Webb Fuel Co.

National Labor Relations Board - Board Decisions

Jan 16, 1962

135 N.L.R.B. 309 (N.L.R.B. 1962)

WEBB FUEL COMPANY 309
to bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any and all such activities except to the
extent that such right may be affected by an agreement authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with Lumber & Sawmill Workers
Union, Local No. 2767 of United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, as the exclusive representative of all employees in the
appropriate bargaining unit described below with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment, and em-
body in a signed agreement any understanding reached. The bargaining unit is:
All employees at our Randle, Washington, plant, excluding supervisors,
office clerical employees, and guards as defined in the Act.
WE WILL offer to Zelia M. Hessler, Dorothy Callahan, Lowell Joe Hessler,
and Byron Barker immediate and full reinstatement to their former or substan-
tially equivalent position, without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of pay suffered as a result of
the discrimination against them.
All our employees are free to become or refrain from becoming members of
the above Union, or any other labor organization, except to the extent that said
right may be affected by an agreement in conformity with Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.
COWLITZ VENEER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office (327
Logan Building, 500 Union Street, Seattle 4, Washington; Telephone Number, Mutual
2-3300, Extension 553) if they have any question concerning this notice or compliance
with its provisions.
Webb Fuel Company and Chauffeurs, Teamsters and Helpers
Union, Local No. 364. Case No. 13-CA-3974. January 16, 1962
DECISION AND ORDER
On August 7, 1961, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent had not engaged in and was not engaging in unfair labor
practices and recommending that the complaint be dismissed in its
entirety, as set forth in the Intermediate Report attached hereto.
Thereafter the General Counsel, the Union, and Respondent filed ex-
ceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Rodgers].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and the briefs, and finds merit, in the exceptions of the Union and the
135 NLRB No. 30.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel. 'Accordingly, the Board adopts the findings of the
Trial Examiner only to the extent consistent herewith.
1. We disagree with the Trial Examiner's finding that Jo Ann
Dudik was a supervisor within the meaning of the Act.
Respondent buys and sells coal and oil at several stations or branches
in the States of Michigan and Indiana, but only its South Bend,
Indiana, station is involved herein. Its business is seasonal in nature,
the busy heating season usually running from October through
March. During this season, it employs from 3 to 5 persons in the
office and from 10 to 11 on the delivery force. During the remainder
of the year it employs from two to three persons in the office and a
like number on the delivery force.
Respondent furnishes each of its station managers a Manager's
Manual. This manual serves both as a guide and reference for the
manager and as a means of acquainting management trainees with
company policies.
Under the section of the manual entitled Webb Fuel Company Sal-
ary and Wage Policy, assistant managers are listed as salaried per-
sonnel and are to be paid from $60 to $125 per week. In addition;
they are eligible for a pension upon retirement. Clerical personnel,
on the other hand, are to be paid on an hourly basis, do not receive a
bonus, and are not eligible for a pension.
The Manager's Manual also sets out the chain of progression which
an employee must follow to become a manager, starting with manage-
ment trainee and advancing to salesman, assistant manager, and
finally manager. There is no provision whereby an office clerical em-
ployee can progress, through experience, to the position of assistant
manager or manager.
Respondent contends that Jo Ann Dudik is assistant manager at
the South Bend station. Dudik was hired by Respondent as an office
clerk in September 1958. At that time she was 18 years old and re-
ceived a starting wage of 85 cents per hour. Within several months
her wage rate was increased to $1.35 an hour, but she received no fur-
ther increase during her last 2 years of employment with Respondent.
Dudik was taught the office procedure by Eugene Zubko, who had been
Respondent's manager for 7 years and who, according to his testi-
mony, had developed a procedure which he wanted her to follow. In
the course of her duties, Dudik sold coal, did some accounting work
(some of which she certified as correct herself), dispatched drivers
and assigned them to other tasks around Respondent's yard, took job
applications for new hires, ordered office supplies, arranged for the
repair of office machinery, purchased S & H stamps, and instructed
new employees as to office procedures. She was never told during her
more than 2 years of employment that she was an assistant manager,
and, despite the position which Respondent now takes, it repeatedly
referred to Dudik in all its personnel transactions an an office clerk.
WEBB FUEL COMPANY 311
At the hearing, Respondent's -witnesses testified that Dudik• was in
charge of the office in Zubko's absence. Apart from illness or vacation;
the references to Zubko's absences are to the nonheating season, during
which he was at times out soliciting business. As stated above, there
were only two or three drivers and one other office employee employed
at this time. Dudik had only to carry out the standard office pro-
cedures with which she had become familiar. Zubko was careful to
leave her instructions when he anticipated situations that would be new
to her, and Dudik oftentimes called him on the phone before making
certain decisions. Zubko testified that on occasions when he was away
and Dudik had to leave the office, "... whoever she left there would
conduct the business...." The Board has rejected the contention
that one who substitutes sporadically for a supervisor is himself a
supervisor.'
Zubko testified that Dudik assigned work both to the drivers and the
office employees. As to the former, Respondent's Manager's Manual
lists the dispatching of drivers as one of the duties of office clerks.
Due to the fact that immediate need for drivers fluctuates according to
weather conditions, Dudik, in the absence of Zubko, •at times called
out additional drivers, sent them home early, and assigned them other
tasks around Respondent's premises to fill out their time. All of this
is according to the procedure which Zubko initiated and is, we find, a
routine clerical matter. As to the assignment of work to other clerical
employees, Dudik testified that both she and Dolores Kowalik, the
part-time office employee, gave each other work to do when one of them
had more than she could handle.
Respondent stressed the fact that Dudik had authority to discipline
employees and-cited two specific instances to support this allegation.
In the first of these, Dudik sent home employee Cleo Wilson who had
reported for work in an intoxicated condition. The Board has held in
a similar situation, however, that an isolated act of discipline of this
type does not make a supervisor out of a rank-and-file employee .2 The
second instance involved a former employee named Brubaker. Zubko
testified that Dudik discharged Brubaker. Zubko, however, had not
,been present when this allegedly happened but had learned of it from
an employee. Dudik testified that Brubaker had quit after being
reprimanded by Zubko for driving too fast in Respondent's yard.
The Trial Examiner did not resolve the conflict in testimony by
making a credibility finding. It is significant, in viewing the con-
flict, that Zubko's testimony was based entirely on hearsay. More-
over, Respondent did not produce Brubaker's severance slip at the
hearing. Respondent's Manager's Manual states that a severance
'Seattle Automobile Dealers Association , 122 NLRB 1616.
2 The Canemnatti Transit Company , 121 NLRB 765.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
slip giving the reason for discharge or other cause of termination must
be sent in on the last day of work.
Although Respondent contends that Dudik had the authority to
hire, transfer, suspend, lay off, and recall other employees, Dudik
denies this and there is no other evidence in the record to show that
she had such authority. She was consulted by Zubko about the prog-
ress of certain employees, but the record shows that her opinions were
not treated as effective recommendations. The fact that she instructed
new clerks as to office procedure was only a natural consequence of her
position as the only full-time office employee, and not any indication
of supervisory status.
We find, therefore, after u close scrutiny of all the duties performed
by Dudik, the part she played in Respondent's business operation, the
distinction drawn by Respondent between managerial and office cleri-
cal personnel in the Manager's Manual, and the manner in which she
has been continuously classified by Respondent, that Jo Ann Dudik
is not a supervisor within the meaning of the Act. -
We further find that the unit of office clerical employees sought by
the Petitioner is an appropriate unit.
2. Respondent contends that it had a good-faith doubt that the
Union represented an uncoerced majority of the office workers at the
time of the Union's demand for recognition.
Employees Dudik and Kowalik signed union authorization cards on
November 7, 1960. The Union notified Respondent by letter the next
day that it represented the office employees and requested a meeting on
November 11 in order to discuss a collective-bargaining contract. On
November 9, Zubko called Dudik and Kowalik into his office, showed
them the Union's letter, and asked them if they had joined the Union.
Each replied that she had. Kowalik went on to say that her husband
had told her not to be a "scab" but to join the Union. She also stated
that the union agent had told her she would be out of a job if she did
not become a member within 30 days after the Union got in. Zubko
began to explain Indiana's right-to-work law to her but stopped and
asked her again if she had signed an authorization card. When Ko-
walik told him she had, he said that that was all he wanted to know s
There is no doubt, therefore, that on November 7 Zubko knew that the
Union had the signed cards of both Dudik and Kowalik.
On November 11, Zubko met with Steve Kearns, business agent for
the Union. Although the Union had requested in its letter to Re-
spondent that the meeting be held in the union office, Kearns had
appeared unexpectedly at Respondent's office. Zubko desired to go
some place where they could talk in private, but Kearns insisted on
3Kowalik's testimony reveals that she clearly intended to join the Union, and that she
was not coerced into joining by the Union.
WEBB FUEL COMPANY 313
holding the discussion where they were. When Zubko realized that he
could not prevail, he consented to answer Kearns' questions. As to
this conversation, Zubko first testified somewhat ambiguously about
the Union's majority status, but when asked by counsel to repeat the
conversation, Zubko testified that his answer to Kearns was: "You
don't represent office workers, do you...."
We conclude, therefore, that when pressed for recognition by the
Union, Zubko did not doubt that the Union was duly authorized to
represent Dudik and Kowalik, but rather, he questioned the Union's
general jurisdiction to represent office workers. In these circum-
stances, we find no merit in Respondent's contention that it refused
to bargain with the Union on November 11 because it had a good-
faith doubt that the Union represented an uncoerced majority of its
office employees.
Accordingly, we find that, by refusing to bargain with the Union,
Respondent violated Section 8(a) (5) and (1) of the Act.
3. The Union began picketing Respondent's premises on Novem-
ber 14, 1960, in protest against this refusal to bargain. Dudik and
Kowalik were among the pickets. Driver Daniel Szymanski reported
for work about 7:30 a.m. that day and learned about the pickets from
another driver shortly before he was to begin his run. When told by
Zubko the reason for the picketing, Szymanski, who was a member
of the Union, stated that he would not cross any picket line. Before
leaving, he told Zubko that he would be available for work whenever
the strike had been terminated. Driver Joseph Rakowski, a member
of the Union for 8 years, was on vacation during the first week of the
strike. He returned on November 21, at which time he learned of
the strike. He worked for 2 days, but then decided to stop work.
On December 14, 1960, Dudik and Kowalik sent letters to Respond-
ent asking to be reinstated to their former positions. On December 19,
Szymanski and Rakowski did likewise. All four employees were noti-
fied by Respondent by letter dated December 30, 1960, that they had
been replaced and that their services were no longer required.
We find that employees Dudik and Kowalik became unfair labor
practice strikers when they joined the Union's picket line after Re-
spondent refused to recognize the Union as their bargaining repre-
sentative. We also find that employees Szymanski and Rakowski
became unfair labor practice strikers when they refused to work
because of the existing unfair labor practice strike. Therefore, Re-
spondent was obliged to reinstate the four employees when they sought
reinstatement even if Respondent had to discharge employees hired in
their place during the strike.4
4 Trinity Valley Iron and Steel Company , a Division of C. C. Griffin Manufacturing
Company, Inc, 127 NLRB 417.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that Respondent violated Section 8 (a) (3) and
(1) of the Act when it refused to reinstate these employees following
their unconditional requests for reinstatement.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
In the light of the Trial Examiner's findings as to the business of
the Respondent, which we adopt, we find that the activities of the
Respondent set forth 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.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard
to the hire and tenure of Jo Ann Dudik, Dolores Kowalik, Joseph
Rakowski, and Daniel Szymanski by refusing to reinstate said em-
ployees upon their unconditional application to return to work, the
application of Dudik and Kowalik having been made on December 14,
1960, and the application of Rakowski and Szymanski having been
made on December 19, 1960, we shall order that the Respondent offer
to each of them immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority
or other rights and privileges. We shall also direct that the Respond-
ent make each of them whole for any loss of pay each may have suf-
fered by reason of said discrimination by payment to each of a sum
of money equal to that which each would have earned as wages from
December 14, 1960, as regards Dudik and Kowalik, and from Decem-
ber 19, 1960, as regards Rakowski and Szymanski, to the date of the
offer of reinstatement, less net earnings during such period, in accord-
ance with the formula set forth in F. TV. Woolworth Company, 90
NLRB 289. Because of the Trial Examiner's recommendation that
the complaint be dismissed, the period from the date of the Intermedi-
ate Report to the date of the Decision and Order herein will be ex-
cluded in computing the amount of backpay to which each is entitled.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Webb Fuel Company is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
WEBB FUEL COMPANY 315
2. Chauffeurs, Teamsters and Helpers Union, Local No. 364, is a
labor organization within the meaning of Section 2(5) of the Act.
3. All office employees of the Respondent employed at its branch
office located at South Bend, Indiana, exclusive of drivers, helpers,
warehousemen, checkers, graders, professional employees, guards,
and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
4. The Union was on November 7, 1960, has been at all material
times since then, and is now, the exclusive representative of the em-
ployees in the aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
5. By refusing, on and after November 11, 1960, to bargain with the
Union as the exclusive representative of the employees in the afore-
said appropriate unit, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (5) and
(1) of the Act.
6. By discriminating in regard to the hire and tenure of employ-
ment of Jo Ann Dudik, Dolores Kowalik, Joseph Rakowski, and
Daniel Szymanski, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (3) and
(1) of the Act.
7. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, Re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Webb Fuel
Company, South Bend, Indiana, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Chauffeurs, Teamsters
and Helpers Union, Local No. 364, as the exclusive representative of
its employees in a unit consisting of all office clerical employees at its
South Bend, Indiana, branch, with respect to wages, rates of pay,
hours of employment, and other terms and conditions of employment.
(b) Discouraging membership in Chauffeurs, Teamsters and
Helpers Union, Local No. 364, or any other labor organization of its
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, by discharging or refusing to reinstate employees or other-
wise discriminating in regard to their hire or tenure of employment,
or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist Chauffeurs, Teamsters and Helpers Union, Local No.
364, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Upon request, bargain collectively with Chauffeurs, Teamsters
and Helpers Union, Local No. 364, as the exclusive representative of
all employees in the aforesaid appropriate unit, with respect to wages,
rates of pay, hours of employment, and other terms and conditions
of employment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Offer Jo Ann Dudik, Dolores Kowalik, Joseph Rakowski, and
Daniel Szymanski immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them whole in the manner
set forth in the section above entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms hereof.
(d) Post at its branch in South Bend, Indiana, copies of the notice
attached hereto marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent, be posted immediately
upon receipt thereof, and be maintained for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that the copies of said notice are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
WEBB FUEL COMPANY 317
MEMBER RODGERS, dissenting :
I think that the Trial Examiner properly found that Dudik was a
supervisor . Accordingly, I would adopt the Trial Examiner's recom-
mendation that the complaint be dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in Chauffeurs, Teamsters
and Helpers Union, Local No. 364, or in any other labor organiza-
tion, by discharging or refusing to reinstate any of our employees,
or in any other manner discriminating against them in regard to
their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Chauf-
feurs, Teamsters and Helpers Union, Local No. 364, or any other
labor organization of our employees, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all
such activities.
WE WILL, upon request of the Union, bargain collectively with
Chauffeurs, Teamsters and Helpers Union, Local No. 364, as the
exclusive representative of our South Bend office clerical employ-
ees with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed agreement.
The bargaining unit is :
All South Bend office clerical employees exclusive of drivers,
helpers, warehousemen, checkers, graders, professional em-
ployees, guards, and supervisors as defined in the Act.
WE WILL offer Jo Ann Dudik, Dolores Kowalik, Joseph Rakow-
ski, and Daniel Szymanski immediate and full reinstatement to
their former or substantially equivalent positions without preju-
dice to their seniority or other rights and privileges, and make
them whole for any loss of pay suffered as a result of the discrimi-
nation against them.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization.
WEBB FUEL COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with Board's Regional Office
(Midland Building, 176 West Adams Street, Chicago 3, Illinois; Tele-
phone Number, Central 6-9660) if they have any questions concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding involves allegations that the Respondent, Webb Fuel Company,
herein called the Respondent, violated Section 8(a) (1), (3), and (5) of the National
Labor Relations Act, as amended. A hearing was held before John H. Eadie, the
duly designated Trial Examiner, at South Bend, Indiana, on March 1, 2, and 3, 1961.
The Respondent's motions to dismiss the complaint are disposed of as hereinafter
indicated. After the conclusion of the hearing, the General Counsel and the Re-
spondent filed briefs with the Trial Examiner. The Respondent also filed a motion
to correct the record, supported by an affidavit of its attorneys. The General
Counsel filed a statement in opposition to the motion. In view of the General
Counsel's opposition, and since the correction in the Respondent's motion does not
accord with the Trial Examiner's recollection in the matter, the motion is hereby
denied. The motion papers are received in evidence and marked as Trial Ex-
aminer's Exhibits Nos. 1, 2, and 3, respectively.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent is a corporation organized under and existing by virtue of the
laws of the State of Michigan, with a station and office at Port Huron, Michigan,
where it is engaged in the business of buying and selling coal and oil. Respondent
also has stations or branches in other cities in Michigan and Indiana, including a
station at South Bend, Indiana, the only facility involved in this proceeding.
The Respondent's gross annual volume of business exceeds $500,000. In the
course , conduct, and operation of its business, the Respondent annually ships goods
directly from one State to another at an annual rate in excess of $50,000.
The complaint alleges, the answer admits, and the Trial Examiner finds that the
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers Union, Local No. 364, herein called the
Union, is a labor organization within the meaning of Section 2(5) of the Act.
m. THE UNFAIR LABOR PRACTICES
A. Sequence of events
The Respondent's South Bend branch stocks and sells coal and fuel oil to domestic
and commercial customers . Eugene Zubko, branch manager at South Bend, per-
forms almost all of the contract work involved in such sales. The overall opera-
tion is seasonal, with a consequent fluctuation in the work force. During the heat-
ing season the total office force, including the manager, reaches from 3 to 5 persons,
WEBB FUEL COMPANY 319
and the delivery force amounts to 10 or 11. During the off season the office force,
including the manager, is two or three, and the delivery force is also reduced to two
or three.
For a number of years prior to the times mentioned herein there was in effect
in the South Bend area a "uniform coal agreement " between employers and the
Union . The Union had some contracts in the South Bend area which include drivers
and office employees . The Respondent kept a copy of the above contract in its
files, but had never signed it. However, in accordance with the contract, the Re-
spondent deducted union dues from the pay of its drivers who were members of
the Union.
On November 7, 1960, employees Jo Ann Dudik and Dolores Kowalik signed
union authorization cards for Steve Kearns, business agent for the Union. Dudik
and Kowalik were the only office employees of the Respondent at the time.'
By letter dated November 8, 1960, the Union notified the Respondent that it
represented the office employees and requested "that a meeting be established on
Friday, November 11, 1960, at 11 a.m . in our office in order to discuss a labor
agreement covering the employees mentioned above ." During the morning of
November 9, Zubko called Dudik and Kowalik into his office and showed them
the Union's letter. He asked them if they had joined the Union. Each replied that
she had.
During the morning of November 11, Zubko called the Union's office in order to
make arrangements for the meeting requested in the Union 's letter. He was told by
a girl in the office that Kearns was not present and that she would have him return
Zubko's call. Instead of calling Zubko, Kearns appeared at the Respondent's office.
Concerning his conversation with Kearns, Zubko testified credibly as follows:
I told him I would be with him in just a moment and I went back to get
my coat. . He asked me where I was going and I said, I told him I wanted
to go someplace where we could talk in private and I didn't want to interrupt
our business. He insisted it was highly irregular. He carried on about this
and about my wanting to go elsewhere and he told me he would not interrupt
business. I told him that I didn't want to take the chance and he kept insisting
and actually it had gotten to the point of the very thing I was trying to avoid. I
was afraid one of our customers would walk in on us at such a time. When I
saw I wasn't going to get him out of there to talk, I let him talk, and he finally
made the statement that "I've only got a couple things to ask you," I could see
I wasn't going to get him out of there to talk, so I said, "All right, what is it?"
He said, "Are you going to recognize us?" and I said, "No." Then he said,
"Why?" and I told him, "You don't represent the office workers."
He made this statement that he was going to picket us or shut us off and
he would be able to hold us off from hauling coal or fuel oil ... .
* * * * * * *
I saw that I couldn't talk to the man normally and I told him that if that
was all he had to say, we might just as well adjourn ... .
Later that same day, Norman Murrin, president of the Union, called Zubko. He
asked Zubko how many drivers the Respondent had in its employ, and how many
of these paid union dues. Zubko gave him the requested information, and then at-
tempted to talk about Kearns' visit of that morning. Murrin refused to discuss
the subject.
Starting about 8:30 a.m. on November 14, 1960, the Union picketed the Respond-
ent's premises. The picket signs stated that the Respondent refused to bargain with
the Union. Dudik and Kowalik joined in the picketing. Driver Daniel Szymanski,
who was a member of the Union, told Zubko that he would not cross the picket
line. Zubko told him, "If it [the picket line] goes off I'll call you-back right away
and you can start to work because the season was approaching." Szymanski per-
formed no work for the Respondent after November 14.
Driver Joseph Rakowski, also a member of the Union, was on vacation during
the first week of the strike. He returned to work on November 21. On Novem-
ber 22 the Union told him that he should not work until the strike was settled.
Rakowski ceased working on November 23.
Dudik and Kowalik made unconditional requests to return to work by letter to
the Respondent dated December 14, 1960. Szymanski and Rakowski made similar
' Louis Carrico was assigned to the South Bend branch as a "management trainee."
All parties agreed that Carrico was not a regular office employee and should not be in-
cluded in the unit.
320 DECISIONS OF NATIONAL, LABOR. RELATIONS BOARD
requests by letters dated December, 19, 1960. ! The pickets were removed on or
about December 21. The Respondent replied by letter dated December 30, 1960,
advising each of the four employees that they had been replaced by permanent
employees. .
B.. The status of Jo Ann Dudik
The Respondent contends,that,Dudik was a supervisory employee. ' The General
Counsel contends otherwise.. - _
William Webb, vice president and district manager of the Respondent, and Zubko
testified to the effect that budik, while nothaving the title, was in fact an'assistant
manager. Concerning Dudik and other employees, with the same, position, Webb
testified ,'"They would have the authority to run the business in the manager's absence,
to lay off personnel, to direct them in their work, to make work assignments or any-
thing else that might pertain to the business, including purchase of items and so
forth." Zubko testified that he was frequently away from the office when contacting
customer's or for other reasons, such as an out-of-town business trip, illness, or
vacation; and that Dudik was in complete, charge of the business on such occasions.
In this connection Dudik was questioned and testified as follows:
Q. And during the summer season,. that is the non-heating season, was Mr.
Zubko gone from the office a good deal?
A. Yes, he was.
Q. Could you tell us why he might be gone from the office?
A. Well, he'd tell me he was out making calls, drumming up business for the
next heating season.
Q. Who was in charge when Mr. Zubko was gone?
A. I was, I was the only one there.
9. Have you ever been told by Mr. Zubko that if the drivers refused to do
their work, they should punch out and go home?
A. Yes, I was.
Q. Did you ever take job applications from persons applying for employment?
A. Yes, I did.
Q. Did Mr. Zubko ever tell you that whenever he was out of the office that if
anything came up at that time that it should be done just as if he were there?
A. Yes, he did.
In addition to the undisputed evidence that Dudik was in charge during Zubko's
absences, the record establishes that she exercised supervisory authority over the
Respondent's employees. For example, she called drivers in for work and sent them
home when no work was available; she assigned drivers to odd jobs, such as unloading
coal or cleaning up the yard; and on one occasion she sent home employee Cleo
Wilson because he reported for work while under the influence of alcohol?
For the .most part, the record in the case deals with Dudik's duties and authority,
particularly in connection with her office work. For example, the evidence discloses
that Dudik was the only person other than Zubko who had authority to certify to
the correctness of certain company reports, such as the, daily cash and petty cash
expense reports. In its brief the Respondent contends that such evidence shows
that Dudik had "duties and authorities over and above that of a regular office em-
ployee which fix her status on the management team." In view of the facts found
above, I do not find it necessary to detail the evidence in this connection or to pass
upon the Respondent's contention. In my opinion the record conclusively establishes
that Dudik was a supervisory employee within the meaning of the Act, and I so find:.
C. Conclusions
The complaint alleges that "all office employees of the Webb Fuel Company
employed at its branch office located at South Bend, Indiana, exclusive of drivers,
helpers, warehousemen, checkers, graders, professional employees, guards, and super-
visors as defined in the Act" constitute a unit appropriate within the meaning of
Section 9(b) of the Act. In its answer the Respondent denies this allegation, stating
in part, "[the unit] would be a one-man bargaining unit, traditionally found inappro-
priate by the National Labor Relations Board."
Since Dudik has been found to be a supervisory employee, she is excluded from
the unit. This leaves only one person in the unit, namely, Kowalik. Accordingly,
I find that the above unit is not appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act; and that the Respondent by refusing
2 Wilson and Carrico testified credibly to the above. Dudik testified that Carrico sent
Wilson home Her testimony is not credited in this connection.
ARCHIE'S MOTOR FREIGHT, INC . 321
to recognize or bargain with the Union under the circumstances herein related did
not engage in unfair labor practices within the meaning of Section 8 ( a)(5) of the
Act. It is further found that the strike was not caused by any unfair labor practices
of the Respondent ; and that during the strike the Respondent replaced Dudik,
Kowalik , Rakowski , and Szymanski with permanent employees . Therefore , by failing
and refusing to reinstate said employees the Respondent did not engage in unfair
labor practices within the meaning of Section 8(a)(3) of the Act.
[Recommendations omitted from publication.]
Archie's Motor Freight, Inc. and Truck Drivers and Helpers,
Local Union No. 592 , affiliated with the International Brother-
hood of Teamsters , Chauffeurs and Warehousemen of America,
Petitioner . Case No. 5-RC-3277. January 16, 1962
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election issued by the
Board on March 29, 1961,1 an election by secret ballot was conducted
by the Regional Director on April 22, 1961, among the employees in
the unit found appropriate. After the election the parties were fur-
nished with a tally of ballots which showed that of approximately 26,
eligible voters, 10 voted for, and 11 voted against, the Petitioner and 1
ballot was challenged. The Petitioner filed timely objections to con-
duct allegedly affecting the results of the election.
After investigation the Regional Director, on May 31, 1961, issued
and served upon the parties his report on objections, in which he rec-
ommended that the objections be sustained and the election set aside,
and that the Board remand the case to the Region for the purpose of
determining the unit placement of six "city drivers," a matter not
considered in the original decision for reasons stated below.
The Board, after having duly considered the matters raised in the
Regional Director's report concerning the "city drivers" and the
exceptions thereto, was of the opinion that the record should be
reopened for the purpose of receiving additional evidence, and ac-
cordingly, on August 3, 1961, it issued an order remanding the pro-
ceeding to the Regional Director for further hearing. This second
hearing was held on August 30, 1961, and the matter came on to the
Board for determination.
Pursuant to the provisions of Section 3 (b) of the Act,, the Board
has delegated its powers in connection with this case to , a three-
member panel [Members Rodgers, Leedom, and Fanning].
The Petitioner originally petitioned for "all road drivers at the,
Employer's Richmond, Virginia, terminal, excluding `local pick-up,
1130 NLRB 1627.
135 NLRB No. 37.
634449-62-vol. 135-22