to apply for jobs. On both occasions his
friends were hired, but only after following the
Employer's normal application procedure, including
interviews. Hamilton does not take part in interview-
ing applicants for employment.
Hamilton is paid on an hourly basis, as are the
other dock employees. The Employer reviews the
employees' pay semiannually. Hamilton has been
employed longer than the other dock employees and
is paid about 15 to 20 percent more than the others.
Carpenter is paid on an annual salary basis and
makes 30 to 40 percent more than Hamilton.
Hamilton's pay is approximately the same as that of
Thurman and Mike Porter, other employees included
in the unit. Hamilton spends most of his time
performing the same duties as the other dock
employees, while Carpenter rarely does physical
work.
Where supervisory authority has been vested in an
employee, but has never been exercised, the Board
has held that the attribution of such authority in
itself does not make the individual a supervisor.
1127
Checker Cab Company d/b/a Checker Cab and
Buckhead Cab, 180 NLRB 737. Substitution for a
supervisor by an employee, when the' employee does
not exercise the supervisor's authority, does not
confer supervisory status on the, employee, while
such substitution for a supervisor would confer
supervisorial status on that employee if a substitutial
share of the absent supervisor-'s authority were
exercised. Cubit Systems Corporation, 194 NLRB 622,
624; Okla-Inn, d/b/a Holiday Inn of Henryetta,` 198
NLRB 41.0. Hamilton has never' substantially exer-
cised any of the indicia of -supervisory authority
attributed ,to him by Kaufman, and when he has
filled in during Carpenter's absence, from the-
warehouse, he has not assumed any substantial part
of Carpenter's authority. Such direction of work, as
Hamilton does engage in, such as placement of
shipments and direction of trucks in case of errors,
extend only to routine 'matters. Furthermore, the
instances of work direction by Hamilton appear to
be sporadic and minor in nature. Where employees
are basically familiar with standardized tasks and
consult with another employee about them mainly,
because he is more experienced than they, the
employee consulted is not a supervisor. Morris Weiss-
d/b/a Mook ' Weiss Meat Packing Co., 160 NLRB
546, 548; Sanborn Telephone Company, Inc., 140
NLRB 512, 515. Hamilton, the more experienced of
the dock employees, appears to fill such a role, rather
than to exercise substantial authority in the interest
of the Employer.
In view of all the foregoing and the record as a
whole, I find and conclude that Jeffrey Hamilton is
not a supervisor within the meaning of the Act, and
is properly included in the unit.
There are approximately 10 employees in the unit.